Plunkett v DIETMAN
[2010] SASC 359
•24 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PLUNKETT v DIETMAN
[2010] SASC 359
Reasons for Decision of The Honourable Justice Gray
24 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
Appeal against conviction - defendant convicted following trial by Magistrate of two offences in contravention of the Fisheries Management Act 2007 (SA), arising from his possession of Southern Rock Lobster - lobster located at defendant's residential premises - where defence case that defendant had no knowledge of the existence of the lobster at his home - where partner of defendant and co-occupant of the residential premises not called to give evidence - where information amended at the conclusion of the trial - whether Magistrate in error in drawing adverse inference against defendant for not calling partner as a witness - whether amendment to information resulted in prejudice to the defendant - whether error of fact made by the Magistrate concerning the extent of police surveillance of the defendant's home - whether Magistrate in error in rejecting defendant's evidence on the topic of an alleged admission made to Fisheries Officers on arrest.
Held: appeal dismissed - Magistrate in error in application of Jones v Dunkel when drawing adverse inference against defendant for failing to call partner as a witness - notwithstanding that error, prosecution case was overwhelming and the convictions were sustained by the evidence - no prejudice occasioned by the defendant by the amendment to the information - no other errors demonstrated.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
Appeal against sentence - defendant previously sentenced in the District Court with respect to an offence of trafficking drugs that occurred at the same time as the Fisheries Management Act offending, to a term of three years and six months imprisonment, with a non-parole period of two years - defendant sentenced by the Magistrate for the Fisheries Management Act offending to a term of imprisonment of six months with a non-parole period of three months, to be cumulative on the drug offending sentence - whether Magistrate erred in not ordering that the sentence for the Fisheries Management Act offending be served concurrently, or partially concurrently, with the drug offending sentence
Held: appeal dismissed - the two sets of offending were of an entirely different character and involved separate and distinct incursions into crime - there is nothing about the circumstances of the offending that would support the imposition of concurrent or partially concurrent sentences - no error demonstrated.
Fisheries Management Act 2007 (SA) s 72(2)(a), s 74(1)(b) and s 100; Fisheries Management (General) Regulations 2007 (SA) Sch 3 r 4 and Sch 2 cl 4; Summary Procedure Act 1921 (SA) s 181, referred to.
Jones v Dunkel (1959) 101 CLR 298; Azzopardi v The Queen (2001) 205 CLR 50; Weissensteiner v The Queen (1993) 178 CLR 217; R v Newland (1997) 98 A Crim R 455; RPS v The Queen (2000) 199 CLR 620; Dyers v The Queen (2002) 210 CLR 285; Police v Kyriacou (2009) 103 SASR 243; Ayles v The Queen (2008) 232 CLR 410; Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Power [2003] SASC 288, considered.
PLUNKETT v DIETMAN
[2010] SASC 359Magistrates Appeal
GRAY J.
This is an appeal against conviction and sentence.[1] On 1 December 2010 I dismissed the appeal. I now publish my reasons.
Introduction
[1] An extension of time was sought and not opposed.
Background
Following a trial before a Magistrate, the defendant and appellant, Percy Gordon Plunkett was convicted of two offences in contravention of the Fisheries Management Act 2007 (SA); namely, possession or control of an aquatic resource taken in contravention of the Act,[2] and possession of a commercial quantity of fish of a priority species.[3] Both offences involved the possession of southern rock lobster, the first relating to undersize lobster and the second to the amount of lobster found in the appellant’s possession.
[2] Section 72(2)(a) of the Fisheries Management Act 2007 (SA)
[3] Section 74(1)(b) of the Fisheries Management Act 2007 (SA); Regulation 4, Schedule 3 of the Fisheries Management (General) Regulations 2007 (SA).
On 18 December 2007, the lobster the subject of the two counts were located at the residential premises of the appellant. In the two weeks prior to that date, the Police had those premises under surveillance in relation to suspected drug dealing by the appellant. On 18 December 2007, the appellant was arrested in the street near those premises in relation to that suspected drug offending. The appellant was taken to the Mount Gambier Police Station and the Police then conducted a search of the premises. During that search, a Police officer located a chest freezer in which numerous lobster were stored. The Police officer formed a suspicion that some of the lobster were undersize and contacted a fisheries officer, Barry Tarr, from the Department of Primary Industries and Resources South Australia. On the arrival of Fisheries Officer Tarr, the lobster in the freezer were inspected and counted, revealing a total of eighty lobster.[4] A further single lobster was located in a separate freezer inside the house. It transpired that a total of 17 of the lobster were under the legal length prescribed by the Fisheries Regulations.[5]
[4] A quantity greater than 15 lobster constitutes a “commercial quantity” of the lobster; see Regulation 4, Schedule 3 of the Fisheries Management (General) Regulations 2007 (SA).
[5] The carapace of the lobster is to be 9.85 cm: clause 4 of Schedule 2 of the Fisheries (General) Regulations 2007 (SA).
In making out the charge of possession or control of the lobster against the appellant, the prosecution relied on the fact that the appellant resided at the premises with his partner of many years, Shirley Jackway. There was no evidence at all linking Ms Jackway, the co-occupant of the premises, with the lobster at the home, other than perhaps the single lobster located in the freezer inside the premises. It was common ground that Ms Jackway was in Adelaide at the relevant time seeking medical treatment. The appellant also gave evidence to that effect.
The appellant was jointly charged on Information with James Henry Conron. It was the prosecution case that Mr Conron had been responsible for taking the lobster from the sea, but that the two men were jointly in possession or control of the lobster. According to the appellant, Mr Conron was a further occupant of the premises and the lobster belonged to him. Mr Conron was not located prior to the matter going to trial and the trial proceeded against the appellant alone. At the conclusion of the trial when the Magistrate delivered his reasons, the Information was amended to remove the reference to joint possession in the particulars referable to the appellant, and the appellant was convicted of the counts of possession outlined above.
The Trial
Following the Police search, a further search of the premises was undertaken at the direction of Fisheries Officer Tarr. During that search the following items, inter alia, were located and seized:
·Four lobster carapaces were found in a green garbage bin. They were measured and found to be undersize.
·A handwritten note endorsed with the words “pick up Mike at 5:30 for fishing”, was found in the same garbage bin. It was not in dispute that the appellant had a son named Mike or Michael, although the appellant denied authoring the note and indicated that the reference to “Mike” was not a reference to his son, as his son was too busy working to go lobster fishing.
·Four lobster pots were located at the rear of the home, three of which were rigged with ropes and floats and ready for immediate use. The appellant admitted that the pots were his and purchased by him.
·A bundle of plastic bags was located in a cupboard in a room of the home. One of the lobster found in the freezer had been wrapped in a bag which was said to be identical to those bags, being the same size and plastic thickness and being impressed with a distinctive pattern. The appellant admitted that the bags belonged to him.
·Polystyrene boxes and lids were located in the same shed where the freezer containing the eighty lobster was located. Many of the lids were endorsed with a handwritten note indicating weights in kilograms. A number of the lobster located in the freezer were within a box of the same kind. The appellant denied that he was the author of the notations on the box lids and claimed to have obtained the boxes and lids from a local grocery shop.
In addition to the property seized, a number of other factual matters were found to be proved beyond reasonable doubt by the Magistrate. These matters were not disputed on the appeal and included inter alia:
·In early November 2007 the appellant had been issued with a registration in his name for two rock lobster fishing pots as a recreational fisherman. At the same time he arranged and paid for the issue of two further recreational permits, one for his son Michael and the other for another man.
·Following the search of the premises by Fisheries Officer Tarr, the lobster were inspected again for the purpose of determining how many of them had clipped tails. It was not in dispute that lobster tails are required to be clipped before landing if they are caught by recreational fishermen. The clipping of the lobster tails renders them readily identifiable as recreationally caught and renders them unable to be sold. On the evidence, all but six of the lobster had clipped tails.
The freezer in which the bulk of the lobster were located was powered from the general supply of electricity to the premises. The appellant conceded that he contributed financially toward the electricity bill, including the electricity used to power freezers within which the lobster were found. However, the appellant claimed that the freezer in the shed belonged to Mr Conron.
In addition to the circumstantial evidence outlined, the prosecution relied in particular on what was said to be an admission by the appellant in relation to the possession of the lobster, when the appellant was spoken to by Fisheries Officer Tarr. I will return to this topic later in these reasons.
It was the appellant’s case that he had no knowledge of the existence of the lobster in his freezers or rubbish bin. According to the appellant, he did not know how the lobster came to be at his home and the only explanation that he could offer was that one of the people to whom he sold drugs might have left them there or that they belonged to Mr Conron, whom he claimed resided at the premises.
Although the appellant’s case that Mr Conron often stayed at the premises and in fact inhabited one bedroom of that premises, the Police surveillance operation in the two weeks prior to the arrest of the appellant in relation to the drug charges, revealed that no-one matching the description of Mr Conron was seen arriving or leaving the premises in that time. In addition, the surveillance records revealed that no vehicle owned by Mr Conron was observed arriving or leaving the premises in the two weeks prior to the appellant’s arrest. According to the prosecution, the room within the premises said to be Mr Conron’s bedroom was not set up as a bedroom and did not appear to be inhabited. There was no property, clothing or documents within the premises that would indicate that Mr Conron resided there.
The appellant gave evidence at the trial. His de facto partner and co-occupant of the premises, Ms Jackway did not give evidence.
The Magistrate’s Orders
The Magistrate convicted the appellant on both counts. In considered reasons the Magistrate reviewed the evidence at length. He accepted the prosecution witnesses. He rejected the appellant’s evidence.
On 27 November 2008, a Judge in the District Court sentenced the appellant for the earlier mentioned drug offending in relation to which the appellant had been under surveillance. The appellant had pleaded guilty to 10 offences contrary to the Controlled Substances Act 1984 (SA). A period of imprisonment of three years and six months was imposed and a non-parole period of two years was fixed. That sentence was backdated to commence on 10 October 2008. On 2 July 2009, the appellant was sentenced to a further four months imprisonment with respect to unrelated offending of unlawful possession. That sentence was ordered to be served cumulatively on the three year and six month term being served, leading to a total term of imprisonment of three years and ten months imprisonment commencing on 10 October 2008. At that time, the non-parole period was not increased.
When sentencing for the offences against the Fisheries Management Act, in relation to the first count, the Magistrate, to avoid double punishment, convicted the appellant without imposing any further penalty. In relation to the second count, the appellant was convicted and sentenced to a period of six months imprisonment, in addition to the imposition of a fine of $5,000.00. That sentence was ordered to be served cumulatively on the existing period of imprisonment of three years and ten months being served by the appellant with respect to the drug offending and the unlawful possession charges. The non-parole period was then reviewed and extended by a period of three months. A number of further orders were made by the Magistrate pursuant to section 100 of the Fisheries Management Act;[6] namely that the appellant:
Be disqualified from holding or obtaining an authority of any class, including (but not limited to) a Recreational Rock Lobster (“Pot”) Registration, issued pursuant to the Fisheries Management Act 2007, for a period of five (5) years
Be prohibited from engaging in a fishing activity of a specified class, namely rock lobster fishing, for a period of five (5) years
Be prohibited from being in possession of an aquatic resource of a specified class, namely rock lobster (of all species) for a period of five (5) years.
Be prohibited from being in possession of a device of a specified class, namely a ‘rock lobster pot’ (as defined in the Act), for a period of five (5) years
Be prohibited from being on any vessel carrying a device of a specified class, namely a ‘rock lobster pot’ for a period of five (5) years.
[6] Section 100 of the Fisheries Management Act 2007 (SA) provides:
(1)A court that convicts a person of an offence against this Act may, by order, in addition to imposing any other penalty, do 1 or more of the following as it thinks fit:
(a)impose conditions on a specified authority, or vary conditions of a specified authority, held by the person;
(b)suspend a specified authority held by the person;
(c)disqualify the person from holding or obtaining an authority of a specified class;
(d)disqualify the person from being the director of a body corporate that holds an authority of a specified class;
(e)prohibit the person from being in, on, or in the vicinity of, specified waters without a lawful purpose;
(f)prohibit the person from any 1 or more of the following:
(i)engaging in a fishing activity of a specified class;
(ii)being in or on a specified boat, boats of a specified class or boats carrying devices of a specified class;
(iii)being in or on any specified premises or place used in connection with the processing of aquatic resources;
(iv)having possession of devices of a specified class;
(v)having possession of fish or other aquatic resources of a specified class.
(2)An order under subsection (1) may be made either on the court's own initiative or on the application of the prosecution.
The Appeal
On the appeal, the appellant challenged both convictions, the sentence imposed and the orders made.
An Error of Law - Jones v Dunkel[7]
[7] Jones v Dunkel (1959) 101 CLR 298.
As earlier noted, Ms Jackway, the partner of the appellant and an occupant of the premises, did not give evidence at the trial. Initially, the prosecution foreshadowed the possibility that she would be called as a prosecution witness. Considerable difficulty was encountered in having her attend Court. This appears to have been the result of her receiving treatment for a serious medical condition. Ultimately, Ms Jackway did attend and an adjournment was allowed so that the prosecution could conduct a proofing of her as a witness. Following this contact with Ms Jackway, the prosecution announced that she would not be called as a witness for the prosecution. The Court was informed that she was not regarded as a truthful witness. Counsel for the appellant did not call on the prosecution to present Ms Jackway and made no challenge to the assertions made in Court.[8] The defence did not request the Magistrate to make any further enquiry as to the reasons behind the decision of the prosecution. In the course of his reasons, the Magistrate observed:
The case for Mr Plunkett commenced. I am entitled to assume that on this occasion Ms Jack[way] was available and able to give evidence for any party that wished to call her as a potential witness. Mr Plunkett did not call her as a witness.
Whilst the obligation is on the prosecution to call all relevant witnesses it seems to me that given the prosecution declined to call her that Ms Jackway would then be the natural witness for Mr Plunkett based upon his evidence. She had lived with him at the home for many years. She could be expected to at the least to give material evidence to support Mr Plunkett;-
[8] See for discussion Azzopardi v The Queen (2001) 205 CLR 50.
The Magistrate then summarised what he described as the principle known as the Jones v Dunkel principle and noted in particular:
In criminal trials general rule has been established that the normal rule is that it is inappropriate to draw an adverse inference against either the prosecution of [sic] the defence. The propriety of drawing such an inference must be considered in the light of the burden of proof, the right to remain silent and the duties of the prosecutor.
[Footnote omitted]
On this topic the Magistrate then reasoned:
The prosecution do seek to drawn [sic] an adverse inference from the fact that Ms Jackway was not called by the defence. I am mindful that there is not [sic] obligation or onus on Mr Plunkett to prove any fact in relation to possession. There is also the right to silence which right extends to the decision not to call a particular or other witnesses. I do not speculate about what she might have in fact said if called to give evidence but she could have given some evidence on matters central to Mr Plunkett’s evidence on central issues. However her evidence did have at least the potential to confirm much of Mr Plunkett’s evidence on the central fact in issue of relevant possession. She was available at court to give evidence if called upon to do so. Whilst Ms Jackway sought to be excused attendance on an earlier occasion in answer to a prior summons she appeared in answer to the second summons to give evidence. There was not [sic] obvious or proved or satisfactory explanation or submissions as to why Mr Plunkett did not call Ms Jackway to give evidence on her attendance in court.
Notwithstanding the normal rule it seems to me that in these circumstances the fact that Ms Jackway was not called by Mr Plunkett is evidence from which I can draw an inference that she would not have assisted the case for Mr Plunkett that he was not possessed of the subject lobsters. This is a direction to myself is [sic] as to the process of reasoning open to me in assessing arriving [sic] at the ultimate decision as to the probative weight of the evidence of possession and not an assumption of what Ms Jackway would have said had she been called.
[Footnote omitted]
Although the processes of reasoning identified in Jones v Dunkel are applicable both to criminal and civil trials,[9] in a criminal trial the general rule has been established that it is inappropriate to draw such an inference against either the prosecution or the defence. It has been said that the propriety of drawing such inference must be considered in the light of the burden of proof, the right to remain silent, and the duties of the prosecutor.[10] Such consideration has led to the conclusion that as a general rule a trial judge should not direct the jury that an accused is expected to give or call evidence, nor should the Judge direct that the failure to do so where the prosecution case calls for an answer gives rise to an inference that the witness or the accused could assist the accused’s case.[11] To do otherwise would undermine the burden of proof and the right to silence. It is to be emphasised that this is only a general rule. However, it has been noted that exceptions to this general rule will be rare.[12]
[9] Weissensteiner v The Queen (1993) 178 CLR 217 at 225; R vNewland (1997) 98 A Crim R 455 at 456.
[10] RPS v The Queen (2000) 199 CLR 620 at [28]-[29] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ); Azzopardi v The Queen (2001) 205 CLR 50 at [64]; Dyers v The Queen (2002) 210 CLR 285 at [9]-[10].
[11] Dyers v The Queen (2002) 210 CLR 285 at [5]; Azzopardi v The Queen (2001) 205 CLR 50 at [64].
[12] Weissensteiner v The Queen (1993) 178 CLR 217; Azzopardi v The Queen (2001) 205 CLR 50 at [64].
On the appeal, counsel for the respondent accepted the general rule that a Jones v Dunkel type direction should not be given in a criminal trial adverse to an accused person. It was further accepted that the Magistrate should not have drawn an adverse inference against the appellant in the within proceeding as a consequence of the defence not calling Ms Jackway as a witness. It was accepted that this was an error of law.
The concession made by counsel for the respondent was entirely appropriate. The rule against the drawing of such an inference against the accused in a criminal trial is well established. Recent judgments of both the High Court[13] and of the Full Court of South Australia[14] have confirmed this proposition.
[13] Dyers v The Queen (2002) 210 CLR 285.
[14] Police v Kyriacou (2009) 103 SASR 243.
Notwithstanding this error of law, counsel for the respondent submitted that this Court on the hearing of this appeal was required to consider the matter de novo. It was said that if the Court was satisfied that notwithstanding the error of law the convictions were sustained by the evidence, the appeal should be dismissed. The appellant accepted that this was the correct approach to be followed by this Court.
Before coming to discuss the above submission, it is convenient to first address three further complaints advanced by the appellant.
Police Surveillance
It was submitted that the Magistrate had made an error of fact concerning the extent of Police surveillance of the premises. As earlier mentioned, it was the defence case that Mr Conron, the named co-accused, resided at the premises with the appellant and Ms Jackway, and that it was Mr Conron who was the person who was in the sole possession of the lobster. The appellant claimed that he had nothing to do with all but the one lobster found in the house. According to the defence case, Mr Conron had been in and about the premises in the days leading up to the Police raid.
The following finding of the Magistrate was challenged:
In the two weeks or so prior to Tuesday the 18th of November 2007 Mount Gambier police had occasion to have residential premises of 10 Newton Crescent at Mount Gambier under surveillance. They were conducting an operation in relation into [sic] suspected drug dealing by Mr Plunkett. The police were making undercover observations of persons coming to and going from the residential home. During the surveillance Mr Plunkett and Ms Shirley Jackway were seen coming and going to the home. Mr Plunkett and Ms Jackway had resided together at 10 Newton Crescent at Mount Gambier for about 30 years. For convenience I will refer to the premises as “the home” or some derivations of that expression. There was also evidence of a general kind of the fact of monitoring of telephone calls to and from Mr Plunkett.
…
Detective Sergeant Scott gave uncontested evidence that during the surveillance on the home in the weeks prior to the 18th of December 07 that Mr Plunkett and Ms Jackway regularly went to and from the home. However no-one answering Mr Conron’s description or driving any vehicle registered to him had been noted as going to or from the home. Mr Conlon [sic] was in the company of Mr Plunkett at the time of Mr Plunkett’s arrest. Detective Sergeant Scott said that based on the police intelligence that they had (including the telephone intercepts) that Mr Conlon [sic] was not a person known to them. As a consequence Mr Conlon [sic] was not detained nor even questioned. Detective Sergeant Scott himself searched each room of the residence. There were three bedrooms in the home. There was no property or documents within the home that would indicate that Mr Conron was living there. Detective Sergeant Scott said that based upon his search of the premises that apart from Mr Plunkett and Ms Jackway he could not say who if anyone had been sleeping at the premises. It was apparent however that Mr Conron was present at the home on the 8th of December 07 without objection from Ms Jackway.
Counsel for the appellant contended that the evidence in the trial did not support a finding that Mr Conron had not been in and about the premises in the weeks prior to the appellant’s arrest. It was said that the evidence as to surveillance did not exclude the possibility of comings and goings by Mr Conron and therefore did not exclude the possibility of joint possession. However, at trial, the cross-examination by defence counsel of the officers concerned, did not seek to challenge their evidence on the topic of surveillance. Some of the more pertinent extracts of the evidence are as follows:
Q.Now prior to attending, did you already have information as to who were the regular occupants of that house at 10 Newton Crescent.
A.That’s correct we did.
Q.And without going into too much detail, had there been some prior police enquiries as to who actually resided there on a regular basis.
A. That’s correct there was.
Q.And indeed had there been any surveillance carried out on the premises in the weeks leading up to your search.
A. There had been yes.
Q.And were you part, in your duties as Detective Sergeant, were you overseeing those other investigations that were going on.
A. Yes I did.
Q.And as part of those duties were you monitoring who apparently was seen going to and from those premises.
A. Yes I did.
Q.And was it, was Mr Plunkett identified as one of the persons known to reside at that premises.
A.Yes he was.
Q.Ms Shirley Jackway.
A.Yes.
Q.At any time had any person fitting the description of Mr Conron been identified to you as a person either frequenting or residing at the premises of 10 Newton Crescent.
A.No he wasn’t.
…
Q.And were any vehicles belonging or registered to Mr Conron observed to have attended at 10 Newton Crescent in the weeks prior to your search.
A.No there was not.
…
Q.Was any information provided to you that [Mr Conron] was a resident of those premises at 10 Newton Crescent.
A.No there was no indication that he lived there at all.
A review of the transcript reveals a substantial body of evidence on the topic, and that review allows the conclusion that the finding of the Magistrate was not only open on the evidence, but was a finding fully justified on the evidence.
Amendment to the Information
During the course of the appeal, counsel for the appellant complained about an amendment to the Information made by the Magistrate at the conclusion of the trial. This issue was not raised by the notice of appeal and was not addressed in the outline of argument. The appellant has not sought leave to amend his notice of appeal to challenge the amendment. However there was oral argument on the topic and I will address the merits of the complaint.
Section 181 of the Summary Procedure Act 1921 (SA) provides the Magistrates Court with power to amend an Information. That section provides:
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a)amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
The amendment to the Information the subject of complaint deleted an assertion that the appellant had committed the offence through being jointly in possession of the lobster. The amendment excluded the words “joint” and “jointly”. In addition, the number of rock lobster was amended in relation to the undersize rock lobster, from 21 to 17, and in relation to the total number of lobster, from 85 to 81, with consequent changes to the specified value of the lobster. These latter amendments operated favourably to the appellant and were not challenged on the appeal. As a consequence of the alterations, the amended Information with respect to the appellant provided:
The second defendant possessed or controlled 17 southern rock lobster (“the fish”) which were under the legal minimum length of 9.85cm as prescribed in regulation 3 and clause 4 of Schedule 2 of the Fisheries (General) Regulations 2007. These fish were taken in contravention of the Act.
…
The second defendant was in possession or control of 81 southern rock lobster (Jasus edwardsii) 66 more than the quantity (of 15) prescribed in regulation 8(2) and Schedule 3 of the Fisheries (General) Regulations 2007.
AND the Informant alleges that the wholesale value of the fish at the time of the commission of the offence was $1,840.30
The High Court in Ayles[15] addressed a similar power to section 181 of the Summary Procedure Act. Although in dissent, Gummow and Kirby JJ set out the following relevant history with respect to amendments to Informations:[16]
[15] Ayles v The Queen (2008) 232 CLR 410.
[16] Ayles v The Queen (2008) 232 CLR 410 at 416-418.
In South Australia, the information fulfils the same role as a presentment or indictment does in other States, and in South Australia the term does not exclusively connote summary proceedings. The history of the use of the information in summary proceedings to specify the alleged offence was traced by Jordan CJ in Ex parte Walker; Re Goodfellow. The centrality of the information to criminal procedure in South Australia may be seen in s 275(1) of the CLCA:
"Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on an information presented to the Court in the name and by the authority of the Director of Public Prosecutions."
Likewise, s 284(1) of the CLCA provides that it is the information to which the accused pleads guilty or not guilty, thereby initiating the trial:
"Any person arraigned on any information who pleads not guilty thereto shall, by that plea, without any further form, be taken to have put himself upon the country for trial; and the court shall, in the usual manner, proceed to the trial of that person accordingly."
That is, it is upon the information that the criminal defendant is tried, and in conjunction with the defendant's plea it delimits the area of contest at the trial.
The circumstances of the present case must next be seen against the background of s 277(1) of the CLCA. This provides:
"Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge."
…
At common law, there was no power to amend an indictment otherwise than by returning it to the grand jury that found it; by contrast, and as explained by Lord Mansfield, an information (using the term in its historical sense) could be amended more readily, being framed by an officer of the Crown and not being found upon the oath of a grand jury. The inflexibility of the rules governing the technical requirements of indictments coupled with the extremely limited scope for amendment had a tendency, in the words of Sir James Fitzjames Stephen, to "mitigate, though in an irrational, capricious manner, the excessive severity of the old criminal law". Thus, prisoners might escape the consequences of their crimes by taking successful objections to the terms of the indictment presented against them.
Nineteenth century statutory reform in England to change this state of affairs culminated in the Indictments Act 1915 (UK). This modified the procedure for amendment of indictments. Section 5 of that Act, which is replicated in the law of each Australian State, found its way into the law of South Australia as s 281 of the CLCA, which is headed "Objections to informations, amendments and postponement of trial". The breadth of the range of permissible amendments under that section and its equivalents has often been emphasised in the case law. It may be accepted that an amendment to an information may add counts, substitute an applicable statutory offence for an inapplicable one, or vary the particularised dates of offending. The question, in the present case, is whether any such addition or substitution has been effected according to law.
Sub-section (2) of s 281 of the CLCA states:
"When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice."
…
[Footnotes omitted]
The issue is whether any substantial prejudice arose to the appellant. At the trial, no prejudice, substantial or otherwise, was identified by counsel for the appellant. On the hearing of the appeal, counsel was unable to articulate even in the most general terms, any prejudice to the appellant. The amendment to remove the reference to “joint” did not alter the offence charged. By the end of the trial the prosecution were no longer pressing a case of joint possession – their case was one of possession. In these circumstances, it was well within the Magistrate’s power to amend the Information.
An Admission by the Appellant
On the day following the appellant’s arrest, he was spoken to by Fisheries Officer Tarr, who had commenced an investigation in regard to the suspected offending under the Fisheries Management Act. In the process of that investigation he spoke to the appellant at the Mount Gambier Police Station. The Magistrate dealt with the relevant portion of that conversation as follows:
Whilst the whole of P 8 was tendered as relevant a particular portion of the conversation was alleged to be an admission by Mr Plunkett that he had both knowledge and exercised possession or control in a relevant sense [of] the subject lobsters found at [the] home by the police a relevant portion of it was not conceded as accurate.
The portion of the conversation alleged as an admission was as follows;-
[Tarr] “I am Barry Tarr, I’m a Fisheries Officer,”
[Plunkett] “Big deal”
[Tarr]“Percy, yesterday the police gave me information that they searched your house at 10 Newton Crescent. They found a quantity of the rock lobster. Eighty-one rock lobsters were seized.”
[Plunkett] “Is that all, I thought I had more than that.”
At the time of this conversation Mr Plunkett had been in Police custody for the alleged drug offender [sic] for some 14 hours. He had been arrested by the police on the prior day 8th of December 07 and seemingly refused bail by the then relevant bail authority. The admissibility of the alleged conversation was not challenged. In cross-examination Mr Plunkett said that he did not now have a recollection of saying what in fact was alleged. In cross-examination Mr Plunkett did not deny that on listening to the audio track on the video when it was played in court that he had heard himself use the words “Is that all, I thought I had more.” However in re-examination he recanted his earlier evidence and said that during the in court playing of the video/audio he could not clearly hear the words he had used and so was not in a position to admit he had said what was alleged. As a consequence what Mr Plunkett actually said in this relevant portion of the conversations is a fact that is in dispute. Naturally I had heard what was said when the video was played in open court. Counsel agreed that I could replay the portion of the video P 8 in chambers if I thought it necessary to do so to arrive at a finding concerning what Mr Plunkett did in fact say and I did so on one occasion.
[Footnotes omitted]
Later in his reasons, the Magistrate addressed the question of whether he could be satisfied as to the precise terms of the conversation between Fisheries Officer Tarr and the appellant, concluding:
I have listened to the audio and watched the video images of this portion of exhibit P 7. I am satisfied beyond a reasonable doubt that Mr Plunkett did in fact utter the words alleged. I am also satisfied beyond a reasonable doubt that the transcript P 8 is an accurate account generally of the conversation that took place and of this passage of evidence in particular.
The Magistrate then addressed two submissions advanced by the defence. First, that the appellant had claimed in evidence that he had no recollection of these words being spoken, but secondly, if the words had been spoken, the conversation occurred when he was confused and rattled and in that circumstance that should not be treated as an admission. The Magistrate rejected the appellant’s evidence on this topic:
The remark made by Mr Plunkett was not in response to a question. Fisheries Officer Barry Tarr merely made a statement about what had been found and what he intended to do. This was not a question about what Mr Plunkett could have be [sic] confused about. It was not a question at all. The statement did not invite an answer at all from Mr Plunkett other than perhaps a simple acknowledgement of understanding of what had been said. The remark made by Mr Plunkett was made voluntarily. The response made by Mr Plunkett when considered in the context of what was said to him plainly demonstrates that he had heard and understood what had been said. I accept the likelihood of Mr Plunkett reflecting upon his predicament whilst in custody and the consequences for him of being detected for drug offending. However at the time of this conversation Mr Plunkett had already spent overnight in the police in custody. He had been in custody for about 14 hours. This remark was clearly not made in the anguish or confusion of the moment of an arrest or being placed into custody. Neither was Mr Plunkett seemingly a person inexperienced with imprisonment. He was aware of his right to silence and had exercised that right when interviewed by the police the previous evening. I am satisfied beyond a reasonable doubt that Detective Sergeant Scott gave Mr Plunkett a property receipt shortly after his arrest … nominating eighty one lobsters (thirteen of which were particularised on the receipt as undersized) that had been seized from his home. Mr Plunkett himself said in his evidence that the police had told him of the eighty lobsters found in his home prior [to] Fisheries Officer Barry Tarr speaking to him on the 19th of December 07. Consequently when Fisheries Officer Barry Tarr spoke to him the allegation of eighty one lobsters having been found in his home was not unexpected and could not have been a surprise to him. I have also viewed as well as listened to the relevant portion of the audio and video exhibit P 7 when these words were used. I have noted in particular the demeanour and manner of speaking and Mr Plunkett. It seems to me that his manner of speech and demeanour are entirely inconsistent with someone struggling with confusion or, as he would put it the product of a rattled mind. On the contrary Mr Plunkett presented in the audio video as an unruffled confident person who had sufficient composure and confidence to confront and insult. I appreciate that Mr Plunkett was told whilst in police custody of the number of lobster found by the police but he confidently claimed an awareness that there ought to have been more than eighty one lobsters and it seems to me was impliedly accusing the police of impropriety as to the balance lobsters that were he claimed missing.
On the evidence before me [it] is highly improbable that Mr Plunkett was still in some confused state or rattled by the fact of his detection and arrest after 14 hours in custody during which he had time to collect his thoughts and appreciate his predicament. I also find it highly improbable that Mr Plunkett was surprised by the allegation he had many hours to reflect upon the matter with knowledge of the fact that eighty one lobsters were found in his home.
On the appeal, it was submitted that the Magistrate was wrong to reject this aspect of the defence case. In my view the conclusions reached by the Magistrate and his rejection of this aspect of the defence case, was entirely justified and the matter was well within his fact-finding discretion.
In cross-examination, a video of the interchange was shown to the appellant and at that time he acknowledged that the relevant words had been spoken both by Fisheries Officer Tarr and himself. This time, when pressed as to what he had meant by his remark, he said it was just “a matter of speech it meant nothing”.
The Magistrate rejected this submission and in that respect reasoned:
Later in his evidence Mr Plunkett said that his remark made to Fisheries Officer Tarr was just a “matter of speech it meant nothing”.
The words Mr Plunkett used were volunteered. I have said already the words used were not in response to a question. The words used were appropriate to the context of statement made by Fisheries Officer Barry Tarr. The remark made also declared a knowledge by Mr Plunkett of the number of lobsters that ought to have been at his home namely more than eighty one. This implies knowledge of the lobsters in his home beyond what had been prior told to him by the police. I have also viewed as well as listened to the relevant portion of the audio and video exhibit P 7 when these words were sued [sic]. I have noted in particular the demeanour and manner of speaking and Mr Plunkett. Mr Plunkett’s demeanour was forceful and accusatory, it seems to me intended to conveyed [sic] an implied accusation of some impropriety on the part of the police.
On the evidence before me [it] is highly improbable that Mr Plunkett uttered these words intended to mean nothing.
On the hearing of the appeal, counsel for the appellant challenged the conclusion of the Magistrate. Counsel did little more than advance the bare assertion that the Magistrate was incorrect, and failed to develop the complaint through any meaningful reference to the transcript.
A review of the evidence of Fisheries Officer Tarr and the appellant discloses that there was no material challenge to Officer Tarr’s evidence of the conversation and in particular it was not suggested to Officer Tarr that the statement made by the appellant was simply an aside that meant nothing. The Magistrate reached the following conclusions as to the inferences that he proposed to draw from this evidence and in that respect observed:
I have on the one hand the ordinary meaning of the words used by Mr Plunkett when speaking to Fisheries Officer Tarr and on the other hand I have the alternative evidence of Mr Plunkett that he did not intent [sic] the natural meaning of the words used because he was confused or rattled and the expression used was just a manner of speech meaning nothing. I am satisfied that beyond a reasonable doubt that Mr Plunkett was not rattled or confused and that the words used were just a manner of speech that meant nothing.
It is plain that subsequent to his arrest Mr Plunkett was made aware by the police that there were eighty one lobsters found at his home. Consequently it is not surprise [sic] that he would know of the eighty one lobsters when Fisheries Officer Tarr spoke to him in the cells. However Mr Plunkett claimed that there ought to have been more than eighty one lobsters. It seems to me that a strong inference does arises [sic] that Mr Plunkett was aware of the existence at him [sic] home of lobsters of more than eighty one lobsters and that he exercised personal possession and control over them.
Whilst a strong inference arises it is an inference that has to [be] taken into account in combination with other evidence and the further circumstantial evidence before making an assessment if I am satisfied beyond a reasonable doubt that Mr Plunkett possessed at least eighty one lobsters and whether or not other inference[s] reasonably open consistent with innocence are beyond a reasonable doubt excluded.
Again it is my view that these conclusions were open on the evidence and represented findings that the Magistrate was entitled to make. No basis has been identified to undermine those findings.
I note that in the course of the appeal, it became apparent that counsel for the appellant did not have a copy of the transcript from the trial and apparently had not had the opportunity to review the transcript. I enquired whether counsel for the appellant would like the opportunity to review the transcript and he replied that he did not. Notwithstanding this response, at my suggestion, at the end of the hearing, counsel for the respondent agreed to make his copy of the transcript available to the appellant’s counsel. The matter was then adjourned and I indicated that I would call the matter on the following morning for further submissions if counsel for the appellant wished to make any further submission following his review of the transcript overnight. The appellant’s counsel as a consequence made further submissions.
Conclusion on the Conviction Appeal
My review of the transcript has allowed the conclusion that the prosecution case was overwhelming. The appellant was the co-owner of the premises where the lobster were located. The lobster were frozen. The bags had particular markings and within the appellant’s bedroom a quantity of similar, unused bags were located. The Police surveillance established that in the two weeks leading up to the seizure of the lobster, the only persons seen in and about the premises were the appellant and Ms Jackway. In particular, Mr Conron, was not seen and nor for that matter was his vehicle seen in the vicinity of the premises. It was not the respondent’s case that Ms Jackway was in possession of the lobster. The majority of the lobster were located in a freezer in a shed at the rear of the premises. The electricity supply for the freezer came from the general supply to the premises. It was not in dispute that the appellant with Ms Jackway was responsible for the payment of the electricity supply. Lobster pots and paraphernalia related to the catching of lobster were found about the premises and were the property of the appellant. Further, there was the admission made by the appellant which carried the necessary inference that the lobster were his.
I have reached the conclusion that the submission of the respondent should be accepted, that the prosecution case was overwhelming and that in those circumstances the appeal against the convictions should be dismissed.
Appeal Against Sentence
As earlier noted, the appellant had been sentenced with respect to an offence of trafficking in drugs that occurred at the same time as the Fisheries Management Act offending, to a term of immediate imprisonment of three years and six months. A non-parole period of two years had been fixed. That sentence commenced on 10 October 2008. A further period of four months was imposed on 2 July 2009 for offences of unlawful possession ordered to be served cumulatively on the sentence of three years and six months. The non-parole period remained unchanged. The appellant was released on parole in early October 2010. With respect to the offending the subject of the within appeal, the appellant was convicted on the first count, but no penalty was imposed. The reason for this was that the second offence dealt with the same lobster as the first offence.
On the second count the Magistrate sentenced the appellant to a term of imprisonment of six months. The Magistrate directed that this sentence be cumulative on the term of imprisonment of three years and ten months being served for the drug offending and that being served for the unlawful possession charge. The Magistrate extended the existing period of non-parole by a period of three months.
On the hearing of the appeal, counsel for the appellant accepted that the imposition of an immediate custodial sentence of six months was within the sentencing discretion of the Magistrate. The only complaint on appeal was that the sentence should have been ordered to be served concurrently with the drug offending sentence or alternatively partially concurrently with that sentence.
Counsel for the appellant accepted that the enactment of the Fisheries Management Act substantially increased the penalties for the taking of fish in contravention of that Act as compared to the penalties available under the previous legislative scheme. The reason for the increase in penalty is identified in the second reading speech, where the Minister for Agriculture, Food and Fisheries observed:[17]
This Bill has greatly increased the penalties for breaches of the fisheries legislation. The last 24 years have seen major increases in value of our major species and therefore the incentive to operate illegally. This Bill addresses the imbalance between the penalties and the impact of illegal activity, both in terms of damage to the fish stock, but also of impact on the economic potential of the industry. Most of the offences in the Bill are summary offences that have a maximum penalty of $120,000 and/or 2 years imprisonment, but the Bill also creates a number of new minor indictable offences. These indictable offences pertain to serious criminal and fraud activities related to the sale and purchase of fish taken illegally. A new offence of trafficking of priority species, such as abalone and rock lobster, will allow for organised criminal elements to be effectively dealt with. Illegal proceeds from the sale of fish will be traced with the potential for their confiscation on successful prosecution.
[17] Hon R.J. McEwen, House of Assembly, Thursday 26 October 2006, pg 1166.
The appellant has an appalling antecedent record; he has served terms of imprisonment on 17 occasions. A number of those terms relate to offences of dishonesty, including burglary. On a number of occasions, the appellant has been sentenced to several years in custody.
The appellant’s criminal antecedents include an earlier offence of taking fish in contravention of the now repealed legislation, which carried significantly lower penalties. The offending the subject of the present proceedings involved a substantially greater number of lobster. In relation to the earlier offending, the appellant had been sentenced to a lengthy period of community service. That offending occurred only a few years before the present offending. The monetary penalty imposed and the order for community service made, should have acted as a personal deterrent. It is evident that the penalty and the reminder through the ongoing community service did not deter the appellant from further offending.
The offending the subject of this appeal was of an entirely different character to the offences of drug trafficking. There is nothing about the circumstances of the offending that would support the imposition of concurrent or partially concurrent sentences.[18] The respective offending involved separate, distinct and unrelated incursions into crime. In my view the contention that error occurred by not ordering concurrency or partial concurrency, should be rejected. It was open to the Magistrate to proceed as he did, and in my view in the circumstances of this matter, it was the appropriate course to take.
[18] Although there is no one correct approach or no definite criteria, it has been held that, generally speaking, where the offences are part of one course of multi-faceted criminal conduct, concurrent sentences will likely be appropriate and, where there are two or more distinct incursions into criminal conduct, cumulative sentences will be appropriate: see Attorney-General (SA) v Tichy (1982) 30 SASR 84. So long as an offender is not penalised twice for the same conduct, the question of whether sentences should be cumulative or concurrent has no material relevance if the final sentence is within the permissible range for the offending: R v Power [2003] SASC 288 at [2].
As the Magistrate was obliged to consider an appropriate extension to the non-parole period, it follows that the principle of totality arose for consideration. In my view there is nothing about the sentence or the non-parole period that could be described as crushing.
One Final Matter
The appellant complained about the following part of the order made by the Magistrate, arguing that it was excessive and oppressive in that it, in effect, prohibited the appellant purchasing and consuming lobster:
[the defendant be] prohibited from being in possession of an aquatic resource of a specified class, namely rock lobster (of all species) for a period of five (5) years
Although at a time I considered, and intimated, that I might allow the appeal for the purposes of varying the terms of the above paragraph of the Magistrate’s order, on reflection, I have decided not to do so. In this respect, it is perhaps relevant to note that part of the appellant’s case at trial was that the lobster the subject of the charge were not his, as he did not eat lobster. It remained the position on the hearing of the appeal that he did not eat lobster.
The appeal against sentence is dismissed.
Conclusion
The appeals against convictions and sentence are dismissed.
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