Marshal v Police - [2008] SASC 284

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARSHAL v POLICE
[2008] SASC 284
Judgment of The Honourable Justice Kelly
24 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against conviction and sentence - appellant convicted of two counts of threatening harm and sentenced to six months imprisonment - police failed to comply with Sections 74D and 79A of the Summary Offences Act 1953 during the course of the appellant's arrest - whether the magistrate erred in admitting evidence of admissions made in the course of his arrest - whether without the evidence of admissions there was sufficient evidence to convict the appellant - whether the magistrate ought to have suspended the sentence of imprisonment.
Held: magistrate correct in excluding portion of the arrest transcript, and admitting the rest of the evidence of admissions - upon an independent review of the evidence, there is sufficient evidence to convict the appellant, even without taking into account the disputed admissions - appeal against conviction dismissed - as to the appeal against sentence, the magistrate carefully considered all mitigating factors and did not err in declining to suspend the sentence - the sentence of six months imprisonment was well within an appropriate range - appeal against sentence is dismissed.
Summary Offences Act 1953 ss 74D and 79A, referred to.

MARSHAL v POLICE
[2008] SASC 284
KELLY J

The appellant was charged with two counts of threatening harm committed on 11 March 2004. He denied the charges and after a trial before a magistrate was found guilty, convicted and sentenced to imprisonment for six months. He appeals against both the conviction and the sentence.
At the hearing of the appeal, by consent, the appellant was permitted to amend the grounds of appeal to include a complaint that the learned magistrate erred in admitting evidence of admissions made by the appellant during conversations he had with the police on 26 March 2004. Further, that without those admissions there was insufficient evidence on which to find the appellant guilty of the offences.
Issues on this Appeal
At the hearing of this appeal both counsel proceeded on the footing that the original exhibits from the trial were missing. By the consent of both counsel a supplementary list of exhibits was prepared and photocopies of those documentary exhibits available to both the prosecution and defence were tendered at the hearing of this appeal. There was some further confusion as counsel were not able to agree on which items and other documents had actually been received into evidence and tendered at the trial. In light of this confusion I consider it necessary to record that following the conclusion of the hearing on 25 August 2008 the original exhibits arrived from the Elizabeth Magistrates Court. In my independent review of the evidence I have viewed and had regard to the following.
Exhibit:
-       D1: Three expiation notices.
-       P2: A statement of Christopher Dokowicz dated 2 April 2004.
-       P3: Videotape seized by Constable Thomas Waldron Norman.
-       P4: One still photograph taken from P3.
-       P5: Police database photograph dated 1 January 2002 depicting appellant.
-P6: One envelope containing one videotape of the interview, one audiotape of the arrest and one digital video cassette of the arrest.
-P7: Clothing, knife and one concession card seized by the police from the appellant on 24 March 2004.
-       P8: Transcript of the record of interview.
-       P9: Transcript of arrest and search video.
-       P10: Journal notes of Constable Down.
-       P11: Affidavit of Raymond William Foster dated 3 September 2007.
-       P12: Affidavit of Kendall Hoile dated 15 May 2004.
-       P13: Affidavit of Viet Xuan Tran dated 10 May 2004.
-P14 (tendered at the hearing of the appeal): Photograph of the appellant taken on 26 March 2004.
I have had the benefit of the copies tendered at the hearing of the appeal, some of which appear to be better quality images than the documents tendered at the trial. I have also had the benefit of the transcript of the proceedings in the Elizabeth Magistrates Court.
Background
The allegations giving rise to the two charges of threatening harm arose out of events said to have occurred on the evening of 11 March 2004. The appellant was alleged to have boarded a train at the Adelaide Railway Station without a ticket. When a passenger service assistant named Christopher Dokowicz issued an expiation notice to the appellant, the appellant became upset and in a conversation which followed, threatened Mr Dokowicz. The appellant then alighted from the train at the Munno Para Railway Station and the train continued on to Gawler. A little later that same evening on its return trip to Adelaide the train again stopped at Munno Para station at which time the appellant armed with a knife and while standing on the station platform, made further threats to Mr Dokowicz, who remained inside the train.
The prosecution case against the appellant was based on circumstantial evidence. Three employees of TransAdelaide were called to give evidence about their observations during the relevant period of time. Mr Dokowicz the victim, first observed the appellant smoking on the platform at the Adelaide Railway Station and informed him that it was a no smoking area. After the appellant boarded the front car of the Adelaide to Gawler train, Mr Dokowicz commenced a ticket check. He then saw the appellant running to a ticket machine to buy a ticket. Mr Dokowicz approached him and asked him why he did not have a ticket. At that time the appellant showed him a concession card and as he took down those details, the appellant said that the card was not his and they were not his details. Mr Dokowicz issued fines for the offences at which time he said the appellant became aggressive and argued that the name printed on the fine was not his anyway. All that the witness Dokowicz could recall about the details on the concession card given to him that night, was the name “Adam Marshal” and that the address given was definitely a Munno Para address.
These events were witnessed by Mr Bailey, a security guard assigned to assist the passenger service assistant that night on the Adelaide to Gawler return journey.
According to Mr Dokowicz, when the appellant became aggressive Mr Bailey stepped in between him and the appellant. As the appellant got off the train at the Munno Para station he told Mr Dokowicz he would come back with a knife and cut him up.
On the train’s return journey from Gawler to the Munno Para station, Mr Dokowicz said he could see another passenger service assistant standing on the platform in his uniform. Mr Dokowicz went to open the door of the train to warn the passenger service assistant, when he saw the same male person standing on the platform with a knife in his hand. He said he clearly recognised that it was the same person who had threatened him earlier even though he had now put on a black coat over the top of his clothes. At that stage the appellant said “Come on out arsehole” as he pointed the knife at him. Mr Dokowicz quickly shut the train door.
Mr Jason Bailey the security guard assigned to that train on 11 March 2004 said that after being issued with the expiation notice the appellant approached him, as he was very annoyed at being issued with a fine. Mr Bailey said that the appellant called Mr Dokowicz “a fucking wanker” and was very erratic, aggressive and wanted to physically hurt Mr Dokowicz. At the Munno Para Railway Station when the train stopped, he said the appellant shouted past him towards Dokowicz saying that he was basically going to kill him and stab him with a knife.
On the return journey from Gawler to Adelaide the train again stopped at the Munno Para station and Mr Bailey saw the same male person had come back, but was now wearing a jacket. He heard that person asking Mr Dokowicz to get off the train on to the platform. He saw that at that time the person had a large kitchen style knife.
Richard Matheson was the passenger service assistant who was standing on the platform at the Munno Para train station when the train came into the station on the return journey. He said he saw a man approach the door of the train holding a kitchen knife with a fairly long blade. He could see Mr Dokowicz start to open the train door at which point Mr Matheson called out to him not to open the door. Mr Matheson said the male person spoke to Mr Dokowicz words to the effect of “I told you I’d come back”. Although both Mr Dokowicz and Mr Bailey purported to identify the appellant in the courtroom as the male person who had uttered the threats that evening, the magistrate placed no reliance on those dock identifications. Mr Matheson did not purport to identify the appellant in the dock.
On 26 March 2004 the police arrested the appellant at his home address at 26 Konanda Crescent, Munno Para. At the time of his arrest the police had a conversation with the appellant during the course of which the appellant made certain comments in the nature of admissions.
At the trial the appellant’s counsel objected to the admission of the conversation on two grounds; first, that the investigating officer Constable Down failed to comply with the provisions of Section 74D of the Summary Offences Act 1953 and second, on the basis that the police failed to properly caution the appellant prior to the relevant admissions, or to inform him of his rights under s 79A of the Summary Offences Act until the conclusion of the conversation.
The appellant’s challenge to the admission of that portion of the conversation in respect of which there had been a failure to comply with s 74D of the Summary Offences Act, was upheld by the magistrate and there is no challenge to that ruling on this appeal.
However, the appellant contends that the magistrate’s ruling to admit into evidence the conversation between Constable Down and the appellant subsequent to the commencement of the videotape and the caution being given, is wrong. He contends that the magistrate ought to have excluded the whole of that conversation on the basis that the appellant had not been properly cautioned prior to making those admissions. He also contends that the admissions made at that stage of the conversation were in any event, “tainted” by the impropriety of the first portion of the conversation which Constable Down had with the appellant prior to that conversation being captured on the video.
Should the evidence of the conversation between the appellant and Constable Down at 26 Konanda Crescent, Munno Para, have been excluded?
Some difficulty arose out of the fact that part of the conversation which Constable Down had with the appellant immediately after his arrest on 26 March 2004, was not recaptured on the video or audiotape of the arrest. This is hardly surprising as it is evident from that portion of the arrest which was captured, that some of the police gained entry to the property by climbing over a tin fence. The operator of the video camera was plainly behind them. By the time the operator of the video camera gained access to the yard it is evident that Constable Down was in the middle of a conversation with the appellant.
In evidence Constable Down said he did not realise that the video camera had not captured the whole of his conversation from the outset and as soon as he viewed the video later he made notes of it. Those notes became P10 at the trial.
Whilst the recorded part of the conversation plainly contains a truncated caution (see P9), the exact terms of the caution were in dispute at the trial. Constable Down gave oral evidence before the magistrate to the effect that he gave a full caution to the appellant and the tail end of that caution where he reiterates to the appellant that he is not obliged to answer questions is what is captured on the tape. After hearing evidence the magistrate accepted that Constable Down was telling the truth about his conversation with the appellant. She noted there was no evidence to suggest anything to the contrary and ultimately concluded that the appellant had been cautioned in plain language that he did not have to answer any questions even though the giving of his rights under s 79A of the Summary Offences Act had been truncated by the untimely intervention of a more senior officer.
After viewing the video myself and reading the evidence of the police officers concerned, there is nothing to suggest that the exercise of the magistrate’s discretion has miscarried. It was within the magistrate’s discretion whether or not to admit the conversation. Her Honour came to the conclusion that the earlier portion of the conversation, which had not been recorded on either video or audiotape, and in respect of which there had not yet been a caution administered, should be excluded. There is no complaint upon appeal about the exercise of the discretion to exclude that portion of the conversation. After hearing from the constable her Honour plainly accepted him as a witness of truth. I might add that the evidence of Constable Down is logical. Contrary to the submission made by the appellant’s counsel I consider that his evidence is consistent with that portion of the conversation which is captured on the videotape. It is not surprising therefore that she accepted the constable’s evidence that a full caution was given.
I can see no error in the magistrate’s approach to the issue of whether that conversation should have been excluded. Had I been in the same position, I would have made the same ruling. The suggestion that the appellant’s answers thereafter were “tainted” by the initial conversation cannot be sustained in light of the fact that in the intervening period Constable Down had delivered a caution in plain English. In these circumstances and in the absence of any evidence suggesting the contrary, the presumption that the appellant’s answers thereafter were given voluntarily and in the exercise of the appellant’s own free will, has not been displaced.
Was the evidence sufficient to justify the verdict of guilty?
The appellant contended that without the evidence of the admissions made to police, the evidence before the magistrate was incapable of satisfying the court beyond reasonable doubt of the appellant’s guilt on either charge.
The contentious issue in the trial was the identity of the offender. Counsel for the appellant did not suggest that the verdicts could not be justified if the evidence of the admissions made by the appellant in the conversation with Constable Down were properly admitted.
However, the respondent’s contention was that even without the evidence of the admissions, the evidence as a whole was capable of satisfying the court beyond reasonable doubt and the magistrate’s finding of guilt was entirely justified. In support of that contention the respondent relied on the evidence of the three eye witnesses Mr Dokowicz, Mr Bailey and Mr Matheson. It was submitted that their evidence was supported by the evidence of the appearance of the male person in the video footage taken from the train compared with the appearance of the appellant shown in the video footage taken on the day of his arrest. In addition to that, was the evidence located at the appellant’s home, including clothing which is identical in appearance to the clothing being worn by the person in the video footage and a knife matching the appearance and description of the eye witnesses at the train station.
Whether a verdict of guilty is unreasonable and cannot be supported having regard to the evidence is a question of fact, which an appellate court must decide by making its own independent assessment of the evidence. It is necessary for the court to consider whether upon the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt of the appellant’s guilt.
In light of the respondent’s submission, I have approached this task without reference to any of the admissions made by the appellant. In other words, I have assumed for the purpose of my independent review of the evidence, that the admissions were not properly admitted.
I have had the benefit of viewing both the original exhibits tendered at trial and the copies tendered by counsel at the appeal. Like the magistrate, I disregarded the photograph (P5) for the purpose of my assessment. However, I have relied on the photograph tendered on appeal (P14) which is a still photograph taken on 26 March 2004, that is the same date as the video images of the appellant in the arrest video (P6). I have also had the benefit of viewing the items of clothing seized from the appellant on the day of his arrest together with a knife (P7).
Whilst there appear to have been several procedural irregularities in the conduct of the trial, I do not consider that those irregularities have produced any miscarriage of justice. The magistrate having accepted that the video footage taken from the train (P3) was properly admitted, then declined to allow the police prosecutor to recall the two witnesses Dokowicz and/or Bailey to identify themselves and the man they say threatened Mr Dokowicz, on that video. Her Honour’s explanation for refusing to allow that recall was that she considered the evidence on the videotape to be self explanatory. Given that the magistrate saw and heard from all of those witnesses, one can perhaps understand her attitude. However, I consider it would have been preferable if Mr Bailey and/or Mr Dokowicz were permitted to formally identify themselves on that videotape. I note that at the hearing of the appeal there was no suggestion that the video did not contain an image of the witness Bailey. In fact Mr Koehn, counsel for the appellant conceded as much.
The appellant argued at trial and again on appeal that the provenance of the video seized from the train had not been properly proved. Once again her Honour heard argument on this, considered the evidence of the police and Constable Norman who seized the tape and found that it was indeed the video which recorded the incident complained of by Dokowicz on the night in question. As I said, it would have been preferable if the magistrate had permitted the recall of the two witnesses to confirm that it was the witness Bailey shown on the videotape. However, I do not consider that that failure has led to a miscarriage of justice.
I have had the benefit of viewing that video, together with the video of the appellant’s arrest, the still photographs taken from the train video and the photograph taken on the same date as the appellant was arrested. In my view the image of the man shown in the video and the still photograph (P3 and P4) is the same man as depicted in the video and the photograph (P6 and P14). In other words I am satisfied beyond reasonable doubt that the man that Mr Dokowicz and Mr Bailey spoke to on the train that evening is the appellant. Moreover, an examination of the clothing tendered as part of Exhibit P7 confirms that that clothing is identical in appearance to the shirt and tie worn by the man on the train on both the videotape and the photographs (P3 and P4).
Whilst I consider it would have been preferable for the magistrate to have made it plain what evidence she relied on in coming to the same conclusion, it seems obvious enough that her Honour adopted the same process of reasoning as I have.

In summary then, the prosecution relied on a strong circumstantial case. The evidence disclosed that there were two threats made by the man to whom Mr Dokowicz issued expiation notices on the Adelaide to Gawler train on the evening of 11 March 2004. The details obtained from Mr Dokowicz were identical to those details contained in the appellant’s personal identification except that the witness was plainly mistaken as to the Christian name and date of birth.
The threats to Mr Dokowicz were witnessed by Mr Bailey and the second threat was witnessed later by Mr Matheson standing on the station platform. Their evidence as to the description and behaviour of the man on each occasion was generally consistent. Mr Dokowicz reported the threats promptly. Immediately after the reporting of those threats the transit officer, Constable Norman located the surveillance footage for the train, seized the videotape and commenced an investigation. In light of these facts, the magistrate was entitled to conclude that the provenance of the train video had been properly proved.
As I have already remarked the appearance of the person in the video train footage is identical to the appearance of the appellant on the date of his arrest. That evidence was capable of satisfying the magistrate of the appellant’s guilt, even without taking into account the disputed admissions.
However, I do not consider that there has been any error by the magistrate in determining to admit the evidence of the conversation between the appellant and Constable Down after the giving of the caution. Furthermore, I consider there was no basis to exclude the evidence of the train video.
For these reasons I consider that the only conclusion is that the appellant was the offender and that this appeal against conviction should be dismissed.
Appeal Against Sentence
The appellant also appeals against the sentence imposed by the magistrate, on the basis that she erred in not exercising the discretion to suspend the term of imprisonment. Her Honour imposed an immediate term of imprisonment of six months. The appellant’s essential complaint was that the magistrate fell into error by giving insufficient weight to the mitigating circumstances of the appellant and too much weight to his previous history and the serious nature of the offences.
Counsel for the appellant also suggested that the magistrate had fallen into error by commenting “I also take into account that you don’t get any discount for a plea of guilty”. It was contended that that statement suggested erroneous reasoning. I do not consider that there is any substance in that particular complaint. The fact that a magistrate may observe that a defendant is not entitled to any discount for a plea of guilty is not suggestive of any error. In this case it was an accurate statement of the position.
The magistrate’s sentencing remarks show that she carefully considered all of the mitigating factors relied on by the appellant. There was a need in sentencing the appellant to take into account a number of competing considerations, including the seriousness of the offences, the appellant’s previous history and all of the personal mitigating factors. The sentencing remarks reveal that her Honour was very much alive to that need and approached her task with firmness and restraint. In the end her Honour concluded that an immediate sentence of imprisonment was warranted. Having regard to the appellant’s age, antecedents and background generally, the sentence of six months was well within an appropriate range. Her Honour rightly concluded that attacks of this nature on vulnerable people who by reason of their occupation are required to work late at night and often in situations where there are not many other people around, is a matter of public concern.
I do not consider that any error has been demonstrated in the exercise of the discretion not to suspend the sentence on this occasion. In these circumstances there is no basis for this court to interfere with the sentence imposed by the learned magistrate.
For these reasons the appeal against sentence is dismissed.