Biddlecombe v Police No. Scgrg-98-1656 Judgment No. S13

BIDDLECOMBE v POLICE
[1999] SASC 13

Magistrates Appeal: Criminal

PERRY J (ex tempore). The appellant appeals against his conviction following a trial appeals against his conviction following a trial in the Magistrates Court sitting at Elizabeth on charges that on 17 August 1998 he broke and entered the sports shed of the Elizabeth Vale Primary School and stole a number of items from the shed, contrary to s170(1)(a) of the Criminal Law Consolidation Act 1935; and that on the same date he was on nearby premises situated at 10 Davidson Road, Elizabeth Vale, for an unlawful purpose, contrary to s17 of the Summary Offences Act 1953.
On the same information, he was charged with unlawful use of a motor vehicle, but that count was not proceeded with. However, he pleaded guilty to two further counts on the information, namely, giving a false address to a police officer, and failing to comply with a condition of a bail agreement.
In the result, he was convicted on the two counts to which he had pleaded not guilty, and the two further counts to which he had pleaded guilty. One overall penalty was imposed with respect to the four counts, namely ten months imprisonment.
There is no appeal against penalty, but only as to the conviction on the first two counts.
In his notice of appeal, the appellant complains, as to the breaking entering and larceny charge, that the learned trial magistrate erred in finding against the appellant on the issue of identity. The appellant contends that the learned trial magistrate should have recognised that it was reasonably possible that some other person was responsible for that offence.
As for the conviction for being unlawfully on premises, the appellant complains that the learned trial magistrate erred in failing to recognise that the evidence could not exclude the reasonable possibilities that:
“3.1.. the appellant's presence on the premises was a civil trespass, and
3.2the appellant was on the premises for a purpose other than to steal or illegally use a motor vehicle.”
After the police witnesses had been called, a submission by Ms Abbott of counsel for the appellant that there was no case to answer was rejected. The appellant then chose not to give evidence, following which, after further argument, the convictions now in question were recorded.
It appears from the evidence that part of the property occupied by Elizabeth Vale Primary School fronts Davidson Road. Two witnesses, who were residents of Davidson Road, were called by the police prosecutor. They spoke of matters which had come to their attention in the early hours of the day in question, which was a Monday morning.
The witness Rodney Miles lives at 10 Davidson Road, being the premises to which count 2 relates. He gave his occupation as occupation care worker. It was apparently in connection with that occupation that he had charge of two vans, described as Hi-Ace vans, which were parked outside his premises at the time in question. In his driveway, which apparently ran from Davidson Road, he had parked his Falcon sedan motor car.
At a time which he estimated at about 3.15 am., Mr Miles' dog woke him up. As a result, he went to the door, presumably the front door, only to see a number of police officers outside. Somewhat surprisingly, on making that observation, he went back to bed without doing anything further about the situation.
It was dark at the time, but there was some illumination from a street light outside his front gate.
In cross-examination, he said that the police officers were outside the gate. He did not see anyone else apart from the police officers.
The other local resident who was called, a Mr Jones, lives four or five houses down the street from the witness Mr Miles. He also was in bed asleep, and heard a noise outside. He looked at the clock and confirmed that it was about 4.00 am. Both counsel during the hearing of the appeal have proceeded on the basis that his estimate of the time is right, rather than the estimate given by Mr Miles. At all events, according to Jones, it was still dark outside.
He got up. At first, he looked out of his bedroom window, and then went outside to the front of his house property and looked across the road in the direction of the school. He noticed a man emerging from the school grounds through a gate which opened onto Davidson Road, more or less opposite his house. His evidence was:
“I noticed somebody across the road coming out of the school with a plastic table under each arm and I watched him walk down the road and he disappeared in front of some vans, disabled (sic) vans down the road'. I was still watching him and the next minute he come out of the vans and (was) going from side to side of the vans and then he disappeared into the driveway.”
He went on to say that it looked as though the person he observed was trying to “get into” the vans but gave up before going into the driveway.
Although there is some slight confusion in his evidence, as he goes on to say, the police arrived then, but in fact it was not until a little later that they arrived.
In the meantime, he went back inside and a little later returned to the street again, some ten minutes or so afterwards, to see what was going on, as he could still hear noise.
At first, he saw nothing and then he says that he saw a person he believed to be the same man again emerge from the vicinity of the vans and go back into the driveway.
It was at that stage that he went inside and rang the police, who must have come fairly promptly. The evidence of one of the police officers who attended is that they arrived at the scene at about 4.45 pm.
He saw the police officers shining their torches and entering the same driveway. Mr Jones was adamant in his evidence, both in examination and cross-examination, that the man he saw walking down the street carrying the tables was the same man whom he saw entering the driveway. Part of his evidence was that “it (sic) looked the same, I had a good view”.
While he admits that he did not take note of the clothing worn by the man, he did at one stage say that he thought he had on a light top and jeans. He says that he could see the person, but could not describe the man. He said that it was “definitely the same person” and described the person as being of average height. He went on to say that “he looked drunk, all over the place”. When asked to indicate what it was that made him think he was drunk he said “just casual, I don't know, just wobbling”.
The witness Mr Clancy, employed by the school, gave evidence that a little later on in the morning in question he went to the shed, which he describes as a furniture shed, and found that the lock had been forced and items taken, including a round plastic table and four plastic chairs. As well, there was a wheelbarrow and a barbecue gas cylinder missing.
The witness Mr Jones had given evidence that he saw a wheelbarrow and gas bottles located at the exit gate on the school property a little later than the occasion upon which he had seen the man carrying the table.
Constable Amanda Woods gave evidence that she had been on mobile patrol duty with Constable Taylor when she was called to Davidson Road. She stopped the patrol car by the vans, which were parked outside No .10, whereupon she saw the appellant in the driveway of the house of that address.
Through his counsel, the appellant admitted at the trial that he was the person in the driveway. When the officers approached him, according to Constable Woods, they asked the appellant what he was doing there, to which he replied “Looking for somewhere to sleep” He gave as his home address what was admitted at the trial to have been a false address at Salisbury.
Ms Brown for the appellant contends that the giving of the false address might reasonably be explained by reference to the fact that it was a condition of bail, upon which apparently he was at large at the time, that he reside at the Salisbury address. At all events, he later gave to the police another address, described as an address at Eastern Road, which apparently was his correct address.
Some other police officers attended at the scene, one of whom observed that the shed had been broken into. The two tables were located about fifty metres away from 10 Davidson Road on a grass strip between the footpath and the roadway.
Constable Woods' evidence was that the appellant gave signs of being under the influence of either alcohol or drugs. She did not go into detail as to what those signs were, except that at a subsequent video interview she described the appellant as being incoherent, although he was coherent off the video.
The learned sentencing magistrate gave a short extempore judgment, in which he referred to the substance of the evidence to which I have made reference. He said that the appellant had offered what he described as “a lame explanation of looking for somewhere to sleep”, apart from giving a false address.
He goes on to conclude:
“I dismiss as a reasonable possibility that the shed breaker who had gone to No 10 and the defendant were not the same person. It would involve the proposition that the two men are at No 0 at 4.00 am approximately. It involves the proposition that the shed breaker went to all efforts to enter the shed, carrying some property to a fence line and other property down to the vicinity of vehicles outside No 10 and then disappears, leaving all the property which he was at pains to take, all for no apparent reason. It involves the defendant, remarkably at 4.00 am being in the same place, being at a vehicle at No 10, offering a false address, and a pathetic reason for being there. The defendant has offered no evidence and offered no acceptable explanation.”
He went on to indicate his satisfaction beyond reasonable doubt that the appellant was the person who broke into the shed, and that he was alongside the vehicle in the driveway for an unlawful purpose connected with that vehicle, namely, either illegal interference with the vehicle, or illegal use of the vehicle to convey the stolen property.
Ms Brown, who has argued the appeal very capably, emphasised the inability of the witness Mr Jones positively to identify the appellant. She submitted that even if all the other circumstances were taken into account, there was no proof beyond reasonable doubt that it was the appellant, as opposed to some other person, who broke into the shed and stole the property removed from it.
She pointed out that there is no evidence that there was found on the appellant any items which might have been used to effect the break-in which was accomplished by a forcing of the lock, and she drew attention to the fact that there was no evidence of a comparison of any fingerprints, although fingerprints were taken from the appellant when he was placed in custody.
She emphasised that the tables were found some fifty metres away, and that the appellant's explanation of being on the premises at No 10 looking for somewhere to sleep could not be dismissed as completely implausible, and could not be rejected beyond reasonable doubt.
As for the conviction on count 2, that is, being on premises for an unlawful purpose, she submitted that the mere proximity between the appellant and the car in the driveway was not sufficient to sustain the conviction on that count. She submitted that it was at least possible that he was on the premises for an innocent purpose, amounting to no more than a civil trespass, namely, to be on the premises looking for somewhere to sleep.
Ms Davidson, who appeared for the respondent, accepted that at the opening of his case the prosecutor in the court below particularised the unlawful purpose as being “to steal a car”, although as I have indicated in the notice of appeal, the appellant refers to the purpose as being to steal or illegally use a motor vehicle.
I do not think that the difference matters. Even if the prosecutor particularised the unlawful purpose as being to steal the motor car in the driveway, a conviction on count 2 could be sustained if the evidence established beyond reasonable doubt either an intention to steal, or to use it illegally. Sub silentio, the wording of the grounds of appeal seems to accept the validity of that proposition.
This is not an identity case in the usual sense. The witness Mr Jones did not purport to be able to identify the appellant as the person whom he saw carrying the tables out of the school gate. But what he did swear to was his certainty that that person was the same person as the person he saw in the vicinity of the vans at the front of Mr Myles' house and the person whom he saw walking into the driveway close to the vans.
My function on appeal, of course, is to determine, on my reappraisal of the evidence, whether the conviction should be sustained.
It may only be sustained if I reach the view, independently of the view taken by the magistrate, that the evidence proves the guilt of the appellant beyond reasonable doubt. It is not sufficient, as it is sometimes said, to have regard to whether or not there was material upon which it was open to the learned special magistrate to come to the conclusion which he did.[1]
[1] Taylor v Hayes (1990) 53 SASR 282.
I have carefully considered the evidence and the arguments put by Ms Brown. In my opinion, even allowing for the fact that Mr Jones was not able positively to identify the appellant as the person he saw carrying the tables down the street, it was nonetheless a strong circumstantial case.
Mr Jones had a good view of the appellant, and saw him over a period of time, on and off over 45 minutes, albeit in poor lighting conditions. What he must be taken to be saying is that the physical appearance of the person, including his height and gait, persuaded him that it was the same person.
Looking at the circumstantial evidence, it seems to me that the principal elements are that a person was seen carrying the tables out of the school gate shortly before the apprehension of the appellant in the driveway of No 10; that Mr Jones had that person under observation in the circumstances in which I have just described, and says that he saw the person enter the driveway; that although he could not offer positive identification by reference to facial features or clothing or the like, it is a reasonable inference that the person concerned was of about the same height and build, and was exhibiting a similar gait; shortly after those observations by Mr Jones, the police apprehended the appellant in the vicinity of the car parked in the driveway of No 10, when he gave a false address, together with an unconvincing explanation for his presence on the premises. (I say “unconvincing” because it was apparently not accompanied by any explanation as to why he should choose to sleep at that address at that time of the morning, given that he had a home address to which presumably he could have resorted for that purpose).
To those items of evidence must be added the fact that the appellant did not give evidence. While his absence from the witness box cannot be used as any sort of make-way to carry a police case which falls short of being able to satisfy the onus of proof to one which should be regarded as capable of satisfying it, the fact that the appellant did not give evidence enables the trial judge more readily to infer that it was the appellant, and not some other person, who was involved in the break-in.[2]
[2] Weissensteiner (1993) 178 CLR 217.
In my opinion, this was a strong circumstantial case which, upon my evaluation of it independently from the assessment made by the magistrate, compels me to the conclusion that it was sufficient to prove the guilt of the appellant with respect to both counts now in issue.
True it is, that somewhat different considerations apply to count 2, that is, being on premises for an unlawful purpose. The case was less strong as to that, given the arguments to which I have referred put forward by Ms Brown. But at the end of the day, it seems to me that if the appellant was guilty of breaking and entering the shed and stealing the items in question, the sequence of subsequent observations can only sensibly be explained on the footing that he was looking for some conveyance to remove the items from the scene of the crime.
If having committed the breaking and entering, which in my opinion explains his presence at the scene of the crime, it is unlikely that he was in the driveway near the car for any purpose other than to address the possibility of using the car to remove the goods. Support for that is given by reference to the passages of evidence of observations by the witness Mr Jones that he appeared to be attempting to force an entry, or at least open the door of one of the vans.
The appeal is dismissed.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Taylor v Hayes (1990) 53 SASR 282.

Weissensteiner (1993) 178 CLR 217.

[1999] SASC 13

14 January 1999