Middleton v Police
[2015] SASC 33
•27 February 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MIDDLETON v POLICE
[2015] SASC 33
Judgment of The Honourable Justice Nicholson
27 February 2015
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - OTHER MATTERS
On 17 December 2014, the appellant was convicted, following a trial in the Magistrates Court, of the offence of serious criminal trespass in a place of residence and the offence of theft, contrary to ss170 and 134 of the Criminal Law Consolidation Act 1935 (SA) respectively. A person or persons, at sometime between 2 and 3 January 2013 entered a residence and took various items, including a Toyota Echo, whilst the owners of the home were away on holiday. The appellant, and his female domestic partner, were later apprehended by police on 5 January 2013 in the car park of the Glynde Hotel whilst exiting the Toyota Echo and in possession of some of the other items of property that had been taken.
The Crown case at trial was wholly circumstantial. The appellant submits that the Magistrate erred in finding him guilty of both offences, on the basis that the evidence before the court was not sufficient to establish, beyond reasonable doubt, the ultimate inference that it was he who entered the property and took the items. The appellant further submits that the Magistrate erred in reversing the onus of proof with respect to an important factual element of the Crown case.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 s134, s170; Magistrates Court Act 1991 s42, referred to.
Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Peacock v The King [1911] HCA 66, (1911) 13 CLR 619; Barca v The Queen [1975] HCA 42, (1975) 133 CLR 82, considered.
MIDDLETON v POLICE
[2015] SASC 33Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
On 17 December 2014, the appellant was convicted, following a trial in the Magistrates Court, of the offence of serious criminal trespass in a place of residence[1] and the offence of theft.[2] He has appealed against those convictions.
[1] Criminal Law Consolidation Act 1935, section 170.
[2] Criminal Law Consolidation Act 1935, section 134.
The Crown case was wholly circumstantial. The facts directly proved by the evidence are not in dispute. However, the appellant submits that the evidence before the court was not sufficient to establish, beyond reasonable doubt, the ultimate inference that the appellant was guilty of the two offences and that the Magistrate erred in reaching this conclusion.
The notice of appeal contains the following two “grounds”:
(1)The Learned Magistrate erred in finding the Appellant guilty in relation to both charges.
(2)The findings of guilty are not consistent with the evidence and are unsafe and unsatisfactory.
During the hearing of the appeal, the appellant also complained that the Magistrate erred in that, with respect to one aspect of the facts, his Honour reversed the onus of proof.
The appellant’s primary ground of appeal – “unsafe and unsatisfactory” – is not applicable to an appeal pursuant to section 42 of the Magistrates Court Act 1991. The correct approach to be adopted by this Court for a conviction appeal from the Magistrates Court was explained by White J in Martin v The Department of Transport, Energy & Infrastructure.[3]
[3] [2010] SASC 141 at [36]-[39].
As previously noted, the appellant’s first ground of appeal is that the Magistrate’s verdict was unsafe and unsatisfactory. A ground of appeal in these terms is commonly seen in appeals under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is, however, inapplicable to appeals under s 42 of the Magistrates Court Act 1991 (SA).
The present appeal is an appeal by way of rehearing.[4] The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:[5]
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.[6]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[7]
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.
[4] Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Civil Rules 2006 (SA) r 286(1).
[5] (1990) 53 SASR 282.
[6] Ibid at 291-2.
[7] See generally Fox v Percy [2003] HCA 22 at [25]-[29], (2003) 214 CLR 118 at 126-8; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.
Factual circumstances
Much of the evidence was by way of the tender of signed statements by consent. Two witnesses gave oral evidence in the Crown case; one of the arresting officers, Detective Sergeant Damon Roberts, and a forensic scientist, Ms Kerryn Mason. In addition, a record of interview conducted by Detective Sergeant Roberts with the appellant was received. The appellant did not give evidence.
The following matters are not in contest. In any event, after bearing in mind the advantage enjoyed by the Magistrate in seeing and hearing the witnesses who gave evidence[8] and following my review of the evidence adduced by the prosecution at trial, I am satisfied that they were established by the prosecution.
[8] See generally, Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 at [22]-[31] (Gleeson CJ, Gummow and Kirby J).
(i)Sometime between 2 and 3 January 2013, the victims’ place of residence at Cockatoo Valley was entered by one or more trespassers.[9]
[9] The uncontested evidence was to the effect that: the victims had been on holiday and had returned on 3 January 2013 to find their house had been broken into; that various items of property had been taken; that the premises had last been checked by a friend early on 2 January 2013; and that nothing of concern was observed. The friend did not go inside the house. However, the external state of the premises following the break in was such that had it occurred prior to the inspection, it is to be inferred that the friend would have been able to observe from his external check that something was seriously amiss.
(ii)Sometime between 2 and 3 January 2013 various items of property belonging to the victims were taken from outside and from within the house.
(iii)The property taken included jewellery, computers, televisions, various gardening and power tools, an antique clock, a kettle, linen, kitchenware, keys to a Toyota Echo and a spare key to an Outback Subaru in which the victims had been travelling on their holiday. The victims’ second car, the Toyota Echo, had also been taken.
(iv)The victims did not give anyone permission to enter the premises or take their property.
(v)Upon returning home from their holiday at about 11am Thursday 3 January 2013, the victims noticed that the Toyota Echo was missing from the carport and observed a broken wine bottle on the ground and red wine staining on the concrete floor next to where the car had been parked.
(vi)Later that day, one of the victims observed a police crime scene officer take a photograph of a shoe print that was in the red wine stain on the carport floor.
(vii)On 5 January 2013, the appellant was apprehended at the Glynde Hotel whilst getting out of the driver’s side of a Toyota Echo and in possession of its keys. The appellant’s female domestic partner got out of the passenger side of the car at the same time. The Toyota Echo was later determined to be that taken from the victims’ carport.
(viii)At the time the appellant was apprehended, the Toyota Echo was displaying registration plates that had been reported stolen.[10]
(ix)In addition, a backpack and a pendant belonging to the victims and taken from the residence were found inside the Toyota Echo and the appellant’s partner was found to be wearing a gold ring belonging to the victims and taken from the residence.
(x)The correct registration plates for the Toyota Echo were found in the backpack. Screws similar to those used to hold number plates on a vehicle and a screwdriver suitable for use with such screws were found on the floor of the Toyota Echo.
(xi)A substantial amount of the property taken was not found inside the Toyota Echo and has not been recovered.
[10] It was this that excited police interest.
To this point, the evidence against the appellant supports, at best, a high level of suspicion. It would not be sufficient to establish beyond reasonable doubt that the appellant committed the trespass or took from the premises the items found in his possession. The Crown does not contend otherwise. The evidence is also consistent with a theft, by way of receiving, sometime after the trespass and theft with which the appellant has been charged was committed or, on a generous approach, coming into possession of the property through innocent means.
Where, as here, the Crown case is wholly circumstantial, before a finding of guilt can be arrived at it must be not only a rational inference but the only rational inference available on the whole of the evidence.[11] To make its case, the Crown relied on two other, what it maintains are incriminating, features of the evidence.
[11] Peacock v The King [1911] HCA 66, (1911) 13 CLR 619 at 634; Barca v The Queen [1975] HCA 42, (1975) 133 CLR 82 at 104.
The shoeprints
Brevet Sergeant Jason Wynne is attached to the Forensic Services Branch at the SA Police. He is qualified as a crime scene investigator and his duties include the examination, recording and interpretation of crime scenes as well as the collection, preservation and examination of physical evidence found at crime scenes. Sergeant Wynne undertook an exercise where he compared test impressions of the sole of each of two shoes, seized from the appellant, with photographs of shoe marks found at the scene of the break in. His report of both the process of and results obtained from that comparison exercise was tendered before the Magistrate by consent. Sergeant Wynne did not give evidence and, therefore, was not cross-examined on his report.
By way of background, the appellant was arrested at the Glynde Hotel after being found in possession of the reported stolen number plates. He was charged with unlawful possession. However, when the arresting officer, Detective Sergeant Roberts, discovered another set of number plates in the backpack in the car, a check was undertaken which revealed those number plates to belong to the victims’ Toyota Echo. As a consequence, Detective Sergeant Roberts inspected the police file with respect to the break in and theft from the victims’ address. He became aware that included in the property stolen was a quantity of wine and that some of the wine had been dropped and smashed in the carport near where the vehicle had been parked. He also became aware that a shoe print had been observed indicating that someone had stepped in the red wine. Detective Sergeant Roberts said this in evidence.
So I was aware of that and upon speaking with Mr Middleton in the holding cell, I saw that on one of his shoes, the left shoe from memory, it’s a sneaker, there was quite a distinctive red splash pattern on his shoe or staining on his shoe on both the upper white mess [sic: mesh?] and on the rubber [sic: under?] side rubber white sole. And I had reason to believe – or suspected that that may have been red wine, given from what I’d just read in the police incident report.
On this basis Detective Sergeant Roberts seized the shoes that the appellant had been wearing at the time he exited the motor vehicle at the Glynde Hotel.
Sergeant Wynne, using the techniques as described in his report, produced test impressions for the sole of both the left shoe and the right shoe. Sergeant Wynne also had before him three separate shoe mark impressions photographed at the scene which he labelled ‘A’, ‘B’ and ‘C’. The shoe marks were two dimensional partial impressions of average quality located on the concrete floor of the carport. The one that Sergeant Wynne marked ‘A’ was in a “brown/red coloured liquid”. All three shoe marks had the same outsole pattern which consisted of triangle blocks and some oval blocks. No wear or individual characteristics were identified; there was a lack of fine detail in the shoe mark impressions.
According to the statement of the crime scene investigator, Brevet Sergeant Nicholas Downey, also admitted before the Magistrate by consent, he took a series of photographs of a shoe mark impression which he located in what appeared to be “staining consistent with the wine staining on the concrete surface near the broken wine bottles”. It appeared to Sergeant Downey that the shoe mark impression had been deposited after the wearer had stepped in the wine while it was still wet. It was this shoe mark impression that Sergeant Wynne labelled ‘A’.
Following Sergeant Wynne’s comparison exercise he reached the following conclusions which were not challenged by the defence. The left shoe seized from the appellant was “capable” of producing the scene marks labelled ‘A’ and ‘B’, “based on similar corresponding outsole pattern” and the right shoe seized from the appellant was excluded from producing scene marks labelled ‘A’ and ‘B’. However, the right shoe was found to be “capable” of producing scene mark ‘C’, again, based on a similar corresponding outsole pattern. The left shoe seized from the appellant was excluded from producing scene mark ‘C’.
According to the statement of Sergeant Wynne, the term “capable” is used in the sense that the shoe could have produced the shoe mark in question. However, there are limitations as to the use to which a conclusion of this nature can be put. First, given the absence of any individual characteristics, Sergeant Wynne was unable to exclude other shoes with a similar outsole pattern from having produced the scene marks and second, there was no evidence before the Court concerning the number of shoes in circulation that might share this outsole pattern.
Nevertheless, and with these limitations in mind, it can be inferred, from the evidence summarised under this heading, that:
(i)some three or so days after the offending in question, the appellant was wearing a left and a right shoe each of which was capable of forming a shoe print found at the scene and in close proximity to where the motor vehicle had been and the smashed bottle or bottles of red wine were positioned;
(ii)at least one of the shoe prints photographed at the scene had been deposited at the time of, or very soon after, the smashing of the bottle or bottles containing red wine;
(iii)it was a left shoe which had stepped in the spilled red wine and caused the shoe print to be deposited; and
(iv)it was the appellant’s left shoe on which a “red splash pattern... or staining” had been observed by Detective Sergeant Roberts.
Forensic testing of the staining or mark on the left shoe
The second incriminating feature of evidence relied upon by the Crown derives from the evidence of the forensic scientist, Ms Kerryn Mason. Ms Mason has two science degrees and a graduate diploma in science and has worked for over 25 years as a scientist in a number of private and government organisations in South Australia, Victoria and New South Wales. Since 2006 Ms Mason has been employed as a forensic scientist in the toxicology group at Forensic Science SA.
Ms Mason examined both shoes taken from the appellant with a view to determining whether the area of discolouration apparent on the left shoe was caused by red wine or by transmission fluid. The reason she was asked to test for the presence of transmission fluid is that, according to the oral evidence of Detective Sergeant Roberts, the appellant indicated at the time the shoes were seized that the stain had been caused by “transmission oil”. I will need to return to this aspect of Detective Sergeant Roberts’ evidence later in these reasons. However, for present purposes, it is sufficient to note that Ms Mason was asked to test the stain on the left shoe only for the presence of red wine and transmission fluid.
Ms Mason conducted tests, as described in her report tendered before the Magistrate, on red wine that she purchased for the purpose and on a popular brand of transmission fluid that she purchased for the purpose. She also undertook a search of the literature.
In short, her test findings were to the effect that the red wine contained glycerine but that the popular brand of transmission fluid did not contain glycerine. On the left shoe, Ms Mason observed an apparently stained area, darker in colour to the rest of the shoe, located on the front middle section of the shoe. She undertook an analysis of a sample taken from the stained area and discovered the presence of glycerine. She could not see with the naked eye any similar staining on the right shoe. However, she took a control sample from the right shoe for analysis. She wanted to check for different types of material and compounds that might be apparent from the composition of the shoes. A number of compounds were found common to both shoes, as one would expect.
Ms Mason’s literature research disclosed that glycerine is a component of red wine and is produced during and increases in quantity during the fermentation process. In other words, the glycerine she found was not singular to the particular red wine analysed by Ms Mason. According to Ms Mason’s evidence, glycerine is present elsewhere: it is commonly used as a solvent in plastics, as a sweetener, in cosmetics and skin care products, in liquid soaps and in printing and copying inks. It is also used in the automobile industry and can be found in antifreeze and shock absorber fluids.
During cross-examination Ms Mason confirmed that she only tested one brand of transmission fluid, albeit, the most popular brand Australia wide. Ms Mason also agreed in cross-examination that the shoes disclosed wear and tear in terms of dirt and looked well worn. They were not new shoes. She said that it was not possible to say how long the glycerine had been on the left shoe. She indicated that she could exclude the presence of transmission fluid on the left shoe. However, she was unable to exclude the possible presence of other fluids that contain glycerine such as antifreeze fluid or shock absorber fluid.
Again, the inferences that might be drawn from the evidence of Ms Mason, standing alone, are limited. The left shoe presents as capable of being a shoe that has been stained, at some unidentified time, with red wine, as not being capable of being a shoe stained with transmission fluid but as capable of being a shoe stained with other, relatively common, household and industrial products that share the same tested for characteristic found in the red wine, that is, the presence of glycerine.
The Magistrate’s reasons
The Magistrate reviewed the evidence in quite some detail. He also directed himself appropriately as to the relevant law, in particular: that the appellant was presumed innocent unless and until guilt had been proved beyond reasonable doubt; that the burden of proof lies wholly on the prosecution; that the defendant has no obligation to prove anything and that the burden on the prosecution includes an onus to exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence.
The Magistrate reminded himself that there was no obligation on a defendant to give evidence or to call witnesses to give evidence and that the task of the Court is to carefully assess the prosecution evidence. The Magistrate reminded himself that where a circumstantial evidence case is concerned, guilt must be the only rational inference available on the whole of the evidence. Apart from one matter concerning an asserted reversal of the onus of proof and to which I will come shortly, the appellant raised no criticism concerning the directions of law identified and purportedly observed by the Magistrate. The Magistrate concluded as follows:[12]
[12] Police v Middleton, AMC-13-16657, Reasons for Judgment, 17 December 2014 at [52].
Having carefully considered the evidence and the totality of all of the evidence, I have reached the following findings, drawn the following inferences and reached the following conclusions beyond reasonable doubt:
1.Sometime between 2 and 3 January 2013 the place of residence of [the victims] located on their property at Cockatoo Valley was entered by one or more trespassers whose intention was to steal.
2.Between the same dates the items listed in count 2 were stolen from the property at Cockatoo Valley – some from within the residence – of which two items of jewellery (a gold ring and a pendant), a set of keys and the Toyota were recovered along with a stolen backpack belonging to [one of the victim’s] (together being “the recovered goods”).
3.No-one had permission to enter the premises or to take the recovered goods.
4.On 5 January 2013, being not later than 3 days after their theft, the Defendant was apprehended at Glynde exiting the driver’s side of the stolen Toyota in possession of its keys and in the company of his partner who was wearing the stolen gold ring.
5.At the time of apprehension the stolen Toyota displayed registration plates stolen the day before from another vehicle at West Lakes.
6.Located within the stolen Toyota were the stolen pendant and the stolen backpack.
7.The Defendant was apprehended wearing shoes the soles of which were capable of having made the scene marks left in a red wine spill at the property at Cockatoo Valley.
8.An area of discolouration (“the stain”) on the defendant’s left shoe was detected and analysed.
9.The Defendant claimed the stain was from transmission oil.
10.The stain contained glycerine being a component of red wine but not of transmission fluid.
11.The stain was consistent with it being caused by red wine but not transmission fluid.
12.A consideration of each of these findings on the evidence, the strength of the threads connecting them and the totality of the evidence supports as the only rational inference that the Defendant was involved as a trespasser for the purposes of Count 1 and as a thief of all the items listed in Court 2 and excludes any reasonable hypothesis consistent with innocence.
The appellant complained that the Magistrate’s reliance on 9, 10 and 11 above brought with it a reversal of the onus of proof. The appellant contended that, in effect, the Magistrate had required the appellant to prove that the stain on the shoe was caused by transmission fluid whereas the only question properly before the Magistrate was whether the Crown had proved its case beyond reasonable doubt and, in that context, whether it was reasonably possible that the stain on the shoe had been caused by some product containing glycerine other than red wine.
In my view, a reading of the Magistrate’s reasons as a whole reveal that his Honour was very careful to ensure that the Crown proved its case to his satisfaction beyond reasonable doubt and that there was no obligation on the appellant to prove anything at all. In any event, if the Magistrate did unfairly or inappropriately limit his consideration to the possible presence of transmission fluid, I’m not satisfied that any miscarriage of justice has occurred. On my independent review of the evidence, I have reached the same conclusion of guilt arrived at by the Magistrate.
To place the appellant’s concern in context, it is helpful to briefly review the evidence before the Magistrate dealing with the provenance of the stain on the left shoe.
At the time Detective Sergeant Roberts seized the shoes, he was told by the appellant that “transmission oil” was somehow involved. The following exchange occurred during the examination in chief of Detective Sergeant Roberts.
ASo as I say, yeah, conversation with Mr Middleton in the cells in relation to seizing the shoes and as I say, I wasn’t intending on asking him any questions as he’d indicated that he wasn’t going to answer any, but he did say to me unprompted when I seized the shoes that “Aw that stain is transmission oil” and I made some notes in my notebook about that.
QWas that whilst he was under caution.
AYes. I didn’t ask any further questions in relation to that. As I say, I just noted it down. However, [the appellant’s domestic partner] was in the cell next door as well and she saw me handling the shoes and whether she overheard some conversation between myself and my partner in the corridor I’m not sure, but she actually unprompted said “Aw, I threw a glass of wine at him, that’s what that is”. So obviously she wasn’t questioned any further in relation to those comments.
QYou said you made notes of those comments.
AI did, yes.
QWhere abouts did you make those notes.
AIn my notebook.
QIn your notebook, and when did you make those notes.
AYep, I’d have to look up the page and so forth. I made them at the City Watch House immediately. Yeah, I made them – yeah, I made them in my notebook at the time.
QAt the Watch House.
AYes.
QDo you have that notebook with you today.
AI do, yes.
Detective Sergeant Roberts was not cross-examined on that evidence. The notes were available, and may have been or at least could have been checked with a view to cross-examining Detective Sergeant Roberts against any apparent inconsistencies. In the circumstances it was open to the Magistrate to accept that evidence.
However, the matter became a little confused because in the record of the interview of the appellant, conducted by Detective Sergeant Roberts and which was received by the Magistrate, the reference is made only to “oil” or “oils”. The interview was conducted almost 12 months after the initial arrest and the conversation in the cells about which Detective Sergeant Roberts gave evidence at the trial, as set out above. In the interview the appellant did not initiate any discussion of this issue. Rather, Detective Sergeant Roberts put to the appellant what he believed the appellant had said some 12 months or so before in the holding cells. The appellant appeared to agree with what Detective Sergeant Roberts put to him. Question and Answers 141 to 188 are in the following terms.
ROBERTSA red wine bottle was dropped and smashed –
MIDDLETON Right.
ROBERTSAnd I said to you at the time, I suspected that that was red wine on your shoe, on the side of the sole and on the upper mesh.
MIDDLETON Mm hm.
ROBERTSWhat you said to me in the holding cell was ‘It’s not red wine, it’s, it’s not, it’s oil.’
MIDDLETON I reckon I was at work that day.
ROBERTSYou, you recall that or –
MIDDLETON I reckon vaguely. I vaguely do.
ROBERTSYep.
MIDDLETON Yeah.
ROBERTSAll right. Well, I’m just –
MIDDLETON I’m pretty sure it was yeah.
ROBERTSOkay, well I’m not, I’m not –
MIDDLETON I’d just been picked up from work on a bloody –
ROBERTSYeah, we’ll I’m putting, I’m putting, I’m just refreshing your memory.
MIDDLETON Yeah.
ROBERTSI’m putting to you what you’ve said to me so I’m not really effectively answering, asking you questions –
MIDDLETON No, no I understand that.
ROBERTSI’m just putting to you what you said to me at the time –
MIDDLETON Yep.
ROBERTSAnd you said that that was an oil stain.
MIDDLETON Yep.
ROBERTSOn, on a shoe.
MIDDLETON Well I can’t honestly remember –
ROBERTSOkay.
MIDDLETON Totally, so –
ROBERTSAll right, no worries. I’m just, I’m just saying that for the purpose of the video –
MIDDLETON Yeah.
ROBERTSJust to let you know and just so that there’s no disagreement or you, or you’re saying I never seized your shoes or anything like that, so -
MIDDLETON I can’t remember comin’ out of, I remember having to take shoes off.
ROBERTSYep.
MIDDLETON Can’t remember having shoes when I left.
ROBERTSAll right.
MIDDLETON I’m not sure.
ROBERTSWell, I’m telling you I –
MIDDLETON I’m not, I can’t be a hundred per cent (100%) –
ROBERTSYep, I requested you to take your shoes off –
MIDDLETON Yep.
ROBERTSWhile you go into the cells.
MIDDLETON Yeah.
ROBERTSI, I, I, I observed the stain on the shoes –
MIDDLETON Mm hm.
ROBERTSI asked you about that stain which you commented it was an oil stain, okay.
MIDDLETON Mm hm.
ROBERTSAnd then I seized both of those shoes.
MIDDLETON Right, fair enough.
ROBERTSOkay. I’m not going to ask you anything else in relation to the, ask you any questions in relation to –
MIDDLETON Yep.
What is clear enough from this aspect of the record of interview is that Detective Sergeant Roberts was putting propositions to the appellant with which the appellant was prepared to agree whilst, in truth, having no real recollection. It is not apparent from the record of interview as to whether or not the propositions being put by Detective Sergeant Roberts were accurate and, in particular, whether he was putting these propositions on the basis of his notes or simply on the basis of his memory. These matters were not taken up by way of cross-examination of Detective Sergeant Roberts.
The question of whether the appellant, when in the holding cells, referred to transmission oil or, more generally, oil, was not debated before the Magistrate. The evidence of Detective Sergeant Roberts, based on his contemporaneous notes, to the effect that the reference was to transmission oil was not challenged and it was, in my view, the more reliable account. It was open to the Magistrate to be satisfied that the appellant had told Detective Sergeant Roberts that he thought the stain was caused by transmission fluid or oil.
Even so, it would not be appropriate, in this case, to confine consideration of alternative possibilities consistent with innocence to simply the possible presence of transmission fluid. The material before the Court raised other possibilities. The Magistrate was entitled to reject the appellant’s account concerning transmission oil, particularly, given the evidence of Ms Mason. But this, of itself, did not strengthen the prosecution case absent a finding (not made) that the appellant had lied through consciousness of guilt. The assertion concerning “transmission oil” might be put to one side but the prosecution still bears the onus to adduce evidence which serves to exclude all reasonable possibilities consistent with innocence. In the present case, the observations of Gibbs, Stephen and Mason JJ in Barca v The Queen[13] are apposite.
[A]lthough a [trier of fact] cannot be asked to engage in groundless speculation it is not incumbent on the defence to either establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the [trier of fact] think(s) that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.
[13] [1975] HCA 42 at [12], (1975) 133 CLR 82 at 105 (emphasis supplied).
Given the evidence of Ms Mason, there was sufficient material before the Court so as to call for the consideration of other common household and industrial products as possibly explaining the presence of glycerine on the appellant’s left shoe. Indeed, and to allow for the appellant’s case at its highest, it is arguable that the explanation given by the appellant’s partner, when in the holding cells, that she threw a glass of wine at him should also be taken into account (although this was not the appellant’s contention either at trial or on appeal). Nevertheless, these conceivable possibilities must still be weighed in the context of the Crown’s circumstantial evidence case as a whole.
In my view, the Crown case is stronger than as articulated by the Magistrate, even after allowing for these conceivable explanations for the presence of glycerine on the appellant’s left shoe. It was the left shoe of the appellant that was stained and it was a left shoe that left the print in the spilled red wine. Not only was the left shoe stained but the stain was on the top of the front of the left shoe – in the mesh – and was quite extensive. This can be observed from a photograph of the shoes tendered before the Magistrate and is the effect of or consistent with the evidence of both Detective Sergeant Roberts and Ms Mason. Detective Sergeant Roberts described seeing a “red splash pattern” which is consistent with the photographic evidence. It is thus to be inferred that the stain containing glycerine did not come about by the appellant simply treading in a spill. Either the spill caused a substantial puddle which splashed when the shoe came into contact with it or the shoe was present when a splash occurred caused by a container of fluid being dropped and breaking open. In other words, the type of circumstances which might have caused the splash mark to the top of the appellant’s shoe are likely to occur much less frequently than the type of circumstances in which a stain is obtained by simply stepping in a substance. The evidence concerning the smashed red wine bottle or bottles at the premises suggests circumstances of the less frequently occurring type.
I have conducted a full and independent review of the evidence that was before the Magistrate. The Crown case, considered in its entirety, that is, the shoe print and shoe stain evidence as just now discussed, together with (i) to (vii), (ix) and (xi) in paragraph [6],[14] is compelling. In the context of the Crown case as a whole, any explanation, other than the victims’ red wine, for the presence of the glycerine found on the left shoe is fanciful.
[14] I have excluded (viii) and (x) from my consideration as having no probative value with respect to the question of guilt of the offences under consideration in this appeal.
The Magistrate’s reasoning may have been economical in this latter respect. Nevertheless, following my review of the evidence, like the Magistrate, I am satisfied of the appellant’s guilt beyond reasonable doubt.[15] When the evidence is considered as a whole, it admits of no rational inference consistent with innocence. The appeal is dismissed.
[15] I have not set out and discussed the various elements of the two offences. The appeal was conducted on the implicit understanding that if the appellant was proved to be a person who had entered the premises and taken the property found in his possession then he was guilty of committing the charged offences either alone or with some other person as part of a joint criminal enterprise.
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