Police v Brown and Sankovic

[2009] NSWLC 24

Local Court of New South Wales

CITATION:	Police v Brown and Sankovic [2009] NSWLC 24
JURISDICTION:	Criminal
PARTIES:	NSW Police Brown Sankovic
FILE NUMBER:
PLACE OF HEARING:	Blacktown Local Court
DATE OF DECISION:	01/30/2009
MAGISTRATE:	Magistrate Brown
CATCHWORDS:	Hinder discovery of evidence
LEGISLATION CITED:	Crimes Act 1900, s 315(1)(b)
CASES CITED:	Leonard v Morris (1975) 10 SASR 528; R v El-Zeyat [2002] NSWCCA 138 The Queen v Taufahema [2007] HCA 11 Worsley v Aitken Taufahema v R [2006] NSWCCA 152
TEXTS CITED:
REPRESENTATION:	Sergeant Parker for the Prosecutor Mr Warwick for the Defendants
ORDERS:

Police v Brown and Sankovic

Blacktown Local Court

[1] To a very large degree, the facts in this matter are not in dispute. On the night of the 13th of July 2008, a gentleman by the name of John Scanlon was riding a motorcycle belonging to the Banditos motorcycle club on Stoddart Road in Blacktown. It appears that, in the course of that ride, he was shot by a person or persons presently unidentified. He was conveyed by some means to the home of Danny Sande, the club president, in Seven Hills where he was treated by ambulance officers and subsequently conveyed to hospital. His motorcycle was left at or near the scene of the shooting.

[2] The defendants, Mr Brown and Mr Sankovic, were summoned to the club president's home. They were instructed to recover the motorcycle that Mr Scanlon had been riding and they set off in a ute to the area of Stoddart Road with that intention.

[3] By the time they arrived at Stoddart Road, the police had been alerted to the shooting, and had closed both ends of Stoddart Road, with the intention of searching that area for any material that might provide evidence.

[4] It would appear that Mr Brown and Mr Sankovic were not provided with registration details for the motorcycle. However, it was Mr Brown's uncontested evidence that the motorcycles of the Banditos club were quite distinctive in their handgrips, footrests and other accessories. It is also apparent that, by the time Mr Brown and Mr Sankovic reached Stoddart Road, the police had not located the motorcycle in question and they too had no idea of its registration details.

[5] After some conversation with police officers, the details of which I will return to, and without entering the closed off area of Stoddart Road, the defendants proceeded to search the surrounding area and located a Banditos motorcycle in the parking lot of a nearby McDonald's restaurant. They loaded the motorcycle onto the back of their ute, secured it, and proceeded to drive back towards the club president's house at Seven Hills. In the course of this journey they were stopped by police.

[6] The defendants were each charged under s 315(1)(b) of the Crimes Act 1900, which relevantly provides:

“315 Hindering investigation etc

(1) A person who does anything intending in any way to hinder:

…

(b) the discovery of evidence concerning a serious indictable offence committed by another person, or
…

is liable to imprisonment for 7 years.

(2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence.

(3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence.”

[7] S 315(1)(b) requires the prosecution to prove two things: (a) that the accused did something, and (b) that at the time of the accused’s doing that thing he or she intended in some way to hinder the discovery of evidence concerning a serious indictable offence committed by another person. The following points regarding the operation of this section seem tolerably clear:

1. The prosecution must prove that the accused did an act: the language of the section does not seem to be applicable to omissions or statuses.

2. The prosecution must prove that the defendant was aware in a general way of the nature of the serious indictable offence to which the evidence might relate (see R v El-Zeyat [2002] NSWCCA 138, per Wood CJ at CL, Dowd J concurring);

3. The prosecution must prove, and prove beyond reasonable doubt, that the defendant intended to hinder the discovery of evidence;

4. Hindrance in the present context means “any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance”: see Leonard v Morris (1975) 10 SASR 528 at 530-532, Worsley v Aitken & Anor per Sully J; Adams J, with whom Beazley JA and Howie J agreed in Taufahemav The Queen [2006] NSWCCA 152, cited with apparent approval in the joint judgment of Gleeson CJ and Callinan J in The Queen v Taufahema [2007] HCA 11 at [25];

5. Actual hindrance is not an element of the offence;

6. The prosecution does not have to prove that what the accused did had any impact at all on the discovery or non-discovery of evidence. Any proper investigation of a suspected serious crime necessarily involves the exclusion of material of no evidentiary value as much as it entails the inclusion of material of evidentiary value. Consequently, provided the accused possessed the requisite intention at the time of the relevant act, it is immaterial whether their act did or did not in fact hinder the discovery of evidence.

[8] Mr Warwick for the defendants argued that, in order to prove that the defendants intended to hinder the discovery of evidence, the prosecution would have to prove beyond reasonable doubt that each defendant was aware that the act he was doing could amount to such hindrance. If, for example, a person at a crime scene picked up and removed a cigarette butt believing that it could have no possible bearing on any aspect of the crime being investigated, then that person could not be convicted of hindering the discovery of evidence. In the language of foresight, Mr Warwick argued that the prosecution has to prove beyond reasonable doubt that the defendant foresaw the possibility that his or her act might hinder the discovery of evidence.

[9] In fact, the test seems likely to be stricter, and to require the prosecution to prove beyond reasonable doubt that the defendant foresaw with certainty that his or her act might hinder the discovery of evidence. Such a conclusion is certainly consistent with the legislative choice of the words "does anything intending" to hinder. However, it was Mr Warwick's argument that, whatever the test, it had not been met by the evidence in the present case. It was Mr Warwick's argument that the defendants had attended the scene at the direction of their club president to recover a club motorcycle. Having been told by the police not to enter a particular area, they did not in fact do so. It was their expressed belief in oral testimony, although without supporting evidence, that the police had already taken control of a bloodstained motorcycle, and that the motorcycle they were removing from the McDonald's car park was not a motorcycle being sought by the police. In these circumstances, the terms of the conversation between Mr Brown and and Detective Papandrea assume critical significance.

[10] In his statement, which became Exhibit 1 without objection, Detective Papandrea described the conversation as follows,

"I said, “What are you to guys doing down here"?

Brown said, “We got a call to come and get a bike, that's all I know".

I said, “Which bike would that be?"

Brown said, "I don't know you tell me?"

I said, " Who asked you to come and get the bike"

Brown said T"Danny"

I said “Would that be Danny Sande”?

Brown said “It might be".

5. I walked away from Brown and Sankovic and had a conversation with Inspector Dale. I then walked back over to Brown and Sankovic.

I said, “So where is this bike supposed to be boys"?

Brown said, “You tell me, I just came down there to pick it up"?

I said “That's fine but I'm asking you if you know where the bike is"

Brown said “You're the police you tell me, I don't know which bike you are talking about"

I said “Well listen up, there has been a shooting yesterday, one of your mates is in the hospital, if you're here to pick up his bike that's not going to happen. There has been an indictable offence here so no one is taking anything from this area, if you know where the bike is the let us know, or you'll be committing an offence which you can be arrested for".

Brown said “What's an indictable offence"

I said "let's just say it's a serious offence, your mates John was shot here today, we are trying to investigate this matter, to help your mate so we are talking about offences like, Shoot with intent, that's what's called an indictable offence, if you interfere then you commit an offence for hindering an investigation for an indictable offence"

Brown did not reply to that, he judged two shoulders and walked back a little. I then walked back and spoke again to Chief Inspector Dale.

6. I walked back over to Brown and Sankovic and spoke to them both.

I said, "here is a deal guys, no one is moving any bikes away from this area while we are of conducting an investigation, if you know where the bike is then tell us now or get in your car and leave".

Brown said, "I don't know which bike you are talking about".

I said, “The one that your mate was riding when he was shot, the one that Danny told you to come and get"

Brown said "I don't know who you're talking about".

I said "I see so who told you to come down here then”

Brown said, "I can't remember I'm just here to pick up some bikes".

I said “Which bike taken here for"?

Brown said, "Youse are the ones investigating you tell me"

I said, " this conversation is going nowhere fast, jump in your ute and tell Danny that no one is getting any bikes tonight, if you remove anything from the scene then you'll be arrested okay"

Brown and Sankovic then got into their ute, it was at this time I noted down the rego number of the ute to be XIH-444.”

[11] There can be no doubt that it was made clear to Mr Brown and Mr Sankovic at Stoddart Road that the police were interested in locating a motorcycle. It was also known to Mr Brown and Mr Sankovic that one of their fellow Banditos club members had been shot and brought back to the president's home address: they had in fact seen him there. It was his bike they were being sent to recover. There certainly seems to have been no suggestion that there were any other unclaimed Banditos motorcycle club bikes in the vicinity of Stoddart Road on the night of 13 July 2008. These facts are established beyond reasonable doubt quite independently of the important evidence of conversations that are at the heart of the prosecution’s case.

[12] In Detective Papandrea’s account, nothing was said by the police as to whether it was a Banditos club motorcycle, nor was any particular motorcycle identified by registration particulars, or otherwise described by the police officers. On the other hand, Detective Papandrea says that he did tell the defendants that the bike the police were looking for was the bike of the person who had been shot, John Scanlon.

[13] If the Detective Papandrea's version of events is accepted as accurate, the prosecution's case is very strong. But there are several other versions of conversations that took place at Stoddart Road, and their accuracy also needs to be closely examined.

[14] The second witness for the prosecution was Detective Constable Harris. His official statement was made on the 28th of August 2008, well over a month after the events in question, apparently without the benefit of any contemporaneous notes or other aids, and was rightly not tendered in evidence. Constable Harris's evidence was that he approached Mr Brown and Mr Sankovic at Stoddart Road and asked them “What can you tell me about the shooting?". He indicated that both men said they didn't know anything about the shooting and that they were just there to pick up a bike. In response to the statement, Constable Harris’ evidence is that he said:

"And I said “Whose bike would that be?". And then Mr Brown said, “You know whose it bike would be". I said, “The fellow that got shot?". And he said, “Yes". I then said that they would not be allowed to collect the bike because it had; the information we'd received it had been involved in a serious offence and the police would be seizing it for examinations. I believe Mr Brown then said, "What if the owner doesn't want the police to seize the bike"? and I informed him of our powers because I had informed him that the incident was a strictly indictable offence.

…

To the best that I can remember -- it like, they’ve asked me what we need it for. And I said, “There may be evidence on the bike that can assist us in the investigation".

…

I said, "Guys, we're going to seize the bike as evidence and I'm warning you that you're not allowed to collect it because if you do you will be committing an offence and you may be charged with hindering the police investigation". (Transcript 28 to 30)

[15] Constable Harris was not a particularly impressive witness. His memory of the events of 30 July 2008 was seriously at odds with the evidence of Detective Papandrea, who had made and relied upon contemporaneous notes. No doubt this was mainly due to his own lack of contemporaneous notes, and the delay in preparing his statement. At times his answers showed a degree of the evasiveness that detracted further from his credibility. Although he generally maintained his version of the conversations with the defendants during cross examination, his evidence was, in my view, clearly less reliable than the evidence of Detective Papandrea. I think it is fair to say that, wherever his evidence is inconsistent with that of Detective Papandrea, I prefer Detective Papandrea's version of events.

[16] Of the defendants, Mr Sankovic exercised his right to silence and did not give evidence. This was a course he had followed consistently throughout these events, and no adverse conclusion can possibly be drawn against him from exercising his rights.

[17] Mr Brown elected to give evidence on oath. His version of the conversation with Detective Papandrea was somewhat different, and went as follows (Transcript page 50-his 51):

“Q. So you had a conversation with Detective Papandrea?

A. Yes I did.

Q. Was that in the location of Stoddart Road and Prospect Highway?

A. Yes.

Q. To the best of your recollection would you put in words what you said and what the Detective said?

Q. Okay. I was directed to go to pick up a motorcycle.

His Honour

Q. Can you just answer the question you were asked please?

A. Could you repeat that again.

WARWICK

Q. What I want you to do is to the best of your ability put it in the words that you said to Detective Papandrea and what the Detective said to you. Do you understand what I mean?

A. Yes.

Q. I said, he said?

A. The bike was in police custody and nothing was to be removed from the Stoddart Road area.

Q. Did the Detective say anything further?

A. I said ‘Why?” and then he said “Because it was to be kept for forensics because it was dropped and had blood on it”.

Q. Was anything else said?

A. Whilst the conversation went on I was on the phone to Danny Sande which Papandrea said “Was that Danny Sande?”, because I was having a three-way conversation.

Q. Yes?

A. And then I told him “No we can’t get it” and I hung the phone up and then we got told we couldn’t move the bike, they were keeping it. Nothing else was said.

Q. What you were told by the Detective at that time, what did you understand that to mean?

A. They had a bike in custody that had been dropped with blood on it and they wanted to keep it for forensics.

Q. And was there anything about that particular bike you thought they had in custody which related to the shooting?

A. I didn’t know anything - I didn’t know what bike it was, I didn’t know anything about the shooting, what had actually happened, all I knew is I went down there to pick a bike up and then the police had it in custody so.

Q. What I’m asking you is what you believe from what you were told what did

you believe about that particular bike in regard to the shooting if anything?

A. That that was the one that they had.

Q. Following your conversation with - was there further conversation?

A. I don’t recall.

Q Following that conversation did you leave that area?

A. Yes.

Q. How did you leave?

A. I got told I wasn’t allowed to go down further to the end of the street, so we reversed back up around, proceeded back up onto Prospect Highway.

Q. And then - so you were in your vehicle, you returned to your vehicle?

A. Yes, yes.

Q. Did your co-accused also get into the vehicle with you?

A. Yes.”

[18] On Mr Brown's version of the conversation, he had been told by the police that they already had a bike they were interested in in police custody. This conversation was not confirmed by either Detective Papandrea or by Constable Harris. Even if it did occur as stated, this conversation does not exculpate the defendants, because it does not exclude the possibility that more than one motorcycle might have been involved and that the police would be interested in all such motorcycles.

[19] However, this version is somewhat unconvincing. The Banditos is a motorcycle club of some public notoriety and, like all the major motorcycle clubs in Australia, it is noteworthy for the handsome, well maintained, highly customised and highly expensive motorcycles that its members ride. There was never any dispute that Mr Scanlon was riding a Banditos club motorcycle around the time he was shot. There was no evidence from any witness of any other person riding a Banditos club motorcycle in that area on that night: certainly, had any other person been doing so, one might have expected that fact to be known to the club president and other club members. Consequently, if Mr Brown had genuinely believed that the police had taken custody of the motorcycle that had been ridden by Mr Scanlon,he would have known that his errand was futile because there were no other club motorcycles in the vicinity for him to recover.

[20] It must not be concluded from the foregoing that the defendants have anything to prove: quite clearly, they do not. The prosecution bears the burden of proving its case from first to last beyond reasonable doubt. However, because the defendants’ states of mind are of such importance to the present case, on either side, it is open a trier of fact to infer a desire on the part of a defendant to conceal the true facts if an illogical and unconvincing explanation of critical events is offered by that defendant.

[21] It is important to note that, Mr Sankovic said nothing of any relevance to the police, and so he cannot be held to have any responsibility for the contents of Mr Brown’s statements. Nevertheless, he was a party to all the original dealings at the club president’s home, and present at all the conversations between Mr Brown and the police, apart from the ERISP which became Exhibit 3. It follows that he was aware of everything that the police, particularly Detective Papandrea, said to Mr Brown, and everything that Mr Brown said to the police. At no time did he distance himself from what Mr Brown said regarding both men acting on the club president’s orders, so one is entitled to infer, at the very least, that he, like Brown, intended to carry out those orders regardless of whether it hindered the police or not.

[22] In the light of this evidence, analysis of the requisite mens rea in terms of foresight is particularly useful. It may have been the intention, in the form of the desire, of Mr Brown and Mr Sankovic, simply to recover the bike and return it to the club in accordance with the club president’s orders. However, knowing as they undeniably did that (a) the police were looking for the Banditos club bike that had been ridden that night in Blacktown by John Scanlon, (b) that bike was being sought because it might provide evidence relating to the shooting of John Scanlon, (c) no other unclaimed Banditos club motorcycles were reported in the vicinity and (d) removing the bike would deprive the police of any chance to examine it, one is compelled to the conclusion that the defendants foresaw with certainty that their act of removing the bike might hinder the discovery of any evidence the bike could provide, and that consequently they removed the bike intending to so hinder the discovery of any such evidence .

[23] There is no real issue that the investigation involved potential serious indictable offences, particularly in the light of s 315(2), or that the accused were expressly made aware both of the general nature of the alleged offences and of the likelihood that they were in the category of serious indictable offences.

[24] Despite some faint argument on the part of the defendants, the matters does not come within the scope of the excuplatory provision in s 315(3). The prosecution allegation is not that the defendants failed to divulge information, but that they did an act (removing the motorcycle) with the intention of hindering the discovery of evidence. As I have already noted, Mr Sankovic exercised his right to silence, but no proof of any element of the charge turns on that.

[25] Consequently, I find the charges proved beyond reasonable doubt against both defendants.