Lee v Police

Case [2015] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LEE v POLICE

[2015] SASC 70

Judgment of The Honourable Justice Blue

8 May 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - MENS REA

CRIMINAL LAW - EVIDENCE - HEARSAY - EXCEPTIONS GENERALLY

Appeal against conviction.

The defendant was convicted by a Magistrate of seven counts of theft, five counts of illegal use or interference, two counts of entering residential premises to commit theft and three counts of entering or being unlawfully on premises.

Between 10 and 17 November 2012, a series of thefts and motor vehicle illegal use or interference offences were committed in the Aldinga Beach area.  The offences comprised:

1.      On 11/12 November 2012 illegal entry into a shed and theft of a shotgun at Aldinga Beach.  A screwdriver and knife found outside the shed contained the defendant’s DNA.

2.      On 12/13 November 2012 illegal entry into a shed, unlawful taking of a Mercedes and theft of items in the Mercedes at Seaford Rise. One week later the Mercedes was found at Port Willunga.  A cigarette butt found in the Mercedes contained the defendant’s DNA.

3.      On 12/13 November 2012, a Holden utility was taken from a house at Willunga.  The utility was found the next morning at Aldinga Beach.  A glove found inside the utility contained the defendant’s DNA as well as DNA contributed by a second person.

4.      On 12/13 November 2012 two batteries, two petrol cans, a toolbox and a pram were taken from three separate locations in Aldinga Beach.  One battery was found outside a neighbour’s house and the other items were found in or in the vicinity of the Holden utility.

5.      Sometime before 17 November 2012 a person entered a house at Aldinga Beach, took several items and damaged a Commodore vehicle in attempting to start it.  A hooded top containing a cigarette lighter found outside the back door each contained the defendant’s DNA as well as DNA contributed by one or two other persons.

The issue at trial was the identity of the offender.  The prosecution tendered various witness statements and other exhibits by consent.  The defendant did not give evidence.

The defendant appeals against his conviction on four grounds:

1.      The Magistrate erred in finding beyond reasonable doubt that the defendant was the offender based upon his DNA being found on objects at the scene of four sets of offences.

2.      It was not proved beyond reasonable doubt that the defendant intended to deprive the owner permanently of the petrol cans, car batteries or pram or make a serious encroachment on the owner’s proprietary rights.

3.      The Magistrate relied on inadmissible hearsay evidence as to the ownership and lack of consent of the owners of two of the sets of items.

4.      There was no evidence that the shed from which the shotgun was taken was a place of residence.

Held:

1.      The shed from which the shotgun was taken was not proved to be a place…

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Lee v Police [2015] SASC 70
Case
[2015] SASC 70
Decision Date

CaseChat Overview and Summary

In Lee v Police, the defendant appealed his convictions on several grounds, including the Magistrate's decision regarding the admissibility of DNA evidence, the proof of the requisite mens rea for certain theft charges, and the reliance on hearsay evidence by a police officer. The defendant was convicted of multiple offences, including theft, illegal interference with vehicles, and entering residential premises to commit theft. The court had to determine whether the DNA evidence was sufficiently distinctive to warrant a finding of guilt, whether the necessary intent to permanently deprive the owner of property was proven, and whether the hearsay evidence was admissible under the circumstances.

The court found that the DNA evidence was indeed distinctive enough to support the defendant's conviction, particularly when considered in conjunction with other crimes that had similar DNA evidence. The court held that the DNA evidence was too coincidental to be explained by any innocent hypothesis, and therefore supported the defendant's guilt beyond reasonable doubt. Regarding the mens rea for certain theft charges, the court determined that the defendant's intent to permanently deprive the owner of the property was sufficiently established through the nature of the crimes and the defendant's actions. The court also held that the hearsay evidence was admissible as the existence of the offences was not genuinely in dispute, and the defendant had not objected to the hearsay evidence during the trial.

The court allowed the appeal in respect of count 14, which involved entering a residence to commit theft, and set aside the defendant's conviction on that count, substituting a judgment of acquittal. The court dismissed the appeal in all other respects. The court directed the parties to be heard as to any consequential orders that may be necessary.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals against his convictions on the following grounds:1.As to all counts, the Magistrate erred in finding that the evidence of his DNA on objects located at several different crime scenes was too much of a coincidence to be explained away by a hypothesis consistent with his innocence.2.As to four of the theft counts (involving jerry cans, car batteries and a pram), it was not proved beyond reasonable doubt that the defendant intended to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights.3.As to two of the theft counts, two of the illegal interference counts and one of the unlawfully on premises counts, the Magistrate erred in relying on inadmissible hearsay evidence by a police officer of what he was told by the owners.4.As to one of the entering residential premises to commit theft counts, there was no evidence that it was a place of residence.Background Sometime between 7.00 pm on 11 November 2012 and 6.30 am on 12 November 2012, a Remington shotgun was stolen from a locked cabinet inside a locked shed at the rear of a house at Esplanade Aldinga Beach. On the morning of 12 November 2012, the owner, Mr Mills, found the cabinet broken into and the shotgun missing. He located two screwdrivers, a bread knife and scissors under a tree by the front of the shed. The entry into the shed and theft of the shotgun were the subject of count 14 - entering a residence to commit theft; and count 15 – theft of Mr Mills’ shotgun (the Mills offences). DNA was later extracted from one screwdriver and the knife and compared with DNA from a buccal swab taken from the defendant. The DNA matched the defendant’s DNA with probabilities of 100 billion to one in the case of the knife and 3.6 million to 1 in the case of the screwdriver. The DNA was from a single source. In the early hours of 13 November 2012, police received a report of a car break-in at a house at Ocean Street Aldinga Beach. At about 6.30 am, Senior Constable First Class Clarke and Senior Constable Holmes attended and spoke to Ms Collier at the house. They found a car battery outside the next door neighbour’s house. They found a yellow toolbox containing tools (collectively the toolbox) in the back of a Holden utility parked in the driveway of a house on the corner of Thomas Street and Ocean Street (the Thomas Street house), which house was about 50 metres from Ms Collier’s house. They found a petrol can on the ground near the Holden utility. Senior Constable Holmes was told by Ms Collier that the toolbox, petrol can and car battery belong to her and had been stolen from her shed that night. The entry onto the premises and taking of the items were the subject of count 6 - being unlawfully on premises; count 7 – illegal interference with Ms Collier’s motor vehicle by removing the battery; and count 8 – theft of Ms Collier’s toolbox, petrol can and car battery (the Collier offences). Senior Constable Holmes looked around nearby streets. He saw a white utility with Western Australian number-plates parked out the front of a house in Whinnerah Avenue, which avenue intersects Ocean Street. That house was about 100 metres from the Thomas Street house. The utility had its bonnet up and battery missing. Senior Constable Holmes was told by the occupant of the house, Ms Slater, that the battery had been stolen from her utility. The police located the battery connected by jumper leads to the battery in the Holden utility in the driveway of the Thomas Street house. The removal and taking of the battery were the subject of count 12 – illegal interference with Ms Slater’s motor vehicle by removing the battery; and count 13 – theft of Ms Slater’s car battery (the Slater offences).

Evidence

Evidence Before The Court

This ground of appeal is made out. Count 14 must be dismissed.Hearsay evidence of theft: counts 6-8, 12-13 The defendant contends that, in the absence of evidence from Ms Collier and Ms Slater that the items alleged to have been stolen belonged to them and were taken without their consent, there was no proof that the items were taken without the owner’s consent as required by section 134 of the Act, nor proof that the vehicles from which the batteries were taken were interfered with without the owner’s consent as required by section 86A of the Act, nor proof that the person who entered the property said to have been occupied by Ms Collier did so without lawful excuse as required by section 17 of the Summary Offences Act 1953 (SA). This point was evidently not argued before the Magistrate. It is obvious that the respondent could have adduced evidence from Ms Collier and Ms Slater if the point had been taken at trial. As noted above, a statement by Senior Constable Holmes was tendered without objection by the defendant. That statement contains hearsay evidence by Senior Constable Holmes that he spoke to Ms Collier on the morning of 13 November 2012 and she told him that the car battery, petrol can and toolbox which she identified as belonging to her had been stolen and that he spoke to Ms Slater on the morning of 13 November 2012 and she told him that her battery had been stolen from her utility parked out the front of her house at Whinnerah Avenue. What Senior Constable Holmes was told by Ms Collier and Ms Slater was not relevant at trial other than as evidence of the truth of what Ms Collier and Ms Slater said. The issue at trial was identity. There was no suggestion at trial by the defendant that the existence of the offences, as opposed to the identity of the offender, was in issue. The Magistrate had power to admit hearsay evidence in respect of a matter not genuinely in dispute. In the circumstances, given the manner in which the defendant conducted the trial and in particular the failure to object to the obvious hearsay statements contained in Senior Constable Holmes’ witness statement and the fact that the existence of the offences was not in dispute, the hearsay evidence contained in Senior Constable Holmes’ witness statement was rightly admitted. This ground of appeal fails.Intention to make serious encroachment: counts 3, 8, 11 and 13 The defendant contends that, in the case of Mr Roach’s and Ms Collier’s jerry cans, Ms Collier’s and Ms Slater’s car batteries, Ms Collier’s toolbox and Ms Green’s pram, there was insufficient proof that the defendant intended to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights as required by section 134 of the Act. This point was apparently not argued before the Magistrate. However, the respondent does not contend that any prejudice was suffered as a result or that any other evidence would have been adduced relevant to the question whether the requisite mental element was established. I therefore address this ground on its merits.

Decision

Reasons for decision

If the Dare offences had been isolated offences standing alone, the mere fact that the defendant’s DNA was found on the cigarette butt found in Mr Dare’s Mercedes may have been consistent with a reasonable doubt that the defendant was the person who took the Mercedes or the items in it that were missing when it was found by the police. However, when the Thiele, Newchurch, and Mills offences are considered together with the Dare offences, it becomes extremely unlikely that the defendant’s DNA was present on a cigarette butt consistently with an innocent explanation. The Magistrate was entitled, when considering whether it was proved beyond reasonable doubt that the defendant was the offender in relation to the Dare offences, to have regard to the fact that the defendant’s DNA was found at the scene of the crime in relation to each of the Thiele, Newchurch and Mills offences. It was open to the Magistrate to be satisfied beyond reasonable doubt that the defendant was the offender in relation to each of the Dare offences.Conclusion I allow the appeal in respect of count 14. I set aside the defendant’s conviction on count 14 and substitute a judgment of acquittal. I otherwise dismiss the appeal. I will hear the parties as to consequential orders.

Ratio Decidendi

Legal Principle Established

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