Ciantar v Police - [2011] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CIANTAR v POLICE
[2011] SASC 150
Judgment of The Honourable Justice Gray
26 September 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Following trial in Magistrates Court appellant convicted of firearms offences and of driving a vehicle whilst disqualified - appellant intercepted by police when parked at a service station - complaint on appeal related to whether inconsistency between a police officer's notes prepared soon after the incident and her testimony during the trial, rendered her evidence unreliable, including evidence as to suggested admissions made by the appellant - further complaint made with respect to the failure of the police to comply strictly with the terms of sections 74D, 74E and 79 of the Summary Offences Act 1953 (SA), which relate to the procedural obligations on the part of police officers in relation to arrest and interview of suspects.
Held: appeal dismissed - no substance to any of the complaints advanced on appeal - the Magistrate was entitled to accept and act on the evidence and to reach the conclusions that each of the elements of the counts on which convictions were recorded had been proved beyond reasonable doubt.
Summary Offences Act 1953 (SA) s 15(1)(a), s 74D, s 74E and s 79; Firearms Regulations 2008 (SA) reg 38(2) and reg 61; Firearms Act 1977 (SA) s 5 and s 23(1); Motor Vehicles Act 1959 (SA) s 91, referred to.
R v Day (2002) 82 SASR 85; Coleman v Zanker (1991) 58 SASR 7, considered.

CIANTAR v POLICE
[2011] SASC 150
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
Dean Ciantar, a defendant and the appellant, was jointly charged with Anousone Somchanmovong with offences arising from an incident on 27 April 2010. The charges were as follows:
-the defendants without lawful excuse carried an offensive weapon, a knife;[1]
-the defendants failed to store ammunition in a locked container separately from firearms;[2]
-the defendants being in possession of a class H firearm failed to keep that firearm secured;[3]
-the defendants possessed an unregistered firearm, a handgun;[4]
-the defendant, Ciantar, drove whilst disqualified.[5]
[1] Contrary to section 15(1)(a) of the Summary Offences Act 1953 (SA).
[2] Contrary to regulations 38(2) and 61 of the Firearms Regulations 2008 (SA).
[3] Contrary to both regulations 38(2) and 61.
[4] Contrary to section 23(1) of the Firearms Act 1977 (SA).
[5] Contrary to section 91 of the Motor Vehicles Act 1959 (SA).
Following a joint trial, Ciantar was convicted of the offences of failing to store ammunition safely, failing to keep a Class H firearm secured and of being in possession of an unregistered firearm. Ciantar was also convicted of the offence of driving whilst disqualified. Ciantar has appealed against each of these convictions.[6]
[6] Regarding Mr Somchanmovong, the Magistrate found that there was no case to answer in respect of counts 1 and 2 and found him not guilty of counts 3 and 4. Mr Ciantar was alone charged with count 5.
On 27 April 2010 at about 2.30 am, Constables Sargent and Singleton were on patrol on Main North Road, Smithfield. They observed a Nissan motor vehicle stopped at a BP Service Station. It was a two-door sedan with both front and back seats. They observed Somchanmovong seated in the front passenger seat. The driver’s door was open. Ciantar was seen at the service counter of the service station. No other persons were seen in the area at the time.
Constable Singleton recognised Ciantar and spoke to him, asking what he was doing. Ciantar responded that he was about to drop a friend off home.
Constable Sargent spoke with Somchanmovong and at that time noticed a set of scales in the footwell of the passenger side of the Nissan. Constable Sargent returned to the police vehicle to check on the registration details of the Nissan. Constable Sargent established that the Nissan was not registered to either Somchanmovong or Ciantar. The Nissan was registered in the name of Peter Little. By this time two other police officers, Constables Burn and Hall, arrived at the petrol station.
Constable Sargent having received information from Constable Burn had a further conversation with Ciantar. According to Constable Sargent, Ciantar told her that he had purchased the Nissan from a friend the week before. At this time, Ciantar produced vehicle registration papers.
Constable Sargent conducted a search of the Nissan. She removed the scales from the Nissan and observed a handgun partly wrapped in a blue Chux cloth in the passenger footwell, partly hidden under the front passenger seat with only the handle exposed and visible although covered by the cloth. On making this observation Constable Sargent called out “oh my God, someone better caution him”.
Constable Sargent cautioned Ciantar who was then arrested by Constable Singleton. Ciantar was then asked what information he could provide about the firearm under the passenger seat to which he responded “nothing”.
Constable Singleton, at or about the time that Constable Sargent called out, looked through the windscreen and observed the handgun. He said it was clearly visible. Constable Burn on hearing Constable Sargent call out, looked and also saw the handgun.
Constable Galpin arrived at the scene. On hearing Constable Sargent call out, Constable Galpin observed the handgun on the floor of the footwell on the passenger side of the Nissan. He described the gun’s handle protruding. He made a sketch of his observation. The sketch was tendered in evidence at trial.
Constable Burn conducted a search of the Nissan and discovered a box of ammunition in the driver’s side door compartment. The box contained 50 live rounds suitable for use in the handgun. The gun was later tested and found to be capable of firing live ammunition.
There was no challenge to the evidence of the observations of Constables Singleton, Burn and Galpin.
Counsel appearing for Ciantar cross-examined Constable Sargent as to her notes made some hours after the incident in which she described the handgun as being “under the seat”. When it was put that this was inconsistent with her testimony in Court, Constable Sargent maintained that her testimony was accurate and that the handgun was only partly obscured. Constable Sargent explained that she had made a poor choice of words in her notes.
The Magistrate accepted Constable Sargent’s explanation that she had made a poor choice of words and accepted her testimony as to her observations. The Magistrate concluded that the handgun was on the floor, partly hidden on the passenger side of the Nissan. This finding was not challenged on the appeal.
Counsel at trial did not seek to tender or have marked for identification the document on which Constable Sargent was cross-examined. Apparently a document was reviewed by Constable Sargent while giving evidence. It is unclear whether the document was a declaration prepared for trial or whether the original notes were produced.
In the course of her reasons when discussing this issue, the Magistrate described the document reviewed by Constable Sargent while giving evidence as her “declaration statement made in preparation for trial”. On the hearing of the appeal, counsel for Ciantar was unable to identify the document that Constable Sargent had before her in the witness box.
On the appeal it was submitted that there was a significant discrepancy between Constable Sargent’s notes prepared soon after the incident and her testimony in the trial concerning her observations of the handgun and whether the gun was partly or totally obscured. The finding that it was only partly obscured was not challenged. That was not defence counsel’s point. It was said that Constable Sargent’s reliability was put in question and that the accuracy of her notes was undermined. It was said that her note of her conversations with Ciantar were unreliable. These conversations are relevant later in these reasons. It was said that suggested admissions made by Ciantar could not be accepted as reliable.
In my view there is no substance to this complaint. It is unclear as to whether Constable Sargent in giving evidence was referring to her original notes or a repetition of the content of her notes in her declaration. As noted above, the document used in cross-examination was neither tendered nor marked. No attempt was made on the appeal to resolve this ambiguity. There is no basis to establish or suggest that the Magistrate made an error.
In any event, the Magistrate considered Constable Sargent to be a reliable witness. My review of the transcript does not disclose any basis for rejection of the evidence of Constable Sargent. Her evidence was corroborated in a number of important respects.
Ciantar did not give evidence and called no other evidence in his defence. Somchanmovong did not give evidence.
An important issue at trial was whether Ciantar had possession of the handgun with the power and intention to exercise control over it. Sections 5(14) and 5(15) of the Firearms Act 1977 (SA) provide:
(14) For the purposes of this Act (other than Part 3 Division 2A), a person has possession of a firearm if—
(a)the person has custody of the firearm or has the firearm in the custody of another; or
(b)the person has and exercises access to the firearm; or
(c)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
(15)However, subsection (14)(c) does not apply if the person establishes that—
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
[Original emphasis.]
These provisions provide a rebuttable presumption. If Ciantar was in charge of the Nissan the presumption would arise that the handgun was in his possession and control.
Constable Sargent gave evidence of a conversation to the following effect with Ciantar:
Constable Sargent:  whose car is this?
Ciantar:  I bought it last week
Constable Sargent:  who from?
Ciantar:  a friend
Constable Sargent:  what’s his name?
Ciantar:  I have the rego papers
According to Constable Sargent, Ciantar then produced the registration papers. The conversation continued:
Constable Sargent:  what’s your friend’s name?
Ciantar:  it’s on there
Constable Sargent:  how did you get the car?
Ciantar:  it was a private sale
Constable Sargent:  where did you get it?
Ciantar:  it’s on the rego paper
Constable Sargent:  where did you go to get this car?
Ciantar:  it’s on the rego paper
Constable Sargent:  so you don’t know where you picked the car up from?
Ciantar:  no, he dropped it off
At trial a challenge was made to the admissibility of this evidence on the basis of non-compliance with the requirements of section 74D of the Summary Offences Act 1953 (SA). That section concerns the obligation on the police to record interviews with suspects. It was further argued that there had been a failure to caution in accordance with section 79[7] – which deals with arrests without warrants where a warrant has been issued – and that the evidence was inherently unreliable as well as inadmissible as a consequence of the breach of the provisions of section 74D.
[7] Section 79 of the Summary Offences Act 1953 (SA) provides:
(1) A police officer may, without a warrant, take into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice.
(2) If a police officer, without a warrant, takes into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose committal a warrant has been issued by a justice, the officer must forthwith deliver that person into the custody of the police officer in charge of the nearest police station and must, as soon as conveniently may be, produce or cause to be produced to the person taken into custody the warrant of commitment (if any), and the person must then be dealt with as required by the warrant.
To comply with section 74D a police officer who suspects or has reasonable grounds to suspect a person of having committed an indictable offence must adhere to a number of requirements if it is proposed that that person be interviewed. The interview should be video recorded if it is reasonably practicable to do so. If it is not video recorded then it should be audiotaped. If the use of neither device is reasonably practicable then the officer should make a written record of the interview. That record should be read aloud to the suspect as soon as practicable in a video-recorded interview. The suspect must be told to interrupt during the reading to point out errors or omissions and be given this opportunity again at the end of the reading.[8]
[8] As summarised in R v Day (2002) 82 SASR 85, [51].
Section 74E of the Act renders evidence of an interview inadmissible unless the police have complied with the terms of section 74D. An exception only arises if the trial judge is satisfied that the interests of justice require the admission of the interview, notwithstanding non-compliance.[9]
[9] Section 74E of Summary Offences Act 1953 (SA) provides:
(1)In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—
(a)      the investigating officer complied with this Part; or
(b)      the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)      draw the jury's attention to the non-compliance by the investigating officer; and
(b)      give an appropriate warning in view of the non-compliance,
unless the court is of the opinion that the non-compliance was trivial.
The Magistrate concluded these sections either did not apply or had not been breached. However, the Magistrate went on to consider what she would have done in the event that the statutory provisions had application. The Magistrate reached the conclusion that she would not have rejected the evidence.
On the hearing of the appeal it was accepted that the statutory provisions did not have application as Ciantar had not been charged with an indictable offence. However, it was said that authority[10] established that even in the case of a summary offence, at the very least the alleged conversations should have been read over to Ciantar and Ciantar should have had the opportunity to agree or correct or make some other comment. This did not occur and it was argued that the evidence should have been rejected as a matter of discretion because of what was said to be unfairness.
[10] Coleman v Zanker (1991) 58 SASR 7 (Olsson J).
In my view there is no substance to this complaint. The Magistrate considered whether in the event that sections 74D and 74E had application she would have admitted the evidence in her discretion. The Magistrate concluded that she would have done so. Not only was this conclusion open but it was, in the circumstances, the appropriate conclusion.
It is relevant to observe that during cross-examination no contrary version of events was put to Constable Sargent about the nature of the alleged conversation, nor whether any such conversation took place. Notwithstanding the absence of challenge, it was later submitted to the Magistrate that no such conversation had taken place at all. There was no application for the recall of Constable Sargent to further cross-examine to put this serious allegation to her. In these circumstances it is unsurprising that the Magistrate rejected the defence submission. No basis to interfere with the Magistrate’s exercise of discretion in this respect has been identified.
The Magistrate concluded that she was satisfied beyond reasonable doubt that Ciantar was the driver of the Nissan and in control of it. This conclusion was open on the evidence and entirely in accord with the evidence. To summarise: the Nissan was a two-door motor vehicle; the police officers observed only two persons and no one else in the area (apart from the service station attendant); Somchanmovong was seated in the passenger seat; Ciantar was outside the Nissan being served by the service station attendant; the driver’s door of the Nissan was open; Ciantar informed Constable Singleton that he was going to drop a friend off home and that he had purchased the car in the previous week; and, Ciantar produced registration papers for the car. In these circumstances the earlier referred to presumption arose.
There is no substance at all to any of Ciantar’s complaints. The Magistrate was entitled to accept and act on the evidence and to reach the conclusions that each of the elements of the counts on which convictions were recorded had been proved beyond reasonable doubt.
The appeal is dismissed.