Bonner v Annesley [No. 2]
[2016] ACTMC 1
•29 January 2016
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bonner v Annesley [No. 2] |
| Citation: | [2016] ACTMC 1 |
| Hearing Date(s): | 21 December 2015 |
| DecisionDate: | 29 January 2016 |
| Before: | Magistrate Morrison |
| Decision: | See [2], [14] and [42] |
| Category: | Principal Judgment |
Catchwords: Legislation Cited: | CRIMINAL LAW - offence under Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) - failing to stop when signalled by a police officer – strict liability offence - reasonable excuse defence –application of the Criminal Code 2002 (ACT) – evidential burden on defence – also possession of property reasonably suspected of being stolen or otherwise unlawfully obtained – absolute liability attaching to physical element that property be reasonably suspected of being stolen property – statutory defence if defendant proves no reasonable grounds for suspicion - application of the Criminal Code 2002 (ACT) – legal burden on defence – defendant’s right of silence not exercised – relevance of comparing what said at police interview with testimony in court. Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) |
Cases Cited: Parties: | Criminal Code 2002 (ACT) Petty v The Queen (1991) 173 CLR 95 R W Bonner (informant) |
| Representation: | Mr G Mansfield (prosecution) |
| File Numbers: | CC 4581 of 2014 |
MAGISTRATE MORRISON:
Three charges against the defendant have proceeded to hearing. All were heard together.
One is charge 4581 of 2014. Having regard to the ruling I made as to the admissibility of certain evidence to which objection had been taken no submissions were made to me by the defence that the elements of the offence were not made out. I am satisfied that all of the elements have been proved beyond reasonable doubt and I find the defendant guilty of that offence.
The other charges defended at hearing were charge 4582 of 2014 – an allegation that the defendant did not stop the motorcycle he was riding when signalled by a police officer to do so; and charge 4583 of 2014 – an allegation that the defendant had in his possession property, being that motorcycle, which was property reasonably suspected of being stolen or otherwise unlawfully obtained.
The defendant gave sworn testimony at hearing. In relation to the charge of failing to stop when signalled he said that the throttle of the motorcycle had jammed open causing the vehicle to shoot uncontrollably across the roadway in front of the police car. He said that the jammed throttle came free when the motorcycle hit a bump on the dirt track and that he fell from the motorcycle at that time. He said that he had been frightened by the police vehicle then proceeding to a position close to him and so had fled into the surrounding bushland.
The offence against the defendant is charged under regulation 109(2) of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) (“the Regulation”). It is in the following terms:
(1) A police officer may request or signal the driver of a vehicle to stop the vehicle.
(2) A person must not, without reasonable excuse, fail to comply with a request or signal made or given by a police officer under subsection (1).
Chapter 2 of the Criminal Code 2002 (ACT) (“the Criminal Code”) applies and all offences under the regulations are strict liability offences as defined in chapter 2 of the Criminal Code – see sections 4A and 4B of the Regulation.
It follows that the defendant’s assertion that he was relevantly unable to control the motorcycle falls to be considered as a reasonable excuse in accordance with section 58 of the Criminal Code which relevantly provides:
(3) Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
(4) To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence.
“Evidential burden” is defined in section 58(7) of the Criminal Code. The evidential burden about what is asserted as a reasonable excuse in this case is satisfied by the defendant’s own testimony about his inability to control the motorcycle.
By virtue of section 56 of the Criminal Code the prosecution has the burden of disproving beyond reasonable doubt the reasonable excuse of which the defendant gave evidence.
The testimony of the defendant about the uncontrollable movement of the motorcycle must be considered in the context of the evidence overall. His testimony is in direct conflict with the testimony of the two police witnesses. There is some inconsistency between the testimony of Constables Bonner and Storey about the earlier movement of the motorcycle and the police car – but their evidence is generally consistent about the defendant bringing the motorcycle to a stop or near stop on the side of the road before he then sped off along the dirt track.
To that prosecution evidence might be added the answer given by the defendant in his recorded interview which is exhibit P7. Most of the interview recorded deals with the possession charge but question and answer 206 to 214 are relevant for present purposes. That exchange is in the following terms:
Q206.Yeah. Just while I’ve got you Neil, I’ll just take you back, can just take you back to Monday the sixth, the incident with the police on Coulter Drive in Florey?
A.Yeah, yeah.
Q207.Yeah, can I just get you just to take – take me through your version of events of that, while I’ve got you?
A.Um, what do you mean, like.
Q208.So just – just take – just take me through the – the story – so you’ve-your – so you’ve – you’ve - - -
A.So – from – what were I’m – I’m at the intersection and you guys did your big U-turn?
Q209. Yeah, So just take me through your – your version of events of that?
A.Oh, I’m sitting at the intersection off Coulter Drive, and you guys come down the street, obvious I wasn’t wearing a helmet.
Q210.Yeah.
A.Um, didn’t have a helmet at that stage, yeah you guys did a big U-turn, I’ve come through the intersection – I wasn’t sure whether you needed a licence or not, but I knew I was a disqualified driver.
Q211.Yeah
A.I wasn’t sure that – I knew I wasn’t with a helmet, I just, I shit myself, just say it bluntly like.
Q212. Yeah
A.Anxiety, fear, stuff like that, and instead of pulling over – what I would call dick head syndrome, um, I went straight and stacked me bike and hurt me self.
Q213.Yeah.
A.Well I can’t apologise enough, you know, it was stupid thing to do, was – like I don’t even know why I did it, just stupid, it’s – yeah.
Q214.Yeah. Is there anything else that you’d like to tell me in relation to this – is there anything you can think of?
A.No, but look, if I find out any information I’ll be straight down to tell you sort of thing you know, like, I’m note – I’m not – I’m not taking the wrap for this put it that way. There’s no way in the world that – you know I didn’t steal the bike, I didn’t know it was stolen, there’s no way in San Jose’s hell that I would swap a legit car for a stolen bike. To me, it’s even bigger dick head syndrome than not pulling over.
The combined effect of the evidence just referred to persuades me to reject the defendant’s version of events given in his testimony before the court.
I accept the testimony of Constables Bonner and Storey as to the position and movement of the motorcycle immediately before it moved on to the dirt track. In the circumstances I am satisfied that the prosecution has disproved that the defendant had any reasonable excuse for not stopping the motorcycle.
I find the offence proved.
In relation to charge 4583 of 2014, the defendant gave evidence in court about his actions and his belief at the time he acquired the stolen motorcycle, which was only a very short period of time before it was found in his possession by police officers.
This charge is brought under section 324(1) of the Criminal Code, which provides relevantly that a person commits an offence if the person has property in their possession and the property is reasonably suspected of being stolen property or otherwise unlawfully obtained property.
Absolute liability applies to the element that the property be reasonably suspected of being stolen or otherwise unlawfully obtained. The test for the relevant suspicion is an objective one applied at the date of possession, but subsection (3) of section 324 provides as follows:
(3) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant had no reasonable grounds for suspecting that the property concerned was stolen property or otherwise unlawfully obtained property.
Unlike the reasonable excuse provision in the failing to stop offence, the structure of section 324(3) casts a legal obligation on the defendant not just an evidential one. That is, to take advantage of the defence in subsection (3) a defendant must prove, on the balance of probabilities, that he or she had no reasonable grounds for the suspicion referred to.
The existence of that express defence does not affect the requirement that the property must be reasonably suspected of being stolen or otherwise unlawfully obtained.
I turn to the evidence in relation to the possession charge.
The defendant gave sworn evidence in court about the circumstances surrounding his acquisition of the motorcycle. In short he says he swapped a car he owned, but which was not registered in his name, for the motorcycle. The disposer of the motorcycle was a person known only as Azza, Aaron or Alex who was introduced to him via an acquaintance known only as Peter. He noted that the motorcycle was registered but he was not given any registration papers and nor was any transfer of registration signed by the disposer. He said that, based on his experience with the Road Transport Authority, he was able to transfer the registration of a vehicle without signed transfer papers by providing information to the authority by way of a statutory declaration and that is what he intended to do in this case. No key to the motorcycle was provided to the defendant by the disposer but the defendant said that the motorcycle had been started without using a key. It appears that he was aware at the time of acquisition that there was at least a key-operated steering lock on the motorcycle.
Importantly for present purposes, the defendant said in his sworn testimony that before he took possession of the motorcycle he did what he described as a rego check on it (T25). He said that was done by way of contact via his phone with “Canberra Connect” (T26) and I refer to his enquiry in these reasons as the Canberra Connect enquiry. I allowed into evidence as exhibits D3 and D4 what I understand to be screen shots of the type of information displayed when an enquiry is conducted electronically. Those documents are in evidence by way of example only for ease of understanding – the specific data shown in them is irrelevant.
Exhibit D4 has places at which a yes or no result appears under the headings “Stolen VIN?”; “Stolen Engine?” and “Stolen Plate?”.
The defendant says that when he undertook the Canberra Connect enquiry, what was displayed included entries to the effect that the motorcycle was registered and that the result appearing under each of the headings of stolen VIN, engine and plate was “no”.
In his evidence in chief, the defendant said that he undertook the Canberra Connect enquiry at the top of the street in Illawarra Court and that the motorbike was directly in front of him at the time (T27). Under cross examination he said that he took the bike for a little ride, did the Canberra Connect enquiry and then there was a conversation with the disposer about the paperwork (T49).
The defendant took part in a recorded interview the transcript of which is exhibit P7. The interview took place on 13 January 2014 – a week after the alleged offence.
In the recorded interview the defendant makes mention of a test ride of the motorcycle in various places. At his answer to question 133 he says that he had a look at the bike and had a bit of a ride in it.
In his answer to question 146 the defendant said this:
“He started the bike, just took it for a little bit of a ride round the car park, yeah, cool, no worries, it goes – it works, lights work, indicators didn’t work, we didn’t worry about that.”
In the recorded interview the defendant does not mention any Canberra Connect enquiry about the status of the motorcycle.
Under cross examination the defendant was questioned about what he said and did not say to police during the interview. At page 55 of the transcript he was directed to Q and A 187 and the following exchange took place:
“Now, that would have been a pretty good point in time to tell police that you did your online rego check on the day, wouldn't it?---I can't remember whether I did or I didn't. I can't say for sure when I've told them about this, whether it was at the interview or whether it was at the time of the incident. I can't remember when I told them about it, I'm sorry.”
And at page 56 of the transcript the following exchange took place:
“Now, seven days later you were at the police station. Yes?---Yes.
And it was clear that the police were talking to you about that motorbike?
---Mm'hm.
And they had told you that that motorbike was stolen on the day you got it? Yes?---Yes.
And they were asking you the circumstances behind how you got the motorbike that day?---Yes.
And in those circumstances you didn't think it was necessary to tell them that you did your rego check?---I may very well have done but just not on tape.”
The officers who interviewed the defendant were Constables Bonner and Storey, both of whom gave evidence at hearing. It was not put to either of them in cross examination that the defendant had ever said that he had conducted the Canberra Connect enquiry.
It is apparent that an enquiry which results in the display of a screen showing what is shown in exhibit D4 (assuming that all relevant information had been properly entered by the enquirer) is likely to reasonably influence the belief of the enquirer about the status of the vehicle the subject of the enquiry.
In considering the prosecution submissions about the significance to be attached to the failure of the defendant to mention the Canberra Connect enquiry in the police interview, I have had regard to the decision of the High Court in Petty v The Queen[1] and the principle of the defendant’s right of silence.
It is apparent that in this case the defendant did not exercise his right of silence. In fact he took part in a recorded interview for the express purpose of providing information about, amongst other things, his acquisition of the motorcycle.
The probative value of the evidence of his police interview does not depend upon some impermissible line of reasoning to the effect that an innocent man would not have exercised his right of silence.
Rather, the defendant having chosen not to exercise that right, the probative value of the evidence lies in comparing what he then said with what he later says as part of a rational and permissible process of reasoning to assist in assessing the reliability of his evidence.
In the circumstances, the matter falls outside the principles espoused in Petty v the Queen[2] for reasons akin to those referred to by Wood CJ at CL (with whom Sully and Hislop JJ agreed) in R v Merlino.[3]
Having regard to the contents of the recorded interview, in particular the absence of any reference in it to the Canberra Connect enquiry, and my overall assessment of the credibility of the defendant, I do not accept his testimony when he says such an enquiry took place.
The other circumstances surrounding the acquisition of the motorcycle – including the absence of a key or any registration papers and the absence of anything done to confirm the identity the disposer of the vehicle – are such that I am satisfied beyond reasonable doubt that the motorcycle is properly regarded as reasonably suspected of being stolen or otherwise unlawfully obtained.
Having rejected the defendants testimony about the Canberra Connect enquiry, I am not satisfied on the balance of probabilities that he had no reasonable grounds for suspecting that the property concerned was stolen property or otherwise unlawfully obtained property.
The elements of the offence are made out. It follows that I find the defendant guilty on charge 4583 of 2014 also.
I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Morrison.
Associate: Anna Carlander
Date: 29 January 2016
[1] (1991) 173 CLR 95.
[2] (1991) 173 CLR 95.
[3] [2004] NSWCCA 104.
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