Lisi v Australian Federal Police
[2022] SASC 56
•9 June 2022
Supreme Court of South Australia
(Magistrates Appeal: Criminal)
LISI v AUSTRALIAN FEDERAL POLICE
[2022] SASC 56
Judgment of the Honourable Justice McDonald
9 June 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
CRIMINAL LAW - EVIDENCE - GENERALLY
Appeal against a conviction imposed by a Magistrate.
The appellant was found guilty by a Magistrate of attempting to leave Australia while on a child protection offender register, contrary to s 11.1(1) and 271A.1(1) of the Criminal Code (Cth). The offence occurred on 26 July 2019, when the appellant and his wife attended Adelaide Airport where they were booked to travel on Jetstar airline international flight JQ125 to Denpasar, Bali. The appellant and his wife were intercepted prior to boarding the flight by the Australian Federal Police ('AFP'). The appellant had not been granted permission to leave Australia by the ANCOR Registrar at SAPOL, nor any other Competent Authority under s 12 of the Australian Passport Act 2005 (Cth). The appellant gave evidence at trial that he only became aware for the first time that his wife had purchased the tickets in his name to fly to Bali when the AFP approached him at the international departure gate. It was the appellant’s position at trial that the prosecution could not prove beyond reasonable doubt that the appellant’s actions went beyond the mere preparation to leave Australia and further, that the prosecution could not prove that he had intended to leave Australia.
The appellant now relies upon seven grounds of appeal. Each of these grounds relate to factual findings either made or not made by the Magistrate, and the inferences that could be drawn from those findings.
Held, dismissing the appeal:
1. None of the appeal grounds are made out. The appeal is dismissed.
Criminal Code (Cth) s 11.1(1), s 271A.1(1); Child Sex Offenders Registration Act 2006 (SA) s 19, referred to.
Walton v The Queen (1989) 166 CLR 283; Warren v Coombes (1979) 142 CLR 531, applied.
Ratten v The Queen [1972] AC 378; R v Andrews [1987] AC 281, discussed.
LISI v AUSTRALIAN FEDERAL POLICE
[2022] SASC 56Magistrates Appeal: Criminal
McDONALD J:
Introduction
On 15 November 2021, the appellant was found guilty of one count of attempting to leave Australia whilst on a child protection offender register, contrary to ss 11.1(1) and 271A.1(1) of the Criminal Code (Cth). This offence arose out of events that occurred at the Adelaide Airport on the morning of 26 July 2019. The particulars of the offence were that:
On 26 July 2019 at Adelaide Airport in the state of South Australia, Albert LISI, being an Australian citizen whose name is entered on a child protection offender register namely the South Australian Child Sex Offender Register and who is subject to reporting obligations in connection with that entry on the register, attempted to leave Australia, contrary to section 11.1(1) and section 271A.1(1) of the Criminal Code (Cth).
The appellant pleaded not guilty to the charged offence. The matter proceeded to trial before a Magistrate in the Adelaide Magistrates Court on 6 August 2021 and 29 September 2021.
The trial
The evidence at trial comprised of a detailed statement of agreed facts, two police witnesses, CCTV footage from the Adelaide Airport and the evidence of the appellant and his wife. Much of the evidence was not contentious. The issues were very narrow.
There was agreement between the parties as to the elements of the offence:
1.The appellant is an Australian citizen.
2.The appellant’s name is entered on a child protection offender register (however described) of a State or Territory.
3.The appellant has reporting obligations (however described) in connection with that entry on the register.
4.The appellant attempted to leave Australia – that is the appellant engaged in conduct more than preparatory to leaving Australia.
There was no dispute that the first three elements of the offence were established. It was the fourth element that was in dispute. It was the appellant’s position at trial that the prosecution could not prove beyond reasonable doubt that the appellant’s actions went beyond the mere preparation to leave Australia and further, that the prosecution could not prove that he had intended to leave Australia.
Agreed facts
The evidence commenced with the respondent tendering a statement of agreed facts.[1] These agreed facts formed the backdrop for the evidence called at trial. In order to understand the issues that arose during the trial, it is necessary to set them out in full.
[1] Exhibit P1.
Background
1.Albert Lisi (the Defendant) is an Australian Citizen.
2.The Defendant became an Australian citizen on 22 May 2012.
3.The Defendant has an Australian passport.
4.On 10 May 2016 the Defendant was convicted of an offence that is listed as a Class 2 offence in Schedule 1 of the Child Sex Offenders Registration Act 2006 (SA).
5.As a result, the Defendant became a registrable offender on the Australian National Child Offender Register (ANCOR) and subject to reporting obligations for 8 years, commencing 10 May 2016.
6.The Defendant was allocated identifying number 0052246.
7.A registrable offender intending to travel out of Australia is required to report the intended travel at least 7 days before leaving or, if circumstances arise making it impractical to do so, then at least 24 hours before leaving.
8.Since 13 December 2017 it has been an offence for certain registered offenders to travel overseas, unless a competent authority has given permission for the person to leave Australia or the person’s reporting obligations are suspended, pursuant to s 271A.1 of the Criminal Code (Cth).
Induction to ANCOR
9.The Defendant and his wife attended an initial registration meeting with South Australian Police (SAPOL) on 18 June 2016.
10.The Defendant was taken through an Initial Registration questionnaire (Form PD660) and a Notice of Ongoing Reporting Obligations (Form PD660A).
11.The PD660A Notice outlines various reporting obligations including for leaving South Australia.
12.The Defendant signed an acknowledgement on both documents.
ANCOR Annual Review
13.A person registered with ANCOR is required to attend an annual review with police.
14.The Defendant attended an annual review with SAPOL on 28 June 2019.
15.The Defendant was taken through an Annual Registration questionnaire (Form PD660)[2] and a Notice of Ongoing Reporting Obligations (Form PD66A).[3]
[2] Exhibit P2.
[3] Exhibit P3.
16.The PD660 questionnaire contains the following on page 17:
You are advised that from 13 December 2017 it is a Commonwealth offence to attempt to travel overseas without prior approval from Police. You should make an application to your case manager as soon as possible, for permission to leave Australia. DO NOT PURCHASE TICKETS OR MAKE RESERVATIONS PRIOR TO PERMISSION FOR OVERSEAS TRAVEL BEING GRANTED.
17.The Defendant signed each page of the PD660 and a certification on page 18.
18.The PD660A Notice provides a similar statement at page 3.
TRAVEL
…
Overseas:You are advised that from 13 December 2017 it is a Commonwealth offence to attempt to travel overseas without prior approval from Police. You should make an application to your case manager as soon as possible if you have exceptional circumstances for which you need to travel.
19.The Defendant signed an acknowledgement on the PD660A confirming the notice had been explained to him.
20.At his review, the Defendant indicated that he and his wife had discussed potentially travelling overseas within the next reporting period. The Defendant was reminded of the requirement to make a formal request.
Attempted Travel
21.On 23 July 2019, Marjeta LISI, the Defendant’s wife, purchased two airline tickets online for travel with Jetstar Airways on 26 July 2019 from Adelaide to Denpasar, Indonesia.
22.One ticket was in the name of the Defendant’s wife, and the other ticket was in the name of ‘Albert Lisi’ with the Defendant’s date of birth and passport number also provided.
23.On 26 July 2019 at approximately 4:45 am the Defendant in company with his wife attended at Jetstar Airways check in area at Adelaide Airport. At approximately 4:46 am, the Defendant’s wife operated the Jetstar kiosk to obtain printed boarding passes for Jetstar Airways flight JQ125 departing at 6:35 am on 26 July 2019. At approximately 4:48 am, the Defendant’s wife checked in two bags for this same flight.
24.The aircraft that was to conduct Jetstar Airways flight JQ125 was an Australian aircraft, as defined in the Criminal Code (Cth).
25.The Defendant and his wife attended the screening check point at Adelaide Airport Terminal.
26.By approximately 5:37 am the Defendant and his wife had passed through the security screening point at Adelaide Airport Terminal and entered the sterile area of the Adelaide Airport.
27.At approximately 5:40 am, while the Defendant and his wife were within the sterile area of the Adelaide Airport, Senior Constable Nicholas JACK of the Australian Federal Police contacted Mrs Lisi by telephone using details obtained from Jetstar. Senior Constable JACK requested that Mrs Lisi and the Defendant attend the international departure screening point at the Adelaide Airport and make themselves known to police. Nothing further of substance occurred during this contact.
28.Police found the Defendant in the possession of a Jetstar Airways ticket in his name.
29.After some discussion with Police, the Defendant in company with his wife departed the Adelaide Airport without travelling.
30.The Defendant had not been granted permission to leave Australia on 26 July 2019 by the ANCOR Registrar at SAPOL nor any other Competent Authority under s 12 of the Australian Passports Act 2005 (Cth).
Investigation
31.At approximately 11:03 am on 20 September 2019 Federal Agent EDWARDS made a Closed Circuit Television (CCTV) request to the Australian Border Force, for CCTV footage in relation to the incident on 26 July 2019. Federal Agent EDWARDS subsequently received from the Australian Border Force, one DVD of CCTV footage marked: ‘LISI, Albert (M) 29JUL1982’, dated 20 September 2019.
32.At approximately 9:50 am on 29 November 2019, Federal Agent Darren EDWARDS accessed the Adelaide Airport Limited, Closed Circuit Television (CCTV) System and downloaded CCTV footage of the Adelaide Airport for the period between about 4:44 am and 6:03 am on 26 July 2019 to a DVD and labelled that DVD: “AAL CCTV 26.7.19 1”. This was added to the Australian Federal Police, Police Real-Time Online Management Information System (PROMIS).
The prosecution case
The first witness called by the prosecution was Detective Brevet Sergeant Alex Grimaldi. At the relevant time Sergeant Grimaldi was stationed at the Adelaide Criminal Investigation Branch. Part of his role involved the management of offenders on the Australian National Child Offender Register (ANCOR) database. It was in that role that Sergeant Grimaldi came to have dealings with the appellant. Sergeant Grimaldi gave evidence that as someone on the ANCOR database the appellant was required to attend at annual reviews. These reviews would involve the appellant attending at the Grenfell Street Police Station in order for Sergeant Grimaldi to discuss with the appellant whether there had been any change in the appellant’s circumstances in the past year. During these reviews two police proforma documents, a PD660 “Australian National Child Offender Register (ANCOR) – Initial Report (Section 13) / Annual Report (Section 15) / Post Custody Report (Section 16)” and a PD660A “Australian National Child Offender Register – Ongoing Reporting Obligations”, were filled in.
Sergeant Grimaldi gave evidence that on 28 June 2019 he participated in an annual review with the appellant. On this occasion both a PD660[4] and a PD660A[5] were completed. Sergeant Grimaldi advised the appellant that from 13 December 2017 it had become a Commonwealth offence to attempt to travel overseas without obtaining prior approval from the police. That information was contained in the PD660A which he was required to complete with the appellant. Sergeant Grimaldi told the appellant that he should make an application to his case manager as soon as possible if there were exceptional circumstances which would require him to travel overseas. After Sergeant Grimaldi provided that advice, the appellant signed the PD660A to acknowledge that he had been provided with the relevant information.[6]
[4] Exhibit P2.
[5] Exhibit P3.
[6] Exhibit P3.
Sergeant Grimaldi also gave evidence that on either this or a previous occasion, in the context of the appellant raising an intention to travel, there was a discussion in which Sergeant Grimaldi advised him that in order to travel, permission had to be sought from the Registrar and there was paperwork that had to be completed. It was also an agreed fact that:
At this review, the Defendant indicated that he and his wife had discussed potentially traveling overseas within the next reporting period. The Defendant was reminded of the requirement to make a formal request. [7]
[7] Exhibit P1.
Although it is not completely clear, I have assumed that this conversation is the same conversation that Sergeant Grimaldi gave evidence about.
Sergeant Grimaldi also gave evidence about a subsequent communication that he had with the appellant’s wife, Marjeta Lisi. On 29 October 2018, he had received a telephone call from Mrs Lisi. The topic of conversation was a travel request for “intended family travel to Bali for five days at the end of November”.[8] Sergeant Grimaldi made an electronic note of that conversation. That note reads:[9]
DBS GRIMALDI received telephone call from wife of LISI, Marjeta LISI, at 1030hrs., 29/10/2018, with regards to travel request for intended family travel to Bali for 5 days at the end of November. Travel Request For (sic) emailed to Marjeta and advised to email the request form through to ANCOR Registrar for consideration/Approval. Emailed to [Mrs Lisi’s email address]. Also advised that they have closed down their Fast Food Business at Walkerville due to not being able to sell it. Business was closed down on 17/07/2018 & LISI is now currently unemployed.
[8] T12.
[9] Exbibit P4.
The second witness called by the prosecution was Senior Constable Darren Edwards. On 26 July 2019, Senior Constable Edwards was a member of the Airport Unit Uniformed Operations Police. On that day he had commenced work at 5.00 am and was based in the Adelaide Airport office of the Australia Federal Police (AFP). Generally speaking, the evidence of Senior Constable Edwards related to how the AFP became aware of the presence of the appellant at the airport and the circumstances in which police came to speak with him. The only aspect of Senior Constable Edwards’ evidence that appears to have been contentious were the details of a conversation that he said that he had with the appellant and Mrs Lisi in the departures’ hall. Given that the Magistrate ultimately did not rely on that conversation as recounted by Senior Constable Edwards I do not propose to traverse the details of his evidence on that topic.
The final aspect of the prosecution case were two CDs containing footage from selected CCTV cameras at the Adelaide Airport. I will come to deal with some of the details of what can be observed on that footage when I come to the evidence of the appellant and Mrs Lisi and the various grounds of appeal. Suffice for now to say, that they are depicted as behaving like any other ordinary couple checking in at an airport. They work as a team, doing all that is necessary between them to check in. There is nothing that can be observed about their behaviour that is any way untoward or remarkable.
The defence case
As said previously, the appellant and Mrs Lisi both gave evidence. In summary, the combined effect of their evidence was that the appellant had no intention of travelling overseas on 26 July 2019. The appellant was aware of his obligations as someone on the ANCOR register, in particular he knew of the obligation to seek permission prior to overseas travel and it was his evidence that he had no intention of failing to comply with those obligations.
It was the evidence of the appellant and Mrs Lisi that the plan to travel to Bali was hers and hers alone. She had consulted with her sister who was already in Bali. She had unbeknownst to the appellant purchased the tickets and arranged for the accommodation. She had done so on the basis that it was to be a surprise for his birthday. It was their evidence that prior to 26 July 2019, Mrs Lisi had deliberately withheld their destination from the appellant on the basis that she wanted it to remain a surprise. Further, once they got to the airport she continued to keep from him the location to which they were travelling. It was the appellant’s evidence that nothing had occurred at the airport that alerted him to the fact that the intended destination was Bali. It was his evidence that the first time he became aware of that arrangement was when he was with the police in the international departures’ hall.
The Verdict
Reasoning process
On 15 November 2021, the Magistrate delivered a 20 page judgment. He found the appellant guilty of the offence charged.
As already mentioned there was little evidence on the prosecution case that was in dispute. Central to arriving at a verdict was the Magistrate’s assessment of the evidence of the appellant and Mrs Lisi, and his interpretation of what can be seen on the CCTV footage. Given that there was limited dispute about the latter, the most critical aspect of the Magistrate’s task was his assessment of the credibility and reliability of the appellant and Mrs Lisi and his determination of whether their evidence was a reasonable possibility.
In those circumstances it is not surprising that much of the Magistrate’s judgment is taken up with the most critical aspects of the evidence of the appellant and Mrs Lisi. The Magistrate structured his judgment by first of all setting out by way of background those matters which were not in dispute. He then summarised the evidence of the appellant and Mrs Lisi in neutral, non-critical terms. The Magistrate then dealt with the two fundamental issues to be determined, namely whether the appellant intended to leave Australia and whether the appellant’s conduct was more than merely preparatory to the commission of the offence.
As to the former, the Magistrate then considered each of the 10 key topics that arose on the evidence. These were:
1.Surprise birthday present.
2.Past travel experience.
3.Passports.
4.Mrs Lisi’s knowledge of the ANCOR reporting obligations when she booked the flights to Bali.
5.The surprise.
6.Use of passport at airport.
7.Information on boarding pass.
8.Information on printed luggage tag.
9.The defendant’s literacy and English language skills.
10.Telephone contact from police at Adelaide Airport.
[My numbering]
The Magistrate then canvassed the evidence on each of those topics and made findings of fact that were ultimately the basis for the verdict.
Criticisms of the approach adopted by the Magistrate
During the course of submissions, counsel for the appellant, Mr Henchliffe QC, made a general criticism of the approach adopted by the Magistrate in assessing the evidence. Mr Henchliffe submitted that it was:[10]
… to some degree, a less orthodox approach taken by the magistrate, in that more commonly in a judgment such as this one would have a consideration of the evidence and then a finding as to whether the witness was credible or not and then a setting out of reasons why they were generally found to be credible or not credible and then one might have an explanation as to why they do and don’t accept certain parts of the evidence.
[10] T4.
In my view those criticisms are misplaced. In a matter in which there are competing accounts from numerous witnesses, it may be of assistance in understanding the reasoning of the trier of facts to have an explanation of their overall conclusions about the demeanour and credibility of various witnesses. However, in a matter such as this where any assessment involves a detailed consideration of the nuances of the evidence of the two key witnesses, generalised pronouncements about an overall assessment of demeanour and credibility will often be of little assistance to the Magistrate writing the judgment or those attempting to understand the reasoning behind it. The approach adopted by the Magistrate of separately considering each of the issues and critical aspects of the evidence clearly demonstrated the reasoning process by which he arrived at his verdict.
The appeal
Substitution of grounds of appeal
On 7 December 2021, the appellant filed a Notice of Appeal against the finding of the verdict of guilty. That notice contained five grounds; the fifth of which was “such further grounds as are to be advised by Senior Counsel”.
On 23 February 2022, the appellant filed a Notice of Substituted Grounds of Appeal. The appellant now seeks to substitute and rely upon those grounds. He does so on the basis that at the time that the original grounds of appeal were filed, senior counsel had not yet had an opportunity to review the transcript, exhibits and judgment.
The substitution of the new grounds of appeal is not opposed. In those circumstances, pursuant to r 104H(6) of the Supreme Court Criminal Rules 2014 (SA) I grant permission for the substitution of the new grounds of appeal set out in the notice of 23 February 2022.
Current grounds of appeal
The appellant does not challenge the Magistrate’s finding that the appellant’s conduct in checking in baggage on an international flight was an act immediately connected with departing Australia and was more than merely preparatory to leaving Australia. Insofar as that was in issue at trial it was no longer pressed on appeal.
The issue that remained in dispute was the Magistrate’s findings at [122] and [135] that the appellant intended to leave Australia.
The appellant now relies upon seven grounds of appeal. Each of these grounds relate to factual findings either made or not made by the Magistrate, and the inferences that could be drawn from those findings. The following are the grounds relied upon:
1.The Magistrate erred by misstating the defendant’s evidence at judgment [78], namely “[t]he defendant said he could not see any information on the [luggage] tag” when that was not his evidence.
2.The Magistrate erred by drawing the following inferences:
2.1 At judgment [84] – the inference from Mrs Lisi’s phone conversation with Brevet Sergeant Grimaldi on 28 October 2018 about possible family travel to Bali, that the defendant and Mrs Lisi had discussed Bali as a potential overseas destination.
2.2 At judgment [109] – the “strong inference” that the defendant would be able to see the destination of the flight printed on the luggage tag when he was fixing it to the suitcase and that he was aware that his luggage was booked on an international flight.
3.The Magistrate erred by rejecting the following evidence given by the defendant:
3.1 At judgment [89] – by rejecting the defendant’s evidence about his past travel experience in Europe as providing an explanation why he carried his passport when travelling on domestic flights within Australia.
3.2 At judgment [105] – by rejecting the defendant’s evidence that he always travelled with his passport in Europe and that he did not realise that Jetstar was an international carrier.
3.3 At judgment [107] – by rejecting the defendant’s evidence that he never looked (that is, read) his boarding pass.
4.The Magistrate erred in making the following findings of implausibility:
4.1 At judgment [1-8] – by finding it implausible that the defendant would not have checked the destination on the boarding pass when he was at the airport; when the CCTV footage of the defendant at the airport does not show him reading his boarding pass.
4.2 At judgment [121] – by finding that after Mrs Lisi had been rung by Senior Constable Jackson it was implausible that the defendant would not have looked at the boarding pass which was in his hand to check if the flight was leaving Australia; when the CCTV footage proved unequivocally that the defendant did not do so.
5.The Magistrate erred by failing to take into account the defendant’s evidence at T90 as evidence of his state of mind, that when he was first asked by an AFP officer if he knew he was not allowed to travel overseas, he replied that he was not travelling overseas.
6.The errors complained of in grounds 1 to 5 individually and/or in combination vitiate the Magistrate’s findings with respect to the defendant’s credibility and guilt of the offence.
7.The Magistrate erred in his ultimate conclusions:
7.1 At judgment [105] – by finding that the defendant’s action of handing his passport to his wife for the purpose of checking him onto the Jetstar flight proved beyond reasonable doubt that he intended to leave Australia.
7.2 At judgment [122] – by finding it proven beyond reasonable doubt that the defendant had the intention to leave Australia when he attended at Adelaide Airport on 26 July 2019.
7.3 At judgment [135] – by finding beyond reasonable doubt that the defendant knew he was checked in on an international flight to Bali and that he intended leaving Australia without permission before he was stopped by the police at Adelaide Airport.
7.4 At judgment [135] – by finding that the defendant’s conduct he described at [130]‑[134] was done with the purpose of committing the offence charged.
Whilst the appellant relies upon these purported errors both individually and in combination, it is necessary to deal with each ground separately.
Ground 1 – The Magistrate erred by misstating the defendant’s evidence at judgment [78], namely “The defendant said he could not see any information on the [luggage] tag” when that was not his evidence
An important aspect of the prosecution case was the footage from the CCTV cameras that recorded the appellant and Mrs Lisi arriving at the Jetstar kiosk area, checking in, scanning passports and obtaining boarding passes and luggage tags. At various times the appellant could be seen to handle and on occasions look in the direction of these items.
The appellant’s conduct in relation to the luggage tags as can be observed from the CCTV footage is set out below:
File 001 – Camera 245[11]
[11] Excerpts of the respondent’s chronology used with corrections to times.
Time
Event
3:22
The appellant leans forward towards the check-in machine looking in the direction of the screen.
The appellant takes a bag tag from the check-in machine with his right hand, which he transfers to his left hand.
The appellant then looks forward again, looking in the direction of his right hand.
3:23
Mrs Lisi stretches out a bag tag with both of her hands, transfers it to her right hand and places her left hand on the handle on top of her suitcase before walking to the bag drop machine with the appellant.
3:49
Mrs Lisi squats down and put a bag tag on her suitcase.
The appellant also squats down and puts a bag tag on his suitcase.
4:19
Mrs Lisi operates the bag drop machine by touching the screen.
4:26
Mrs Lisi puts her bag on to the bag drop conveyor belt.
5:20
The appellant picks up his suitcase and looks in the direction of the bag drop machine.
5:38
The appellant places his bag on to the bag drop conveyor belt and takes a small step to the right nearer to the screen of the bag drop machine.
6:20
The appellant and Mrs Lisi walk away from the bag drop machine.
It was the prosecution case that the appellant’s unrestricted access to the luggage tag, which would have had some information printed on it disclosing the destination, was inconsistent with the defence case of a trip to an undisclosed ‘surprise’ destination.
Both the appellant and Mrs Lisi gave evidence about the extent of the appellant’s involvement with the luggage tags. It was the appellant’s evidence that it was Mrs Lisi who operated the screen at the kiosk and it was she who attached both tags to the bags. When asked whether he saw anything printed on the tags, the appellant said:[12]
I didn’t see anything I didn’t see anything on the tags because all my thinking was we are going somewhere in Australia, so that’s why I didn’t give attention to that, either to the screens or the ticket, either to the screens or the tags.
[12] T85.
In cross-examination when the CCTV footage was shown to him, the appellant maintained his denials that he had any involvement in putting the tags onto the luggage.
Mrs Lisi also gave evidence on this topic. Her evidence was at odds with that of the appellant. She said that the appellant took the luggage tags whilst they were checking in at the kiosk. She said that the appellant put one tag on one of the bags and she attached the other.
Counsel for the appellant contends that the Magistrate misstated the evidence of the appellant at [78] in saying that “The defendant said he could not see any information on the tag”.[13] Counsel for the appellant submitted that the appellant’s evidence was that he “didn’t” see any information on the bag tag because he did not look for it. He said that was significantly different to what he described as the “ridiculous” suggestion that the appellant “couldn’t” have seen the bag tag.
[13] Emphasis added.
The respondent submitted that to the extent that it was a misstatement it was a minor misstatement and played no significant role in the Magistrate’s ultimate finding.
The first question to be considered is whether this was in fact a misstatement of the evidence by the Magistrate. Arguably this passage in the judgment is open to two interpretations. The first is that which is relied upon by counsel for the appellant. The second is a literal interpretation of the evidence of the appellant, namely as events unfolded he could not have seen any of the printed information because he was never in possession of the luggage tags. The effect of the totality of the appellant’s evidence was that it was only Mrs Lisi who had involvement with the luggage tags. He said that she was responsible for checking them in at the kiosk and she attached both luggage tags to both bags. He remained steadfast to that account despite what appeared obvious on the CCTV footage. The appellant’s evidence was that his role was limited to handing over his passport, pushing the luggage to the check in point and lifting one of the bags onto the conveyor belt. On that scenario there was no opportunity for him to handle or inspect the luggage tags and it therefore follows that he “could not” have seen what was written on them.
Even if accepted that this was a misstatement of the evidence, the Magistrate appears to have placed no reliance upon it. The relevant passage appears in the part of the judgment that sets out a recitation of the evidence. It at no stage forms any part of any credibility findings or reasoning process towards the conclusions ultimately made by the Magistrate.
Ground 2 – Inferences drawn that were not available on the evidence
In this ground the appellant complains that two inferences drawn by the Magistrate that were adverse to the appellant were not open on the evidence.
Telephone call from Mrs Lisi to Sergeant Grimaldi
The first inference related to the telephone call that Mrs Lisi had made to Sergeant Grimaldi on 29 October 2018 in which she raised the topic of a five day family holiday to Bali at the end of November. Although in her evidence Mrs Lisi claimed that she did not remember the details of the conversation she had with Sergeant Grimaldi during that telephone call, there was no dispute that the conversation occurred.[14]
[14] T61-62.
The impugned passage appears in the part of the judgment in which the Magistrate gave consideration to the account of the appellant and Mrs Lisi that the trip to Bali was a surprise birthday present. In that context the Magistrate compared the evidence of the appellant that he hated Bali with the evidence of the telephone call involving Mrs Lisi. In that context he concluded:
[84]The evidence gives rise to an inference that the defendant and his wife have discussed Bali as a potential overseas destination prior to 26 July 2019 and the defendant should have been on alert to the possibility that Mrs Lisi may have booked an international flight when he saw her packing his suitcase and told him she had arranged a surprise trip the following morning.
[Emphasis added]
The appellant submits that the evidence of the telephone call to Sergeant Grimaldi was an insufficient foundation for the drawing of this inference.
The respondent accepts that this inference could not be drawn on the basis of the evidence before the Magistrate however submits that this evidence was not used to bolster the prosecution case but rather was used to undermine the appellant’s credibility. The difficulty with that argument is that the credibility of the appellant was central to the issues at trial. Any significant undermining of the appellant’s credibility, and hence the diminishing of the weight of an alternative explanation for the otherwise undisputed evidence must have inevitably led to a strengthening of the prosecution case.
I agree with the parties that the Magistrate was in error in drawing the inference that the appellant and Mrs Lisi had discussed Bali as a potential overseas destination prior to 26 July 2019 based upon the telephone call to Sergeant Grimaldi. The question that then follows is the impact of that error on the Magistrate’s overall reasoning process and his rejection of the appellant’s account.
The Magistrate relied on this inference as relevant to an assessment of the appellant’s account that he hated Bali. It is my view that putting the conversation between Mrs Lisi and Sergeant Grimaldi to one side, on a common sense inference basis it was well open to the Magistrate to reject this aspect of the appellant’s account. It beggars belief that in October 2018 Mrs Lisi would go to the trouble of telephoning Sergeant Grimaldi to enquire about a five day holiday to Bali, then subsequently book and pay for airfares and accommodation in Bali in order to surprise her husband for his birthday without ever once enquiring as to whether this was somewhere that he would like to visit. Further to that, the evidence was that the appellant and Mrs Lisi had been married for 12 years, they ran a business together and have two children together. Normal human life experience would suggest that over that period of time, Mrs Lisi would have gained some sort of appreciation of her husband’s preferred holiday destinations. The vehement evidence of the appellant about his distaste for Bali sits at complete odds with Mrs Lisi’s evidence about why she kept the trip a secret:[15]
[15] T47–48.
Q.… Now we talked before about the fact that your husband was aware by the Friday morning that he was going on a birthday trip that you booked.
A.No.
Q.Sorry, not to where but that he was going on a birthday trip.
A.No, not even that it was a birthday present or it’s to do anything with his birthday. He completely didn’t know. Nothing about it.
Q.What did he know when he went to the airport.
A.We’re just going away.
Q.But nothing to do with his birthday.
A.Nothing, absolutely nothing. Like I said, I was trying to keep it -
Q.But that the destination was a surprise.
A.Even his birthday present which was the trip was a surprise. We didn’t even mention his birthday at all.
Q.Did he know anything about where you could be going.
A.Definitely not.
Q.Did he know how long the flight would be.
A.No.
Q.Did he know whether it was hot or cold where you were going.
A.No.
Q.Did he know what hotel you were staying at.
A.No.
Q.Or how much the trip cost.
A.Definitely not. Like I said, it was a surprise.
Q.Did he ask how much the trip cost.
A.No.
Q.So everything about it was a secret.
A.It was, definitely.
Q.Why was it kept such a secret.
A.Because that was the first birthday in his life that we actually were gonna celebrate. He’s never celebrated his birthday. So it was the very first time that we could actually afford, me and my sister, to do something for him. Which he always surprises us on our birthdays but we never had that opportunity.
Q.So it was a big deal.
A.Yes.
The destination printed on the luggage tags
The second inference drawn by the Magistrate that is now the subject of complaint comes back to the issue of the luggage tags. After considering the evidence of what the appellant is seen to do in the lead up to the luggage being carried away on the conveyor belt, the Magistrate concluded:
[109]… The evidence gives rise to a strong inference that the defendant would be able to see the destination of the flight printed on the luggage tag when he was fixing it to the suitcase and that he was aware that his luggage was booked on an international flight.
Counsel for the appellant submits that this inference, and its subsidiary finding of awareness, involved erroneous reasoning by the Magistrate. The complaint in relation to this aspect of the judgment is twofold; namely that the evidence of what was written on the tag was ambiguous and a finding that the appellant was aware that this was an international flight because he would be able to see the destination on the luggage tag does not follow as a matter of logic.
The respondent submits that the inference and subsequent finding were both reasonably open on the evidence.
There was evidence, albeit in less detail than would be ideal, about the information contained on the luggage tags. Senior Constable Edwards gave evidence on this topic:[16]
Q.Are you able to say if that luggage tag has the destination written on it, luggage sticker sorry.
A.From memory, yes they do.
Q.In this case that would be Denpasar.
A.Yes ma’am.
[16] T70.
Mrs Lisi also gave evidence on this topic:[17]
[17] T26–28.
Q.If you just pause there, can you remember what’s occurring there.
A.Pardon?.
Q.He was trying to pick the boarding passes for me, I said ‘Nah that’s alright I got it’ and that’s it.
HIS HONOUR
Q.He’s reaching over on the screen now and his right hand is at the machine.
A.Yeah on the bottom where you collect the boarding passes
VIDEO SHOWN
Q.And then he’s picked something up.
A.That’s the ticket you know the -.
Q.The boarding pass.
A.No, the luggage.
XN
Q.What documents are produced from that machine.
A.Boarding passes and luggage – what are they called – the luggage that you put the tag on it to scan it through.
Q.Bag tags.
A.Bag tags thank you.
Q.Can you recall exactly what documents the kiosk produces in it’s entirety.
A.Boarding passes and bag tags.
Q.Is there any other documentation produced.
A.No.
HIS HONOUR
Q.We need to document what we see for the record, Mr Lisi is taking those documents.
A.Just the bag tags he’s holding for me at that second ….
Q.You can actually see the white piece of paper in his hand.
A.Yeah they’re quite long.
XN
Q.And if we just pause there, what is your intention with moving over here now.
A.Checking in the luggage.
VIDEO SHOWN
Q.If we just pause there, it’s a little bit difficult to see but you’ve just knelt down do you remember what you are doing at that point.
A.Yes, I’m putting the luggage tags on..
HIS HONOUR: And he’s putting one on as well
XN
Q.If just pause there, Albert has just leant down.
A.Yes.
Q.Do you know or remember what he was doing.
A.He was helping me put the luggage tags on.
Q.Is it fair to say you’re putting one luggage tag on one bag and he’s putting one luggage tag on the other bag.
A.Yes.
VIDEO SHOWN
HIS HONOUR
Q.Stop please for a minute. Can you just explain to me, those luggage tags how do they work.
A.Okay they have only initials on it, it doesn’t actually say where you’re going to like full name Dubai and you just stick it on and scan it through so the luggage goes in.
Q.When you say stick it on can you explain to me how it works.
A.You just take the paper off and you put it on your hand of the luggage and you just stick it together that’s it. There’s to tapped and then they just stick together and that’s it.
XN
Q.Just before we move on you just gave a moment ago some evidence in relation to what’s on the tags. Can you just be very clear, what’s your understanding or recollection of the information that was on those tags.
A.It says just the city where you going to, but because it’s got DX for something short for going to Dubai, and I know that Albert doesn’t understand all of that.
Q.You said Dubai, do you mean Depensar.
A.I mean sorry, Bali, I’m so sorry.
Q.Do you remember what the actual information. What the actual letters or words on there was.
A.No I don’t actually.
Q.Do you remember how many there were, as in letter or words.
A.Maybe like three letters I think there is.
The appellant gave no evidence nor was he cross-examined on this issue.
In my view there was clearly sufficient evidence to establish that some information, at the very least a three letter code, would have been present on the luggage tag. Common sense would dictate as much. In the circumstances in which the appellant was handling the luggage tag and then attaching it to a suitcase, it would also be almost impossible not to observe the information about the destination. Clearly such information must be of sufficient size and prominence to enable baggage handlers ensure that the bags are delivered to the correct aircraft.
It is also a relevant consideration that the appellant was no novice traveller. The evidence was that he was born in Albania, and had lived in Greece for 10 years. Although no specific details were provided, it was the appellant’s evidence that whilst living in Greece he would travel. Since living in Australia the appellant had travelled overseas three or four times using Emirates, Singapore, Cathay Pacific and Qatar airlines. He had also undertaken domestic flights on several occasions. I accept that the appellant’s native language is not English. However, in the context of the appellant’s history of international and domestic travel it would be open to consider that any combination of letters indicating a destination of Denpasar would immediately catch the appellant’s eye.
It was also open for the Magistrate to conclude on that evidence alone it follows that the appellant was aware or became aware that his luggage was booked on an international flight. However, the Magistrate was not confined to a resolution of this issue about the appellant’s state of mind regarding where his luggage was going on the basis of the luggage tag alone. It was open and appropriate to consider the evidence about the luggage tag in the context of all of the other evidence.
Ground 3 – Rejection of the appellant’s evidence
In arriving at a verdict of guilty, the Magistrate rejected the entirety of the appellant’s evidence about his state of mind at the airport. The appellant submits that in arriving at that ultimate view the Magistrate erred by expressly rejecting three aspects of the appellant’s evidence.
Past experience of travelling in Europe
The first finding complained of was the Magistrate’s rejection of the appellant’s evidence about his past travel experience in Europe as providing an explanation for why he carried his passport when traveling on domestic flights in Australia.
One of the strongest pieces of evidence on the prosecution case was the fact that not only was the appellant in possession of his passport at the airport but he had placed his boarding pass into the passport, hence carrying them together in a manner consistent with international travel. It was the appellant’s evidence that he had brought the passport with him in his bag to the airport. When they arrived at the kiosk he removed the passport from his bag and handed it to Mrs Lisi. The appellant then watched her scan the passport in order to check in. It was the appellant’s evidence that Mrs Lisi then handed him back the passport such that by the time that they went to check the luggage in, the passport was in his hands. He said that once they were at the luggage check in he handed his passport back to Mrs Lisi. The passport remained with her until they were making their way to meet the police at the international departures gate at which time Mrs Lisi handed the passport back to him. Upon speaking with the police, the appellant retrieved the passport and provided it to them.
Mrs Lisi also gave evidence about the circumstances of how the passport came to be at the airport and what happened to it once they arrived there. It was Mrs Lisi’s evidence that she was the one who had retrieved the appellant’s passport and taken it to the airport. She said that she retained the passport when checking in at the kiosk and that she had kept it in her mini backpack. When shown the CCTV footage that showed the appellant removing something from his backpack at the kiosk, she remained adamant that it was not the passport and speculated that it may have been her phone. Mrs Lisi gave evidence that she was responsible for scanning the passports. When pressed about whether at any stage whilst at the kiosk the appellant was in possession of the passport she said, “I remember very clear the only time I let him hold the passport was when I was checking in the luggage”.[18] It was Mrs Lisi’s evidence that she retained the passport until she handed it back to the appellant as they made their way to the international departures gate to meet with police.
[18] T25.
The appellant gave evidence to explain why he was carrying a passport when he believed he that was about to travel somewhere within Australia:[19]
[19] T79–80; T97–98.
Q.I’m just going to pause for a moment here Mr Lisi and take you back, something I forgot to cover when I was asking you questions about your travel previously. You gave some evidence that you were born in Albania and you moved to Australia in 2008.
A.Yeah. I born in Albania and I used to live in Greece for ten years. After I move here.
Q.Sorry, before you moved here.
A.Yeah.
Q.Have you travelled domestically in Europe.
A.Yeah I used to travel in, when I used to live in Greece for ten years, I used to travel.
Q.When you travelled domestically in Greece - in Europe, what identification would you carry with you.
A.Have to have with you if you own a driver’s licence and a passport all the time.
Q.So even if you’re travelling within Greece, not leaving the country -
A.Yes.
Q.- you would have your passport on you.
A.Yes.
HIS HONOUR: You said travelling through Europe.
MR KUMMEROW: I apologise your Honour, I’ll clarify. If your Honour -
HIS HONOUR: It’s very important.
MR KUMMEROW: It is very important, so I perhaps worded it poorly.
XN
Q.When you were living in Greece.
A.Yes.
Q.Did you travel domestically within Greece.
A.Yes.
Q.Okay and when you travelled domestically within Greece, what identification would you carry with you.
A.If you own a driver’s licence. You have to - but passport yes, all the time.
Q.So when you travelled within Greece on aircraft, you would carry your passport with you.
A.Yes, yes.
Q.Would that be your Albanian passport.
A.Yeah because that’s the only one I used to have.
Q.Okay go back to the morning.
HIS HONOUR
Q.Is that because you didn’t have citizenship in Greece.
A.No, I had the – no the citizenship, I don’t know how, like, white card or whatever you can call it, you can find on the computer what we used to have in there but that’s the, the law, it used to be in there, to have, doesn’t matter if you’re Albanian or if you’ve get it from Greece, you need to have the passport with you.
MR KUMMEROW: Perhaps, I can deal with it, your Honour’s point with some questions.
HIS HONOUR: Thank you.
XN
Q.Mr Lisi, when you were living in Greece, did you require any special permission to be in Greece or work in Greece or live in Greece.
A.Yes we had.
Q.Yep, but even so, or perhaps I’ll deal with it this way, have you travelled domestically within any other country in Europe, other than Greece.
A.In Europe, no.
Q.Have you travelled domestically within Albania.
A.We don’t, we are not, we are just a small country so we have only one -
Q.I won’t take it any further.
A.Yes.
…
Q.You know that passports are used for international travel.
A.I know here in Australia, but I don’t have too much experience flying around so I just keep the passport and my driver’s licence with me all the time and I have my mind.
Q.If you drive down the road to your friend’s road do you take your passport.
A.Sorry.
Q.Do you take your passport for any trips domestically.
A.Flying.
Q.Anything.
A.When I’m flying -
Q.If you drove to Melbourne.
A.If I’m driving nah because I have my driver’s licence, but if I’m flying – so - if I’m flying I will.
Q.- but you understand that passports are not needed for domestic travel.
A.From now on I find it out, but before I used to carry with me all the time.
The Magistrate rejected the explanation of the appellant that the reason for carrying his passport was because of his experience in Greece. It was not unreasonable for the Magistrate to do so. It was the appellant’s evidence that he was born in Albania. There was no suggestion that whilst in Albania the appellant needed a passport in order to travel. The appellant then lived in Greece for 10 years. It was during that time that he used a passport to travel domestically. His evidence was that he carried his passport with him while travelling as was required to do so by law. The appellant is now an Australian Citizen and has lived in Australia for over 11 years. In those circumstances it was open for the Magistrate to reject the explanation that a legal requirement in place in Greece over a decade before was the reason that the appellant was carrying a passport in the Adelaide Airport on 26 July 2019.
Jetstar
The second matter about which it is complained that the Magistrate erred in rejecting the appellant’s evidence, overlaps or segues with the first in that the Magistrate at [105] rejected “the defendant’s explanation that he always travelled with his passport in Europe or that he did not realise that Jetstar was an international carrier”.
That finding can be broken into two propositions. The first is a repetition of that said previously, in that the Magistrate rejected the appellant’s explanation that the reason that he had the passport at the airport was because he always travelled with the passport in Europe.
The second proposition was that the Magistrate did not accept the appellant’s evidence that he did not appreciate that you could travel overseas on a Jetstar flight. It is instructive to consider the appellant’s evidence in full on this topic:[20]
[20] T75–76; T81; T99–100.
Q.Okay, do you recall when about roughly, you travelled domestically in Australia, prior to this incident.
A.I was – I can’t really remember exactly the year but I was in uh Melbourne, before the virus started.
Q.And on that occasion, which airline did you fly with.
A.The same one, Jet – Jetstar.
Q.Jetstar. And when you went to Melbourne on that previous occasion, how long did you travel for.
A.It was just for the weekend.
Q.Do you remember roughly how many nights.
A.It was two nights.
…
Q.What’s your experience been travelling domestically in Australia.
A.Well soon as – like I said, soon as we walked up the Jetstar, I said, I was – no I was thinking, I was 100% sure we going somewhere in Australia.
…
Q.I understand the question, given that the defendant said he knew that he can’t travel overseas and he knew that he needed permission and he was at the airport, did you turn your mind to the fact that this surprise trip might be overseas.
A.Nah. By the time we, like I said from the beginning, by the time we rock up at the Adelaide Airport and we walk up the Jetstar kiosk, my mind just, I was thinking on my way there probably she’s doing something like that, but when we rock up in there at Jetstar kiosk my mind was straight somewhere in Australia. Because the date the police they stop me I’m going overseas, that’s the only day I find out Jetstar it’s flying international. I know it’s hard for someone to believe that but that’s my truth of my life.
XXN
Q.Can I confirm what you said to his Honour just then, you say in the Uber on the way there you thought an international destination was a possibility and it wasn’t until you got to the Jetstar kiosk.
A.My thing is, was anything, because of her surprise. But when I rock up in there, and we went to Jetstar kiosk, my mind it went quiet, I didn’t have any other problems, I didn’t have any more thinking because my thing is its Jetstar, it’s flying Jetstar in Australia.
Q.And before that, before you turned up at the Jetstar -
A.Before that I was thinking like what surprise it gonna be.
It appears from the totality of the evidence that, inconsistently with the rest of his evidence, the appellant was suggesting that up until the point of arriving at the Jetstar kiosk there was some residual thought in his mind that they might be travelling overseas. It was his evidence that it was only upon arriving at the Jetstar kiosk, in the mistaken belief the Jetstar was a domestic airline, that the appellant became certain that they were travelling somewhere within Australia.
The Magistrate was not in error in rejecting the evidence of the appellant on this topic. As set out previously, the appellant was a reasonably experienced traveller. On his own evidence he would have passed through the Adelaide international departure gate on three or four occasions. He had travelled through numerous airports. He would have spent many hours waiting in airports, checking in and collecting luggage, checking arrivals and departure boards. In such circumstances it is highly improbable that the appellant had no appreciation that Jetstar was an international carrier. The Magistrate was not in error in so concluding.
Boarding pass
The final aspect of the appellant’s evidence that it is contended that the Magistrate erred in rejecting was his evidence about not looking at, or more specifically reading the boarding pass. It cannot be disputed that the appellant held the boarding pass and at least looked in the direction of it; it is captured on CCTV footage. The following are the events seen on the footage relevant to this topic:
File 001 – Camera 245[21]
[21] Excerpts of the respondent’s chronology used with corrections to time.
Duration Event
3:16
Mrs Lisi hands a flat white object (a boarding pass) to the appellant.
The appellant takes the document in his right hand and quickly transfers it to his left hand without looking at it.
3:23
Mrs Lisi stretches out a bag tag with her left hand.
The appellant takes a flat white object (a boarding pass) from the check in machine with his right hand and looks in the direction of the machine.
3:26
The appellant looks down at the flat white object in his hand, turns the object over, and puts it in his left hand with the other flat white object and a luggage tag.
3:31
The appellant steps slightly right and backwards from the machine while looking down at the flat white object.
3:34
Mrs Lisi and the appellant walk to the bag drop machine.
3:49
The appellant puts a flat white object or objects on top of his suitcase.
The appellant puts his small black bag on top of his suitcase, partly covering the white objects.
The appellant squats down and puts a bag tag on his suitcase.
Mrs Lisi squats down and puts a bag tag on her suitcase.
4:14
Mrs Lisi takes the black bag and white object(s) from the top of the appellant’s suitcase.
6:20
The appellant and Mrs Lisi walk away from the bag drop machine to the left.
The appellant appears to be holding a white object and looking down towards it.
In his evidence the appellant said that Mrs Lisi took the boarding passes at the kiosk. This exchange then occurred:[22]
[22] T85–86.
Q.You’ve given some evidence that you handed your wife your passport.
A.Yes - as we are arriving at the kiosk.
Q.Yes. Did she hand it back to you at that point.
A.Yes by the time we went up there to check in the luggages, I had it in my hands.
Q.What, if anything else, did she hand you.
A.If I’m not wrong it was a passport and the boarding pass in the middle of passport.
Q.Did you open the passport.
A.Nah.
Q.Did you look at the boarding pass.
A.Nah.
Q.Why.
A.Because like I said to you from the beginning, by the time I rock up in there, the Jetstar, by that day in the morning, whatever happens to me, I had no idea, just uh – it’s flying overseas. I know it probably looks a little bit different, I don’t know, but for my thinking, first day was that day I find out Jetstar its flying overseas.
When it was pointed out to the appellant that later, on the footage as he and Mrs Lisi walk to meet the police at the international departures, Mrs Lisi is seen to pass him something, the following exchange occurred:[23]
[23] T88–89.
Q.There’s a movement between you and your wife.
A.Yes.
Q.What’s occurred there.
A.That one there’s the passport and the boarding pass she was holding in her lap, in her -
Q.So you gave evidence a little while ago that at the check in kiosk your wife handed you your passport with the boarding pass inside of it. Your evidence now is that your wife, that’s your wife handing you the passport and boarding pass.
A.Yes, but when you need to check in the luggages -
Q.Yes.
A.- you need to have the boarding pass.
Q.Yes.
A.And that time, she grabbed them from me.
Q.I see.
A.So on that time when we check in, she had the passport and my boarding pass.
Q.I see, so it’s a case is it that you hand her your passport at the check in kiosk, she hands you back the passport with the boarding pass in it -
A.Yes.
Q.- then a few moments later at the bag drop -
A.Yes.
Q.- you hand her those things back.
A.Yes.
Q.Then this is her handing those things back to you again.
A.Yes.
Q.Did she say anything to you when she handed those to you.
A.Nah. She just gave it to me just in case, the police they going to ask for.
Q.Why is it in your mind that you should have those things if you’re speaking to the police.
A.Because the most of the time they just ask you for ID and things to find out who you are and where you are coming from.
In cross-examination when shown the CCTV footage, the appellant agreed that he can be seen to have grabbed the two boarding passes along with his passport at the kiosk and then place them on top of a suitcase at the luggage check in.[24] In re-examination, the appellant further contradicted himself and said that immediately upon receipt of the boarding pass, he had placed it inside the passport to ensure he did not lose it.
[24] T96.
Mrs Lisi also gave evidence on this topic. Again, her evidence was at odds with that of the appellant. Mrs Lisi said “he was trying to pick the boarding passes for me, I said ‘Nah that’s alright I got it’ and that’s it”.[25]
[25] T26.
In my view it was open to the Magistrate to reject the appellant’s evidence on this topic. It was inconsistent with the evidence of Mrs Lisi and it was inconsistent with what can be seen on the CCTV footage. It is also counter-intuitive and completely at odds with normal human behaviour. There is only a small amount of writing on the boarding pass with the destination of “Bali – Denpasar” central and prominent on the card. It would be almost impossible to overlook the destination even in simply glancing in the direction of the boarding pass.
Ground 4 – Findings of implausibility
Ground 4 is that the Magistrate erred in finding two aspects of the appellant’s evidence implausible. These are the appellant’s evidence about first, not looking at the boarding pass whilst he was at the airport and secondly, not looking at the boarding pass after he was made aware that the police wanted to speak with him.
For reasons already explained the first finding was open on the evidence.
It was the evidence of the appellant and Mrs Lisi that Mrs Lisi received a telephone call from the police whilst they were in a shop in the “sterile area” (that is between the security area and the departure gates) of the airport. They then made their way to the international departure area to meet with the police. It was in that context that the Magistrate found it “implausible the defendant would not have concerns about the possible destination of the flight and make enquiries with his wife or look at the boarding pass which was in his hand to check if the flight was leaving Australia”.[26]
[26] Australian Federal Police v Albert Lisi (Magistrates Court of South Australia, Magistrate Smolicz, 15 November 2021) at [121].
Counsel for the appellant submits that this finding of implausibility of the appellant’s account is inconsistent with the CCTV footage which shows that the appellant does not look at the boarding pass. This submission misses the point that the Magistrate is attempting to make. The effect of this passage of the judgment is that if the appellant was telling the truth about not knowing where he was travelling, one might have thought that in the context of being on the ANCOR register, with strict restrictions about travel, and information that the police would be looking for him at the airport, at that time he is likely to have asked Mrs Lisi where they were going or looked at the boarding pass in his hand if he had not yet done so whilst he was at the airport. He did not. It was open to the Magistrate to find that the evidence that he did not do so was implausible if the appellant was telling the truth.
Ground 5 – Statement by the appellant to the AFP Office
Counsel for the appellant contends that the Magistrate erred by failing to take into account the appellant’s evidence that when he was first asked by the AFP Officer if he knew that he was not allowed to travel overseas, he responded by saying that he was not travelling overseas. It is said that this statement reflects the appellant’s state of mind and can be relied upon as positive evidence in support of the defence case.
It was the appellant’s evidence that at the time he was approached by police he still did not know he was about to travel overseas hence, when confronted, he responded in the manner that he did. He said that it was only when he handed over his passport and boarding pass that the police advised him that he was in fact destined for Bali.
The appellant’s evidence about his denial that he was travelling overseas was not supported by any of the other witnesses. Senior Constable Edwards gave evidence that the appellant said very little when he approached him. He said that the only communication that he had with the appellant was to offer him an opportunity to participate in an interview, which he declined.
Mrs Lisi also did not support this aspect of the appellant’s evidence. Consistent with the evidence of Senior Constable Edwards, she said she was doing most of the talking. Her evidence was:[27]
[27] T35–36.
Q.You’ve moved off to the side some seconds later. What, if any conversation did you have with the police officer when you approached after leaving the line.
A.They said where’s Albert, and that’s when Albert arrived and then they told me to wait in the corner.
Q.Did you have any other conversation or say anything else to the police officer.
A.Yes they asked me where you going.
Q.And what did you say.
A.And I said we’re going to Bali.
Q.And -
A.And he said ‘Do you know that Albert is not allowed to leave?’ and I said ‘No I don’t know, I don’t have an idea’. And that’s after, then they told me to wait in the corner.
There is no doubt that a spontaneous utterance can reflect the state of mind of an individual. The admissibility and weight of that evidence will be dependent upon the circumstances and context in which that statement was made.
In Walton v The Queen[28] Mason CJ stated the applicable principle in the following terms:
The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue …
[28] (1989) 166 CLR 283 at 288.
His Honour went on to say:[29]
… the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue...
[29] (1989) 166 CLR 283 at 289.
Wilson, Dawson and Toohey JJ went on to say in Walton:[30]
When a person’s state of mind is relevant, evidence tending to prove that fact is admissible. The evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred.
[30] (1989) 166 CLR 283 at 300.
It is the making of the statement proximately to the events in issue which ensures reliability. How proximately the statement was made can be determined by enquiring whether the proximity sufficiently precludes the risk of concoction.[31]
[31] Ratten v The Queen [1972] AC 378; R v Andrews [1987] AC 281.
The only evidence that any statement was made by the appellant to police about his state of mind came from the appellant. The other witnesses did not support that account.
Even if that evidence is accepted, on the prosecution case there was an alternative explanation for it. It was a self-serving statement made in circumstances in which the appellant knew the police wanted to speak to him as he was about to get on board an airplane to fly to Bali without having obtained lawful authority. In all of the circumstances it is unsurprising that the Magistrate did not place any weight on that statement or refer to it in his reasons.
Ground 6 – The combination of errors vitiate the Magistrate’s findings with respect to the appellant’s credibility
In so far as the Magistrate made any errors, they were minor in nature and were not material steps in the reasoning process. As such, it cannot be said that they are of such significance to vitiate the Magistrate’s assessment of the appellant’s credit. To the contrary, there was an abundance of evidence to support the findings that were made.
Ground 7 – Unsafe and unsatisfactory
The last ground of appeal complains that the Magistrate reached the wrong conclusion on the evidence by finding the charges proved beyond reasonable doubt.
As the authorities make clear, the task of this Court is to reach its own view of the facts by making an independent review of the evidence. As it is a rehearing, the Court has an obligation to rehear the case in the sense that it must conduct an independent review of all of the evidence that was before the Magistrate. It is the duty of this Court to make up its own mind, after giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses, and of course, after giving weight to any findings on credibility.
It is also for this Court to determine what inferences should be drawn from any facts found to be proved. As said by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes:[32]
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.
[32] (1979) 142 CLR 531 at 551.
This was a circumstantial case in which it is the combined weight of the evidence that needs to be considered, not the individual pieces. Even if there is an error, an assessment must still be made of the totality of the remaining evidence.
Absence of motive
In submissions counsel for the appellant put to the Court that there was one feature of the evidence that pointed strongly away from the guilt of the appellant, namely, absence of motive. It was submitted that the appellant had previously travelled overseas, having sought and obtained permission and, for practical purposes, nothing had changed in terms of the need to obtain approval. Put simply the submission was that if he had gained approval in the past, why not do the same again if he knew that the plan was to travel overseas.
In order to fully consider that submission it is necessary to delve into some of the details of the evidence and exhibits tendered at trial.
Two questions arise from this issue. The first is whether, as a matter of fact, there had been a change to the ANCOR requirements and the second was the appellant’s, and to a lesser extent Mrs Lisi’s, belief as to the requirements.
Sergeant Grimaldi gave evidence about the change to the ANCOR requirements that occurred on 13 December 2017. As of that date it became a Commonwealth offence to travel overseas without obtaining prior approval. He advised the appellant of this at their meeting on 28 June 2019. He did that by taking the appellant through the PD660A. Relevantly that form sets out:[33]
[33] Exhibit P3.
TRAVEL
Interstate: If you are intending to travel outside of South Australia for 7 or more consecutive days, you must provide the South Australia Police ANCOR Registrar with the details of your travel, such as; what State or Territory you are visiting, including the dates you expect to be in each location and the details of where of where you will be staying.
Overseas: You are advised that from 13 December 2017 it is a Commonwealth offence to attempt to travel overseas without prior approval from Police. You should make an application to your case manager as soon as possible if you have exceptional circumstances for which you need to travel.
WARNING
If you travel overseas, the Australian Federal Police will inform the relevant authorities in the destination(s) you intend to visit. It is at the discretion of the authorities within those countries whether to allow you entry. It is advised that you make the relevant enquiries to ensure your travel plans are not disrupted.
When returning from Interstate and/or Overseas you must report to the Registrar within 7 days. If you are returning from Overseas, you must provide the Registrar with your passport to allow for verification of your destination(s).
If you travel interstate you are required to contact the ANCOR Registrar in that state or Territory within 7 days of your arrival.
…
It is apparent from that document that there had been a change in relation to overseas travel requirements. From 13 December 2017, approval was required if there were “exceptional circumstances” that warranted travel. It would be expected that a birthday trip to Bali might not meet that criteria. Further, it was the case that in the event that someone on the ANCOR register travelled overseas, the AFP would warn the relevant authorities in that jurisdiction and it would then be at the discretion of those authorities as to whether they would permit entry into the country.[34]
[34] Although this was not dealt with directly in the evidence, it can be inferred that this process commenced as of 13 December 2017 when it became a Commonwealth offence to attempt to travel overseas without prior approval from Police.
It follows that, contrary to what was put by counsel for the appellant, the new requirements had made it more difficult for someone on the ANCOR register to travel.
More important than the actual legal position was the evidence of the state of mind or belief of the appellant about whether there had been any change in the requirements. Both the appellant and Mrs Lisi gave evidence on this topic.
It was the appellant’s evidence that Sergeant Grimaldi had advised him of the change of requirements for travelling overseas. He said:[35]
A.If I have to travel internationally, whatever my previous, whatever I have to call it, the – Mr Grimaldi, he explain everything to me and if I have to drive – to fly sorry, internationally I have to make, to fill out some forms to make a claim and he is going to give me the permission, I can do that. If not, I can’t.
And further:[36]
Q.Yes and so you would have been alert to where you were going in order to comply with that requirement for permission.
A.Yes I know that, I need the permission to fly overseas.
[35] T72.
[36] T98.
In relation to what occurred when he had previously travelled overseas, the appellant said:[37]
[37] T100.
Q.You knew that if you travelled overseas without permission there were consequences.
A.Yes.
Q.Being what we’re here for now.
A.Sorry.
Q.Being this situation.
A.I knew it if I’m driving overseas without permission, I’m going to be here where I am now.
HIS HONOUR
Q.You gave evidence earlier on that you travelled to Italy after you were placed on the Register.
A.Yes.
Q.So you have applied for permission before and you know how the system works.
A.No. When I left that time for Italy that, after when I came back from Italy, that’s the law it came on the whatever it’s called, when I came back and I went to meet, sorry, when I came back because after I’m coming back from overseas, after seven day, maximum seven days, I have to go and meet Mr Grimaldi -
The appellant there appears to be referring to the pre-existing requirement created under the South Australian legislation to report to the Commissioner of Police within seven days of returning from interstate or overseas.[38]
[38] Child Sex Offenders Registration Act 2006 (SA) s 19.
The appellant’s wife gave similar evidence. When asked about the appellant travelling previously whilst on the ANCOR register, she said:[39]
[39] T3-4.
Q.Is it the case that you attended one of the initial intake interviews with Albert.
A.The very first one, yes I did.
Q.Back then when Albert was registered, what was your understanding of Albert’s notification requirements to travel overseas.
A.That all he has to do is when he returns back to take his passport in, just take photocopy and notify them where he stayed and that’s it.
Q.What about travelling within Australia, what were your understanding of the requirements with that.
A.That he could travel within Australia.
Q.Were you aware of any time limits in relation to either overseas or domestic travel.
A.Until this recent – that, I did, now I do understand but before that no I did not understand.
Q.What was your understanding then, prior to this incident.
A.That when he comes back if he’s been somewhere, we need to report it.
Q.And -
HIS HONOUR
Q.Sorry, just to clarify where -
XN
Q.I’ll just come to that point to clarify. Are you aware now that there was a change in the reporting regime.
A.Now I am, very aware.
Q.Are you aware when that change occurred.
A.I just found out when all this things that happened to Albert.
Q.Do you know what year roughly that change occurred.
A.I have no clue.
Q.Prior to this attempt to travel, putting that to one side, what was your specific understanding about his requirements to travel overseas.
A.That with – up to seven days, not exceeding seven days, he can go and then when he comes back just to notify them that where he was, this was my understanding.
Q.Had there been previous incidents of Albert travelling overseas whilst he was on the ANCOR Register.
A.Yes.
Q.Can you just tell the court about that previous incident.
A.Don’t remember the year but he travelled to Italy, cos that’s where his mum and brothers live and it was to celebrate Christmas after so many years not being with his family and he booked a ticket, he left and then he messaged me because he wasn’t aware because of his English, he said he wanted to go for a night to Switzerland for a drive with his brothers, I mess- emailed the Grimaldi, I can’t pronounce his -
Q.Detective Grimaldi.
A.Yeah, I said is Albert allowed to go to Switzerland and he goes ‘yeah that’s fine, long as when he comes back he brings in the passport’ and this was it.
It is apparent from the evidence that the appellant believed that the requirements for travelling overseas had become more onerous since 13 December 2017. Contrary to the submission put by counsel for the appellant, that would suggest that there was some motive for the appellant to take the risk of attempting to travel overseas without first obtaining the requisite permission.
Conclusion
In my view the appellant’s conviction is not against the weight of the evidence. There was a strong body of circumstantial evidence that pointed towards the guilt of the appellant.
On my review of the evidence and the Magistrate’s reasons, I have no misgivings about the Magistrate’s findings. I find that none of the appeal grounds have been made out.
I dismiss the appeal.
0
2
1