Jason Graham Bridgeland v Christopher Paul Zanker No. SCGRG 92/1651 Judgment No. 3569 Number of Pages 5 Criminal Law and Procedure

[1992] SASC 3569

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences - offences against property - unlawful possession - whether Magistrate entitled to take into account defendant's failure to give his trial explanation at the time of his arrest - whether force of defence weakened by a failure to call supporting witnesses. Summary Offences Act 1953s.41.

HRNG ADELAIDE, 5 August 1992 #DATE 27:8:1992
Counsel for appellant:     Mr P A Cuthbertson
Solicitors for appellant:    Zacharoyannis Luppino and Eckermann
Counsel for respondent:     Ms J F Lee-Justine
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 COX J The appellant was tried by a Stipendiary Magistrate at Holden Hill on a charge of having had in his possession at Park Holme on 13 June 1991 $3,800 which was reasonably suspected of having been stolen or obtained by unlawful means: contrary to s.41 of the Summary Offences Act 1953. He defended the charge but was convicted. 2. The prosecutor called evidence that on 13 June 1991 the appellant bought a second-hand motor car for $3,800. He paid for it with banknotes of various denominations including a large number of $20 and $10 notes. The investigating police suspected that the money came from a street robbery that had been committed on June 11 or a hotel robbery that was also committed that day. On 25 August 1991 Detective Carruthers asked the appellant whether he knew anything about the robberies and he said, "No, not me, I don't know nothing about any robberies." 3. He was asked where he got the money to pay for the car and he said with a laugh, "From my hard work. I saved it up." He was arrested for some other matter. The police continued their enquiries and on September 20 Detective Carruthers arrested him for unlawful possession, on June 13, of the money that he used to pay for the car. His rights were explained to him, including his right not to answer any questions. He said he understood - "I am not saying anything." He repeated that response at the ensuing formal interview. Carruthers explained to the Court hisreasons for suspecting that the car money came from one of the robberies. The learned Magistrate found that there was a case for the appellant to answer. The appellant said in evidence that he was a regular and substantial gambler and that the car money came from his accumulated winnings. In particular, he had won a lot of money through the TAB on Adelaide Cup Day, 20 May 1991. He called TAB witnesses who provided some circumstantial evidence to support his claim to have done well on the TAB that day. The learned Magistrate found that Carruthers' suspicion was reasonable - indeed, there was no contest about that - and he was not satisfied on the balance of probabilities that the appellant came by the car money honestly. He therefore found the charge proved. 4. The Magistrate noted in his reasons for judgement that part of the information upon which Carruthers relied came from Mrs Sumner, who was the mother of Amy Karpany, the appellant's de facto wife. According to Carruthers, Mrs Sumner told him that she had been informed by her daughter that the car had been bought with money from a hotel robbery. The conversation took place on the occasion when Carruthers located the car in the driveway of Mrs Sumner's house. (The appellant explained in evidence that he was not living at Mrs Sumner's house but had simply left the car there for safe keeping.) Carruthers was not cross-examined on this or any other subject by the defence. The Magistrate observed that, while there was evidence that provided circumstantial support for the appellant's claim to have won about $3,800 in all on Adelaide Cup Day, there was still a question whether the appellant would have kept those winnings ortheir equivalent intact for the following three and a half weeks. He bore in mind when assessing the appellant's credibility "that he was a heavy gambler; that he had no other source of income; that he gave no explanation to the police as to how he came by the money until he was in court; and that he had not called either his de facto or his mother (sic) to give evidence on his behalf or anyone who can confirm his assertion that he was able to accumulate sufficient from gambling alone to pay for the car." 5. His Honour went on to consider the effect of a party not calling a person who ought reasonably to be in a position to give supporting evidence on a material issue. He referred to Carruthers' discussion with Mrs Sumner, "and in my view the only reasonable explanation for failing to call her, or Amy Karpany, is that their evidence would not have materially assisted, indeed would have hindered his case." Bearing all those matters in mind he was not satisfied with the appellant's explanation as to how he came by the car money. 6. The first ground of appeal that was argued by Mr Cuthbertson, for the appellant, was that the learned Magistrate was in error in taking into account, adversely to the appellant, his failure to answer the detective's questions. He was within his rights (Mr Cuthbertson submitted) in refusing to say anything upon his arrest. A man's silence cannot be held against him. It makes no difference that he happened on this occasion to carry the burden of proof. 7. Whether a defendant may be legitimately criticized at his trial for failure to give a prompt explanation will depend on the circumstances of the particular case. When the policewere searching the appellant's flat on August 25 they found the car registration slip and Carruthers asked him some questions about it. That is when the appellant said with a laugh that he got the money "from my hard work. I saved it up." I see no reason why the learned Magistrate should not have taken that particular answer into account. Cf. Forrest v. Normandale (1973) 5 SASR 524, at 541. The appellant's explanation on that occasion could have been compared with the explanation he gave in the witness box. That might have been relevant to his credit. However, the answer the appellant gave on August 25 cannot have been what the learned Magistrate had in mind when he said that the appellant "gave no explanation to the police as to how he came by the money until he was in Court." His Honour, as it seems to me, could only have been referring there to the appellant's refusal to say anything on the occasion of his arrest on September 20. I have already said that he was given the usual caution then, and it would be quite unfair, in my opinion, to take into account adversely to the appellant his exercise of the option, to speak or to keep silent, that had just been expressly offered to him. That would make the caution a snare and an illusion. Cf. Petty v. The Queen (1991) 65 ALJR 625. I do not think it makes any difference that the burden of proving that he came by the money honestly happened to rest on the appellant. In my opinion, this ground of appeal must succeed. 8. Mr Cuthbertson also submitted that the learned Magistrate was in error in attaching significance to the appellant's failure to call Mrs Sumner or Ms Karpany "or anyonewho can confirm his assertion that he was able to accumulate sufficient from gambling alone to pay for the car." I think this ground of appeal is probably made out in part. The evidence indicated that Ms Karpany was living with the appellant at all relevant times. She was on a supporting parent's pension. The appellant had not worked for about a year but he was not drawing unemployment benefits. He took the view that it was not worth his while wasting two days a fortnight at the C.E.S. and looking at the notice board, and having to show cause every three months or so. He was able to make quite a comfortable living, he said, out of gambling. However, this mode of life evidently had its ups and downs because the appellant conceded that there was the odd occasion when he would run out of money and have to ask Ms Karpany for a hundred dollars to put a bet on. While there was no evidence that Ms Karpany had any detailed knowledge of the appellant's gambling fortunes, I think it reasonable to suppose that she would probably have known about it had he won thousands of dollars on the races on Adelaide Cup Day and, no less important, had he had plenty of money in his pocket in the following three or four weeks, that is, up to the time he bought the car on June 11. If Ms Karpany was in a position to give evidence of this kind it was no answer, at least according to the evidence given at the hearing, that the appellant might have preferred not to expose her to cross-examination about an alleged statement to her mother as to the source of the car money. Cf. Forrest v. Normandale at 545; Spence v. Demasi (1988) 48 SASR 538, at 547.I think the learned Magistrate was on shakier ground, however, when he referred to Ms Karpany's mother, Mrs Sumner, as one of the appellant's potential witnesses whose absence justified criticism. The appellant was not living with Mrs Sumner and there is no evidence that she saw much of him. (He said in evidence that he did not get on with Mrs Sumner and, having in mind her alleged statement to Detective Carruthers, that is not hard to believe.) In my view the absence of Mrs Sumner from the witness box could not justifiably be held against the appellant. There is no evidence that any other person was in a position to speak generally about the appellant's financial position, including his sources of income, in May and June 1991. 9. There is a question whether the errors to which I have referred should be held to vitiate the appellant's conviction. From one point of view the missing witness point was a relatively minor blemish, if that. Probably the learned Magistrate was simply saying that someone, Mrs Sumner or Ms Karpany or someone else, should have been called to support the appellant's story, with the implication that one such person would have been enough. On that view of the matter the correct identification of Ms Karpany as a potential witness, whose absence exposed the appellant to proper criticism, was enough to justify the Magistrate's broad observation. However, there is a degree of ambiguity about the way the Magistrate expressed himself on this subject. Then there is the question of the appellant's failure to give his exculpatory explanation before the trial. I have held that the Magistrate was wrong incriticizing the appellant for failing to give his trial explanation on the occasion of his arrest, but the criticism might have been sound had it referred instead to the first exchange between the appellant and Carruthers a month earlier. 10. Section 41 is a very drastic provision, and upon his conviction it had drastic consequences for this appellant. It allows the police to make out a case on a reasonable suspicion based upon a lot of hearsay material, and then it throws the burden on the defendant of proving on the balance of probabilities that he obtained the property honestly. In those circumstances the room for excusable error in the reasoning that leads to a defendant's conviction must be small indeed. In my opinion, the appeal should be allowed. 11. Mr Cuthbertson argued that the matter should not go back for another trial. I have considered the matter. The offence, if proved, was quite a serious one. In all the circumstances I think that a re-trial is the proper course in this case. 12. The appeal is allowed, the conviction and sentence and consequent orders set aside, and the complaint remitted to the Magistrates Court for hearing by another Magistrate.