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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASC 106
Decision Date: 14 July 2017

CaseChat Overview and Summary

In the case of PLAZERIANO v Police, the appellant appealed against his convictions and sentence on several counts of theft from clients during massage sessions at his business premises. The appellant argued that the evidence of each count was not admissible in relation to the others, that separate trials should have been ordered, and that the submission of no case to answer in relation to count one should not have been rejected. He also appealed against the sentence imposed, which was a single sentence of 14 months imprisonment with a non-parole period of six months. The key legal issue was the admissibility of similar fact evidence under s 34P of the Evidence Act 1929 (SA) and whether separate trials should have been ordered.

The court found that the Magistrate had erred in postponing the decision on cross-admissibility until after the evidence had been heard. While Gray J in Police v A, MR had suggested that a judicial officer sitting alone may consider cross-admissibility late in the trial, the court found that this was not appropriate in this case. If there was to be any postponement at all, the decision should have been made by the end of the examination-in-chief of the first complainant called to give evidence. 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, which was undesirable. The court held that the Magistrate's failure to rule on cross-admissibility until after the evidence had been heard was a substantial miscarriage of justice.

The appeal against the convictions was allowed, the convictions were quashed, and the matter was remitted to the Magistrates Court for a retrial. The appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.