Dunstone v Police - [2009] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUNSTONE v POLICE
[2009] SASC 108
Judgment of The Honourable Justice Nyland
24 April 2009
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY
Appellant charged with property damage to a trailer on separate occasions over a period of about one year – dispute as to identity of offender – video footage of some incidents – prosecution sought to rely on similar fact evidence. Adverse finding of credibility of appellant and witness – mistake as to effect of their evidence – circumstantial case – credibility important issue.
Held: appeal allowed – convictions set aside – matter remitted to Magistrates Court for re-hearing.
Criminal Law Consolidation Act 1935 (SA) s 85(3); Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 53, referred to.
Sutton v R (1984) 152 CLR 528, discussed.

DUNSTONE v POLICE
[2009] SASC 108
Magistrates Appeal

NYLAND J:          This is an appeal against conviction. The appellant was charged on complaint with nine counts of property damage, contrary to the provisions of s 85(3) Criminal Law Consolidation Act 1935. The property in question was a tyre on a trailer belonging to Vasel Ljuldjuraj. It was alleged that the appellant committed those offences on the following dates:
Count               Date
1  Between 1 and 4 September 2005
2  27 September 2005
3  22 - 25 November 2005
4  16 - 19 December 2005
5  30 January – 2 February 2006
6  16 - 19 July 2006
7  21 July 2006
8  5 August 2006
9  21 August 2006
The appellant pleaded not guilty to the charges and the matter proceeded to trial before a Stipendiary Magistrate in the Magistrates Court at Adelaide. On 12 December 2008 the Magistrate delivered his judgment. He acquitted the appellant of counts 1, 3, 4, 5 and 6 but found him guilty of counts 2, 7 and 9. The Magistrate recorded a conviction with respect to each count and, pursuant to s 18A Criminal Law (Sentencing Act) 1988 (‘Sentencing Act’), imposed one sentence for all three offences. He discharged the appellant on condition that he entered into a bond in the sum of $500 to be of good behaviour for a period of 12 months. It was a condition of the bond that he appear before the court for sentence if he failed to comply with the terms of the bond. It was a further condition that during the currency of the bond he was not to be on or within 50 metres of any premises where Mr Ljuldjuraj from time to time resided.
Pursuant to s 53 of the Sentencing Act the Magistrate ordered the appellant to pay compensation in the agreed sum of $200 to the Registrar of the Court for transmission to Mr Ljuldjuraj. He also ordered the appellant to pay court fees and Victims of Crime Levy in the amount of $354 and $750 towards the cost of prosecution.
The prosecution case at trial was that on each of the nine occasions charged, someone had approached Mr Ljuldjuraj’s trailer at night and punctured the wall and tube of the roadside tyre. It was the prosecution case that the same person committed each of those offences and that the perpetrator was the appellant. The prosecution called four witnesses to give evidence in support of the case, namely,
(1) Mr Ljuldjuraj, the alleged victim;
(2) Anthony Ralph Mamone, a sound recordist and camera assistant employed by Channel 7;
(3)Detective Senior Constable Michael Newbury, the investigating police officer;
(4) Frank Pangello, a journalist employed by Channel 7.
It was the evidence of Mr Ljuldjuraj that he kept his two-wheeled 6 x 4 home made trailer in the street outside his home in Lockleys. From time to time, he discovered that the roadside tyre was flat. When he repaired it, he noticed the puncture marks in the wall of the tyre and the tube. He suspected that someone might have been damaging the tyre deliberately. With the help of his son, he set up camera surveillance equipment on his property. Later, he persuaded representatives of the Channel 7 show Today Tonight, to set up their surveillance equipment in the street. Between them, they captured images of a person in the vicinity of the trailer on some of the occasions when the roadside tyre was found to have been damaged. Included in the evidence called by the prosecution at trial were:
P4 - a videotape recording in black and white dated 27 September 2005 of images captured by one of Mr Ljuldjuraj’s surveillance cameras (relevant to count 2);
P5 - a videotape recording in colour dated 21 July 2006 from images captured by one of Mr Ljuldjuraj’s surveillance cameras on 21 July 2006 (relevant to count 7);
P6 - a videotape recording in colour dated 21 August 2006 of images captured by a surveillance camera (relevant to count 9);
P15 - a mini DV & VHS recording of images captured by the mini DV.
The police were subsequently involved. They arrested the appellant and charged him with nine property damage offences.
There was no dispute at trial that on the date specified in each count, a person had:
(1)    without lawful authority,
(2)    damaged the roadside trailer tyre,
(3)    which was the property of Mr Ljuldjuraj.
The Magistrate was satisfied beyond reasonable doubt that on each occasion the damage caused to the trailer tyre was intentional and that the damage was inflicted in the knowledge that there was no lawful authority to damage the tyre. There is no challenge to any of those findings.
The only matter which was in issue at the trial was the identity of the offender. The prosecutor tendered video footage which was said to contain images of the offender but conceded that the footage, or any purported act of identification based upon it, was not of itself conclusive evidence of identity. In order to prove the identity of the offender, however, the prosecutor sought to rely on similar fact evidence and to employ the reasoning of Sutton v R[1].
[1] (1983) 152 CLR 528.
The prosecutor submitted that the features of these offences in terms of time, place, circumstances and modus operandi were strikingly similar. Extant footage showing images of the offender during three of the alleged offences revealed similar personal characteristics, such as the gender, approximate age, height, build, gait, style, dress and mannerisms of that person. They also showed that the person was sometimes accompanied by a dog. The prosecutor invited the court to conclude that the same person was involved in each of the alleged offences. On that basis, the prosecution first set out to prove that the appellant committed the offence charged in count 9 and therefore all the others.
In his reasons the Magistrate said that he had examined the evidence in support of the charges in counts 1, 3, 4, 5, 6 and 8. The evidence revealed that the circumstances of each of those alleged offences possessed common features. He said that those similarities might point to the probable conclusion that the same person was involved on each occasion, but in the absence of any information at all about that person, those similarities were not so striking as to exclude the reasonable possibility that more than one person might have been involved. He said therefore that in respect of those six charges it followed that the prosecution could not avail itself of the method of proof relied upon to prove the identity of the alleged offender and consequently those charges failed.
The Magistrate considered, however, that the offences charged in counts 2, 7 and 9 fell into a different category. He said that the evidence in support of each of those charges was supplemented by video footage of the alleged offender. He considered the footage was clear enough to discern some of the characteristics of the person depicted near the trailer on each occasion and by comparing those characteristics, he concluded beyond reasonable doubt that the same person was involved and that those three counts were amenable to the method of proof which the prosecution sought to invoke.
The Magistrate went on to discuss the evidence given by each of the witnesses. He considered Mr Ljuldjuraj to be an honest witness who endeavoured to give a truthful account of events within his knowledge to the best of his recollection and ability. Mr Ljuldjuraj’s evidence was that each of the offences committed in counts 2, 7 and 9 was committed at night and in each instance the same trailer tyre was damaged in the same manner. By reference to the video footage, the learned Magistrate was satisfied that the same male was involved in each of those three offences. The Magistrate directed himself correctly as to identification evidence and was mindful of the fact that the prosecution case against the appellant was circumstantial. He said that the evidence revealed that the appellant lived in reasonably close proximity to Mr Ljuldjuraj’s residence and was accustomed to going for regular walks which took him past Mr Ljuldjuraj’s residence.
The appellant admitted that he walked at night. He was accustomed to wearing similar clothing, including a jacket with a hood (Exhibit P7). The appellant told Detective Newbury that he wore shorts for most of the year. The appellant admitted that he owned a dog which he took for walks with him. The Magistrate said that the dog which is depicted in Exhibit P12 has characteristics, including size and colouring similar to the dog depicted in Exhibits P4 (footage dated 27 September 2005) and P6 (footage dated 21 August 2006). He further said that the appellant, who is shown in Exhibit P12, had a number of characteristics and mannerisms which closely resembled the person whose images were depicted in Exhibits P4, P5, P6 and P15.
The learned Magistrate went on to refer to the evidence of the appellant. The appellant denied he was the offender. A matter which assumed considerable significance in the trial was whether the appellant was in the habit of walking alone in the vicinity of Mr Ljuldjuraj’s home. The image of the appellant in Exhibit P12 is a recording taken by Channel 7, in which Mr Pangello of the Today Tonight program confronted the appellant. The appellant in that recording is clearly walking alone, accompanied by his dog.
Mr Ljuldjuraj also gave evidence that on a number of occasions he had followed the appellant and made observations of him walking in the vicinity of his home and that on each of those occasions he had been alone.
The appellant’s wife, Ms Davidson, gave evidence however which the Magistrate said “corroborated [the appellant]’s evidence that they always walked together and he never walked alone”.
After referring to the evidence of Mr Ljuldjuraj and Mr Pangello, the Magistrate said at [36]:
In my assessment, the evidence of Mr Pangello confirmed by the footage in Exhibit P15 and the evidence of Mr Ljuldjuraj is truthful and reliable. As a result of my assessment, my confidence in the credibility of [the appellant] and Ms Davidson, and in the reliability of their evidence, is so seriously undermined that I reject their evidence on that topic.
He went on to say at [37]:
That finding has implications for the credibility of [the appellant] in relation to other issues arising from the charge in count 9.
As a result of his assessment, the Magistrate rejected the evidence of the appellant where it conflicted with the prosecution evidence in relation to that count. He finally concluded that, when viewing the circumstantial evidence as a whole, the only conclusion was that the appellant committed the offence in count 9. As, on his findings, the same person committed the offences charged in each of counts 2, 7 and 9 he was satisfied that the prosecution had proved beyond reasonable doubt that the appellant committed each of those offences.
In the notice of appeal, however, it is asserted that the learned Magistrate mistook, or misinterpreted, the evidence which caused his judgment to mis-carry. The particulars as to that matter are as follows:
1.1At paragraphs 34-36 of his judgment, the learned Magistrate found that the evidence of Mr Dunstone and Ms Davidson was inconsistent with the prosecution evidence concerning whether Mr Dunstone ever “walked alone”.
1.2The learned Magistrate preferred the prosecution evidence on this point and accordingly, in paragraph 36 and 37, found that Mr Dunstone’s and Ms Davison’s credibility was “seriously undermined”.
1.3The learned Magistrate was mistaken in determining that Mr Dunstone and Ms Davidson gave evidence that “they always walked together and that he [Mr Dunstone] never walked alone”. This was not their evidence.
1.4The learned Magistrate erred in determining that the evidence of Mr Dunstone and Ms Davidson was inconsistent with other evidence.
1.5The learned Magistrate’s conclusion as to the credibility of the appellant and Ms Davidson was infected with error.
1.6His Honour’s judgment was in turn infected with error and there has accordingly been a miscarriage of justice.
The second ground of appeal asserted that the verdicts were unreasonable and could not be supported by the evidence.
The evidence of the appellant was that he had a 19-year old Blue Heeler Border Collie which he walked three times per day, namely morning, lunchtime and at night after tea. The appellant said in the morning he walked alone and sometimes at lunch time as well. In the evening, however, he always went with his wife and that was confirmed by Ms Davidson – ie at night he was never alone. It is clear from the vision in Exhibit 12 that Mr Pangello’s confrontation with the appellant was in the daytime and that Mr Ljuldjuraj’s observations also appear to have been made during daylight hours. The Magistrate therefore fell into error in his characterisation of the defence witnesses. On the hearing of the appeal Mr Nicholas, who appeared for the respondent, conceded that the Magistrate had erred in finding that the appellant and Ms Davidson had given evidence that “they always walked together and that he never walked alone” but argued that the finding of guilt could be supported by the combined effect of other evidence in the case. Mr Nicholas referred to such matters as the similarity of clothing worn by the person depicted in the surveillance recordings with that of the appellant, the similar gait, the appearance of the dog as well as the evidence of Mr Ljuldjuraj that he recognised the appellant on the recording.
The adverse finding of credibility was however a crucial issue in the case as it caused the learned Magistrate to reject the evidence of the appellant and his wife completely. On his assessment of the evidence, the appellant and Ms Davidson had in effect given a false alibi, which the Magistrate clearly weighed in the balance in his assessment of other circumstantial evidence in the case. If the Magistrate had accepted the evidence of the appellant and Ms Davidson that the appellant did not walk alone at night, it may well have caused him to be less confident in making a finding of guilt.
The learned Magistrate made a strong finding in favour of Mr Ljuldjuraj’s credibility, but it is not clear what weight he gave to Mr Ljuldjuraj’s purported recognition of the appellant on the video recording. Great care had to be taken with respect to Mr Ljuldjuraj’s purported recognition of the appellant on those recordings however as it is clear that Mr Ljuldjuraj was convinced well before he saw them that the appellant was the culprit. He was therefore likely to have reasoned from that fact that the person on the recording had to be the appellant, although none of the images in the recordings are particularly clear. The best of them is P15 (footage dated 22 August 2006) which depicts a man of similar height, build and clothing of the appellant, but gave me the impression of being a person younger in age.
There does not seem to have been anything unusual about the appellant walking in this area as Mr Ljuldjuraj’s house is situated close to the Torrens Linear Park and walking area. No motive was provided nor suggested as to why the appellant would have acted in the manner alleged.
The Magistrate’s ultimate conclusion that the appellant was the offender appeared to consist of the appellant’s admission of walking at night (combined with the rejection of the evidence of never being alone), wearing similar clothing and having a casual gait which resembled that of the person in some of the exhibits. The Magistrate also relied on the fact that the appellant had a dog of similar size, colour and characteristics as that which was observed in Exhibits P4 and P6. The problems associated with identification evidence however can be demonstrated by the evidence of Mr Pangello. The appellant’s Blue Heeler dog is clearly depicted in Exhibit P12 but Mr Pangello in evidence recalled that it was a “terrier-type dog – sort of black, brownish and white but smallish dog … not overly large”[2].
[2] Transcript p 169, lines 26-36.
Although there was evidence upon which the Magistrate could have found a circumstantial case against the appellant, when considering these matters he was obliged to take into account the evidence of the appellant, supported as it was by his wife that he was never alone at night. His conclusions are therefore seriously flawed as a result of his misunderstanding of that evidence. It follows therefore that the appeal must be allowed and the convictions and orders consequent thereon be set aside.
It is therefore necessary to consider the order which should be made as a result thereof. In the normal course the appropriate order would be to remit the matter to the Magistrates Court for a retrial before another Magistrate. I was informed on the hearing of the appeal, however, that since this matter was heard, the appellant’s wife has passed away. Counsel for the appellant submitted that Ms Davidson’s evidence was critical and in the circumstances of this case, the absence of her evidence would cause the appellant to suffer a significant forensic prejudice if the matter were to be referred back to the Magistrates Court for retrial. The appellant therefore sought orders for acquittal or stay of proceedings as a result of the inability to call Ms Davidson at a further trial.
Subsequent to reserving judgment in this matter however, and with the consent of the appellant, I received a letter from counsel for the respondent in which he indicated that in the event of a retrial being ordered he would give an undertaking on behalf of the SA police that there would be no opposition to an application by the appellant for the whole of the evidence given by Ms Davidson at the first trial being admitted into evidence on the retrial. Although not ideal, I consider that this, to some extent, cures the forensic disadvantage that the appellant would otherwise suffer should a retrial be ordered in the absence of a key witness. Having allowed the appeal and set aside the convictions, I have decided that the appropriate order is to direct that this matter be remitted to the Magistrates Court for hearing before another magistrate.