Leuschel v Police

[1999] SASC 409

LEUSCHEL v THE POLICE
[1999] SASC 409

Magistrates Appeal

1. DOYLE CJ.                 These are my reasons for my decision, at the hearing of this appeal, to allow the appeal, set aside the appellant’s conviction, and order a retrial.

2. The appellant was charged in the Magistrates Court at Mount Gambier with breaking and entering a service station at Mount Gambier, and taking from those premises cigarettes and tobacco to the value of about $5,584.95 and money amounting to $480.00.

3. The evidence established that the offence was committed between the time when the premises closed about 10.00 pm on Friday 15 May 1998 and the time when the premises reopened for business about 7.00 am on Saturday 16 May 1998.

4. The appellant was arrested and charged with the offence on 30 July 1998.  The trial did not take place until 25 May 1999.  The endorsements on the Information indicate that adjournments were sought at different times by both sides.  Such a long delay in a relatively straightforward case is most undesirable.

5. At the trial the appellant was legally represented.  He pleaded not guilty.  The only evidence implicating the appellant was a single fingerprint found near the doorway through which entrance had been gained to the premises.

6. At the close of the prosecution case no evidence was called for the defence.  Counsel for the appellant submitted that there was no case to answer.  The magistrate found that there was a case to answer.  He found that the fingerprint was the appellants, and no explanation for its presence being advanced, he inferred that the print was left there by the appellant in the course of committing the offence.  The magistrate convicted the appellant.

7. The appellant appealed on the ground that the magistrate’s process of reasoning was unsafe and unsound.  Subsequently the appellant sought leave to call evidence in support of the appeal, and to argue that the evidence, which had not been presented at trial, led to the conclusion that an unsafe and unjust conviction had been recorded.

8. The evidence that the appellant sought to call supported a defence of alibi.  The effect of the evidence was that the appellant had driven his motor car from Mount Gambier to Adelaide on Friday 15 May 1998, arriving in Adelaide at the home of a friend at about 2.00 am.  The evidence was that it had taken him about four or five hours to drive that distance.  If this evidence were accepted, it could give rise to reasonable doubt about the appellant’s guilt, because on this evidence he must have left Mount Gambier by about 10.00 pm on the Friday or earlier.

9. I decided that I should hear the evidence explaining why this evidence had not been led at trial, and also the evidence as to the alibi.

10. There are many cases that consider the approach to be taken to an appeal against conviction that relies for its success upon evidence, tending to disprove guilt, that was not presented at the trial.  Usually a court will not set aside a conviction on the basis of such evidence if, with reasonable diligence, the evidence could have been presented at the trial:  Gallagher v The Queen (1986) 160 CLR 392. This approach is not required by a rule of law. The ultimate issue for an appellate court is whether there has been a miscarriage of justice. The approach that a court usually takes, in deciding if there has been a miscarriage of justice, reflects an aspect of our system of trial, and a practical approach to the administration of justice. At trial the prosecution and the defence each have the opportunity to present their case. It is at trial that the evidence upon which innocence or guilt is to be decided must be presented. There are powerful reasons of justice and efficiency for holding each party to the course adopted at trial. Failure by the defence to present available evidence will usually mean that a court of appeal will hold that the evidence cannot be relied upon in support of an appeal. But, as I have already said, the ultimate issue involves considering the requirements of justice.

11. The appellant’s reason for not presenting evidence in support of his alibi at trial was an unusual one.  At first sight, I found it difficult to believe.  His evidence was that prior to the trial he had no recollection of his movements on the night in question.  Having no recollection of his movements, and no particular explanation to offer for the presence of the fingerprint, he gave no evidence.  After he was convicted he was brought to Adelaide for submissions on sentence.  His mother and father visited him in gaol.  He had not discussed the offence with them before that.  When talking about the circumstances of the offence with his parents, his mother reminded him that on the Saturday morning in question he had arrived at his parents’ home in Adelaide at about 7.00 am with a Mother’s Day present for his mother.  Contact was made with a friend of the appellant who lived close to his parents.  She was able to confirm that on the occasion in question the appellant had arrived at her home at about 2.00 am.  He had discussed with her the Mother’s Day present that he had for his mother.  He left her home at about 7.00 am and then went to his parents’ home.  Until reminded of all this by his mother, the appellant had no memory at all of the incident.

12. Ordinarily, a claim to have completely forgotten such an incident would not be credible.  Nor would a claim of forgetfulness be a sufficient basis, in any event, to permit reliance on appeal upon proof of an alibi.  However, after hearing the appellant, his parents and the appellant’s friend, I was satisfied that the appellant was telling the truth when he said that he had forgotten the trip to Adelaide.  I was also satisfied that this was an exceptional case in which the interests of justice required that I consider whether there was a significant possibility that the appellant would have been acquitted if this evidence had been presented at trial.

13. The appellant left school aged 15 years.  He went no further than year 8 standard.  In his own words, some of his schooling was at a workshop for “slow kids”.  The appellant has a limited ability to read.  He has a slight speech impediment.  He says that his memory suffers from excessive use of drugs and alcohol over a significant period of time.  He was drinking heavily in May and June 1998, at about the time of the offence and prior to his arrest.

14. The appellant is somewhat inarticulate.  I am satisfied that at times he has genuine difficulty explaining himself, and at times has genuine difficulty understanding questions that most people would not find difficult.  I accept as truthful the appellant’s claim that he has real memory problems.

15. Having heard the appellant give his evidence, and having had the opportunity to observe him, I was satisfied that there was a ring of truth to his explanation for not presenting his defence at trial.  The claim that he had forgotten about his trip to Adelaide on the Friday after Mother’s Day was believable, as was his explanation about the circumstances under which he was reminded of the trip.

16. I accepted the appellant’s evidence that he had forgotten the trip to Adelaide.  I was satisfied that the conduct of the defence case at trial did not reflect a deliberate decision not to rely upon the evidence.  Nor was this a case of failing to pursue an available line of enquiry.  The appellant had no reason to think that there was a line of enquiry to be pursued.  To put it bluntly, the appellant is a man of very limited intellect.  I can well understand how he might have felt helpless, not having any memory of his movements on the night in question.  Having seen him, and having gained an understanding of his capacities, the failure to make all possible enquiries about his whereabouts was understandable.

17. For those reasons, I consider that this was a truly exceptional case.  I was satisfied that the interests of justice required that I consider the evidence in support of the alibi.

18. I heard evidence from Mr and Mrs Leuschel.  Mrs Leuschel in particular gave her evidence in a straightforward fashion stating that she remembered the occasion in question quite clearly, because her son rarely gave her a Mother’s Day present.  She also remembered the fact that when it came it was about a week late.  I also heard evidence from Ms Brooks, the friend of the appellant.  She confirmed that about a week after Mother’s Day he arrived at her home at 2.00 am and had with him a Mother’s Day present for his mother.  She remembered discussing that with him.  Mr Leuschel (senior) also gave evidence of the late present.

19. Once the court decides that an appellant is entitled to support a ground of appeal with evidence not presented at trial, the question becomes whether there is a significant possibility that the court would have acquitted the appellant had the evidence been before it:  Mickelberg v The Queen (1989) 167 CLR 259 at 274 Mason CJ. That question has two aspects. The first is whether the evidence is apparently credible. If there is no prospect of the evidence being accepted, it could not have resulted in an acquittal. The second aspect is whether, if the evidence is apparently credible, there is a significant possibility that it would have resulted in an acquittal.

20. In considering the evidence about the alibi my task is not to decide whether the appellant is innocent or guilty.  My task is to decide whether the evidence in support of the alibi is apparently credible, and if it is, whether there is a significant possibility that its presentation at trial would have resulted in an acquittal.  I found the appellant’s parents and Ms Brooks to be credible.  If believed, the evidence does tend to point towards the appellant arriving in Adelaide at about 2.00 am on Saturday 16 May, having spent at least four hours driving to Adelaide.  I am satisfied that the evidence is apparently credible, and that there is a significant possibility of an acquittal if it is presented.  I do not need to go any further than that.

21. For those reasons, the appellant should have the opportunity to present his defence.  I emphasise that I have done no more than decide that the alibi evidence has the required quality.  It will be for a Magistrate to decide whether, having heard the evidence, the Magistrate is satisfied beyond reasonable doubt of the appellant’s guilt.

22. It is for those reasons that I made the order allowing the appeal and ordering a retrial.