SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P: The appellant, Brett Anthony Mackay, was convicted in the Ipswich District Court after a two day jury trial of going armed in public so as to cause fear (count 1) and wilful damage of a motor vehicle (count 2).  He is self-represented in this appeal against conviction.

Grounds of appeal

[2] His grounds of appeal are:

"UNSAFE AND UNSATISFACTORY

1.Mrs Gillespie: kept changing her story from police-committal-trial.

2.Police photo of window:a)there are not 7 scratches but 2.

b)no scratches leading to cut rubber.

c)it looks like someone used a coat hanger to break into the car.

3.Police forensic: scratches done by a dragging motion.  (To stab is a jab; poke sharply, a pushing movement.)

4.Police witnesses: false statements by police, times, dates, even the colour of the car.  Camera's, no camera's.  No investigations, it's a travesty of law enforcement.

5.Common sense: no one would stab a window with a chef's knife or a butcher's knife for fear of breaking window or having their hand slide down blade and cut it.

DIRECTIONS

Magistrates Direction: Do not go to court without legal representation.  It was MORE than advice, it was a direction.

Barrister:  Mr Salone would not follow my instructions – I am running this show my way and if you do not like it …..

Trial Judge (Direction to Me):  At the start of the trial, I was warned of contempt, and told "another out burst from you Mr Mackay and it will be contempt."

I was trying to explain that, to state a knife without proof isn't right.  It's an "alleged knife" of an unproved accusation.  I think I got all that out before the warning.  I dare not finish my objections that my council was not acting as instructed.  I had no voice in the court.

Direction from judge to jury:  Can we find on the evidence not guilty going armed in public to create fear and still find on the evidence guilty of wilful damage? "My" council said no, DDP said no.  Whatever was the reasoning of the jury the trial judge said "NO".

DDP:  Presented criminal history duplicating three times in three states, a travesty to her profession. " (errors as in original)

[3] He has also applied for leave to adduce further evidence in the appeal.  Before returning to the purported grounds of appeal and the application to adduce further evidence, it is helpful to set out the evidence at trial.

Evidence at trial

[4] The principal prosecution witness was Ailsa Gillespie who gave the following evidence.  On 6 October 2008, after visiting her mother in Atherton, she collected her Kia Sorento vehicle from Brisbane airport and dropped off her husband at work.  She drove towards her home near Ipswich along Old Toowoomba Road and stopped at traffic lights at the Lobb Street intersection.  She was in the right hand lane.  She noticed a blue Ford sedan beside her in the left hand lane.  It was being driven by a man and there were two small children in the car.  When the lights turned green, she accelerated away faster than the blue Ford.  The two lanes merged into one.  She continued on towards a roundabout where she entered the right hand lane and indicated to continue around it to the right.  As the blue Ford was in the left hand lane of the roundabout, she expected it to proceed straight ahead through the roundabout.  She was continuing around the roundabout when the blue Ford suddenly veered across her path from the left hand lane.  She quickly braked and managed to stop her vehicle without making contact with the blue Ford.

[5] The driver of the blue Ford jumped out, reached down, took something out of his car and came towards her.  As he came closer, she saw he had a knife in his hand.  It was a butcher's or chef's knife, about 10 or 11 inches long.  She could not recall the colour.  He ran towards her car, yelling to her to open the window.  He banged on the window with his left hand and started stabbing at the window with his right hand in which he held the knife.  He stabbed downwards with the knife and tried to insert the blade around the trim of the window.  She demonstrated the motion of the knife with the prosecutor's pen.  When the driver told her to open the window he was very angry.  She did not remember saying anything to him.  She was scared and stunned.  She could not understand why this was happening.  After a while he desisted, ran back to his car, got in, continued around the roundabout and drove back towards the Lobb Street intersection. 

[6] She cried for a short time before driving off the roundabout.  She then pulled over to the side of the road to compose herself.  She phoned her husband but could not get through.  She drove home and rang the police.  She did not want to drive again that afternoon.  The next day she attended Rosewood police station and made a complaint.  She made a mental note of the registration of the blue Ford: 214 DLZ.  When her husband arrived home, they inspected their vehicle.  She noticed that the driver's window was scratched and the window rubber surround and trim was damaged.  Photographs of the damage to the window were tendered.

[7] In cross-examination she gave the following evidence.  The incident occurred at about 3.15 pm on a school day when people in the area were collecting children from school.  She was terrified but she decided not to ring triple 0; nor did she go to the Leichhardt police station which she knew was nearby.  She "just wanted to go home".  She picked up her dog from kennels at Walloon on her way home.  She rang the Ipswich police station from her home.  She denied that as she drove away from the traffic lights she forced the blue Ford into the gutter.  Her car windows were up and she was unlikely to hear if anybody was yelling at her.  She denied that her car had touched the back of the blue Ford when it stopped in front of her.  She was adamant that, when the driver came over to her car, he was carrying a knife with which he struck her car window.  She could not recall exactly what the driver was yelling at her, other than that he wanted her to open the window.  She could not recall if he said anything about having children in the car or her running into the back of him.

[8] Police officer Ibbott saw Mrs Gillespie the next day, 7 October 2008, at the Rosewood police station.  He noticed damage to the driver's side window of her car.  He arranged to have it photographed.  Palm print and fingerprint impressions were found on the window.  He did not think there were CCTV cameras at the roundabout at the time of the incident.  Had he known there were, he would have made arrangements to view the video footage.  He did not.

[9] The appellant, through his counsel, admitted that the palm prints on Mrs Gillespie's car window were his, and that the road markings in tendered photographs of the roundabout depicted the road markings on 6 October 2008. 

[10]  About five months after the roundabout incident, on the evening of 13 March 2009, the appellant participated in a 24 minute video recorded interview with police officers Malcolm and Hutton.  An edited video recording of that interview was tendered and played in court.  The appellant gave the following account to police in the interview.  Mrs Gillespie's vehicle cut off his vehicle before the roundabout, forcing the car into the kerb.  This caused him to be concerned for the welfare of his children who were in the car.  He stopped in front of Mrs Gillespie's vehicle.  Her vehicle ran into the back of his.  He ran towards her vehicle saying, "What the bloody hell are you doing?  I've got children in the car."  He saw that no damage had been done to his car and that other vehicles were backing up on the roundabout.  He therefore returned to his car and drove off.  He was not armed with a knife.  He did not cause any damage to Mrs Gillespie's vehicle.  He did not recall whether he hit the window or windscreen of her car with his hand.  He was 99 per cent sure he did not, but he was furious and may have done so.  He knew he did something with his hands but he did not know what.  He was adamant that he was not carrying a knife and that he did not cause any damage to her car.  If there were charges to be laid, she should be charged for leaving the scene of an accident.  He did not report the matter to police.

[11]  Police officer Malcolm gave evidence that Citysafe video cameras were in place at the relevant roundabout when this incident occurred.  After he conducted the interview with the appellant, he made enquiries and found that there was no video footage of the incident: such footage was kept only for seven days.

[12]  The appellant did not give or call evidence.

Appeal against conviction - conclusion

[13]  The appellant's grounds of appeal are not easy to comprehend.[1]  His 38 page handwritten outline of argument is of no more help.  It is comprised of disconnected rambling notations apparently made whilst perusing the transcript of the evidence at trial, counsel's addresses and the judge's summing-up.  His oral submissions at the hearing were no more enlightening. 

[14]  His first ground of appeal, that his convictions are "unsafe and unsatisfactory", must be understood as a contention that the guilty verdicts should be set aside on the grounds that they are unreasonable or cannot be supported having regard to the evidence: see s 668E(1) Criminal Code 1899 (Qld).  To succeed on this ground of appeal, he must demonstrate that, on a consideration of the whole of the evidence before the jury, it was not open to the jury to be satisfied beyond reasonable doubt of his guilt: MFA v The Queen.[2]

[15]  The transcript of the evidence suggests that Mrs Gillespie was an impressive and consistent witness.  She made a timely complaint to police.  Photographs were taken of damage to the driver's side window of her vehicle soon after the incident.  This damage was consistent with her testimony.  The jury were entitled to prefer her account of the events of 6 October 2008 to that given by the appellant to police five months afterwards.  This was so irrespective of the five particulars relied on by the appellant under this ground of appeal, none of which are supported by the evidence.[3]  The jury were entitled to accept Mrs Gillespie's account beyond reasonable doubt and to convict the appellant of going armed in public so as to cause fear, and of wilful damage to Mrs Gillespie's vehicle.  The appellant has not made out this ground of appeal.

[16]  The appellant's second ground of appeal is headed "Directions".  His first complaint under this ground of appeal seems to be that a magistrate told him to have legal representation and he acted on that advice but he was unhappy with his barrister whom he did not think did a good job at his trial.  Having perused the trial transcript, I am confident this dissatisfaction with his barrister developed with hindsight after he was convicted.  He has not pointed to any decisions made by his barrister which were not rational tactical forensic decisions.  It follows that this complaint does not undermine the jury verdicts.[4]

[17]  His next complaint under this second ground of appeal seems to be that his barrister would not follow his instructions.  But he has provided no cogent evidence of this complaint.  In any case, for the reasons that follow, that seems unlikely.

[18]  His submissions suggest that his next complaint under this ground of appeal relates to the following exchange at trial during the prosecutor's opening address to the jury:

"PROSECUTOR: … Members of the jury, the trial today is essentially about an incident of road rage committed by the [appellant], Brett Anthony Mackay.

APPELLANT: Excuse me, I'm not charged with road rage here, I don't know why she's saying that.

HER HONOUR: Just keep quiet Mr Mackay.

APPELLANT: Okay.

HER HONOUR: Just listen to what the prosecutor has to say.

APPELLANT: They - them's lies.

HER HONOUR: Yes, even if you think it's lies.

APPELLANT:  All right, no worries.

…

PROSECUTOR:  So, he cut off - he cut her off in the middle of the roundabout, members of the jury. This caused Mrs Gillespie to brake very hard and suddenly, to avoid hitting his car. She didn't make contact with his car.

APPELLANT:  Yes she did.

PROSECUTOR:  The [appellant] got out of his car and he grabbed something from under his seat. What he grabbed from under that seat was a knife, and he walked towards her with the knife, as she was sitting stationary, in the car, in the middle of the roundabout. Now, her car windows were up at that time. Now, he was yelling at her, he was screaming at her, and he was walking towards her with that knife, and he started slapping his left open palm on the window, yelling at her. He then started to stab the window with that knife.

APPELLANT: No.

PROSECUTOR:  … Now, she made her way home, inspected the damage that the [appellant] did to the car, and there was a long scratch down the window and a cut in the window frame, so the seal of the window, and this was caused by the knife in the [appellant's] hands.

APPELLANT: The alleged knife wasn't it? You're alleging that?

HER HONOUR: Mr Mackay, be quiet please.

APPELLANT:  Well, I'm not saying she's - having a knife when she's only alleging there's a knife.

HER HONOUR: I've asked you to be quiet whilst the prosecutor is speaking, please be quiet. Go ahead.

PROSECUTOR:  Thank you your Honour. The next day Mrs Gillespie went to the Rosewood Police Station where she made a formal complaint to a police officer by the name of Senior Constable Lachlan Ibbott, and she gave him the registration details that she had remembered from that particular incident, and they were the registration details of the [appellant's] vehicle.

APPELLANT:  No, they weren't.

…

PROSECUTOR:  Now, officer Malcolm also arranged for some photos to be taken of the roundabouts, and you will - of where the incident occurred, and you will see those photographs in evidence today. Finally, you will hear, by way of formal admission by the defence, that there was no alteration to the road markings on that roundabout for about 12 months prior to this particular incident. And that's relevant, members of the jury, because of the version the [appellant] gives to the police in his record of interview.

So, the act of arming himself with a knife in that public place----

APPELLANT:  Alleged.

PROSECUTOR:  -----to cause fear to Mrs Gillespie, is count one on the indictment for you to consider, and the act of stabbing the knife into the car window, causing damage to the car, is the wilful damage charge that you have to consider.

Now, that is, effectively, a summary of the prosecution's case, and as you, members of the jury, as fair minded members of the jury, are here to assess that evidence. You can believe all of the evidence that you hear today, or some of the evidence or none of the evidence, it really is a matter for you, members of the jury. But ultimately, the Crown does say that at the end of the trial, you will be satisfied that the [appellant], with a knife, went armed in public to cause fear to Ailsa Gillespie, and with that knife he wilfully and unlawfully damaged Mrs Gillespie's motor vehicle.

Thank you. Thank you your Honour.

HER HONOUR: Well, we'll take a 15 to 20 minute break now, members of the jury, so you can follow the Bailiff out.

THE JURY RETIRED AT 12.14 P.M.

HER HONOUR: Now, Mr Mackay, just stand up. Whilst we're hearing from witnesses in this case you are not to make any sound at all. If you interrupt a witness or make any comment on what they're saying, then you could be in contempt of Court. And I'll just point out to you you are not making any friends on the jury if you shout from the-----

APPELLANT:  I'm not here to make friends.

HER HONOUR: All right. Now, you can sit down now.

APPELLANT:  I'm just-----

HER HONOUR: Just sit down.

APPELLANT:  I've just got a bee in my bonnet about an alleged knife. If they're saying a knife, I'd like them to produce the knife, and then they can say the knife. But until then it should be allegated. You know, like-----

HER HONOUR: Just sit down.

APPELLANT:  You know, it's not - it's not on.

HER HONOUR: Just sit down, please.

APPELLANT:  She's putting a knife in my hand already and there's no knife.

HER HONOUR: Sit down, please. …" (errors as in original)

[19]  In his oral submissions, the appellant emphasised that, in his view, the prosecutor should have referred to "an alleged knife" not "a knife".  The prosecutor correctly summarised the evidence she expected Mrs Gillespie to give, as required in an opening jury address.  The transcript demonstrates that the appellant was conducting himself in an unruly fashion before the jury during the opening.  The judge's warning to him, that if he conducted himself in a disorderly way he risked being in contempt of court, was entirely appropriate.  The judge was careful to give this admonition in the absence of the jury.  No miscarriage of justice has resulted from it, nor from the prosecutor's entirely proper reference to "knife" rather than "alleged knife" when summarising the expected evidence of a prosecution witness.  This complaint is baseless. 

[20]  The appellant made clear in his oral submissions that he well understood he could have dismissed his barrister and conducted his case himself.  His conduct at the trial and in this Court is inconsistent with his claim in the grounds of appeal that he "had no voice in the court".  At the close of the prosecution case, when the appellant's barrister told the judge he held instructions that his client would neither call nor give evidence, the judge directly addressed the appellant in these terms:

"HER HONOUR:  Just stand up, Mr MacKay. The prosecution just closed it's case which means that we've heard all of the evidence now that it's going to produce against you, and at this stage of the trial, I have to ask you if you wish to give evidence yourself or call any witnesses or adduce any evidence. Now, you're not obliged to do any of those things, [defence counsel] has just indicated that you do not want to give evidence yourself or call witnesses, is that the case?"

[21]  The appellant responded: "Yes, your Honour."  Had the appellant wished to give evidence or to make a complaint to the judge, I am confident he would have done so at this time.  The fact that, having been convicted after conducting his trial without giving or calling evidence, he now considers he may have been acquitted had he given and called evidence, is no reason to set aside his convictions. 

[22]  The appellant's next complaint under the second ground of appeal seems to relate to a redirection following a note the jury sent to the judge during their deliberations.  The note stated that the jury had agreed on a verdict for count 2 but could not agree on a verdict for count 1.  That redirection was as follows:

"HER HONOUR: Well members of the jury, you've indicated by your note that you've reached agreement with respect to the second charge, but you are in disagreement with respect to the first charge the going armed so as to cause fear. I just remind you that the particulars that the prosecution is relying upon is that it was a knife that [the appellant] used when he approached Mrs Gillespie and that it was also the knife that caused the wilful damage, so it's only if you can be satisfied beyond reasonable that you can convict him - it's only if you're satisfied that the knife was used in both instances, that you could convict him of the matters of the charges.

But I want to say something about your being in disagreement at this stage, because you have been out since before 11 o'clock, so you've a had long time to deliberate on these charges. As I said to you this morning, you've got as long as you need to deliberate on your verdicts and - but if you were unable to reach an agreement I do have power to discharge you from considering your verdicts any further. But obviously, I'll only do that if there's no likelihood of a genuine agreement being reached by you, even after further deliberation.

Judges are reluctant to discharge a jury, because experience has shown that jurors can often agree if they're given enough time to consider and discuss the issues. But having said that, if after calmly considering evidence and listening to the opinions of your fellow jurors, if you personally can't honestly agree with the conclusions of your fellow jurors then you must, in accordance with the oath or affirmation that you took, give affect to your own view of the evidence.

Now each of you did give an oath or affirmation that you would consciously try these two charges and decide them according to the evidence, that's an important responsibility and I know you are taking it seriously, and you must fulfil that to the best of your ability. Each of you does take into the jury room your individual experience of life and wisdom, and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of your fellow jurors and the process of considering your verdict should involve a weighing up of one another's opinions about the evidence and testing them by discussion. This does often lead to a better understanding of the differences of opinions which you may have and it may convince you that your original opinion was wrong.

That is not, of course, though to say that you could consistently, with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it's the correct one.

But experience has shown that juries are often able to agree in the end. And, for that reason, when we reach this stage, Judges usually request juries to re-examine the matters on which they are in disagreement, and to make a further attempt to reach a verdict before you are discharged.

So just to allow you to consider what I've just said, I would ask you to retire again and try and reach a verdict on count 1. Thank you."

[23]  These redirections were given with the agreement of both the prosecutor and the appellant's counsel and neither counsel sought any further redirections in respect of them.  The jury again retired to consider their verdict at 4.08 pm and returned with guilty verdicts on both counts at 5.01 pm.  The impugned redirections were, as counsel at trial recognised, entirely appropriate.  This complaint is also without merit.

[24]  The appellant's final complaint in his second ground of appeal appears to relate to his criminal history, a record of which was tendered at sentence.  This material was not before the jury.  The appellant has not applied for leave to appeal against his sentence.  This contention is therefore irrelevant to his appeal against conviction. 

[25]  None of the issues raised by the appellant in his grounds of appeal, outline of argument, or oral submissions suggests that there has been any "wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice": see s 668E(1) Criminal Code.  It follows that, subject to the application for leave to adduce further evidence, the appeal against conviction must be refused.

The application for leave to adduce further evidence - conclusion

[26]  I turn now to the application to adduce further evidence.  The appellant seeks to produce evidence to this Court of portions of transcript of proceedings in the Magistrates Court, including the committal proceedings, and of exhibits which were tendered in the Magistrates Court but which were not tendered at trial, including witness statements.  He also seeks to produce newsletters from a local city councillor concerning Citysafe cameras at the roundabout; a newsletter from Neighbourhood Watch dated June 2009; and photographs in the possession of his counsel which were not tendered at trial.

[27]  It is clear that all this material was available at the time of his trial.  His barrister made rational forensic decisions not to rely on any of it.  The calling of defence evidence, even photographs, would have resulted in the appellant losing the advantage of the right to address the jury after the prosecutor.  I am unpersuaded that any of this further evidence, even where admissible, would have been of assistance to the appellant.  His case was already before the jury through his video recorded interview.

[28]  In his oral submissions the appellant also sought to produce the unedited version of the video of his interview with police.  He claimed he was disadvantaged because the unedited version was not before the jury.  But the edited portions of the tape were completely irrelevant to the charges against him and did not assist his case in any way.[5]

[29]  As Mr Copley SC for the respondent points out in his written submissions, none of the further evidence on which the appellant seeks to rely is fresh: it was available at the appellant's trial.  Even so, there is a residual discretion in exceptional cases to receive on appeal new or further evidence which is not fresh evidence if to refuse to do so would lead to a miscarriage of justice: R v Condren, ex parte Attorney-General;[6] R v Daly; ex parte A-G (Qld);[7] and R v Main.[8]  In determining an appeal which turns on new or further evidence, there are strictly two questions: first, whether the court should receive the evidence and, second, whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice.  As in this case, those two questions frequently merge: R v Katsidis; ex parte A-G (Qld).[9]

[30]  Were the further admissible evidence sought to be relied on by the appellant added to the evidence at trial (all of which is summarised earlier in these reasons)[10] the jury could still have accepted Mrs Gillespie's evidence beyond reasonable doubt and convicted the appellant on both counts.  It follows that this Court should refuse the appellant's application to adduce further evidence.

ORDERS:

1.The application to adduce further evidence is refused.

2.The appeal against conviction is dismissed.

[31]  MUIR JA: I agree with the reasons of McMurdo P and with the orders she proposes.

[32]  CHESTERMAN JA: I agree with the orders proposed by the President for the reasons given by her Honour.