Hurst v Reidy
[2003] TASSC 107
•30 October 2003
[2003] TASSC 107
CITATION: Hurst v Reidy [2003] TASSC 107
PARTIES: HURST, Luke Maurice
v
REIDY, Jessica Kate
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 70/2003
DELIVERED ON: 30 October 2003
DELIVERED AT: Hobart
HEARING DATES: 13 October 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: A E Mignot
Respondent: M G Healy
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 107
Number of Paragraphs: 17
Serial No 107/2003
File No LCA 70/2003
LUKE MAURICE HURST v JESSICA KATE REIDY
REASONS FOR JUDGMENT CRAWFORD J
30 October 2003
The applicant was charged on a complaint with a single count of burglary, in that on 19 November 2002, he entered a motor vehicle as a trespasser, with intent to commit the crime of stealing, contrary to the Criminal Code, s244. Following a defended hearing, the complaint was found proved. He moved this Court to review the finding on one ground:
"The learned magistrate erred in fact and/or in law in that she correctly determined the prosecution case was based on circumstantial evidence, but then erroneously found that the only rational inference to be drawn from the circumstances was that when the applicant entered the motor vehicle he did so with the intent to steal property therein."
The making of an erroneous finding of fact is not a valid ground. A motion to review under the Justices Act 1959, s107, is not an appeal by way of rehearing. On having it pointed out to them, both counsel agreed that I should determine the motion by answering the question whether the learned magistrate could reasonably have found on the evidence that the applicant entered the motor vehicle with intent to steal property therein. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. There is no dispute that the applicant entered the motor vehicle in question as a trespasser.
I will relate the substance of the evidence. I note that the first two witnesses had English language difficulties. Mrs Osok, one of the residents in Anglesea Street, gave evidence that she arrived home at about 9am to see the applicant getting into her husband's car. She went into her home and reported what she had seen to her husband.
Mr Osok gave evidence that his wife came into their home and reported that she had seen a man in his car and that he was searching for some things. There was later evidence from Constable Lovell "that there was a lot of junk" in the vehicle. No objection was made to the hearsay evidence of what Mrs Osok told her husband. She was not asked, when giving her evidence, what, if anything, she had seen the applicant do inside the car. Counsel for the applicant conceded to the Court that the evidence of Mrs Osok's representation to her husband was evidence of the truth of the representation and that the learned magistrate was entitled to use it for that purpose. See the Evidence Act 2001, s66(2). It was evidence that suggested that the applicant was looking for something to steal rather than merely intending to unlawfully drive the vehicle.
Mr Osok's evidence was that by the time he got outside, the man was no longer in his vehicle. On looking inside he found that nothing had been taken from it. On being asked whether there was any damage to the vehicle, he said that "there was a bit in the door", at the lock. On being asked for more information about that, he said "the whole of the lock had just been a little bit broken and moving about". Mr Osok said that he was sure that the vehicle had been locked when he left it the previous night, but conceded that was an assumption that was based on his practice to first lock the wheel or wheels and then lock the doors. It is impossible to understand from the transcript whether he was referring to his practice of locking the steering wheel or the four wheels of the vehicle, in that passage.
Evidence was given by Constable Woodland of seeing the applicant in nearby Davey Street at about 9.05am. At the time, the constable was responding to information received and was looking for a young male who had been reported as having been seen nearby, in Adelaide Street, trying door handles of parked cars. When the constable first saw the applicant, he was carrying something under his arm and was looking into a window on the passenger side of a white hatchback.
Constable Woodland asked the applicant what he was doing, to which the applicant responded, "er, breaking into cars". The constable asked him how many, and he replied "two to three". The officer then cautioned the applicant and searched him. In his hand he had a pair of long handled scissors, the tips of which were damaged, and in one of his pockets he had a yellow and black handled screwdriver. There was then a further conversation, but counsel for the Crown conceded that I should ignore it. However at issue before me was whether the conversation between the officer and the applicant, which I have detailed, should have been excluded from the evidence as inadmissible. I will return to that issue shortly.
The applicant was taken to Mr Osok's vehicle in nearby Angelsea Street, where he was identified by Mr Osok. He was arrested and taken to the police station. About three hours later, a video recorded interview was conducted with him. The interview was delayed partly because Constable Woodland thought that the applicant was intoxicated and that it would be better to wait to give him a chance to sober up.
The prosecutor sought to tender the video recording of the interview, along with handwritten notes made by Constable Woodland, which he said were notes of the conversations he had with the applicant. Apparently the notes were adopted by the applicant in the video recorded interview. In the magistrates court, the applicant's counsel objected to the notes and the video recording being admitted into evidence, but did not object to the evidence that the officer had given of the earlier conversations. The learned magistrate held that the notes and the video recorded interview would not be admitted into evidence.
I pointed out to counsel that what Constable Woodland had related of the conversation he had with the applicant in Davey Street was evidence and that no objection had been made to it. After a discussion, it was conceded by the respondent's counsel that I should disregard all evidence of conversations between the officer and the applicant following the administration of the caution. At issue was whether the conversation before the caution should also be disregarded. Following a further discussion, it was resolved with counsel that I should determine whether the admissions made by the applicant prior to that caution were made by him "in the course of official questioning", as that expression is used in the Evidence Act, s85(1)(a). It was agreed that if I determine that the admissions were made in the course of official questioning I should disregard them too. If I determine that they were not made in the course of official questioning, I may take them into account when determining the motion to review.
By virtue of the Evidence Act, s3(1), "'official questioning' means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". An "investigating official" includes a police officer and an "'offence' means an offence against or arising under an Australian law".
The evidence established that Constable Woodland was aware that a report had been received that a young male, answering the applicant's description, had been seen nearby in Adelaide Street, trying door handles of parked cars. Constable Woodland was looking for that young male. He saw the applicant carrying something under his arm and looking into a passenger side window of a stationary vehicle. It was in those circumstances that the officer asked the applicant what he was doing and that the applicant made admissions that he was breaking into cars and that he had already done so with respect to two or three. He only made those admissions in response to questions by the police officer and I have no doubt that Constable Woodland asked the questions at a time and in the course of an investigation into the possible commission of offences. There is every reason to think that Constable Woodland must have thought, notwithstanding that he was not asked if he did, that it was a possibility that the person to whom he was speaking had been committing offences. Therefore, I will disregard all of the evidence of the applicant's admissions to Constable Woodland.
The remaining question is whether there was evidence upon which the learned magistrate could reasonably have been satisfied beyond reasonable doubt that the applicant entered Mr Osok's vehicle with intent to steal therein. The applicant neither gave nor adduced evidence.
The admissible evidence tending to support a finding that the applicant had the intention of stealing once inside Mr Osok's vehicle was as follows:
1he entered the vehicle as a trespasser;
2Mr Osok was sure that the vehicle had been locked in accordance with his usual practice;
3Mr Osok observed some damage had been caused to a door lock;
4Mrs Osok told her husband that she had seen the man, who must have been the applicant, searching for some things in the vehicle;
5according to Constable Lovell's evidence, there were a lot of things in the vehicle;
6within a few minutes, the applicant was seen by Constable Woodland in a nearby street, looking into the passenger side of a vehicle at a time when he was carrying a pair of long handled scissors, the tips of which were damaged, and a screwdriver.
Counsel for the applicant submitted that on that evidence it was reasonably possible that the applicant's intention, once inside the vehicle, was only to tamper with it. She was unable to explain what she meant by tamper. I regard the suggestion as farfetched and reject it. Counsel for the applicant's other submission was that it was reasonably possible that the applicant's intention was merely to drive Mr Osok's vehicle, which would have amounted to the offence of motor vehicle stealing under the Police Offences Act 1935, s37B. That offence is not a crime. If the applicant entered the vehicle only with that intention, it was not his intention to commit a crime and he could not be found guilty of the crime of burglary, which requires an intention to commit a crime at the time of entry, as one of its elements.
I have given the last submission of the applicant's counsel careful consideration, for it does have some merit. Nevertheless, I have concluded that a finding beyond reasonable doubt that the applicant intended to steal was reasonably open on the evidence. In particular, it was supported by evidence that once in the vehicle, the applicant conducted a search and within a few minutes later he was looking through a window on the passenger side, not the driver's side, of another vehicle. There was no evidence to suggest that he had manifested an intention to drive Mr Osok's vehicle by attempting to start its engine or otherwise.
For these reasons, the motion to review will be dismissed.
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