Police v KOUTLAKIS - [2008] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v KOUTLAKIS
[2008] SASC 194
Judgment of The Honourable Justice Vanstone
16 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF
Appeal against acquittal - respondent charged with failing to obey stop sign - police officer filmed vehicle failing to stop at stop sign - officer subsequently approached respondent at some distance from the intersection in vehicle similar to the one seen and filmed - whether evidence was so compelling that the magistrate must have been satisfied beyond reasonable doubt that the respondent's vehicle was the one depicted in film. Held: magistrate justified in finding that reasonable doubt as to respondent's guilt remained - appeal dismissed.
Australian Road Rules, Rule 67(2), referred to.
SA Police v Murphy (unreported, Supreme Court of South Australia, judgment no S5421); Thorogood v Warren (1979) 20 SASR 156, applied.

POLICE v KOUTLAKIS
[2008] SASC 194
Magistrates Appeal

VANSTONE J: The police appeal against a magistrate’s acquittal of the respondent for the charge of failing to stop at a stop sign. The sole ground of appeal is that the decision to dismiss the complaint was “against the weight of the evidence”.
At trial the prosecution tendered a film of a motor vehicle failing to stop at a stop sign. The identity of neither car nor driver was clear from the film. The maker of the film, First Class Constable Passaniti, said he followed the car from the scene. A short time later he spoke to the respondent, who was in a vehicle of the same make and model as that filmed. As the magistrate observed, the principal issue at trial was whether the prosecution had proved beyond reasonable doubt that the respondent’s vehicle was the one shown in the film.
The course of the trial
The trial of the matter took place in the Port Adelaide Magistrates Court. Constable Passaniti was the only prosecution witness. He gave evidence that on 13 February 2007 he was performing traffic duties on Fussell Place, Alberton, armed with a video camera. He was stationed in his police car close to, and facing, the intersection of Fussell Place and Prince Street. Vehicles approaching that intersection along Prince Street, travelling approximately south, must obey a stop sign before entering the intersection: Rule 67(2) Australian Road Rules. The police officer was positioned on Fussell Place in such a way that he could film the progress of vehicles approaching on Prince Street from the north, and their response to the stop sign.
The prosecution alleged that the respondent drove one such vehicle. It was alleged that he entered the intersection without obeying the stop sign and that he then turned left, or east into Fussell Place. Constable Passaniti filmed the passage of what was said to be the respondent’s white Holden Commodore sedan. The video footage which resulted was tendered. It showed a vehicle emerging from behind foliage to the north of the intersection and then entering the intersection as described. The vehicle barely slowed before turning left. The quality of the videotape is such that the appearance of the driver and the registration number of the vehicle are not discernable. No still photographs were tendered.
Constable Passaniti gave evidence that having filmed the respondent as described, he then followed the Commodore in his police vehicle. He said “by the time I caught up to him he was on Torrens Road and I had a conversation with him there”. He did not say whether the Commodore had turned left or right onto Torrens Road from Fussell Place, or whereabouts he spoke to him.
Because the respondent was not represented by counsel at the hearing, the magistrate interrupted the police officer’s evidence to ascertain the respondent’s case – via his giving evidence-in-chief at that point – so that she might, in effect, put his case to Constable Passaniti. During the questions asked by her Honour which followed, Constable Passaniti said that the intersection was “fairly busy” on the day; that he only filmed one or two vehicles; that he could not recall whether he pulled the respondent over in the police car or whether the respondent had already parked his car on Torrens Road; that when he spoke with the respondent, “from memory” the respondent denied “going through” any stop sign; that it was not possible that the respondent’s vehicle had stopped behind the foliage in compliance with the stop sign because the officer would have noted an interruption to the smooth progress of the car when it emerged from the obscured area; and that the respondent had said nothing to the officer about involvement in any accident earlier in the day.
The police officer did not describe the distance which the respondent had travelled after his passage through the intersection and before his vehicle came to a halt. While he said there was no possibility that he had confused the white Commodore which he had filmed with the respondent’s Commodore, he did not explain how he could discount that possibility. He did not claim to have had it under constant observation.
The respondent’s evidence was to the effect that although he did travel through the intersection in question on the day, the Commodore in the video footage was not his. He said that his Commodore had always had roof racks and the one in the film clearly had none. He said that at the time of proceeding through the intersection he was in fear of being chased by the “criminal gang of forty-nine” whom he had encountered near a petrol station. He recognised them as such because they were wearing black shirts. They abused him and hit his car, denting its bumper and nearly causing him to have an accident. Prior to that he had been at his dentist, who had, in treating him, administered an anaesthetic.
The respondent said that having turned right into Torrens Road, he stopped his vehicle near some shops which he intended to visit. He described a church at that location. On a copy of a street directory tendered before the magistrate a church is shown on Torrens Road at quite some distance from the intersection in question. There is no evidence of the exact distance, but, based on the map’s scale, it would be not less than 500 metres.
During the trial and on her own initiative, the magistrate took a view of the respondent’s vehicle, which was near to the courthouse. She noted that there were roof racks affixed to it. She also noted a jacket hanging in the back right-hand passenger window and a sticker on the window with the words “Steel Stopper” on it. She saw that the rear bumper bar was dented. She noted the appearance of the wheel trims.
As I mentioned, the respondent gave evidence in his own defence. He was cross-examined by the police prosecutor. A letter which had been written in response to the charge on the respondent’s behalf was produced to him in cross-examination. The letter was dated 18 May 2007. The respondent acknowledged that in the letter were the words “When I checked my car for damage there was none. I have a plastic bumper and the hit was not hard enough to cause any permanent damage.” However he said that he had not read the letter properly. The respondent agreed that the letter contained an assertion that he was pulled over by the police, which could be contrasted with his evidence that he had only stopped his car to go shopping. The respondent said that he reported the gang of forty-nine incident on 19 April, being after the date when he had received an expiation notice for this charge. He said he was unaware until speaking with someone else that he needed to make a report to the police.
The respondent asserted that because of suffering from the anaesthetic he did not volunteer to the police officer that he had been chased and his car damaged. He said that a lawyer friend of his had composed the letter on his behalf. It was put to the respondent that the wheel trims on the vehicle in the film were the same as on his car. The respondent said that such wheel trims were common to cars such as his. The respondent agreed that the sticker on the car in the film was similar to the one on his car. It was put to him that there was something hanging in the back window of the vehicle, such as a jacket, just as there was in his car. The respondent, while not acknowledging the assertion, said that he was not the only one to carry a suit in that way.
After the assistant police prosecutor had finished her cross-examination, the magistrate again asked the respondent whether the car seen in the video was his. By way of preamble, she adverted to the fact that there was, arguably, a coat hanging inside the cabin, a sticker on the door, that the wheel trims looked the same as his and that the driver appeared to have long hair, similar to the respondent. He responded that he did not know, but that his car had always had roof racks on it since 1994. Under further questioning he again asserted that it was not his car.
The approach on appeal
Appellate courts are slow to interfere with a verdict of acquittal based upon a reasonable doubt. In Thorogood v Warren (1979) 20 SASR 156 at 159 Zelling J said:
The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court.
In SA Police v Murphy (unreported, Supreme Court of South Australia, judgment no S5421) Debelle J referred to those statements with approval. His Honour acknowledged that where there was an error of law the court might be more willing to interfere. His Honour went on to say:
Plainly, where there is an appeal which involves a question of fact and the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of witnesses, the appellate tribunal is at a distinct disadvantage.
Those observations apply to this case.
Analysis
In the case before me there is no suggestion that the magistrate made any error of law. The argument put is that upon the whole of the evidence the case was overwhelming. That is, that the film of the white Commodore failing to stop, coupled with the evidence of the police officer that he spoke to the person he believed to be the driver of that vehicle and with the circumstantial evidence tending to tie the respondent’s Commodore with the one in the film, presented an overwhelming case that the two vehicles were one and the same. It is clear from her questioning of the respondent that the magistrate was at all times aware of the force of the combination of circumstantial evidence tending to point to the conclusion sought by the prosecution. Having said that, the weight to be given to items of circumstantial evidence is very much for the trier of fact. My own viewing of the film of the incident did not engender much confidence in the features of the offending car pointed out by the prosecutor and apparently agreed to by the respondent.
It is acknowledged by counsel for the appellant that I should only set aside the acquittal if I am of the view that the evidence was so compelling that the magistrate must have been satisfied beyond reasonable doubt of the respondent’s guilt. In my view that is the correct position. I note that if it is, then it seems that the appellant’s ground of appeal is ineffectual.
The magistrate gave ex tempore reasons on the day of the trial. She noted that the respondent seemed to be “having a bet each way” in that he claimed that the vehicle shown in the film was not his, but also claimed that he had stopped in a position further back from the intersection and was obscured by the foliage, which was not visible on the film. Her Honour recorded that she was “influenced strongly by the absence of the roof racks in the video”. In submissions before this court, Mr Lesses, for the appellant, emphasised that only limited weight could be put upon this circumstance, it depending on the respondent’s credibility.
I acknowledge that the case against the respondent, particularly after his own evidence, could be seen as a strong one. There are two matters which have influenced me not to interfere with the decision.
First, there is no evidence from the police constable describing the way in which he followed the subject vehicle. There is no evidence that he had it constantly under surveillance. As mentioned, he was not prepared to say that the vehicle had not come to a halt on Torrens Road of the respondent’s own volition. In other words, on the prosecution case there was no clear statement that the filmed vehicle was the one which the police officer stopped. Perhaps this was explicable because of the failure by the prosecutor to ask the necessary questions. On the other hand, when asked whether there was any possibility that he had mixed up the offending vehicle with the respondent’s, all the witness could say was that it was a “fairly busy intersection”. The result is that there was a deficit on the police case and counsel needed to rely on a rejection of the respondent’s evidence and inferences to be drawn from that rejection, in order to overcome it. That brings me to the next factor.
Secondly, the outcome of the matter turned on the evaluation of the evidence of the two witnesses. I find it very difficult from the transcript to obtain an appreciation of the quality of the evidence each gave. In the case of the respondent that is partly because of the limitations upon his ability to express himself in English and his animated demeanour. On any analysis his presentation was unusual. As regards the police constable, even an acceptance his evidence did not compel a finding that the respondent was guilty.
Conclusion
Having regard to these two matters and particularly bearing in mind that the magistrate was plainly alive to all the arguments able to be mounted by the prosecutor and that, save as to the emphasis placed on the question of roof racks, it is not suggested that she made any error of law or fact, in my view this is not an appropriate case in which to substitute this court’s judgment for the magistrate’s. To elaborate, in the state of all the evidence, I consider that the magistrate was entitled to find that reasonable doubt as to the respondent’s guilt remained.
The appeal will be dismissed.