PHIPPS v POLICE No. SCGRG-97-1697 Judgment No. S6574

[1998] SASC 6574

PHIPPS V POLICE

Magistrates Appeal

LANDER J

The appellant, Maurice Thomas Phipps was charged with three counts of false pretences, the particulars of which were:

(1)Between 29 November 1996 and 2 December 1996 at Happy Valley, with intent to defraud, obtained from Cyril Hartley Allen cash to the amount of $1,000 by falsely pretending that packages delivered to Allen would contain a quantity of cigarettes.

(2)On 6 January 1997 at Clarence Gardens, with intent to defraud, obtained from Bruce Heeps cash to the amount of $1,676 by falsely pretending that packages delivered to Heeps would contain a quantity of cigarettes.

(3)On 30 January 1997 at Stepney, with intent to defraud, obtained from Max Edward Hoffman Edwin cash to the amount of $1,868 by falsely pretending that packages delivered to Hoffman would contain a quantity of cigarettes.

When the matter came on for hearing before Mr Crammond CSM he pleaded not guilty to each of the three counts.

The prosecution tendered its evidence by way of statements from the following persons: Cyril Allen, Wilfred Bilney, John Payne, Bruce Heeps, Clarence Wall, Lee Seger, Max Hoffman, Desmond Bourke, Constable Darren Fechner, Julie Foley, Paul Ganna, Detective Michael Holmes, Constable Benjamin Maddern, Jim Antoniou and Glynn Smith.

It was agreed that those statements contained accurate statements of fact.

The prosecution then tendered a number of photographs and an envelope containing two further envelopes, each of which contained a receipt.

The prosecution conceded that the two receipts which were contained in the two envelopes were written by the same person but that no handwriting of the appellant appeared on either receipt.  It was further conceded that the identity of the person who had written on those receipts was not known.

It was further agreed between the parties that the appellant was interviewed by Michael Holmes at 9:07 am on 5 February 1997 and at 10:45 am on 5 February 1997: two separate conversations, which have been properly summarised.

The prosecution further agreed that a search had been conducted of the appellant’s home address on 5 February 1997 but nothing of any relevance in relation to these matters was located.

Upon the tender of those statements and those exhibits, to which I have referred, and the agreed facts, the prosecution closed its case.

Counsel for the appellant did not make a submission that there was no case to answer.  Instead the appellant elected to call no evidence and argued that on the evidence submitted by the prosecution the prosecution had failed to make out any of the charges beyond reasonable doubt.

The learned Chief Magistrate found the charges proved in respect of counts one and two but not proved in respect of count three. He entered convictions on counts one and two and pursuant to s18a of the Criminal Law (Sentencing) Act imposed one sentence: an immediate term of imprisonment of six months.

The appellant originally appealed against the convictions and sentence.  When the appeal was called on the appeal against sentence was abandoned.  The appellant sought leave to amend by expanding the grounds of appeal against conviction and leave was granted.  The amended grounds of appeal are:-

“1.     That the Learned Special Magistrates erred:-

(a)In convicting the appellant of Counts 1 and 2 on the evidence before the Court.

(b)In particular with regard to Count 1 he erred in finding that the presence of the appellant’s fingerprints on the boxes leads irresistibly to the conclusion that the appellant was involved in the wrapping of the boxes (Reasons p6.2).

(c)In finding that as a result of the inference in (a) that a further inference must be drawn that the appellant was either a principal offender or aider and abettor (Reasons p6.3).

(d)With regard to Count 2 he erred in finding that it went beyond the bounds of possibility that the fingerprints could have been innocently found in material related to both Counts (Reasons p6.7).

(e)In his understanding of the evidence when he excluded the possibility that material from both Count 1 and 2 could have originated from the K Mart bin (Reasons p6.8-9).

2.That it was not proved beyond reasonable doubt that the Appellant had had an intent to defraud or that he had obtained monies (Reasons p3.9-p4).    

3.That Count 1 and 2 were not proved beyond reasonable doubt.”

It is necessary to have an understanding of the facts of each count before considering the complaints on appeal.

Count 1

Mr Allen, a man aged eighty-two years, received a telephone call from a male, who by trickery in that telephone conversation obtained the name of a friend of Mr Allen, Wilfred Bilney.  After obtaining that name he represented to Mr Allen that he was ‘Wilf’.  He asked Mr Allen if he would accept some parcels for him and if Mr Allen could pay the person delivering the parcels in cash.  Believing the person to whom he was speaking was ‘Wilf’, Mr Allen agreed that he would accept delivery of the parcels and would pay for them in cash and hold them for the man he believed to be his friend.

Three days later Mr Allen received a further telephone call but this time from a woman, who asked him if he was Mr Allen, and when he indicated he was, she told him she had some parcels to deliver to his place for his friend.  She asked for the number of the unit.  About twenty minutes later she arrived at the front door with two boxes wrapped in brown paper held together with packing tape.  She put the boxes down and told Mr Allen she had to collect the money for them.  She said that the amount for the boxes was $985.  Mr Allen gave her $1,000 cash expecting to receive change.

Mr Allen held onto the boxes and did not open them, but when he did not hear from his friend, he telephoned him and was advised by Wilfred Bilney that it was not him who had previously contacted him and the whole thing was a hoax.  About nine days later he delivered the unopened boxes to the police.  Mr Allen said in his statement that he only handed over the $1,000 cash to the female because at the time he was tricked into believing that the transaction was legitimate as he believed the male who had made the representation to him was his friend and that the boxes had been delivered to Mr Allen for that friend.

A statement of Wilfred Bilney was tendered and he confirmed that he had never made the telephone call or the representations which gave rise to Mr Allen parting with his money.

The learned Chief Magistrate found that he was satisfied that Mr Allen was induced to part with $1,000 as a result of a false pretence made to Mr Allen with an intention to defraud.  I agree that that finding was open on the evidence and indeed was the only finding open on the evidence.

Count 2

At about 1:00 pm on Monday 6 January, Mr Bruce Heeps, a man of sixty-four years of age, received a telephone call from a person who tricked Mr Heeps into believing that Mr Heeps’ was speaking to a friend of his by the name of Clarrie Wall.

The person on the telephone represented to Mr Heeps that he was Clarrie Wall and that he was expecting some cigarettes to be delivered, which he was coming from Loxton to collect.  He asked Mr Heeps if the cigarettes could be delivered to Mr Heeps house and whether Mr Heeps could pay for them when they were delivered.  The person then told Mr Heeps he would organise a courier to drop the cigarettes off and collect $1,676 in cash.

On the same day and about two hours later, Mr Heeps received a telephone call from a female caller who claimed she was from a courier company and she said that she would be around in about half an hour to deliver the cigarettes.  A short time later a female person arrived with two large cardboard boxes tied together with masking tape around them.  Mr Heeps offered to carry the boxes inside, but the courier declined his offer being insistent that he not handle the boxes.  She put the boxes on the lounge room floor and he handed her $1,676 in cash.  In return for that she gave him a receipt which had already been made out.  That receipt indicates the receipt from Bruce Heeps of the sum of $1,676 for tobacco and cigarettes.  The receipt which was dated 6 January 1997 was apparently signed by someone by the name of ‘J Milne’. 

Very shortly after the woman left Mr Heeps, who was uncomfortable with the transaction, opened the boxes and found them to be full of rubbish, shrub cuttings and plastic bags.  He immediately reported the matter to the police.  A statement was tendered from Mr Clarence Wall confirming that he was not the person who had made the telephone call and in fact had not telephoned Mr Heeps for about two years. 

The learned Magistrate found that Mr Heeps was induced to part with $1,676 as a result of a false pretence made to him with an intention to defraud.  Again, with respect, I agree with that finding which is the only finding available on the evidence. 

Count 3

Mr Max Hoffman, who at the time was aged seventy-five years, received a telephone call on Thursday 30 January 1997 at about eleven o’clock in the morning.  The person who telephoned him claimed to be Desmond Bourke, a long time friend of Mr Hoffman.  He told Mr Hoffman that he was in Whyalla and that a friend of his had ordered some tobacco and cigarettes from “Cash and Carry” which would be delivered to Mr Hoffman’s place and which had to be paid for in cash.  He said that if Mr Hoffman took delivery of the cigarettes and paid the cash he would be at Mr Hoffman’s place at about 7:00 pm that night.  Mr Hoffman, who agreed to pay for the tobacco and cigarettes asked how much money he would need.  The person said he would ring back and did so about forty minutes later and told Mr Hoffman that he would need $1,868 and that the delivery would take place in about an hour or an hour and a half. 

Very shortly after that Mr Hoffman attended at the ANZ Bank and withdrew $1,180 in cash. 

At about one o’clock that afternoon he was at home when he was approached by a woman carrying a large box.  She carried the box into the property and put the box on a chair.  Mr Hoffman then counted out the money which she took in exchange for a receipt which was signed by “J Milne” and was in the same form as the receipt given to Mr Heeps.  The receipt appears to be from the same book of receipts as the one given to Mr Heeps.  It is apparently signed by the same person, i.e. “J Milne”.

Mr Hoffman watched the woman leave his property walking back the way she had come.  He ran to the back of his house and sliced open the top of the box and saw that the inside contained bricks wrapped inside clothing and that there were no cigarettes.  Mr Hoffman rushed to his car and drove his car around the area to try and find the woman who had left the box with him but was unsuccessful.  Shortly thereafter he attended at the Norwood Police Station where he reported the matter.  A statement was tendered from  Mr Desmond Bourke confirming that he had not telephoned Mr Hoffman on 30 January 1997.

In respect of the third count the learned Magistrate was also satisfied that Mr Hoffman was induced to part with possession of the money as a result of false pretences made to him with the intention to defraud.  Again, with respect, I agree.

The matter which the prosecution had to establish beyond reasonable doubt was that it was the defendant who made or was a party to the making of the false pretences to each of the three victims.

The learned Magistrate concluded that the circumstances surrounding the commission of all of the three offences were remarkably similar.  He identified the points of similarity as being:

“1.The three offences occurred within a relatively short period of approximately two months.  Whilst experience might suggest that over a long period of time, offences with such a similar modus operandi might occur, the fact that three such similar offences occurred within a short period suggest that the same person or persons were likely to have been involved in their commission.

2.In each case when the phone call initiating the fraud was made, the caller used the same trick to enable him to assume the identity of another and gain the victim’s confidence.

3.In each case the reason advanced to the victim for the caller seeking a favour was almost identical.

4.In each case the parcels were delivered by a woman purporting to be from a courier service.

5.In counts 2 and 3 (but not in count 1) receipts were issued to the victim which were written by the same person and which were expressed in strikingly similar fashion. 

6.In each case the woman arrived at the victim’s home on foot with no courier van or other vehicle being sighted by the victim.”

I agree, with respect, with the learned Chief Magistrate that each of these similarities are apparent in each of the three offences. 

I would refer to four other matters:

7.     Each of the victims was an elderly man. 

8.In the case of counts two and three the woman courier was anxious to ensure that the victims did not carry the boxes presumably so they could not ascertain the weight.

9.In the case of counts two and three the receipts were signed under the name of the same person.

10.    Each of the transactions was designed so that cash was paid over.

The learned Magistrate concluded from those similarities that it would be an affront to common sense to suggest that the similarities could be explained by mere coincidence.  He determined that the evidence was strongly probative of the fact that the same person or persons were involved in the commission of all three offences.

Again, with respect, I think there can be no other finding available on the evidence than that.

In my view, the evidence adduced from each of the victims established beyond reasonable doubt that the same person or persons were involved in the commission of all three offences.  The evidence established beyond reasonable doubt that there were at least two persons involved in the commission of all three offences, a male and a female.

In respect of the female, Mr Allen described her as being in her late twenties, dressed in stirrup type long pants which were close fitting.  He remembered her as having brown hair but he was not able to remember any other features about her.  Mr Heeps described the delivery woman who delivered the boxes as being in her late twenties about five foot five inches tall, plumpish build, caucasian with fair complexion and darkish hair and wearing a white blouse and navy or black trousers and carrying a dark coloured shoulder bag.  Mr Hoffman’s description of the delivery woman was a little different.  He described her as being approximately thirty-five to forty years of age, about 152 centimetres tall, sixty kilograms and of stocky build.  She had short brown wavy hair, brown eyes, round face and was wearing black skin tight pants with a red no-button shirt.

There is nothing about the identification of the female, who participated in the commission of the offences, which could allow it to be said that it was proved beyond reasonable doubt that the same woman delivered the cigarettes on each occasion.  The evidence, in my opinion, in respect of the identification is equivocal.

Evidence Inculpating The Appellant

The evidence which was tendered to inculpate the appellant was the identification of his fingerprints.  Both of the boxes which were delivered to Mr Allen were enclosed in wrapping paper.  The defendant’s fingerprints were found on the wrapping paper of both boxes.  On one box the defendant’s fingerprints were found on the outside of the wrapping paper.  On the second box delivered to Mr Allen the defendant’s fingerprints were found both on the outside and the inside of the wrapping paper.

In respect of the boxes delivered to Mr Heeps, the defendant’s fingerprints were also found on items of rubbish, two plastic bags, one in each of the two boxes delivered to that gentleman.

No fingerprints of the appellant were found on or in the parcel delivered to Mr Hoffman. 

Returning to the parcel delivered to Mr Heeps, the prosecution established that one of the boxes delivered to Mr Heeps was removed from a wheel away rubbish bin at K-Mart at Kurralta Park on the same day that the offence was committed.  The contents of one of the two boxes delivered to Mr Heeps were removed from a similar bin at K-Mart a few days prior to the commission of the offence - sometime between 31 December 1996 and 2 January 1997.

In respect of the first count there is the undisputed evidence that the appellant’s fingerprints were found on the wrapping paper on both of the parcels delivered to Mr Allen.

Having regard to the striking similarities between count one and count two, in my opinion, it is permissible to have regard to the fact that the appellant’s fingerprints were also found on the items of rubbish contained in each of the two boxes delivered to Mr Heeps.  The possibility in respect of that second count of there being an innocent explanation for his fingerprints being on the contents of those boxes was negatived by the prosecution establishing, as I have already said, that in respect of one box it was removed that day from a wheel away rubbish bin and in respect of the contents of both boxes, some of those contents were removed from a similar bin within a few days prior to the commission of the offence.

As I have already mentioned, there was no evidence directly connecting the appellant with the commission of the offence in respect of count three.  None of his fingerprints were found on the boxes, wrapping paper or the contents of the boxes. 

In those circumstances, whilst it might be reasonably suspected that he was involved in the commission of that offence because it was so strikingly similar in the modus operandi to counts one and two, the learned Magistrate was not prepared to find that the charge had been made out beyond reasonable doubt.  He dismissed the charge in respect of count three.  There is no appeal against the dismissal of that charge.

The appellant touched the wrapping paper on both the boxes delivered to Mr Allen.  One wrapping paper he touched inside and out.  He touched the wrapping paper before 2 December 1996.

He also touched the contents of the two boxes delivered to Mr Heeps, but not before 31 December 1996.

It has to follow that the appellant on two separate occasions touched material which was used in a criminal offence.  The chances of that happening innocently are almost negligible.  Mr Bleechmore, who appeared for the appellant, suggested that the appellant might have innocently touched these separate items in the rubbish bins at K-Mart.  I do not believe that to be a reasonable hypothesis.  That would require it being considered reasonably possible that the appellant touched four different items on at least two different occasions which were later used in two separate criminal offences.  The chances of that are so small as to make the suggestion not reasonable.

He also suggested that perhaps the appellant knew the person or persons involved in the scam, but not the scam, and had innocently touched these items which were later used in the scam.  That requires it being reasonably possible that the appellant, in the circumstances predicted, touched on separate occasions four items later used in two separate criminal offences.  Whilst that is more likely to be possible than the first hypothesis it still, in my opinion, is not reasonable.

In my opinion the prosecution did make out its case in respect of counts one and two.  It established beyond any reasonable doubt that the appellant had handled both objects delivered to Mr Allen and to Mr Heeps.

Further, the prosecution negatived any reasonable possibility that the appellant’s fingerprints had come across each of those four parcels innocently or inadvertently.  The possibility of such coincidence simply does not exist.

The learned Chief Magistrate had to be satisfied that the appellant was knowingly involved in each of the false pretences in counts one and two and that on the evidence that was the only inference that was reasonably open.  At the same time he had to be satisfied that there was no reasonable explanation for the existence of the fingerprints on the boxes, wrapping paper and contents.  He was so satisfied.  This Court is in as good a position as the learned Chief Magistrate to examine that conclusion.  In my opinion the learned Chief Magistrate was correct.

Moreover, the prosecution was entitled to ask the Court to infer that in the absence of evidence from the appellant that it was appropriate to infer that he could give no reasonable explanation for his fingerprints on those four boxes: Weissensteinerv The Queen (1993) 178 CLR 217. In that case Mason CJ, Deane and Dawson JJ said at 227-228:

“In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

The appellant says in this case the fact that his fingerprints appear on the various items to which I have referred may be explained by the innocent touching of the material in K-Mart or an innocent handling where the offender was known to him, although he did not know of the offence.  A hypothesis of innocent handling on different days is not reasonable.

Even more so, if either possibility existed evidence relating to that possibility was peculiarly within the appellant’s knowledge.  In the absence of his giving evidence on that matter neither hypothesis could be said to be reasonable or rational.

I agree with the reasons expressed by the learned Chief Magistrate that the respondent proved beyond reasonable doubt that the appellant was guilty of counts one and two.

The appeal against the convictions in respect of counts one and two will be dismissed.