Police v Williams
[2014] SASC 177
•27 November 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILLIAMS
[2014] SASC 177
Judgment of The Honourable Justice Peek
27 November 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - PROOF AND EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ABORIGINALS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against convictions for driving a motor vehicle without consent (count 1), driving a motor vehicle whilst disqualified (count 2), aggravated driving dangerously to escape police pursuit (count 3), and resisting a member of the police force in the execution of his duty (count 4).
Police chased at high speed a white car that had been reported stolen (the Subaru). The pursuit ended when the driver, a male aboriginal, crashed into a police car and a parked van in Darebin Street, Mile End. He and his passenger, the appellant’s teenage niece, Ms Stott, got out and fled on foot. The officers present gave chase and quickly apprehended Ms Stott but soon lost the driver.
Star Group officers Stevenson and Rosenhahn later used their two large German Shepherd police dogs (“Riggs” and “Koda”) to enter without permission a number of properties from the streets to look for the driver. They located the appellant in the rear of a red car parked in the backyard of his uncle’s house in Clarence Street, Mile End. They yelled at him to come out. He unlocked the door and Stevenson opened it. Riggs was close to the feet of the appellant who tried to kick the dog away with the soles of his feet. He was bitten at this time. The appellant then moved toward the other side of the car whereupon on the command of Rosenhahn, Koda entered the car, bit the appellant and dragged him out onto the ground. While the appellant was struggling with Koda on the ground, Stevenson then sent Riggs forward to assist Koda, so that both dogs were attacking the appellant at once.
The appellant was taken into custody and interviewed by two of the three officers who had been involved in the foot chase and who were witnesses in the case. His clear request to see a lawyer was ignored. The appellant asserted his innocence when interviewed.
The prosecution case was based on circumstantial evidence including: that the descriptions of the driver and the appearance of the appellant were similar; that the appellant was found not far from where the driver was last sighted by police before they lost him; and that a DNA sample obtained from the steering wheel of the Subaru had three contributors and it was 13,000 times more likely that the appellant was one of the contributors than a random person.
The appellant gave evidence denying that he was the driver and called Ms Stott who stated that the driver was a man called Leroy whom she had met in the city and had offered her a ride to her mother’s house in Milner Road, Hilton.
The Chief Magistrate rejected the evidence of both the appellant and Ms Stott and found all counts proven beyond reasonable doubt. The appellant appealed.
Held per Peek J (allowing the appeal):
1. The police observations of the driver of the Subaru during the car chase, and after he fled the scene, produced only a body of evidence of limited weight and incapable of proving beyond reasonable doubt that the appellant was the driver.
2. The Chief Magistrate erred in rejecting the entirety of the evidence of both the appellant and Ms Stott.
3. The prosecution failed to exclude as reasonable possibilities that the DNA evidence from the steering wheel of the Subaru was to be explained by statistically expected coincidence; and/or by a direct deposit of DNA on the steering wheel by Ms Stott (a relative of the appellant); and/or by cross-transference from the inside of the appellant’s gloves carried by Ms Stott and tried on by Leroy.
4. The Chief Magistrate erred in holding that the cumulative effect of all of the circumstantial evidence proved beyond reasonable doubt that the appellant was the driver.
5. The appellant did not resist Stevenson in the lawful execution of his duty; the appellant was not required to comply with Stevenson's yelling to get out of the red car and no valid arrest was performed. The use of the German Shepherd dogs to bite the appellant, drag him from the vehicle, and attack him on the ground was egregious police misconduct and was not in the lawful execution of duty of a police officer.
6. Police entered the backyard of the home of the appellant’s uncle’s unlawfully. All evidence of the finding of the appellant there should have been excluded at trial, and is excluded in the exercise of discretion on appeal.
7. The findings of guilty and the convictions on counts 1, 2, 3 and 4 are each set aside.
8. The appellant is found not guilty on counts 1, 2, 3 and 4 and the Information is dismissed.
Criminal Law Consolidation Act 1935 ss 19AC(1), 86a, 269Y, 352; Motor Vehicles Act 1959 s 91; Summary Offences Act 1953 ss 6(2), 75(1); Road Traffic Act 1961 (SA); Magistrates Court Act 1991 ss 42, 42(5); Justices Act 1921 (SA); Police Offences Act 1953-1958 s 75(1); Controlled Substances Act 1984 (SA); Uniform Evidence Act 1995 (Cth) s 138, referred to.
Strauss v Police (2013) 115 SASR 90, applied.
Barca v The Queen (1975) 133 CLR 82; Bunning v Cross (1978) 141 CLR 54; Christie v Leachinsky [1947] AC 573; Coco v The Queen (1993-1994) 179 CLR 427; Coghlan v Cumberland [1898] 1 Ch 704; Dinan v Brereton [1960] SASR 101; Donaldson v Broomby (1982) 60 FLR 124; Eccles v Bourque (1974) 50 DLR(3d) 753; Fox v Percy (2003) 214 CLR 118; George v Rocket (1990) 170 CLR 104; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Halliday v Nevill (1984) 155 CLR 1; Hortin v Rowbottom (1993) 61 SASR 313; Leonard v Morris (1975) 10 SASR 528; Plenty v Dillon (1991) 171 CLR 635; Police v Dafov (2008) 102 SASR 8; R v Doheny; R v Adams [1997] 1 Cr App Rep 369; R v Hayles (1990) 54 SASR 549; R v Ireland (1970) 126 CLR 321; R v Karger (2002) 83 SASR 135; R v Keir (2002) 127 A Crim R 198; R v Nguyen (2013) 117 SASR 432; R v Stevens (2010) 107 SASR 456; R v Taylor [2014] SASCFC 112; R v Thompson (2008) 21 VR 135; Slaveski v Victoria [2010] VSC 441; Taylor v Hayes (1990) 53 SASR 282; The Queen v GK [2001] 53 NSWLR 317; Webster v McIntosh (1980) 49 FLR 317; T v Medical Board of South Australia (1992) 58 SASR 382, discussed.
Barbu v Barbu [1920] SALR 244; Colet v The Queen [1981] 1 SCR 2; Entick v Carrington (1765) 2 Wils 275; Ghys v Crafer [1934] SASR 28; Gray v Jones [1948] SASR 201; Great Central Railway Co v Bates [1921] 3 KB 578; Hayes v Quinn (1992) 57 SASR 6; Horton v Rowbottom (1993) 61 SASR 313; Hull v Nuske (1974) 8 SASR 587; Hunter v Walsh [1928] SASR 334; Kuru v State of New South Wales (2008) 236 CLR 1; Lippl v Haines (1989) 18 NSWLR 620; Morris v Breadmore [1981] AC 446; Parker v Comptroller-General of Customs [2009] HCA 7; Pollard v The Queen (1992) 176 CLR 177; R v Conley (1982) 30 SASR 226; R v Davidson (1991) 54 SASR 580; R v Hillier (2007) 228 CLR 618; R v O'Neill (1988) 48 SASR 51; R v Stafford (1976) 13 SASR 392; Smith v Samuels (1976) 12 SASR 573; Southam v Smout [1964] 1 QB 308; State of New South Wales v Corbett (2007) 230 CLR 606; Taylor v Hayes (1990) 53 SASR 282; Wark v Daire (1983) 32 SASR 321; Wheare v Police [2008] SASC 13, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"police misconduct", "unlawful entry"
POLICE v WILLIAMS
[2014] SASC 177Magistrates Appeal
PEEK J.
PART A: INTRODUCTION
06:04:58: Nil persons injured other than offender re the dogs biting him a bit
[Police radio communications, 3 April 2013]
Count 4, the defendant on arrest resisted Officer Ralston. The defendant has refused to exit the vehicle and therefore made the officer’s job substantially more difficult. He was removed from the vehicle with the assistance of police dogs.
[Police prosecutor’s opening address, 11 March 2014]
Another canine that was directly behind then took issue with the accused and essentially, as you heard, removed him from the car. I must admit it isn’t a situation that I’ve ever been involved in but this was not a pretty incident. The dogs were involved. The accused was bitten, grabbed and the accused did lash out at the dogs. He was subsequently arrested and conveyed back to the command post in Darebin Street.
[Police prosecutor’s closing address, 12 March 2014]
Overview of the prosecution case
The appellant pleaded not guilty to the following counts on the Information:
Count 1 Driving a Motor Vehicle without Consent;[1]
Count 2 Driving a Motor Vehicle whilst Disqualified;[2]
Count 3 Aggravated Driving Dangerously to Escape Police Pursuit;[3] and
Count 4 Resist a Member of the Police Force in the Execution of his Duty.[4]
[1] Contrary to s 86a, Criminal Law Consolidation Act1935.
[2] Contrary to s 91, Motor Vehicles Act1959.
[3] Contrary to s 19AC(1), Criminal Law Consolidation Act1935. The circumstances of alleged aggravation are that he was unlicensed and that the car was stolen. The large measure of overlap between these “matters of aggravation” and counts 1 and 2, which charge the same matters as substantive charges, is a not unimportant matter but is beyond the purview of this appeal.
[4] Contrary to s 6(2) Summary Offences Act1953.
Counts 1 to 3 charged the appellant with being the driver (the driver) of a stolen 1992 Subaru Liberty station wagon (the car or the Subaru) involved in a high speed police chase. The prosecution case on counts 1 to 3 had three main components. First, observations of pursuing police officers of the driver’s appearance (initially from inside police vehicles and then on foot, before the driver escaped). Second, that the appellant was found not far from where the driver was last sighted by police. Third, various items of circumstantial evidence, including that a DNA profile found on a swab taken from the steering wheel of the car showed (at least) three contributors, one being the owner of the car and the other two being unknown; and that “the likelihood of obtaining this DNA profile is 13,000 times more likely if the appellant was a contributor than if he was not a contributor”.
Count 4 involves the circumstances under which the appellant was taken into custody at about 6am on 3 April 2013 after two dog handlers from the Star Group encountered him laying in a red coloured vehicle (the red vehicle) parked in the rear yard of 10 Clarence Street, Mile End (not being the stolen Subaru).
Overview of the defence case
The appellant, when he was first spoken to by police and in his evidence in Court, denied having taken, or driven, the stolen car, or being involved in the matter. His case is that on the night of 2 April 2013, before the arrival of the police, he had been drinking at 10 Clarence Street, Mile End, where his uncle lived; he had later gone outside because he was drunk and “talking silly” to his uncle. He lay down in the red vehicle parked in the rear yard and he was later found there by Star Group officer Stevenson. He agrees that there was a confrontation but denies that an officer was in the lawful execution of duty and/or that he “resisted” any lawful execution of duty. At trial, he called as a witness his niece Ms Stott, the female passenger in the car pursued by police, who gave evidence that the driver was a man called Leroy and not the appellant. In summary, the appellant’s defence case was that:
·the appellant had taken no part in the theft of the car, or in the high speed chase, and was at the premises of his uncle at 10 Clarence Street, Mile End, at all relevant times;
·a man called Leroy (who he did not know) was the driver of the car and Ms Keisha Stott, the appellant’s 16 year old niece, was the passenger;
·Ms Stott lived at 13 Milner Road, Hilton, with the appellant’s mother, not far from Clarence Street; she had gone alone by bus to Adelaide and later met Leroy there. He offered her a lift home in the stolen car and the police chase ensued;
·Ms Stott had with her a pair of the appellant’s gloves and Leroy had tried on one of them before the chase commenced;
·the DNA evidence from the steering wheel was to be explained by either statistically expected coincidence or by a direct deposit of the DNA of Ms Keisha Stott (a close relative of the appellant) on the steering wheel or by cross-transference of the appellant’s DNA which had been previously deposited on the inside of his glove to Leroy’s fingers and thence to the steering wheel;
·police unlawfully entered the rear yard at 10 Clarence Street and all evidence of the finding of the appellant there should have been excluded at trial;
·as to count 4, the appellant denied that his conduct amounted to resisting a member of the police force in the execution of his duty; he said that he was viciously attacked by two police dogs in the rear yard at 10 Clarence Street and was attempting to limit physical harm to himself.
The grounds of appeal
After a trial in the Magistrates Court, the Chief Magistrate found all of the charges proved. The appellant appeals against all of the convictions.
The grounds of appeal are as follows
1. The trial judge erred in rejecting the evidence of Keisha Stott.
2.The Magistrate erred by rejecting a possibility that the DNA, said to be the appellant’s, was deposited by Stott.
3. The Magistrate erred by relying on evidence of a police cordon.
4.The criticism of the appellant’s evidence based on a comparison to his blood alcohol reading was without any evidentiary foundation.
5.The learned Magistrate erred in her conclusion that police entry into 10 Clarence Street by police was lawful.
6. There was no case to answer with respect to the offence of resisting police.
7. The finding of guilt with respect to resist police was unsafe and unsatisfactory.
8.The finding of guilt with respect to driving disqualified, driving dangerously to escape police pursuit and driving motor vehicle without consent was unsafe and unsatisfactory.
I proceed to examine the major issues in the case.
PART B: THE EVIDENCE OF POLICE OBSERVATIONS
There is substantial dispute as to precisely what reliable evidence there is of police observations of the appearance and clothing of the person who was in fact the driver of the stolen Subaru.
Observations of the driver of the stolen car said to have been made by police officers during the high speed chase
On 3 April 2013, at about 4:30am, police received a report that a car had been stolen from an address in Brooklyn Park.[5] Soon after, Senior Constable Frisby observed the car on Marion Road, near its intersection with Anzac Highway. He attempted to apprehend the driver by positioning his police vehicle in front of the Subaru. However, he lost sight of the car when it reversed at speed down Marion Road. Other police officers soon sighted it on South Road and began pursuing it. The pursuit through the back streets and main roads of the western suburbs of Adelaide lasted for up to 58 minutes[6] and involved multiple police vehicles. The driver was travelling at times at 80–90 kilometres per hour in 50 kilometre per hour speed zones, and on one occasion, at an estimated speed of over 130–140 kilometres per hour. On occasions the car did not have its headlights on despite the limited light; at times it drove on the wrong side of the road; and it also drove through red lights and failed to give way when at signed give way intersections. The chase ended when the car collided with a police car driven by Sergeant Tollenaar on Darebin Street, Mile End, and then with a parked van (a Toyota Tarago).
[5] Exhibit P3 (South Australia Police Communications Record).
[6] This was Sergeant Tollenaar’s estimate but other estimates may be shorter.
After the final collision, the female passenger got out of the car and ran away from police. Police did not lose sight of her and apprehended her very quickly. Within three minutes, police radio communications broadcast that her name was Keisha Emily Stott and that she resided at Milner Road, Hilton.
The male driver of the car got out of the car and, at a fast pace, ran east on Darebin Street, south on Attrill Avenue, crossed over to the east side of Attrill Avenue and ran up the driveway of a house on the eastern side of Attrill Avenue. He there climbed the fence and got onto the garage roof, whereupon pursuing officers lost sight of him.
Senior Constable Frisby’s observations of the driver during the high speed chase
Senior Constable Frisby gave evidence that prior to the commencement of the chase, he had heard by police radio that the Subaru car had been stolen. Later, when stationary in his police vehicle, he saw the white Subaru, with the registration number of the stolen car, stationary at traffic lights. He then positioned his vehicle in front of the Subaru, got out, and ran towards the driver’s side of it, obviously focusing on the driver. The driver then took off at speed in reverse, and at that stage escaped.
During the encounter, Frisby had seen the driver and described him in evidence as being an Aboriginal male in his 20’s wearing a baseball cap. He also observed that there was a passenger, but he could not describe that person.
Sergeant Tollenaar’s observations of the driver during the high speed chase
Sergeant Tollenaar was the only police officer who gave evidence of making substantive observations of the driver during the high speed chase, but his credibility and reliability was under question at trial.
Tollenaar gave evidence that during the high speed chase, the driver made a U-turn which resulted in their respective cars passing each other, going in opposite directions, with the respective drivers being quite close to each other when passing (the U-turn incident). He stated that at this time, he observed that the male driver was approximately 30 years old, had a moustache, and a bit of facial growth (not a full beard) and a black top.
It may be accepted that observations of the appearance of an offender being sought during an operation should be contemporaneously circulated to the relevant police personnel by radio; experience shows (as indeed happened in the present case) that such a chase can come to a sudden end at any time, with the driver then fleeing on foot. Here, the radio logs show that the other police officers could make only scanty contributions as to descriptions of the driver and passenger and right up to the end of the car chase, the only description that police had was as broadcast at 4:52am: “Had two males in the vehicle – baseball caps - poss aboriginal”.[7] Obviously this was well worth circulating, but it was very scanty; something more definite (such as the information Tollenaar claims to have had at that time – approximately 30 years old, had a moustache, and a bit of facial growth (not a full beard) and a black top) would have been more helpful for all concerned.
[7] Exhibit P3 (South Australian Police Communications Record).
Tollenaar agreed that during the car chase he was in radio contact and did contribute some of the information that is recorded on the log – but this was restricted to locations etcetera and there is nothing in the log about observations made during the U-turn incident. If he did make those observations, they were far and away the best description any police officer had of the driver. He had no real explanation for not sharing that information around.
Tollenaar gave the following evidence concerning the U-turn incident:
Q He didn’t slow down to do a U-turn very much did he?
A Yeah, he did, yep.
Q He slowed right down?
A Yep.
Q Was the U-turn safe?
AYeah, I guess it was. It was – if it wasn’t an intersection that you‘re not allowed to do U-turns at then I would have said that was a pretty safe U-turn.
QSo that would have been one of the few examples of him driving safely this night?
A Yes.
…
Q What speed was he driving as he was doing that manoeuvre?
A Not very fast. It was a pretty sharp turn. Probably maybe 25 km/h.
Q What lane did he go into when he was –
A He stayed in the same lane.
Q So he’s done a U-turn. Which lane did he go into travelling back the other way?
A The same lane. The lane nearest to the median strip. He didn’t swing wide.
Q So this person is driving 100 km/h over the bridge?
A Yep.
Q Then he slowed right down to a do a U-turn?
A Yep.
QAnd he slowed so far down that he could do a tight turn from one inside lane to the other inside lane?
AYes. It might seem extraordinary but as far as high speed chases go his driving was incredibly dangerous but he was actually very skilled at avoiding everything he did.
QAre you sure you’re not just giving this evidence to try and make your observations of the driver sound more reliable?
AWell, it could seem that way but throughout the chase I was impressed at how dangerously well he could drive. (Emphasis added)
However, Senior Constable McDonald was adamant that this same U-turn was executed at a fast pace, a lot faster than 60 kilometres per hour, and nothing like the 25 kilometres per hour claimed by Tollenaar. He stated:
Q Did you see the Subaru do the U-turn?
A I saw the Subaru do the U-turn, yes.
Q How was it driving then?
AStill pretty erratically. It was a pretty fast U-turn. It was an unexpected U-turn. I most certainly wasn’t prepared for it.
Q Did you do a U-turn as well at the same intersection?
A Yeah, absolutely, yes.
Q How fast would you have been driving when you were executing that U-turn?
AI don’t remember but it would have been a fast pace. I don’t remember the exact numbers now.
Q Can you say what a fast pace is?
AWell, the speed limit’s 60.
Q About 60 km/h?
AWell that’s a reasonable pace but no, it was a lot faster than 60.
Q Whilst doing the U-turn?
AExit, leaving the U-turn, yes, correct.
Q That’s what you did or that’s what the Subaru did?
AWe all did the U-turn at a fast rate of pace, yes, and then we’ve all taken off, yes, to try and keep up with him, yes. (Emphasis added)
Tollenaar stated in cross-examination that at the time of the U-turn incident he had an unobstructed view of the driver because the Subaru driver’s window was down and that his own vehicle’s driver’s window was also then down.
It was put in cross-examination that the photographs show all of the (heavily tinted) windows of the Subaru to be up after the collision:
QJust one more topic. The Subaru, we can see in those photographs, and you would have seen that the windows are up?
AYes.
QWhen the car pulled up and crashed in the Tarago [the van], were the windows up or down?
AI’m not sure.
Q Did anyone touch the car, when you were there, to wind the windows up?
AI don’t know. Look, I straight away moved down the street and started setting up the forward command post so we could set up cordons. I’m not sure if somebody wound the windows up or not.
When it was put to Tollenaar that the photographs taken after the collision also show that his own window was up, he suggested that he must have returned to the vehicle at some time before it was photographed to wind up the window, lest some thief take something from inside. In light of his above answer that he straight away moved down the street to attend to important business, and the unlikelihood of such a theft due to the plethora of police cars and personnel obviously present, this suggested explanation appears unlikely.
Observations of the driver of the stolen car said to have been made by police officers during the foot chase
The witnesses, Senior Constables Kassebaum, McDonald and Smith each participated in the high speed chase and, after the final collision, each chased the driver on foot. They gave evidence of making the following observations of the driver at that latter stage: Kassebaum described him as wearing jean denim shorts and Nike trainers; “I can’t recall the colour top he was wearing”. McDonald described him as wearing a T-shirt, denim shorts and Nike trainers. Smith described him as wearing a T-shirt, denim shorts and running shoes with the Nike symbol.
The evidence of the appearance of the appellant on 3 April 2013
In order to assess the quality of the police evidence of identification of the appellant as the driver, it is necessary to consider what evidence there is of the appearance and clothing of the appellant when he was taken into custody.
The appellant is an Aboriginal male, born on 23 November 1981; he was therefore aged 31 as at 3 April 2013.
Photographs taken by police during the arrest process[8] show the appellant with a moustache and wearing a very dark, or black, T-shirt. Virtually the whole of the front chest area (but not the arms) is taken up with what appears to be a city scene of some sort which is substantially in a bright, whitish colour and strongly contrasts with the black areas of the T-shirt (the city scene). I note that there is no mention in the evidence by any witness of seeing the city scene, or any contrasting light area, on the T-shirt or top worn by the driver.[9]
[8] Exhibit P8.
[9] There is no photograph of the appellant from the rear but the right side profile shot does suggest that the rear of the T-shirt is plain black.
The police photographs only show the appellant from his head down to a point that is well above his knees.[10] He is shown wearing blue denim pants, but it is impossible to tell whether they are full length jeans or shorts. The footwear that he was then wearing, if any, is not depicted at all. Finally, there is no photograph of the baseball cap or the jumper said to have been found near where the appellant was arrested (which are discussed below).
[10] Exhibit P8.
Tollenaar and Kassebaum gave evidence that the appellant when in custody was wearing blue denim shorts. However, there is no evidence of what the appellant in custody (as distinct from the driver) was wearing on his feet and, as noted above, this does not appear from the arrest photographs.
The quality of the observations indicating that the appellant was the driver
The objective quality of the evidence of police observations indicating that the appellant was the driver was poor and there was a distinct lack of rigour in police identification procedures in this case.
Each of the four potential identifying witnesses (Tollenaar, McDonald, Kassebaum and Smith), before committing themselves to a description of the driver, viewed the appellant while he was in police custody on a charge of being that driver. Such a process may produce uniform descriptions of the driver as closely resembling the accused, but it is not calculated to produce reliable evidence of identification.
Tollenaar saw the appellant at the scene in custody in the back of the police car. He was cross-examined as to the contamination of his memory by his close inspection of the appellant thus:
Q Why did you walk up to the police car?
ATo see who it was. I’d heard that they had to use dogs to get the man out of the car and I, as one of the senior officers there, I wanted to make sure that if he needed medical attention it was going to be taken care of. …
Q … You expected to see the driver of the Subaru in the back of the police car?
AYes
…
QSergeant, what I’m putting to you is that your memory of seeing the driver wearing a dark shirt and denim shorts is contaminated by seeing Mr Williams afterwards, isn’t it?
AAbsolutely. Look, I understand that this is probably not the best ID that I’ve ever done and that, in hindsight, I shouldn’t have approached the car at all, but, it happened. At the time I was concerned for the fact that he’d had a dog bit [sic bite] and I moved forward to check on his welfare and then, in hindsight I thought probably shouldn’t have done that. Probably should have done a standing, you know, ID formal parade and then a photo ID.
Tollenaar was well aware that a formal identification procedure should have been undertaken and he was the Sergeant. However, neither he nor any of the police witnesses taking part in the foot chase later underwent an identification procedure to determine if they could in fact identify the appellant as the driver. Tollenaar proferred the excuse: “I usually tend to catch all my offenders and I don’t have to do ID’s, straightaway”.
McDonald also saw the appellant at the scene in custody in the back of a police car before he recorded any description of the driver; he saw that the appellant was handcuffed and wearing denim shorts.
Kassebaum and Smith together interviewed the appellant when they were also identification witnesses. I appreciate that the exigencies of a situation may necessitate that the roles of witness and interviewer cannot always be separated, but in the present case, there was no shortage of police personnel at the scene. Further, on the police case, both the driver and passenger were in custody and there was no pressing need to interview immediately, such as there may be in some cases where a continuing threat may be posed by unlocated co-offenders. Kassebaum and Smith were simply not appropriate interviewers here for a variety of reasons.
First, they had taken part in an extended high speed chase during which the driver (who the police were asserting was the appellant) had behaved in an appalling fashion and as to whom his police pursuers, including Kassebaum and Smith, were highly unlikely to be impartial. I will return to that aspect much later in these reasons.
Second, and of present immediate relevance, Kassebaum and Smith conducted the interview before they had in any way recorded a description of the man that they had chased. This was a course that was calculated to submerge any image that they had of the fleeing driver well beneath the dominant image of the appellant that would be formed over the extended period of the interview.[11]
[11] A number of aspects of the displacement effect and associated matters are discussed in Strauss v Police (2013) 115 SASR 90.
Third, Kassebaum and Smith had pursued the driver on foot and were likely to be called at trial as identification witnesses, where their credibility would be under direct challenge. They believed that the appellant was the driver and were concerned to establish that matter; if the appellant wished to assert his innocence in the interview, he was forced to contradict them to their faces as they went about their business of fortifying their position and attacking his. For these reasons, it was unsatisfactory for Kassebaum and Smith to have interviewed the appellant. In similar circumstances, Jacobs ACJ stated in R v Hayles:[12]
… it is wholly unsatisfactory for a police officer who is a purported identification witness to assume the dual role of the officer conducting the investigation. As counsel for the Crown frankly conceded in argument, “there is no question that someone in Poynter’s position should go to the CIB” and say “this is what this case is about, I am a witness, I should identify this man … there is no question that that should be done as a matter of prudence”, and let the CIB take over. Not only is it clear from the tenor of the interrogation of the accused by Poynter that he was seeking to defend his own position, but Poynter in fact arranged the photographic identification by Duif which is itself under serious challenge. …
[12] (1990) 54 SASR 549, 551.
The items found by police at 10 Clarence Street, Mile End
Shortly after Stevenson entered the yard at 10 Clarence Street, Mile End, his dog Riggs found, and barked loudly at, a baseball cap and a jumper which were together near a lounge chair near the back door of the house, about in the centre of the rear wall.
The prosecution case that the driver was wearing a baseball cap was based on the evidence of Frisby referred to above. Frisby’s evidence of his observations made as he was running toward the then stationary car appears credible and was given without exaggeration. However, the fact that the driver was wearing a baseball cap does not significantly advance the prosecution case against the appellant. Baseball caps are extremely common; the cap found at 10 Clarence Street was not tendered or even described in evidence and there is no description at all of the baseball cap said to have been worn by the driver.
But there is another aspect to the baseball cap evidence. Given that the prosecution case is that the driver was wearing a baseball cap, it is important to note that not one of the four prosecution witnesses Tollenaar, Kassebaum, McDonald or Smith, referred to seeing the driver wearing a baseball cap. This would seem the most surprising in the case of Tollenaar, who asserted that during the U-Turn incident he had a good view of the head of the driver and saw a moustache, and a bit of facial growth (not a full beard) but failed to see, at the same time, a baseball cap.
Tollenaar also gave evidence that very shortly after the collision, he observed the driver get out of the car and saw his face, as well as seeing that he was wearing white shoes, socks, and baggy blue denim shorts. As to seeing the face of the driver at this time, counsel for the appellant put to Tollenaar that in neither of his written statements had he previously claimed to have then seen the driver’s face. Tollenaar agreed that that was an important omission but had no explanation for it other than to say “I guess I didn’t think of that part at the time”.
As to what the driver was wearing, Tollenaar stated:
QWhen you looked at him, what was he wearing?
AHe had white shorts – white shoes on, socks and baggy denim coloured shorts.
QWhen you say denim coloured, denim –
AThey were actually denim shorts. They were like jean shorts.
QWhat colour?
ABlue, they were blue.
QHow far away from you was he when you saw what he was wearing?
A3m. Not even the length of the car.
It is also surprising that Kassebaum, McDonald and Smith all failed to see a baseball cap, given that each asserted that he could specifically describe what the driver was wearing (denim shorts and a top or T-shirt) and the brand of his shoes (Nike trainers).
What Tollenaar, Kassebaum, McDonald and Smith all had in common was that each later saw the appellant in custody (when he was certainly not wearing a baseball cap) whereas there is no suggestion in the evidence that Frisby did so. If the driver was wearing a baseball cap, there may be several explanations why four police officers, who each saw the appellant after the incident, might later each describe the driver’s clothing in a way closely resembling the appellant but each fail to refer to a baseball cap. An innocent explanation might be that Tollenaar, Kassebaum, McDonald and Smith, each did see the driver wearing the cap but each later independently suffered a loss of that memory (produced by the displacement effect of later seeing the appellant without a baseball cap). But if this is the explanation of their uniform failure to retain a memory of seeing a baseball cap, one must also, having regard to the displacement effect, be cautious of the accuracy of their evidence of the positive attributes of the driver that they claimed that they did see.
As for the jumper found at the same time as the baseball cap, on the evidence it could not have been worn by the driver. Frisby did not claim to be able to say what the driver was wearing beyond the baseball cap and the prosecution relied upon Tollenaar, Kassebaum, McDonald and Smith for proof of the driver’s upper garment. As referred to above, each described the driver as wearing a T-shirt or top rather than a jumper and there is no suggestion whatever that the driver was carrying a jumper (or anything else) during the foot chase.[13]
[13] Frisby did not describe what the driver was wearing, apart from the baseball cap.
The Chief Magistrate correctly ruled that evidence in the form of a dock identification would not be received from any of the police witnesses.
The police descriptions, at their highest, were of limited weight
But even if one makes no allowance for the likely contamination referred to above and takes the prosecution evidence at its highest, it must still be assessed as scanty. The police descriptions may be “consistent” with the appearance of the appellant, but it must be remembered that baseball caps and dark tops and T-shirts are extremely common. Further, there was in fact the contra-indicator of the white contrasting front (the city scene) which was mentioned by none of the police; and the matters of the baseball cap and the jumper are also somewhat discordant with the prosecution case, as noted above. There is no evidence as to what footwear (if any) the appellant (as distinct from the fleeing driver) was wearing.
Even if one ignores the substantial doubts as to its reliability, Tollenaar’s evidence that the driver was approximately 30 years old, had a moustache, and a bit of facial growth (not a full beard), even when taken with the other police descriptions, produces only a body of evidence of limited weight which is incapable of proving beyond reasonable doubt that the appellant is identified as the driver.
The Chief Magistrate also came to that view, finding that the descriptions of both the driver and his clothing were fairly general and should be accorded only limited weight. Her Honour stated:
[51]I find that there are similarities between the clothing worn on the night by the defendant and the observations of the police who pursued the driver out of the car after it had crashed. I find that the defendant was found close by to where he was last sighted by the police during the chase. The descriptions of both the driver and his clothing are fairly general. Exhibit P3 records the observation that there were two males in the car wearing baseball caps. The clothing described during the chase was consistent with what the defendant was wearing when located, including the baseball cap found at 10 Clarence Street. I accord these descriptions limited weight. … (Emphasis added)
PART C: THE CHIEF MAGISTRATE’S REJECTION OF THE EVIDENCE OF THE APPELLANT AND MS STOTT
The structure and approach of the Chief Magistrate’s judgment was as follows. At pages 1 to 2, her Honour referred to the general nature of the prosecution, listed the witnesses and exhibits, and referred to evidentiary rulings. At pages 2 to 11, her Honour set out summaries of the evidence given by each prosecution witness in the sequence in which those witnesses were called at trial; there is only very limited reference to cross-examination and no reference to the appellant’s submissions or criticisms of the evidence.
At pages 11 to 14, her Honour considered the evidence of the appellant and Ms Stott, making some criticism of the evidence of Ms Stott.
At page 14, her Honour considered the prosecution witnesses generally and, again without referring to the appellant’s submissions or criticisms, concluded:
[47]Having had the opportunity to observe the witnesses and assess their evidence and their demeanour, I indicate that I found the police officers honest and believable. They made appropriate concessions. There was one inconsistency as to the defendant’s alcohol reading and Kassebaum’s evidence that it was not over the legal limit. There were some inconsistencies between the police officers as to minor matters in the chase but given the circumstances, these differences do not lead me to conclude that the police officers were anything but truthful. I indicate that I accept their evidence beyond reasonable doubt.
At pages 14 to 15, her Honour analysed the appellant’s evidence and concluded “I reject his evidence in its entirety”. Her Honour then analysed Ms Stott’s evidence and concluded “I reject her evidence in its entirety”.
At pages 14 to 16, her Honour found that counts 1 to 3 were proven, basing her conclusion on the circumstantial evidence (together with only limited weight accorded to the description evidence). I return to examine that circumstantial evidence below.
For the moment, I note that the Chief Magistrate did not proceed by finding that the prosecution case was a compelling body of evidence that simply overwhelmed the opposing evidence of the appellant and Ms Stott. Rather, her Honour found that the evidence of the appellant and Ms Stott was incredible on its face by reason of the flaws that her Honour detected within that evidence.
If the Chief Magistrate erred in her approach to, and wholesale rejection of, the evidence of the appellant and/or that of Ms Stott, the consequence would be that the verdicts on counts 1 to 3 could not stand and the further question of whether there should be a re-trial or an acquittal of the appellant would then have to be considered.
The rejection of the evidence of the appellant
The appellant’s examination-in-chief and cross-examination was quite lengthy. His evidence may be summarised as follows.
·As at 3 April 2013, he was staying sometimes with his sister and sometimes with his mother. He went backwards and forwards between them.
·His sister lived at 14 Gladstone Road, Mile End. His mother lived at 13 Milner Road, Hilton, together with four nieces of the appellant; one of those four nieces was Ms Keisha Stott who was the female passenger in the stolen car.
·In April of 2013, some of his possessions were at his sister’s house and some at his mother’s house. He owned a sports bag and training gear which included weights, a towel, a water bottle and football boots. He had two pairs of gloves which were both in the bag. One pair were Adidas fingerless gloves for lifting weights. The other pair were full fingered with a grip and elastic and were concreter’s gloves. He used those for cleaning his mother’s backyard; he had used them during a clean-up in his mother’s backyard when they had filled three skip bins. He also used them for doing chin ups because they had a good grip.
·He could not remember whether he had left the sports bag containing the gloves at his sister’s or his mother’s place. The items he used for training were in the bag and he went to the gym three times a week. He said that after his arrest on 3 April 2013 he went back to his mum’s house and the bag was missing. He was not sure where it was. He thought that it might have been at his sister’s but he had looked and it was not there. He could not find his gloves, water bottle or towel.
·He was arrested at 10 Clarence Street, Mile End where his uncle, Wayne Wilson lived. He had gone there from his mother’s house. They had had an Easter egg thing for the kids and then he had been drinking at his uncle’s and taking drugs for more than 24 hours.
·He was acting ‘stupid’ because of the drugs and his uncle had said to go outside and sleep off the alcohol and the drugs. At first he was on the lounge outside. He was hot and sweating and he took his jumper off. He later calmed down and got inside the red vehicle and laid down to relax. The door was not then locked.
·He later heard footsteps running down the driveway and a dog barking. He looked out of the car window and saw a police officer standing by the back door. He wondered what was going on. He locked the door because he thought they were there for his uncle. The police officer came over to the car and said ‘unlock the door’. He did so. He was later bitten by first one dog and then a second dog. He was subsequently arrested by another police officer.
The Chief Magistrate stated that she rejected the appellant’s evidence “in its entirety”. Her Honour’s reasons for that rejection are quite short and appear at [48] (with letters A to C added for analysis) thus:
[48]I indicate that I found the evidence of Williams to be inconsistent in parts and improbable in others. A On the one hand he seemed to be saying that he had had three nights of partying and alcohol and on the other his blood alcohol reading was relatively low. B In his Record of Interview (Q51) he said that he was living at 10 Clarence Street. In evidence he said that he was living at his sister’s. C He said that he had drunk half a bottle of whisky and a few cans (Q65) yet his alcohol reading was relatively low at .10%. I indicate that I reject his evidence in its entirety and where there is conflict between his evidence and that of the prosecution witnesses, I reject his evidence and accept theirs beyond reasonable doubt.
The appellant submits that the above reasoning is significantly flawed.[14]
[14] The grounds of appeal are poorly drawn in this respect. The appellant was permitted to argue this matter under a generous interpretation of the combination of ground 4 and the “unsafe” ground 8, there being no prejudice to the respondent.
The first and third strands of reasoning: passages A and C
At passages A and C, the Chief Magistrate states that the appellant’s blood alcohol reading was established to be .10 percent and that this appears too low to be consistent with his statements as to heavy drinking.
However, this “blood alcohol reading” was actually only a purported indication from a preliminary alcotest type device. Such devices can do no more than indicate a likelihood of the presence of alcohol greater than .05 percent such as is deemed to constitute sufficient cause for a police officer to require the subject to take a breath analysis test. Some form of additional purported calibration on an alcotest device may not invalidate the above function, but it certainly cannot endow such a device with any ability to perform as a breath analysis instrument.[15] There is no evidence here of either a breath analysis or a blood analysis.
[15] See Road Traffic Act 1961, ss 47A(1); 47DA to 47H; 47K.
Superimposed on this problem is the fact that while the alcotest is shown to have been administered at 6:25am, about half an hour after the appellant was first seen by Stevenson, there is no evidence as to: when the appellant had his last alcoholic drink; the appellant’s drinking pattern prior to that last drink; or the appellant’s particular absorption or oxidation rates on the relevant occasion (let alone whether or not this was affected by other drugs he had taken). Of course, there have been many studies of groups of people leading to “rate ranges” based on averages of averages, but there is no evidence here of such matters or indeed of the extent to which the studies may demonstrate that a particular person may deviate markedly from such “averages.” Nor is there any evidence as to whether studies of the absorption and oxidation rates of aboriginal males of the age of the appellant have been undertaken, and with what results.
The second strand of reasoning: passage B
In passage B, her Honour stated: “in his record of interview (Q51) he said that he was living at 10 Clarence Street. In evidence he said that he was living at his sister’s”. In order to assess that suggested inconsistency, it is necessary to consider both the actual words used in the interview and the context of the evidence that he gave at trial. Questions and answers 51 and 52 in the record of interview appear thus:
Q 51 Yep. You’re living at 10 Clarence?
A 51Yeah my Uncle just asked me if I wanted to stay there. I had a drink with him and …
Q 52 Is that Street, Avenue, Road?
A 52 I crashed out. (Emphasis added)
The appellant’s evidence at trial to which the Chief Magistrate refers appears in examination-in-chief thus:
Q In April 2013, where were you living?
AAt my sister’s at 14 Gladstone, Mile End.
However, regard must be had to later relevant answers:
QThat’s where you lived at that time a year ago?
ANo, sir. I was back and forward between a few houses.
…
QWhere is – it’s your sister’s house?
A14 Gladstone Road, Mile End.
QYou say that your property was at your sister’s house?
AYeah, I’m not sure exactly where I left my bag with my sporting equipment but I know that, you know, all my clothes and that was at my sister’s. I had some stuff because I was transitioning between houses. Sometimes I’d stay at my mum’s when she had problems and sometimes, you know, most of the time I’d be at my sister’s but sometimes my mum had had problems with my older brother.
(Emphasis added)
Answer 51 in the interview to which the Chief Magistrate referred was not just a simple assertion of having lived at 10 Clarence Street for a period of time but rather “Yeah my Uncle just asked me if I wanted to stay there” and the appellant stated in evidence at trial that he was then transitioning between houses. It does not seem unlikely that on 3 April 2013 he may have accepted an offer to move in with his uncle, as he in effect stated in his interview.
There are two further important matters to which her Honour did not refer in this context. One is the debilitated state of the appellant at the time of his interview, being handcuffed to the rear, in some pain, and only moments after being attacked by two police dogs. I consider this matter below.
The other matter is the important fact that the appellant was never cross-examined as to this inconsistency now being suggested by her Honour. Presumably, the prosecutor did not consider that there was any significant inconsistency; he did not cross-examine upon it, or refer to it in his address. In any event, the appellant’s defence was that he was at his uncle’s house at 10 Clarence Street at the relevant time as a guest, having been drinking there; whether or not he was in the process of moving there at the invitation of his uncle is really of little significance. In all of the circumstances, if (which I doubt) there is any real inconsistency here, it is very marginal and is certainly not a safe peg on which to hang the rejection of the whole of the appellant’s evidence.
With respect, I consider that there was no sufficient evidentiary basis for her Honour’s stated line of reasoning in rejecting the appellant’s evidence and I find that ground 4 of appeal is made out.
The rejection of the evidence of Ms Keisha Stott
Ms Keisha Stott is the 16 year old niece of the appellant. She was the passenger in the car and was apprehended by police as she ran away from the car following the collisions.
Ms Stott was called by the appellant. She gave evidence that as at 2 April 2013 she was living with the appellant’s mother at 13 Milner Road, that throughout that day she had been drinking heavily, and that that night she went alone by bus into the city to continue drinking. She said she took with her a bag containing her drink (alcohol) and the appellant’s gloves which she had because “back then she used to go through” (meaning to steal from) parked cars.
Ms Stott gave evidence that she had “met up with” a group of people in the city who were drinking; she had previously seen them but had never spoken to them. She parted with them in the early hours of the morning after the buses had stopped running and was left without transport home. She then ran into a man named “Leroy”, whom she had not met before. He offered her a lift home; she went to his car and after they had driven around for a bit, Leroy told her that the car was stolen. Shortly afterwards, the police spotted the car and the chase commenced.
Ms Stott gave evidence that, before the chase started, Leroy placed what she referred to as “an ignition” (the ignition item) into her bag and that, on seeing the gloves in her bag, Leroy tried one of them on. She did not give evidence that she had touched the steering wheel.
The appellant submits that the cumulative effect of a number of passages in the Chief Magistrate’s judgment is to invalidate her Honour’s reasoning process in rejecting the evidence of Ms Stott. These passages are italicised and marked with the letters A to R in bold for convenient analysis:
[44]In cross-examination she said that she went into the city around 9 or 10 pm. She was drinking with a group. She was on her own so she joined them. She has not talked to any of them since. She could not remember where she went because she was drunk. A Around 4 am or 5 am or ‘something’ she saw Leroy. B Then she said she met Leroy after 12 am and in the early hours when buses were not running. This was around 1 or 2 am. C Then she said that it was last year so she could not remember. Then she said it was after 3 am. She left the group, saw Leroy and started talking. She got into the car because he offered her a lift. At first he did not say that the car was stolen, and then he put the ignition [the ignition item] in the bag. D She had no explanation for why he would want to put the ignition removed from the stolen car into the bag which she said she had. Then she said that he tried one glove on and then she put them back into the bag. She said that she was with the group most of the night. Leroy was not there. She walked around the train station and the Torrens. She said that she accepted the ride because she was drunk.
[45]She could not say how long she was at the River Torrens. E She did not know why Leroy tried one glove on. She said that she then put them back in the bag. She said that the car was parked on King William Street along the road near the parade ground. According to her evidence they walked there although F there was no explanation for why Leroy would have left it there and then walked along the Torrens. G Her evidence was that she gave him directions to her home and he went straight there. She then said that he took her for a drive to where he had stolen the car and then home. Then she said that she did not know where she went. She did not know what area it was because she was drunk. She could not remember how long she had been in the car before contact was made with the police. She said that Leroy had told her that they had to get out of the city. Then she said that she could not remember where they went because she was not paying attention. Her evidence was that Leroy started ‘freaking out’ when he heard the sirens. She did not remember which direction they went in because she was paying attention to the police. She said that the ‘cops got us straightaway’. She was pretty sure that they went in a forward direction. H She had not seen Leroy since. They did not get to Milner Road because of the police pursuing them. I She did not remember being on Milner Road. This appears to be inconsistent with police sightings in Milner Road as set out in Exhibit P3. Then she said that all she could remember was that the police cars were behind them. They crashed ‘around’ her area, three streets from where she lived. Her evidence was that when she got out of the car, she could see where she was. Leroy got out before she did. She could not get her door unlocked. He was already gone when the police apprehended her. J She had not asked Leroy to let her out during the chase because he was travelling too fast. This appears to be inconsistent with the police communications record showing the car travelling at 60 km/h in Milner Road.
…
[49]Keisha Stott was an extremely unimpressive witness. The essence of her evidence was that it was not her uncle who was driving but a person called Leroy K whom she could not describe, whom she met in an area in which the car was not recorded as going to, L at a time she could not remember M and whom she has not seen since. N She was asked several times to speak slowly, clearly and audibly. She declined to do so. O She could not remember a number of significant matters when challenged. At times she said she was drunk, at others that she was not paying attention. P Her explanation for taking a bag, which according to her uncle contained weights, a drink bottle, a towel and two pairs of gloves into town, was bordering on the incredible. I note that she went into town to drink and her evidence was that she did so. Q She did not use any of the items which she claimed she took and she did not attempt to use them. R She could not remember the episode where the car reversed at speed along South Road. She appeared not to recall that the pursuit took close to 50 minutes. I reject her evidence in its entirety. In particular, I reject her evidence that she met a person called Leroy and that he tried on one of the gloves. I note that, in submissions, it was suggested that she had touched the steering wheel. I find that she gave no evidence to that effect so that submission is without foundation. (Emphasis added)
The comments as to Ms Stott meeting Leroy [passages A to C]
The purport of the Chief Magistrate’s remarks at passages A to C is that Ms Stott repeatedly made inconsistent statements as to the circumstances under which she met Leroy and that such inconsistencies impinge on her credibility. Counsel for the appellant submits that, on a correct analysis of the evidence, the stark inconsistencies suggested do not exist and that the remarks are unwarranted.
I set out the relevant passages of the evidence of Ms Stott to which the Chief Magistrate refers. The first passage (in chief) is as follows:
QCan you tell us about what happened in the day leading up to getting in that car chase?
AI was having a few drinks and I got pretty drunk.
Q Where were you having a few drinks?
AAt my nan’s and then I went to the city.
Q Who were you having a few drinks with?
AAt first I was drinking with my cousin, Caitlin and then I went to the city and I’d seen some people that I’ve seen around drinking before.
HER HONOUR
QI can’t hear any of that. You’re going to have to repeat it. Then you went to the city and then what happened?
AI’ve just seen a couple of people that – like, I’ve seen around and I started drinking with them but I can’t really remember much because I was pretty drunk.
EXAMINATION
Q How did you get into the city?
ABus.
The second passage (in cross-examination) is as follows:
Q What time did you see Leroy?
AIt was like not early hours in the morning but it was early because there was no more buses and I was stranded.
Q What time was it, 1 o’clock, mid-day, midnight?
ANo, it was early hours, like around like four or five or something.
(Emphasis added)
The third passage (in cross-examination) is as follows:
Q What time are you going to tell the court that his person, Leroy, offered you a lift?
AI told you. It was around like in the early hours of the morning. Like it was past 12 like but early hours in the morning because buses weren’t running or anything but I didn’t –
Q Buses weren’t running?
AYeah.
Q So the buses stop at midnight, it was around about that time?
AThey normally stop like, one, two or something.
Q So it was around about one or two?
AIt would have been like earlier I think because not that many people in the city but honestly it was last year so I can’t remember what time it was exactly.
Q So you’re saying it’s close to morning?
AYeah, around that time, yeah.
Q 3 o’clock?
AI honestly don’t know. It was last year. I can’t remember like I said.
Q You can’t remember?
ANo, I told you that around that time. It was in –
Q Because you were drunk?
AYes. (Emphasis added)
Passage A in the judgment - “Around 4am or 5am or ‘something’ she saw Leroy”
The evidence of Ms Stott was that she was drunk well before she came into the city that night and that her estimates of time were poor; she at all times stated that her starting point for estimating the time of day/night when she met Leroy was that it was after the buses stopped running (thus leaving her stranded) and it was in that context that she stated that “it was early hours, like around like four or five or something”.
Passage B in the judgment - “then she said she met Leroy after 12am and in the early hours when buses were not running. This was around 1 or 2am”
Passage B seems to suggest that Ms Stott was here asserting that she had met Leroy “around 1 or 2am” which would be inconsistent with her statement in passage A. In fact, Ms Stott did not state that it was “around 1 or 2am” when she met Leroy. Rather she stated (in the third passage of cross-examination) that the buses stopped running “like one (1am), two (2am) or something”.
Passage C in the judgment - “Then she said that it was last year so she could not remember. Then she said it was after 3am”
What Ms Stott said about it being “last year” appears in the third passage: “honestly it was last year so I can’t remember what time it was exactly. … I honestly don’t know. It was last year. I can’t remember like I said.”
Ms Stott is here repeating to the cross-examiner that her memory is limited to that which she had already stated in evidence. When she was asked in the third passage, “So you’re saying it’s closer to morning?”, she answered “Yeah, around that time, yeah” but these latter words clearly refer to her earlier answer in the second passage, “like around like four or five or something.”
Most importantly, Ms Stott did not state “it was after 3am” as the Chief Magistrate suggests. This time of 3am had not been previously mentioned by anybody, until the cross-examiner put the short question “3 o’clock?” in the third passage. This suggestion was not accepted by Ms Stott. She responded “I honestly don’t know. It was last year. I can’t remember like I said.” When she very soon thereafter states “No, I told you that around that time …”. The words “I told you” obviously correspond with the words “like I said” and those two sets of words (and also the further words “around that time”), all refer back to her earlier evidence in cross-examination, “like around four or five or something”.
Passages D to F - the comments as to Ms Stott’s inability to explain aspects of Leroy’s behaviour
The Chief Magistrate stressed that Ms Stott had no explanation for aspects of behaviour of Leroy that she claimed to have witnessed and this was clearly a matter her Honour took into account adversely to Ms Stott’s credibility. Thus at passages D, E and F her Honour stated:
D She had no explanation for why he would want to put the ignition removed from the stolen car into the bag which she said she had. … E She did not know why Leroy tried one glove on. She said that she then put them back in the bag. She said that the car was parked on King William Street along the road near the parade ground. According to her evidence they walked there although F there was no explanation for why Leroy would have left it there and then walked along the Torrens. (Emphasis added)
The appellant submits that it was wrong to criticise Ms Stott for having no explanation for why Leroy did, or did not do, something. I consider that this submission has force for a number of reasons. It was not for the witness to know, or for the appellant to prove, why another person did something; to suggest that Ms Stott’s evidence could be rejected partly because it did not extend to also establishing why the man Leroy did what she said he did, ran a substantial risk of reversing the onus of proof.
Using the ignition item as an example, the reasoning process of the Chief Magistrate appears to be that if Ms Stott cannot suggest a logical reason why Leroy would have wished to keep the ignition item and place it in her bag, then there is no logical reason to be found; which in turn suggests that Ms Stott is lying about the occurrence.
There are a number of problems with such an approach. One is that it relies upon the unexpressed premise that the person Leroy is to be assumed to be a person who thinks and behaves logically, and according to societal norms. But ex hypothesi, we are here dealing with a person (whoever the driver actually was), who was prepared to put lives of members of the public at serious risk through his extended reckless behaviour, for no logical reason at all. Reasoning based on logic founders when applied to such a person.
But in any event, possible reasons for the conduct in relation to the ignition item can be suggested relatively easily. Evidence has been led in at least one case to my knowledge of a thief’s practice of taking a suitably modified ignition switch with him when stealing a car of that same make, and connecting that switch to the wiring of the car to be stolen so as to be able to easily turn the engine on and off while he is using it. For all one knows, the ignition item to which Ms Stott referred may have been an item Leroy had before the theft of the Subaru; alternatively, Leroy may have wanted to retain an ignition item from this Subaru for such future use.
As for putting the item in Ms Stott’s bag, Leroy may have been happy to enlist the help of, or ingratiate himself with, a female thief, for that was exactly what Ms Stott was.
As for the gloves, they were obviously male gloves and the appellant gave evidence of his uses of them. It may be that Leroy was momentarily interested in using the gloves for similar purposes, and idly tried on one of them to see if it was a good fit. Or, he may have been interested in the gloves for much the same reason as Ms Stott, as a tool to prevent the leaving of fingerprints. Or both.
Of course, these possibilities are not proven facts, but they can be referred to in order to confirm that it was inappropriate to use the fact that Ms Stott was not able to offer reasons (and, it might be stressed, not even invited in cross-examination to do so)[16] as being detrimental to her credibility.
[16] If the prosecutor had asked Ms Stott “what was Leroy’s reason for wanting to retain the ignition item?”, I have little doubt that the appellant’s solicitor would have objected. For the Chief Magistrate to have been consistent with the line of reasoning that her Honour was later to adopt in her judgment, she would have had to over-rule the objection and allowed the question. In my view, such a ruling would have been a clear error of law. This tends to confirm that the line of reasoning her Honour later adopted was erroneous.
Passages I, J, O, R - Conflation of the separate concepts of credibility and reliability
The appellant complains that various passages (particularly at passages I, J, O and R) have been taken into account by the Chief Magistrate as adversely affecting the credibility of Ms Stott, and particularly as to her assertion that the driver was a man called Leroy. Of course, if such comments were accurate and logical, there could be no complaint about them; but the appellant contends that the passages evince a conflation of the separate concepts of the credibility and reliability of Ms Stott.
If Ms Stott’s evidence as to being the passenger in the car had been disputed by the prosecution on the basis that she had not been the passenger but was falsely pretending that she had been (so as to make up lies as to the identity of the driver and matters surrounding the DNA evidence), the Chief Magistrate’s comments might have been unremarkable. However, the prosecution did not contest the proposition that Ms Stott was the passenger; the circumstances of her apprehension immediately following the collision, and the police broadcast of her particulars within three minutes thereof, made it uncontestable. That being so, it is difficult to see how her Honour’s comments such as at passage R [“She could not remember the episode where the car reversed at speed along South Road. She appeared not to recall that the pursuit took close to 50 minutes”] can logically discredit Ms Stott’s evidence as to the identity of the driver of the car.[17] The issue as to the acceptance of Ms Stott’s evidence as to the identity of the driver was one of credibility and not reliability since there was no possibility that she could have been mistaken on the matter of who was driving. This was a very different matter to her inability to describe correctly aspects of the chase itself, as to which she clearly was unreliable.
[17] Other similar examples occur in the passages at passages I, J and O.
In other words, the problem for the prosecution is that it is not disputed that Ms Stott was the passenger for the whole of the chase, including when the car reversed at speed along South Road, irrespective of whether she now remembers such things or not. Of course, Ms Stott may be shown to be unreliable in describing various aspects of the chase, but this does not help the prosecution; rather, it merely tends to confirm what Ms Stott herself says, that she had been drinking heavily. At the risk of repetition, the prosecution could not, and did not, contend that Ms Stott was so drunk as not to know whether or not the appellant was driving the car; rather, the prosecution case was squarely that she did know that the appellant was driving and that her assertions that Leroy was the driver were deliberate lies designed to assist the appellant.
In Goodrich Aerospace Pty Limited v Arsic, it was noted that judicial rejection of aspects of the evidence of a witness due to unreliability may prejudicially affect judicial consideration of the witness’ credibility on different matters. Thus Ipp JA (Mason P and Tobias JA agreeing) there stated:[18]
[20]… Care must be taken to differentiate between assessing whether a witness is being honest or deceitful, and whether a truthful witness is giving accurate or inaccurate testimony. Distinguishing truth from intentional deceit is a different exercise from distinguishing between true and false memory. A liar intends to be deceptive, whereas the faulty rememberer tries to be truthful (Schacter, op cit at 100). Discerning what is accurate or inaccurate in the testimony of a truthful witness may be the most difficult task of all. Particularly when cognitive illusions or memory malfunctioning and suggestibility are involved.
[18] [2006] NSWCA 187.
In that case, the cause of unreliability was “cognitive illusions or memory malfunctioning and suggestibility” whereas in the present case the rather more mundane matter of intoxication is involved. But the same principle applies: one must take great care not to allow rejection of aspects of a witness’s evidence on the grounds of reliability (here, Ms Stott’s description of the chase) to infect the adjudication of the witness’s credibility on central matters (here, Ms Stott’s assertion as to who was driving).
Passage G - the comments suggested internal inconsistencies within Ms Stott’s evidence
The lengthy comments by her Honour at passage G appear to suggest that Ms Stott made various statements on the topic of where the car went which are inconsistent, and thus damaging to her credibility. This is not a matter of assessment of demeanour but of analysis of the evidence. Either the evidence establishes real inconsistences or it does not.
In my view, it does not. Taking the first sentence in passage G, the fact is that Ms Stott never said in evidence that “he went straight there” and nor did she say anything which can be given such a definitive meaning. Her evidence at all times was that she was unclear about the details. Throughout her examination-in-chief she said: “we just went for a drive”; “we just drove around for a bit”; “we went for a drive around like my area”. Similarly, in cross-examination she said: “but then he went for – just drove around and that’s when the cops came”; “we just went for a drive there”; “I don’t know everywhere around Adelaide or where we were. Like I said I was pretty drunk”; “I’m saying I don’t remember where we were because I wasn’t really paying attention. I was just sitting back in the car”; “I remember the cops coming and chasing us but I don’t remember where it was where they first seen us because I wasn’t paying attention where we was. I was paying attention to the police”. The following passage in cross-examination fairly summarises her position:
Q Do you have any recollection about what happened that night? You were drunk?
AIt was last year and I was drinking like I said and I don’t remember exactly every detail of last year, like, you know, middle of the year or start of the year. Like, sorry, that it’s a bit hard to remember.
Q But you’re here telling the court that it wasn’t your uncle driving?
AYes, because I obviously remember that.
QYou haven’t been asked by the family to come and assist your uncle to get out of this situation have you?
AWell, I was the one in the car and now he’s getting locked up for something he didn’t even do so I came in here. Like, I said I was going to come in. I didn’t need them to ask me because I’m going to come to say it was my uncle when it wasn’t him when it’s something I done.
Ms Stott’s cross-examination concluded thus:
HER HONOUR
Q So he got out quicker because –
ABecause I was trying to get my door unlocked and I couldn’t get it unlocked and then by the time I got out the cops were already there.
CROSS-EXAMINATION
Q Did he say anything to you as he was running out of the car?
ANo I didn’t –
Q He didn’t say if you were alright?
AI was just looking out my door but when I looked at his seat he was already gone.
Q He was already gone?
AYeah.
Q He didn’t ask you if you were okay?
ANup.
Q Didn’t care about you?
ANo, he didn’t know me. He just left.
Q During the high speed chase were you asking to get out of the car?
ANo, I wasn’t because I obviously couldn’t get out at the time because –
Q Sorry?
AHe was going too fast and I couldn’t get out at the time. I just sat back.
Q I put it to you that you are lying about what transpired that morning.
AWell, I’m not.
Q It was your uncle driving the vehicle?
A No, he wasn’t.
Passage N - the comments as to Ms Stott declining to speak slowly, clearly and audibly
As to the Chief Magistrate’s approach to Ms Stott’s manner of speaking (at passage N), the appellant submitted in his outline of argument:
The witness was a young, indigenous female who at the time of giving evidence was living in a hostel. In this matter, the manner of speaking was not something that was indicative of her truthfulness.
That submission, though somewhat laconic, sufficiently makes the point. The remarks of the High Court in Fox v Percy[19] as to the general limitations of demeanour evidence are well known but perhaps the decision in Goodrich Aerospace Pty Limited v Arsic again gives more specific assistance in the present case. Ipp JA (Mason P and Tobias JA agreeing) there stated:[20]
[19] (2003) 214 CLR 118.
[20] [2006] NSWCA 187.
[18]Mason P, in his article “Unconscious Judicial Prejudice” (2001) 75 ALJ 676, discussed cognitive illusions revealed by psychological studies. His Honour pointed out that these illusions can lead to systematic error or bias when making factual findings (at 684 - 685). Amongst these illusions are overestimating the value and accuracy of one’s own judgment, and viewing one’s own behaviour and responses as typical and appropriate while different behaviour is regarded as odd and inappropriate. Cognitive illusions are capable of erroneously, and profoundly, influencing a judge’s opinion as to the veracity of evidence. The renowned American judge, Jerome Frank (in a statement referred to in “Cognitive Heuristics and the Law”, Leeanne Sharp, (1995) Vol 20 Bulletin of the Australian Society of Legal Philosophy 71) aptly remarked:
There can be no greater hindrance to the growth of rationality than the illusion that one is rational when one is the dupe of illusions.
…
[21]Another area where great care must be exercised in making demeanour findings is where a witness is from a different cultural and ethnic background to that with which the judge is familiar. That occurred in this case. Mr Arsic was born in Slovenia. The court was told that he came to Australia in about 1995. Mr Maslic was born in Bosnia and also came to Australia in 1995. Neither was fluent in English. Both had difficulty in expressing themselves. Mr Maslic, in particular, was said to have a strong accent.
[22]Sir Thomas Bingham (as he then was) illustrated the difficulties clearly when he said (in “The Judge as Juror”, (1985) Current Legal Problems 1 at 10-11):
[H]owever little insight a judge may gain from the demeanour of a witness of his belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter. Such matters as inflection become wholly irrelevant; delivery and hesitancy scarcely less so. ... If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in a deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear to the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer be given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.
Passages K, L, M - the comments “Leroy whom she could not describe, whom she met in an area in which the car was not recorded as going to, at a time she could not remember and whom she has not seen since”
The appellant complains about the Chief Magistrate’s comments at [49], passages K to M for a number of reasons.
As to the comment “Leroy whom she could not describe” [passage K], the appellant submits that while Ms Stott did not give a detailed description, she did give a description. Thus she gave evidence:
Q Can you describe Leroy?
AHe was average … I can’t really say anything about his face or anything because I can’t really remember but he was like not short but like not tall, like under, like in the middle area.
Q Can you remember what kind of clothes he was wearing?
AA black top with – I can’t remember his pants.
Q On his lower half was he was wearing pants or shorts?
A I think he was wearing shorts.
Ms Stott in cross-examination also gave evidence that Leroy “looked around my age, 16, 17 so I didn’t think it was a bad thing because I was drunk but it’s something obviously I wouldn’t do again”.
The Chief Magistrate did refer in her judgment[21] to the first passage above (but not to her evidence as to Leroy’s apparent age). The real gravamen of the appellant’s complaint here is that while one might properly comment that Ms Stott’s description lacks specifics, balancing comments were needed since there are plausible reasons as to why Ms Stott might not give further detail.
[21] At paragraph [43].
An obvious reason that equally explains why Ms Stott was unable to describe in detail the chase itself (at which she was undoubtedly present) and was unable to describe in detail the man Leroy (whom she says she saw), is the matter of her intoxication.
One might also think that, if there were a conspiracy between herself and the appellant was on foot, a good description of Leroy (given some verisimilitude by incorporating some features said to have been observed by police) would have been forthcoming. But in fact, Ms Stott gave evidence that Leroy “looked around my age, 16, 17” in circumstances where the appellant must have known prior to trial that Tollenaar was saying in his witness statement that the offender was approximately 30 years old; in any event, he certainly knew prior to calling Ms Stott that Tollenaar had in fact said that in Court. If there was a conspiracy, one might think that the inadvisability of deviating markedly from the police description would have been addressed.
As to the comment “at a time she could not remember” [passage L], this is a reference back to her Honour’s discussion in the previous paragraph [44] of her judgment, discussed in some detail above. For the reasons stated above, I do not consider it to be an accurate summary of Ms Stott’s evidence on this topic.
As to the comment “and whom she has not seen since” [passages M and also previously at H], on Ms Stott’s version of having first seen Leroy on the subject occasion, there is no reason to believe either that she would be able to find Leroy or that Leroy would be contacting her (and every reason to believe that he would not be, having regard to these criminal proceedings).
Passages P and Q - the comments: “Her explanation for taking a bag, which according to her uncle contained weights, a drink bottle, a towel and two pairs of gloves into town, was bordering on the incredible. I note that she went into town to drink and her evidence was that she did so. She did not use any of the items which she claimed she took and she did not attempt to use them.”
The evidence of the appellant and Ms Stott was that he was her uncle, that she was living with the appellant’s mother at Milner Road, and that he was living part time at that same address. The appellant gave evidence that he had left a bag containing weights, a drink bottle, a towel and two pairs of gloves at one of the places where he was staying in March/April 2013 and it would appear that the Chief Magistrate wrongly thought that Ms Stott gave evidence that she took all of these items with her into the city on 2 April 2013.
It may well have been that that mistake led to her Honour’s comment that this aspect of Ms Stott’s evidence was “bordering on the incredible”. However, this was not the evidence of Ms Stott. She stated:
Q Did you take anything with you into the city?
AYeah, a bag because it had my drink in there.
Q Did you take anything with you in that bag?
A Yeah, there was gloves in there and nothing else I don’t think.
(Emphasis added)
Thus Ms Stott’s evidence was that that she only took the gloves – not the weights, or towel – and it was agreed on the hearing of the appeal that the words “her drink” referred to the alcohol she was carrying rather than a drink bottle of the appellant. If the weights etcetera are put to one side, Ms Stott gave what appears to be a quite plausible (though discreditable) reason for taking the gloves. The fact that she did not in fact get around to any theft from vehicles on this particular occasion, due to supervening drinking and joy riding activities, does not render her explanation “bordering on the incredible”.
Conclusion as to the Chief Magistrate’s reasoning as to the evidence of the appellant and Ms Stott
As Redlich J observed in R v Thompson:[22]
[127]The consequences of the impugned attack on the applicant’s credit cannot be assessed as though credit is divisible, issue by issue. The jury’s assessment of his credibility would not necessarily have proceeded in a linear manner, as factual issues, including questions of credit, will often not be resolved in isolation from each other. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. Once the applicant’s credibility was improperly impugned it is not, in my view, possible to determine the extent to which that attack affected the jury’s assessment of his evidence on critical issues. [Footnotes omitted]
[22] (2008) 21 VR 135.
The cumulative effect of the various matters referred to above demonstrates that the Chief Magistrate has mistaken the evidence in some respects and taken an incorrect approach when considering the credibility of both the appellant and Ms Stott and in consequently rejecting their evidence. I find that the appellant has made out grounds 1 and 4 of appeal.
PART D: THE CIRCUMSTANTIAL EVIDENCE
The Chief Magistrate based her conclusion that counts 1 to 3 were proven on the basis of the circumstantial evidence (together with only limited weight given to the description evidence as noted above). Her Honour delineated the categories of circumstantial evidence (with numbers added for analysis) thus:
Of more weight is the fact that 1 a person was seen to flee, was chased and was subsequently located only one house away from where he was last heard to be on and then off the roof. There was a tight police cordon in place. 2 The dog located a fresh scent. 3 It appeared from the steam on the windows of that vehicle that he had not been in the car for long. Based on all this accumulated evidence together with 4 the evidence of Ms Fietz, I am satisfied that the defendant was the driver of the stolen car.
I will consider those items of circumstantial evidence in that order (and then consider the cumulative effect of all of the evidence).
1. “A person was seen to flee, was chased and was subsequently located only one house away from where he was last heard to be on and then off the roof. There was a tight police cordon in place.”
With respect, this proposition rather assumes that which is to be proven. A person (the driver) was seen to flee and was chased. And a person (the appellant) was encountered not far from where the driver was last seen. But the whole point is that the appellant denies that he was the driver and one must not assume, as the above proposition does, that the first and second named persons were one and the same individual (“a person” who was “subsequently located”).
For the purposes of understanding the defence case, and considering the suggestion that “there was a tight police cordon in place”, it is vital to have a good appreciation of both the evidence of the geography of the area and the timing of the critical events. The plan attached as an appendix to this judgment closely approximates the aerial photograph Exhibit P6.[23]
[23] The aerial photograph exhibit P6 itself cannot be attached for technical reasons.
The high speed chase ended in Darebin Street, Mile End, which runs east – west. The driver was driving east on Darebin Street, with police cars in pursuit when the stolen car collided with the police car driven by Tollenaar, and then immediately ran into a parked van. The only other police officers in the vicinity of the collisions were those in the following cars. Obviously, there was no stationary police “cordon” in place at that particular location prior to the collisions occurring.
The driver immediately got out of the car and ran at a fast pace to the east on Darebin Street with the police officers Kassebaum, McDonald and Smith (who had been in police cars behind Tollenaar) and also Tolenaar chasing him on foot.[24] The driver, on reaching the intersection of Darebin Street and Attrill Avenue, turned right and ran fast south down Attrill Avenue, initially on the western side, then crossing to the eastern side. Shortly after, he ran into a house property on the eastern side of Attrill Avenue and escaped by climbing the fence, getting on to the garage roof and then proceeding in an unknown direction.[25]
[24] Tollenaar also did so for a while but turned back after about 30 metres.
[25] Smith grabbed the legs of the driver as he climbed, but unfortunately the driver shook free and escaped.
Although there is no precise measurement in evidence, the total distance run by the driver and his pursuers from the stationary stolen car to where police lost sight of him would have been less than 200 metres[26] and only a very short period of time would have been needed to run that distance, probably under a minute.
[26] Kassebaum gave evidence that from the intersection of Darebin Street and Attrill Avenue to the the house where the driver was last seen was only about 100 metres. On the aerial photograph Exhibit P6, that distance appears to be about twice the distance from the position of the stationary stolen car on Darebin Street to the intersection with Attrill Avenue. Accordingly, on that basis, the sum of those two distances (the total distance run) would be about 150 metres.
The Chief Magistrate asserts that the driver “was last heard to be on and then off the roof”. However, I have read the transcript a number of times and cannot find any passage that states, or is suggestive of, this proposition. The evidence of the three pursuing officers (Kassebaum, McDonald and Smith, the only persons there), was that they saw the driver on the roof. They gave no evidence that he was “heard to be on the roof” and they gave no evidence he was “heard to be then off the roof” or that he was seen to be off the roof. This is important, because the fact is that there was no observation by the police officers of the direction in which the driver went after police lost sight of him on the garage roof or as to how the driver then proceeded (for example from roof to roof) before descending to the ground, wherever that descent actually occurred.
Further, there is a deal of confusion in the evidence as to precisely where this fence and garage roof was in Attrill Avenue. The number of the property was variously claimed to be (in numerical order) 11, 15, 17, 19 and 21. The prosecutor opened the case by stating “The information you’ll hear, he climbed onto a fence at 17 Attrill Avenue, just around the corner room where the car collided”. It is unknown what “information” the prosecutor was referring to here, since the address of 17 Attrill Avenue thereafter disappeared from the case without a trace; the prosecutor did not elect for any particular number in his closing address.
Kassebaum said that the house where the driver was last seen was about 100 metres down Attrill Avenue (from its intersection with Darebin Street). He thought it was number 11, but he also said that it was the house with the green roof level with Lilley Street (which would have made it number 15). Kassebaum said that he continued over the green roofed house into its back yard and then over the fence adjoining the red roof house where he went through the side yard and ended up in Lilley Street. Kassebaum thought that the driver was somewhere ahead of him, but he never saw him or heard him. Kassebaum then moved to a position at the intersection of Clarence Street and Lilley Street and remained there for five to ten minutes until the dog handlers arrived.
McDonald said that the officers lost the driver at number 21 Attrill – “he managed to jump his way up onto the roof at no. 21”. McDonald said that he then remained at the front of number 21 (Attrill) – “I just took it upon myself to try and maintain visual obs of him while other members set themselves up”.
Of the three officers, Smith got the closest to the driver. He said that he was about 20 to 25 metres behind the driver as he turned right into Attrill Avenue. He said that the driver ran east across Attrill Avenue and into the front yard of a house which had a garage with a roller door butting up to the fence; the driver scaled the fence separating the properties and got on to the garage roof. Smith was able to momentarily grab the driver’s leg whilst he was on the roof, but the driver broke free and the driver continued over the roof of the garage. Smith said in evidence “I believe, as I say, I gave the directions of 19 Attrill”. Smith then went back to Attrill Avenue and initially waited in front of that house in Attrill Avenue. He later took up a cordon position at the corner of Attrill Avenue and Darebin Street.
As appears from the aerial photograph Exhibit P6 (and the appendix to this judgment), if one proceeds south down Attrill Avenue to about number 15, the housing to the east of Attrill Avenue is very dense over an area bounded on the west by Attrill Avenue (running north – south); on the east by Halifax Street (running north – south); to the north by Darebin Street (running east – west); and to the south by Lilley Street (running east – west). Within this area, there appears from Exhibit P6 to be 23 house properties separated by fences. It can clearly be seen from Exhibit P6 (and the appendix to this judgment), that there is no access to vehicles in this very dense area.[27]
[27] The blocks on the appendix plan indicate the same number of house properties in this “very dense” area as appear on Exhibit P6.
Obviously, if the driver got into that area[28] and continued scaling fences (as the driver was wont to do) the police would have had a very difficult job in finding him. If the driver had ended up in Lilley Street by coming through from 15 Attrill Avenue, he could have immediately headed north into that same dense area; alternatively, he could have proceeded to the east along Lilley Street to Halifax Street; or he could have turned right (to the south) at Clarence Street at its intersection with Lilley Street and continued further south to Sir Donald Bradman Drive.
[28] As he would have directly if he came through from number 11 Attrill Avenue as McDonald had, or if he had turned north from Lilley Street.
“There was a tight police cordon in place”
The idea of a “tight cordon” was promoted by the prosecutor at trial, but there was never a physical barrier of any kind, and the metes and bounds of any “cordon area” under surveillance by police were never spelt out in evidence.
But most important of all, was the question of timing. It was the prosecution case that it was Tollenaar who was responsible for putting “a cordon” in place. Tollenaar said that after the collision, he was delayed in getting out of his car because it had become locked during the chase; he gave evidence that by the time that he got it unlocked, the driver “had a fair distance on me” and the other officers Kassebaum, McDonald and Smith ran past. Tollenaar stated that he ran after the driver for some 30 metres, realised that he could not catch him, and left the pursuit to the others. He then “returned to the car”, no doubt walking the 30 metres back; he observed that “obviously I’m not 20 years old anymore so I’m not as fast as I used to be.” He also said that he then assisted in arresting the female passenger, Ms Stott. It was only after all of this that he proceeded to “set up a forward command centre” and started to organise “cordons”.
In any event, it is not possible that cordons were in place at the time when the driver escaped from Kassebaum, McDonald and Smith on to the garage roof on Attrill Avenue. At that time, those officers were behind the driver and if the driver continued to run without stopping following his escape, there were simply no officers ahead of him to stop him or to see him. He would have been out of that area very quickly and before police officers could get in place in front of him; that was inevitably so, no matter how skillful and practised the police were in these matters.[29]
[29] Of course, a cordon may have been efficacious in relation to an offender who had stopped running fairly soon and attempted to hide, and was therefore worth deploying as a tactical matter.
As noted above, the three pursuing officers on foot were Kassebaum, McDonald and Smith. After losing the driver, McDonald and Smith went back to the west and took up positions in Attrill Avenue. Kassebaum was the only officer who headed east and took up a position at the intersection of Clarence Street and Lilley Street. He did not see the driver from that position, and he would not have expected to if the driver had kept running without stopping.
Kassebaum stated that after he, McDonald and Smith had lost the driver, Kassebaum waited at the intersection of Clarence Street and Lilley Street for five to ten minutes until Stevenson and Rosenhahn (two dog handlers from “Star Group”, formerly known as “Star Force”) arrived. Stevenson had been on solo mobile patrol with his dog “Riggs” and had parked his car on Darebin Street and made his way with Riggs to the intersection of Clarence Street and Lilley Street. Rosenhahn had also been on solo mobile patrol with his dog “Koda” and attended at the scene where he was advised of the location of the last sighting of the driver. He then went to the intersection of Clarence Street and Lilley Street. Rosenhahn and Stevenson decided between themselves to search Lilley Street and Clarence Street. I return to the topic of that search later.
2. “The dog located a fresh scent”
There were some words used by the prosecutor at trial that were calculated to conjure up an image of a bloodhound, with its nose to the ground, following the course taken by a particular person by detection of a deposited scent. It is important to note that that is exactly what was not happening in this case; and to be fair to Stevenson and Rosenhahn, they did try to correct the prosecutor in this regard. It is quite clear that the police dogs were not “tracking” the driver and they were not following any signs left by the driver along the route he took after the police last lost sight of him.
The words of the Chief Magistrate “the dog located a fresh scent” meant no more than that the dog located a fresh scent in the yard of 10 Clarence Street after being taken by their handlers from the streets into the yards of a number of house properties, one after another, in an effort to detect fresh human therein.
3. It appeared from the steam on the windows of that vehicle that he had not been in the car for long
This is a minor matter. Stevenson gave some rather vague evidence that the windows of the red vehicle next to the appellant (right rear passenger and behind him on the rear window) were “fogged up” whereas the other windows were not – “it just looked like those windows were fogged”. He later stated that “my suspicion was that male had just got into that car by the amount of steam that was on those windows”.
However, the evidence of the appellant was that he was roused by the noise being made by police and was looking around from his position in the right rear seat. If there was some indication of fogging up linked to the presence of the appellant, the possibility that that may have been caused by him breathing on the windows as he tried to look through them has certainly not been negated.
PART E: THE DNA EVIDENCE
The last item of circumstantial evidence mentioned by her Honour was the DNA evidence. The prosecutor called Ms Fietz, who was conceded by the solicitor for the appellant to be an expert witness in this field. Her report (the report) was received in evidence as Exhibit P7. Two hypotheses are expressed at page 1: “H1: Williams is a contributor” and “H2: Williams is not a contributor”. It is stated that “the statistical weighting” is “13,000 (in favour of H1)”. Ms Fietz stated that that statement equates to the proposition that “It is 13,000 times more likely to obtain the profile from that sample if Mr Williams is a contributor” (the “13,000 statistical weighting proposition”).
Taking the 13,000 statistical weighting proposition at face value for the moment, the appellant essentially postulates three possibilities consistent with the proposition that the appellant did not deposit DNA on the steering wheel.
The first possibility is that a person unknown to the appellant deposited the DNA which accounted for the findings. This involves a consideration of the purport and effect of the 13,000 statistical weighting proposition. The second possibility (in one way, a specie of the first possibility) is that Ms Stott, a close relative of the appellant, may have contacted the steering wheel and may therefore have deposited the DNA which accounted for the findings on DNA analysis. The third possibility is that of cross-transference of the appellant’s DNA from the inside of his glove to Leroy’s finger(s) and thence to the steering wheel.
The Chief Magistrate appears to have rejected each of those possibilities, but with very little stated reasoning. The whole of her Honour’s analysis of the DNA evidence appears thus:
[20]Pamela Fietz gave evidence as a qualified forensic scientist. Her report was tendered as Exhibit P7. She compared reference samples with swabs from the gearstick and steering wheel of the stolen car. She indicated that she was unable to obtain a DNA profile from the gear stick. As for the steering wheel, there were three contributors. One was the owner, Ms Hines. Another was 13,000 more likely than not to be that of the defendant than any other person. According to Ms Hines’ statement (Exhibit P1), she had given her parents’ permission to drive the car whilst she was out of the State. The car was stolen from their house whilst she was out of the State.
[21]In cross-examination, Ms Fietz agreed that there was a phenomenon called ‘secondary transfer’ in which DNA could be transferred from one item to another and then onto another item. She agreed that it was possible that DNA could be inside a pair of gloves then transferred to another person and from them onto another item such as the steering wheel. She also said that related persons have DNA which is more closely related. As she had not been given a sample from the defendant’s niece, she could not exclude her as a contributor.
…
[50]The effect of the evidence of Pamela Fietz is that the DNA found on the steering wheel is 13,000 more likely than not to be that of the defendant. Having rejected any evidence about Leroy, it follows that I reject the possibility that the gloves were in the car and that he tried on one of them. I reject the possibility that the DNA could have been Stott’s given that she is a relative as there is no evidence at all of her touching the steering wheel.
[51]… Based on all this accumulated evidence [the non DNA evidence] together with the evidence of Ms Fietz, I am satisfied that the defendant was the driver of the stolen car. (Emphasis added)
Needless to say, the appellant takes particular issue with paragraph [50] of the Chief Magistrate’s judgment.
The first possibility: a person other than the appellant deposited DNA which accounted for the findings on DNA analysis
On calling Ms Fietz, and after less than two pages of formal introductory evidence, the police prosecutor turned to Ms Fietz’ report and put his first substantive question thus:
QFrom your assessment you indicate that Mr Williams is a contributor to the DNA located on the steering wheel?
OBJECTION: MR GRAHAM OBJECTS
HER HONOUR: I think the witness’s evidence was that Mr Williams was 13,000 times more likely to have been one of the multiple contributors than not.
HER HONOUR
Q Is that a fair assessment of what you’ve said Ms Fietz?
AYes. It’s 13,000 times more likely to obtain the profile from that sample if Mr Williams is a contributor.
Nonplussed, the prosecutor then sat down without asking a single further question; apart from formal matters, there was no examination-in-chief at all.
The “prosecutor’s fallacy”, the “defense attorney’s fallacy”, and other things
In the report, two hypotheses are expressed at page 1. They are “H1: Williams is a contributor” and “H2: Williams is not a contributor”. It is then stated that “the statistical weighting” is “13,000 (in favour of H1)”. At page four of the report, the terminology is further explained thus:
Assessment of the Evidence
DNA profiles are initially assessed to determine the number of contributors. This will be the most likely number of people that are required to explain the observed profile(s). This number is reported and used for calculations, however it is noted that there is always the possibility that the profile has originated from more than this number of people. If there are individuals who are assumed to have contributed DNA to a sample then this will be noted in the profile description as “including person”.
When comparing an individual to one or more evidence DNA profiles, there are generally two competing possibilities (known as hypotheses, H1 or H2) to explain the observed DNA profile(s):
H1: A person of interest (POI) is the source of, or a contributor to, the DNA obtained.
H2: The POI is not the source of, or contributor to, the DNA but rather it was left by an unknown person(s).
The specific contributors that are considered under each hypothesis include any assumed contributor(s), POI(s), plus unknown individual(s) up to the number of contributors to the profile. The probability of the evidence given each of these scenarios can be calculated. The ratio (‘X:1’) of the two probabilities is called the likelihood ratio (LR) (1). In mixed DNA profiles the numerator and denominator of the LR can be calculated using formulae described in Curran et al (3) with the inclusion of peak height information. The LR can be expressed as “The DNA profile(s) obtained from the sample is approximately X times more likely to have been obtained if the people designated in the first hypothesis are the sources of DNA rather than the people designated in the second hypothesis”. If the value of ‘X’ in the above statement is greater than 100 billion the value of ‘> 100 billion:1’ will be used. Given alternative scenarios, it is possible to calculate additional LRs.
It appears tolerably clear that the expression of the “statistical weighting of 13,000 (in favour of H1)” by reference to the two hypotheses at page 1 of the report is for present purposes the same concept as the “likelihood ratio” referred to at page four of the report and discussed under that name in many of the cases. In considering some relevant matters, I will begin with the judgment of Mason P in The Queen v GK, taking the lead from Doyle CJ who stated in R v Karger:[30]
[28]As to the approach to be taken to expert statistical evidence interpreting evidence about a DNA match in particular, I gratefully refer to and adopt the general observations made by Mason P in GK. His Honour’s reasons contain a valuable summary of the matters that call for consideration by a trial judge and by a court of appeal.
[30] (2002) 83 SASR 135, 143-144.
In The Queen v GK, Mason P addressed a number of matters of present relevance, including “the prosecutor’s fallacy” and “the defense attorney’s fallacy”. His Honour stated:[31]
[31] (2001) 53 NSWLR 317, 328-329.
[47] But there are real dangers in misunderstanding the statistics in this area (for some empirical evidence of this, see Thompson & Schumann, “Interpretation of Statistical Evidence in Criminal Trials: The Prosecutor’s Fallacy and the Defense Attorney’s Fallacy” (1987) 11 Law & Human Behaviour 167).
[48] In R v Doheny and Adams, Phillips LJ (as he then was) said this (at 372–373):
‘The Prosecutor's Fallacy’
It is easy, if one eschews rigorous analysis, to draw the following conclusion:
1Only one person in a million will have a DNA profile which matches that of the crime stain.
2 The defendant has a DNA profile which matches the crime stain.
3Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.
Such reasoning has been commended to juries in a number of cases by prosecuting counsel, by judges and sometimes by expert witnesses. It is fallacious and it has earned the title of ‘The Prosecutor's Fallacy’. … The nature of that fallacy was elegantly exposed by Balding and Donnelly in ‘The Prosecutor’s Fallacy and DNA Evidence’ [1994] Crim L R 711. It should not, however, be thought that we endorse the calculations on pp 715 and 716 of that article.
Taking our example, the prosecutor’s fallacy can be simply demonstrated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.
The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant’s guilt.
The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio reduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached.
…
[51]As to the prosecutor’s fallacy, see also M Redmayne, “Doubts and Burdens: DNA Evidence, Probability and the Courts” (1995) Criminal Law Review 464 at 474–476, Thompson & Schumann, op cit. (The latter article describes the Defence Attorney’s Fallacy as the suggestion that associative statistical evidence is irrelevant regardless of the rarity of the matching characteristics. What this reasoning fails to take into account is that the great majority of the pool of people with relevant matching are not suspects in the case against whom additional evidence is available linking them with the offence. On this, see also the passage from R v Doheny and Adams quoted above.) (Emphasis added)
Discussion
At the real risk of over simplification, the warnings against succumbing to either “the prosecutor’s fallacy” or “the defense attorney’s fallacy” convey a similar message. It is that the “13,000 statistical weighting proposition” cannot be considered in a vacuum. If (and granted that it is a big if) one knew nothing more about a case other than that someone in South Australia committed a crime on 3 April 2013 at which the present DNA findings were detected, then taking the basic methodology referred to in The Queen v GK, the “13,000 statistical weighting” does not mean that the odds are 13,000 to 1 that the appellant contributed to the DNA result. What it does basically mean, at least as a starting point, is that if one were to take the relevant population base to be the population of South Australia (as at 3 April 2013) and (purely for the sake of ultimate round figures) one were to take an underestimate of that population as 1.3 million persons,[32] then statistically one would expect to find 100 persons[33] whose deposit of DNA on the steering wheel would have led to a test result indistinguishable from that now before the Court. To complete that admittedly simplistic picture, it may be said on the above basis that if one has regard to the DNA evidence only, there is a statistical expectation that (at least) any one of 100 persons in South Australia could equally have left the relevant DNA deposit.[34]
[32] The population of South Australia was significantly greater than 1.3 million as at April 2013.
[33] One divides the population base (here taken to be 1.3m for illustrative purposes only) by 13,000.
[34] The cautionary defense attorney’s fallacy must also be taken into account as explained in The Queen v GK and other decisions and I will not attempt to restate the matters which are to be considered under that rubric.
The paucity of evidence and analysis in the present case does cause concern for additional reasons. The classic DNA analysis is often referred to as “crime stain” analysis in that it is most often the case that the material which yields a DNA result upon analysis is positively linked to the crime under investigation. An obvious example occurs where the offender kills the victim with a knife but is known to have also cut himself in the process and to have left his own blood, as well as the victim’s blood, at the crime scene. If it is found that there were two contributors to DNA findings derived from blood found at the crime scene, one of whom was almost certainly the victim, then one sees the logic in saying that the other contributor is almost certainly the killer. (Of course, in addressing the further and separate step of attempting to demonstrate that a particular suspect is that killer by “matching” the suspect’s DNA to the DNA found at the crime scene, one must still consider all relevant matters such as contamination, cross-transference and the true meaning of any “statistical weighting” or “likelihood ratio” that is calculated.)
However, in the present case, there is an additional layer of imponderables in addition to those to be considered in the “crime stain” analysis scenario above. Here, the DNA findings are taken from the steering wheel of a 1992 model car. There is no evidence as to whether the samples on the swabs were mixed with sweat. There is no evidence as to how long such DNA could be detected on the steering wheel after initial deposition. It must therefore be assumed in the absence of evidence to the contrary that this could be a considerable period of time. Obviously, each of the contributors said to be responsible for the mixed reading could have deposited their respective DNA at quite different times and places.
The car was in all probability being driven by no later than the end of 1992. There is no evidence as to the numbers of owners of the vehicle and, of much more importance, there is no evidence as to the total number of drivers (or non-drivers for that matter) who may have touched the steering wheel over the 22 year driving history of the car up to 3 April 2013. There is no evidence as to the number of kilometres that the vehicle has travelled during that time and it may be that the car has travelled all over Australia, thus tending to indicate a greater potential population of contributors – over a long period of time – than if the material analysed came from a fixed object anchored in South Australia. To join the dots (at least partly), on the evidence in the present case, the DNA analysis shows (at least) three contributors; those contributions are not linked in time or place and each may have been made at separate times and places, any time between 1992 and 3 April 2013, at any locations in Australia.
There is no indication in the DNA report that any of these matters have been addressed in order to assess the significance of the 13,000 statistical weighting figure on the facts of the present case. The report is of a proforma nature, with little or no effort having been made to adjust its generic statements to the particular case under consideration.
A useful discussion of such matters is to be found in the decision of the New South Wales Court of Criminal Appeal in R v Keir.[35] The defendant was charged that on or about 9 February 1988 at Tregear in New South Wales he murdered his wife, Jean Angela Keir. Mrs Keir’s body was not found but some human bones (the subject bones) were found on the defendant’s property in 1991 and DNA extracted from those bones was compared with DNA extracted from six bone fragments and blood from Mrs Keir’s biological parents, Mrs Christine Strachan and Mr Gaspar Baan. Mrs Keir was their only child.
[35] (2002) 127 A Crim R 198.
The testing indicated that the subject bones were those of a female, and by analysis of mitochondrial and nuclear DNA, that they could have been the bones of a child of Mrs Strachan and Mr Baan. The forensic biologist expressed the result of his calculations as a likelihood ratio, that “it is approximately 660,000 times more likely to obtain this particular DNA profile found in the bones if it comes from a child of Christine Strachan and Gaspar Baan than from a child of a random mating in the Australian population”. He said that the result very strongly supported the hypothesis that the subject bones were “from an offspring of Christine Strachan and Gaspar Baan”.
Giles JA (with whom Greg James and McClellan JJ agreed) reproduced the passage from R v Doheny and Adams[36] (which appears within the extract from the judgment in the Queen v GK above) and then stated:
[24] As the explanation applies in the present circumstances, the move from (i) to (ii) above left out of account that within the Australian population there could statistically be other matings producing the DNA profile found in the bones; and further, attention cannot be confined to the Australian population. If the bones are 660,000 times more likely to be those of a child of Mrs Strachan and Mr Baan than of the child of a random mating in the Australian population, there will still be a number of random matings in the Australian population producing the DNA profile found in the bones; and because the child whose bones were found at Tregear could have been conceived anywhere in the world, there could be many matings not in the Australian population producing the DNA profile found in the bones.
[25] If attention is confined to the Australian population, a rough calculation of the kind undertaken in Doheny and Adams is difficult because conception of a child at an unknown time whose bones might have been those found at Tregear in 1991 is not the same as leaving a crime stain at Tregear in 1991. But on any view the relevant Australian population at the time of the random matings must be many times 660,000. The Crown accepted that statistically there could be maybe thirty random matings in the Australian population producing the DNA profile found in the bones. …
[26] But in this case attention could not be confined to the Australian population. What the DNA statistical evidence meant was more complex, for that reason and because of the range of possible times of conception. If regard were had to the world population, there could be many more persons with the DNA profile found in the bones. (Emphasis added)
[36] R v Doheny; R v Adams [1997] 1 Cr App Rep 369.
We see here a situation analogous to the present case. Giles JA noted that “conception of a child at an unknown time whose bones might have been those found at Tregear in 1991 is not the same as leaving a crime stain at Tregear in 1991”. This meant that one could not consider a fixed population base as at the date of discovery in 1991; rather, one had to appreciate that the relevant population was much greater, in that it had to take into account the changes in population over the period in which the bones may have been deposited prior to their discovery in 1991.
Thus, as Giles JA put it, “on any view the relevant Australian population at the time of the random matings must be many times 660,000”. Further, in view of the period of time over which the bones may have been deposited, his Honour considered that there was no reason to restrict the geographical population to Australia. Consequently, “If regard were had to the world population, there could be many more persons with the DNA profile found in the bones.”
In an interesting comment concluding his judgment, Giles JA stated “In a case such as the present, not of the crime stain kind, it may not be easy to give proper guidance to the jury, and if that cannot satisfactorily be done it may be that discretionary considerations will arise in relation to admission of the DNA statistical evidence.” I do not dwell on, or consider, this comment other than to say that it at least underlines the real difficulties that may arise when the factual situation is not of the crime stain variety.
Of course, the present case is not governed by the test applicable under the Controlled Substances Act 1984 that was under consideration in Nguyen, but by the more strict common law test of reasonable belief. An important decision following Eccles v Bourque[103] and confirming that it is this higher level of reasonable belief that is applicable at common law is that of the New South Wales Court of Appeal in Lippl v Haines.[104] Chief Justice Gleeson of New South Wales (as he then was) there emphasised the fact (as noted above) that the general power to arrest (on the one hand), and a further common law power to enter private property to exercise that power of arrest (on the other hand), are two very separate matters. His Honour observed that the trial Judge had failed to appreciate that distinction, stating: [105]
The learned trial judge dealt with the case upon the basis that s 352 of the Crimes Act itself solved the problem, and his Honour only made findings of fact relevant to that section. Section 352 authorises arrest without warrant where a constable, with reasonable cause, suspects the arrested person of having committed a crime. Accordingly, his Honour addressed the question whether the police officers in this case, when they burst into the appellant’s house, reasonably suspected the men they were looking for of having committed offences. He made no specific finding about the presently relevant issue, which is whether, prior to entry, they believed on reasonable and probable grounds that the men were in the house. That is a different question. (Emphasis added)
[103] (1974) 50 DLR(3d) 753.
[104] (1989) 18 NSWLR 620.
[105] (1989) 18 NSWLR 620, 622-623.
As to the power to enter upon private property, Gleeson CJ stated: [106]
If a police officer is authorised by s 352 to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making, or endeavouring to make, such an arrest. His conduct will be lawful where the entry is reasonably necessary for the purpose mentioned, but always provided two conditions are satisfied. First, he must believe on reasonable and probable grounds, prior to entry, that the person he is seeking to arrest is on the premises. Secondly, save in what the Supreme Court of Canada [Eccles v Bourque] described as exigent circumstances, there must be a proper announcement prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.
The above principles are stated in terms of forcible entry, because that is the problem which arises in the present case. Non-forcible entry may give rise to additional questions, such as questions of implied licence, which are not presently relevant: cf Halliday v Nevill (1984) 155 CLR 1.
[106] (1989) 18 NSWLR 620, 622.
Both Gleeson CJ and Hope AJA emphasized that there is no common law power to enter private property in order to see if a particular person is there. Thus Gleeson CJ stated: [107]
It would be inappropriate in a context such as the present to make the lawfulness of the conduct of police officers pursuing criminals depend upon fine shades of meaning of words or nice distinctions. It is not necessary, in order for the first condition to be satisfied, that police officers know with certainty of the presence in premises of a fugitive. Belief on reasonable and probable grounds is sufficient. On the other hand a mere possibility is insufficient to justify entry. … (Emphasis added)
[107] (1989) 18 NSWLR 620, 623.
And Hope AJA stated: [108]
The learned trial judge found that in entering the premises the police officers had a suspicion based upon reasonable grounds with reasonable cause that a person or persons were present when he committed offences and whom it was appropriate for them to try and apprehend. Whether the police officers had reasonable cause for their belief has been challenged, but with respect to his Honour the evidence I have referred to establishes not that the police believed that Mathews or Fry were in the house but rather that they might be in the house. …
I should add that there was no common law power to enter forcibly to search a house in order to see whether an alleged offender was there. (Emphasis added)
[108] (1989) 18 NSWLR 620, 627-631.
To the same effect, Hope AJA further stated: [109]
The application of the common law rules as to entry by constables holding a warrant to arrest to constables exercising statutory powers to effect arrests without warrant was considered by the Supreme Court of Canada in Eccles v Bourque. There a bench of nine justices sat, and eight agreed, in relation to the matter under consideration, with the judgment of Dickson J. … He concluded that there was nothing in the section which conferred a power to commit a trespass and that therefore the authority must be found in the common law. He concluded that a person exercising a statutory power to arrest had a power to enter a house against the will of the householder but only if:
(a) there were reasonable and probable grounds for the belief that the person sought was within the premises; and
(b) proper announcement is made prior to entry.
In relation to the first question, he concluded that the fact that the fugitive was not found on the premises did not make the entry unlawful, provided that the police officer had reasonable and probable cause to believe that the person sought was in the premises.
… it is not to be imagined that Parliament intended to confer on constables intending to effect an arrest without warrant wider powers of entry than those they would have if they held a warrant for the arrest. It follows that the powers of entry are subject to the important qualifications which were described in Eccles v Bourque.
If that be so, there was no power to enter in the present case unless the conditions were satisfied. As I have already indicated, in my opinion the relevant police officers did not hold any opinion that Mathews and/or Fry were in fact in the plaintiff's house; they believed that he might be there. (Emphasis added)
[109] (1989) 18 NSWLR 620, 633.
PART I: THE PRINCIPLES GOVERNING THE EXCLUSION OF UNLAWFULLY OBTAINED EVIDENCE
In R v Ireland, Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ concurred) stated: [110]
… Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[110] (1970) 126 CLR 321, 335.
In Bunning v Cross, Stephen and Aickin JJ (with whom Barwick CJ concurred) approved the above passage and emphasised that the discretion is not limited to the direct protection of the rights of a particular individual but extends to the protection of the broad rights of members of the community to have the laws of the community obeyed by police officers as well as other individuals:[111]
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[111] (1978) 141 CLR 54, 74.
After giving examples of cases which do not involve “unfairness” to the defendant, including that of discovery of real evidence by the use of an unlawful search of premises, their Honours continued:[112]
These are cases into which unfairness does not enter at all. They are, however, cases in which the considerations referred to in Ireland’s Case may be of the greatest relevance. The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be “a less evil that some criminals should escape than that the Government should play an ignoble part”—per Holmes J in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. [Footnotes omitted]
[112] Bunning v Cross (1978) 141 CLR 54, 77-78.
The unlawful entry and search in the context of the following assaults and unlawful detention
In the last sentence of the above passage, their Honours indicated that it may be inappropriate to exclude evidence where the factual context shows police conduct to be isolated, accidental, mistaken or non-reckless.
I have already considered the misconduct of Stevenson and Rosenhahn towards the appellant in the rear yard of 10 Clarence Street. That misconduct constituted a seamless continuation of police misconduct which commenced with the unlawful entry and search of various nearby properties by Stevenson and Rosenhahn, continued with the unlawful entry and search of the premises at 10 Clarence Street, and culminated in the unlawful behaviour of Stevenson and Rosenhahn toward the appellant occurring in the rear yard there from a little before 6am to a little before 6:17am.
Just before 6:17am, Grant and Ralston, who are now said to be the police officers who “arrested” the appellant,[113] took the appellant from Stevenson and Rosenhahn and delivered him a short distance away to Senior Constables Kassebaum and Smith at the “forward command post” in Darebin Street.[114] They commenced speaking to the appellant at the recorded time of 6:17am.
[113] Although the appellant is alleged to have resisted arrest by Stevenson and had an arrest “effected” on him by the indefatigable Koda.
[114] So called by Tollenaar.
I have referred above to various matters demonstrating that it was quite inappropriate for Kassebaum and Smith to interview the appellant at all. However, despite those obvious matters, Kassebaum and Smith proceeded to detain the appellant in a police car at Mile End, in circumstances redolent of intimidation and compulsion. The appellant was handcuffed to the rear. When the interview commenced at 6:17am, just a few minutes after the appellant had been attacked by the dogs (in the presence of Senior Constables Stevenson, Rosenhahn, Ralston and Grant), neither Kassebaum nor Smith apparently gave any consideration to whether it was inappropriate to immediately interview the appellant.
In fact, Kassebaum and Smith had a duty of care to the appellant as a person detained in their custody and, at the very least, they should have furnished the appellant medical attention for his wounds and given him time to settle down from what had no doubt been a very frightening experience. Regrettably, matters deteriorated even further as the interview progressed. The appellant made clear that he wished to see a lawyer:
QYep you’re entitled to have a solicitor, relative or friend present during any interrogation or investigation whilst in custody. Do you understand that? You understand you can have a solicitor present if we interview you?
AYep.
Q Do you wish to have someone present if we interview you?
AYes thank you.
…
QOK you shall while you remain in custody be entitled to refrain from answering any questions. Do you understand that?
AI understand.
Q Do you have any request in relation to that right?
AJust to speak to my lawyer. (Emphasis added)
The police then directed the appellant to undergo a mandatory alcotest procedure and he complied. He was still handcuffed and informed the police that he was in pain. He received the following unfriendly response:
A… my shoulder’s getting sore, my right shoulder. I was wondering whether I could put these on the front if that’s alright?
Q Hey?
AI was wondering whether I can put the cuffs on the front?
Q Well you’ve got to talk to these other officers they’re taking you.
AYep would you be able to ask? Excuse me officer.
Q No you have to wait.
AAre you taking us …
Q No we’re not the other guys are. Try and sweet talk them. (Emphasis added)
It was at this time that Kassebaum finally raised the topic of the dog attack. I emphasise that this is not a matter that was raised by the appellant in the interview. It was obviously already well known to Kassebaum, as is confirmed by the form of his question:
Q … You got any holes, puncture wounds or anything?
AWell I think I have. … (Emphasis added)
Kassebaum’s source of knowledge of the dog attack was most likely Grant and Ralston[115] who had handed the appellant over to Kassebaum and Smith. However, this information was also available to all of the police via the radio communications which included the following:
05.57:57: At Number 10 Clarence Un-cooperative – two dogs took him down as male was struggling
06:04:58: Nil persons injured other than offender re the dogs biting him a bit
[115] Their evidence is considered above.
In any event, Kassebaum and Smith made only the minor concession of moving the handcuffs from the rear to the front and the questioning continued with the appellant’s clear requests to see a lawyer (reproduced above) being completely ignored.
The appellant would have perceived Stevenson and Rosenhahn (who had caused the brutality) and Ralston and Grant (who had done nothing to stop it) as all friends and colleagues of Kassebaum and Smith. The appellant was, contrary to law, held incommunicado and unlawfully denied his request to see a lawyer before being interviewed. He was generally treated with contempt.
In all of the circumstances, including those considered earlier in these reasons, there is no doubt that independent police officers should have interviewed the appellant.
Despite all of this, the appellant maintained his position that he had not taken or driven the stolen car, that he had been at his uncle’s house at 10 Clarence Street drinking, and that he went to sleep in the red vehicle in the backyard. The interview ended thus:
A… So this is all gonna be sorted out is it?
Q How do you mean all get sorted out?
AFixed up. This is like pretty scary.
QOK the time according to my watch is 6.53am on [sic and] this recording is being suspended.
It is obvious that, if objection had been taken to reception of the record of the interview, it should have been excluded in the exercise of both the fairness discretion and the public policy discretion. But, understandably, no objection as to the reception of the appellant’s statements was taken because the appellant denied guilt and put his version of the facts which was consistent with the evidence that he later gave at trial.[116] But that is very much not the point being presently being addressed.[117] The present point is that the “interview” of the appellant conducted by Kassebaum and Smith completes the context in which the unlawful entry and search, the subject of the application to exclude evidence, appears. It is not directly relevant to the exercise of discretion to exclude the evidence of the finding of the appellant at 10 Clarence Street, but it does have a contextual bearing upon the question of whether the unlawful conduct of entry and search should properly be seen to be isolated, accidental, mistaken or non-reckless.
[116] It is noted above that the Chief Magistrate did use an answer in the interview adversely to the appellant. I have considered that matter above, disagreeing with her Honour’s approach.
[117] Unlawful or improper police practices do not become the less unlawful or improper because they do not achieve the desired outcome of admissions being made by the interviewee.
To take stock then, the evidence of the unlawful entry and search of 10 Clarence Street and its immediate context (as referred to above) may be shortly summarised thus:
·The stated position of Stevenson and Rosenhahn was that they were “searching for an offender who had just decamped from a vehicle.” They agreed between themselves that they would search the yards of each of the premises on Lilley Street and Clarence Street (and elsewhere if necessary) until they found the driver, although in searching each yard “they didn’t know whether to expect someone in there or not”.
·Stevenson claimed that they could enter as many private properties as they wished in this fashion – “Yeah, unless we are told by a specific person we can’t enter then we will continue to enter. That’s the way I’ve done it for the 13 years I’ve been handling a police dog.”
·Stevenson came upon the appellant in the backyard of 10 Clarence Street. (At this time Rosenhahn was searching all of the houses on the northern side of Lilley Street.)
·Stevenson simply yelled at the appellant: “Police with dog. Get out of the car” and repeated yelling this mantra a number of times. The egress being indicated was by the right rear door, near to the lunging Riggs, a fearsome sight at close quarters. Stevenson never performed a lawful act of arrest and never told the appellant that he was under arrest, let alone informed him of the claimed basis for an arrest.[118]
[118] As required by Christie v Leachinsky [1947] AC 573.
·Rosenhahn joined Stevenson whilst this yelling process by Stevenson was continuing. They were both male members of Star Group and were no doubt strong and fit. They each had a powerful trained dog.
·Senior Constables Ralston and Grant then arrived whilst this yelling process by Stevenson was still continuing. They were both male officers, no doubt fit and armed with firearms and capsicum spray.
·The four officers were in the backyard of a suburban house. They were in radio contact with many other police officers (with many police vehicles), all in the very near vicinity.
·They were dealing with one aboriginal male, 175 cm (five foot ten inches) in height[119] and of no more than medium build[120] who was cowering in the back of the red vehicle.
[119] Evidence of McDonald; arrest photograph.
[120] Arrest photograph.
·In fact, as it transpired, the appellant was not a trespasser and had a right to be there; the premises were those of his uncle.
·The appellant himself unlocked the rear door and did not oppose Stevenson in his opening of the door. He did not offer violence to any police officer. The appellant did not appear to be armed (and was in fact not armed).
·After the door was opened, the appellant was lying on the back seat, with his head away from Stevenson and with his feet exposed and close to the dog Riggs. Rosenhahn’s own description of the appellant “kicking out” was to emphasise that it was like a push with the sole rather than an aggressive kick with the toe. The description was redolent of panic and fear of the dog Riggs; and the appellant was indeed then bitten by that dog.
·When the appellant in some way then “shuffled” towards the left rear door, his action was entirely consistent with getting his feet away from Riggs (who had just bitten him) or getting out of the car (as Stevenson was yelling out to him to do) but sensibly through the left rear door and thus safely away from Riggs.
·Rosenhahn then deliberately sent his dog Koda forward, using the command for Koda to bite the appellant. Koda duly went forward, entered the car through the right rear door, bit the appellant, and dragged him out of the car and on to the ground.
·Rosenhahn claimed in court (apparently in all seriousness) that this was done “to effect an arrest”.
·With the appellant and Koda now struggling on the ground, Rosenhahn “used his right foot to push down on the appellant’s chest” and Stevenson deliberately released the dog Riggs “to assist Koda to stop the male hitting Koda” – in other words, to enable two dogs, rather than just one, to bite the appellant. And sure enough, Riggs did bite the appellant on the foot.
·Stevenson and Rosenhahn then disengaged the dogs and Ralston and Grant very belatedly “arrested” the appellant (but again, there was no compliance with Christie v Leachinsky[121] at the time of this purported arrest).
·The appellant was taken to Kassebaum and Smith who were well aware that the appellant had been attacked by police dogs. They nevertheless interviewed him immediately, and only minutes after he had been freed from the biting dogs.
·Kassebaum and Smith had taken part in both the vehicle chase and the following foot chase of the driver. They must have known that they would be witnesses at any trial. It was quite inappropriate for them to interview the appellant in all of the circumstances. The appellant stated to Kassebaum and Smith that he wished to have someone present if he were to be interviewed and specifically requested to see his lawyer. Those requests were ignored and treated with contempt.
[121] [1947] AC 573.
Exercising the discretion to exclude evidence
In this case the Chief Magistrate found that the entry and search was not unlawful and therefore an occasion for an exercise of discretion did not arise. Having found that the entry and search was unlawful, I turn to the exercise of the discretion as to whether to exclude all evidence of the finding of the appellant in the backyard of 10 Clarence Street. I proceed under the traditional Bunning v Cross regime.[122]
[122] However, it is interesting to note that the adoption of s 138, Uniform Evidence Act 1995 elsewhere in Australia confirms the importance Australian society places on police officers behaving properly and obeying the law. Section 138 enacts a partly inclusory discretion. It provides that evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained." As French CJ stated in Parker v Comptroller-General of Customs [2009] HCA 7 in relation to that provision: "The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process".
The cogency of the evidence
One of the factors to take into account is the cogency of the evidence. There is actually an interesting distinction here between an assessment of the cogency of evidence (on the one hand) and an assessment of the effect of exclusion of evidence (on the other hand). As to counts 1 to 4, there is no doubt that the effect of exclusion of the evidence would result in the success of the appeal and the dismissal of those charges. However, as to cogency, I elsewhere find that, on the evidence before the Chief Magistrate, counts 1 to 3 have not been proven beyond reasonable doubt and those counts will be dismissed even if I do not exclude the evidence. As to count 4, I elsewhere find, on the evidence before the Chief Magistrate, that there was no case to answer, or in the alternative, that count 4 has not been proven beyond reasonable doubt and that on either basis, that count will also be dismissed, even if I do not exclude the evidence.
However, in case I am wrong on any of those above conclusions, I will proceed to exercise the discretion on the assumption that the prosecution evidence is cogent and on the basis that the success of this appeal (and the dismissal of counts 1 to 4) entirely depends on the exclusion of the impugned evidence. I therefore proceed on the basis that cogency of evidence is here a factor militating against exclusion.
The context of the unlawful entry and search – an entrenched approach?
In Bunning v Cross,[123] police had observed what appeared to be behaviour by the defendant positively indicating that his ability to drive was impaired and, on that basis, required him to take a breath analysis test, the result of which showed him to be above the prescribed limit. Their error was that they should have first required the defendant to take a preliminary alcotest and then relied on a positive alcotest result to require the breath analysis. It was in that context that their Honours stated that “Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.” Their Honours went on to observe that the legislation there under consideration placed relatively little restraint upon “on the spot” breath testing of motorists by means of an “alcotest” device, and that it was essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself, that entered into the discretionary scales.
[123] (1978) 141 CLR 54.
By way of contrast, I again refer to R v Nguyen where it was found that there was an entrenched police view and that this was to be treated as equivalent to deliberate or reckless disregard of the law by those whose duty it is to enforce it. The court there stated:[124]
[124] (2013) 117 SASR 432, 437 (Kourakis CJ, Blue and Stanley JJ).
[36] The unlawfulness of the conduct by which the incriminatory evidence was obtained enlivens a discretion to exclude it. Having overturned the judge’s determination that the conduct was lawful, that discretion falls to be considered afresh by this Court.
[37]The evidence of the appellant’s possession was cogent, indeed overwhelming, evidence of the commission of serious offences. The infringement of the appellant’s civil liberties was moderate. The unlawful entry was limited to the common driveway of the home unit. The Laser was only detained after it had already come to a stop. Those considerations tell against the exclusion of the evidence.
[38] On the other hand, the evidence of the police officers revealed that the decision to detain the Laser and to enter the home unit proceeded from an entrenched view that information that a person, vehicle, or house had been involved in drug dealing in the recent past was, without more, sufficient to establish the reasonable suspicion which enlivened the powers in s 52(6) and (9) of the CSA. …
…
[40] Constable Koch’s view of the scope of the powers conferred by s 52(6) and (9) of the CSA greatly exceeds their true limits. It is a view which is calculated to lead to widespread and arbitrary infringements on civil liberties. The testimony of Constable Koch well illustrates that danger. On Constable Koch’s attitude, power designed to facilitate investigations can readily be misused as instruments of harassment. No evidence was adduced to show that the mistaken understanding of the breadth of the powers shared by Constables Koch and Beatty was a peculiar or isolated one.
[41]It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
[42] The court exercises its discretion to exclude the evidence of the appellant’s possession of heroin and methylamphetamine on 30 July 2011. We do so because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
(Emphasis added)
I consider that the present circumstances of police misconduct are very different to that encountered in Bunning v Cross and are much more serious than in R v Nguyen. The decision here by two Star Group officers, apparently in conjunction with other police officers, to search with police dogs in the early hours of the morning as many private properties as they wished on the basis that a person being sought may, or may not be, on one of the properties, is a fundamental overturning of centuries old law protecting private property and privacy. The view of Stevenson (and the same view of his Star Group colleague Rosenhahn) was that they could infringe the rights of property and privacy of as many admittedly innocent householders as they thought fit by their unannounced entry with dangerous dogs at any hour of the day or night. He asserted that he had a right to do this, despite being unable to indicate any statutory or common law source of such a power (“I couldn’t tell you off the top of my head I’m sorry”). His deeply entrenched view was “unless we are told by a specific person we can’t enter then we will continue to enter. That’s the way I’ve done it for the 13 years I’ve been handling a police dog”.
Further, the conduct of Stevenson and Rosenhahn and other police at the scene displayed continuous and serious police misconduct. It commenced with the unlawful entry and search of the nearby premises and continued with the unlawful entry and search of the rear yard of the house of the appellant’s uncle at 10 Clarence Street and the serious and unlawful mistreatment of the appellant there, from a little before 6am to a little before 6:17am, with the police officers remaining as trespassers at all times.
That conduct was immediately followed by the improper custodial interview of the appellant by Kassebaum and Smith which, as a matter of context, does nothing to suggest that the preceding police misconduct was isolated, accidental, mistaken or non-reckless.
The violated rights of property and privacy of members of the public were most important. In Kuru v State Of New South Wales, the plurality stated:[125]
[43]As was pointed out in this Court’s decision in Plenty v Dillon,[126] it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter.[127] Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land.[128] … as Brennan J pointed out[129] in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is “a contest between public authority and the security of private dwellings”.
[125] (2008) 236 CLR 1, 14 (Gleeson CJ, Gummow, Kirby and Hayne JJ).
[126] (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ), 647 (Gaudron and McHugh JJ); [1991] HCA 5.
[127] Halliday v Nevill (1984) 155 CLR 1, 10; [1984] HCA 80; Entick v Carrington (1765) 2 Wils KB 275, 291 [95 ER 807, 817]; Great Central Railway Co v Bates [1921] 3 KB 578, 581‑582; Southam v Smout [1964] 1 QB 308, 320; Morris v Beardmore [1981] AC 446, 464; Eccles v Bourque [1975] 2 SCR 739, 742‑743.
[128] Halliday v Nevill (1984) 155 CLR 1, 10.
[129] (1984) 155 CLR 1, 9.
And in Police v Dafov, Gray J referred to the decision in Kuru and stated:[130]
[130] (2008) 102 SASR 8, 32.
[17] …
In the course of this discussion, their Honours drew on the judgment of Kirby J in New South Wales v Corbett. Although the observations of Kirby J were made in the context of a challenge to a search warrant, the reasons that lie behind the court’s approach are equally relevant to statutory powers of entry. In that respect Kirby J observed:[131]
What are the reasons that lie behind this rule of strictness? They include:
(1)The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people;
(2)The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures;
(3)The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures;
(4)The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and
(5)The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.
[Footnotes omitted]
[131] State of New South Wales v Corbett (2007) 230 CLR 606, 612.
I consider that the unlawful and improper conduct on the part of police officers here transcends any question of unfairness to the appellant himself. The unlawful entry and search was not isolated, accidental, mistaken or non-reckless; there is here established a calculated disregard of the law by those empowered to enforce it and which represents a threat to the legal structure of our society and the integrity of the administration of criminal justice. I consider that any decision other than to exclude all evidence of the finding of the appellant in the rear yard of 10 Clarence Street would tend to encourage such unlawful conduct on the part of the police by an appearance of judicial acquiescence. In the circumstances of this particular case, I consider first, that mere criticism short of exclusion of the evidence would appear hollow and insincere in a context where curial advantage would be seen to be obtained from the unlawful conduct, and second, that admission of the evidence would tend to demean the courts by the uncontrolled use of the fruits of illegality in the judicial process.[132]
[132] In Pollard v The Queen (1992) 176 CLR 177, 202-203, Deane J observed as to the passage from Bunning v Cross reproduced at paragraph [301] above: “As that passage makes plain, the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.” This statement by Deane J was in turn approved by Brennan J in Nicholas v The Queen (1998) 193 CLR 173, 202-203.
PART J: DISPOSITION OF THE APPEAL
For all of the above reasons, on the basis of the evidence before the Chief Magistrate (putting aside the exclusionary application) I conclude as follows.
As to counts 1 to 3, I have found that grounds 1, 2, 3, 4 and 8 of appeal are made out, and the convictions on counts 1 to 3 are set aside. Having regard to the fact that ground 8 of appeal is made out, it is appropriate to dismiss counts 1 to 3 rather than order a re-trial, and I do so. I indicate that if the appeal were to be allowed on ground 1, 2, 3 or 4, but ground 8 of appeal had not been made out, I would have exercised my discretion to dismiss counts 1 to 3 rather than order a re-trial.
As to count 4, I have found that grounds 6 and 7 of appeal are made out. The conviction on count 4 is therefore set aside and having regard to the nature of both of those grounds of appeal, it is appropriate to dismiss that count rather than order a re-trial, and I do so.
As to ground 5 of appeal, I have found that the Chief Magistrate erred and that the entry and search of the premises at 10 Clarence Street, Mile End on 3 April 2013 were unlawful. I have exercised my discretion in favour of the appellant and excluded all evidence of the finding of the appellant in the rear yard at 10 Clarence Street, Mile End on 3 April 2013 and all other evidence of what occurred there. On this alternative basis also, the convictions on counts 1 to 4 are set aside on the basis that no sufficient evidence remains to sustain the convictions. On this alternative basis also, it is appropriate to dismiss counts 1 to 4 rather than order a re-trial, and I do so.
Orders
1I allow the appeal. The findings of guilt and the convictions on counts 1, 2, 3 and 4 are each set aside.
2I find the appellant “Not Guilty” on counts 1, 2, 3 and 4.
3The Information is dismissed.
4Any other orders made by the Chief Magistrate are set aside.
Appendix: Representation of aerial photograph [exhibit P6]
[Not to scale]
N
W
E
S
Darebin Street
Attrill Avenue
Halifax Street
15
Lilley Street
12
10
Clarence Street
Sir Donald Bradman Drive
7