Parker v Police No. Scgrg-00-916

PARKER V POLICE

[2000] SASC 395

Magistrates Appeal

1................ LANDER J....... This is an appeal from a decision in the criminal jurisdiction of the Magistrates Court.

The appellant was charged that on or about 6 January 2000 he entered Patricia Furniss’s place of residence as a trespasser with the intention of committing an offence, namely larceny of a video camera and accessories, handbag and contents, wallets and contents, purse and contents and $6.05, together of the value of $1,066.05 the property of Patricia Furniss.
He pleaded not guilty to the charge but, after trial before a Magistrate, was convicted.
On 31 August 2000 he was sentenced to be imprisoned for a period of 18 months to be served after the expiration of a period previously imposed in the Adelaide Magistrates Court on 23 December 1999. The endorsement to the court file shows that a non parole period of two years and six months backdated to 6 January 2000 was set.
The court file shows that the trial, including a voir dire hearing, proceeded over some months. It commenced on 7 March 2000. The Prosecutor opened and immediately after the opening a voir dire hearing commenced. It was adjourned to 16 March 2000 and his Honour delivered a ruling on 11 April 2000, in which he exercised his discretion against refusing to admit evidence of a search.
The matter came on again before the Magistrate on 19 April 2000, 27 April 2000, 8 May 2000 and on each occasion was further adjourned whilst the appellant was remanded in custody.
The evidence in the trial concluded on 2 June 2000 and the Magistrate reserved his decision which he said he would give on 29 June 2000. On that date Magistrate delivered reasons for convicting the appellant.
He was sentenced, as I have already said, on 31 August 2000. The appeal is only against conviction. It is not clear whether the conviction was entered on 29 June 2000 or 31 August 2000. The notice of appeal was not lodged until 14 September 2000.
I am prepared to assume that the conviction against which the appeal has been lodged was entered on 31 August 2000 and the appeal is within time.
The grounds of the appeal as originally contained in the notice of appeal are:
“1..... The learned Magistrate erred in his ruling on 11 April 2000 having found that the search of the motor vehicle was illegal in exercising his discretion to admit the evidence of the search.
2...... The reasons for the decision of the Magistrate delivered on 29 June 2000 are inadequate.
3...... The learned magistrate failed to direct himself or failed to adequately direct himself concerning the evidence of the prosecution witness Barns.
4...... At the close of defence submissions the learned Magistrate indicated he would like to know the price of goods (tobacco and papers) said by the appellant to have been purchased at a material time from a nearby Coles Supermarket.
Following further discussion and submissions the matter was postponed and the learned Magistrate ruled that he would receive further submissions and evidence on this topic.
Enquiries were conducted on behalf of the appellant. They could not be satisfactorily concluded. On 28 June 2000 a request was made for further time to obtain that information and evidence.
On 29 June 2000 the learned Magistrate advised that he had received that request that he decided in the meantime that he did not require the same.
That decision was made without natural justice or procedural fairness being afforded to the appellant.
The nature and quality of such evidence had not changed in the meantime.
At the hearing of the appeal the appellant shall apply to adduce such evidence.
Such evidence tended to confirm the evidence for the appellant at trial.”
When the matter came on before me counsel for the appellant sought to add the following grounds of appeal. There was no objection and leave was given.
“(3). The learned Magistrate failed to direct himself or failed to adequately direct himself concerning the evidence of the prosecution witness BARNS:-
(i)..... His Honour wrongly used a favourable finding of credibility made on the voir dire in favour of the witness adversely to the appellant at the trial;
(ii)His Honour reversed the onus of proof by approaching the trial proper on the basis that, as to the principal prosecution witness, “Subsequent evidence heard after my ruling has not caused me to alter that opinion”;
(iii)   His Honour failed to give himself an accomplice direction;
(iv)His Honour failed to give himself a warning appropriate to a witness who has an interest of his own to serve.
(5)    His Honour wrongly used his doubt as to the credibility of the appellant’s alibi witness to cast doubt on the credibility of the appellant.
(6)... His Honour has reversed the onus of proof by accepting Barns’ evidence and considering only whether the trial evidence cast doubt upon it.
(7)    His Honour has erred in failing to consider whether acceptance of the evidence of Barns beyond reasonable doubt necessarily infers guilt or establishes guilt on the part of the appellant or that he was necessarily lying.
(8)... As a result of the aforementioned matters the verdict is unsafe and unsatisfactory.”
Whilst the grounds of appeal as amended were extensive in fact only two matters were argued by Mr Cuthbertson, counsel for the appellant.
Patricia Furniss was the owner/occupier with her husband at premises at Flagstaff Hill. She went to bed at 9:00pm and to sleep at 10:00pm on 6 January 2000.
She woke at 4:00am. At 4:30am the police knocked at her door and showed her property of hers which had been in her house when she went to bed.
The appellant, at that stage, lived at 72 Nunyah Avenue, Parkholme. His next door neighbour was Mr Murray Barns.
Mr Barns was called as a witness for the prosecution and his evidence was critical in the prosecution case.
He lives at 70 Nunyah Avenue, Parkholme. He said that at about 2:30am on 7 January 2000 he woke, had a cup of coffee, went out to the backyard, worked on his motor vehicle and then decided to go to the local service station to get a can of coke.
Whilst at the service station he saw the appellant who he recognised as his neighbour. He offered him a lift home.
Mr Barns’ evidence was that the defendant got into his car carrying something and put whatever it was in the back of the car. The appellant sat in the front passenger seat. Mr Barns was driving. It was Mr Barns’ evidence that there was nothing in the rear of the car before the appellant got in and in particular there was not a ladies handbag or a camera bag containing a camera.
Mr Barns’ evidence was that he drove to his home and indicated his intention to drive into the defendant’s premises. However the defendant told him to drive on and as he did so he was stopped by police. The police approached the car and whilst speaking with Mr Barns noticed the items in the rear of the motor vehicle. He was asked whose items they were and Mr Barns indicated the defendant.
There was a conversation between the police officer and Mr Barns then a further conversation between the police officer and the appellant. The conversations were not admitted in the proceedings for reasons that are unimportant.
The police officer then took possession of the items in the back of Mr Barns’s car. He searched the items and as a result identified the items as belonging to Mrs Furniss.
It was the prosecution case that all of the items which had been stolen from Mrs Furniss’s property were found in the rear of Mr Barns’ car.
It was the prosecution case that they were in the possession of the appellant.
The voir dire hearing which was conducted was to determine the admissibility of the record of interview of the appellant by the police and the results of the search of the motor vehicle.
In due course the prosecution abandoned the application to tender the record of interview. The Magistrate ruled that whilst the police were entitled to stop Mr Barns’ motor vehicle for a traffic infringement, that is the false indication to turn into the appellant’s house, the police had no reason or cause to suspect the commission of any other offence nor did there exist any circumstances which could enable them to search the vehicle pursuant to s 68 of the Summary of Offences Act 1953.
The Magistrate therefore concluded that the search of the motor vehicle was unlawful and that the police had behaved quite inappropriately as far as Mr Barns was concerned.
Notwithstanding the inappropriate conduct of the police the Magistrate refused to exercise his discretion to exclude the result of the search, namely the stolen property which Mrs Furniss identified as being hers.
At the conclusion of the voir dire the parties agreed that the evidence taken in the voir dire should also be evidence in the trial.
The prosecution called Mr Barns and Constable Marr. The defendant gave evidence as did his wife.
The appellant said that he had been home on the evening of 6 January 2000 and in the early morning of 7 January 2000 until about 3:10am. At that stage he walked to Coles at Parkholme Shopping Centre to get a small pouch of tobacco and Tally Ho papers. It took him about 25 minutes to walk to Coles.
He said, when he was walking back home along Oaklands Road to Marion Road, Mr Barns approached him in his vehicle asked him where he was going and asked him whether he wanted a lift.
He said that when he got into the motor vehicle he was carrying nothing. Particularly he was not carrying the items which the police later found in the back of Mr Barns’ vehicle and which Mrs Furniss later identified as coming from her house sometime that night.
He said that he saw a police car coming towards them as they were driving towards their addresses. He said that Mr Barns panicked. He watched the police do a u-turn. He did not know that Mr Barns had his blinker on to turn left. Mr Barns said to him:
“What shall I do?”
And he said:
“I don’t know what’s wrong.”
Barns said:
“Nothing.”
The police pulled them over.
The facts were quite uncomplicated. On the one hand it was the prosecution case led through Mr Barns that immediately prior to the appellant getting into Mr Barns’ car none of the items owned by Mrs Furniss were in the back of his car. It was the prosecution case that Mr Barns had nothing to do with the break at Mrs Furniss’s place. On the other hand it was the appellant’s case that he got into Mr Barns’ car carrying nothing and certainly not carrying the items later identified by Mrs Furniss.
The Magistrate accepted the evidence of Mr Barns. He said, on the voir dire ruling, that he was most impressed with Mr Barns’ evidence. In his final ruling he said subsequent evidence had not caused him to alter that opinion.
He said that he accepted Mr Barns as a witness of truth and in those circumstances accepted, as it had to follow, that Mr Barns was not associated in any way with the break at Mrs Furniss’s place nor with the items found in the back of his car by the police.
He said:
“The factual situation is such that the stolen property, the subject of the house break, was found in his vehicle and must have been placed there either by Mr Barns or by the defendant. There is no other reasonable explanation. Accepting as I do the evidence of Mr Barns as being evidence of truth, I find that the defendant, Mr Parker, is lying.”
There is no doubt that it was a matter for the Magistrate to determine whether Mr Barns was a witness of truth or otherwise.
He had to make such a determination on the voir dire hearing and he had to make that further determination again in the trial itself.
Because Mrs Furniss’s goods were found in Mr Barns’ car which he was driving and in which the appellant was a passenger there were four hypotheses open to the Magistrate. First that Mrs Furniss’s items were placed in Mr Barns’ car by someone other than Mr Barns and the appellant. That other person had either committed the offence of the break at Mrs Furniss’s place or had received the goods after the commission of the offence. That hypothesis on Mr Barns’ evidence and the appellant’s evidence was fanciful and could be rejected out of hand because it could not be consistent with either Mr Barns’ evidence or the appellant’s evidence. It was also, on any account, extremely unlikely having regard to the time of the morning at which the break occurred and the time when the goods were observed in Mr Barns’ car.
The next two hypotheses are the ones discussed by the Magistrate. Either Mr Barns committed the break and was responsible for putting the goods in his car unknown to the appellant or the appellant committed the break and put the goods into Mr Barns’ car unknown to Mr Barns.
Those hypotheses had to be resolved by accepting the evidence of one or other of the men and rejecting the other.
That is the exercise which the Magistrate pursued. He accepted the evidence of Mr Barns and was satisfied on that evidence beyond reasonable doubt that the appellant was guilty of the offence.
On none of those three hypotheses was Mr Barns the accomplice of the appellant. There is a fourth hypothesis which was not addressed by the Magistrate.
That other hypothesis was that both Mr Barns and the appellant were involved in the break at Mrs Furniss’s house and that both had concocted the story of their meeting near the appellant’s and Mr Barns’ premises and both were lying when they said, in the case of Mr Barns, there was nothing in the car before the appellant got in and, in the case of the appellant, he did not introduce anything into the car.
In my opinion that hypothesis was not fanciful. The break happened some 10 km away from where the appellant and Mr Barns were stopped. There is no explanation as to how the appellant could have got from Mrs Furniss’s place near where the car was stopped.
It is unlikely that he committed the break in the company of someone else and kept all of the items. It is to be remembered that all of the items were found in the car. It is likely that he was driven to and from Mrs Furniss’s house.
It may be thought an unlikely coincidence that two neighbours, the appellant and Mr Barns, each decided independently of each other in the very early hours of 7 January 2000 that they needed to go to the shop, in the case of the appellant to get tobacco and cigarette papers and in the case of Mr Barns to get a coke.
Some of the stolen goods were found under the driver’s seat. There is no explanation as to how those items could have got under the driver’s seat without Mr Barns knowing.
Mr Barns’ panicking which, I think, even on his account was open, and failing to drive into the driveway after indicating to turn left is, in my opinion, not inconsistent with his being involved in the break and both the appellant and Mr Barns trying to lead the police away from their premises.
I do not think the evidence leads inevitably to the hypothesis which I have advanced but, in my opinion, it is an hypothesis which could not have been excluded as the Magistrate did.
Mr Cuthbertson argued that the Magistrate had erred in this case in failing to give himself an accomplice warning. I put to him during argument that such a warning would not have been necessary on the Magistrate’s own findings. The Magistrate found Mr Barns to be a witness of truth and therefore not to be an accomplice. In those circumstances he would not have been under any obligation to warn himself about the dangers of convicting on Mr Barns’ uncorroborated evidence.
The question on this appeal is whether the Magistrate must give himself an accomplice warning where he has rejected the hypothesis that Mr Barns was the sole perpetrator of the offence and the further hypothesis that M Barns was involved in the offence with the appellant in the sense that he was an accomplice.
In my opinion, he need not. As soon as the Magistrate accepted Mr Barns’ evidence and was satisfied, as he must have been beyond reasonable doubt, that Mr Barns was not the accomplice of the appellant, there was no need for him to warn himself of the dangers of convicting on the uncorroborated evidence of an accomplice. Mr Barns was simply not an accomplice. He was simply a witness and in those circumstances his evidence did not carry with it the dangers associated with the evidence of an accomplice.
The obligation to give an accomplice’s warning was explained in Davies v Director of Public Prosecutions [1954] AC 378.
The House of Lords there concluded that where a person who is an accomplice gives evidence on behalf of the prosecution it is the duty of the judge to warn the jury, although they may convict on his evidence, it is dangerous to do so unless it is corroborated. This rule which was originally a rule of practice now has the force of a rule of law and if a judge fails to give the appropriate warning then the conviction will be set aside even if there is corroboration to support the accomplice’s evidence; Lord Simonds LC at 399.
The House of Lords also concluded that any persons who participates in the actual crime charged whether as a principal or accessory before or after the fact is an accomplice. There are circumstances where persons who have not participated to that extent will also be held to be accomplices but they are not relevant.
Where there is no evidence upon which a jury could find that the witness participated in the crime or is an accomplice then the judge may decline to warn the jury of the danger.
Where a person has not been charged or does not admit to being an accomplice, but there is evidence upon which a jury might find the person to be an accomplice, it is a matter for the jury to determine whether there is evidence upon which they might find that the witness was an accomplice. If it is a jury’s opinion that the witness is an accomplice then the jury should be directed about the dangers of convicting upon the accomplice’s uncorroborated evidence.
The Lord Chancellor said at p 402:
“Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case, in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a “participant”. In such a case the issue of “accomplice vel non” is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous of them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.”
The Magistrate, of course, was the trier of fact. It was for him to conclude whether there was evidence upon which Mr Barns could be considered an accomplice.
In the light of his findings there was no such evidence. In those circumstances he was not bound, in my opinion, to give himself a warning of the nature claimed.
The first ground of appeal must fail.
The second aspect argued related to evidence given by the appellant. It was his evidence that he went out early in the morning to obtain some tobacco and cigarette papers. During addresses the Magistrate inquired of the appellant’s counsel as to the cost of tobacco and cigarette papers. He pointed out to the appellant’s counsel that the appellant’s evidence was that he had left home with fifteen dollars and come home with six or seven dollars.
On 2 June 2000, immediately before the Magistrate reserved his decision which he said he would give on 29 June 2000, he said:
“Just before he goes, counsel, I’ve got a nagging suspicion that a packet of tobacco costs a lot more than $15. I’m going to make some inquiries and I’m going to invite and give leave to prosecution to call the matter on unless you’re both prepared to accept my investigations in the matter.”
The appellant’s counsel said:
“Could your Honour do it on this basis, that you give myself leave to put anything forward in respect to that first.”

The Magistrate said:
“Certainly. I’ll let you both know what the results of my investigations are and then you can tell me what you want done about it, alright.”
On 20 June 2000 the appellant’s solicitor wrote to Coles Supermarket (Parkholme) seeking the price of a 30 gram package of White Ox tobacco and cigarette papers as at 6 January 2000. He did not receive a reply.
On 28 June 2000 he wrote to the Magistrate’s secretary advising the Magistrate that he had made some inquiries about the cost of tobacco and cigarette papers and had not received a reply. He asked that the Magistrate defer giving his judgment for a short time until he could obtain instructions.
The matter was called on 29 June 2000. Again the appellant’s counsel advised the Magistrate that he was awaiting a communication in relation to the cost of tobacco and cigarette papers. The police prosecutor advised the Magistrate that he had received a statement from the supermarket concerned.
In any event the Magistrate advised that he did not require any further material and he then delivered his reasons for judgment for convicting the appellant.
I am told that the statement obtained by the police prosecutor shows that as at 7 January 2000 the price for a 50 gram packet of White Ox tobacco was $15.25 and for a 30 gram packet the price was $9.45 and the price for cigarette papers was 40 cents.
It would have been quite inappropriate for the Magistrate to make his own inquiries as the Magistrate suggested he might. It was not for the Magistrate to obtain any evidence in relation to that matter. It was for the parties, if they elected to do so, to present that material to the Magistrate. The Magistrate therefore cannot be criticised for not having obtained the evidence for himself.
The question remains whether the Magistrate should have given the prosecutor or the appellant further opportunity to lead evidence of the cost of tobacco and cigarette papers.
In my opinion, the evidence was not relevant to the result at which the Magistrate arrived. The evidence was capable of disproving the appellant’s evidence but the evidence was not capable of supporting his evidence.
The appellant said that when he left the house he grabbed some assorted coins from his daughter’s money box to get cigarettes. He said he purchased tobacco and cigarette papers and that he paid between $9 and $11. He said he had between $5 and $7 left over. At one stage the appellant said he had precisely $6.05 left when he was apprehended by the police.
It was the appellant’s wife who said that he took with him about $15 but her evidence was based upon what the appellant had told her, not what she had observed.
The evidence was not precise enough to determine exactly how much the appellant had when he left home nor precise enough to determine whether he purchased a large packet or a small packet of White Ox tobacco.
He could not have left home with $15 and purchased a large packet. He could have left home with about $15 and purchased a small packet and been left with about $5.
Whatever the case, in any event, the tobacco did not cost him somewhere between $9 and $11.
However the end result is that the evidence was not precise enough to use the further evidence of the cost of the tobacco and the cigarette papers to show the evidence given by the appellant was truthful.
In my opinion, the Magistrate was right to conclude as he did that he should make his findings independent of the issue of the price of tobacco.
That ground must also fail.
Whilst the appellant has raised a number of other grounds no other grounds were argued on this appeal. Mr Cuthbertson was content to rely upon the two matters which I have addressed.
In my opinion, for the reasons given, the appeal should be dismissed.

[2000] SASC 395

24 November 2000