John Edward Cartwright and David Keith Strawbridge v Christopher Paul Zanker Nos. 1860 and 1853 of 1992 Judgment No. 3691 Number of Pages 10 Evidence

[1993] SASC 3691

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Evidence - burden of proof, presumptions, and weight and sufficiency of evidence - Circumstantial evidence - Appeal against convictions recorded by magistrate - Appellants charged with interfering with a motor vehicle - Whether magistrate had misdirected himself as to circumstantial evidence and burden of proof. Held: Inference of guilt in this case derived from cumulative weight of circumstances, not quality of proof of each circumstance - No identifiable error of law or significant misunderstanding of evidence calling for interference - Appeal dismissed. Road Traffic Act 1961 s 44. Shepherd V The Queen (1990) 170 CLR 573 and R v Kilbourne (1973) AC 729, applied. R v Matthews (1984) 36 SASR 503 and Chamberlain v R (NO 2) (1984) CLR 521, considered.

HRNG ADELAIDE, 16 September, 28 October 1992 #DATE 5:11:1993
Counsel for appellants:        Mr A. Gibbons
Solicitors for appellants:     Legal Services Commission
Counsel for respondent:        Ms J.F. Lee-Justine
Solicitors for respondent:     Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 PRIOR J The appellants were charged with interfering with a motor vehicle in breach of s44 of the Road Traffic Act, 1961. 2. At about 1.15 am on 16 September 1990, police stopped on Petherton Road, Penfield. They noticed a Chrysler Galant sedan on one side of the road, a Toyota opposite it. The appellants were in the vicinity of the two cars. The Galant had been damaged and partially stripped since being left some three hours before in an hotel carpark. Windows were broken. The bumper bars were off. The bonnet and some engine parts were missing. A number of tools were around the vehicle. A screwdriver was by the front right wheel. Pliers and spanners were in the engine compartment and on the air cleaner. The police officers said that the appellants came over to them as they inspected the Galant. When asked what the two men knew about the Galant, the appellant Cartwright said that he saw a group of aboriginals run off across the paddock by the Galant. Cartwright was asked to point out where the aboriginals had run off. The paddock had a crop in it. The grassed area around the vehicle and the crop was covered with dew. The police evidence was that there was no sign of footmarks or disturbance to the soil or the ground in the area indicated by the two appellants. 3. The appellants were asked whether the tools found in and about the Galant were theirs. They denied that they were. The passenger door on Cartwright's two-door Toyota Corolla was open. When the police officers looked into the Toyota they saw tools about a tool box on the floor in front of the passenger's seat. There was also a torch there. The tools were similar to those found in the engine bay of the Galant. In the boot of the Toyota was a battery. The Galant did not have a battery in it. The battery found in the boot of the appellant's car fitted into the battery tray of the Galant. 4. When interviewed at the Elizabeth Police Station, Cartwright said that he saw the Galant car when on his way to the premises of a Mr. Richards, someone he knew through the wrecking trade for quite a few years. He said that Richards had been to his place that night and that Cartwright was going to help Richards load up a trailer that Richards was taking to Penola that morning. Cartwright said that the torch found in the front passenger seat of his car was in fact Richards' torch, left there by Richards earlier that night. He also said that the tools were Strawbridge's, but the battery his. 5. Strawbridge did not tell the police officers that the tools were his. In his conversation he left it as though they were Cartwright's. In his evidence, Strawbridge said that the tools were his. After the appellants gave evidence, two witnesses were called for the defence. Richards said that he had seen Cartwright during the day but that when he went to his home, Cartwright was not there. Thus, Cartwright's evidence about the torch being Richards' was not supported by Richards at all. Richards knew of Cartwright having a battery in the boot of his car. The other witness called for the defence, a Mr. Coombes, also spoke of lending Cartwright a battery from where they both worked. 6. In his reasons for convicting the appellants, the magistrate referred to the evidence against the defendants as being "almost entirely of a circumstantial nature". He then said:-
    "I am mindful of the decisions of the High Court of
    Australia for example in such matters as Chamberlain v R. (No
    2) and Shepherd v R. As to the former case the CJ of South
Australia commented in R. v Matthews (1984) 36 SASR 503 at 507,
    that 'Chamberlain v R. establishes that the jury can draw
    inferences only from facts which are proved beyond reasonable
    doubt and may not rely in its reasoning upon facts about which
    it is doubtful ....'. In the recent decision of R. v Owen,
    Olsson J stated 'Not only should it be a rational inference from
    the evidence that the accused is guilty of the crime charged but
    that the jury must be satisfied that the facts proven beyond
    reasonable doubt were such as to be inconsistent with any other
    rational conclusion'. His Honour went on to indicate that it is
    the duty of a jury or a court to acquit if there is any
    reasonable hypothesis consistent with the innocence of the
    accused. It is not for Messrs Cartwright and Strawbridge to
    establish their innocence. It is for the prosecution to
    establish, beyond reasonable doubt, the elements of the
    particular offence. The basic factor to be established in this
    case is that the two defendants were illegally interfering with
    the motor vehicle. In particular that they were actually doing
    something that was inconsistent with Mr. Haynes' ownership. In
    my view this requires that the prosecution establish that what
    Messrs Cartwright and Strawbridge were doing was that they were
involved in dismantling this motor vehicle." 7. Counsel for the appellant says that the magistrate erred in stating the law by reference to Chamberlain and Matthews. It was said that he imposed a higher burden of proof than the law requires and "failed to live up to it". In Shepherd v The Queen (1990) 170 CLR 573 at 579 and 580, Dawson J said:-
    "...the prosecution bears the burden of proving all the
    elements of the crime beyond reasonable doubt. That means that
    the essential ingredients of each element must be so proved. It
    does not mean that every fact - every piece of evidence - relied
    upon to prove an element by inference must itself be proved
    beyond reasonable doubt. .... the jury may quite properly draw
    the necessary inference having regard to the whole of the
    evidence, whether or not each individual piece of evidence
    relied upon is proved beyond reasonable doubt, provided they
    reach their conclusion upon the criminal standard of proof.
    Indeed, the probative force of a mass of evidence may be
    cumulative, making it pointless to consider the degree of
    probability of each item of evidence separately." 8. This last sentence from Dawson J's judgment was referred to by the magistrate at the end of his reasons, after his review of the evidence. The magistrate's findings are to be tested here by reference to Shepherd's case. It does qualify the understanding of Chamberlain's case. The appellants cannot challenge the magistrate's findings by complaining of a failure to live up to a higher burden of proof than the law requires. The findings are to be tested by reference to the principles affirmed in Shepherd. The magistrate appears to have done so in the end. After quoting from Shepherd's case, the magistrate said:-
    "In my opinion that is the case here. Whilst a number of
    matters referred to above may, standing on their own, be capable
    of an innocent explanation when all the factors I have
    mentioned, taken together, are considered, then I am of the view
    that there is overwhelming evidence implicating the defendants
    in this offence. I do not, of course, necessarily reject the
    evidence of the defendants' witnesses, Messrs Coombe and
    Richards. Mr Coombe could not identify the particular battery.
    His evidence may be entirely consistent with what occurred in
    that he did cause a battery to be placed in Mr Cartwright's
    vehicle at an earlier date. He could not categorically state
    however that the battery produced in court was the same one. It
    may indeed have been similar however I do not understand his
    evidence to be that the particular battery, that he gave to Mr
    Cartwright, was outstandingly unique. With respect to Mr
    Richards his evidence basically was that the defendants had a
    reason for being in the area at the particular time. There is
    inconsistency between he and Mr Cartwright in that whilst Mr
    Cartwright said that Mr Richards had been at his premises,
    earlier that evening and incidentally providing an explanation
    for the presence of the torch, Mr Richards said that he had gone
    to those premises but Mr Cartwright had not been home. Further
    Mr Cartwright told Senior Constable Murphy that he was going to
    Mr Richards' premises that night to assist Mr Richards to load a
    trailer, which trailer was apparently to go to Penola. He
    didn't mention about going to obtain spare parts for Mr
    Strawbridge. I do acknowledge however that he later referred to
    Mr Strawbridge's tools being in the car because they were going
    to Mr Richards'. In evidence both defendants said they were
    going to Mr Richards' place to get some spare parts. Mr
    Richards said that he had asked Mr Cartwright to come over as he
    had to load a trailer to go to an area down south. There was no
    mention of Penola but this could have been a mistaken
    recollection by Mr Cartwright. My overall view of Mr Richards
    was that he was anxious to try and assist Mr Cartwright, in some
    way, since that person is apparently a friend of his. Whilst
    that may be understandable it appeared to me that this anxiety
    to help, perhaps coloured Mr Richards' evidence. I do not
    reject Mr Richards' evidence as to the reason for the men being
    in the area etc. But it doesn't necessarily prove that they are
    innocent of the offence and it is simply a factor to be taken
    into account. In all the circumstances I am satisfied the
    prosecution have established, beyond reasonable doubt, the fact
    that on the date and time in question the defendants did
    illegally interfere with the motor vehicle, a Chrysler Galant,
    the property of Mr Haynes." 9. Counsel did not argue that the evidence about the battery was an intermediate fact requiring proof beyond reasonable doubt that it came from the Galant. However, he pointed to what the magistrate said about the battery evidence before his final remarks to indicate that the magistrate wrongly understood the evidence and that this contributed to error in that the magistrate placed more weight upon this item of evidence than his own credibility findings permitted. The magistrate said:-
    "... a battery was missing from the Chrysler and a battery
    that would have fitted that car was found in the boot of Mr
    Cartwright's vehicle. The explanation provided by the witness
    Coombe was that he had given Mr Cartwright a similar battery on
    a previous occasion. Mr Cartwright said, and Mr Coombe
    confirmed, that there was a need for this extra battery because
    of some mechanical problems with Mr Cartwright's vehicle. Both
    of these witnesses said that the battery, found by the police,
    came from the premises where Mr Cartwright was employed. They
    both stated however that the batteries kept at those premises
    were invariably marked as belonging to the particular
    organisation, that is Bolivar Motor Wreckers. It is clear that
    the specific battery, which was produced in evidence, was not
    marked at all. The witnesses could only say that this was a
    battery, which, for some reason or other, had not been
    appropriately marked. Perhaps an unfortunate coincidence for Mr
    Cartwright and his co-offender?" 10. Coombes spoke of batteries being indelibly marked but that such a mark could be removed by petrol. That possibility had to be taken into account. Other evidence from Cartwright and Coombes, spoke of a "common practice' of, "normally", or "usually" identifying batteries with a distinctive mark. By "invariably" the magistrate may have meant almost always. It may be a misprint for indelibly. On either approach, the objections taken are not made out. There is no error with respect to the burden of proof. None was imposed on the appellants. 11. The magistrate did not reject the evidence of Coombes and Richards about a battery but that did not mean that the battery evidence had to be disregarded, or that the appellants could not have committed the offence charged. The magistrate was entitled to consider what was proved about the battery as an item of circumstantial evidence. It appeared to be an incriminating piece of evidence when taken together with other evidence. An innocent explanation for the presence of a battery in the boot of Cartwright's car was neither accepted nor rejected. The magistrate was sceptical about it. He first dealt with the evidence about the battery separately and then, against what he said about that, considered it in conjunction with the other pieces of evidence. The battery evidence could be, and was relied upon as part of the evidence from which the magistrate ultimately drew the necessary inference from the whole of the evidence that the appellants were involved in dismantling the Galant on the occasion charged. I refer to the passage cited from Dawson J's judgment in Shepherd above and add to it what appears on 584 and 585 of that judgment:-
    "There is certainly no requirement of the law that the
    members of a jury must examine separately each item of evidence
    adduced by the prosecution and reject it unless they are
    satisfied beyond reasonable doubt that it is correct. Nor is it
    the law that a jury is in all circumstances precluded from
    drawing an inference from a primary fact unless that fact is
    proved beyond reasonable doubt." (584, citing Deane J in
    Chamberlain) ... The judgments in Chamberlain do not support
    the proposition that, in a case resting upon circumstantial
    evidence, the jury may only properly draw an inference of guilt
    upon facts - individual items of evidence - proved beyond
    reasonable doubt. Still less does the case establish that a
    direction in those terms should be given to a jury. Of course,
    it is recognized in Chamberlain that, if it is necessary for the
    jury to reach a conclusion of fact as an indispensable,
    intermediate step in the reasoning process towards an inference
    of guilt, then that conclusion must be established beyond
    reasonable doubt. But to say as much is to do little more than
    state a truism. It does not mean that each item of evidence
    taken into account in reaching that conclusion must, considered
    separately, be established beyond reasonable doubt."
    (585, Dawson J) 12. Dawson J then considered the facts in Shepherd's case itself. He described the evidence against the applicant Shepherd as open to classification into "three broad categories". Then, at 586, His Honour said:-
    "... Whilst it was possible to categorize the evidence in
    this manner and, no doubt, convenient for certain purposes to do
    so, it was not necessary for the jury to reach any conclusion
    upon the evidence in one category before considering the
    evidence in another. Indeed, the only proper course for the
    jury to adopt was to consider all the evidence together. Nor
    was it necessary for the jury to reach any particular
    intermediate conclusion of fact in making an inference of guilt
    on the part of the applicant, other than the obvious one,
    tantamount to an inference of guilt, that the applicant was
    engaged in a combination of the kind alleged against him. Of
    course, the jury could not properly have made that inference
    unless they were satisfied that, upon the whole of the evidence
    in all three categories, there was no reasonable explanation
    consistent with the applicant's innocence." 13. That reasoning from Shepherd's case permits the retention and use of the evidence about a battery in the boot in conjunction with the other evidence to establish beyond reasonable doubt that each appellant was guilty of the offence charged. The battery could have come from the Galant, could have come from Cartwright's work. Consider those possibilities in the light of the other evidence implicating the appellants in the commission of the offence charged. The observations of Justice McHugh in Shepherd at 592, apply here:-
    "There are many cases where the probability of the
    correctness of an inference of guilt drawn from the
    circumstances of the case is greater than the probability of the
    truth of any of the individual circumstances. As Lord Simon of
Glaisdale pointed out in Reg v Kilbourne (1973) AC 729, at p758:
    'Circumstantial evidence ... works by cumulatively, in
    geometrical progression, eliminating other possibilities.' If
    an inference of guilt is open on the evidence, the question for
    the jury is whether the inference has been proved beyond
    reasonable doubt - not whether any particular fact has been
    proved beyond reasonable doubt." 14. His Honour then gives an example with respect to a murder charge. He then said:-
    "Ordinarily, in a circumstantial evidence case, guilt is
    inferred from a number of circumstances - often numerous - which
    taken as a whole eliminate the hypothesis of innocence. The
    cogency of the inference of guilt is derived from the cumulative
    weight of circumstances, not the quality of proof of each
    circumstance. In a particular case, an inference of guilt
    beyond reasonable doubt may not be able to be drawn unless each
    fact relied on to found the inference is established beyond
    reasonable doubt. This is likely to be the case where the
    incriminating facts relied on to establish the inference are few
    in number. But the more facts that are relied on to found the
    inference of guilt, the less likely it is that each or any fact
    will have to be proved beyond reasonable doubt to establish
    guilt beyond reasonable doubt." 15. The clear proof of a battery being in the boot of the car could be combined with other evidence to eliminate as a reasonable possibility that the battery came from Cartwright's work. On its own that evidence was inconclusive. It was, nonetheless, in accordance with the principles in Shepherd, an item to be considered in deciding whether the charge had been proved beyond reasonable doubt. The cogency of the inference of guilt in this case was derived from "the cumulative weight of circumstances, not the quality of proof of each circumstance." 16. The appellants complain about observations made by the magistrate with respect to what was said by the appellants about tools. It is said the magistrate has misstated the evidence. In his reasons the magistrate spoke of "a large number of factors" pointing to the appellant's involvement with the Galant. He dealt with these after referring to Matthews case but before correctly citing from Shepherd's case. The magistrate had to consider whether, against the clear proof that the Galant had been interfered with by someone, there was no reasonable doubt that the appellants did just that. 17. There was evidence of presence at the scene in the early hours of the morning. As to this the magistrate said:-
    "The presence of the defendants is not however, of itself,
    highly sinister. It is capable of a rational explanation and a

    reasonable explanation. Indeed the explanation they have
    provided, that they were on their way to Mr Richards' premises
    at Burton Motor Wreckers, is a reasonable one and is basically
    supported by Mr. Richards' sworn testimony." 18. Again, the magistrate is looking at the evidence in isolation first, but notwithstanding the possible innocent explanation, he was entitled to include that piece of evidence with the other evidence. After all, what begins as an innocent journey may gain an unlawful act or purpose. That is what lies behind the magistrate's observation that Richards' evidence did not necessarily prove the appellants' innocence. So understood, that remark does not amount to any reversal of the onus of proof but consideration of that possible explanation in the light of the other evidence relied upon to implicate the appellants in the commission of the offence charged. Richards' evidence about the lawful purpose of the journey is not a complete answer to the charge but a factor to be taken into account when considering the whole of the evidence. 19. The magistrate then described as "questionable" why the appellants should have remained at the scene for as long as they said they did before the police arrived. In evidence they said they had been there for up to twenty minutes. The magistrate said:-
    "There is nothing that the defendants could have apparently
    achieved by remaining at the scene and it must surely be
    questionable as to why they did so. Further, when the police
    arrived the front passenger door of Mr Cartwright's vehicle was
    open. This door also provided access to a large number of tools
    which were positioned in the front passenger seat of that
    vehicle. This evidence was not disputed and again it must be
    questionable as to why the defendants chose to leave the
    particular car door open." 20. A proper construction of the magistrate's finding with respect to these two factors combined is that there was no reasonable explanation offered for remaining at the scene. Remaining with tools in the front seat was consistent with the allegations made against the appellants and consistent with yielding to the opportunity presented of committing an illegal act in the course of a journey that started with a reasonable and acceptable lawful purpose. 21. The magistrate then dealt with the evidence about tools. He said:-
    "Mr Cartwright said in evidence however that the tools were
    in the tool box when they left Mr Strawbridge's premises. Mr
    Strawbridge said, rather unsatisfactorily I thought, that he had
    thrown the tool box in the vehicle when they left his property.
    He appeared to suggest that the tool box had then come open and
    the tools had fallen out. If that was so then why were they not
    replaced since obviously they were going to be removed from the
    car at the other end and taken into Mr Richards' premises. If
    Mr Strawbridge is incorrect or not to be believed, from what Mr
    Cartwright said the tool box was apparently opened on the way to
    Mr Richards' premises. No explanation was proffered for that
    having occurred." 22. The appellant's counsel complains that the magistrate here has misunderstood some of the evidence about tools. Further on in his reasons the magistrate said:-
    "In the course of their interviews with the police Mr
    Strawbridge said that the tools in Mr Cartwright's vehicle
    belonged to Mr Strawbridge. At the hearing Mr Strawbridge said
    they were his tools and that they had been placed in Mr
    Cartwright's car as they were on their way to Mr Richards'
    premises. An explanation was given as to why the tools were
    required in that Mr Strawbridge was going to Mr Richards'
    premises to obtain some spare parts. I have no doubt that some
    dismantling could have been done at Mr Richards' premises
    however Mr Richards stated that he certainly didn't lack tools
    because his business did involve the dismantling of wrecked
    motor vehicles. The response to that, from the defence, appears
    to be that Mr Strawbridge preferred to use his own tools and not
    be responsible for using those of any other person. That
    general stand may be so however it was never suggested in
    evidence that the defendants definitely knew that the parts they
    needed from Mr Richards needed dismantling from any other motor
    vehicle. Mr Richards didn't state that to be the case when he
    gave his evidence." 23. It is true that the magistrate is incorrect in the first sentence in the passage just cited. As already noticed, at most Stratwbridge could be taken to have implied that the tools belonged to Cartwright. The magistrate is nonetheless properly identifying reasons for rejecting as credible the assertion that tools from the Corolla were not being used at the scene. 24. The magistrate referred to the evidence about the engine of the Corolla being cold. He found that took things no further. The appellants admitted being at the scene some fifteen minutes before the police arrived. The magistrate said:-
    "The contentions made by the defendants as to the presence
    of aboriginals at the scene appear to me to be unlikely. There
    is evidence that a number of large items were missing from the
    Chrysler, for example, the bonnet, the front bumper, a fender
    and engine parts. No one gave any evidence, from the defence
    side, that they observed that when the aborigines were leaving
    they were carrying tools around with them whilst they were on
    foot and in a rural area. It is possible of course that there
    is an alternative contention that someone else could have been
    there other than the aborigines and in turn had been disturbed
    by them. This however, is another, perhaps unhappy, coincidence
    for the defendants." 25. The magistrate has really disbelieved the appellants in what they said about Aborigines. Counsel complain that the magistrate's reference to unfortunate or unhappy coincidences dislose an eroneous understanding of his task in the assessment of evidence. I cannot agree about that, although unlikely seems too kind a word for the reality of rejecting the possible presence or acts of others as a reasonable explanation calling for the acquittal of the appellants. 26. The magistrate then referred to the evidence that both men had marks on their hands and fingers. He properly acknowledged this to be consistent with guilt and with innocence. No complaint is made about this. The magistrate then dealt with the evidence about the torch. He said:-
    "In addition to the tools in the front of Mr Cartwright's
    vehicle there was apparently discovered a torch. This torch,
    according to Mr Cartwright, belonged to Mr Richards, since Mr
    Richards had left the item at Mr Cartwright's premises earlier
    that evening. There was no explanation as to why the torch was
    placed in the area with Mr Strawbridge's tools. If it belonged
    to another person then perhaps it should have been kept apart.
    Further if the defendants were remaining at the scene, to make
    some investigation of the Chrysler, there must be an enquiry as
    to why the torch was not being used." 27. The defendants both stated to the police that they were checking the Chrysler for damage when the police arrived. This must be questionable as there were no lights in the area and the headlights of Mr Cartwright's car had been turned off. The defendants suggested that the parking lights had been left on but I cannot see where that was ever put to police officers. The only light the police officers deposed to have seen was an illumination from an interior light. I have already mentioned the fact that the torch was found in the front passenger seat of Mr Cartwright's car. If the defendants were engaged in an investigation of either an accident or checking the Chrysler for damage then it certainly appears strange that they had no illumination upon the Chrysler and the area around it." 28. The magistrate then referred to submissions of counsel. He said:-
    "It was submitted by Mr O'Reilly for Mr Cartwright that
    large items were missing from the Chrysler when the police came
    upon the scene. None of these items were located in Mr
    Cartwright's vehicle nor were they in the vicinity of Mr
    Cartwright's vehicle. There are a number of explanations which
    are available for this, for example that the vehicle could have
    been partially dismantled elsewhere before being dumped at this
    spot. Other persons could equally have come to the scene
    beforehand and unlawfully taken parts. I have already mentioned
    that these aborigines apparently did not carry out any
    'stripping'. There is a further explanation that other persons,
    connected with the defendants, had loaded parts and left the
    scene before the police arrived. If the engine was cold and a
    sinister inference was to be drawn from that, then there is a
    possibility that the defendants had been at the scene some
    considerable time prior to when the police came upon them." 29. The magistrate then concluded his reasons with the reference to Shepherd's case and remarks already quoted. The appellants complained that the evidence was that the only large item not in the vicinity of the Galant was the bonnet. That is correct. The magistrate's mistaken view of the evidence is said to have him thinking of explanations consistent with guilt and wrongly putting the burden of proof upon the appellants to prove their innocence. I reject that submission. There was no error adverse to the appellants in the magistrate's understanding of his task in the assessment of evidence. The credibility of the appellants did not escape unscathed. Ultimately a proper assessment of items of evidence in a cumulative sense occurred, sufficient to justify the ultimate inference of guilt. There were just too many coincidences to be waved away. There is no identifiable error of law or significant misunderstanding of the evidence which calls for interference on appeal. Reviewing the evidence for myself and assessing its quality against the findings properly made by the magistrate, I would convict the appellants. The appeal is dismissed and the convictions affirmed.