Murphy v Police - [2015] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MURPHY v POLICE
[2015] SASC 193
Judgment of The Honourable Justice Vanstone
11 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE - GENERALLY
Appeal against conviction - appellant convicted for two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to s 30(1) of the Controlled Substances Act 1984 (SA) - whether magistrate erred in failing to direct herself in relation to the dangers of acting on evidence in the nature of identification evidence - whether magistrate erred in failing to exclude reasonable hypotheses consistent with innocence - whether magistrate erred by restricting the use of evidence in the nature of discreditable conduct evidence where neither party objected to its admission - whether the late production of certain evidence denied the appellant a fair trial and caused a miscarriage of justice.
Held: appeal dismissed. The grounds of appeal are not made out. The case did not call for an identification warning. The prosecution case was not principally a circumstantial one. The task for the magistrate was to evaluate the critical direct evidence and consider it in light of all the prosecution and defence evidence. It was necessary and appropriate for the magistrate to consider the admissibility of apparently "discreditable conduct" evidence given its potentially prejudicial effect on the appellant. The late production of certain evidence did not adversely affect the fairness of the appellant's trial and no miscarriage of justice occurred.
Controlled Substances Act 1984 (SA) s 30(1); Evidence Act 1929 (SA) Part 3 Division 3, referred to.
Dhanhoa v The Queen (2003) 217 CLR 1, applied.
Domican v The Queen (1992) 173 CLR 555, distinguished.

MURPHY v POLICE
[2015] SASC 193
Magistrates Appeal
Criminal

VANSTONE J: After a trial in the Magistrates Court, Graeme John Murphy, a legally qualified medical practitioner, was found guilty of two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to s 30(1) of the Controlled Substances Act 1984 (SA). He now appeals against his convictions on a number of grounds. These fall into three categories. First he complains that the magistrate failed to direct herself sufficiently in relation to the dangers of acting on evidence in the nature of identification evidence linking him to the forged prescriptions; next, that there was no sufficient proof that the man named in the prescriptions – John Brookes – did not present them himself; and then, that there were several specific errors in the reasoning of the magistrate.
The respondent took no issue with the amendments to the grounds of appeal.
Background
To provide a context in which the various complaints can be considered it is necessary to say something about the case presented by the prosecution and the appellant’s answer to it.
The prosecution called evidence to prove that on 13 February 2013 at about 10 o’clock in the morning a man went to the premises of “Chemist King” at Frewville and presented for filling two prescriptions in the name of John Brookes of 16 John Street, Salisbury. One prescription (Exhibit P2) was for Tramadol Hydrochloride, apparently prescribed by Dr Humphrey Adzanku, and the other (Exhibit P3) for Zolpidem Tartrate, apparently prescribed by the appellant. The two prescriptions were handed to Ms Mariam Welson, who at that time was working at the pharmacy as an intern. She had been a qualified pharmacist in Egypt and upon moving to Australia had undertaken examinations to enable her registration in Australia. She became qualified in late 2013.
Ms Welson said that the man who handed her the prescriptions told her “I don’t mind generics” and then walked away. Looking further at the prescriptions she noted some irregularities. Significantly, details of the surgery where the prescriptions were apparently issued, such as the telephone number and the fax number, were missing. She drew these matters to the attention of the pharmacist, Mr Don Le, who was working a couple of metres from her. He, too, saw the man who presented the prescriptions. He noted that the alignment of the address with the name was different from the usual format and neither of the prescriptions had the contact address for the prescribing doctor. Mr Le observed that the medications the subject of each prescription were susceptible of abuse within the community and, if taken together, could have significant side effects. He said it was not common to see them prescribed together. There were other unusual features of the formatting and content of the prescriptions. Mr Le identified Exhibits P2 and P3 as the relevant prescriptions.
Mr Le said he then telephoned Dr Adzanku, having obtained his contact number from the internet. Dr Adzanku asked him to fax a copy of the prescription, P2, to him and Mr Le did so. The doctor then telephoned him back and told him that he had not seen the patient and did not write the prescription.
At that point the person presenting the prescriptions was in the pharmacy and Mr Le approached him. Ms Welson said that the man Mr Le approached was “exactly the same person” as had presented the scripts P2 and P3 to her. Mr Le asked him whether he saw Dr Adzanku for this medication. Receiving no response, Mr Le told the man that Dr Adzanku had denied writing the prescription. The man said something to the effect of “That’s okay. I will go back and see the doctor” and hurriedly left the pharmacy. The police were then called.
Mr Le then put the prescriptions into a drawer for safekeeping and went on with his work pending the arrival of the police. He said there were no other prescriptions in that drawer. When the police arrived about 15 to 20 minutes later he explained the sequence of events to them and handed them the two prescriptions. He also showed police closed circuit television footage (CCTV) covering the incident. It ran continuously in the pharmacy. It comprised sequences from several cameras. Mr Le also provided a computer generated dispensing history covering the last twelve years at that pharmacy of the patient mentioned in the two prescriptions, John Brookes of 16 John Street, Salisbury North. That document was tendered as Exhibit P7 without objection. Five of the prescriptions referred to in P7 listed the appellant as the prescribing doctor, each one prescribing Tramadol. The other named Dr Adzanku as the prescribing doctor and it too was for Tramadol. Mr Le identified the CCTV which he gave to police. It became Exhibit P1.
Subsequently police showed Mr Le a collection of photographs of men bearing a roughly similar appearance to that of the appellant. Mr Le selected a photograph of a person who was not the appellant. Consequently, although in court he said that he was able to identify the person who presented the prescriptions in the pharmacy on that day, he was not permitted to nominate that person.
Ms Welson was also shown an array of photographs of men and, although she had expressed doubt in a police statement as to her ability to recognise the man who presented the scripts, she selected a photograph of the appellant. When she was asked in court whether she could see that man, the witness was interrupted by a discussion as to whether identity was in issue. Mr T Cox SC, counsel for Dr Murphy at trial, advised the court as follows: “There is no dispute that Dr Murphy was there. That is him on the screen.” This was then clarified by her Honour who said to Mr Cox:
Look, I do not think an identification in court is going to take the matter very far, but if it can just be accepted that the person that this witness saw approach the counter was the defendant. Is that accepted?
Mr Cox:    Yes.
The questioning then continued:
XN
Q.    The person that approached your counter has been identified as the defendant.
A.    Yes.
HER HONOUR:
Q.    Sorry, are you clear about that.
A.    Yes.
Q.    The defendant, the person with the glasses and the tie.
A.    Yes.
Q.    That’s the person that is the defendant in this matter.
A.    Yep.
Q.    All right, thank you.
XN
Q.    And you said he gave you two scripts.
A.    Yep.
Q.    Is that correct.
A.    That’s right.
Q.    What were they for.
A.There was two medications, like a medication on each script. One was Tramadol, it’s a pain killer and the other one was Stilnox [Zolpidem Tartrate] which is mainly used for insomnia or anxiety, mainly. The combination of two medicationsthese two medications is a bit awkward. Like, I’ve never seen these two coming together, because it has the side effects of excessive drowsiness. So it’s not right to have them together.
The witness then confirmed in answer to the prosecutor that the defendant was the person who presented the two scripts to her.
Ms Welson said that she had never seen the CCTV of the events of that day, either on that day or since.
In cross-examination it was suggested to Ms Welson that Dr Murphy had indeed attended at the pharmacy on 13 February, but had handed her only one prescription, which was for “Atacand”, a blood pressure drug. It was suggested that in that context Dr Murphy said to her “I don’t mind generics”. Ms Welson disagreed, maintaining that Dr Murphy had handed her two scripts, neither of which were for Atacand. It was further put to her that, having handed her the script for Atacand, Dr Murphy said words to the effect of “I’ll come back”, or “I’m going to the toilet”, and that he returned about five minutes later. No account of what occurred when Dr Murphy returned was put to her.
Constable Conroy was on general patrols on this day and was tasked to attend at the pharmacy. There she spoke with Mr Le, who showed her the two prescriptions. She seized them. Together with some of the pharmacy staff she viewed the CCTV. She believed that both Ms Welson and Mr Le were present for that process. From there Constable Conroy went to the Norwood Police Station and raised a police incident report. The officer also telephoned Dr Adzanku. He reiterated that the copy script faxed to him did not bear his signature. Constable Conroy said Dr Adzanku told her that the medical centre’s computer records confirmed that there was a John Brookes of 16 John Street, Salisbury within the records system, but he was Dr Murphy’s patient. Constable Conroy then spoke to the appellant. At that time the appellant, like Dr Adzanku, was at the Elizabeth Medical Centre where they, and other doctors, worked. Constable Conroy said that she explained something of the inquiry and told the appellant about the script bearing his name, including the date of it, the name of the patient and the medication prescribed. The appellant told her that John Brookes was a patient of his and that he did issue the script she had described.
Constable Conroy said that in view of Dr Murphy’s advice to her that P3 was not forged, she saw it as unnecessary to go and speak to Dr Murphy in person. However, she arranged to see Dr Adzanku at his surgery about three weeks later and, there, took a statement from him. While she was with Dr Adzanku he again looked up the name Brookes on the computer. This time he could find no reference to a patient of that name. (At trial Dr Adzanku gave similar evidence of this sequence of events.)
Afterwards Constable Conroy went to 16 John Street, Salisbury. She discovered that it was not a residential address, but the premises of the Salisbury Medical Clinic. (There is no link between this Clinic and the Elizabeth Medical Centre.) Further inquiries were undertaken and those led again to the appellant. The appellant was interviewed, but he declined to answer questions about the two scripts.
The appellant gave evidence in his defence. He said he was a general practitioner of some 29 years standing. He said that at the pharmacy he handed over a prescription for Atacand, a medication he had used for some time to combat elevated blood pressure. He asked the assistant for a generic medication. He told the assistant he needed to go to the toilet, obtained a key and left the pharmacy. When he returned he sat down to wait for his medication. There were two or three other customers present.
A few moments later Mr Le approached him, addressing him as Mr Brookes. He accused him of presenting a false prescription. There was mention of telephoning the prescribing doctor. Mr Le called him Mr Brookes and showed him a prescription in that name. The appellant said he was confused and found it odd to be called by the name “Brookes”. Mr Le said he was going to call the police. At that, the appellant left the pharmacy. He said he felt he would be arrested if he remained.
In his evidence the appellant explained that he was seeing various doctors and taking various medications. He said that he often used a pharmacy adjacent to his surgery to get his own prescriptions filled. He also used a pharmacy at the Salisbury shopping centre. One of the medications he often used to relieve arthritic pain was Tramadol. That had been prescribed for him both by a general practitioner he regularly saw, Dr Maiolo, and by a specialist rheumatologist, Dr Litwin.
The appellant denied presenting either of the prescriptions P2 or P3. As to P3, he said in cross-examination that he “would not reject the idea” that it was his signature, as it resembled his signature. Later he said he had not “prepared” that script. He said he could not recall seeing Mr Brookes in his surgery although he had seen the name on the database at his clinic. When Constable Conroy later asked him about such a patient, he searched the database and found three patients by the name “John Brookes”, one of whom was at Salisbury North, rather than at 16 John Street, Salisbury.
As to Zolpidem, the appellant said it was used for insomnia. Had he required it, he would have obtained a prescription from Dr Maiolo or possibly Dr Litwin.
During evidence-in-chief the appellant was asked about his conversation with Constable Conroy on 13 February 2013. He said he told Conroy that he did not want the matter of the Brookes prescriptions investigated and that he told her he had “given patient prescription [sic] because I didn’t want her to investigate it”. Asked why not, he said “it was clear that I would become suspect if it was investigated”.
The appellant agreed that early in March he spoke to Constable Stevens and signed a statement in Stevens’ notebook. The relevant page of the notebook was tendered, Exhibit P4. The short statement signed by the appellant appears in handwriting as follows:
At about 4.24 Police STEVENS showed me a copy of a script made out for my patient John BROOKES.
I confirm that John BROOKES is a patient of mine and that the script is one that I gave him.
In evidence-in-chief the appellant was asked whether this was a correct statement. He said that the latter half – and he confirmed that he there referred to the assertion that the script was one that he had given Brookes – was “definitely wrong”, and the first part – the assertion that Brookes was “a patient of mine” – could be wrong depending on one’s interpretation. He said that if he had searched the surgery’s database and found the name of John Brookes, then he would have, in effect, claimed him as his patient, because he was a patient of the surgery. As to the part acknowledged as “definitely wrong”, he said that he had seen no benefit in the matter being investigated and had wanted the matter to “go away”. That was why he had stated, incorrectly, that he had given the script to John Brookes. In cross-examination the appellant elaborated on his lack of candour with the police. He said it was “a threatening situation and I did what I could to get out of it”. He felt threatened by the investigation. The appellant agreed that Stevens had provided him with a disk of the CCTV taken at the pharmacy on 13 February, but said he did not play it because nothing external could be put into the computers at the surgery.
Effectively the defence case was that, although Ms Welson saw the appellant on 13 February, she must have incorrectly associated her recollection of his appearance with the prescriptions, P2 and P3. The defence hypothesis was that someone else, giving the name “Brookes”, must have presented those prescriptions to Ms Welson, but left the pharmacy by the time Mr Le identified an irregularity and approached the appellant.
There was another procedural matter which the magistrate had to grapple with and which informs ground one of the appeal. It is convenient to describe that now.
The appellant’s counsel argued that the Atacand script which the appellant claimed to have left at the pharmacy upon his departure should have been produced by the prosecution in a timely manner. Of course, on the prosecution case it had no relevance to the events of that day. However, during the week before the trial the appellant’s legal advisers issued a subpoena to the Chemist King pharmacy requiring the production of the Atacand script. On the Friday before the Tuesday when the trial was to commence those legal advisers were told on behalf of Chemist King that it was impractical, in the time available, to make a search for that script. Accordingly the trial proceeded without it.
After the evidence on the trial was completed, but apparently before final addresses had been given, personnel at Chemist King made further searches as requested. On 9 June 2015 Ms Welson was recalled and she agreed that during a further search a prescription made out for “Mr Graeme Murphy” dated 2 November 2012, with the prescribing doctor recorded as Dr Maiolo, had been recovered among the records of the pharmacy. It was a script for three preparations, including “Atacand”, with repeats. It became Exhibit P11. Mr Le also gave evidence about it. He had no personal knowledge of the script P11. He said it was plain on the face of the prescription that it had been dispensed (in part) at one or more other pharmacies, but not at the Chemist King at Frewville.
It had apparently been located in a storage unit where the pharmacy kept dispensed prescriptions. However, it was found in a box reserved for the March 2013 prescriptions. Mr Le explained the system of retaining prescriptions. He said that after a prescription was dispensed it would be kept in a basket. At the end of each day all prescriptions in that basket would be collated, bundled, and dated. The bundle would be moved into a box marked with the month and year. At the end of each month the box or boxes for that month would be moved into the storage room and sealed. The pharmacist was responsible for that process. The month’s prescriptions would be moved promptly at the end of the month, usually on the evening of the last day, because there was limited space in the dispensary. Mr Le was asked how a prescription such as P11 (which was neither dispensed at the Frewville pharmacy nor dispensed in March) could end up in the March box. He could not explain it. He was further asked how a prescription presented on 13 February (as claimed by the defence) could end up in the March box and he said this, at 307:
There couldn’t be any case that a script in February would be left behind up until March because every day all of the prescriptions are collated, and they’re bundled and put in a box and at the end of that month that box is sent to storage which is in a completely different room of the pharmacy, so there is no way that a script could really move from one full month to another and they’re collated each day so I can’t see how that would happen.
Mr Le said there was nothing on the prescription P11 which would suggest that it had passed through the Frewville pharmacy. Asked again how it could have ended up in the March box, Mr Le said, at 308:
The only way I can think of is if this prescription is in the manner that it is now so with no history of being dispensed by the pharmacy and in the March box would be someone on that day in March 2013 physically handing the prescription in requesting it not to be dispensed.
He went on to say that conceivably someone could hand in a script if it were out of date, or if the medicines prescribed were no longer required, although those factors did not apply to P11. He also said it was possible that someone might simply hand the prescription in to pharmacy staff at a busy time and then walk away.

Upon the appeal it was contended that the late production of P11 by pharmacy staff and police impaired the presentation of the defence case. I shall return to this issue.
I propose to deal with the arguments mounted upon the appeal in the groups mentioned initially by Mrs Shaw QC, for the appellant.
Grounds of appeal relating to identification – grounds 3 and 8
In support of these grounds the appellant argued that the magistrate concluded that the appellant had handed the scripts, P2 and P3, to Ms Welson without adequately warning herself of the dangers of acting upon what was said to be “identification evidence”, and without adequately taking into account the following factual matters bearing on that conclusion.
When she gave a statement to Constable Stevens on 13 February 2013, Ms Welson did not think she would be able to recognise again the person who handed her P2 and P3. However, on 11 April 2013 Ms Welson was shown a group of photographs and selected the photograph of the appellant as that person. As mentioned, in court she confirmed that the appellant was the person who handed her two scripts on that day. Mrs Shaw submitted that Ms Welson’s earlier reticence was significant.
Mrs Shaw also argued that the magistrate accepted that Ms Welson had not viewed the CCTV of the appellant prior to making her identification, without resolving the conflict between Constable Conroy – who said Ms Welson was present when that footage was viewed – and Ms Welson. Mrs Shaw argued that Ms Welson might have mistakenly associated the appellant’s appearance with the presentation of P2 and P3, in circumstances where the prescription presented by the appellant was actually P11. This was referred to as the issue of “displacement”. In all these circumstances it was suggested that the magistrate’s conclusion should not have been reached without expressly directing herself as to the dangers of relying on identification evidence where the appellant’s appearance was previously unknown to Ms Welson. Mrs Shaw referred to the following statement in Domican v The Queen (1992) 173 CLR 555 at 561–562:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’.
(references omitted)
Of course that statement of principle was directed to a jury trial. In this case Mrs Shaw submitted that the obligation fell upon the magistrate to demonstrate that those specific dangers had been taken into account. Counsel suggested it was an error of law for the magistrate not to warn herself in these or similar terms.
The first question which arises is whether this was truly an identification case in the sense comprehended in Domican’s case. Earlier I set out an interchange between the magistrate and Mr Cox, for Dr Murphy, concerning the issue of identification. I also set out a passage from the evidence of Ms Welson that followed it. Those passages make clear that the issue was not whether Ms Welson correctly identified the appellant as a person who was in the pharmacy on that day, but rather whether she was correct in ascribing to Dr Murphy the presentation of P2 and P3. It was common ground that Dr Murphy was in the pharmacy on that day. As Mr Cox acknowledged, he could be seen on the CCTV. The real question was whether he had presented the scripts P2 and P3 to Ms Welson, as opposed to presenting a quite different single script, P11, to her or another pharmacy attendant. In those circumstances I do not consider that this could properly be called an identification case. The usual dangers which attend such a case and which are particularly present where witnesses select a person previously unknown to them from a photographic array, or a parade, were not present.
Consequently I do not consider that this case called for an identification warning. The present case had more in common with the situation considered by the High Court in Dhanhoa v The Queen (2003) 217 CLR 1. There, the victim had met four men of Indian or Sri Lankan appearance in an hotel. At his invitation they accompanied him afterwards to his home. He said that soon after arrival there they attacked and robbed him. The prosecution claimed that the actions of the four men were committed in the course of a joint criminal enterprise and that it was of no consequence that individual acts could not be ascribed to each participant. The victim’s identification of Dhanhoa was not the only evidence connecting him to the victim’s home. However, Dhanhoa claimed that he had departed before any violence occurred. No identification warning was given to the jury. Upon appeal it was suggested that there should have been such a warning.
In their joint judgment Gleeson CJ and Hayne J said that no such warning was required. The central issue was described at page 10 as follows:
However, as the Court of Criminal Appeal pointed out, in the light of the appellant’s evidence, the only question was whether the man in photograph No 8 was still there when the attack occurred, or whether he had left shortly before. It was not the reliability of the identification that was in dispute; it was the reliability of the account of the conduct of the person identified, and, in particular, of the evidence that such person remained with his three companions at all material times.
In their judgment McHugh and Gummow JJ joined in dismissing the appeal. However, they found that, since there was no request by the appellant’s counsel for an identification direction, there was no error of law and that it was not established that there was a miscarriage of justice. The appeal was dismissed.
By parallel reasoning, there was no need for an identification warning in the present case. Ms Welson was shown to be correct in asserting that the appellant was present at the relevant time. The question was whether she was correct in her description of his conduct.
The complaints that the magistrate failed to take into account Ms Welson’s earlier reticence about her ability to identify the offender and about the magistrate’s failure to mention the conflict between Constable Conroy and Ms Welson are not made good. The magistrate found Ms Welson to be an alert and astute witness, reliable and honest. The magistrate referred to the detailed criticisms of Ms Welson’s evidence by counsel. It may be taken that those detailed criticisms included the points now made by Mrs Shaw. In any event, the magistrate was entitled to place weight on Ms Welson’s evidence. Her selection of the appellant’s photograph as being a person within the pharmacy on that day was self-evidently correct. Her evidence that he presented two scripts and not one and that she identified irregularities in relation to those scripts and immediately referred those to Mr Le was compelling. In addition, it complemented Mr Le’s evidence about his actions and his approach to the appellant.
In relation to the conflict over whether Ms Welson saw the CCTV at the time, clearly Ms Welson had more reason than the officer to recall whether she was present at that viewing. Whether she was or was not present was of no particular moment to Conroy. In any event, this was not a conflict which the magistrate needed to resolve in circumstances where she was convinced of the reliability of Ms Welson’s critical evidence.
These grounds are not made out.
Grounds contending that the prosecution case was not proved – grounds 2, 5 and 7
The contention common to these grounds is that the evidence did not exclude hypotheses consistent with innocence and that, inasmuch as the magistrate’s evaluation of the evidence led to a finding of guilt, the magistrate must have failed to correctly weigh certain facts.
Specific contentions relied on were:
(a)that P11 might have been presented by the appellant on 13 February but, through human error, found its way into the box containing March scripts located at the pharmacy’s storage unit after the main body of evidence had been received (ground 2);
(b)that the records of the Elizabeth Medical Centre recorded at least one patient named Brookes (or Brooks) and the Salisbury Medical Clinic’s records showed a former patient of that name (ground 5);
(c)that, considered alongside the contents of P7, these facts raised a reasonable possibility that the person presenting P2 and P3 was one of the persons named Brookes associated with the Elizabeth Medical Centre as a patient and that he had previously presented scripts purporting to be written by Drs Murphy and Adzanku (ground 5).
In my view these grounds proceed on a false premise.
This case was not, principally, a circumstantial case. The prosecution case consisted of the direct evidence of Ms Welson and Mr Le, as well as the scripts P2 and P3 and circumstantial evidence arising from the police investigation. That circumstantial evidence assisted in the task of assessing the credibility of the two critical witnesses. It was not a matter of excluding hypotheses consistent with innocence arising on the defence case, although that was clearly done. Rather, the magistrate’s task was to evaluate the critical direct evidence and consider it in light of the prosecution case as a whole and the defence case. That is what the magistrate did.
As already outlined, how P11 found its way into the stored box containing prescriptions presented in March 2013 remained something of a mystery. Even on the defence case it was unexplained. Mr Le found its presence there inexplicable, unless, unusually, someone had attended at the pharmacy in March 2013 and simply surrendered the script. On the defence case, if the appellant presented a script for Atacand on that day, it should have been in the February 2013 box. Indeed, had P11 been presented by the appellant on 13 February 2013, one would have expected that it would have been processed on that day and would have been at the dispensary awaiting collection. In those circumstances endorsements on it should have demonstrated that it was processed. There were no such endorsements. Importantly, however, this was not an issue requiring determination if the evidence of Ms Welson and Mr Le were accepted. The presence of P11 in the March 2013 box was curious, but the magistrate was entitled to the view that it did little, if anything at all, to cast doubt on the correctness of their evidence.
That the records of both the Elizabeth Medical Centre and the Salisbury Medical Clinic showed that each had patients by the name of Brookes (or Brooks) was unexceptional in itself. Plainly the person who wrote the prescription P2 was aware that Dr Humphrey Adzanku worked at the address given and was prepared to use his name and to falsify his signature. It was conceivable that the person who did that was indeed John Brookes, or, that he was any other person who was in a position to reproduce the relevant details of Dr Adzanku. If, as the magistrate found, it was the appellant who presented the false prescriptions, then plainly he was in a position to have access to the records of the Elizabeth Medical Centre and, if he wished, to utilise the name of a patient of that practice. These various possibilities fell to be considered in the light of the evidence before the magistrate. That evidence included an account by the prosecution witnesses, Ms Welson and Mr Le, which was completely at odds with the appellant’s own account. In my view the fact that both surgeries had patients by the name of Brookes made it neither more nor less likely that the appellant was guilty. There certainly was a degree of planning and sophistication about these crimes, but that, of itself, did not serve to elucidate the issue, or at least not in a way which would advantage the appellant.
The appellant’s argument based on the document P7 remains rather elusive. As mentioned, that document was generated by the Frewville Chemist King and showed that a person giving the name “John Brookes of 16 John Street, Salisbury North” had presented prescriptions on six previous occasions and that five of those purported to be prescriptions for Tramadol. Rather than advancing the suggestion that a person other than Dr Murphy had presented all the scripts, as the appellant asserts, in my mind this document underlines the tenuous nature of the appellant’s defence to these charges. On the basis of this document it would appear that during 2011 and 2012 someone was systematically presenting false scripts for Tramadol and attributing the writing of those scripts to Dr Murphy and Dr Adzanku. This was a pharmacy which was far from the appellant’s surgery and far from pharmacies which he claimed to use regularly for professional purposes. Tramadol was a medication used by the appellant. Yet, on the defence case, here was the appellant in the Chemist King at Frewville, well away from his place of work and the pharmacies he regularly used, at much the same time as the person who habitually presented scripts falsely using the appellant’s name; and more, upon being mistaken for that person and being addressed as Mr Brookes, leaving without protest. That such a coincidence could occur strains credulity.
In my opinion, P7 was not a document which could materially assist the appellant and was extremely dangerous to him.
Ground 7 raises two separate issues. The magistrate referred to evidence that the appellant quite regularly used pharmacies at Salisbury and Elizabeth: [127]. She observed that it was reasonable to assume that early in 2013 he might have been recognised by staff there. The appellant suggests this was “impermissible speculation”. There had been cross-examination of the appellant to that effect. In my mind, the magistrate’s observation was a valid one. Plainly, a person who proposes to present a document in a name other than his own will not do so at a place where he might be recognised. The appellant complained of the magistrate’s observation, but it was one that was available to her. The second aspect of ground 7 will be dealt with under the heading which follows.
In my view these grounds are not made good.
Grounds asserting errors of approach – grounds 4, 6, 7 and 9
Ground 4 asserts that the magistrate erred in embarking upon a determination of the admissibility of P7 and in finding that it was admissible only for a limited purpose. It was argued that this was done in circumstances where neither party challenged the admissibility of P7.
As mentioned, P7 was a computer generated “Patient History” for the patient John Brookes of 16 John Street, Salisbury North. It detailed six occasions when scripts for Tramadol had been dispensed at Chemist King, Frewville to a person giving that name. On all but one occasion the script was apparently provided by Dr Murphy. On 12 November 2012 the script was apparently signed by Dr Adzanku.
The police prosecutor introduced P7 through Mr Le during his evidence-in-chief. My reading of the transcript suggests that the prosecutor had in mind merely to provide the court with such documentation as had been gathered by the investigators and which was thought to bear generally on the issues before the court. It was not presented as similar fact evidence. The defence argued both at trial and upon the appeal that P7 assisted it. It was suggested that P7 tended to demonstrate that “there was a real person/patient called Brookes who falsified and uttered the scripts”. In my view such an inference was tenuous, but P7 was admissible for such a purpose.
It is plain that no consideration was given by either counsel to the operation of Division 3 of Part 3 of the Evidence Act 1929 (SA), which deals with the admissibility of evidence showing discreditable conduct or disposition. On its face, P7 was capable of founding an inference that the presentation of P2 and P3 was a continuation of a pattern of offending which, on the prosecution case, could only have been offending by the appellant. Because P7 was apparently seen by the defence as also assisting the appellant’s case, no objection was taken to its admissibility. Even so, the document should not have been presented without reference to the relevant provisions of the Evidence Act dealing with discreditable conduct evidence.
The magistrate was alive to this and raised it with Mr Cox and the police prosecutor. Ultimately, the magistrate gave a ruling on the admissibility of the document under a separate heading in her reasons for decision. There, the magistrate discussed the available evidentiary uses of the document. The magistrate identified – in my view correctly – that the document was potentially prejudicial to Dr Murphy. In the course of those reasons the magistrate said this:
¹³⁵One interpretation of P7, in light of the other evidence in this trial, is that Dr Murphy did write those earlier scripts for Tramadol for a real patient called Brookes whom he has since forgotten, although this is unlikely.
¹³⁶Bearing in mind the coincidence of the medication involved, and other evidence from the defendant, the more logical inference flowing from the exhibit P7 is that Dr Murphy uttered and forged each script for Tramadol which has been dispensed in the name of Brookes referred to in P7.
The magistrate then went on to find that P7 should not be used against the appellant in this way as discreditable conduct evidence. She found it to be inadmissible for that purpose. The magistrate confined its permissible use to bearing on the evidence of Ms Welson, in that, when that witness had entered the name “Brookes” on the pharmacy computer, she had learned that a person called Brookes had previously had scripts for Tramadol filled in that pharmacy.
The appellant now complains that by restricting the use of P7, the magistrate prevented the defence from pointing to P7 as evidence that Brookes was a genuine person and had previously presented similar scripts.
I have explained why I see P7 as damaging to the appellant’s case. Plainly the magistrate was inclined to take a similar view. I consider that the limitation placed on the use of P7 by the magistrate can only have advantaged the defence. If the document were to be available for use in the way the appellant suggests, then, by the same token, the appellant would have to suffer the potential harm caused by the magistrate drawing the “more logical inference” that the appellant was the person who presented all the scripts listed in P7.
There is a further complaint relating to the magistrate’s ruling about P7. It is encompassed by ground 7 and arises from the magistrate’s reasoning in [136] reproduced above. It is contended that the magistrate should not have found that the more logical inference was that the appellant forged and uttered each script mentioned in P7, because such a finding was not necessary, those scripts not being the subject of charges.
In my view the complaint is misplaced. As I outlined, this section of the magistrate’s reasons was in the nature of a ruling on admissibility. It was necessary for the magistrate to explore the possible evidentiary uses of P7 including how it might be used against the appellant, in circumstances where she had not been asked to rule about its admissibility in advance of its admission, as required by Part 3 Division 3 of the Evidence Act. I consider that the observation made by the magistrate was both necessary and accurate. In any event, as seen, having identified the damage which P7 could do the defendant’s case, the magistrate determined not to allow that particular use of the document.

Ground 6 was a rather weak complaint that the magistrate erred in concluding that the appellant had lied to police in saying he had a patient called Brookes. Counsel did not address this ground orally. Reference was made to [33] of the reasons. There the magistrate was dealing with the admissibility of the appellant’s statements to police. What the magistrate actually said was that the assertion to police that Brookes was his patient had the potential to be regarded as a lie evincing a consciousness of guilt. After dealing with the evidence called at trial the magistrate noted at [142] that the prosecution did not urge the court to find that the appellant had never treated a patient named John Brookes. The magistrate observed that this was an appropriate position to adopt. That being the case, no “lie” on this topic was proved.
There is no substance in this ground.
Ground 9 complains that the magistrate erred in finding that the appellant forged the two prescriptions, since the charges of forging them had been withdrawn prior to trial.
What the magistrate said in the impugned passage, which appears under the heading “Conclusions of fact”, was this:
¹⁶¹I accept the evidence of Mr Le beyond reasonable doubt, that he did not accuse the defendant of handing in a forged or false prescription. Whilst this witness conceded that he was in shock at the time of his encounter with the defendant, I do not regard that concession as detracting from his evidence on this topic. I reject the defendant’s assertion to the contrary as a reasonable possibility. I find that when challenged about the script by Mr Le, the defendant feared that he would be in trouble, not just because of a previous bad experience, but out of fear that his forgeries would be discovered. For this reason, I find that he left the store rapidly in the hope that his true identity would not be discovered.
(emphasis added)
A close reading of the passage shows that it contains findings about what occurred between the appellant and Mr Le and what was exercising the appellant’s mind at the time when he was challenged about the script by Mr Le. In my view the reference to “fear that his forgeries would be discovered” is unexceptional. True, it was not necessary to make a finding about the identity of the forger. However, practically speaking, there was no suggestion of the involvement of any person apart from the person who presented the scripts P2 and P3. The act of writing the false scripts was intrinsically connected to the act of uttering them. In my view, the magistrate was not obliged to exclude from her mind any consideration of the writing of the scripts when she came to consider the critical question of proof of the charges of uttering, and she was entitled to consider the appellant’s motives in hurriedly leaving the pharmacy.
There is no substance in this ground.
Ground 1 – failure to produce Exhibit P11
Mrs Shaw QC contends that the fair trial of the appellant miscarried because of the belated production of P11. As mentioned, P11 was not located until after the close of evidence.
Mrs Shaw argues that the failure to produce P11 put defence counsel in the position of cross-examining about that document in the absence of any evidence to substantiate that such a document existed. It is suggested that this weakened the cross-examination. It is suggested that once P11 was produced and the critical witnesses recalled, the prosecution position moved from a denial that P11 existed to an allegation that the appellant must have manipulated procedures at the pharmacy to cause P11 to find its way into the March 2013 prescription box. It is also submitted that the absence of the document was a cause of annoyance and frustration to the appellant and that this affected his demeanour as a witness and the quality of his evidence.
Counsel pointed to the obligations of the prosecution to disclose documents in its possession or power.
Having read the transcript of the trial, it is not apparent to me that the production of P11 after the close of evidence and the recalling of the material witnesses had any substantive impact on the way in which the issues at trial developed. If there were any shift in the prosecution attitude to the question of P11 existing, then it was a subtle one. That was understandable, because even when it was found, its location in the March 2013 box of scripts was not particularly helpful to the appellant. As I have previously observed, how the script might have found its way into that box was, and could only remain, the subject of conjecture. There was no ready answer to that quandary; certainly not one which could have assisted the appellant.
I do not consider this to be an issue of prosecutorial disclosure. Neither the police prosecutor nor the investigating officers or other police ever had P11 in their possession. The late production of P11 was hardly surprising in view of the late call for it and the place in which it was finally located. Early in the trial the Chemist King staff had demonstrated by their evidence quite a sophisticated recording system, both electronic and hard copy. A log of all scripts dispensed on 13 February 2013 had been produced (Exhibit P6). Extensive evidence had been given about the records of scripts processed within the pharmacy. Initially, the trial proceeded on the basis that no search for records such as P11 had been conducted because of the late notice and the extent of the task involved, rather than on the basis that no such record existed.
Once P11 was produced and the relevant prosecution witnesses and the appellant were recalled, any inconvenience to the defence was removed.
As I said, I do not consider this to be a case of the prosecution breaching its disclosure obligations. Nor do I think that any criticism can be levelled at the prosecution witnesses, Mr Le and Ms Welson, for the script not being produced earlier. Having read the transcript of evidence given at the trial, I am of the view that there was no miscarriage of justice arising from this chain of events.
Conclusion
I have carefully considered the arguments mounted by Mrs Shaw in support of this appeal. In my view none has substance. This was a trial containing some complexities. It was conducted in the Magistrates Court and a police prosecutor, rather than counsel from the Office of the Director of Public Prosecutions, appeared. However, the prosecution case was a strong one. The two main witnesses were impressive. The magistrate’s reasons for decision were cogent. I have no misgivings about the magistrate’s decision.
The orders I make are:
1.the notice of appeal is amended in accordance with the second notice filed 4 September 2015;
2.the appeal is dismissed.