Andrew Wayne Wallace v SA Police No. SCGRG 93/1094 Judgment No. 4056 Number of Pages 7 Criminal Law

[1993] SASC 4056

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - illegal interference with and illegal use of motor vehicles - clear evidence of offences having been committed - issue whether appellant was the offender - circumstantial evidence - present in the vicinity - found hiding by police - conduct not establish a consciousness of guilt - evidence insufficient to prove complicity of appellant in the offences beyond reasonable doubt - appeal allowed and convictions set aside - complaint dismissed: The Queen v Bridgman (1980) 24 SASR 278 at 281-282, Woon v The Queen (1964) 109 CLR 529 at 541-542 and Harris v The Queen (1990) 55 SASR 321 at 323 referred to.

HRNG ADELAIDE, 12 July 1993 #DATE 22:7:1993
Counsel for appellant:     Mr C Kourakis
Solicitors for appellant:    Barnfield Somerville and Verlato
Counsel for respondent:     Mr A D Wainwright
Solicitors for respondent: Crown Solicitor for South
   Australia

ORDER
Appeal allowed, convictions set aside.

JUDGE1 MULLIGHAN J This appellant was convicted on 25th May 1993 by a Special Magistrate sitting as the Magistrates Court (Criminal Division) at Mt. Gambier of four offences all alleged to have been committed by him on 10th November 1992. These offences are being unlawfully on the premises at 38 Pick Avenue, Mt. Gambier, resisting a member of the Police Force in the execution of his duty, illegally interfering with a motor vehicle owned by a Mr. Waldron and illegal use of that motor vehicle. He denied these charges and after a trial was found guilty of all of them. The appellant was sentenced to imprisonment for four months and disqualified from holding or obtaining a licence to drive a motor vehicle on the convictions for illegal interference and illegal use of motor vehicles and was convicted without penalty with respect to the other offences. He appeals against the convictions on the charges of illegal use and illegal interference. 2. Late at night on 10th November 1992 someone entered the premises of a Mr. Waldron at 100 Harrald Street, Mt. Gambier. There were two motor vehicles, a Holden utility and Ford station wagon parked near the rear of the driveway of these premises. Mr. Waldron was in bed asleep and at a little before 11.25 pm he was awoken by the noise of the engine of the utility revving and that vehicle colliding with a side fence in the yard of his premises. He got out of bed and went into the front yard of his premises and saw a police car to the west along Harrald Street and near the junction of that street and Finnis Street, about four house blocks away, and a police officer moving along Harrald Street and shining a light along the driveways of houses. Those police officers had arrived in that location at about 11.25 pm. Mr. Waldron also noticed the back of the utility protruding through the fence. The person who had entered Mr. Waldron's premises had entered the Ford station wagon and rummaged through the glove box and then entered the utility, started the engine without the ignition key and then, presumably in the course of turning it around, reversed it through the fence. Pieces of wood from a wood pile at the back fence of the property had been disturbed. 3. Mr. Paterson was the next door neighbour of Mr. Waldron. He too was in bed asleep when he was awoken upon hearing the utility crash through the fence. He looked out of his bedroom window which faced the street and also looked up and down the street but did not see anyone. He went to his kitchen and upon looking out of the window saw the utility protruding through the fence. The driveway of his property is adjacent to Mr. Waldron's driveway. He saw Mr. Waldron come out of his house followed by his wife so he changed into clothes, went outside and went to the utility. He then joined Mr. Waldron in the driveway and spoke to him. At that stage both men saw a man who was undoubtedly the appellant walking in a staggering kind of way along Harrald Street from the direction of Finnis Street. According to Mr. Waldron he saw the appellant about ten minutes after he heard the crash. Mr. Paterson estimates that period of time as a few minutes less. When Mr. Waldron first saw the appellant he was holding on to a gate post and appeared to be looking down the driveway at the utility. Mr. Waldron said to Mr. Paterson "I reckon that's him there". It would seem that the appellant overheard that remark and he left quickly, stumbling and half running. Mr. Waldron went inside and rang the police even though the police were nearby. 4. More police officers arrived and a search of the area was conducted. The appellant was found hiding in bushes in the yard of the house premises at 38 Pick Avenue, Mt. Gambier, which is four house properties to the east of Mr. Waldron's property. Constable Davies had been conducting the house to house search along Harrald Street from Finnis Street. He was not called to give evidence. That is the direction from which the appellant had been walking when he came to, and leaned up against, the fence post at Mr. Waldron's property. There was evidence before the learned Special Magistrate that someone had attempted to break into the house next door to Mr. Paterson's property on the other side to Mr. Waldron's property. It may be that the police officers seen in the vicinity of Finnis Street, including Constable Davies, were sent to the area because of that incident. Constable McLean had been with Constable Davies and he went to the street behind the properties of Mr. Waldron and Mr. Paterson which is Cockburn Street, but did not see anyone. Constable Reynolds had gone to the area with Constable Trevellion and he found the appellant hiding in bushes. As he approached, the appellant stood up from a crouched position and attempted to leave by making his way back towards Cockburn Street, but Constable Reynolds arrested him and told the appellant that he was arrested. A struggle ensued and Constable Reynolds called for assistance. Constable McLean arrived and gave assistance. The struggle continued until the appellant was handcuffed and placed in the rear of a police vehicle. Constable Reynolds then had a conversation with the appellant. He told him of his legal rights by reading them from a proforma contained in his note book. The appellant replied, "Yeah, who gives a fuck". The conversation continued: "Const.Reynolds: 'Andrew you fit the description of a person, including your clothing, that was seen leaving the scene of an attempted shed break and illegal use and an illegal interference some 50 metres from here, what do you say to this.' Appellant said: 'You fucking prove it, I aint saying nothing.'" 5. He was then taken to the Mt. Gambier Police Station, was charged and cautioned as to answering questions. He replied: "Yep I aint saying fuck all, you cunts prove it." 6. Adjacent to Harrald Street is a railway line. In November 1992 the appellant lived at Sturt Street, Mt. Gambier which is across the railway line from Harrald Street. It was established before the learned Special Magistrate that the appellant was known to police in Mt. Gambier, including Constable Reynolds but the nature and extent of his record was not proved. He gave evidence at the trial and said that on the night in question he was so intoxicated by alcohol that he did not have any recollection of any of the events of that night. He claimed that he had consumed a bottle of Irish whiskey between about 6 pm and 8 pm and his next memory was when he woke up in the cells at the Mt. Gambier Police Station the next morning. Constable Reynolds is an experienced police officer and on many occasions had been required to make assessments of the degree of intoxication of people for official purposes. He assessed the appellant as being between moderately and grossly affected by alcohol on the night in question. There is one other fact (sentence not finished) 7. It was, of course, the prosecution case that the appellant was the person who committed the offences at Mr. Waldron's property and that the proven circumstances admitted of no other conclusion than that he was that person. 8. It appears from the reasons for judgment of the learned Special Magistrate that the appellant was charged in separate proceedings with the attempted breaking and entering of the house property at 96 Harrald Street. That charge was dismissed and probably for want of prosecution. The only significance of that matter is that it probably explains the presence of police officers at near the junction of Finnis Street and Harrald Street at 11.25 pm so soon after the incident with the utility at Mr. Waldron's premises. 9. The learned Special Magistrate found that the appellant was the person who had interfered with, and used, the motor vehicles at Mr. Waldron's property. He said:
    "The prosecution evidence is overwhelming having regard to
    the short period of time which had elapsed; the fact that he was
    not seen leaving the premises by either Waldron or Paterson
    leaves open the inference that he escaped over the wood heap and
    emerged onto Harrald Street somewhere to the west of Waldron's
    premises, there seeing the police activity he ran back the only
    way he could go which was to the west up Harrald Street, in so
    doing looked into the premises again, no doubt thinking he might
    be able to get away in that area if there was no-one around but
    Paterson and Waldron were down there so he continued on down to
    the intersection of Pick Avenue and Harrald Street and hid in
    the bushes. Therein lies the inference of consciousness of
    guilt in my view. Why was he hiding there crouching down? The
    inference is that he knew he had been up to no good shortly
    before and was trying to escape detection. All of the
    observations of the prosecution witnesses point to that one
    irresistible fact. It passes the stage of being mere
    coincidence and becomes an inference by which I can conclude
    beyond reasonable doubt that it was the defendant who was in the
    premises interfering with and using the vehicles." 10. And later:
    "There can be no doubt on the evidence of Reynolds and
    McClean, who I accept as honest and reliable witnesses, that he
    resisted when he was apprehended. The conversation,
    particularly the second conversation he had with Reynolds, the
    effect of it was when the allegations were put that he answered
    the description of a person seen committing offences shortly
    before in Harrald Street, the defendant said 'and you can
    fucking well prove it', that, as the prosecutor says, is not the
    answer of somebody who was so drunk that he could not put his
    mind to the essential issues. He knew very well what the
    significance of that was and his answer in my view leads me to
    an inference that he was the person responsible." 11. The learned Special Magistrate then went on:
    "Other matters which lead me to that conclusion are the
    opportunity of the defendant living as he did close by at 79
    Sturt Street, the fact that although he relies upon his
    drunkenness as a defence he did not see fit to call at least the
    two persons who were in the house that night and could have
    corroborated his evidence that he was substantially under the
    influence when he left and nor did he give any explanation for
    not calling them. The fact that he was not able to give any
    convincing reason why he would be wandering around at that time
    in Harrald Street at all where he knew nobody nor was he able to
    say that he knew anybody in the general area that side of
    Harrald Street and Pick Avenue, all in all it is a most
unconvincing performance." 12. The four grounds of appeal, although express in different ways raise, in effect, the one ground namely that the evidence was insufficient to make out the charges of interference with the two motor vehicles. Before evaluating the total effect of all of the evidence, there are two matters which require consideration. The first is the significance of the conduct of the appellant in running away when seen by Mr. Waldron and Mr. Paterson, hiding in the bushes and attempting to avoid arrest by Constable Reynolds. Clearly, the learned Special Magistrate regarded this evidence as establishing a consciousness of guilt of the offences of interfering with the vehicles. He did not say in his reasons for judgment that he had considered any other possibility. In The Queen v. Bridgman (1980) 24 SASR 278, White J examined authorities on the question of a consciousness of guilt being established by flight. He drew attention to the need to establish that the reason for the flight must not be consistent with anything other than guilt of the offence charged: see pp.281-282. Flight is, of course, but one type of conduct from which a consciousness of guilt may be inferred in appropriate circumstances. Lies told by an accused is another and the reaction by an accused to statements made to him or in his presence is yet another. The dangers of impermissible reasoning by inference of guilt has been discussed in many cases. It is necessary to mention only two. In Woon v. The Queen (1964) 109 CLR 529, the court was concerned with evidence of the reaction of an accused person when questioned by police and the significance of selective responses to questions. It was accepted by the court that such conduct may establish a consciousness of guilt. Windeyer J. said at pp.541-542:
    "A man's looks may belie him. Demeanour and conduct may
    discount denial and manifest guilt as surely as would a
    confession made by words. But I think that Dr. Coppel was
    right when he said that the inference which can be drawn from
    conduct and demeanour that displays a consciousness of guilt may
    depend upon whether there is other evidence pointing to the
    accused as guilty of the offence charged. When there is, false
    accounts of movements, false denials of knowledge of relevant
    facts, any conduct, utterance or demeanour demonstrative of
    guilt may go far to support a conclusion that the accused
    committed the very crime charged. But when there is no other
    evidence implicating the accused, an attitude of guilt, without
    more, may mean only that the accused was a participant in some
    wrongdoing, not that he committed the crime alleged, in manner
and form alleged." 13. With respect to lies, King CJ in Harris v. The Queen (1990) 55 SASR 321 observed, at p 323:
    "The probative character of some lies rises from their
    tendency to indicate that they proceed from a consciousness of
    guilt on the part of the accused. Instances of lies of that
    kind are false denials of having been in the company of an
    alleged victim at a material time or of having been at the scene
    of the crime at a relevant time, made at a time when the accused
    could not have known, unless he was the culprit, that there had
    been any wrongdoing in connection with the alleged victim or at
    the scene of the crime. Even in such cases courts must be on
    their guard against collateral motives for telling lies, such as
    the desire to conceal from a spouse that the accused was in the
    company of the alleged victim or was at the scene of the crime.
    The circumstances in which lies told after an accused becomes
    aware that he is or might be under suspicion in connection with
    the crime can amount to positive evidence of the commission of
    crime must be rare. The tendency of persons under suspicion to
    wish to distance themselves from the persons or events connected
    with the alleged crimes and to endeavour to improve their
    position by falsehood is far too common to enable an inference
    to be drawn with confidence, in any but the rarest of cases,
    that lies proceed from a consciousness of guilt. Unjust results
    can easily flow from a readiness to treat lies of an accused
    person as positive evidence of guilt." 14. Here, the evidence established that the appellant was known to the police. Although his past record is not known, there was sufficient evidence to cause the learned Special Magistrate to consider whether it was reasonably possible that the appellant saw the police activity near the scene of an apparent crime, the damaged motor vehicle, and feared that suspicion would fall upon him because of his past record, whatever that might be, and tried to get away for that reason and not because of a consciousness of guilt of interfering with the motor vehicles. When approached by Constable Reynolds, he was undoubtedly on the premises at 38 Pick Avenue, Mt. Gambier unlawfully and may have had a consciousness of guilt of that offence and not the others. It does not appear that the learned Special Magistrate considered other explanations for the conduct of the appellant. Consideration of the evidence establishes, to my mind, that it was unsafe to attribute a consciousness of guilt to the appellant and such a finding could not be made beyond reasonable doubt. 15. The next matter is the observations of the learned Special Magistrate as to the evidence of the appellant that he was so intoxicated that he could not remember any of the events in question. Whilst such an assertion had to be scrutinized very carefully, the learned Special Magistrate erred in certain observations which he made. The appellant was not raising intoxication as a defence in the sense that he did not have the required intention to commit the offences relating to the motor vehicles, although the learned Special Magistrate was obliged to consider that issue. The appellant's case was that his state of intoxication was the reason for his not being able to recall the events in question. His intemperate responses to Constable Reynolds does not establish that his evidence as to lack of memory was false. They say very little about his degree of intoxication except that he was capable of answering relevantly. It appears that the learned Special Magistrate drew some inference adverse to the appellant by his not calling the two persons in whose company he had been earlier in the evening when he consumed the whiskey, and observed that he did not give any explanation for not doing so. In view of the evidence of Constable Reynolds as to the degree of intoxication of the appellant, it is difficult to see what could have been achieved by calling the witnesses. At all events, there was independent and reliable evidence of his degree of intoxication and criticism of not calling the two persons was unjustified. 16. It appears that the learned Special Magistrate may have drawn some inference adverse to the respondent for not giving any "convincing reason" why he would be in the vicinity and that his was "a most unconvincing performance". 17. Of course the learned Special Magistrate was obliged to make an assessment of the appellant as a witness and of his evidence and was entitled to the view which he formed. He was required to have regard to that view when reaching his conclusions as to the matters in issue, but there was no obligation on the accused to have any reason or explanation for his presence in the vicinity. I do not think that the learned Special Magistrate did reverse the onus of proof, but it appears that the failure of the appellant to explain his presence in the vicinity to the satisfaction of the learned Special Magistrate was brought to account against him. If that is so, in the context of the charges relating to the motor vehicles, the learned Special Magistrate was in error. However, I have not found it necessary to decide that question. In my view, the evidence was not capable of proving beyond reasonable doubt that the appellant was the person who interfered with the motor vehicles. There was no evidence to link him directly with the motor vehicles, such as his fingerprints being found on one or both of them, some object from one of them being found in his possession or near to him, or of his having being seen at or near the vehicles at a relevant time. Once it is accepted that an inference of a consciousness of guilt cannot be drawn from the conduct of the appellant beyond reasonable doubt, all that is left is the appellant being in the vicinity some appreciable time after the offences were committed and his behaving suspiciously but when intoxicated. An inference of guilt beyond reasonable doubt cannot be drawn from this evidence and the learned Special Magistrate erred in his conclusion that the charges had been proved. 18. I allow the appeal and quash the convictions and the sentences of imprisonment and the orders disqualifying the appellant from holding or obtaining a licence to drive a motor vehicle. I do not consider that the appellant should again stand trial on these charges. The evidence in the prosecution case has been accepted but found to be insufficient which, at least, would probably again be the case at a re-trial. In the circumstances the charges of illegal interference (count 3 - the complaint) and illegal use (count 4) are dismissed.