Police v Frunks - [2014] SASC 151

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v FRUNKS
[2014] SASC 151
Judgment of The Honourable Justice Peek
16 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - STATUTORY DECLARATIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - WHERE MAKER OF STATEMENT NOT ATTENDING AS WITNESS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for driving while disqualified.
After a trial before a Magistrate, the appellant was convicted of one count of driving while disqualified contrary to s 91, Motor Vehicles Act 1959. The prosecution case was that the appellant was the driver but moved from the driver’s seat to the front passenger seat where police located him. The defence case was that the car was driven by his then friend, Noble, who dived from the driver’s seat into the backseat and that the appellant moved across from the front passenger seat to apply the handbrake to prevent the car rolling forward and then resumed his initial position. Counsel for the appellant at trial twice attempted to tender a statutory declaration sworn by Noble in which he confessed to being the driver but its receipt was opposed by the prosecutor and refused by the Magistrate without reference to s 34KA, Evidence Act 1929, pursuant to which it could have been admitted. The appellant appealed.
Held per Peek J (allowing the appeal):
1. The trial miscarried in that the Magistrate failed to address s 34KA, Evidence Act 1929 and to properly determine whether the statutory declaration was admissible in evidence. [13], [19]
2. The conviction, sentence and all other orders made by the Magistrate are set aside.
3. The complaint is to be re-tried before a different Magistrate.
Motor Vehicles Act 1959 s 91; Evidence Act 1929 s 34KA, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"confession", "statutory declaration", "admissibility of evidence", "out of court statement", "unavailable witness"

POLICE v FRUNKS
[2014] SASC 151
Magistrates Appeal

PEEK J. Appeal against conviction for driving while disqualified.
After a trial before a Magistrate, the appellant was convicted of one count of driving while disqualified contrary to s 91, Motor Vehicles Act 1959. He appeals against that conviction.
The circumstances of the alleged offending
As at 2 June 2013, the appellant was disqualified from driving. It is alleged that on the night of 2 June 2013 in the outskirts of Angaston, the appellant drove his car from the Brauhaus Hotel (the Hotel) along Penrice Road where it was stopped by police officers who had been following it from the Hotel car park. On stopping the car, police officers observed movement inside the cabin and at least one of the officers stated that she saw a person moving from the driver’s seat to the front passenger seat as the car came to a stop. Police located the appellant in the front passenger seat where he was apprehended. A passenger was then seen to be lying on the backseat.
The appellant’s case
The appellant denied from the outset that he was driving. He agreed that he was disqualified from driving and stated that he had continued to maintain registration of the car for the use of others. On this night, Noble, a then friend of the appellant, had driven them together to the Hotel in the appellant’s car and Noble had retained the keys. Both of them had become intoxicated and the appellant had attempted to dissuade Noble from driving them home and had organised for his girlfriend to collect them. However, Noble was adamant that he was going to drive them home and became highly abusive; the appellant very reluctantly entered the front passenger seat to avoid a physical fight over the matter. When the car was pulled over by police, Noble dived from the driver’s seat through the gap between it and the front passenger seat to the backseat. In doing so, Noble had taken his foot off the brake and the car began to roll forward. The appellant then moved from his seated position in the front passenger seat over to the right to apply the handbrake and then moved back to the left. It was the defence case that the police saw general movement in the car, including his last movement to the left after applying the handbrake, and misinterpreted it as a movement of the driver from the driver’s seat to the front passenger seat.
The appellant’s case was further that Noble had initially agreed to testify that he had been driving and that on 6 June 2013, Noble had sworn a statutory declaration (the statutory declaration) stating as follows:
To whome it may concern,
I Paul Noble wish to confess I was the driver that jumped from the driver seat to the back seat and pretended to be asleep. I understand that Toby Frunks has been accused. I Paul Noble was driving the vehicle STA 805 on 2/6/13 wen pulled over by the police.
I hearby state that I was the driver Toby was always a passenger.
The appellant’s case was that he had unsuccessfully attempted to secure Noble’s attendance at trial to give evidence; and that he did not know where Noble could be found for the purpose of serving a subpoena on him to force him to attend.
The course of the trial
The appellant gave evidence at trial as to his defence and also as to the steps he had taken to attempt to secure the attendance of Noble to give evidence. In examination he stated:
QWhy were you with Paul Noble on this night? Who is he?
APaul – he was a mate that I’ve known for several years. I met him through other friends. I actually lived with him for a short period of time. He just sold his house and moved interstate. He was travelling around Australia and had come back to Adelaide to stay with me for a short period of time, for a few days.
…
QNow this Paul Noble you got an Affidavit from –
AI do, which is right there on the bench.
Q– have you tried to make contact with him in recent times?
AI have.
QDo you know where he’s living?
AI don’t know his exact address. I know that he’s hovering around his mother’s home in Victoria and that’s all I know at the moment.
QYou asked him to come to court?
AYes, I have.
QYou’ve asked him several times to come to court?
AYes.
QThis matter had been listed before for trial and you’d asked him to come to court and this matter has also been in the Magistrates Court on other occasions. I understand the first time –
OBJECTION: APP GALLIE OBJECTS
OBJECTION OVERRULED
QThe first time this matter was in court was for a bail application?
ACorrect.
QWas Mr Noble present then?
AYes, he attended my first bail. Yeah, he was there, he was there, yep.
QYou made arrangements or told him of the previous court appearance which was sometime – a few months ago, is that right?
AYeah, yep, there was two bail hearings and they were four days apart.
QHave you made any contact in recent times with him?
AYes, I’ve tried really hard to get him to front up. He said that the stat dec should be enough and he’s obviously worried about being charged himself, but like I said he’s just sold his house and he’s travelling at the moment. The last thing he wants to do is be in custody and even though he was a mate, he’s just not seeing past that.
In cross-examination he stated:
AHe, like I said, he was – he sold his house, went travelling around. He wanted to come back and spend a few days with me. So I allowed that. The places that he hadn’t been in South Australia, that is why he is travelling and so we decided to come out this way. There was never a decision of mine to let Paul drink and drive. He is obviously – I am the one who is arguing with him that he can’t and organising alternative transport.
QWhat I am trying to understand is you know this man drinks every day, you know you were disqualified so you can’t drive the car. Why would you go to a hotel, allowing him to drive your car there?
AOkay. He moved – he had gone travelling, so I hadn’t seen him for a month or two. This day that we spent together was the first day I had seen him in a few months and the reason I am saying that he drinks every day because – my first bail hearing, he was there waiting outside the courtroom to come in and tell the judge that he was driving. This is why I say that he drinks every day and he can’t control it. Because he got asked to leave the courthouse because he was intoxicated. He couldn’t even stay sober to get his mate out and correct the situation. You know, I had my partner spend three or four days with him while I was in custody, you know. And this is her ringing him ‘Paul you gotta come, we gotta go to court’ and whatnot and he’d turn up drunk and all this sort of stuff and –
QThat’s exactly my argument. You know that he is a drinker like this?
ANo this is apparent to me now that I can’t trust him because he couldn’t even do the right thing by his mate. As far as I was aware he’d been out, he’d got rid of the stresses in his life. He’d sold his house where his kids grew up and he was going to find a new path and try and start a different life. And then obviously the first day I spend with him he framed me for driving and can’t even turn up to court sober.
…
QWe’re talking about Mr Noble, you said you’d been trying to get in contact with him, you mentioned something about his mother’s house?
AYes.
QWhereabouts is that?
AI don’t have the address for it.
QBut whereabouts is it?
AIn Victoria. I have been told the town before but I just cannot remember it.
QWhen was the last time you spoke to him?
AAbout a month ago.
QSo you’ve got a mobile phone number for him then?
AI do, yes.
QWhat was the conversation a month ago?
AIt wasn’t a good one actually, he threatened me.
QHow was that?
AHe said ‘I’ll break your knees and slit your throat.’
QHow did that come about?
ABecause he – that was pretty much the first thing he said, [when] I rung him.
QHave you got any idea why he may have said that?
ABecause he was – he sounded really drunk at the time.
QSo what was your response to that?
AI hung up.
QAnd the time before that, what was the conversation?
AMost of it would have been that he was – well I’d asked him to come to Adelaide to be in court and he said, you know, he said ‘Get prosecutions to ring me’ and I don’t know I’ve spoken to Mark[1] about this and we’ve tried to call him when I’ve had a meeting with Mark and we haven’t been successful but the phone calls up until the last he was saying ‘Yes, you know, you’re a mate and I’m going to do the right thing’ and what not and he was sort of relying on the stat dec that he signed for him to avoid actually having to be in court. He said that he would do the right thing and, you know, didn’t want me to be in this position.
QYet the last phone call you made he said he was going to break your legs and slit your throat?
AThat was the last one, yes.
[1] Mark Twiggs, the appellant’s solicitor.
At the conclusion of the appellant’s evidence his solicitor attempted to tender the statutory declaration sworn by Noble and the transcript is as follows:
MR TWIGGS:    Your Honour, I seek leave to tender a statutory declaration of Paul Noble.
HIS HONOUR:    Can I hear the rest of your application for leave to tender that?
MR TWIGGS:    The reasons for?
HIS HONOUR:    Yes.
MR TWIGGS:    Well the reasons are obvious, whether I can or not are not as obvious but I’m seeking leave to tender the statement of Paul Noble to try to assert evidence about and which the prosecution have had for a long time, I don’t know how long, a long time.
HIS HONOUR: What provisions of the Evidence Act or the law do you seek that course of action?
MR TWIGGS:    Well you can tender most things, whether it’s tenderable or not is the argument. I’m not quite sure of the – sorry I had it a while ago.
HIS HONOUR:    You see I have heard evidence of the unavailability of a witness.
MR TWIGGS:    You have, that he is not available, yes.
HIS HONOUR:    But I was never asked about that because -
MR TWIGGS:    I will be making some comments on that after.
HIS HONOUR:    I welcome any comments you wish to make but unless and until that statutory declaration is with the consent of the prosecution I am not inclined to receive it as an exhibit.
MR TWIGGS:    I don’t want to mount any further argument on it.
HIS HONOUR:    Was that statutory declaration, which is an out of court sworn statement, right?
MR TWIGGS:    Yes.
HIS HONOUR:    Was that served on the prosecution under firstly Rule 35 of the Magistrates Court Criminal Rules?
MR TWIGGS:    Not formally it wasn’t, it was given to them that day, they know of it or they’ve got a copy of it.
HIS HONOUR:    I was told at the beginning that prosecution have obtained a statement from Mr Noble, right?
MR TWIGGS:    No, the only statement that I understand they have is –
HIS HONOUR:    And that they have given you a copy of a statement?
MR TWIGGS:    No. The only statement that I know of is this statutory declaration that I’m talking about. I think that’s right, isn’t it?
APP GALLIE:    No, as I said I had originally intended to call Hanson in relation to the conversation he had but I’ve declined to do that.
MR TWIGGS:    It’s not a police statement.
HIS HONOUR:    I see.
APP GALLIE:    And defence provided me with a copy of this statutory declaration at my office and I’d been advised that we –
HIS HONOUR:    What Mr Twiggs intends to tender is a statutory declaration. It’s a statutory declaration mentioned by your client in the course of his evidence.
MR TWIGGS:    Yes.
HIS HONOUR:    Is that the statutory declaration that you intend to tender?
MR TWIGGS:    Yes.
HIS HONOUR:    Do you consent to the court receiving that statutory declaration as an exhibit?
APP GALLIE:    Your Honour I don’t object to it on the basis that it can be received as per the evidence of Mr Frunks however I do object to the veracity of it, the accuracy of it but I’m not able to cross-examine the witness. We don’t know where that’s come from or who that’s come from other than, I might say serving comments –
HIS HONOUR:    As high as I am prepared to only allow you to tender as an exhibit is marked for identification because on the basis of your client’s oral evidence that Mr Noble had provided a statutory declaration. Other than that I’m not in a position to make any different than is stock in terms of –
MR TWIGGS:    I understand that. I ask you to mark for identification the statutory declaration of Paul Noble dated 6 June 2013.
APP GALLIE:    Purportedly of Paul Noble.
MR TWIGGS:    No, there is a police officer who witnessed it.
MFI #D1 Original copy of statutory declaration by Paul Noble dated 6 June 2013 referred to in the evidence of dw1 marked for identification.
It appears from this exchange that neither the appellant’s solicitor, nor the prosecutor, nor the Magistrate were aware of the existence of s 34KA, Evidence Act 1929.
The Magistrate then granted an adjournment until 15 May 2014 to provide the appellant an opportunity to subpoena Noble to attend to give evidence. It appears that the trial in fact resumed on 30 June 2014. On that day the transcript is as follows:
MR TWIGGS: An adjournment was granted so that we could serve a subpoena on Mr Noble. We were unable to get [an] address to serve Mr Noble and so no subpoena was sought as we can’t serve it on him and as such we close our case and ready for submissions.
Discussions between his Honour, APP Gallie and Mr Twiggs.
Mr Twiggs makes application for affidavit of Mr Noble, MFID1 to be tendered.
Prosecution oppose application.
HH declines to admit the contents of the statutory declaration marked as MFID1.
Case for Defence.
The prosecutor and the solicitor for the appellant proceeded to give final addresses. At their conclusion, his Honour adjourned for 14 minutes and then delivered judgment ex tempore, finding the appellant guilty.[2]
[2] On a later date the Magistrate sentenced the appellant to eight weeks imprisonment (unsuspended) and ordered him to pay vehicle impound fees ($103.60), victims of crime levy ($160) and prosecution costs ($100) and granted bail pending the outcome of this appeal.
Thus, both attempts to tender the statutory declaration failed with no attention at all being given to s 34KA, Evidence Act 1929.
The appeal to the Supreme Court
At the hearing of the appeal on 11 September 2014 counsel for the appellant (who did not appear at trial) substituted the following amended grounds of appeal:
1.     The Learned Magistrate failed to provide adequate reasons.
Particulars
1.1    The Learned Magistrate failed to adequately articulate how he approached his assessment of the credibility and reliability of the prosecution and defence witnesses.
2.The Learned Magistrate failed in making findings of credibility and reliability of the prosecution witnesses without having regard to all of the evidence.
3.     The Learned Magistrate erred in his application of the burden of proof.
Particulars
3.1    The Learned Magistrate embarked upon an erroneous approach in basing his verdict upon the relative persuasiveness of the prosecution witnesses and the appellant.
4.The Learned Magistrate erroneously refused the admission of admissible evidence contrary to s 34KA of the Evidence Act 1929 so as to result in a miscarriage of the trial.
5.     The evidence cannot support a finding of guilt beyond reasonable doubt.
I have come to the view that ground 4 of appeal must succeed and that in the circumstances it is sufficient to refer to only one of the other grounds of appeal.
Ground 4 of appeal: the Magistrate’s refusal to admit the statutory declaration
Section 34KA, Evidence Act 1929 provides as follows:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1)     Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)the person who made the out of court statement (the relevant person) is identified to the court’s satisfaction; and
(c)     any 1 of the conditions specified in subsection (2) is satisfied.
(2)     The conditions are as follows:
(a)     that the relevant person is dead;
(b)that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c)that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d)that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e)that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3)     For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4)     Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a)any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b)     the statement’s contents; and
(c)any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross‑examine the person); and
(d)any other measures that could be taken by the court in relation to the relevant person; and
(e)     any other relevant circumstances.
(5)     A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a)by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b)by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6)     Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7)     This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8)     In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b)proceedings under the Serious and Organised Crime (Control) Act 2008.
The statutory declaration sworn by Noble

It is clear that the proceedings were “prescribed proceedings” within the meaning of s 34KA(8)(a) and that the contents of the statutory declaration would have been admissible if given as oral evidence: s 34KA(1)(a). It is also clear that the person who made the out of court statement has been identified within the meaning of s 34KA(1)(b) in circumstances where the statutory declaration had been witnessed, signed and dated at Elizabeth police station by a “proclaimed police officer” who provided her rank and badge number; the prosecution do not dispute that it was Noble who swore the statutory declaration.
The admissibility of the statutory declaration really depends upon whether the appellant can bring himself within s 34KA(2)(c) or s 34KA(2)(d). In my view, there was evidence before the Magistrate which could have satisfied at least the condition in s 34KA(2)(d).
Since the Magistrate failed to have regard to the relevant matters, the appeal necessarily succeeds and there must be an order for a re-trial unless the appellant can satisfy me under ground 5 of appeal that I should acquit the appellant and dismiss the complaint. Having considered that ground, in the present case, I am not prepared to acquit; I consider that the appropriate order is for a re-trial.
On the appeal, I received affidavit evidence from the appellant’s solicitor as to the efforts that were made to locate Noble. I accept that evidence. I also heard the appellant give oral evidence on that same topic only and undergo cross-examination. I found him to be a satisfactory witness on that topic. I consider that the evidence that was given at trial and the evidence given on appeal does satisfy the requirements of s 34KA.
However, I should say something as to the position if there is to be a re-trial. On a re-trial, Noble can be subpoenaed and called as a witness. However, if the appellant were to assert at a re-trial that he wishes to call Noble, but is unable to do so, then the whole matter of s 34KA, Evidence Act 1929 will have to be revisited if the appellant then wishes to tender the statutory declaration. For example, the question of whether the appellant has taken “such steps as it is reasonably practicable to take to find him” will have to be answered in the light of the situation at the time of the re-trial and the matter of what steps the appellant has, or has not, taken between the time of the publication of this judgment and the re-trial will be important. I consider that South Australia Police, if properly requested by the appellant, should assist him to locate Noble but the appellant must be expert and proactive in all of his endeavours, including seeking such assistance. The details of attempts to find Noble (and to serve him with a subpoena etc.), and the recording of communications with South Australia Police and any other agency, should be recorded and maintained in a much more assiduous way than has hitherto been done in this case.
I should also add that the reception into evidence of that statutory declaration at a re-trial would do no more, and no less, than constitute evidence that must be considered by the Magistrate in the same way as if that evidence were to be given by Noble himself. It does not necessitate an acquittal; the Magistrate may find that the prosecution evidence is strong enough to prove the charge beyond reasonable doubt even after giving full weight to all of the evidence (including the evidence of the appellant and the testimonial evidence constituted by the contents of the statutory declaration) and after taking into account the inability of the appellant to call Noble and the consequent prejudice thereby accruing (if the Magistrate considers that such an inability and consequent prejudice possibly exists).
Finally, none of the above is to be taken as a hint that I consider that a Magistrate at a re-trial should necessarily convict if there is no evidence from Noble. On a careful reading, it seems to me that there are a number of features and nuances of the evidence at the original trial, including that of the appellant, to which close attention should be paid but which were not mentioned at trial or on the appeal.
It is of course entirely a matter for the prosecution as to whether a re-trial is warranted in all the circumstances of this case.
Orders
1That the appeal is allowed.
2That the conviction of the appellant is set aside.
3That the sentence of imprisonment and all other orders with respect to penalty imposed by the Magistrate are set aside.
4That the charge be re-tried before a different Magistrate.