PLAZERIANO v Police - [2017] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PLAZERIANO v POLICE
[2017] SASC 106
Judgment of The Honourable Justice Vanstone
14 July 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE - USE AS EVIDENCE - PROVE FACT IN ISSUE
Appeal against conviction and sentence imposed in the Magistrates Court. The appellant, a massage therapist, was tried and convicted for four counts of theft which occurred in his rooms, committed on four separate occasions against three unrelated clients. A single sentence of 14 months imprisonment with a non-parole period of six months was imposed.
The appellant complained that the Magistrate erred in his application of s 34P(2) of the Evidence Act 1929 (SA) and that the evidence of each count was not cross-admissible against the others. The appellant contended that the Magistrate incorrectly relied on improbability reasoning to justify cross-admissibility. The appellant put that the Magistrate erred in finding a case to answer on count one. The appellant further contended that the Magistrate should have suspended the sentence.
Held: Appeals against conviction and sentence dismissed. The evidence of each complainant was clearly admissible in relation to all counts under s 34P(2)(a). In addition, count four was capable of proving a propensity to steal from clients’ wallets. Therefore s 34P(2)(b) was relevant as well. In those circumstances the finding of a case to answer on count one was correct following advice given in Police v A, MR, the Magistrate heard submissions concerning the cross-admissibility of the four counts prior to the evidence commencing but delayed making any ruling on that evidence until he delivered his reasons for verdicts. That course was not appropriate. A defendant is entitled to know by the time the prosecution evidence commences what is the evidence against him. The advice in A, MR should not be followed. The sentence was not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, Pt 4, Div 3A, Pt 5; Evidence Act 1929 (SA) s 34P, s 34S, Pt 3, Div 3, referred to.
Martin v Osborne (1936) 55 CLR 367, applied.
Police v A, MR (2008) 101 SASR 557, not followed.
Pfennig v The Queen (1995) 182 CLR 461; Sutton v The Queen (1984) 152 CLR 528; R v Armstrong (1990) 54 SASR 207, considered.

PLAZERIANO v POLICE
[2017] SASC 106
Magistrates Appeal – Criminal

VANSTONE J: The appellant was tried before a Magistrate on an information charging four counts of theft, committed on four separate occasions against three unrelated complainants. In each case the allegation was that the complainant attended the appellant’s rooms for a pre-paid massage and that, soon after leaving the premises, money from the client’s wallet (or in the case of count one, the whole wallet) was found to be missing. The Magistrate found him guilty of each count.
He now appeals against those convictions, arguing that evidence of each count was not admissible in relation to the others counts and that separate trials should have been ordered. He also argues that a submission of no case to answer in relation to count one should not have been rejected. Further, he appeals against the sentence imposed, being a single sentence of 14 months imprisonment with a non-parole period of six months.
Background
Each offence was said to have been committed at the appellant’s business premises at Brighton Road, Hove. There he conducted a practice as a massage therapist. The counts spanned the period 23 December 2014 to 15 January 2015. In each instance the complainant undressed for the massage privately, in the therapy room, leaving clothing and belongings on a chair in that room. The client would then lie on the massage table covered by a towel and the appellant would enter and perform the hour long massage. No one else was present. At the end of the massage the client was left to dress in privacy. There was no obvious need to go the client’s wallet while at the premises, as the massage has been prepaid via the internet.
The complainant for count one, Ms Hopf, alleged that her entire wallet was missing from her handbag after the massage. She said she realised as much when she was at the reception desk after the massage, because she asked for and received a card from the appellant which she went to put in her wallet. Seeing it was missing from her handbag, she said she went back to the massage room to look for it and spoke with the appellant. She then went to her car and searched it; then to another business premises where she had been prior to the massage. She acknowledged the possibility that she might have misplaced her purse, rather than it having been stolen.
Count four, involving the complainant Mr Schutt, was notable for this occasion being his second visit to the appellant for a massage. On the first occasion (count three) he claimed he had $180 with him in his wallet. After the massage he returned home and then a couple of hours later, he prepared to go to the shops. It was then he found that the $180 was missing. Three days later he returned for a second massage. This time, just prior to entering the massage room, he especially noted that his wallet contained $75. Afterwards, and on returning to his car, he found the $75 was missing.
The prosecution filed a discreditable conduct notice as required by s 34P(4) of the Evidence Act 1929 (SA). The prosecution originally contended that the evidence going to each count was admissible on all other counts as propensity evidence, invoking s 34P(2)(b). Later on in the trial the police prosecutor changed his position and asserted that it was s 34P(2)(a) upon which reliance was placed.
Counsel for the appellant indicated at the outset that the cross-admissibility of the evidence was challenged and that separate trials should be ordered. It appears from the file that the Magistrate did not have before him any statements from the four complainants. This presented a difficulty since any decision about admissibility would need to be based on the prosecutor’s summary of the evidence expected to be given by them. Alternatively, a statement of each witness could have been provided to the Magistrate for the purposes of determining cross-admissibility. Another alternative would have been to hold a voir dire hearing for that purpose. However, what happened was that the Magistrate determined, apparently with the consent of both sides, to embark on the evidence and to postpone the decision on cross-admissibility. In doing so he relied on Police v A, MR (2008) 101 SASR 557, a decision of Gray J in this Court.
Consideration
A, MR was concerned with five counts of indecent assault each involving a separate complainant, but each allegedly occurring in the home of the defendant. The age of the victims varied between 13 and 21 years. There, the Magistrate had ruled against cross-admissibility before any evidence was called. Like the Magistrate in the present case, she had very little firm information available to her about the allegations comprising the prosecution case. That decision was held to be incorrect and the matter was remitted to the Magistrates Court for a retrial. It was in the context in which Gray J made the following observations about postponing decisions on admissibility. This was advice no doubt given with the aim of assisting magistrates in the future. It did not form part of the decision. Anyway these paragraphs were reproduced in the reasons of the Magistrate in the present matter, as follows:
[16] In the case of a trial before a judicial officer sitting alone, the possibility of prejudice as a result of propensity reasoning may properly be negatived by that judicial officer. Such an officer being aware of the dangers of propensity reasoning can ensure that such reasoning does not occur, and in reasons for judgment may make it plain that such reasoning has not in fact occurred.
[17] A judicial officer sitting alone may proceed to hear a trial involving a number of counts, with the ability to consider the cross-admissibility of evidence late in the trial. At that time the court may be in a much better position to assess cross-admissibility. It is a frequent occurrence in trials before juries involving several counts or several defendants, that issues of cross-admissibility may arise, and directions are frequently given as to what parts of the evidence are admissible against a particular defendant. The same process may be followed by a judicial officer sitting alone. Magistrates are familiar with this process.
While I can well understand the motivation of the Magistrate in wishing to postpone the decision on cross-admissibility, and with great respect to the decision of Gray J, I do not consider that this course was appropriate. If there were to be any postponement at all, then the decision should have been made by the end of the examination-in-chief of the first complainant called to give evidence. As it transpired, the Magistrate did not deliver a ruling on cross-admissibility until the time of delivering his reasons for decision. Therefore, both the argument and decision on the submission of no case to answer on count one, and the appellant’s decision to give evidence in his defence had to be taken without the knowledge of what evidence was admissible on each count. As a general rule, this is undesirable.
The appellant has not chosen to make this unusual course of events the subject of a ground of appeal. Indeed, it seems likely that such a ground would not have succeeded for at least two reasons. The first of those is that the decision on cross-admissibility, when finally made, was against the appellant. Therefore all the evidence in the trial was properly heard. The second is that the appellant chose to give evidence in his defence and did so. Had the final ruling on cross-admissibility been known earlier, it would have rather impelled that decision by the appellant. Perhaps if the ruling on admissibility had gone the other way, the appellant’s decision would have been more finely balanced.
I consider that a defendant standing trial is entitled to know, by the time the prosecution evidence commences, what is the evidence against him. It is necessary so that the defendant can form a properly considered view as to whether he wishes to contest the charges at all. It is important to the preparation of the defence. An understanding of that evidence will inform the cross-examination of each witness. It is for this reason that voir dire hearings are almost invariably heard at the commencement of the trial. Any exception to that is usually due to counsel’s late appreciation of a ground for challenge to the admissibility of the evidence, or an appeal for its discretionary exclusion. Even then, the subject matter of the objection will not be as fundamental as seen here. This ruling had the capacity to cause a mistrial.
In [17] of A, MR, which I set out earlier, Gray J referred to the situation which sometimes arises in jury trials where there are several defendants. He stated that it may not be clear at the time when prosecution evidence is given whether an item of evidence is admissible against one or more than one defendant. The reach of such evidence may be, conceivably, determined towards the end of the trial. However that situation – which in my experience is not common – is markedly different from the one facing the Court in the present appeal, and indeed the situation in A, MR. Here, if the evidence were not admissible it should not have been given. In the hypothetical jury trial addressed by Gray J, the evidence was plainly admissible against at least one accused person and would have been heard by the jury in any event. It was only the extent of its impact which remained for consideration. In the present case, the appellant stood trial alone. Therefore, the decision about cross-admissibility and separate trials needed to be made very early in the trial.
Consequently, although the procedure advocated by Gray J might be seen by Magistrates to be a convenient one, I do not think that it is a satisfactory one, absent exceptional circumstances. Indeed, I consider that the advice given by Gray J was wrong.
In the present case, the evidence of each complainant was clearly admissible in relation to all counts. I consider it was admissible under s 34P(2)(a). It was admissible under (2)(a) because of the improbability of three quite separate clients each finding that money from their wallets was missing after having had a massage from the appellant at his rooms. There was a similarity and an underlying unity in the allegations, not only in time, but in the specific circumstances surrounding each one. A pattern was demonstrated. This was not because of any propensity which the evidence demonstrated, but rather, because of the unlikelihood that all three complainants could suffer a loss in these circumstances unless there were a cause common to each, namely the appellant’s ready access to their personal belongings. The similarity of each incident raised the improbability of each person’s perceived loss being due to forgetfulness, or carelessness before or after the massage, or the work of an unknown thief. Used in this way there was very little, if any prejudicial effect of the evidence apart from its probative value. That is because no complainant directly levelled an allegation against the appellant. His implication in each loss was a matter of inference. Until that inference was drawn, there was no evidence of a crime. The High Court case of Martin v Osborne (1936) 55 CLR 367 provides a useful analogy. There, viewed in isolation, each of Osborne’s regular trips from Ballarat to Melbourne, carrying several passengers, would have been capable of innocent explanation. It was when all the trips were viewed together that Osborne’s conduct of a business as an unlicensed taxi driver became clear. Until the conclusion was drawn that Osborne was carrying passengers for reward, there was no prejudicial effect associated with the evidence going to each count.
In addition, I consider that s 34P(2)(b) was relevant as well. The trier of fact was entitled to take the view in relation to count four, even viewed in isolation, that the evidence was capable of proving guilt. That was because the scope for the money being missing other than because of the appellant’s intervention was much reduced in the circumstances of this count. Here, Mr Schutt deliberately checked the amount of money he was carrying prior to going into the massage room. On leaving, he did the same. He found that the $75 that had been there was gone. Therefore, accepting Mr Schutt’s evidence, there was no person other than the appellant who could have taken the money. Once that was accepted then a propensity to steal money from clients’ wallets was demonstrated. That propensity was then available for use in relation to the others counts.
The appellant complains that the Magistrate failed to consider adequately whether the permissible use associated with admission under s 34P(2)(a) could be kept sufficiently separate and distinct from the impermissible use. As I have explained, in the way cross-admissibility was justified I do not consider that there was any impermissible use associated with the admission of the evidence under ss 2(a). Until the combination of circumstances of all the counts was considered and a decision in relation to all of them made, there was no tendency to prove bad character. Until that time, each event was explicable as an unfortunate loss, or a mistake made by each victim or, perhaps, the work of some unknown person. The Magistrate gave himself a propensity warning. As I have said, the scope for misuse under s 34P(2)(a) is limited to the point of non-existence. In any event, especially since I consider the evidence of count four was capable of proving a propensity, which could then be used in relation to the other three counts, I do not consider that there was, realistically, any scope for misuse of the evidence.
This was not a case where the prosecution sought to use evidence of a previous, proved crime as propensity evidence (e.g. Pfennig v The Queen (1995) 182 CLR 461). Naturally, such a situation carries prejudice. Nor was it a case where guilt of other counts was to be proved by direct allegations (e.g. Sutton v The Queen (1984) 152 CLR 528). Here, much like in R v Armstrong (1990) 54 SASR 207 it was only upon the trier of fact determining on the basis of circumstantial evidence that the defendant was guilty of any particular count, that any prejudice arose. In such cases the role of directions about misuse of evidence is much narrower.
Because the evidence of each count was properly ruled admissible in relation to every other count, the refusal to grant separate trials was plainly correct.
Relevant to cross-admissibility the appellant also argues that the Judge erred in his approach to the question of possible collusion or contamination as between the complainants Hopf and Nissen. It appears that after the time when each had made her complaint to police they had a chance conversation about the allegations each made. What was said between them was the subject of cross-examination. A provision relating to collusion or concoction and its relevance to the question of admissibility of discreditable conduct evidence was inserted into Part 3 Division 3 of the Evidence Act along with s 34P. Section 34S provides, among other things, that the possibility of collusion or concoction is not a ground for excluding evidence which would otherwise be admissible. Accordingly, the suggested collusion - or more accurately possible contamination - of the evidence of Ms Hopf and Ms Nissen was not relevant to the finding on admissibility. There is no appeal against the final decision of the Magistrate divorced from the question of admissibility, and therefore his treatment of possible contamination does not arise. But in any event, I would say that this was far from being any evidence of concoction. At its most it could have amounted to evidence of possible contamination which was a matter for cross-examination of the respective witnesses and for evaluation of the evidence of each one. Bearing in mind that each witness had already complained to police and committed to a version of events, it is hard to see how contamination could have played a role.
I turn to the grounds of appeal relating to the finding of a case to answer count one. The basis of the submission was that under cross-examination Ms Hopf candidly admitted that the possibility remained that she might have misplaced her purse prior to going to the appellant’s premises. The Magistrate considered the submission overnight and gave quite extensive reasons for finding a case to answer. Although he had not ruled on the cross-admissibility question at this stage the Magistrate said, rather enigmatically, “it is my view that the prosecution as this stage of the trial is entitled to have the inferences of improbability and underlying unity or pattern of behaviour in their favour in deciding whether a theft occurred”. He then ruled against the defence submission.
It is a nice question whether, had count one stood alone, a reasonable tribunal could have convicted without more. The respondent argues that the decision to find a case to answer was correct with or without the evidence going to the other counts. That may well be correct. In any event, I have found that all the evidence was, in the final analysis, correctly admitted and in those circumstances the finding of a case to answer was plainly correct.

The appellant further appeals against the sentence imposed by the Magistrate. In particular he argues that the sentence should have been suspended, either under Part 5 of the Criminal Law (Sentencing) Act 1988 (SA) or under Part 3, Division 3A. Counsel for the appellant particularly points to psychological conditions from which the appellant suffers and to the difficulties he faced last time he was in gaol.
The Magistrate gave lengthy reasons for arriving at the sentence of 14 months imprisonment. He noted the seriousness of the offences and that they constituted a breach of trust. He had regard to the appellant’s prior convictions, which were not insignificant and included at least one similar offence. He referred to all the competing circumstances in relation to the questions of suspension under s 38 of the Sentencing Act, and suspension on home detention under s 33BB.
The hurdle for the appellant upon the appeal against sentence is a high one. The appellant does not point to any error of approach or of fact in the Magistrate’s analysis. Rather, he relies on the argument that there were strong grounds for suspending the sentence. To succeed he has to persuade me that the only correct disposition was a suspended sentence of one sort or the other. Particularly having regard to the appellant’s previous convictions and the fact that this was a course of conduct involving four separate thefts, that argument cannot be made good.
For these reasons the appeals against conviction and sentence must be dismissed.