Police v Reilly
[2009] QMC 4
•25 November 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Reilly [2009] QMC 004
PARTIES:
POLICE
(prosecutions)
v
ARTHUR SCOTT REILLY
(defendant)
FILE NO/S:
MAG20033/09(6)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Warwick
DELIVERED ON:
25 November 2009
DELIVERED AT:
Warwick
HEARING DATE:
13 November 2009
MAGISTRATE:
Thacker AC
ORDER:
The offender is convicted and sentenced as follows:
I ORDER with a conviction recorded in each matter –
1. For stealing a quantity of fuel from the bulldozer parked at Rosewood Downs on 30th of November 2008 he is sentenced to three months imprisonment ; and
2 For unlawfully entering the paddock where the bulldozer was parked ie trespassing he is sentenced to three months imprisonment.
3. I FURTHER ORDER pursuant to section 144 Penalties and Sentences Act that each of the sentences above is wholly suspended for an operational period of 12 months from today during which time the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 of the Act for the suspended sentence.
4. For unlawfully taking four macropods the offender is fined $2,000.00.
5. In relation to the fuel stolen, the offender must pay restitution in the sum $115.00. Payment is to be made within one month to the Clerk of the Court at Warwick for distribution to the rightful owner.
6. Pursuant to section 155 Weapons Act that the offender’s weapons license is revoked and the offender is disqualified from holding or obtaining a weapons license for a period of three years from today.
7. Any weapon and / or ammunition currently in the possession of the offender is forfeited to the Crown immediately.
8. Pursuant to section 187 Penalties and Sentences Act the offender is disqualified from holding or obtaining a drivers license for six months from today.
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – GENERAL - Identification
COUNSEL:
P Crook appeared on behalf of the defendant
SOLICITORS:
Prosecution on their own behalf
A trial has been conducted over a period of three days in November in relation to three charges against Arthur Scott Reilly. He is charged that on the 30th of November 2008 he stole a quantity of diesel fuel from Rosewood Downs Partnership at Texas. Secondly he unlawfully entered land used for grazing namely Rosewood Downs at Texas and thirdly whilst there he unlawfully took protected macropods in contravention of Section 88(2) of the Nature Conservation Act 1992.
The principle prosecution witness was Kate Flood an owner of the Rosewood Downs property at Texas. On the night of Sunday the 30th of November at approximately 11:30 pm she was on her way home from her work as a nurse. When she got to Rosewood Downs she saw a vehicle on the property. When she reached the gate she saw that the gate had been left open. This annoyed her so she parked her vehicle with the headlights facing the position where she stood beside the only gate into the property. She expected to discover the vehicle she saw to be a person called Anton who had a license to shoot kangaroos (macropds) on her property. What she saw however, was a white Toyota utility with its passenger side low beam headlight not working as it came towards the gate. This vehicle was not what she expected. She that Anton drove a Nissan motor vehicle. So she moved to the side of the road. The white Toyota stopped beside her - she thought for perhaps eight to ten seconds but certainly long enough to ask the two males in the vehicle “Hey fellas what are you doing here?” and for the driver to respond “oh f –“. She saw the driver was in his thirties and that he had a shaved head, a couple of day’s growth and a black or missing front tooth. She also noticed on the dash board a rifle was mounted. It had a black stock. The Toyota drove off fast. She heard its diesel engine – she recognised it as a diesel engine. She saw it had a silver coloured roo rack on the back while looking for the registration plates and she also noticed four un-gutted great grey kangaroos similar to those that live on the Rosewood Down property and she noticed that the vehicle seemed under load that is it was revving hard but not picking up speed fast.
As a result of this incident she went to her father’s house nearby immediately and told him about it. On the next day, Monday, Kate Flood went to the police station at Inglewood and made a complaint about what she saw.
She also gave evidence of the fact that she had identified the Defendant as the culprit when she observed two photo-boards that had been prepared by the police and shown to her some three days later. She made no identification from board A (which Police Officer Gostellow said he made up to test identification of the passenger in the vehicle). On photo-board B she identified the male at number three position fairly quickly as the person who is the Defendant in these proceedings.
Graham Flood is Kate Flood’s father. He gave evidence that the bulldozer in question was his and that it had roughly eighty percent of its tank full of diesel fuel when he last checked it which was a couple of weeks prior to the end of November 2008. He was also certain that the bulldozer tank had no leaks and a water tight fuel cap.
He gave evidence that his daughter Kate Flood came at about midnight on the 30th of November 2008 to tell him what she had seen in a paddock on their property. Consequently the next morning at about 6 am he drove to the paddock where the bulldozer is kept and saw three things of significance.
1. Tyre tracks in soft ground leading to the bulldozer. The ground was not only soft but in some places boggy as it had rained on several days in the previous 10 days.
2. A sizable fuel stain about a metre across behind the bulldozer with spillage down the back of the bulldozer. This indicated to him that fuel had been syphoned (not pumped) from the bulldozer fairly recently, and
3. That fuel was gone from the bulldozer’s tank.
These two witnesses establish with out doubt that some person or persons went to the bulldozer in a time span around half past eleven on the 30th of November 2008 and took the fuel from the bulldozer. But was that person the Defendant?
Reasons for finding a reasonable doubt about the Defendant’s involvement at this stage could be obtained from –
1. The quality of the sighting by Kate Flood at half past eleven pm when she only saw the person in the Toyota briefly and then only in the night time by the headlight lighting from her own vehicle parked a little way away but facing towards the direction she was standing.
2. The sighting of the Toyota itself even together with the details given by Kate Flood could be attributed to many Toyotas in the area rather than one belonging to the Defendant in particular. Kate Flood did not see the registration number in the dark.
3. The photo board identification might be attacked as unreliable because there is only one man depicted in it with a black or missing front tooth and that is the photo Kate Flood chose.
4. While the evidence of Graham Flood shows somebody stole the fuel out of the bulldozer on the night of the 30th of November there is nothing in his evidence to show that it was the Defendant that was the thief.
There were further Prosecution witnesses. The next witness was Police Office Peter Scott who had spent 12 months with the Stock Squad based at Toowoomba. He knows the Defendant. On Monday the 1st of December 2008 he visited the property at Rosewood Downs to investigate the theft. The investigations showed that it had rained recently and the tracks left by the thief were still there and looked recent because they looked clear and fresh. From the tracks it appeared the vehicle that made them was not a sedan and yet something smaller than a truck.
[10]He investigated the Defendant by executing a search warrant at the Defendant’s residence the next day, Tuesday 2nd of December. When he arrived at the residence the Defendant’s Toyota utility was parked on the front lawn. The important points from Police Officer Scott’s evidence are that the Toyota was searched and found to be set up for kangaroo shooting. Also located were two rifles. Also, the left headlight on the vehicle appeared clean or new but the right one was not new and it was dirty. On the lawn near the vehicle there was an empty twenty gallon drum and a length of hose and the smell of diesel fuel. Around the side of the house there was a stack of tyres which were photographed. The right rear tyre of the vehicle and a spare tyre from the side of the house was seized by the police. Also Police Officer Scott noticed that the Defendant “was talking non stop” until his bedroom was searched and a torn blue jacket was located and then “he stopped and changed” (meaning as I understood it his attitude or demeanour changed).
[11]Police Officer Scott also investigated the Defendant’s Macropod Harvesting License. He also saw that Rosewood Downs is not listed on it as a place the Defendant is approved to use to take fauna. He investigated the Defendant’s Macropod Harvesting Book which commenced at 18th of November 2008 and then the next entry was an entry for the 3rd of December 2008.
[12]Senior Constable William Gostellow also from the Toowoomba Stock and Rural Crime Squad gave evidence. He also knows the Defendant. He investigated the matter with Police Officer Peter Scott. Senior Constable Gostellow made two casts of the tyre tracks found near the bulldozer at Rosewood Downs. When he saw the tyre pattern on the Defendant’s vehicle he “believed it was similar to the casts he had taken” and seized the tyre for further investigation.
[13]He also located two rifles from behind the seat in the Toyota; a rifle with a brown wood stock and a rifle with a black synthetic stock which the Defendant said belonged to his brother.
[14]The Defendant declined the opportunity of a recorded interview but he said “something along the lines he’d been to Brisbane on the Saturday night to go to the markets and then returned on the Sunday”. The Sunday was the 30th of November. The Defendant told Senior Constable Gostellow that he’d slept the night at 37 Rockwell Street and that he’d done so with his partner Kimberley Morgan. It was Senior Constable Gostellow who decided to include the Defendant in the photo board on the basis of the description given by Kate Flood.
[15]There was expert evidence given by Forensic Police Officer Rubin Morabito. I accept he is an expert relevant in the field to study and give opinion on the two tyres seized by police from the Defendant. He gave an impeccable account of his work comparing the tyre tread of a tyre seized from the Defendant’s residence and the tyre track impressions lifted from the Rosewood Downs property. In the court room he gave an impressive account of the detail of his work. He demonstrated in the court room by rolling the tyre in question over a transparency of the cast of the tyre lifted from the paddock at Rosewood Downs. The overlay, I found, to be compelling evidence. I accept his concluding opinion that the tyre owned by the Defendant “could have” made the impressions taken by Senior Constable Gostellow at Rosewood Downs in the paddock near the bulldozer. His evidence is important because of the timing of the observations of the tyre tracks observed initially by Graham Flood and then shortly afterwards by the police officers and the prompt further investigation by virtue of the search warrant executed at the Defendant’s residence the very next day and which produced the tyre for comparison with the tyre track impressions. Police Officer Morabito’s conclusions are not conclusive however and must be supported by other evidence to be persuasive.
[16]Finally Aiden Wolfe a kangaroo harvester from Inglewood gave evidence. He struck me as an honest witness. He knows and has had various dealings with the Defendant. He knows that while most ‘roo shooters drive around with “skinny tyres” the Defendant’s Toyota has wide tyres. During the relevant time period the Defendant was supplying Aiden Wolfe with kangaroos. He gave evidence that the Defendant would ring before he went shooting to ensure that any kangaroos he shot would be able to be taken at Aiden Wolfe’s “box”. He also stated that on the Thursday prior to the 30th of November he was “pretty sure” he saw the Defendant at “the box” and told him there’d be no truck Monday (the 1st of December) so no use shooting on Sunday night.
[17]Those were the witnesses for the Prosecution case. The Defence case was put through the sworn evidence of the Defendant himself and his wife Kimberley Morgan. The Defendant Arthur Scott Reilly is a kangaroo shooter by occupation. He has a license to shoot kangaroos (macropods) only in the Yelarbon area and not in the Texas area. He owns a white 1992 model Toyota Landcruiser which he purchased some 18 months prior to November 2008. He stated that his Toyota had standard headlights fitted and that the driver’s side headlight was always cleaner then the passenger side and that he never changed the headlights. He always shoots from inside the Toyota and that he collects his spent shells and reuses them and agreed under cross examination that that would be a reason why no shells were found at the paddock at Rosewood Downs. He also stated that he’s purchased many tyres “as you get at least one flat tyre per week” and he did accept that he had Sunraisya and Dessert Dueller Tyres. When he goes ‘roo shooting he “generally” takes extra fuel as he is out from “on dark to just past daylight”. When he does go shooting he tries to take “50 (roos) to make it profitable.”
[18]He knew he could not go shooting on the Sunday night 30th of November as he’d been told by the box keeper Aiden Wolfe that “the truck was not coming Monday”. He did not supply to any other “box”. The Defendant said he stayed home that night and denied going to or ever having been to Rosewood Downs, Texas. This was the extent of his evidence in chief.
[19]Under cross examination the Defendant was challenged on a few matters: he agreed he knows his way around the area from Warwick across to Clifton, Yelarbon and Texas as he has been in the area for a long time and his father used to shoot Rosewood Downs “years ago”. But the Defendant also said he has not shot there. Furthermore he repeated that he’s never driven on Rosewood Downs.
[20]Sergeant Wiggin, the Prosecutor, challenged him on a number of matters for which the Defendant did not give – in my view – an adequate response: firstly there was the questioning upon the fact that his Counsel had asked Kate Flood a question premised on information only available if the Defendant had been on Rosewood Downs. The Defendant denied again having been to Rosewood Downs and explained “my father told me if you drive off the track you’d disappear across that whole country”; and secondly, the Defendant could not now remember what time he returned from his trip to Brisbane on Sunday. He had initially told police 2 pm and then gave evidence in chief it was “late Sunday”.
[21]The Defendant also conceded that he could have taken roos for skins in which case they did not have to be taken to “the box”.
[22]These matters affect the credibility of the Defendant’s testimony adversely. The evidence of his wife is also of a low value to the court given she has been in a relationship with him for only about twelve months which means they must have commenced their relationship close to the time he was charged with these offences. She did not present confidently in the witness box the reason for which I am not sure about although she did seem to have a shaky recollection. The best she could say about Sunday night 30th November was that it was “just a boring night at home” which some might say does not equate with a new relationship at all. Under cross examination she prevaricated. Ultimately she said that they had returned from Brisbane “somewhere between lunch time and 2 pm”. On one point her evidence is useful: she gave evidence that the Defendant does not have a fuel account. She said, and I quote, “he pays cash from shooting ‘roos”.
IDENTIFICATION
[23]There is no evidence from the Defence witnesses that adversely affects the evidence of the Prosecution witnesses. The first real question then is, can the court accept the evidence of what Kate Flood saw at 11:30 pm on Sunday the 30th of November as credible and persuasive evidence?
[24]I have set out the evidence capable of supporting the visual identification of the Defendant and the fact that Kate Flood had what can be described as a brief but good look at the driver when she asked “hey fellas what you doing here?” and received their response. She asked that question whilst on alert. She had a special reasons for being on alert and for remembering the Defendant, namely, she knew he should not have been on her property and he had left the gate open about which she was already annoyed. She is a nurse and has also been a farmer in partnership with her father over more recent years. Her evidence in the witness box was given showing she is a mature no nonsense woman with her wits about her and a confidence about her capacities. I accept her evidence as honest and credible.
[25]Mr Crooke, Counsel for the Defendant submits that Kate Flood’s evidence cannot be accepted on the basis of many inferences and some logic that is not persuasive under scrutiny. Firstly he submitted it was a brief encounter between the Defendant and Kate Flood and they did not know each other. However brief encounters are not simplicitor fatal to being credible and accurate. The surrounding circumstances of that brief encounter lend a higher degree of accuracy to what she says she saw.
[26]Secondly I reject Mr Crooke’s submission that her identification of the Defendant on a photo-board prepared by Senior Constable Gostellow was achieved by the Senior Constable preparing an unfavourable or “biased” board on the basis that –
·The Defendant’s photo was placed in the middle of the top row of the photo-board; and / or
·The Defendant was the only person in the photo-board with cropped hair and a blackened or missing front tooth
[27]In my opinion there is no case law or other guidance that has ever suggested that any particular position on a photo-board is unequal to any other position on a photo-board and that is because no position takes precedence over any other. I am quite satisfied that the photos on the photo-board are sufficiently similar. Further the one feature of the blackened or missing front tooth in my view does not here draw special attention to the Defendant as it does not appear to me to be anything that causes the photo-board to have a bias as all of the photos do have a general resemblance to each other. Some men have their mouths closed and some open for example.
[28]Contested issues related to the identification of offenders have always required special attention by the courts. There is need for caution in evaluating and weighing evidence in these types of cases because it is quite possible for an honest but mistaken belief to be made. There is ample case law to show that a mistaken witness may be a convincing witness. For these reasons if the evidence of Kate Flood stood alone it might be unsafe to rely on its accuracy given she saw the Defendant for such a brief time and never before or since except on the photo-board.
[29]This is not however a case where identification is reliant upon but one visual identification of the Defendant. I have considered the evidence of each of the witnesses. There is other circumstantial evidence that implicates the Defendant, in particular, the evidence obtained from the police investigations at the Defendant’s residence including that relating to the tyre tracks and the evidence of the items found at the Defendant’s residence.
[30]The tyre tracks evidence is compelling against the Defendant because there is only one set of tracks. Those tracks lead into the paddock that contained the bulldozer and they also exit the paddock through the only entry to the paddock – the gate at which Kate Flood was standing. Furthermore the tracks were made by a vehicle with tyres the same as owned by the Defendant – Sunraisya and Dessert Dueller. There was evidence that the paddock had only the one set of tracks upon attendance there by Graham Flood at 6 am the next morning after the Toyota was sighted in the paddock. I have already outlined this evidence given to the court by the police witnesses and I have no reason to doubt it or assign it low credibility or any inaccuracy. To some extent it is supported by the demeanour of the Defendant upon the police investigations, especially when the jacket was found in his bedroom.
[31]I also make special mention of the evidence related to the diesel fuel used by the Defendant. He did not have any account at a diesel fuel outlet. He paid cash for his fuel which he purchased from time to time as he required it. Yet his evidence was that he needed large amounts of diesel fuel with him when he went out shooting, that is, more then his fuel tank could hold. He kept a large fuel drum at his residence. It was empty when investigated by the police some few days after the theft from the bulldozer occurred. These facts in combination provide a motive for theft of fuel by this Defendant.
[32]I list the following evidence as vital –
·The evidence of the witnesses Kate Flood and Graham Flood including that they own Rosewood Downs a property situated between Texas and Inglewood in South East Queensland
·Together with the corroborative evidence made up in particular of evidence of the police findings at the Defendant’s residence namely –
oThe white Toyota vehicle set up as a ‘roo shooting vehicle consistent with what Kate Flood saw as the vehicle approached her on the night of the 30th of November and stopped at the gate.
oThe white Toyota having odd head lights consistent with what Kate Flood observed as the vehicle approached her on the night of the 30th of November.
oThe weapon with the black handle located at the Defendant’s residence being consistent with what Kate Flood observed on the dash board of the Toyota when she looked into the vehicle on the 30th of November.
oThe diesel fuel drum located at the Defendant’s residence supports his capacity to carry diesel fuel on the Toyota.
oThe evidence that the Defendant was available to be at the Rosewood Downs property was according to his record book and the evidence of Aiden Wolfe established he could not shoot for his own box on the 30th of November.
oThe Defendant and his wife did not give credible evidence about their movements and whereabouts over the period of 30th of November to 1st of December.
oThe similarity of tyre patterns as between those left by a tyre at the Rosewood Downs paddock and those of the tyre found at the residence of the Defendant – from his Toyota.
[33]My conclusion is that this evidence justifies a finding that the Defendant is, without a doubt, the person in the white Toyota that Kate Flood stopped and spoke to at Rosewood Downs property at Texas on the night of Sunday 30th of November. There is no evidence that any other vehicle was at the Rosewood Downs property on the 30th of November and in the paddock which contained the bulldozer. Really there is evidence that no other vehicle was there at that time.
[34]It follows in my view that Arthur Scott Reilly is guilty of –
1.Stealing a quantity of fuel from the bulldozer parked at Rosewood Downs on 30th of November 2008.
2.Unlawfully entering the paddock where the bulldozer was parked as he had no permission from the Floods to be on Rosewood Downs.
3.Taking macropods, commonly known as kangaroos, in breach of the Nature Conservation Act 1992 because he was not licensed or authorised – on his own admission – to take macropods from Texas.
[35]I do so order.
SENTENCING: ARTHUR SCOTT REILLY
[36]The offender is convicted and sentenced as follows:
I ORDER with a conviction recorded in each matter –
1.For stealing a quantity of fuel from the bulldozer parked at Rosewood Downs on 30th of November 2008 he is sentenced to three months imprisonment ; and
2For unlawfully entering the paddock where the bulldozer was parked ie trespassing he is sentenced to three months imprisonment.
3.I FURTHER ORDER pursuant to section 144 Penalties and Sentences Act that each of the sentences above is wholly suspended for an operational period of 12 months from today during which time the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 of the Act for the suspended sentence.
4.For unlawfully taking four macropods the offender is fined $2,000.00.
5.In relation to the fuel stolen, the offender must pay restitution in the sum $115.00. Payment is to be made within one month to the Clerk of the Court at Warwick for distribution to the rightful owner.
6.Pursuant to section 155 Weapons Act that the offender’s weapons license is revoked and the offender is disqualified from holding or obtaining a weapons license for a period of three years from today.
7.Any weapon and / or ammunition currently in the possession of the offender is forfeited to the Crown immediately.
8.Pursuant to section 187 Penalties and Sentences Act the offender is disqualified from holding or obtaining a drivers license for six months from today.
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