Gollan v Police No. Scgrg-97-1252 Judgment No. S6404

[1997] SASC 6404

GOLLAN v POLICE

Magistrates Appeal

Millhouse J

The appellant, an aboriginal lady, was charged with creating a false belief that life was endangered, contrary to s62A of the Summary Offences Act.

Between 7 August and 19 September 1995 there were about half a dozen telephone calls to the Meningie Area School, to the effect that a bomb had been planted there.  The last two calls were traced, that on 18 September to the appellant's office at the School and that on 19 September to her house.  The appellant worked at the School as an aboriginal education officer.  There had over the years been, from time to time, racial tension at the School.  The appellant had received racially insulting letters in her pigeon hole in the staff-room and in other ways.  She had apparently been upset by all this and had been away from school for a lot of 1995 on sick leave.

[A hand-writing expert believed it "highly probable" the appellant had written the nasty letters herself.  The expert identified this probability, according to the learned magistrate "as being in the order of 99 per cent."  The magistrate accordingly discounted this evidence against the appellant because mathematically that left about 10 people in the town who could have written the letters.   I suggest that this was an error of reasoning on the part of the magistrate: an error favouring the appellant.  His Honour should not have done a mathematical calculation but considered whether or not, in the light of the expert evidence, it was beyond reasonable doubt that the appellant had written the letters.  That was, however, a collateral matter. ]

Each time the message of a bomb planted was received - they were all false alarms - the whole school (370 pupils, I think and staff) had to be evacuated.  With successive alarms (they had begun in March but the appellant was charged only from August) the level of tension, of stress and distress in the school community rose.  It was a serious matter.

The learned magistrate gave considered reasons for finding the appellant guilty.  They are, I venture to suggest, in an unfortunate form.  The reasons run to 78 pages (there are another seven pages, reasons for penalty).  The evidence was just over 200 pages.  What His Honour has done mostly is to precis the evidence, drearily witness by witness.  Unfortunately it is difficult to know what is mere narrative and what are his findings of fact.  There are some passages, from place to place in the 78 pages which canvass the law.     I suggest it would have been more convenient if the magistrate had set out the facts concisely, considered the law and come to a conclusion.

The thrust of Mr Grahame Lang's argument in support of the appeal is that the learned magistrate used what he found to be lies told by the appellant and her witnesses not only as going to credit but as strengthening the admittedly circumstantial prosecution case.

The magistrate made adverse findings of credit against the appellant and her witnesses.  Particularly in relation to her alibi to shew that she could not have been home at 8.45 am on the 19 September when the last of the calls was made, a call from her house to the school.

I need not go into the alibi but these are the magistrate's findings:-

"     In short, the court found most of this evidence concerning the movements of the defendant and others from about 8.40 a.m. on 19 September 1995, until about 9.03 a.m., contrived, unconvincing, lacking in spontaneity and frankness.  It was presented in an artificial manner and it bore all the hallmarks of a contrivance in which all three witnesses made a contribution for the purpose of attempting to place the defendant's whereabouts at 8.45 a.m. at any place other than her residence.  It was not simply a situation in which a number of witnesses made simple mistakes.  The inconsistencies were part of a process which was deliberately contrived.  In doing so, the witnesses succeeded in enhancing the strength of the prosecution case.  .....................

Whilst accepting that the defendant does not have to prove or disprove anything in these proceedings, this is one of those situations in which the prosecution case is strengthened, rather than weakened, by the defence evidence on a series of significant events."

Mr Martin Hinton, for the respondent, answered Mr Lang's argument by referring me to the decision of the High Court in Edwards v The Queen ((1993) 178 CLR 193). Deane, Dawson and Gaudron JJ (@ 208 and 210):-

"     Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it.  A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with  innocence, and amount therefore to an implied admission of guilt.  In this way the telling of a lie may constitute evidence.  When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie..............

................ ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof.  The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt.  They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

The lies said to go beyond mere credibility are those concerning events on the morning of 19 September.  The evidence given by the appellant and her witnesses were inconsistent in parts.  The appellant’s daughter testified that the appellant had stopped the car at the appellant’s brother’s house and had spent five or six minutes there.  The appellant said that she had stopped the car and "tooted the horn" for a "couple of seconds".  Analysed in the light of the uncontroverted timing of the phone call, it was very difficult for the appellant to have done what she said she did that morning.  This inherent improbability in the appellant’s alibi evidence as well as the inconsistency leads to the conclusion that the appellant lied.  Evidence of the lie is established apart from the evidence to be corroborated.

The role which the alibi evidence would play in establishing the appellant’s lack of guilt satisfies the requirement that the lie must relate to a material issue and the more important requirement that the lie must be told in circumstances in which the explanation for the lie was that the appellant knew that the truth would clearly implicate her in the crime.  The complexity of the lie shews that these were not accidental lies or lies "told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence."  (Edwards v The Queen @ p211).

The learned magistrate was entitled to use his findings that the appellant and her witnesses were lying in the way that he did.

Even if the magistrate had not found that the appellant and her witnesses were lying and if he had left it at rejecting the alibi, the case against the appellant was very strong.  Of the only two calls tapped, one came from the appellant's office at the School (and there was evidence that she could have been in the office at the time the call was made and two persons whom the defence in the magistrates court suggested might have corroborated the appellant that she was not, were not called, without explanation) and the other from her house.

Mr Lang argued that the magistrate erred in his use of Weissensteiner v R (1993) 178 CLR 217 in drawing inferences adverse to the appellant from her failure to call the witnesses who could have corroborated her evidence of her movements at the time of the phone calls. Weissensteiner v R is usually cited where the failure of the accused to testify is in question. However the principle applies to prospective witnesses other than the accused. (Jones v Dunkel (1958-59) 101 CLR 298). Mr Lang argued that the terms of her bail conditions hindered the appellant in making contact with Mark Koolmatrie: this explained his absence from the witness box. However Verna Koolmatrie was called although the appellant had said that she was not able to communicate with her. The prosecution during its case was unaware of the significance which the testimony of these two would have and did not call them. In these circumstances, the failure to call the witnesses was properly used against the appellant.

Mr Lang also argued that the prosecution had not excluded the possibility that someone else had gone into the office on 18 September and into the house on 19 September (the house was left unlocked) in the absence of the appellant and made the calls.  Of course this was a possibility but was it a reasonable possibility?   I think not.  It was, I suggest, quite unlikely.  To suggest that it may have happened even once would be testing sorely one's credulity: twice goes altogether beyond the bounds of credulity.

The appeal is dismissed.