Glenn William James v Christina Butler (a pseudonym)
[2021] ACTMC 12
•15 October 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Glenn William James v Christina Butler (a pseudonym) |
Citation: | [2021] ACTMC 12 |
Hearing Date: | 1 October 2021 |
DecisionDate: | 15 October 2021 |
Before: | Special Magistrate Hopkins |
Decision: | A verdict of not guilty is entered. |
Catchwords: | CRIMINAL LAW – ADMISSIONS – whether asserted lies by the defendant are "Edwards lies" constituting evidence of consciousness of guilt – dishonestly ride motor vehicle without consent – whether fault elements of recklessness and dishonesty are proved |
Legislation Cited: | Criminal Code 2002 (ACT), s 318(2) |
Cases Cited: | Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 R v DM [2016] ACTSC 179 Charles v Greenup [2013] ACTSC 235 |
Parties: | Glenn William James (Informant) Christina Butler (a pseudonym) (Defendant) |
Representation: | Counsel I Coker (Crown) E West (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | CC 14542 of 2020 |
SPECIAL MAGISTRATE HOPKINS:
The defendant, Christina Butler (a pseudonym), pleaded not guilty to a charge that she did dishonestly ride in a motor vehicle, namely a red Mazda CX5, without consent on Monday 21 December 2020 pursuant to s 318(2) Criminal Code 2002 (ACT) (“the Criminal Code”). The matter proceeded to hearing before me on Friday 1 October 2021.
The factual issues to be resolved at hearing were limited and so the matter proceeded by way of tender of evidence with the only witness called being a young person who was the driver of the vehicle. He gave evidence under the protection of a certificate issued under s 128 Evidence Act 2011 (ACT).
Section 318(2) provides as follows:
A person commits an offence if—
(a)the person dishonestly drives or rides in or on a motor vehicle belonging to someone else; and
(b)the vehicle was dishonestly taken by someone without the consent of a person to whom it belongs.
The physical and fault elements for the offence, understood in the context of provisions of Part 2.2 of the Criminal Code, are as follows:
Physical:
i)That the defendant rode in a motor vehicle
ii)That the motor vehicle belonged to someone else
iii)That the motor vehicle was taken by someone without the consent of the person to whom it belonged
Fault:
i)That the defendant intended to ride in that motor vehicle
ii)That the defendant was reckless with respect to the circumstance that the motor vehicle belonged to someone else
iii)That the defendant was reckless with respect to the circumstance that the motor vehicle was taken by someone without the consent of the person to whom it belonged
iv)That riding in the vehicle was dishonest
a)according to the standards of ordinary people; and
b)known by the defendant to be dishonest according to the standards of ordinary people.
There was no dispute that the physical elements of the offence were established by the evidence tendered or presented. There was also no dispute that the defendant intended to ride in the motor vehicle.
Guilt fell to be determined on the question of whether the remaining fault elements for the offence were established to the required standard. That is, particularly, whether the prosecution had established beyond reasonable doubt that at the time of riding in the motor vehicle the defendant was subjectively aware of the substantial risk that the vehicle had been taken by someone without the consent of the person to whom it belonged and that it was unjustifiable to take the risk by riding in the motor vehicle: Criminal Code s 20. It was also necessary for the prosecution to prove that riding in the motor vehicle in those circumstances was dishonest according to the standards of ordinary people, and known by the defendant at the time of riding to be dishonest according to those standards.
The defendant did not give evidence. The defendant is not required to give evidence because the onus of proof is on the prosecution. The prosecution must prove each and every element of the offence charged, to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to demonstrate that there is a suspicion that the defendant is guilty, or even that she is probably guilty of an offence. The defendant is not required to prove anything in these proceedings, and in particular, is not required to prove herself innocent of the charge.
If the defendant offers or suggests an explanation which is consistent with his innocence, she is not required to prove that explanation. It is for the prosecution to disprove the explanation beyond reasonable doubt. If the prosecution does not do so, then the defendant is entitled to be acquitted.
In this case the defendant, through her counsel, suggested an explanation consistent with innocence, namely that she rode in the vehicle without awareness of the substantial risk that it was stolen, and accordingly that there was nothing dishonest about her conduct.
Evidence in the hearing, to which it is necessary to refer, was directed to excluding this possibility beyond reasonable doubt. In seeking to prove the subjective fault elements of the offence, the prosecution relied upon inferences arising from circumstances relating to the defendant’s riding in the vehicle and what were said to be Edwards lies contained in an electronic record of interview.
My verdict must be based on the evidence tendered or presented at the hearing and only on that evidence. I turn then to the evidence.
The Evidence:
Various statements, reports, photographs and records of conversation were tendered by consent. DNA evidence established that the defendant had been in the vehicle. As indicated above, this was not disputed.
The only witness called in the prosecution case was a young person who gave evidence with the protection of a s 128 certificate. He was 17 at the time of giving evidence. He said that he and the defendant had been in a relationship for 11 months at the time of the offence. He said that she was aware he was a drug user. They are no longer in a relationship.
The young person said that he picked the defendant up in the red Mazda CX5 on the afternoon of 21 December 2020 because she was stuck in Tuggeranong without a vehicle and needed to get home to her children. In cross-examination, he agreed that the defendant was in a rush and had no other way to get back to her children.
The young person gave evidence that he had stolen the vehicle after breaking into a house. He gave evidence that he was 16 at the time, did not have a licence and that the defendant knew he did not have a licence. He also gave evidence that he had never picked her up in a vehicle previously. He said he had a job at the time but was working intermittently.
The young person said that he did not have a conversation with the defendant about where the vehicle had come from and she did not ask.
On route they stopped in the vicinity of Hobart Place so that young person could sign bail papers. These bail papers were tendered as Exhibit 1. He said that the defendant was aware of the drug possession charge for which he was on bail, but not the other charges. He said that she did not look at the bail papers. There is therefore no evidence that she was aware that he was also on bail for an offence of ride/drive a motor vehicle without consent. Both the young person and the defendant were arrested sometime after they alighted from the vehicle in Civic.
The young person then gave evidence by reference to photographs tendered as Exhibit 2. In doing so he identified the car and items within the car, including gloves and a jemmy bar, consistent with items that might be used to break into a house or car. He gave evidence to the effect that these items, which might have given rise to suspicion in relation to the ownership and the circumstances of possession of the car, were in fact concealed from view of the defendant in the vehicle. In her submissions, the prosecutor, quite properly, conceded that there was no evidence that the defendant was aware of the existence of these items. There was some doubt about whether the defendant was aware of the existence of drug paraphernalia in the car.
In cross-examination, young person said that it was ‘not possible’ that defendant knew the car was stolen because they had never talked about it. He said that she has stopped talking to him since their arrest and was ‘pretty mad’ at him about what had happened. The young person said that at the time of the alleged offence they were in a committed relationship and were pretty close. When asked if she would, at the time, go out of her way to protect him, he said ‘of course she would’.
The young person was frank and direct in his evidence. Though he was cross-examined, it was never suggested to him that his evidence was inaccurate or untruthful. I accept his account of events.
Following arrest, the defendant participated in an electronic record of interview at the City Police Station. The audio-visual recording and the transcript of the interview were tendered and marked as exhibit 12.
At the commencement of the interview, the defendant was told that police wished to speak with her about an allegation that she ‘drove’ a Mazda CX5, being a stolen motor vehicle, to Hobart place. She was cautioned and advised that she did not need to speak with police but that anything she did say in the course of the interview could be used as evidence.
Despite indicating a willingness to participate in the interview, when the defendant was asked about the alleged offending, she indicated that she could tell the police ‘nothing’.
The defendant was then, it must be said, uncooperative in the interview and it was clear she did not in fact wish to provide information to the police in relation to the alleged offending.
At question 72 she was asked directly if she had ever been in a red Mazda CX5 with the registration number [redacted]. In response she said ‘no’.
Then again at question 85 she was asked if she had ever been inside a Mazda CX5, and she answered, ‘plenty of them’. She was asked if she had been inside any red ones and she answered ‘no’.
At question 88 she was asked ‘what can you tell me about the young person?’ She responded, ‘nothing’. Subsequently in the interview she repeatedly responded to questions by saying variously that she knew nothing or she was not saying anything.
It was this evidence of denials and obfuscation that was relied upon by the prosecution as Edwards lies.
Submissions
The prosecution submitted that the lies told by the defendant in her record of interview, namely, denying having been in the vehicle and knowing the young person, were told by the defendant in circumstances in which the explanation for the lies is that she knew that the truth would implicate her in the offence with which she was charged.
In support of a contention that the lies taken together with the circumstances of the alleged offending established beyond reasonable doubt both recklessness and dishonesty, the prosecution pointed to the following facts established by the evidence that were within the awareness of the defendant:
(a) The young person was 16 and did not possess a licence;
(b) The young person was a drug user with limited income;
(c) The young person was on bail in relation to alleged criminal offending.
The defence submitted that there was nothing in the car to raise suspicion that it was stolen. For example, there was no evidence of forced entry or tampering with the ignition. There were no indicia arising from the manner of driving to suggest the vehicle was stolen. It was submitted that the parking of the vehicle in close proximity to the police station (with the attendant risk) pointed to an absence of knowledge on the part of the defendant that the vehicle had been stolen.
It was submitted that whilst there was no dispute that the defendant had lied in the record of interview, this was explicable on two potential bases, each of which was consistent with an absence of awareness of a substantial risk that the car was stolen at the time in which she travelled in the car. The lies were said in submissions to be consistent with (1) seeking to protect her then partner, the young person, or (2) seeking to avoid being implicated in possession of drugs or like offending.
It was also submitted that the lies told were akin to asserting her right to silence in an unsophisticated way, having realised, subsequent to the arrest, that she and the young person were facing an allegation of offending.
Consideration
Edwards Lies
The use of lies to establish consciousness of guilt was explained by the majority of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (‘Edwards’), at 210-211 as follows:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. [citations omitted]
In this case there is no doubt that the defendant lied about having been in the vehicle with the young person. However, whilst it is clear that the lies were told because of a fear that the truth might implicate her or her partner, it is not at all clear that the lie was told out of a realisation of guilt encompassing the fault elements of the offence which were in dispute.
In considering whether the lies told have this capacity, it is necessary to ask the question: why did the defendant lie? Or, more specifically, ‘did the [defendant] lie because the truth would implicate her in the offence?’ and ‘might there have been some other reason for lying?’: see R v DM [2016] ACTSC 179 [635] (Penfold J); Charles v Greenup [2013] ACTSC 235 [24]-[25] (Penfold J).
There at least three obvious reasons why the defendant would lie about her presence in the vehicle with the young person, each of which is consistent with her innocence with respect to the charge before the court. These explanations are contemplated by the majority in Edwards itself at 211.
(a) She may have lied because she was seeking to protect the young person, having realised after the arrest that telling the truth would implicate him;
(b) She may have lied because she was seeking to protect herself from the charge that had been levelled against her, in the mistaken belief that mere presence in the vehicle would be sufficient to prove guilt (i.e. in circumstances where the lie did not indicate subjective awareness at the time of driving of the substantial risk that the vehicle was stolen);
(c) She may have lied because she was seeking to protect herself from association with drug paraphernalia located in the car.
In relation to the second possibility, it is apposite to quote at length from the decision of Penfold J in Charles v Greenup [2013] ACTSC 235 at [28]-[29]. The following passage applies with full force in this case even though the allegation here relates to riding in a motor vehicle without consent rather than driving:
…it is possible that the appellant was in fact innocent of the relevant offence because, although she had driven the car, she had not known at the time that it was stolen. As already mentioned, this was a real possibility given the state of the car. In that case, she might have believed, by the time police questioned her and made her aware that the car had been stolen, that she had in fact committed an offence, and might have lied because she was concerned about implicating herself in relation to that offence.
In that case, the lie would have had the kind of intention that would make it an Edwards lie – but as far as I can see, an Edwards lie told on a mistaken understanding of the law cannot of itself fill in the gap in the facts that would otherwise exclude the liar’s guilt. If the appellant had driven the car without, at the time, knowing that it was stolen, then the later discovery that it had been stolen does not render her retrospectively guilty of the offence, and nor could a lie told in the mistaken belief that she had or might have committed the offence be evidence that she had a state of mind other than her actual state of mind at the relevant time.
For these reasons, the lies told by the defendant cannot be considered Edwards lies in the sense that they establish a consciousness of guilt encompassing proof of the fault elements of the offence in contest.
Other Circumstances
The other circumstances upon which the prosecution sought to rely in contending that an inference with respect to the existence of the identified fault elements could be drawn were that the young person was 16, did not possess a licence, was a drug user with limited income and was on bail. These facts, that were said to be in the subjective awareness of the defendant, certainly raise significant suspicion. However, they do not individually or collectively exclude an innocent explanation for the defendant’s riding in the motor vehicle, having accepted the offer of a lift to get home to her children.
These circumstances fell to be considered in the context of the fact that there was nothing about the vehicle itself to suggest it had been stolen. In this, I take into account that there was no evidence that items within the car, such as the gloves and the jemmy bar, were observed by the defendant.
Put in terms of the onus of proof, these circumstances do not prove beyond reasonable doubt that she was aware of the substantial risk that the vehicle was stolen, rather than borrowed, for example. Consequently, and in addition, they do not establish that her riding in the vehicle was dishonest to the required standard.
Decision
For these reasons I find the defendant not guilty of the charge. A verdict of not guilty on the charge of riding in a motor vehicle without consent is entered.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins Associate: Samuel Cass Date: 15 October 2021 |
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