DELPHINE Maree Charles v Lauren Eve Greenup
[2013] ACTSC 235
•31 October 2013
DELPHINE MAREE CHARLES v LAUREN EVE GREENUP
[2013] ACTSC 235 (31 October 2013)
APPEAL – GENERAL PRINCIPLES – Appeal against conviction – driving a motor vehicle dishonestly and without consent – whether sufficient evidence for finding of guilt – no direct evidence that appellant knew car was stolen – appellant’s answers may not have been lies – appellant may have lied for reasons other than belief that truth would implicate her in the offence charged – lies told in belief formed after alleged offence that truth would implicate appellant in the offence charged cannot provide missing mental element of offence at time physical elements of offence committed – Magistrate erred in relying on lies as Edwards lies – appeal upheld – conviction set aside – verdict of not guilty entered.
Criminal Code 2002 (ACT) s 318(2)
Edwards v The Queen (1993) 178 CLR 193
M v The Queen (1994) 181 CLR 487
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 31 of 2013
Judge: Penfold J
Supreme Court of the ACT
Date: 31 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 31 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
DELPHINE MAREE CHARLES
Appellant
AND:
LAUREN EVE GREENUP
Respondent
ORDER
Judge: Penfold J
Date: 31 October 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The Magistrate’s finding of guilt and the appellant’s conviction are set aside.
A verdict of not guilty is entered on the charge of driving a motor vehicle dishonestly and without consent.
Introduction
In December 2012 a house in Narrabundah was burgled; among other things, car keys were taken and used to steal the white Toyota Camry to which they belonged. The car was found 10 days later at the Kingston shops. It was locked, and there had been no damage to the ignition.
Forensic examination of the car revealed a thumbprint on the button to the gearstick, and the thumbprint was identified as made by Delphine Charles, the appellant in this matter.
The appellant was interviewed by police and denied any involvement in the matter. She was charged initially with riding in a motor vehicle dishonestly and without consent. Later an alternative charge of driving the motor vehicle dishonestly and without consent was added.
In the Magistrates Court, the appellant was found guilty of driving the motor vehicle dishonestly and without consent.
She has appealed against her conviction.
Elements of offence
The relevant offence arises under s 318(2) of the Criminal Code 2002 (ACT), and is expressed as follows:
(2) A person commits an offence if –
(a) the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b) the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
The elements of the offence of which the appellant was eventually found guilty are:
(a)first, that the car had been stolen (described as dishonestly taken without consent);
(b)next, that the appellant had driven the car; and
(c)finally, that the appellant had driven the car dishonestly (relevantly, knowing that it had been stolen).
Had the car been stolen?
The defence conceded that the car had been stolen.
Had the appellant driven the car?
The only direct evidence against the appellant was the presence of her fingerprint in the stolen car. There was no challenge to the identification of the thumbprint as hers, and no attempt to suggest that she had not left the thumbprint.
The Magistrate relied on the presence of the appellant’s thumbprint on the gearstick button not just as evidence of the appellant’s presence in the car but also as evidence that the appellant had in fact driven the car.
It is arguable that the inference that the appellant had driven the car, whilst strong, was not in fact the only rational inference from the presence of her thumbprint in a location which she certainly would have touched, probably with her thumb, if she had been driving the car. For instance, she could have left a thumbprint in the car while simply sitting in the car, either in the driver’s seat or in a passenger seat.
Had the appellant known the car was stolen?
In contrast to the issue of the appellant’s presence in the car at some point, however, there was no direct evidence that the appellant had been in the car knowing that it had been stolen (and therefore dishonestly within the terms of the legislation). The Magistrate relied, for his finding that the appellant’s driving of the car was dishonest, on what were said to be lies told by the appellant when she was interviewed by police after her thumbprint was identified. The relevant part of her record of interview was as follows:
Q52 Do you know anything about a white Toyota Camry?
A52 No
...Q54Okay. So, have you been driving in many friends’ cars since sixteenth December, like, the last two weeks?
A54 No way, no. I can’t drive.
Q55 Okay. Have you seen any white Toyota Camry’s [sic] around?
A55 No.
Before reaching the conclusions challenged on this appeal, the Magistrate had excluded evidence intended to cast doubt on the appellant’s claim to police expressed in the words “I can’t drive” (the answer to question 54), when asked whether she had been driving in friends’ cars since the date the car was stolen. In doing so, his Honour made the point that the appellant’s words did not necessarily mean that she was physically unable to drive or did not know how to drive (which was apparently the implication the Crown sought to disprove with the evidence), but could have meant, for instance, that she was unlicensed or disqualified from driving.
His Honour then found that the appellant’s answers to questions 52 and 55 were lies, and indeed were lies that could be used as evidence in the nature of an admission to her commission of the offence, specifically as evidence of her knowledge that the car had been stolen and therefore that her own driving of the car was dishonest.
Edwards lies
The use of these lies in this way was said to be justified by the case of Edwards v The Queen (1993) 178 CLR 193, in which the majority of the High Court (Deane, Dawson, and Gaudron JJ), said at 210-211:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. [citations omitted]
The Magistrate in his reasons said:
Question 52 is this: “Do you know anything about a white Toyota Camry?” to which the answer is, “No”. And then question 55 is, “Okay, have you seen any white Toyota Camry’s [sic] around?” to which the answer is, “No”. I am satisfied that those things meet the test for consideration as Edwards lies.
His Honour went on:
The existence of the print of the defendant in the vehicle makes it apparent that she had had very recent contact with the vehicle, which is a white Toyota Camry. Under those circumstances I am satisfied that her statement that she knows nothing about a white Toyota Camry, and that she has not seen any white Toyota Camrys around are both lies. I am satisfied that the lie was deliberate. It clearly related to a material aspect of the case, and I am satisfied that the lie was told because the accused knew that the truth would implicate her in the commission of the offence. For those reasons, I think that the lies referred to in the two answers to which I have referred can properly be regarded as Edwards lies, and I have directed myself accordingly.
And the Magistrate goes on:
Having regard then, to the whole of the evidence which is before me, and taking into account the evidence by way of the Edwards lies, I am satisfied beyond reasonable doubt that the driving of the vehicle by the defendant, which I have found to have taken place, was dishonest according to the meaning of that term in ... section 300 of the Criminal Code 2002.
Counsel for the appellant pointed out, first, that the appellant was when she gave the relevant answers being questioned by police not only about the stolen car but also about the burglary during which the keys to the car had been taken.
He also noted that, presumably because the car keys had been stolen at the same time as the car, the car had sustained no damage to the ignition by the time it was found. That is, a person who is not directly aware of the circumstances in which the car had been removed from its owner’s possession would have had no reason arising from the condition of the car to suspect that it might have been stolen.
His Honour appears to have taken the view that the answers to questions 52 and 55 (whether the appellant knew anything about a white Toyota Camry or had seen any white Toyota Camrys around), were lies because of the unchallenged thumbprint evidence that the appellant had been in contact with the white Toyota Camry.
However, it seems to me, first, that those answers were not necessarily lies but, secondly, that even if they were lies, they did not satisfy the test set out in Edwards.
Did the appellant lie?
The appellant was not asked at any point whether she could identify a Toyota Camry. It is in my view a dangerous or at least an unfair assumption that everyone is able to identify the make and model of every car on the road, or even the relatively common cars (which I am prepared to assume a Toyota Camry is). Although I have driven Toyotas on and off for many years myself, I would not claim to be able to recognise a Camry, and I doubt that I am the only person in Australia with a very limited interest in the makes and models of cars. Thus, if the appellant were relatively ignorant about makes of cars, or about Toyota models particularly, her answers to questions 52 and 55 may not have been lies at all, although in those circumstances a safer answer to question 55 might have been “not to my knowledge”.
Did the appellant lie because the truth would implicate her in the offence?
More significantly, even if the appellant was in fact well aware that the white car she had apparently come into contact with at some point was a Toyota Camry, so that the answers to the two questions were in fact lies, it was not in my view open to the Magistrate to find that the only reason for the appellant to have lied was, as required by Edwards and as his Honour articulated, “that the truth would implicate her in the commission of the offence”.
There are at least three obvious reasons why the appellant might have lied about her knowledge of the white Toyota Camry in the circumstances of the police interview without in fact being guilty of the relevant offence (being the driving of the car dishonestly).
If the appellant had been innocent of the offence charged because she sat in the car but had not driven it, then:
(a)first, she might have been concerned that any admission to knowledge of the car, however innocent that knowledge, would have implicated her in a more serious offence, being the burglary as a result of which the car was stolen, and which the police had already asked her about;
(b)secondly, she might have been concerned about implicating an associate in either or both of an offence relating to the car and the burglary offence.
In either of those cases, the appellant’s lies would not have been in any sense Edwards lies because they would not have depended on a belief that the truth would implicate her in the driving offence.
Alternatively, it is possible that the appellant was in fact innocent of the relevant offence because, although she had driven the car, she had not known at the time that it was stolen. As already mentioned, this was a real possibility given the state of the car. In that case, she might have believed, by the time police questioned her and made her aware that the car had been stolen, that she had in fact committed an offence, and might have lied because she was concerned about implicating herself in relation to that offence.
In that case, the lie would have had the kind of intention that would make it an Edwards lie – but as far as I can see, an Edwards lie told on a mistaken understanding of the law cannot of itself fill in the gap in the facts that would otherwise exclude the liar’s guilt. If the appellant had driven the car without, at the time, knowing that it was stolen, then the later discovery that it had been stolen does not render her retrospectively guilty of the offence, and nor could a lie told in the mistaken belief that she had or might have committed the offence be evidence that she had a state of mind other than her actual state of mind at the relevant time.
Was the finding of guilt unsafe and unsatisfactory?
In M v The Queen (1994) 181 CLR 487, the High Court described the application of the “unsafe and unsatisfactory” test by an appeal court, as follows (at 494-495):
In most cases a doubt experienced by an appellant court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Of course, there was no jury involved in the initial finding of the appellant’s guilt, but the High Court’s references to the jury are appropriately read as references to the Magistrate who plays the role of fact-finder in a Magistrates Court hearing (Vincent Kruw Mapham v Steven Donald Bannerman; Heather Myrle Mapham v Steven Donald Bannerman [2013] ACTSC 157 (13 August 2013)).
As identified above, there were a number of gaps in the circumstantial evidence against the appellant that would not apparently have been resolved by seeing and hearing the evidence; rather, they were inadequacies displayed on the record, and therefore should have raised doubts in the Magistrate’s mind about the guilt of the appellant of the offence with which she had been charged.
If it had been the only ground of appeal, the Magistrate’s acceptance of the thumbprint evidence as satisfying him beyond reasonable doubt that the appellant had driven the car might have been an inadequate basis on which to overturn his Honour’s findings.
However, it will be apparent from the rest of my analysis that the appellant’s answers to police questions, in the absence of any other evidence of her state of mind sufficient to establish the offence charged, were an inadequate basis for a finding that the appellant had in the course of the police interview admitted her guilt of the particular offence, as distinct from having demonstrated a general disinclination to help police with their inquiries. Such behaviour may legitimately give rise to suspicions but it is a long way short of establishing guilt.
Orders
Accordingly, the appeal is upheld, the Magistrate’s finding of guilt and the appellant’s conviction are set aside, and a verdict of not guilty on the charge of driving a motor vehicle dishonestly and without consent is entered.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date:
Counsel for the appellant: Mr A Hopkins
Solicitor for the appellant: Aboriginal Legal Service
Counsel for the respondent: Ms M Moss
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 8 October 2013
Date of judgment: 31 October 2013
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