Frech v City of Port Adelaide Enfield
[2022] SASC 69
•12 July 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
FRECH v CITY OF PORT ADELAIDE ENFIELD
[2022] SASC 69
Judgment of the Honourable Justice Blue
12 July 2022
ENVIRONMENT AND PLANNING - POLLUTION
APPEAL AND NEW TRIAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL GRANTED - VERDICT UNREASONABLE
The appellant was found guilty by a Judge of the Environment, Resources and Development of being the owner of a vehicle from which class B hazardous litter (a cigarette butt) was disposed of onto land on an information laid by the respondent.
The appellant appeals against his conviction on three grounds:
1the verdict is unreasonable and not supported by the evidence;
2the Judge’s reasons are inadequate; and
3the Judge erred in permitting the prosecution to split its case.
There were ultimately two issues at trial, namely whether it was proved beyond reasonable doubt that the driver of the vehicle in question disposed of a cigarette butt out of the window and whether it was proved beyond reasonable doubt that the vehicle in question was the vehicle owned by the appellant.
Held (allowing the appeal):
1Leave should be granted to the appellant to amend the notice of appeal (at [115,119,169]).
2The Judge did not permit the prosecution to split its case (at [135]).
3The Judge’s reasons are inadequate (at [151,184,190,205,214,226]).
4The verdict is not unreasonable or incapable of being supported having regard to the evidence (at [301]).
5Extension of time to appeal and leave to amend grounds of appeal granted. Verdict of guilty set aside. Matters remitted for a new trial. (at [305]).
Expiation of Offences Act 1996 (SA) s 26(5); Local Nuisance and Litter Control Act 2016 (SA) s 3, s 22 and s 26; Road Traffic Act 1961 (SA) s 3 and s 5; Supreme Court Criminal Rules 2014 (SA) rule 104G, referred to.
Crampton v The Queen (2000) 206 CLR 161; DL v The Queen (2018) 266 CLR 1; Dolan v Voutieros [2019] SAERDC 8; Fox v Percy (2003) 214 CLR 118; Hamilton v The Queen (2021) 95 ALJR 894; M v The Queen (1994) 181 CLR 487; Macks v Viscariello (2017) 130 SASR 1; R v Sexton [2018] SASCFC 28, considered.
FRECH v CITY OF PORT ADELAIDE ENFIELD
[2022] SASC 69
BLUE J: The appellant Philipp Frech was found guilty by a Judge of the Environment, Resources and Development Court of South Australia (the Environment Court) of being the owner of a vehicle from which class B hazardous litter (a cigarette butt) was disposed of onto land[1] on an information laid by the respondent the City of Port Adelaide Enfield (the Council).
[1] Contrary to subsection 22(1) of the Local Nuisance and Litter Control Act 2016 (SA).
Mr Frech appeals against that decision on three grounds: [2]
1the verdict is unreasonable and not supported by the evidence;
2the Judge’s reasons are inadequate; and
3the Judge erred in permitting the prosecution to split its case.
[2] The formulation and evolution of these grounds (and particulars) and of Mr Frech’s notice of appeal and at the hearings of the appeal is addressed in some detail below.
There were ultimately two issues at trial, namely whether it was proved beyond reasonable doubt that the driver of the vehicle in question disposed of a cigarette butt out of the window and whether it was proved beyond reasonable doubt that the vehicle in question was the vehicle owned by Mr Frech.
Background
Mr Frech was in April 2019 the registered owner of a Mercedes C200 Kompressor four door sedan registration number S173BMF (Mr Frech’s Mercedes).
On 8 April 2019 at about 11.55 am Amanda Thomason, a parking officer employed by the Council, was driving west on the southern side of North Parade Port Adelaide when she observed a Mercedes (the offending Mercedes[3]) stopped in a bus zone on the opposite (northern) side of North Parade behind a bus. She drove slowly past the Mercedes and could clearly see the female driver.
[3] I use this terminology for ease of reference, acknowledging that it was in dispute whether an offence was committed at all by the discarding of a cigarette butt from the Mercedes in question. I also acknowledge that the vehicle did not commit any offence.
Ms Thomason made a u-turn and parked behind the offending Mercedes. While sitting in her vehicle, she took two photographs through her front windscreen of the rear of the Mercedes (photographs 1 and 2). She then decided to move her vehicle because it was obstructing the bus zone. She drove past the Mercedes. She turned her head to view the driver. She saw that the driver was smoking and flicking ash out of the open driver’s side window.
Ms Thomason drove around the block and parked her vehicle in the Fisherman’s Wharf carpark immediately to the south of the southern side of North Parade in a position close to, and approximately northeast, of the offending Mercedes.
Ms Thomason gave evidence that, as she was about to get out of her vehicle, she observed the driver of the offending Mercedes take a drag from the cigarette and immediately flick the cigarette butt out of the open driver’s side window onto the roadway. It was in dispute at trial whether it was proved beyond reasonable doubt that Ms Thomason did observe the driver flick the cigarette butt out of the window and whether it was still lit.
Ms Thomason got out of her car and took a photograph of the front of the offending Mercedes and a cigarette butt (the offending butt[4]) on the road (photograph 3). The Mercedes drove away.
[4] I use this terminology for ease of reference, acknowledging that it was in dispute whether an offence was committed at all by the discarding of a cigarette butt from the Mercedes in question. I also acknowledge that the cigarette butt did not commit any offence.
Ms Thomason walked across the road to the southern side of North Parade and took a photograph of the empty space where the offending Mercedes had been and of the bus showing the offending butt (photograph 4) and a photograph of the offending butt on the road (photograph 5).
Ms Thomason in her evidence described the driver of the offending Mercedes as female, in her forties, Caucasian, fair-skinned, slim to medium, blonde, hair down to just below her shoulders, wearing a white blouse and jewellery, neat in attire and appearance and posh-looking, and smoking using her right hand.
The five photographs taken by Ms Thomason (collectively Ms Thomason’s photographs) were tendered. Hard copy versions were tendered as exhibits I3 to I5 and electronic versions were tendered together as exhibit D22. They were as follows:
1Photograph with timestamp 11.58 am of the rear of the offending Mercedes, with its brake lights displayed and its rear registration plate visible, stopped behind a Willunga Charter bus (part of I3 and part of D22) (photograph 1).
2Photograph with timestamp 11.58 am of the rear of the offending Mercedes, with its brake lights displayed and its rear registration plate visible, stopped behind the bus (part of I3 and part of D22) taken from a greater distance than photograph 1 (photograph 2).
3Photograph with timestamp 11.59 am of the front of the offending Mercedes, with its front registration plate visible, stopped (I4 and part of D22) (photograph 3).
4Photograph with timestamp 12.00 md of the space where the offending Mercedes had been stopped (including what appears to be a cigarette butt) showing the Willunga Charter bus still present (exhibit I5 and part of D22) (photograph 4).
5Photograph with timestamp 12.00 md of the cigarette butt on the roadway (part of I5 and part of D22) (photograph 5).
Ms Thomason proceeded to the Council offices and shortly after midday made handwritten notes of her observations of the offending Mercedes and seeing the driver throw a cigarette butt out of the window.
Ms Thomason created an expiation notice addressed to Mr Frech (the littering expiation notice) alleging commission of the littering offence in contravention of subsection 22(1) of the Local Nuisance and Litter Control Act 2016 (SA) (the Act) on 8 April 2019 at 11.59 am on North Parade, Port Adelaide.
On 8 April 2019 Ms Thomason created a second expiation notice addressed to Mr Frech (the bus zone expiation notice) alleging an offence of being the owner of a vehicle that was stopped in a bus zone in contravention of rule 183 of the Australian Road Rules on 8 April 2019 at 11.58 am on North Parade Port Adelaide.
Each expiation notice identified that the recipient had six choices, namely:
1paying the expiation fee;
2entering into a payment arrangement to pay the expiation fee;
3submitting a statutory declaration;
4applying in writing for a review on the ground that the offence was trifling;
5electing to be prosecuted and disputing the allegation that the recipient committed the offence; or
6applying in writing for an informal review of the expiation notice.
In relation to option 3 of submitting a statutory declaration, for a litter offence it stated that if the notice was issued to the recipient as the owner of a vehicle and the owner was not the alleged principal offender or had transferred ownership of the vehicle beforehand, the recipient may submit a statutory declaration setting out the full name and address of the alleged principal offender or transferee as applicable.
On 9 April 2019 Ms Thomason sent a letter dated 8 April 2019 to Mr Frech with the subject line Littering and Parking Expiation, North Parade Port Adelaide. The letter stated that it attached expiation notices and photographs. In relation to the alleged littering offence, the letter said amongst other things:
I write following a report that litter has been disposed onto a roadway without authorisation from vehicle registration S173BMF, a black Mercedes Benz sedan, at 1159 hrs on the 8th April 2019. A registration search identifies you as the owner of the vehicle. A Council Officer observed the above mentioned vehicle parked in a bus zone and after taking relevant photographs of offence drove past the vehicle and sighted the female driver smoking a cigarette. As the officer parked the vehicle in the adjacent Fisherman’s Wharf carpark the female driver was sighted discarding the lit cigarette butt out the open window of the vehicle onto the roadway while parked in a bus zone on North Parade, Port Adelaide. Photographs of the lit cigarette butt were taken by the officer, see photographs attached.
After addressing the alleged bus zone stopping offence, the letter stated:
If you are not the person responsible for the littering or parking offence, please provide a statutory declaration stating the full name and address of the person responsible for the offence. If you had transferred ownership of the vehicle prior to the offence, please provide supporting evidence or complete a statutory declaration stating the full name and address of the new owner.
On 23 April 2019 Mr Frech attended at the Council’s offices to view the photographs taken by Ms Thomason on 8 April 2019. He viewed the photographs electronically on a monitor. He gave evidence that his purpose in attending at the Council and viewing the photographs was to attempt to identify the driver.
Mr Frech gave evidence that the photographs that he viewed were the same as the hard copy photographs that he received from the Council by post, which in turn he identified in his evidence as being the five photographs contained in exhibits I3 to I5.
On 29 April 2019 Mr Frech sent an email to the Council attaching a Submission for Review of Expiation Notice dated 25 April 2019 (the Submission for Review) referring to the two expiation notices and his attendance at the Council on 23 April 2019. He thereby adopted the fourth option identified in the expiation notices. He said:
As stated to you I dispute your officer’s observations pursuant to your letter of 08-04-19 on the following grounds. You provided photos of a vehicle and allege “a female driver” is in the car and further that driver is parked in a bus zone. Your photos do not show the alleged driver, they do not show the driver smoking nor is the vehicle parked. Whilst I do smoke, I do not smoke white cigarettes. Clearly the brake lights of the car are displayed as on and can be seen in the photos, therefore, the car is not parked. Your photos do not show a description of the driver and nor do they show the driver smoking. I request the expiation notices be withdrawn against me, I did not commit the alleged offences. I am clearly not responsible. I am completing this form on your advice, to have the notices withdrawn against me on the grounds your allegations are trivial and trifling pursuant to section 4(2) of the expiation of offences act 1996.
On 8 May 2019 Holly Marcus of the Council replied to Mr Frech’s email. In relation to the bus zone expiation notice, she took issue with Mr Frech’s contention and stated that it is an offence to stop in a bus zone. In relation to the littering expiation notice, she stated that the issuing officer witnessed a black Mercedes Benz sedan with registration number S173BMF parked in a bus zone and, after taking photos, drove past the vehicle and witnessed the driver discard a lit cigarette out of the open window. She stated that Mr Frech’s reasons did not fall under grounds to waive the notice.
Mr Frech subsequently telephoned the Council and spoke to Amanda Spirdonoff. An audio tape of the recorded conversation was played to Mr Frech during his cross-examination (but was not tendered). Mr Frech accepted in cross-examination that, during the conversation, he did not say at any point that he needed a description of the driver.
On 15 May 2019 Ms Spirdonoff forwarded to Mr Frech the email from Ms Marcus of 8 May 2019.
On 16 May 2019 Mr Frech replied to the email. He said:
Thank you for your email below, as previously advised, on your evidence, I am clearly not the driver and I am unable to provide you with the driver details on your evidence.
The car is clearly not parked or stopped, nor is the driver smoking as alleged. I’m not responsible for the driver’s actions, and therefore not responsible for any expiation notices you have issued.
Further, if you would like me to put this information in a statutory declaration please provide me with the form because you have failed to do so to date.
On 23 May 2019 the Council issued an Expiation Reminder Notice in respect of the littering expiation notice (the littering reminder notice). It set out the same six options as on the expiation notice and contained a pro forma statutory declaration with two options stating that:
·I was not the owner of vehicle registration number _______ at the time of the alleged offence, having disposed of the vehicle on ___ _______ to __________ of _________
·I was the owner of vehicle registration number _______ at the time of the alleged offence but the driver was __________ of _________
On 23 May 2019 the Council issued an Expiation Reminder Notice in respect of the bus zone expiation notice (the bus zone reminder notice).
On 3 June 2019 Mr Frech completed the littering reminder notice and declared the statutory declaration before a Justice of the Peace (the Statutory Declaration). He also ticked the boxes for “elect to be prosecuted” and “dispute the offence for the following reasons”, referring to his statutory declaration. The statutory declaration provided:
·I was the owner of vehicle registration number S179BMF at the time of the alleged offence but the driver was: UNABLE TO PROVIDE, PLEASE REFER TO MY SUBMISSION FOR REVIEW DATED 25-04-19 AND EMAIL TO YOU OF 16-05-19.
On 7 June 2019 Mr Frech completed the bus zone reminder notice and declared the statutory declaration before a Justice of the Peace. It was in essentially the same terms as the littering reminder notice statutory declaration.
On 17 June 2019 Sara Duncan of the Council sent a letter to Mr Frech, which was not tendered.
On 24 June 2019 Mr Frech sent an email to Ms Duncan in response to her letter. He referred to his 25 April 2019 Submission for Review, 16 May 2019 email and 3 June 2019 and 7 June 2019 statutory declarations. He then said:
I have outlined my position based on your evidence. You will note, on those forms I have also ticked dispute offence and elect to be prosecuted, if my statutory declarations are not acceptable then why are you sending me the attached letter if I have clearly set out my reasons for the way I have completed your documents as requested.
I have clearly ticked dispute and elect to be prosecuted, I cannot complete further stat dec any differently to what I have already provided. If you are going to pursue the expiation notices against me, then I believe I have sufficiently completed the forms for election.
On 3 July 2019 Ms Thomason typed and signed a detailed written statement concerning the events of 8 April 2019. She described the offending Mercedes as “a black sedan”.
On 25 July 2019 the Council issued an information against Mr Frech charging him with one count of being the owner of a vehicle that was stopped in a bus zone (count 1) and one count of being the owner of a vehicle from which litter was disposed onto land (count 2). The Council subsequently realised that the Environment Court had exclusive jurisdiction in respect of count 2. As a result, on 14 October 2019 the Council laid an information in the Environment Court charging the littering offence against Mr Frech and on 6 December 2019 count 2 in the Magistrates Court information was withdrawn.
In due course, the charge in the Environment Court was listed for trial on 22 April 2020.
On 21 January 2020 Ms Thomason swore an affidavit intended to comprise her evidence in chief concerning the events of 8 April 2019 and exhibited various documents (Ms Thomason’s affidavit). On 31 January 2020 the affidavit was served on Mr Frech’s solicitor.
The trial
At trial, Mr Frech was originally represented by his wife, Ms Tassone. However, part way through cross-examination of Mr Frech, Mr Richards took over as his counsel.
The prosecution provided a written opening address.[5] It included paragraph 17 which stated that it was not anticipated that there would be any dispute amongst other things that:
·Mr Frech owned the Mercedes at the time of the offence;
·Mr Frech was not driving the Mercedes at the time of the offence, rather the unidentified woman was driving the Mercedes; and
·the woman driver discarded a cigarette butt from the vehicle onto the roadway.
[5] The document was entitled “Outline of Prosecution Opening” but was in fact a comprehensive opening address.
Defence counsel informed the Court that these matters were in dispute. The prosecutor invited the Judge to delete paragraph 17. The prosecutor informed the Judge that the prosecution continued to be told that everything was in dispute and the prosecution must prove everything and his anticipation as to matters that might not be in dispute was proven to be incorrect.
It was clear from the discussion during opening that the defence denied that:
1the offending Mercedes seen by Ms Thomason on 8 April 2019 was the same vehicle as Mr Frech’s Mercedes (or at least that this could be proved beyond reasonable doubt); and
2that it could be proved beyond reasonable doubt that the female driver of the offending Mercedes discarded a lit cigarette butt out of the window onto the road.
The fact that these two elements of the prosecution case were in dispute was confirmed by the cross-examination of Ms Thomason and the adducing of evidence (oral and tendered exhibits) by the defence at trial.
There is a dispute on appeal as to whether Mr Frech was also relying at any stage on the unlawful use defence referred to at [106] below that in consequence of an unlawful act the offending Mercedes (if his Mercedes) was not in his possession or control at the relevant time. I address that dispute below. However, it is clear that, whatever the answer to this question, any such defence was unequivocally renounced by the start of the cross-examination of Ms Tassone.
The Council called Ms Thomason to give evidence and tendered various documents. Ultimately Mr Frech tendered Ms Thomason’s affidavit. Ms Thomason gave evidence in chief as summarised in the Background section above.
Ms Thomason was cross-examined on statements she made in her 8 April 2019 letter and 3 July 2019 written statement describing the offending Mercedes as black. She also gave evidence in re-examination on this topic. I address this evidence below.
Ms Thomason was asked whether she could see Mercedes badges on the back of the offending Mercedes in photographs 1 and 2. She said that she could not. She said that she did not have enough quality to see whether there were badges in the photographs.
Ms Thomason was shown two photographs (one taken from the back and one from the side) that Mr Frech later gave evidence were photographs of his Mercedes and became exhibit D8 (Mr Frech’s photographs). It was put to Ms Thomason that that vehicle was blue. She agreed that the picture taken from the side appeared to be blue. She said that the picture taken from the back looked quite dark and she would struggle to determine the colour.
It was put to Ms Thomason that the colour of Mr Frech’s Mercedes shown in Mr Frech’s photographs was different to the colour of the offending Mercedes shown in Ms Thomason’s photographs. She disagreed, saying that she was unable to determine whether they were the same colour or not.
It was put to Ms Thomason that, in relation to the rear number plate of the offending Mercedes shown in photograph 1, there was a significant space or marking between the word South Australia and the first letter “S” in the alpha-numeric number. She did not agree that this could be determined from the photograph.
It was put to Ms Thomason that the number plate of the offending Mercedes shown in photograph 1 was different to the number plate of Mr Frech’s Mercedes shown in Mr Frech’s photographs. She disagreed, saying that she could not determine any difference from the photographs.
It was put to Ms Thomason that the offending Mercedes shown in her photographs did not have a sunroof (unlike the vehicle in Mr Frech’s photographs which showed a sunroof in the up position). She said that one would be hard-pressed to see if there was a sunroof in her photographs if it was down. She said that whether or not the offending Mercedes had a sunroof was not her focus and it would have been difficult for her to determine whether the car had a sunroof or not. She said that there is a dark patch on photograph 3 that may or may not be a sunroof.
Mr Frech gave evidence. In evidence in chief, he said that in April 2019 he was living at Greenacres and was employed by Altus undertaking traffic control in respect of a new underpass at the Southern Expressway and staying with his parents at Happy Valley while he was working there. His pay advice from his employer for the week ending 14 April 2019 was tendered. It showed that he was working night shifts and worked 11.5 hours on the evening/early morning of 8-9 April 2019 and similar hours on the next three nights. He said that, when he was working night shift, he was asleep during most of the day.
Mr Frech gave evidence that, when staying at his parents’ house, he parked his vehicle on his parents’ driveway. There were several people living at his parents’ house: his father, his mother, his brother, his sister-in-law and two male relatives visiting from overseas. Everyone at the house knew that he was very fussy and he did not like giving out his car and therefore no one would have used his car.
Mr Frech gave evidence that he took the photographs of his Mercedes in exhibit D8 in March or April 2019 because he was going to sell it. It was not clear from his evidence whether this was before or after 8 April 2019 but it was within a month before or after that date.
Mr Frech gave evidence that his car had tinted windows and a sunroof.
Mr Frech gave evidence that he attended at the Council offices in April 2019 to obtain a description of the driver. The photographs that he was shown did not show a driver. He was not given a description of the driver other than being told that the driver was a female. His purpose in completing the statutory declaration was to obtain a description of the driver.
Mr Frech was shown the offending Mercedes depicted in Ms Thomason’s photographs and asked whether he believed that it was his car, to which he responded “It looks similar to my car, yep”. Asked what he meant by “similar”, he said that it was blue and had the same number plates.
In cross-examination, Mr Frech was asked if he was married and if he lived with anyone. He said that he was married and lived with his wife Ms Tassone.
Mr Frech gave evidence that he owned two other vehicles (apart from the Mercedes) as at April 2019: being a Toyota/Lexus Soarer and a SsangYong Rexton. He said that his wife used the Soarer and did not drive the Mercedes because it had mechanical issues. In re-examination, he said that the driver’s stability control was playing up, the airbag lights were on, it had no air conditioner and it had a transmission problem.
Mr Frech gave evidence that, when he was doing traffic control for Altus on the Southern Expressway, he usually drove an Altus utility but he sometimes drove his Mercedes. He said that he took the Mercedes down to his parents’ house in April 2019 because that was “the runaround vehicle”. He was asked in cross-examination if he was sure that he was not mistaken and took one of his other vehicles instead. He said “I do not think so, no”. When asked how he could sure, he said “Well, I did ask for this evidence a year ago”.
Mr Frech gave evidence that during the daytime on 8 April 2019 he was asleep and his Mercedes was in the driveway and when he went to work in the evening it was in the driveway. In re-examination, he said that he kept the keys in his room on the nightstand and did not have a second set of keys. He said that he did not give permission to anyone else to drive his car.
Mr Frech gave evidence that, after he received the expiation notices, he did not ask his wife, mother or sister-in-law whether they had driven his car. He did not ask them because he did not want to accuse anyone without having proof. He did not mention the expiation notices or his subsequent communications with the Council to his wife before he was charged in July 2019. He did not ever ask his wife if she was the driver of the Mercedes on 8 April 2019. In re-examination, he said that he did not believe that it was his wife driving the Mercedes because his wife does not smoke.
It was put to Mr Frech that in his written communications with the Council he did not at any point ask for a description of the driver. He said that he did so verbally. The documents were put to him and he accepted that he did not include in them a request for a description of the driver.
Mr Frech’s mother gave evidence. She gave evidence that, apart from herself, the only other female staying at their house in April 2019 was her other son’s wife, who has long black hair. She said that Ms Tassone did not smoke and did not wear jewellery. She said that she had not driven the Mercedes (although she may have been in it as a passenger on one occasion). She was aware that it had mechanical problems. In cross-examination, she said that sometime in around April 2019 Mr Frech brought his Lexus down to her place.
Ms Tassone’s mother gave evidence. She said that in 2019 Ms Tassone had not been a smoker for some years and wore only minimal jewellery.
Ms Tassone gave evidence. She said that she was not the driver of the Mercedes on 8 April 2019 and was not a smoker. She said that she was in the Adelaide Magistrates Court shortly before noon on that day. She said that she did not ever drive the Mercedes because it had mechanical problems.
At the end of Ms Tassone’s examination in chief, David Stiles, a law clerk at Old Port Chambers, was interposed to give evidence. He gave evidence that Ms Tassone was not a smoker and wore minimal jewellery.
In cross-examination (which was 12 months after her evidence in chief), Ms Tassone said that the purpose of adducing evidence from Mr Frech about where the car was and who had permission to use it was to advance the unlawful act defence under subsection 26(7) of the Act.
Closing addresses by the parties were made entirely in writing.
There were two ultimate issues addressed by the parties in their closing submissions:
1whether it was proved beyond reasonable doubt that a cigarette butt was disposed of out of the offending Mercedes (the cigarette butt issue); and
2whether it was proved beyond reasonable doubt that the offending Mercedes was Mr Frech’s Mercedes (the vehicle identity issue).
In relation to the vehicle identity issue, the prosecution contended that the offending Mercedes and Mr Frech’s Mercedes were one and the same vehicle.
Mr Frech contended that there were the following important differences between the two vehicles:
1colour: his vehicle was blue and the offending Mercedes was black;
2rear Mercedes badges: his vehicle had three badges and the offending Mercedes had no badges;
3rear number plate: there were five differences (listed below);
4sunroof and tinted windows: his vehicle had a sunroof and tinted windows and the offending Mercedes did not.
An unlawful use defence?
As observed above, there is a dispute on appeal whether Mr Frech was relying at any stage on the unlawful use defence referred to at [106] below that in consequence of an unlawful act the offending Mercedes was not in his possession or control at the relevant time.
The Council contends that Mr Frech was relying on that defence from the time of the prosecution opening up to the end of Ms Tassone’s evidence in chief and the defence was renounced before cross-examination of Ms Tassone. Mr Frech contends that he never relied on that defence and confirmed this when the defence was renounced before the commencement of cross-examination of Ms Tassone.
This issue has some (albeit limited) relevance to Mr Frech’s application for leave to amend his notice of appeal to introduce ground 2(f) and as to the merits of that ground.
The Judge referred to a potential unlawful use defence during submissions on Mr Frech’s application for dismissal of the charge for abuse of process, which was heard and dismissed by the Judge before the prosecutor’s opening was addressed. However, defence counsel did not indicate at that point or at any other point during the prosecution case or during the evidence of Mr Frech that the defence was relying on an unlawful use defence.[6]
[6] This is not to suggest that Mr Frech was precluded from relying on such a defence because he did not raise it during the prosecution case (or that Mr Frech did not in fact intend to rely on the defence). That is not the issue.
At the end of Mrs Frech’s evidence, the Judge raised the question whether there was a tenable unlawful use defence (and indeed whether there was a tenable section 26(7)(b) defence). The Judge asked defence counsel whether there was evidence going to an unlawful use defence and expressed the tentative view that Mrs Frech’s evidence did not assist him greatly in relation to any explanation of an unlawful act.
Defence counsel said that it was the defence case that the offending Mercedes was not Mr Frech’s Mercedes. The Judge confirmed that this was the defence case and enquired whether, in the alternative, Mr Frech relied on the unlawful use defence (or the section 26(7)(b) defence). Defence counsel did not give a definitive answer to the question.
During Ms Tassone’s evidence in chief, the Judge from time to time raised the topic of an unlawful use defence but defence counsel did not positively indicate that Mr Frech was relying on that defence.
During Ms Tassone’s evidence in chief, there was an objection by the prosecutor on the ground of relevance to a question why Ms Tassone sought digital copies of the photographs. During argument on the objection, defence counsel said that it was not the defence case that Mr Frech’s car went missing but it was his case that the offending Mercedes was a different car entirely. The Judge said that he understood that, in the alternative, Mr Frech was relying on the unlawful use defence. Defence counsel did not answer that question directly, referring instead to the residual issue whether the cigarette seen by Ms Thomason was already on the road.
Later, there was another objection by the prosecutor on the ground of relevance to a question asked of Ms Tassone about digital copies of the photographs. During argument on the objection, the Judge expressed a concern to defence counsel that this evidence did not go to an unlawful use defence. Defence counsel contended that it was relevant to “the unlawful use” because, if the driver was not Ms Tassone or Mr Frech’s mother or sister-in-law, it increased the likelihood that the offending Mercedes was not Mr Frech’s Mercedes.
Defence counsel said that it was not the defence case that Mr Frech’s Mercedes had been taken from his home and driven down to Port Adelaide by a woman unknown. Nevertheless, the Judge during the balance of argument on the objection and subsequently during Ms Tassone’s evidence in chief continued to refer to an unlawful use defence. Ms Tassone’s evidence in chief was concluded and the trial was adjourned (ultimately for 12 months) for her cross-examination.
When the trial resumed, after asking a handful of introductory questions of Ms Tassone, the prosecutor said (at page 274 of the transcript):
Before we go further, we’ve been told formally that the defence of unlawful act has been abandoned. So I’m not cross-examining on that. It seems to me that where Ms Tassone was at any given time is just irrelevant to that defence.
During cross examination of Ms Tassone, it was put to her that, when she was acting as Mr Frech’s lawyer, she identified the unlawful act defence as a possibility and she said that she did so “initially”. She also said that it came to her awareness that the cars were not the same.
It was put to Ms Tassone that she indicated at the pre-trial conference that Mr Frech relied on that defence and she agreed that that was one of the defences. It was put to her that she asked her husband a series of questions during his evidence in chief, the purpose of which was to deal with the unlawful act defence, and she agreed.
During this line of questioning, defence counsel objected to a particular question. In the course of argument, he said that, at the pre-trial conference, it was made plain that the defence contended that these vehicles were not the same vehicle and it was elected to run tandem defences (implicitly referring to a defence that the vehicles were not same and an alternative unlawful use defence). Defence counsel said that perhaps the unlawful use defence ought not to have been run.
During further cross-examination, Ms Tassone continued to say that the defence being run was that the offending Mercedes was not Mr Frech’s Mercedes but also that (in the alternative) the unlawful use defence was being run.
In summary, based on Ms Tassone’s evidence, from the time of the commencement of the trial Mr Frech intended in his own mind to rely on the unlawful use defence in the alternative to his defence that the offending Mercedes was not his Mercedes. However, this was not conveyed by defence counsel to the Judge at any point up to the commencement of Ms Tassone’s evidence.
At various points during Ms Tassone’s evidence in chief, the Judge raised the topic of the unlawful use defence but defence counsel never embraced the defence, while not renouncing it either (flirting with it at its highest). After the conclusion of Ms Tassone’s evidence in chief and before commencement of her cross-examination, defence counsel unequivocally renounced any unlawful act defence.
By contrast, throughout the trial, defence counsel (initially Ms Tassone and later Mr Richards) clearly relied on the “defence” that the offending Mercedes was not Mr Frech’s Mercedes.
The reasons for verdict
The Judge addressed the charge, the legislation, summarised the evidence and identified the two issues to be decided as summarised above.
In relation to the cigarette butt issue, the Judge said (including the Judge’s summary of the relevant evidence):
14Ms Thomason drove around the block and parked adjacent to North Parade in the Fisherman’s Wharf carpark. From her vantage point, she saw the driver of the vehicle flick a cigarette butt out of the driver’s side window and onto the carriageway of North Parade. She told me the butt fell slightly forward and to the driver’s side of the car.
…
17In cross-examination, Ms Thomason was challenged as to her recollection of the cigarette butt being flicked from the car. It was put to her that she was mistaken. Ms Thomason was unshaken and maintained her evidence.
…
22Mr Richards, as mentioned above, advanced two hypotheses which, he submitted, should persuade me a reasonable doubt exists in this case. First, Mr Richards submitted the parking inspector was simply and honestly mistaken about seeing a cigarette butt disposed of out of the car. He postulated that Ms Thomason may have been innocently deceived by the combination of a butt already on the road and the flicking motion of the driver of the Mercedes disposing of ash.
23The informant submitted I should wholly accept the evidence of Ms Thomason, the registration notice tendered, the admission of Mr Frech that it was his car depicted in the photographs taken by Ms Thomason, and the similarities between the cars photographed by Ms Thomason and Mr Frech. That evidence, Mr Billington for the informant submitted, proved the informant’s case beyond reasonable doubt.
24The defendant does not challenge the truthfulness of the evidence of Ms Thomason. Rather, he submitted that she may have been mistaken when she said she had seen a butt being disposed of out of the car. I do not consider that Ms Thomason was mistaken in her evidence on that topic.
25Ms Thomason paid special attention to the vehicle and driver as she had just pulled up behind the Mercedes to photograph what she considered to be a traffic offence. Part of her job as a parking inspector, and as a person holding authority under the Act, was to make observations of vehicle make, type and colour, where the vehicle was parked, what time it was and other relevant matters, including what the driver was doing. She also held authority under the Act to take photographs and to require a person to state their name, produce proof of identity and answer questions. In all respects, Ms Thomason presented as an experienced, attentive, diligent and capable parking inspector and holder of an authority under the Act.
26Ms Thomason gave her evidence about what she had seen in a straightforward manner and she was unshaken when challenged in cross-examination. She was the only witness to these events and I find no reason to doubt her evidence of what she observed. Ms Thomason had a clear view of the car and of the cigarette butt being disposed of. She moved to photograph the butt immediately afterward. That evidence of Ms Thomason made sense. It was also entirely consistent with her actions in issuing expiation notices, for the two offences she had witnessed, immediately she returned to the Council office.
In relation to the vehicle identity issue, the Judge said that he was invited by Mr Frech to compare the offending Mercedes depicted in Ms Thomason’s photographs with Mr Frech’s Mercedes depicted in Mr Frech’s photographs. The Judge observed that the two sets of photographs were of markedly different quality and taken in markedly different circumstances.
In relation to colour, the Judge said that the offending Mercedes depicted in Ms Thomason’s photographs could reasonably be described as either dark blue or black.
In relation to sunroof and tinted windows, the Judge said that it could not be concluded from Ms Thomason’s photographs whether the offending Mercedes has a sunroof or tinted windows.
In relation to the Mercedes badges, the Judge referred to the fact that Mr Frech’s photographs clearly show the Mercedes three pointed star symbol, “C200” and “Kompressor” badges at the rear of his vehicle; whereas he could not make out those badges in the two photographs taken by Ms Thomason of the rear of the offending Mercedes and he was conscious of the limitations of quality and clarity in the photos taken by Ms Thomason.
The Judge referred to submissions by Mr Frech in closing address that there were differences between the number plates depicted in the photographs taken by Ms Thomason and Mr Frech. The Judge observed that the rear number plates had both been positioned using a bolt in the outer of the top three holes on each side.
The Judge considered that it was significant that, in evidence in chief, Mr Frech described the offending Mercedes depicted in Ms Thomason’s photographs as blue and, when asked if he believed that it was his car, he said “It looks similar to my car, yep” with his tone, pace and inflection indicating that he believed that it was his car. The Judge observed that, when given the opportunity to deny that the offending Mercedes was his Mercedes, Mr Frech did not do so. The Judge also considered that Mr Frech’s statutory declaration was significant in this respect.
The Judge referred to an invitation by Mr Frech in closing address to take judicial notice that criminals create fake or cloned number plates and a submission that it was a reasonable possibility that cloned number plates were attached to the offending Mercedes. The Judge said that there was no evidence to support a submission that cloning or falsification had occurred in this case.
The Judge referred to the identical method of attachment of the rear number plates in Ms Thomason’s photographs and Mr Frech’s photographs. The Judge accepted a submission by the prosecutor that it would be an unbelievable coincidence that criminals fixed false number plates to a materially identical car in exactly the same manner as the number plates were affixed to Mr Frech’s Mercedes.
The Judge concluded that he was satisfied beyond reasonable doubt that a lit cigarette butt was disposed of from Mr Frech’s Mercedes on 8 April 2019 as charged.
The legislative regime
Section 22 of the Act relevantly provides:
22—Disposing of litter
(1) A person must not dispose of litter onto any land or into any waters.
Maximum penalty:
…
(c) for an offence involving the disposal of up to 50 litres of class B hazardous litter—$10 000;
…
Expiation fee:
(b) for an offence involving the disposal of up to 50 litres of class B hazardous litter—$500;
…
(2) For the purposes of subsection (1)—
(a) if litter is discarded, deposited, blows or falls from premises or a vehicle onto land or into waters, it is taken to have been disposed of onto the land or into the waters; and
(b) a person will be taken to have disposed of litter onto land or into waters if the person caused or allowed the litter to be disposed of onto the land or into the waters; and
Note—
If the disposal of litter occurs from a vehicle or in connection with the use of a vehicle, the owner of the vehicle is, under section 26, taken to have committed an offence.
…
(5) In this section, unless the contrary intention appears—
…
class B hazardous litter means—
(a) when disposed of onto land or into waters—
(i) live cigarettes or cigarette butts;
…
Section 26 of the Act relevantly provides:
26—Liability of vehicle owners
(1) Subject to this Part, if—
(a) an activity is carried on—
(i) in, at or from a vehicle; or
(ii) in connection with the use of a vehicle; and
(b) the activity results in an offence against section 18, 22 or 23 (a principal offence),
the owner of the vehicle is guilty of an offence against this section and is liable to the same penalty as is prescribed for the principal offence and the expiation fee (if any) that is fixed for the principal offence also applies in relation to the offence against this section.
(2)The owner of a vehicle and the person who committed the principal offence (the alleged principal offender) are not both liable through the operation of this section to be found guilty of, or to expiate, an offence arising out of the same circumstances, and consequently a finding of guilt in relation to, or expiation by, the owner exonerates the alleged principal offender and conversely a finding of guilt in relation to, or expiation by, the alleged principal offender exonerates the owner.
(3)An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996 to the owner of a vehicle for an alleged offence against this section involving the vehicle must be accompanied by a notice inviting the owner, if he or she was not the alleged principal offender, to provide the council or officer specified in the notice, within the period specified in the notice, with a statutory declaration—
(a) setting out the name and address of the person who the owner believes to have been the alleged principal offender; or
(b) if he or she had transferred ownership of the vehicle to another prior to the time of the alleged principal offence and has complied with the Motor Vehicles Act 1959 or the Harbours and Navigation Act 1993 (as the case may require) in respect of the transfer—setting out details of the transfer (including the name and address of the transferee).
…
(5)Before proceedings are commenced against the owner of a vehicle for an offence against this section, the complainant must send the owner a notice—
(a) setting out particulars of the alleged principal offence; and
(b) inviting the owner, if he or she was not the alleged principal offender or the owner of the vehicle at the time of the alleged principal offence, to provide the complainant, within 21 days of the date of the notice, with a statutory declaration setting out any matters referred to in subsection (3)(a) or (b).
(6)Subsection (5) does not apply to—
(a) proceedings commenced where an owner has elected under the Expiation of Offences Act 1996 to be prosecuted for the offence; or
…
(7)Subject to subsection (8), in proceedings against the owner of a vehicle for an offence against this section, it is a defence to prove—
(a) that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of commission of the alleged principal offence; or
(b) that the owner provided the complainant with a statutory declaration in accordance with an invitation under this section.
Section 3 of the Act relevantly defines “owner” as follows:
owner—
…
(b) in relation to a vehicle within the meaning of the Road Traffic Act 1961, has the same meaning as in section 5(1) of the Road Traffic Act 1961, and includes the operator of the vehicle within the meaning of that Act;
Subsection 5(1) of the Road Traffic Act 1961 (SA) relevantly defines “owner” and “registered owner” as follows:
"owner" of a vehicle means—
(a)in the case of a vehicle other than a combination but including a vehicle in a combination—
(i) a person who is the sole owner, a joint owner or a part owner of the vehicle; or
(ii) a person who has possession or use of the vehicle under a credit, hire-purchase, lease or other agreement, except an agreement requiring the vehicle to be registered in the name of someone else;
…
and includes a registered owner of the vehicle;
"registered owner" of a vehicle means—
(a)in the case of a vehicle other than a combination but including a vehicle in a combination—a person registered or recorded as an owner of the vehicle by the Registrar of Motor Vehicles under the Motor Vehicles Act 1959 or by another Australian Authority on a register maintained under an Australian road law; …
The elements of the offence of being the owner of a vehicle from which a person disposed of class B litter, being a lit cigarette or cigarette butt, onto land created by the combination of sections 22 and 26 which the prosecution must prove beyond reasonable doubt are:
1A person caused or allowed a thing to be disposed of from a vehicle onto land;
2The thing was a lit cigarette or cigarette butt;
3The thing was not disposed into a bin or otherwise in circumstances identified in subsection 22(3) (not presently relevant);
4The defendant is an owner or a registered owner (or has under a lease or other agreement possession or use) of the vehicle;
5The alleged principal offender has not expiated or been found guilty of the section 22 offence; and
6Before filing the information, the defendant was served with a notice complying with subsection 26(5) or elected under the Expiation of Offences Act 1996 (SA) to be prosecuted.
It is a defence (the unlawful use defence) to a prosecution for that offence if the defendant proves that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of commission of the alleged principal offence.
Extension of time to appeal
The notice of appeal was filed on 25 August 2021. Under rule 104G of the Supreme Court Criminal Rules 2014 (SA), an appeal is required to be filed within 21 days of the decision subject of the appeal. The notice of appeal was filed four days late.
The Council initially opposed an extension of time because no evidence was adduced to explain the delay. The Council did not identify any prejudice as a result of the appeal being instituted four days late other than the obvious (but legally irrelevant) prejudice that without an extension of time the decision of the Judge is not subject to appeal.
After the initial hearing of the appeal, Mr Frech filed an affidavit by Adrian Hart, a senior paralegal at Old Port Chambers, deposing to the fact that the notice of appeal was lodged for filing within time on 20 August 2021 but on 24 August 2021 the Supreme Court registry sent an email stating that it had been filed using a form 38 when it should have been filed using a form 37A. On 25 August 2021 Mr Hart filed the notice of appeal in the correct form 37A.
The Council makes no further submissions on the issue of extension of time. The explanation for the delay is satisfactory. There is no relevant prejudice. I extend the time to appeal to 25 August 2021.
Leave to amend grounds of appeal
The original notice of appeal contained two grounds of appeal, namely that the Judge erred in finding that the vehicle observed by Ms Thomason was the vehicle that belonged to Mr Frech and erred in finding that Mr Frech admitted that the vehicle the subject of the charge was his vehicle.
Before the initial hearing of the appeal, Mr Frech filed an amended notice of appeal (the second notice of appeal) containing a single ground that the verdict is unreasonable and not supported by the evidence with 11 particulars. However, some of the particulars alleged a failure to provide adequate reasons and one particular complained that the Judge erred in permitting the prosecution to split its case and tender further evidence on the defence case and in address. In addition, Mr Frech’s written submissions on appeal filed at the same time advanced three grounds of appeal: inadequate reasons, unreasonable verdict and split case.
At the initial hearing of the appeal, I observed that Mr Frech appeared to be advancing three separate grounds of appeal. He then sought leave to file a further amended notice of appeal, which was subsequently produced and contained three grounds of appeal, each with particulars (the third notice of appeal). The three grounds were inadequate reasons, unreasonable verdict and split case. It was agreed that the appeal hearing should proceed at the initial hearing based on Mr Frech’s written submissions and then be adjourned for any further submissions in light of the third notice of appeal (including whether leave should be granted to file it).
At the adjourned hearing of the appeal, the Council submitted that leave to amend the grounds of appeal should be refused because no evidence was adduced to explain why the amendments were made and why the omitted grounds of appeal were not included in the original notice of appeal. In respect of grounds 1 and 2, the Council made no further submission in relation to leave to amend.
Although no evidence was adduced, it is evident that the original grounds of appeal did not properly encompass the grounds on which Mr Frech wished to appeal and which he advanced on the hearings of the appeal. The Council has not been prejudiced by the iterative manner in which the grounds of appeal have been formulated other than in respect of costs (which can be addressed in due course). I grant leave to amend in respect of grounds 1 and 2 contained in the third notice of appeal.
The Council opposed the amendment to introduce ground 3 on the additional ground that it constitutes an abuse of process. I defer consideration of leave to amend to introduce ground 3 until addressing ground 3.
After reserving judgment, I invited further submissions from the parties on several issues (including whether all of Mr Frech’s submissions were covered by his grounds of appeal) which had not been sufficiently addressed at the hearings of the appeal.
Mr Frech then sought leave to amend his grounds of appeal in two respects in terms of a further amended notice of appeal (the fourth notice of appeal). He sought leave to add:
·an additional particular to ground 1 (unreasonable verdict) that the Judge erred in failing to outline why or how he discounted the photographic evidence suggesting the cigarette was already on the roadway before allegedly being “seen” to be thrown there (particular 1(g));
·an additional particular to ground 2 (inadequate reasons) that the Judge’s reasons were inadequate in that evidence of the defendant and his witnesses that the car was not used by anyone else was not taken into account (particular 2(f))).
In relation to particular 1(g), the Council does not oppose leave to amend but contends that the late application to amend should be reflected in an appropriate order for costs. The additional particular to ground 1 is in fact identical to an existing particular to ground 2. Further, it is not ordinarily necessary to provide particulars of an unreasonable verdict ground of appeal because, on appeal, the court is required in any event to review the whole of the evidence to determine whether it is capable of supporting the verdict. For these reasons, I grant leave to amend to add the additional particular to ground 1.
I observe that the amendment to introduce the additional particular to ground 1 is inelegantly expressed because it has been copied from a different context (inadequate reasons). In substance it raises the issue of the adequacy of the evidence to support a guilty verdict given the photographic evidence allegedly showing a cigarette butt on the road before Ms Thomason drove past the Mercedes and thought she saw a cigarette butt being discarded through the open driver’s side window.
In relation to particular 2(f), the Council does not oppose leave to amend on the ground of lateness (although it foreshadows that it will raise lateness on the issue of costs). The Council opposes leave to amend on the ground that it is inconsistent with the way in which Mr Frech put and closed his case at trial and he should not be permitted to raise a new argument on appeal except in exceptional circumstances and there are not exceptional circumstances. The Council would have made the same contention if this ground had been included in the original notice of appeal. I defer consideration of leave to appeal until addressing ground 2(f).
Prosecution splitting of case
I first address ground 3. This ground is that the Judge erred in permitting the prosecution to split its case and to tender further evidence on the defence case and in address.
Mr Frech complains that the hypothesis that the principal offender was Ms Tassone was not the subject of the prosecution opening,[7] led in chief, put to Ms Thomason[8] or otherwise advanced during the prosecution case.[9] Rather, it was advanced during the defence case[10] by cross-examination of Mr Frech[11] and by the tendering of exhibits I15, I18 and I19,[12] which had not been put to Ms Thomason,[13] and which ought to have been tendered during the prosecution case.[14]
[7] Particular (c).
[8] Particular (a).
[9] Particular (g).
[10] Particular (c).
[11] Particular (d).
[12] Particular (e).
[13] Particular (f).
[14] Particular (g).
Mr Frech complains that this conduct by the prosecution amounted to trial by ambush and necessitated the defence calling rebuttal evidence from witnesses who gave evidence after him and led to the necessity to change counsel mid-trial which caused prejudice to him.
Exhibit I19 comprised a photo of Mr Frech’s Toyota/Lexus Soarer which his mother identified as one of Mr Frech’s vehicles that he brought down to her house at times. It was directly relevant to Mr Frech’s evidence that he believed that it was the Mercedes that he had at his parent’s house on 8 April 2019. Whether or not it had an indirect relevance to the possibility that Ms Tassone drove the Mercedes on 8 April 2019, its tender was justified by Mr Frech’s evidence.
Exhibits I15 and I18 comprised photos on Facebook of Ms Tassone taken in February 2019 and December 2019. They were relevant to whether Ms Tassone matched Ms Thomason’s description of the female driver of the Mercedes.
Mr Frech’s third ground of appeal is misconceived. First, the Council made no submission in closing address, and the Judge made no finding, that Ms Tassone drove the Mercedes on 8 April 2019. Even if the prosecution had split its case, it had no consequence in terms of the verdict.
Secondly, the prosecution did not split its case. It did not adduce, or seek to adduce, evidence after the close of the defence case. Cross-examining a defence witness does not entail splitting a case, nor does tendering a document through a defence witness.
Thirdly, the defence case included on any view that the offending Mercedes was not Mr Frech’s Mercedes. The prosecution was entitled to cross-examine defence witnesses and tender documents through defence witnesses to rebut the vehicle identity defence.
Fourthly, no objection was made to the questions asked in cross-examination of Mr Frech or the other defence witnesses or to the admission of exhibits I15 or I18 on this ground (or any other ground). Although an objection was initially made to the receipt of exhibit I19, it was not on this ground (but a query as to relevance) and was not ultimately pursued. In the absence of a contention on appeal of incompetence of counsel (which is not made), Mr Frech is bound by the manner in which his counsel conducted his case at trial.
Given my conclusion, it is not strictly necessary to consider the Council’s submission that the inclusion of ground 3 comprises an abuse of process. I address it briefly.
The Council’s first contention is that, during the initial hearing of the appeal, Mr Frech abandoned this ground and then at the adjourned hearing sought to reinstate it and this amounts to an abuse of process. I reject that contention. This ground was not abandoned at the initial hearing. Counsel for Mr Frech made substantive submissions in support of the ground. When difficulties were identified in relation to it, counsel said that he would not trouble the Court further. This did not amount to an abandonment. In any event, if it were abandoned, there was no abuse of process involved in reinstating it while the appeal was still being heard.
The Council’s second contention is that this ground could make no difference to the result and it is therefore an abuse of process for Mr Frech to rely on it. I accept, for the reasons given above, that this ground can make no difference to the result. That is a reason to find that the ground is not established but it does not render the ground an abuse of process.
The Council’s third contention is that ground 3 involves a new case on appeal. Insofar as there was no objection on this ground to the impugned cross-examination or receipt of the impugned exhibits, I have concluded that Mr Frech is bound by the manner in which his counsel conducted the trial. However, it cannot be said that this point is entirely a new case raised on appeal because the written submissions on appeal are largely a reproduction of Mr Frech’s written closing address at trial. The raising of ground 3 is not an abuse of process.
This ground of appeal is not established.
Inadequate reasons
I next address ground 2. This ground is that the Judge’s reasons for verdict are inadequate in several respects. One respect relates to the cigarette butt issue. The remaining respects relate to the vehicle identity issue.
The law in relation to the obligation to give adequate reasons is well settled. In DL v The Queen[15] Kiefel CJ, Keane, Edelman JJ said:
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular [quoting from the judgment of Heydon J in AK v Western Australia at [85]]:
"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."[16]
[15] [2018] HCA 26, (2018) 266 CLR 1.
[16] At [33]. (Footnotes omitted).
In Macks v Viscariello[17] Lovell J, Corboy and Slattery AJJ said:
Reasons are not necessarily adequate because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all of the relevant facts, and where necessary, an explanation as to how the “inconvenient” facts can be put to one side or given little weight. As has often been said a fact does not cease to exist because it is ignored.[18]
[17] [2017] SASCFC 172, (2017) 130 SASR 1 at [523].
[18] At [523].
The cigarette butt issue
Mr Frech contends that the Judge’s reasons are inadequate in relation to the cigarette butt issue because they fail to outline why or how the Court discounted the photographic evidence suggesting that the cigarette was already on the roadway before allegedly being “seen” to be thrown there (ground 2(e)).[19]
[19] Particular (e).
Mr Frech refers to the electronic version of photograph 1 (bearing the timestamp 11.58 am) contained in exhibit D22, in which he contends a cigarette butt can be seen on the road. That photograph was taken before Ms Thomason drove around the block and returned and then, on her account, saw the female driver flick a cigarette butt out of the window. Mr Frech contends that this is or may well be the same cigarette as was seen by Ms Thomason when she returned to the vicinity after driving around the block and which she photographed in photographs 3 and 4. Mr Frech contends that the existence of the cigarette butt in photograph 1 gives rise to a reasonable doubt whether Ms Thomason was mistaken in believing that she saw a cigarette butt being flicked out of the window as opposed to ash being flicked off the butt.
Mr Frech made the same contention in his written closing address to the Judge at trial. It was the major plank of his argument that discarding of a cigarette by the driver of the offending Mercedes had not been proved beyond reasonable doubt.
In cross-examination, Ms Thomason was shown hard copy photograph 1 in exhibit I3 and it was put to her that an object visible in the photograph was a cigarette butt and was the same cigarette butt depicted in photograph 5. She said that she could not tell from the photograph what the object was but accepted that it may have been a cigarette butt. The electronic version of photograph 1 shows the object much more clearly and the object depicted in that version is more likely to be a cigarette butt than the object depicted in the hard copy version.
In the circumstances, the Judge was obliged to address the evidence of an ostensible cigarette butt in photographs 1 and 2 and Mr Frech’s contention concerning reasonable doubt in this respect.
The Judge’s summary of the evidence and reasons for being satisfied beyond reasonable doubt that the driver of the offending Mercedes discarded a cigarette butt are set out at [91] above.
The Judge referred at paragraph 22 of his reasons to the postulation by Mr Frech’s counsel in his Closing Address that Ms Thomason may have been innocently deceived by the combination of a butt already on the road and the flicking motion of the driver of the Mercedes disposing of ash. However, in the course of giving his reasons for being satisfied beyond reasonable doubt that the driver discarded a cigarette butt, the Judge made no mention of photographs 1 or 2.
It cannot be discerned from the Judge’s reasons whether the Judge was referring to photographs 1 and 2, or the digital version of photographs 1 and 2, when referring to counsel’s postulation. On the face of the reasons for judgment, the Judge may have been referring to the abstract or conceptual possibility of a cigarette butt already been on the road.
It is true, as the Council points out, that at the end of the sentence referring to counsel’s postulation, the Judge appended a footnote referring to the relevant section of counsel’s address. However, counsel in that section conceded that a cigarette butt was not visible in the hard copy version of photograph 1 but contended that it was visible in the digital version. Elsewhere in his reasons for judgment, the Judge said that, when he viewed the digital versions of the photographs, subject to a single exception, the poor quality and clarity apparent in the printed exhibits was not improved. That single exception was the number plates.
The Judge did not at paragraph 22 or elsewhere in his reasons refer to photographs 1 or 2 in the context of the cigarette butt issue, did not refer to the question whether an object in those photographs comprised a cigarette butt and did not refer to the question whether a cigarette butt depicted in those photographs was the same cigarette butt depicted in photographs 3 and 4 that Ms Thomason identified as the offending cigarette butt. In the circumstances, it simply cannot be known what reasoning the Judge adopted in relation to Mr Frech’s counsel’s postulation.
I address below the competing submissions made by counsel on appeal as to what is depicted in the digital version of photographs 1 and 2. The Council contends that the object depicted is a “smudgy blur” and, if it is a cigarette butt, appears to be closer to the centre of the road in one dimension and closer to the bus in the other dimension than the cigarette butt depicted in photographs 3 and 4. This exemplifies why the Judge’s reasons are inadequate.
It cannot be discerned from the Judge’s reasons whether the Judge considered that the object depicted in photographs 1 and 2 was just a smudgy blur; whether the Judge examined the hard copy or the digital copy of those photographs to attempt to discern what was depicted in them; or whether the Judge considered that it was not the cigarette butt shown in photographs 3 and 4 because it was in a different position on the road.
Ground 2(e) is established. This does not mean that a reasonable doubt necessarily arose (this is a different issue addressed below) but it does mean that the Judge’s reasons are inadequate.
The vehicle identity issue
Mr Frech contends that the Judge’s reasons are inadequate in relation to the vehicle identity issue in six respects:
·not taking into account the evidence of Mr Frech and his witnesses that his Mercedes was not used by anyone else;[20]
·how Mr Frech’s statement in his evidence that the two vehicles were similar comprised an admission that they were the same;[21]
·why the differences in badging between the vehicles depicted in Ms Thomason’s photographs of the offending Mercedes and Mr Frech’s photographs of his Mercedes were not probative that they were different vehicles;[22]
·how the number plates were identical and mounted identically;[23]
·how Mr Frech’s statement in his statutory declaration that he was the owner of vehicle registration number S173BMF at the time was probative in identifying the offending Mercedes;[24] and
·why reliance was placed on the hard copies of photographs 1, 2 and 3 suggesting that the offending Mercedes was blue rather than on the digital copies suggesting that it was black..[25]
Evidence about use of Mr Frech’s vehicle on the day
[20] Ground 2(f).
[21] Ground 2(c).
[22] Ground 2(c). Although not explicitly included in ground 2(c), the Council concedes that it is encompassed in ground (c).
[23] Ground 2(d).
[24] Ground 2(a).
[25] Ground 2(b).
Mr Frech contends that the reasons are inadequate because they do not address or take into account the evidence that no one else drove his vehicle or had permission to drive it or his evidence about the location of his vehicle on 8 April 2019.[26]
Leave to amend
[26] Ground 2(f).
As observed above, the Council opposes Mr Frech’s application for leave to amend to add this ground. The Council contends that this ground is inconsistent with the way in which Mr Frech put and closed his case at trial.
The Council contends that Mr Frech should not be permitted to raise a new argument on appeal except in exceptional circumstances (citing Crampton v The Queen[27]) and there are not exceptional circumstances. It contends that a defendant is bound by forensic decision’s made by his counsel at trial (citing Hamilton v The Queen[28]).
[27] [2000] HCA 60, (2000) 206 CLR 161 at [4]-[21] per Gleeson CJ.
[28] [2021] HCA 33, (2021) 95 ALJR 894 at [54]-[57] per Kiefel CJ, Keane and Stewart JJ.
The Council submits that the contention the subject of this ground could have been answered by the calling of evidence and the case would have evolved differently if these contentions had been made.
The Council refers to the fact that, as set out at [82] above, at the beginning of cross-examination of Ms Tassone, the prosecutor informed the Court that the Council had been informed by the defence that the unlawful use defence had been abandoned. The Council contends that abandonment of the unlawful use defence entailed the renunciation of any reliance on the evidence of Mr Frech, Ms Tassone or Mr Frech’s mother concerning the location of Mr Frech’s Mercedes on 8 April 2019, including insofar as it was relevant to the vehicle identity issue.
I reject that contention. Defence counsel had made it clear (including in the passages referred to in the section commencing at [77] above) before abandonment of the unlawful use defence that Mr Frech was advancing a defence that it was not his vehicle that was seen by Ms Thomason on 8 April 2019 (the vehicle identity defence[29]) and that the evidence of Ms Tassone (amongst others) was being relied upon in support of that defence. The mere fact that the same evidence may have supported an alternative defence, being the unlawful use defence, does not entail that the abandonment of the unlawful use defence involved the renunciation of any reliance on that evidence for the purpose of the vehicle identity defence.
[29] I use this term for ease of reference, recognising that it was not a defence on which Mr Frech bore the onus of proof but an element of the offence on which the prosecution bore the onus of proof.
Nothing was said by defence counsel when the Court was informed of the abandonment of the unlawful use defence or at any time thereafter (or indeed before) up to the close of the defence case that indicated renunciation of reliance on the evidence about the location of Mr Frech’s Mercedes on the relevant day for the purpose of the vehicle identity defence.
On appeal, the Council contends that, if the prosecutor had understood that this evidence was not being renounced, he would have cross-examined Ms Tassone further on her conversations with Mr Frech in her capacity as his lawyer while she was still acting for him and in relation to the location of the vehicle. If so, that understanding was not justified by anything said or not said by defence counsel during the trial.
The Council also contends that Mr Frech’s written closing address (the Closing Address) indicates a renunciation of evidence that had been led from him, his mother and Ms Tassone concerning the location of his Mercedes on the relevant day. Counsel points to a section of the Closing Address entitled “S 26(7) Defence”. That section stated at paragraph 13.1 that it was appropriate to “briefly address the abandoned s 26(7) defence”. The Council relies on the last paragraph of that section at paragraph 13.10, which reads:
As envisaged, there was no need to call any of Mr Frech’s family in pursuit of defending the case on the basis of having the wrong car.
That section needs to be understood in the context of the previous paragraphs in that section and the fact that the section was addressing the abandoned unlawful use defence. The paragraph immediately before the last paragraph at 13.9 reads:
The [unlawful use] defence was abandoned, only as, in the view of the writer, while it remained factually applicable (given that the same defence also applied to the actus reus), if P could not prove beyond reasonable doubt that the offending vehicle was D’s, then the need for counsel to prove on balance that the vehicle was not D’s would simply not arise.
Although both paragraphs are inelegantly expressed, that paragraph made it clear that Mr Frech was relying for the purpose of the vehicle identity defence on the same evidence on which he had previously also relied for the unlawful use defence.
In addition, in an earlier section of the Closing Address entitled “A Fanciful theory? Dolan and Proof beyond Reasonable Doubt”, reference was made to Dolan (an Authorised Officer) v Voutieros.[30]
[30] [2019] SAERDC 8.
In Dolan, Mr Voutieros was charged with being the owner of a Holden sedan registration number XAW724, from which a cigarette butt was disposed onto the road at the intersection of Ashwin Parade and South Road, Torrensville at 4.00 pm on 28 February 2018. A lay witness, Ms Esselbach, gave evidence for the prosecution that she saw a cigarette butt being thrown onto the road from a Holden sedan bearing that registration number, which she recorded. Mr Voutieros was the registered owner of a Holden sedan with that registration number.
Mr Voutieros gave evidence that he did not permit other persons to drive his vehicle and no person matching Ms Esselbach’s description drove his vehicle on that day. He worked at Port Adelaide, normally finished work at 4.15 pm and did not use South Road Torrensville to drive home. Judge Costello made favourable credit and reliability findings in relation to Mr Voutieros’ evidence and concluded that the case was not proved beyond reasonable doubt and Ms Esselbach must have been mistaken about the number plate.
The earlier section of Mr Frech’s Closing Address included the following paragraphs:
[In Dolan] the defendant successfully raised a reasonable doubt that his vehicle was the vehicle used in the offending despite his numberplate matching a same model vehicle with the number plate being hand recorded by the witness.
The following details did not match:
1) The defendant’s vehicle was purple. The offending vehicle was described as “dark”.
2)The defendant stated he had never loaned his car to anyone else, and the person driving the offending car was a man with long hair and tattoos (clearly not the defendant).
3)The defendant (and he states, his car) were elsewhere at the time of the offending.
All of the above features apply in the current scenario.
It is clear from these passages that Mr Frech was relying upon the evidence adduced in the defence case about the location of his Mercedes on the date in question being inconsistent with its being at Port Adelaide.
I reject the Council’s grounds of opposition. I grant leave to amend to introduce this ground.
The substantive ground
There is a substantial overlap between the issue of leave to amend addressed in the previous section and the substantive ground. Under the substantive ground, the Council contends that the Judge was not obliged to refer to or take into account the evidence of Mr Frech, his mother or Ms Tassone about the location of the Mercedes on the date in question because the defence renounced any reliance on that evidence in relation to the vehicle identity issue. For the reasons given above, I reject that contention.
The combined evidence of Mr Frech, Ms Tassone and Mrs Frech was to the effect that only Mr Frech drove his Mercedes; his Mercedes was under his control at his parents’ house at Happy Valley in the first half of April 2019; he went to sleep with the only set of keys to the vehicle by his bedside in the morning and woke up in the afternoon with the keys still present by his bedside; he did not give permission to any person to drive the vehicle on that day; and there were no blonde females matching the description of the driver of the offending Mercedes staying at his parents’ house on the day in question.
If this evidence were accepted as being honest and reliable, it comprised a substantial body of evidence that on its face was inconsistent with the offending Mercedes being Mr Frech’s Mercedes (unless an unknown person took the vehicle without Mr Frech’s knowledge, drove it to Port Adelaide and returned it while he was sleeping).
Given this evidence, it was incumbent on the Judge to address it and take it into account in determining whether the charge have been proved beyond reasonable doubt. For that purpose, it was necessary for the Judge to make credit and reliability findings in relation to the evidence of Mr Frech (and also, but to a lesser extent, Ms Tassone and Mrs Frech).
The Judge in his reasons did not take this body of evidence into account, nor did the Judge make a general credit or reliability finding in relation to the evidence of Mr Frech (or Ms Tassone or Mrs Frech) or specific credit and reliability findings in relation to their evidence about the location of the Mercedes on that day.
The Judge made two references to the credibility and reliability of Mr Frech’s evidence. At paragraph 35, the Judge said (emphasis added):
I have assessed the photographs tendered as part of the whole of the evidence in this case. That evidence includes Mr Frech’s own assessment of whether the car photographed by Ms Thomason was his. In that respect, I consider Mr Frech to be a most credible and reliable witness in identifying his own car.
The premise of Mr Frech’s contention is that the Judge had regard only to the hard copy photographs and not to their electronic versions. However, in the second paragraph extracted above, the Judge said that he viewed the photographs electronically on screen and enlarged them on screen, being exhibit D22, and had regard to them. It is clear from the Judge’s reasons that he considered that in both the hard copy and electronic versions the photographs of the rear of the Mercedes depicted a dark-coloured vehicle parked in the shade and the front of the Mercedes depicted a dark blue car.
The fact that the Judge referred in the footnotes to exhibits I3 and I4 does not negate the Judge’s statement that he had regard to the electronic photographs but was merely the Judge’s method of identifying the photographs in question (given that exhibit D22 contained all five photographs). Having viewed the hard copy and electronic versions of the photographs, it was open to the Judge to find, having regard to both the hard copy and electronic versions of photographs 1 and 2, that those photographs depicted a dark blue vehicle.
The Judge’s reasons were not inadequate in this respect.
Statutory declaration
Mr Frech contends that the Judge’s reasons are inadequate because they fail to establish how the context and fact of his statutory declaration, in which he said that he was the owner of vehicle registration number S173BMF at the time of the alleged offence, was probative in proof of identifying the offending Mercedes.[38]
[38] Ground 2(a).
Mr Frech’s contention refers to the following paragraph from the Judge’s reasons:
I also consider it significant that Mr Frech, given the opportunity by his counsel to deny the vehicle photographed by Ms Thomason was his car, did not do so. His evidence was consistent with the statutory declaration he had made earlier, after he had viewed, at the offices of the Council, the photos of the Mercedes taken by Ms Thomason. I give considerable weight to the context and fact of his declaration that, ‘I was the owner of vehicle registration S173 BMF at the time of the alleged offence’.
The content of Mr Frech’s statutory declaration is set out at [29] above and its context is set out at [18] to [28] above.
It is not suggested in the statutory declaration (or in any of Mr Frech’s written communications with the Council before issue of the information) that the offending Mercedes the subject of the expiation notice is not his Mercedes. His statement that he was the owner of vehicle registration S173 BMF at the time of the alleged offence was capable of being regarded by the Judge as premised on his vehicle being the offending Mercedes.
Mr Frech went on to state that he was unable to provide a name of the driver and referred to his Submission for Review and 16 May 2019 email, which were also capable of being regarded by the Judge as premised on his being the owner of the offending Mercedes and the issue being the identity of the driver.
The reasons were not inadequate because they did not spell these matters out.
Conclusion
The Judge’s reasons are inadequate in several respects. This entails that the verdict of guilty must be set aside and, subject to consideration of ground 1, the matter remitted to the Environment Court for a new trial.
Unreasonable verdict
I turn to ground 1. This ground is that the verdict is unreasonable and not supported by the evidence.
In M v The Queen[39] Mason CJ, Deane, Dawson and Toohey JJ said:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, ... The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
...
…To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate 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.[40]
[39] (1994) 181 CLR 487.
[40] At 492-495. (Footnotes omitted)
In Fox v Percy[41] Gleeson CJ, Gummow and Kirby JJ said:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
...
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. …
...However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.[42]
[41] [2003] HCA 22, (2003) 214 CLR 118.
[42] At [25]-[27]. (Footnotes omitted)
Cigarette butt issue
The last particular of ground 1 is, as observed above, inelegantly expressed. However, it raises the issue whether the evidence was capable of supporting a finding beyond reasonable doubt that the driver of the offending Mercedes discarded a cigarette butt out of the window in circumstances in which a cigarette butt can be seen on the road in Ms Thomason’s photographs 1 and 2 and Mr Frech contends that there was a reasonable possibility that this was the same butt as the offending butt depicted in photographs 3, 4 and 5.
There is an object depicted in Ms Thomason’s photograph 1 which appears on the balance of probabilities (although it is not possible to be certain) to be a cigarette butt (the photo 1 butt). Mr Frech contends that there is a reasonable possibility that this was the offending butt.
The Council contends that the position of the photo 1 butt by reference to the right-hand side and front alignment of the offending Mercedes and the right-hand side of the bus is different to the position of the offending butt by reference to those alignments as depicted in photographs 3 and 4.
I accept that, on the face of the photographs, the photo 1 butt appears to be closer to the centre of the road and closer to the rear of the bus than the offending butt depicted in photographs 3 and 4. However, due to parallax and other aspects of photographs being two dimensional, it is not possible to be at all definitive.
The existence and position of the photo 1 butt in photograph 1 needs to be taken into account in conjunction with the evidence of Ms Thomason about what she observed when she drove past the offending Mercedes. I do not have the advantage of having heard and seen Ms Thomason give evidence.
It was open to the Judge, provided that he gave proper consideration to the questions raised by the photo 1 butt in photograph 1, to be satisfied beyond reasonable doubt that the driver of the Mercedes discarded a cigarette butt out of the window.
Vehicle identity issue
The first particular of ground 1 is that it was not open to the Judge to find beyond reasonable doubt that the offending Mercedes was the same blue Mercedes with registration S173BMF that belonged to Mr Frech.
Five particulars are then given in respect of the vehicle identity issue. These are not strictly particulars because the question is whether, on a comprehensive review of the evidence, the verdict is unreasonable or incapable of being supported having regard to the evidence assessed holistically in relation to the vehicle identity issue.
Some of the particulars contend that the Judge gave insufficient weight or undue weight to a particular item of evidence or fact. This tends to confuse a ground of appeal of inadequate reasons (or inadequate reasoning) with a ground of appeal that a verdict is unreasonable or incapable of being supported having regard to the evidence.
In R v Sexton[43] Kourakis CJ (with whom Peek and Nicholson JJ agreed) said:
It is important to observe the distinction between a complaint of inadequate reasons and a complaint that a judge’s reasons do not support the verdict returned. The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict. In the context of a criminal appeal against conviction pursuant to s 353 of the CLCA, the latter complaint may be an appeal on the ground that the verdict was unreasonable or not supported by the evidence, in which case it will result in an acquittal. Alternatively it may be an appeal on the ground that there has been a miscarriage of justice because the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. In such a case, there will ordinarily be an order for a retrial. These grounds might be made good, or shown to be unfounded, by reference to matters of evidence or law which are not dealt with in the judge’s reasons.[44]
[43] [2018] SASCFC 28.
[44] At [25]-[27]. (Footnotes omitted).
The distinction to be drawn is between a defect in the reasoning (because the reasons or reasoning are inadequate or defective), which will ordinarily lead on appeal to an order for retrial, and a deficiency in the evidence such that it is incapable of supporting satisfaction of guilt beyond reasonable doubt, which will ordinarily lead on appeal to an acquittal.
It will be a rare case where it can be concluded that a judge’s reasons or reasoning are defective because too much or too little weight was given to a particular item of evidence or fact, although extreme cases might be imagined in which that would be so.
When assessing whether a verdict is unreasonable or incapable of being supported having regard to the evidence, an appellate court is primarily concerned with assessing whether the evidence, considered as a whole, is capable of establishing guilt beyond reasonable doubt. For this purpose, it will be for the appellate court to determine the weight that could be placed on a particular item of evidence or fact.
It may be that a trial judge has erroneously found a fact or taken into account an irrelevant fact or overlooked a relevant fact but it is difficult to imagine a case in which a verdict will be unreasonable or incapable of being supported having regard to the evidence because a trial judge has given too much or too little weight to a particular item of evidence or fact.
Prosecution case
The prosecution evidence established that the offending vehicle was a mid-size four door Mercedes sedan of a dark colour bearing number plates S173BMF. It established that Mr Frech was the registered owner of a mid-size four door Mercedes sedan of a dark colour bearing number plates S173BMF.
Absent other evidence, this evidence was capable of proving beyond reasonable doubt the prosecution case on the vehicle identity issue. The question is whether the other evidence adduced in the case must have given rise to a reasonable doubt, in other words a reasonable possibility that the offending Mercedes was not Mr Frech’s Mercedes.
There is an additional item of evidence on which the Judge relied which ought not to be taken into account as fortifying the prosecution case. The Judge relied on the fact that, in the photographs of the offending Mercedes and Mr Frech’s Mercedes, the rear number plate was mounted using a single bolt on each side in the outer of the three top holes and identically positioned in the recess below the boot. No evidence was adduced about how number plates are bolted to the recess below the boot of Mercedes sedans. It may well be, and indeed it is likely, that Mercedes includes bolt holes such that the location of attachment of the number plates is standard.
Nevertheless, the evidence adduced in the prosecution case was capable of proving the offence beyond reasonable doubt. I therefore turn to the other evidence adduced in the case.
Evidence of Mr Frech, Mrs Frech and Ms Tassone
Mr Frech gave evidence that in the first half of April 2019 he was working on the night shift on the Southern Expressway and staying at his parents’ house at Happy Valley. Business records tendered by him proved that he was working on the night shift on the night of 8-9 April 2019 and the following three nights. He gave evidence that, when working night shift, he slept during the day and he did so on 8 April 2019. This evidence was uncontroversial.
Mr Frech gave evidence that on the morning of 8 April 2019 his Mercedes was in the driveway, he placed his keys (which included the only key to his Mercedes) on the nightstand next to the bed, went to sleep and, when he awoke in the afternoon, the keys were still there and so was his Mercedes. He gave evidence that, as far as he was aware, no one else drove the Mercedes while he was asleep. He gave evidence that he did not give permission to anyone else to drive his Mercedes and in general he did not allow anyone else to drive his Mercedes.
Mrs Frech gave evidence describing other persons who were staying at their house at the time and there was no one staying there whose description was consistent with Ms Thomason’s description of the driver of the offending Mercedes.
Ms Tassone gave evidence that in April 2019 she drove either a Toyota sedan or a Rexton four-wheel-drive vehicle. She said that she never drove Mr Frech’s Mercedes because it had mechanical problems. She said that, when Mr Frech was working night shift on the Southern Expressway, he stayed at the house of his parents at Happy Valley. She said that she was not the driver of Mr Frech’s Mercedes on 8 April 2019, did not then smoke, did not wear jewellery (other than rings), did not wear a white blouse to work (but always wore a black blouse) and wore glasses when working.
If the evidence of Mr Frech, Mrs Frech and Ms Tassone is accepted as honest and reliable, it necessarily gives rise at least to a reasonable doubt (if not a probability) that the offending Mercedes was not Mr Frech’s Mercedes.
As observed above, the Judge did not make a general credit or reliability finding about the evidence of Mr Frech (or Mrs Frech and Ms Tassone) or refer in any detail to their evidence summarised above or make findings in relation to it. This entails that the Judge’s reasons are inadequate for the reasons explained above. However, it also entails that there is no basis to determine on appeal what credit or reliability findings the Judge would have made if he had addressed these topics.
It would have been open to the Judge not to accept Mr Frech’s evidence. If Mr Frech’s evidence is accepted, his conduct after receiving the letter and expiation notice from Ms Thomason is distinctly odd. He became aware of the allegation that his Mercedes was the offending vehicle some time before 23 April 2019 when he attended at the Council Office, which was within two weeks of 8 April 2019. If his evidence is accepted, he knew that his Mercedes was at his parents’ house at Happy Valley on the day of the alleged offence and he had given nobody permission to drive it. It may be expected that he would have raised this in his communications with the Council, including his statutory declaration.
Mr Frech gave evidence that, after he received the expiation notices, he did not ask his wife, mother or sister-in-law whether they had driven his car because he did not want to accuse anyone without having proof. This is also odd given his evidence about the location of the Mercedes.
Mr Frech’s conduct between April and June 2019 is difficult to understand in a manner that is consistent with his evidence. It was open to the Judge, having regard to that conduct, to reject Mr Frech’s evidence. Of course, the assessment of credibility and reliability is a matter for the trier of fact. On the other hand, the oddness of Mr Frech’s conduct did not compel rejection of his evidence.
Mr Frech contends that the Judge erred in giving undue weight to his admission in his statutory declaration that he was the owner of vehicle registration number S173BMF.[45] I address the statutory declaration as an aspect of Mr Frech’s conduct between April and June 2019 that appears to be odd given his evidence at trial as summarised in the previous paragraphs.
[45] Particular (c).
There is no suggestion in Mr Frech’s statutory declaration dated 3 June 2019 that the vehicle the subject of the expiation notice was not his Mercedes. His statement that he was the owner of vehicle registration S173 BMF at the time of the alleged offence appears to be premised on his vehicle being the offending Mercedes. He went on to state that he was unable to provide a name of the driver.
In his Submission for Review dated 25 April 2019 (extracted at [22] above), Mr Frech disputed that the car was parked as the brake lights of the car were displayed, disputed that the driver was smoking and disputed that he was the driver. He did not dispute that it was his vehicle that was photographed by the parking officer. If that were his belief, it is difficult to understand why he did not assert it in the Submission for Review. He sought withdrawal on the ground that the allegation was trifling and trivial in accordance with subsection 4(2) of the Expiation of Offences Act (1996). He did not seek withdrawal on the ground that the vehicle in question was not his vehicle.
In his 16 May 2019 email (extracted at [26] above), Mr Frech reiterated that the car was not parked or stopped, the driver was not smoking and he was not the driver. He said that he was not responsible for the driver’s actions. Again, he did not dispute that the vehicle was his vehicle. He offered to provide a statutory declaration verifying these matters, and his statutory declaration subsequently made on 3 June 2019 verified these matters by adopting what he had said in his Submission for Review and 16 May 2019 email.
Mr Frech gave evidence that he and Ms Tassone between them owned a Toyota/Lexus Soarer and a SsangYong Rexton as well as the Mercedes. He gave evidence that, when he was doing traffic control for Altus on the Southern Expressway, he drove the Mercedes down to his parents’ house. When asked in cross-examination if he was sure that he was not mistaken and took the Soarer or Rexton instead, he said “I do not think so, no”. When asked how he could sure, he said “Well, I did ask for this evidence a year ago”.
Although a theoretical possibility, on the evidence it was more likely than not that Mr Frech took the Mercedes to his parents’ house in April 2019. Even if he left the Mercedes home, on his evidence and that of Ms Tassone (who was living at home), the Mercedes was not driven while he was away.
The passage of Mr Frech’s evidence reproduced at [187] above is too equivocal to be relied on as an admission by him that the offending Mercedes was Mr Frech’s Mercedes. First, even at its highest, it could not comprise an admission of the objective fact that the two vehicles were the same because, on Mr Frech’s evidence, this is something that he did not and could not know. At its highest, it could only be an admission that Mr Frech believed that the two vehicles were the same, which would be of limited utility given that the ultimate issue was not what Mr Frech believed but the objective fact on the vehicle identity issue.
Secondly, Mr Frech’s initial response to the question was quite limited, confined to the statement that the offending Mercedes looked similar to his car. It was not that he believed that it was his car. Further, when asked to explain what he meant by similar, he said that it was blue and had the same number plates. To acknowledge that two vehicles share two characteristics is not to state that one believes that they are the same.
Thirdly, Mr Frech’s primary defence (and the only one disclosed to the Judge at trial up to that point) on the vehicle identity issue was that, while the vehicles looked similar, they were not in fact the same. In this circumstance, it is inherently unlikely that Mr Frech was giving evidence that he believed that they were in fact the same.
Fourthly, if Mr Frech intended to say that he believed that the vehicles were the same, it is quite odd that his initial response to the question was that they looked similar: it may be expected that he would simply have said that he believed that they were the same.
Fifthly, accepting that there was then a pause before Mr Frech said “yep”, this is equivocal and does not point clearly to the “yep” being a delayed ultimate affirmative response to the question whether he believed that it was his car as opposed to an affirmation of his statement that the two cars looked similar. I accept that the Judge had the advantage of hearing and seeing Mr Frech give this answer but overall my assessment is that his answer remained equivocal.
Nevertheless, as observed above, it was open to the Judge to reject Mr Frech’s evidence about the location of his Mercedes on 8 April 2019.
Asserted differences between the vehicles
Mr Frech contends that there were several differences between the offending Mercedes and his Mercedes to which the Judge gave insufficient weight, namely:
·major differences in the colour of his Mercedes when compared to the offending Mercedes;[46]
·major differences in the badging of his Mercedes when compared to the offending Mercedes;[47] and
·differences in the number plates and their method of attachment on his Mercedes when compared to the offending Mercedes.[48]
[46] Ground 1(d).
[47] Ground 1(d).
[48] Not a separate particular but encompassed in general the particular (a) of Ground 1(a).
In relation to colour, there is no dispute that the colour of Mr Frech’s Mercedes was dark blue.
The evidence about the colour of the offending Mercedes comprised the photographs taken by Ms Thomason, Ms Thomason’s evidence of her observation of the vehicle on 8 April 2019 and Mr Frech’s evidence reproduced at [187] above.
The photographic evidence is consistent with the offending Mercedes being dark blue. In photographs 1 and 2, the vehicle is entirely in shade cast by trees and/or buildings. The quality of the photographs (both hard copy and electronic) is relatively poor. The appearance of the vehicle is consistent with being black but it is also consistent with being dark blue.
In photograph 3, the vehicle appears to be in sunlight but it is diffuse sunlight through clouds rather than bright sunlight. The quality of the photographs (both hard copy and electronic) is again relatively poor. The hard copy photograph shows the vehicle as clearly dark blue. The electronic photograph shows the vehicle appearing closer to dark blue than black.
The appearance of colour of objects in photographs (both hard copy and electronic) can vary significantly from the appearance of colour to the human eye viewing the physical object itself and indeed perception of hues of colour of physical objects can vary between humans.
It was open to the Judge to regard the offending Mercedes depicted in Ms Thomason’s photographs as being dark blue.
Ms Thomason described the offending Mercedes as black in her letter to Mr Frech dated 8 April 2019 and in her statement written on 3 July 2019. However, in her Affidavit sworn on 21 January 2020 and in her evidence in chief, she described the vehicle as “a dark-coloured sedan”
In cross-examination Ms Thomason’s evidence included the following passage:
Q.Could you be mistaken about the colour.
A.It is possible. Cars come in quite a variety of colours. There are cars that I would see on my patrols that I would believe are silver that are listed as grey, that I would determine as silver not grey so it is possible.
In re-examination Ms Thomason’s evidence included the following passage:
Q.You were asked a lot of questions about black and blue and various colours and various photographs. I just want to ask you this about your experience: what's your experience with dark colours in different lights.
A.They can be quite subjective, dependent on the light, as I've stated, and I believe the image of the vehicle in the shade show that it does appear to be quite a dark - very dark colour, which at the time I took to be black, so I think there's a lot of variability.
It was open to the Judge to regard Ms Thomason’s observations and evidence as not compelling a finding that the offending Mercedes was black.
In the passage of his evidence in chief reproduced at [187] above, Mr Frech described the offending Mercedes depicted in Ms Thomason’s photographs as blue. I reject Mr Frech’s submission on appeal that his answer should be construed as merely saying that his Mercedes was blue and not that both vehicles were blue. In addition, during his communications with the Council after he viewed Ms Thomason’s photographs, Mr Frech did not assert that the offending Mercedes was black. The Judge was entitled to take this evidence into account on the issue of the colour of the offending Mercedes.
It was open, on the whole of the evidence in relation to the colour of the offending Mercedes, for the Judge to find that it was dark blue. Ultimately, although it was a matter that the Judge was required to consider and assess, it cannot be concluded that the Judge was precluded from being satisfied beyond reasonable doubt on the vehicle identity issue by reason of the evidence about the colour of the offending Mercedes.
In relation to badging, as observed above, it is clear from the digital versions of Ms Thomason’s photographs (and conceded by the Council) that the offending Mercedes did not have the Mercedes three pointed star, C200 or Kompressor badges on its rear.
Mr Frech gave the following evidence about photographs that he took of his Mercedes at about the time of the alleged offence:
Q.Looking at MFI D8 now produced to you, did you take these two photographs.
A.Yes, I did.
Q.Is this your vehicle.
A.Yes, it is.
Q.When were these photos taken.
A.I think it was in April or March.
Q.Do you have the date - where are these photos.
A.They're in my phone.
…
HIS HONOUR: I'm sorry, what were the dates of them? Did the witness give an answer?
MS TASSONE: He'd have to check, he believes it's about a month before 8 April. It was about a month before 8 April 2019.
HIS HONOUR: Is that evidence?
MR BILLINGTON: It's not evidence I heard.
…
HIS HONOUR
Q. Do you remember when you took those photos.
A. It was April or March.
…
Q. That was after the events that are the subject of these proceedings.
A. I think it was around the same time.
MS TASSONE: That's before. So this offence is 8 April 2019.
HIS HONOUR
Q. You're saying you took the photos before this incident.
A. Yes.
XN
Q. Why did you take these photos.
A. Because I was going to sell the car.
It is clear from this evidence that (notwithstanding his final answer to the Judge’s question) Mr Frech could not say whether the photos of his Mercedes were taken before or after 8 April 2019, despite prompting by his counsel.
On Mr Frech’s evidence, the photos were taken within a month before or after 8 April 2019. He said that the date was recorded in his phone but he was not asked in evidence in chief or cross-examination what that date was. Nor was he asked in evidence in chief or cross-examination about the badges on his Mercedes, including whether at any stage they were not present on his Mercedes.
There are two scenarios available on the evidence. First, Mr Frech took the photos of his Mercedes within a month before 8 April 2019 because he was in the process of selling it. On that scenario, it is possible that the badges were removed (by a thief or otherwise) after Mr Frech’s photos were taken and before 8 April 2019. Mr Frech did not give evidence in chief addressing the badges at all or negating their removal or absence at any point. On the other hand, nor was it put to him in cross-examination that the badges were not absent at any relevant time.
The alternative scenario is that Mr Frech took the photos of his Mercedes within a month after 8 April 2019 because he was in the process of selling it. On that scenario, it is possible that the badges had been removed (by a thief or otherwise) when Ms Thomason’s photos were taken on 8 April 2019 and Mr Frech replaced the badges before taking his photos. Mr Frech did not give evidence in chief addressing the badges at all or that he replaced badges before taking his photos. On the other hand, nor was it put to him in cross-examination that this did not occur.
It is unfortunate that evidence was not adduced from Mr Frech of the date when the photos were taken or concerning the presence or absence of the badges at relevant times or whether they were replaced at any time by Mr Frech. On the one hand, the difference between the vehicles was a circumstance being relied upon by Mr Frech and evidence ought to have been adduced from him in evidence in chief concerning these matters. If his evidence would have assisted his case, the only ready explanation for its not being adduced is incompetence of his counsel. On the other hand, the Council bore the ultimate onus of proof on the vehicle identity issue.
Ultimately, although it was a matter that the Judge was required to consider and assess (and the Judge’s reasons are inadequate in this respect), given the absence of evidence from Mr Frech concerning the badges, it cannot be concluded that the Judge was precluded from being satisfied beyond reasonable doubt on the vehicle identity issue by reason of the absence of badges on the offending Mercedes as at 8 April 2019.
In relation to the appearance and manner of affixing the rear number plates, Mr Frech’s contentions concerning five alleged differences between the vehicles depicted in the photographs are summarised at [209] and[212] above.
Ms Thomason’s photographs of the offending Mercedes are of poorer resolution and clarity than Mr Frech’s photographs of his Mercedes. There are limitations in discerning from photographs the sorts of differences in angle (of the letter A) and completeness (of the letter U) that are relied upon by Mr Frech. There are equal or greater limitations in discerning from two dimensional photographs the sorts of differences in alignment that are relied upon by Mr Frech.
Ultimately, although it was a matter that the Judge was required to consider and assess (and the Judge’s reasons were inadequate in this respect), it cannot be concluded that the Judge was precluded from being satisfied beyond reasonable doubt on the vehicle identity issue by reason of the appearance of the number plates on the offending Mercedes compared to those on Mr Frech’s Mercedes.
Mr Frech gave evidence that his car had tinted windows and a sunroof. However, it was not established by Ms Thomason’s evidence, and her photographs do not establish, that the offending Mercedes did not have tinted windows and a sunroof.
Considered as a whole, the asserted differences between the vehicles relied upon by Mr Frech did not compel a conclusion by the trier of fact that there was a reasonable possibility that the vehicles were not the same vehicle.
Defence case theory
The defence case theory at trial was that, because the offending Mercedes was not Mr Frech’s Mercedes, someone must have illegally affixed to the offending Mercedes number plates that did not belong to it but rather belonged to Mr Frech’s Mercedes.
In his Closing Address, Mr Frech submitted that it is common knowledge in South Australia, and judicial notice should be taken of the fact, that criminals create cloned number plates to place on their own cars or on stolen vehicles to avoid detection by the police. Mr Frech referred to and quoted from webpages on several websites, including those of Queensland Police, AAMI and Carsales.com.au which he said referred to this practice.
Mr Frech contends that the Judge erred in concluding that there was “simply no” evidence of cloned plates when this was a matter of community knowledge amenable to judicial notice.[49]
[49] Ground 1(f).
I reject Mr Frech’s contention. It may well be that criminals apply cloned number plates belonging to vehicles with similar characteristics to stolen or their own vehicles. However, if so, it is not a matter that is notorious or common knowledge in the general South Australian community. It is not a matter of which judicial notice would be taken. It was a matter on which Mr Frech should have adduced evidence at trial.
Conclusion
I have reviewed all of the evidence adduced at trial. Although the Judge was required and failed to address several issues, it cannot be said that having regard to the evidence it was not open to the Judge to be satisfied beyond reasonable doubt on the vehicle identity issue.
I have concluded above that it cannot be said that it was not open to the Judge to be satisfied beyond reasonable doubt on the cigarette butt issue.
The first ground of appeal is not established.
Conclusion
Leave to amend should be granted in respect of Mr Frech’s applications for leave to amend his grounds of appeal.
The first and third grounds of appeal are not established.
The second ground of appeal is established on several bases. It follows that the Judge’s finding of guilt and consequential orders must be set aside and the matter remitted to the Environment Court for a new trial.
I will make the following orders:
1Time to appeal extended to 25 August 2021.
2Leave granted to the appellant to amend his notice of appeal in terms of the last notice of appeal for which leave to appeal is sought.
3Appeal allowed.
4Finding of guilt by the Judge, and all consequential orders, set aside.
5Matter remitted to the Environment Court for a new trial.
I will hear the parties concerning costs and any other issues.
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