Elias v Monaghan
[2023] ACTMC 21
•8 May 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Elias v Monaghan |
| Citation: | [2023] ACTMC 21 |
| Hearing Date(s): | 8 May 2023 |
| DecisionDate: | 6 June 2023 |
| Before: | Special Magistrate Richter |
| Decision: | In relation to CC2021/6671 I find the defendant not guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ride in stolen vehicle – recklessness. |
| Legislation Cited: | Criminal Code 2002 ss 5.4, 318(2) |
| Cases Cited: | De Silva v The Queen [2019] HCA 48; 268 CLR 57 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 R v Basha (1989) 39 A Crim R. 337 |
| Parties: | N Elias (Informant) |
| Representation: | Counsel |
| Solicitors | |
| File Number(s): | CC 6671 of 2021 |
SPECIAL MAGISTRATE RICHTER:
The defendant, Jessica Skye Monaghan has pleaded not guilty to the offence of: CC2021/76671090:
That she, on 27 June 2021 in the Australian Capital Territory dishonestly rode in a motor vehicle namely, black 2018 Porsche Macan with vehicle identification number [redacted], belonging to someone else, namely, Harry Konstantinou and the vehicle was dishonestly taken by someone without the consent of the person to whom it belonged. In contravention of Section 318(2) of the Criminal Code 2002.
Background
At about 12.50 am on Sunday 26 June 2021 the defendant was a passenger in a black 2018 Porsche Macan SUV which was being driven by Matthew Jenkins in and near to the car park of the Calvary Hospital at Bruce.
The vehicle was stolen.
The prosecution alleges that the defendant either knew or was reckless that the vehicle was stolen at the relevant time.
The elements
The elements of the offence of ride in motor vehicle without consent as set out by the prosecution are:
(a) The defendant rides in a motor vehicle.
(b) The defendant intends to ride in the motor vehicle.
(c) The motor vehicle belongs to someone else.
(d) The defendant is reckless as to whether the vehicle belongs to someone else.
(e) The vehicle was dishonestly taken by someone without the consent of the person to whom it belongs.
(f) The defendant is reckless as to whether the vehicle was dishonestly taken by someone without the consent of the person to whom it belongs.
(g) The riding in the motor vehicle is dishonest according to the standards of ordinary people.
(h) The defendant knows that the riding in the motor vehicle is dishonest according to the standards of ordinary people.
Recklessness.
Recklessness is defined in section 5.4 of the Criminal Code
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
Agreed facts
I was assisted by a set of agreed facts pursuant to section 191 of the Evidence Act 2011. Those facts being that:
1. It is an agreed fact between the parties that the defendant, Jessica Skye Monaghan (DOB redacted) was a passenger in a black Porsche Macan, vehicle identification number [redacted] (“the vehicle”)
2. It is an agreed fact that the defendant deposited traced DNA onto several items within the vehicle including the mouth/brim of a Schweppes branded lime soft drink bottle, located in the front passenger door of the vehicle.
3. It is an agreed fact between the parties that the vehicle was stolen using a spare set of keys for that particular vehicle, and no subsequent damage was effected to the vehicle when appropriated.
4. It is an agreed fact and not suggested that either the defendant, or the co-defendant, Matthew James Jenkins, were involved in the original taking of the vehicle.
In this case there is no difficulty in the prosecution to proving elements (a) to (c) and (e) of this offence. It is the elements of recklessness (d) & (f), and dishonesty (g) & (h) which were contested at hearing.
Evidence
The 2018 Porsche Macan (‘the vehicle’) was stolen from an underground car park in Barton between 8:30pm on Sunday, 20 June 2021 when it was parked by its owner and 7:30am on Monday, 21 June 2021 when he became aware that it was stolen.
A statement from the owner of the vehicle attesting to those facts was admitted into evidence as Exhibit 2. There is no dispute that the vehicle was stolen at that place and at that time.
It was an agreed fact that the vehicle was valued at between $60,000 and $80,000.
The vehicle was located on the fourth floor of the Calvary Hospital car park in Bruce ACT. At that time, it was bearing Victorian registration plates [redacted] which had been stolen from a Subaru Forester between Friday, 18 June 2021 and Wednesday, 23 June 2021. A statement by the owner of those numberplates was admitted to evidence as Exhibit 3.
Police evidence
Statements from five police officers were tendered by the prosecution with the consent of defence counsel. They were:
(a) Constable Morgan Frame Exhibit 4
(b) Constable Matthew Elder Exhibit 5
(c) Sgt Shane Mundie Exhibit 6
(d) Senior Constable Simon Hackett Exhibit 7
(e) Det A/Superintendent Donna-Lee Hofmeler Exhibit 8
A/Supt Hofmeler was on duty when she saw the vehicle turn right into Mary Potter Circuit towards Calvary Hospital. She watched it turn into the multi-storey car park opposite the main entrance to the hospital. She observed it go up to the top level of the car par – which I take to be level 4.
The other police whose statements were tendered also went to the Calvary Hospital car park as a result of a radio transmission from A/Supt Hofmeler.
Constable Frame, Constable Elder and Senior Constable Hackett all remained outside of the car park with the remainder of the police officers entering the car park and heading up to the fourth floor.
Sgt Mundie describes what happened next:
Constable Cavana, and I attended the base of the multi-level car park and began walking up the North-Western fire escape in the company of Detective Senior Constable Ben Russell, and Detective Acting Sgt Matthew Carpenter.
[We] approach the vehicle, using the concrete pillars to block the line of sight to it. As we closed the distance, DSC Russell placed stop sticks behind the right rear tire of the black Porsche SUV.
As DSC Russell did this, I observed the lights and the engine for this vehicle turn on and reversed out of the parking spot, running over the stop sticks. It quickly drove toward the exit on the eastern side of the car park with a stop sticks attached to the rear of the vehicle.
The item placed behind the car was alternately referred to as a stop stick or a tyre deflation device (‘TDD’). I will use the term TDD.
Oral evidence was led from two police officers, 1st Constable Liam Cavana and Senior Constable Elias Nikias.
Both of these police officers attended at the 4th storey of the Calvary Hospital car park where the stolen vehicle was located. Their evidence was consistent with the account given by Sgt Mundie.
Senior Constable Nikias was unable to recall whether the lights in the vehicle were on or if the engine was running prior to the TDD being placed behind the vehicle, but did recall that the brake lights lit up and the vehicle reversed over the TDD and then sped out of the car park.
Both police officers who gave oral evidence were consistent in describing the car park as being moderately but not well lit and were also consistent in that the time between the placing of the TDD and the driving off of the vehicle happened over a very short period of time.
That time estimate is supported by the statement of Constable Frame who states that:
I observed the two Gungahlin Response Crime members entry-level on the car park and walk out of sight. A short time later I heard the engine of a vehicle start and the screeching of tires and could hear a car accelerating at high speed.
Constable Frame then deployed a TDD across the entrance to the car park near the entrance of Mary Potter Circuit.
The vehicle was seen to leave the car park and then as a vehicle was conducting a high-speed U-turn to avoid police this defendant fell to the roadway out of the passenger side of the car.
This defendant was then arrested, and that sequence of events was captured on the body worn camera of Constable Cavana (Exhibit 9) and the body worn camera of Senior Constable Nikias (Exhibit 10).
Civilian witness
The prosecution called Matthew James Jenkins to give evidence in this matter. He was the driver of the vehicle on the night in question. He has pleaded guilty to offences arising from this incident.
No prior statement had been provided by him and as such I gave leave to the Defence to conduct a Basha[1] inquiry.
[1] R v Basha (1989)39 A Crim R. 337
Mr Jenkins evidence was unfavourable to the prosecution. I allowed the prosecutor to cross-examine him pursuant to section 38 of the Evidence Act.
His evidence was that he had previously lived in a share house with the defendant for about a year. He denied any romantic or intimate relationship with the defendant but said that they had remained friends after he had ceased to live in her property. He had left that property not because of any falling out with her, but rather because he was on bail and had to reside at another address. He gave evidence that at the time of this offence he had not seen the defendant for about 6 months.
He described the various vehicles he owned during the time he was living with the defendant and in a general sense they were all old and in poor condition. He described four vehicles in total that he had owned over a period of time. He confirmed that he had never owned a Porsche.
Records tendered by the prosecution indicated that he had not been a holder of a drivers licence since 12 October 2019 at the latest (Exhibit 11 & 12).
His evidence included that; he entered the vehicle by a key which was in his possession, that he did not explain to this defendant how he came to be in possession of the vehicle and said that he did not tell her because he did not want her to look down on him as doing anything wrong, because he liked her.
In his evidence he did not explain how he had come into possession of the vehicle.
He said that he fell asleep from time to time while the car was parked at the Calvary Hospital car park, and that at some point he became aware of police being present in the car park, that it was only after he became aware of the police that he told this defendant that the car was stolen and that she wanted to be let out straight away.
The prosecutor put a series of propositions to him each of which would suggest knowledge by this defendant of the status of the vehicle at the time she was in it. He disagreed with each of those propositions and when it was put to him that he was lying to protect the defendant he said that while she was a friend he didn’t want to lie.
In cross examination this witness indicated that the inside of the vehicle was “a little bit trashed” which he clarified as meaning that it was full of rubbish including empty coffee cups.
He explained that his mother lives in Canberra and had financially supported him for a period of time. He had driven his mother’s cars, which included a dark grey Peugeot 4008 SUV and a dark red Nissan Dualis, from time to time.
He also gave evidence that this defendant had met his mother.
In relation to the events of 27 June 2021, he said that when he picked up the defendant he drove normally and they had gone to the car park at the Calvary Hospital to talk about issues he was having with his then girlfriend.
The defendant’s case
The defendant gave evidence on oath. She was not required to do so. She could have elected not to give evidence. She thereby became a witness in the hearing and I must approach her evidence in the same way that I approach the evidence of any other witness.
Her evidence is no better or worse, because she is the accused, than the evidence of any other witness in the hearing and must be considered in the same way as the evidence of other witnesses. However, by giving evidence the defendant did not assume any onus to prove anything at the trial.
Her evidence corroborated that given by Mr Jenkins insofar as their previous co-habitation and the nature of their relationship. She described they had lived together for about two years as house mates and did not have an intimate or romantic relationship.
She had met Mr Jenkins mother, who she described as being a “lovely lady” who had loaned Mr Jenkins her car during the time when they had lived together. She described that vehicle as being a dark-coloured SUV but could not provide any further description.
In relation to identifying the vehicle that was owned by Mr Jenkins mother, she claimed to have no interest in, or knowledge of, vehicles but could tell a sedan from a wagon or from an SUV. She said that she never held a drivers licence but had been a holder of a learner’s permit for a short period, and generally did not drive.
She said that on the night in question she had been at a friend’s house at Bruce when she had been called by Mr Jenkins. He had told her about troubles he was having with his then girlfriend. She considered him a friend and was prepared to meet with him to talk about this.
A short time later he had called her again to tell her that he was parked outside in the car park. She had run downstairs from her friends house and hopped straight into the vehicle. This was at about midnight and at that time the vehicle was running and the headlights were on. The car park was dark and she did not get a good look at the outside of the vehicle.
Her recollection of the inside of the vehicle was that it was pretty untidy. She said that she made no enquiry as to the origin the vehicle.
She described the drive to the car park at the Calvary Hospital as being uneventful. The reason she gave for being at that car park was to look at the lights and to talk. She described Mr Jenkins falling asleep on a number of occasions and said that she considered getting a ride to go home.
Her evidence was that she was not aware of the police presence until shortly before Mr Jenkins turned on the car and reversed rapidly. She said that it was this time that Mr Jenkins had told her the car was stolen. She said it was going pretty fast around the car park (and I note this is consistent with the police evidence). She said she had tried to open the door with a view to getting out but could not do so in the car park, but rather was thrown out of the car when it manoeuvred rapidly on the road.
General directions
In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove her innocence; if she raises an explanation consistent with her innocence, she is not required to prove it, it is for the prosecution to disprove it or demonstrate its irrelevance.
In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me. In doing so, I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience. A defendant’s evidence is of no lesser weight simply by virtue of that person’s status as a defendant.
Assessment
I turn now to my assessment of the evidence.
Police evidence
I have no difficulty with any of the evidence of the police evidence either written or oral. In relation to the events at the Calvary Hospital car park, their evidence supports the defendant’s proposition that she had no opportunity to get out of the car once the police had attended and placed the TDD behind the car and Mr Jenkins had sped off.
Mr Jenkins
Whilst I have reservations in relation to the evidence of Mr Jenkins, there was nothing in the objective evidence which contradicted his account of the occasion when he collected the defendant.
His evidence that the stolen vehicle was being operated using the key for it, and that there was no damage to the vehicle as a result of it being stolen was consistent with the police evidence. To that extent his evidence supported the evidence given by the defendant.
The defendant
I direct myself in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 and De Silva v The Queen [2019] HCA 48; 268 CLR 57 that:
(i)if I believe the accused’s account I must acquit,
(ii)if I do not accept that account but I consider that it might be true, I must acquit; and
(iii)if I do not believe the accused’s account I should put that account to one side. The question will remain: has the prosecution, on the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?
I accept the defendant’s account of what happened from the time the police arrived at the Calvary Hospital car park until she was thrown from the car on Mary Potter Drive.
It is clear from both the defendant’s evidence and the evidence of police that things escalated rapidly once the presence of police became known to Mr Jenkins and he reversed the vehicle over the TDD and drove out of the car park at high speed. I accept that the defendant had no opportunity to exit the car at that time. If she became aware that the vehicle was stolen at that time, there was no opportunity for her to leave the vehicle. In that circumstance the charge would not be proved.
Given that I accept that portion of the defendant’s evidence the question ultimately becomes whether the prosecution can prove that this defendant either knew or was reckless as to whether the vehicle belongs to someone else and was dishonestly taken without the consent of the person to whom it belongs at a time prior to the police approaching the vehicle at the Calvary Hospital car park.
The defendant’s account of being collected from her friend’s address at Bruce is logical. It is not contradicted by any other evidence and further if I accept that she has a limited knowledge of and/or interest in cars it would be unsurprising that she would get into that vehicle without making any enquiry in light of Mr Jenkins having previously used his mother’s vehicle.
Whilst I accept that the vehicle was a “luxury vehicle” and the agreed fact as between the prosecution and defence that the vehicle is worth approximately $60,000-$80,000 - in the dark would simply appear to be a large SUV.
Whilst I have some doubts about the defendant’s account, I consider that it might be true.
Consideration
The prosecution must prove all of the elements of this offence. The elements which were the subject of the dispute in this matter went to the state of mind of the defendant.
If she became aware of the status of the vehicle at the time it was parked in the Calvary Hospital car park upon the arrival of the police, then she did not have sufficient time to get out of the vehicle prior to it being driven off rapidly by Mr Jenkins.
In that case her riding in the vehicle once the requisite knowledge was received by her was in circumstances where she had no opportunity to get out of the vehicle.
I consider that her version of events relating to being picked up by Mr Jenkins from a friend’s home in Bruce might be true. In that case the prosecution cannot prove the elements of recklessness or dishonesty in this case.
Orders
In relation to CC2021/6671, I find the defendant not guilty.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Date: 18 July 2023 |
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