Gadd v Middleton - [2008] NTSC 3

Gadd v Middleton [2008] NTSC 3
PARTIES:GADD, ANDREW PHILLIP
v

MIDDLETON, TRACEY DALE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 54 of 2007 (20623957)
DELIVERED:  16 January 2008
HEARING DATES:  8 January 2008
JUDGMENT OF:  RILEY J
CATCHWORDS:

STEALING – Appeal against conviction – unsafe and unsatisfactory – insufficient reasons for decision – insufficient weight given to accomplice warning - corroboration

R v Barrow (2001) 2 Qd R 525; R v Danine (2004)145 A Crim R 278; Peach v Bird (2006) 17 NTLR 230; R v Pisano (1997) 2 VR 342; R v Stevenson (1978) 18 SASR 381, cited

Doney v The Queen (1990) 171 CLR 207; R v Harris (1992) SASC 3623; R v Lindsay (1977) 18 SASR 103; M v The Queen (1994) 181 CLR 487; Semple v Williams (1990) 156 LSJS 40, applied
REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent:  H Roberts
Solicitors:
Appellant:Pro bono
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0801
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gadd v Middleton [2008] NTSC 3

No JA 54/07 (20623957)
BETWEEN:

GADD, ANDREW PHILLIP

Plaintiff

AND:

MIDDLETON, TRACEY DALE

Defendant

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 16 January 2008)

On 12 October 2007, following a trial in the Court of Summary Jurisdiction at Darwin, the appellant was convicted of the offence of stealing. He was fined $2000. He now appeals against the conviction. There is no appeal against sentence.
The Crown case was that the appellant was employed by a security company and worked as a security guard at the Woolworths store situated at the corner of Smith and Knuckey streets in Darwin. It was alleged that on the night of 11 September 2007 the appellant and the principal Crown witness, Justin Lovett, agreed to steal alcohol from the store and did so. Mr Lovett, who was an employee of Woolworths, subsequently pleaded guilty to an offence of stealing and had been sentenced at the time he gave evidence against the appellant.
The case against the appellant relied heavily upon the evidence of Mr Lovett along with some footage from a security camera that, unbeknown to the appellant and Mr Lovett, had recently been installed in the bottle shop area. Mr Lovett told the Court that he and the appellant were working together on the night in question. They discussed the security arrangements in the bottle shop and jokingly agreed it would be easy to steal alcohol because there were no security cameras present. After a time “the joke turned into something serious” and they decided that they would steal alcohol because “no one would know”. Mr Lovett said that he put approximately six bottles of alcohol in two green bags and that the appellant then took them from the store without paying for them. Mr Lovett said he saw the appellant leave without paying for the alcohol and he allowed the appellant to do so.
Later in the evening the appellant and Mr Lovett agreed that the stealing had been “too easy to do so we just filled up a trolley”. They both picked bottles of alcohol and placed those into a trolley. Mr Lovett said he then went to the rear of the store for about 10 minutes “to do some extra work” and when he returned the trolley had gone. He assumed the alcohol had been removed pursuant to the plan entered into with the appellant which was to “remove the alcohol, put it in the boot of a car, done”. When the shift was complete, Mr Lovett met the appellant at the appellant’s car as previously arranged and the appellant drove Mr Lovett home. On arrival Mr Lovett took a number of bottles from the boot of the car into his room in the house. He recognised the bottles in the boot as being “from the store”. He said he took “eight maybe ten” bottles but, when shown a photograph taken in the course of the police search of his premises, he conceded that police had found 13 bottles at his home. Mr Lovett said that after the removal of his bottles there remained a similar number of bottles in the boot of the appellant’s car.
In cross-examination Mr Lovett agreed that he had not named the appellant when he was first interviewed by police. He told the police there was “another party” but did not name the appellant. He agreed he was subsequently informed by police that they had a video tape of the offending and he was “pretty sure” police told him that if he was prepared to give evidence against his co-offender he would receive a lighter sentence. He also said that he was “advised by my lawyer to confess”.
In the course of cross-examination it was put to Mr Lovett that he had told the appellant that staff members were getting large discounts because the store was closing down but that discounted stock was not to be scanned through the register. It was put to him that the appellant’s role was to assist in packing and taking the alcohol that Mr Lovett was entitled to take as a result of this arrangement and everything the appellant did on the night was pursuant to the instructions of Mr Lovett. It was also put to him that the total amount of alcohol taken was retained by Mr Lovett. All of those suggestions were denied by Mr Lovett.
It was conceded by the prosecution that no alcohol was found by police in the possession of the appellant.
The security video became an exhibit in the proceedings. As the learned Magistrate found, the video revealed the appellant taking a bag of alcohol over the counter from Mr Lovett and leaving through the security sensors without payment having been made. The video also revealed the appellant taking possession of a second bag of alcohol but did not show him leaving the store with that bag.
The grounds of appeal
The appellant relies upon five grounds of appeal with the first ground being that for various reasons the conviction was “unsafe and unsatisfactory”. It is appropriate to address the other grounds of appeal and come back to this ground. Those other grounds are that the learned Magistrate failed to give sufficient reasons for decision, placed insufficient weight on the accomplice warning, failed to give reasons for findings in relation to corroboration and “erred in her approach to the defendant not giving evidence”.
Corroboration
It is convenient to deal with the issue of corroboration first as it underpins the submissions made in relation to other grounds of appeal. It was submitted on behalf of the appellant that the learned Magistrate used the evidence of the videotape as corroboration of the evidence of Mr Lovett and that she erred in so doing because the evidence was “intractably neutral” and not capable of amounting to corroboration. The case for the appellant was that he was involved in an authorised activity in assisting Mr Lovett to remove the alcohol in accordance with an arrangement Mr Lovett had with management. It was submitted that the evidence from the video is not inconsistent with that explanation and therefore is “intractably neutral”. Reference was made to the observations of Phillips CJ in R v Pisano (1997) 2 VR 342.
In many circumstances independent evidence confirming a fact that is common ground can not be regarded as corroborative: R v Stevenson (1978) 18 SASR 381 at 399. However, the issue in this case is whether the appellant, by putting forward an innocent explanation not adopted by the witness, can deprive the evidence derived from the video of its prima facie corroborative effect. In R v Lindsay (1977) 18 SASR 103 at 122 Zelling J warned that “an accused person cannot, by a timely admission of facts which could otherwise amount to corroboration, deprive them of that quality by making an admission.” Similarly, in R v Harris (1992) SASC 3623 at [17] King CJ (with whom Olssen and Perry JJ agreed) said:
“The matters mentioned were not deprived of their potentially corroborative character by the fact that the appellant admitted them and gave in evidence explanations which, if accepted, would render them non-incriminating. Their potentially corroborative character derived from their tendency to establish that the appellant was a party to the possession of heroin for sale and, therefore, their tendency to confirm Simmons’ evidence to that effect. The weight of the evidence as corroboration was for the jury and would depend to a large extent upon the weight which they were prepared to attach to the appellant’s exculpatory explanations.”
See also: R v Barrow (2001) 2 Qd R 525 at 535 [29] and R v Danine (2004)145 A Crim R 278 at [14].
The evidence revealed by the video was that the appellant removed bottles of alcohol from the store without paying for them and did so in the presence of Mr Lovett. It also showed him taking possession of a second bag of alcohol at a later time. This evidence was independent testimony which was capable of implicating the appellant in a material particular by connecting or tending to connect him with the alleged crime of stealing. It was capable of supporting the story of Mr Lovett that the appellant was part of an arrangement to steal the alcohol. The suggestion of an innocent transaction put to Mr Lovett in cross examination did not necessarily mean that the video evidence was intractably neutral. The use to be made of the evidence was a matter for determination by the tribunal of fact being, in this case, the learned Magistrate.
As was observed by the High Court in Doney v The Queen (1990) 171 CLR 207 at 211:
“It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice.”
Accepting that to be so, it was a matter for her Honour to assess the evidence in the light of the case for the appellant as it was put to the witness. In that sense it became a jury question. The learned Magistrate did assess the video and concluded it provided “strong circumstantial evidence” which supported the version of events provided by Mr Lovett. I see no error on her part.
Failure to give reasons
The appellant submitted that the defence case, being that the removal of the alcohol from the store without payment was authorised, was put to Mr Lovett but was not addressed in the reasons of the learned Magistrate. It was submitted that the defence case was consistent with everything revealed in the video and because the learned Magistrate had reservations regarding the veracity of Mr Lovett “she was required to make a finding as to why she accepted as truthful Lovett’s denial of the defence case as put to him in cross-examination”.
In her reasons for decision, the learned Magistrate provided a detailed review of the evidence of Mr Lovett. She noted that she “must look at the reliability of Mr Lovett’s evidence” and must exercise caution before accepting his evidence. She expressed the view that there were areas of that evidence which brought into question his reliability. She discussed that evidence and then went on to draw support for her ultimate acceptance of his evidence from the video footage to which I have referred. She indicated that there was “strong circumstantial evidence supporting the finding of guilt”. In so approaching the matter, the learned Magistrate necessarily rejected the defence hypothesis in relation to which there was no direct evidence, only a suggestion put to, and rejected by, Mr Lovett. Her reasoning process was exposed. Having had regard to the warning she gave herself and having identified areas of concern regarding the veracity of Mr Lovett, she accepted his evidence on the central issues.
In this case, the reasons for decision were delivered shortly after the completion of the evidence. It was effectively an ex tempore decision. It is important to bear in mind the proper approach to ex tempore reasons as accurately described by Olsson J in Semple v Williams (1990) 156 LSJS 40 at [40]:
“It is necessary to take a broad view of (ex tempore reasons) and ascertain the essential thrust of the reasoning process applied, without being unduly critical of the precise modes of expression used or according them a degree of definitiveness which was never intended.”
See also Peach v Bird (2006) 17 NTLR 230.
This ground of appeal is not made out.
Accomplice warning
The appellant acknowledged that the learned Magistrate gave herself an appropriate warning as to the evidence of Mr Lovett who was correctly identified as an accomplice. His complaint was that she “cannot have properly acted on that warning”. Reference to the transcript reveals that her Honour did provide herself with an appropriate warning regarding the reliability of the evidence of Mr Lovett and that she reviewed his evidence identifying areas in which she found him not to be reliable. It is clear that in relation to the central thrust of his evidence, she was satisfied as to his reliability notwithstanding the warning she had given herself and the identified areas of concern. I see nothing wrong with her approach in this regard.
The failure of the defendant to give evidence
It was submitted on behalf of the appellant that the learned Magistrate proceeded on the basis that the appellant was required to give an explanation of the events “consistent with innocence”. Reference was made to some observations by the Magistrate that there was no evidence contrary to the version of events provided by Mr Lovett and, to some extent, supported by the video evidence. Those observations simply reflected the reality. She made them whilst rejecting one hypothesis put forward by counsel for the appellant. In my view, this submission does not reflect a fair reading of the reasons of her Honour. She expressly referred to the right of the appellant not to give evidence and there is no reason to suggest she acted other than in accordance with the recognised and well understood principles that flow from that right.
Unsafe and unsatisfactory
Finally, it was submitted on behalf of the appellant that the conviction was unsafe and unsatisfactory leading to a miscarriage of justice. I take this to be a submission that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. This ground of appeal necessitates the Court reviewing the whole of the evidence and determining whether “upon the whole of the evidence it was open to the (Magistrate) to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493. In support of this submission the appellant restated the evidence and the findings of her Honour and submitted that “on all of the evidence a reasonable Magistrate must have entertained a reasonable doubt as to the guilt of the appellant”.
I have undertaken the exercise of reviewing the whole of the evidence and have concluded that this was a strong Crown case. I have borne in mind the warnings which are appropriate to the evidence of Justin Lovett. Not only was he an accomplice but he also received an advantage for giving evidence. The evidence of Mr Lovett was, in relation to the central issues, straightforward. His evidence was not shaken in any significant way in cross examination. When interviewed by the police he advised that another person was involved in the offending but he did not immediately disclose the identity of that person. It was not until he was informed that the police had access to a security video and that it would be of benefit to Mr Lovett to cooperate that he named the appellant as his co-offender. There was no suggestion that any person other than the appellant was, or was in a position to have been, the co-offender. The security tape lends support to the evidence of Mr Lovett that the appellant was the co-offender. The hypothesis put to Mr Lovett on behalf of the appellant and rejected by him, was implausible involving, as it did, the idea of the unsupervised and apparently unrecorded removal of alcohol by a relatively junior employee from the premises at night and without payment being made. I do not experience any reasonable doubt as to the guilt of the appellant. I do not consider that “there is a significant possibility that an innocent person has been convicted”: M v The Queen (at 494).
The appeal is dismissed.

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