HARVEY v Police - [2006] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARVEY v POLICE
[2006] SASC 222
Judgment of The Honourable Justice Debelle
27 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE
Appeal against conviction and sentence - using motor vehicle without consent - validity of police undercover operation - whether undercover operation amounted to entrapment - whether prosecution evidence inadmissible on ground that it had been unlawfully obtained - whether appellant had been wrongfully imprisoned - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Undercover Operations) Act 1995 (SA) s 2, s 3, s 4; Motor Vehicles Act 1959 (SA) s 91; Police Act 1998 (SA) s 5; Road Traffic Act 1961 (SA) s 5; Summary Offences Act 1953 (SA) s 75, s 78, s 79A, referred to.
R v Dindsdale (2000) 202 CLR 321; Ridgeway v The Queen (1995) 184 CLR 19, applied.
Christie v Leachinsky (1947) AC 573; Kowald v Hoile (No 2) (1976) 14 SASR 314; R v Campanella (2004) 90 SASR 1; R v Conley (1982) 30 SASR 226; R v Giaccio (1997) 68 SASR 484, considered.

HARVEY v POLICE
[2006] SASC 222
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against both conviction and sentence.
The appellant was charged with two offences. Both were alleged to have occurred on 7 March 2004 on the Esplanade at Semaphore. The first was using a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935. The second was driving a motor vehicle on the Esplanade whilst disqualified from holding or obtaining a driving licence, contrary to s 91 of the Motor Vehicles Act 1959. The appellant pleaded not guilty. After a hearing before a magistrate, he was convicted and sentenced to imprisonment for a period of six months. He was also disqualified from holding or obtaining a driving licence for a period of 12 months.
On instituting this appeal, the appellant was released on bail pending the determination of the appeal.
The grounds of appeal all raise questions of law. There was no dispute as to the relevant facts.
Operation Stop Car Thief
The offending was detected in the course of a police operation to detect car thieves. “Operation Vigil” is the name given to describe police operations in relation to the detection of motor vehicle crime in South Australia. One aspect of Operation Vigil is called “Operation Stop Car Thief” which is conducted pursuant to an arrangement between the Police Department and the Royal Automobile Association of SA Inc (“the RAA”). Under that arrangement, the RAA provides to the Police Department a number of vehicles which have been modified by the RAA. The RAA provides the vehicles to the police knowing that they will be used as part of the Stop Car Thief Operation.
Modifications are made to the interior door handles and window mechanisms so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 222
Decision Date: 27 July 2006

CaseChat Overview and Summary

In the matter of Harvey v Police, the appellant appealed against both his conviction and sentence for using a motor vehicle without consent. The dispute centred on whether the police undercover operation, which led to the appellant's arrest, was lawful, and whether the evidence obtained was admissible. The case was heard in the South Australian Supreme Court. The appellant argued that the police operation amounted to entrapment and that the evidence was unlawfully obtained, thus rendering it inadmissible. He further contended that he had been wrongfully imprisoned due to the unlawfulness of the police operation.

The legal issues before the court included determining the validity of the police undercover operation, whether it amounted to entrapment, and whether the prosecution evidence was admissible given its alleged unlawful procurement. Additionally, the court had to consider whether the appellant had been wrongfully imprisoned due to the police operation. The court had to interpret the relevant provisions of the Criminal Law Consolidation Act and the Undercover Operations Act to resolve these issues.

The court held that the police operation, known as Operation Stop Car Thief, was not authorised under the Undercover Operations Act, making it unlawful. However, it was not considered entrapment because it was designed to provide an opportunity for the offence to occur rather than induce the appellant to commit the offence. The court also found that despite the operation's unlawfulness, the evidence obtained was admissible because it did not result from any illegality that would render it inadmissible under the exclusion of illegally obtained evidence. The court rejected the appellant's argument that the officer who observed the events was the bailee of the car and had consented to the appellant's actions. Consequently, the appeal against both the conviction and sentence was dismissed.

The final orders of the court were that the appeal against both convictions and the sentence were dismissed, maintaining the original findings of the magistrate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant crossed the Esplanade and walked close by the driver’s side of the Calais. As he did so, he removed the keys from the car door. He then moved around the rear of the Calais towards sand dunes and vegetation between the Esplanade and the seashore. He walked in a circular direction around the sand dunes for a minute or two and then returned to the Calais. He opened the driver’s side door and sat in the driver’s seat. He started the Calais with the key he had taken. When he began to drive forward, Constable Cullen used the remove control device to disengage the ignition so that the car stopped. The appellant was then arrested and charged with the offence. He exercised his right to silence. He did not give evidence at his trial.An objection to the police evidence Mr Mancini, who appeared for the appellant both at the trial and on this appeal, objected to the prosecution evidence. He submitted that it had been obtained illegally, improperly or unfairly. Shortly stated, the objection was grounded on what Mr Mancini called “the entrapment of the appellant” and the fact that the operation was not authorised pursuant to the Undercover Operations Act. Mr Mancini agreed that the prosecution evidence could be led subject to the objection and on the footing that he could present his argument as to why the evidence should not be admitted at the close of the prosecution case. At the close of the prosecution case the appellant did not call any evidence. Mr Mancini presented a number of arguments in opposition to the admissibility of the evidence and in support of other grounds contending that the appellant could not be convicted. All of these arguments were repeated on this appeal. I set them out in more detail later in these reasons. The magistrate rejected all of the arguments and convicted the appellant.The question of consent The first ground of appeal is that the magistrate erred in finding that the appellant had used the car without the consent of the owner. The appellant contends that, by reason of the arrangements between the RAA and the Police Department, Constable Cullen was the bailee of the Calais. Section 86A(7) of the Criminal Law Consolidation Act defines “owner” as having the same meaning as in the Road Traffic Act 1961. Section 5 of the Road Traffic Act defines “owner” as including “a person who has possession of the vehicle by virtue of the hire or bailment of the vehicle”. I am content to accept for the purposes of the appeal that Constable Cullen had possession of the RAA vehicle as bailee for the RAA. The appellant then contends that, as bailee, Constable Cullen had acquiesced in the appellant using the Calais and so had consented to that use of the Calais. Constable Cullen had seen the appellant take the key, walk about the area, return to the motor vehicle and get into it and begin to drive away. He did not intervene at any stage. He did nothing to prevent the appellant from starting the car or driving it away. It is on that footing that the appellant says that Constable Cullen acquiesced in the appellant’s conduct.

Decision

Reasons for decision

DEBELLE J

The appeal against sentence must, therefore, be dismissed.Conclusion For these reasons the appeal against both convictions and the sentence are dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

From time to time these RAA vehicles are placed in a car park of a shopping centre. On occasions a member of the public has taken the keys from the vehicle to the security office at the shopping centre. In that event, the member of the public may be intercepted before reaching the security office and will not be arrested or charged.The Undercover Operations Act The Criminal Law (Undercover Operations) Act 1995 (“the Undercover Operations Act”) provides a means by which a senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal misbehaviour: see s 3 of the Act. Section 4 provides an immunity for criminal liability for any authorised participant in the undercover operation. Later in these reasons, I decide that Operation Stop Car Thief is an undercover operation within the meaning of the Undercover Operations Act. Operation Stop Car Thief has not been authorised pursuant to the Undercover Operations Act.An opportunity to offend On the occasion the subject of this appeal, the RAA had provided the police with a modified Holden Calais knowing that it was to be used in Operation Stop Car Thief. The RAA had not given consent to any person other than the police to use the car. The RAA was aware that the Calais was to be used in Operation Stop Car Thief on the footing that no person other than an employee of the South Australian Police had permission to use or interfere with the car. The evidence showed that the RAA knew that the Calais was to be used for the purpose of seeing if a person would use the keys for the purpose of illegally using it. In short, the RAA knew that someone might use the Calais to commit an offence. On 7 March 2004 police parked the Calais on the Esplanade at Semaphore in an area known for a high incidence of car theft. The keys of the Calais were left in the driver’s door, plainly visible to a passer-by. One police officer in plain clothes, Constable Cullen, was in an unmarked police car parked nearby with a video camera trained on the Calais. He was in radio contact with two other officers who were in a police car a short distance from the Calais. The operation had not been approved pursuant to the Undercover Operations Act.The alleged offending The appellant crossed the Esplanade and walked close by the driver’s side of the Calais. As he did so, he removed the keys from the car door. He then moved around the rear of the Calais towards sand dunes and vegetation between the Esplanade and the seashore. He walked in a circular direction around the sand dunes for a minute or two and then returned to the Calais. He opened the driver’s side door and sat in the driver’s seat. He started the Calais with the key he had taken. When he began to drive forward, Constable Cullen used the remove control device to disengage the ignition so that the car stopped. The appellant was then arrested and charged with the offence. He exercised his right to silence. He did not give evidence at his trial.An objection to the police evidence