Britton v Police - [2008] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRITTON v POLICE
[2008] SASC 202
Judgment of The Honourable Chief Justice Doyle
23 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL
Appellant charged with being a trespasser with the intention of committing an offence contrary to s 169(1) of the Criminal Law Consolidation Act and committing theft contrary to s 134(1) of the Criminal Law Consolidation Act.
Appellant found guilty of the offences by a Magistrate - whether Magistrate erred in assessment of the evidence - evidence circumstantial - whether evidence could lead to a finding of guilt beyond a reasonable doubt.
Held: appeal dismissed.

BRITTON v POLICE
[2008] SASC 202
Magistrates Appeal: Criminal

DOYLE CJ: One night in September 2005 someone broke into a shop that sold fishing tackle. The offender lifted some roofing iron, made a hole in the ceiling, and lifted a number of fishing rods and reels out through the hole. After the event the police found on the roof of the building a pair of pliers and a mobile telephone. The analysis of DNA found on the pliers established that Mr Britton had handled them. In evidence he more or less admitted that they were his. Moreover, either the mobile telephone, or at least the SIM card in the mobile telephone, was linked to Mr Britton.
The Magistrate who heard the resulting charges against Mr Britton found him guilty. The Magistrate found that the pliers and the mobile telephone belonged to Mr Britton. He rejected the explanations put forward by Mr Britton as possible explanations for how the items came to be left (by someone other than Mr Britton) where they were found. The defence was that there was a reasonable possibility that some other person had taken these items from Mr Britton, and that other person had been the offender.
On appeal, Mr Henchliffe, for Mr Britton, submits that the Magistrate made errors in dealing with the evidence. He also submits that the evidence does not support a finding of guilt beyond reasonable doubt. He submits that the Magistrate erred in finding that the prosecution had excluded all reasonable explanations for the incriminating items that were consistent with innocence.
The trial
The prosecution case consisted of the tender of a number of sworn statements, some of which were accompanied by exhibits.
The evidence established that the offender got access to the premises through the roof, and removed the fishing rods in the manner described above. The evidence led to the conclusion that the pliers and mobile telephone that were left on the roof were left there by the offender.
The police checked the pliers for DNA. They also obtained a sample of Mr Britton’s DNA from him. Material from the pliers and the sample from Mr Britton were analysed. An expert’s report that was tendered and admitted stated that the material analysed indicated the presence of DNA “from at least two individuals in unequal proportions”. A partial (incomplete) DNA profile of the major contributor was interpreted. This profile matched the DNA profile obtained from Mr Britton. Without going into detail, as a matter of probabilities the interpretation of the DNA material led to the conclusion that Mr Britton had handled the pliers. There was no way of knowing when he had done so. The material indicated that at least one other person had handled the pliers. As a matter of common sense, one would also conclude that countless other persons might have handled the pliers without leaving behind any material containing DNA.
The SIM card in the mobile telephone was checked. It was found to have four numbers recorded on it. One was recorded as “me”. This was a number registered in Mr Britton’s name.
This was the evidence relied on by the prosecution as proof of its case.
Mr Britton gave evidence.
He said that he had a mobile telephone prior to September 2005. He agreed that the number recorded as “me” was a number registered in his name. He said he mainly used the mobile telephone in connection with his work as a bricklayer. He had purchased another mobile telephone in January 2006. He had been out of work between about July 2005 and January 2006. At about the time he was told he had a new job, which he said was December 2005, he was unable to find the mobile telephone. He bought another one as he was due to start work again. At the time he assumed he had lost the mobile telephone. Obviously enough, he could not say when he had lost it. He said that he used the mobile telephone infrequently when he was not working, explaining in this way how he might not have realised that it was missing until December 2005.
As to the pliers, he said it was “quite possible” that they were his. He could not say so for sure. He explained that he usually kept his tools in a tool belt in the back of his car. One of the door locks was unreliable. The pliers could have been taken from his car without him noticing. The inference from his evidence is that he did not know the pliers were missing until well after September 2005, but when that was was never made clear. He was unable to say that his car had been broken into. He had not reported to the police that the pliers were stolen. He said that he rarely used the car, at least when he was out of work. In evidence he said that as far as he was aware, neither the tool belt nor tools other than the pliers had been taken.
In cross-examination he added that he might have dropped his mobile telephone in his car, suggesting that this could be how the same person could have obtained possession of the pliers and of the mobile telephone.
At the end of the evidence the Magistrate heard addresses and gave an immediate oral decision.
The Magistrate indicated some scepticism about the evidence from Mr Britton that he did not use the mobile telephone when he was looking for work between July and December 2005. On Mr Britton’s evidence he could not have used it at all between September and December, because by early September it had already been found on the roof of the relevant premises. The Magistrate said that he found Mr Britton’s evidence about not using the mobile much at all “somewhat surprising”. The Magistrate went on to say:
[5]… Effectively what the defendant is saying is that, somehow, his mobile phone and his pliers were taken by somebody and were left at the scene of these offences. I do not accept that as a reasonable possibility.
[6]It is for the prosecution to exclude all reasonable explanations consistent with innocence. The defendant is not required to prove his innocence. In my view the probability of the circumstances as put by the defendant as being a reasonable possibility is so remote as to be not reasonably worthy of consideration. The probability of two separate items being found at the crime scene in the circumstances that the receiver of those items would have to have obtained them is so unlikely as to hardly be worthy of consideration.
[7]In my view the irresistible inference that arises from the prosecution case is that the items were owned by the defendant and that he left them at the scene when he was committing these offences.
Issues on appeal
Mr Henchliffe submits that the Magistrate made some errors in his reasons. I am not persuaded that he did err, bearing in mind that this was not a reserved decision. Allowances must be made for the fact that an oral unreserved decision will usually be less precise than a reserved decision.
The Magistrate said that the DNA evidence showed that there were potentially two individuals who could have handled the pliers. Mr Henchliffe makes the point that the expert had said there was DNA present from at least two individuals. In my opinion there is no significance in this. There is no reason to think that the Magistrate overlooked the fact that any number of people could have handled the pliers, without leaving DNA on them. In any event, the significance of the expert evidence was that it established that the pliers had been handled by Mr Britton. That, coupled with Mr Britton’s acknowledgement that the pliers might be his, and the fact that apparently his pliers were missing, all pointed to the conclusion that the pliers were his. That was the significant matter.
Mr Henchliffe submits that the Magistrate overlooked the fact that the expert evidence said nothing about when the pliers were last handled by Mr Britton. But that is not really to the point either. The significant thing is that Mr Britton more or less acknowledged in cross-examination that the pliers were his.
Mr Henchliffe submits that the Magistrate erred when he said that Mr Britton’s evidence was that he “lost his mobile phone at or about the period of the commission of this offending”. I agree that that is not an accurate statement of the effect of Mr Britton’s evidence. In any event, I consider that the Magistrate was merely stating an aspect of the defence case. The defence case was that the mobile telephone must have been taken by someone between July and September. Mr Henchliffe submits that the Magistrate was not entitled to be sceptical about Mr Britton’s evidence that he made such little use of the mobile telephone that he did not know it was missing. I disagree. The Magistrate was entitled to have doubts about that evidence.
Mr Henchliffe complains that some of the cross-examination was unfair. I agree that the police prosecutor at times cross-examined on the basis that it was up to Mr Britton to explain how the pliers and mobile telephone came to be found on the roof. The Magistrate should have intervened. But there is no reason to think that the cross-examination led the Magistrate into error.
Mr Henchliffe submits that the Magistrate reversed the burden of proof. There are one or two short passages, in what are short reasons, that could be better expressed. But at the outset the Magistrate correctly identified the fact that the case was a circumstantial one, based on inferences, and that the prosecution had to exclude all reasonable possibilities consistent with innocence. There is no reason to think that the Magistrate departed from this test.
Mr Henchliffe makes the point that the Magistrate made no adverse comment on Mr Britton’s demeanour, and gave no reasons why Mr Britton’s evidence was rejected. As is indicated by the parts of the Magistrate’s reasons set out above, the Magistrate rejected the evidence from Mr Britton that supported the explanation consistent with innocence, because he regarded as “quite improbable” the possibility that an unknown person had obtained the pliers and the mobile telephone from Mr Britton, without him knowing that they had been taken, and then left them at the scene of the offence. The Magistrate was entitled to reason in that manner. He did not have to base his rejection of Mr Britton’s evidence on his demeanour.
I do not agree that the Magistrate’s reasons disclose any material error.
The real issue is the ultimate issue. I agree with Mr Henchliffe’s submission that I must make my own assessment of the evidence, giving due weight to the advantage that the Magistrate had in seeing Mr Britton, and I must decide whether I am satisfied that the evidence supports a finding of guilt beyond reasonable doubt. As the Magistrate placed no reliance on Mr Britton’s demeanour, I am in as good a position as the Magistrate to assess the effect of the evidence.
The evidence supports a finding that the pliers were the property of Mr Britton. If he still had the pliers in question, one would have expected him to say so. As his evidence was that they had gone missing, then taking the evidence in context, it more or less amounted to a concession that the pliers were his. The evidence about the mobile telephone also leads to the conclusion that the mobile telephone was his, or at least the SIM card in it was taken from his mobile telephone. The evidence leads to the conclusion that both items were left on the roof by the offender.
If one proceeds from the consideration of the significance of the finding of these items on the roof, one then comes to the question of hypotheses consistent with innocence. I do not accept Mr Henchliffe’s submission that a third person might have left the pliers and the mobile telephone on the roof, intending to implicate Mr Britton. That seems too farfetched. In any event, it also raises the issue of how that person came into possession of the items. Nor do I accept Mr Henchliffe’s submission that Mr Britton might have given the pliers and the mobile telephone to a friend. There is no hint or suggestion of this in his evidence, and if that was to be put forward as a reasonably possible hypothesis, I would have expected Mr Britton to say something about it.
That brings me back to the question of whether the evidence supports a finding that it is not a reasonable or realistic possibility that the pliers and the mobile telephone were somehow obtained from Mr Britton’s possession, by another person, without Mr Britton realising they had been taken, and then left on the roof by that person. It is not for Mr Britton to explain how this happened, but it is relevant to consider the evidence he gave that might make this a reasonable hypothesis. His evidence suggested a manner in which the pliers and mobile telephone might have found their way to the roof, without him being involved and without him realising that they had been taken.
As to that, it is surprising that if someone broke into his car, that person would take only the pliers. If there was a tool belt in the back of the car containing the pliers and other tools, one might have thought that the thief would take the lot. The evidence that he made no use of the mobile telephone between July and December 2005 is somewhat surprising, as the Magistrate remarked. On the other hand, I accept that the evidence could not exclude as a reasonable possibility that another person had handled the pliers, and had handled them more recently than Mr Britton.
Nevertheless, in my opinion the likelihood that an unknown person obtained entry to Mr Britton’s car, took his mobile telephone and his pliers (without taking the tool belt and other tools) and that same person then left them on the roof of the relevant premises, can be rejected as a reasonably possible explanation for the finding of the pliers and the mobile telephone on the roof. I agree with the Magistrate’s conclusion. The particular hypothesis identified by the defence can be excluded as a reasonable possibility, and no other hypotheses occur to me that are reasonably possible explanations consistent with innocence.
I consider that the evidence supports a finding of guilt. I dismiss the appeal against conviction.