R v Bruce
[2008] SADC 26
•19 March 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUCE
Criminal Trial by Judge Alone
[2008] SADC 26
Reasons for the Verdict of His Honour Judge Chivell
19 March 2008
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING
Particular offences - use motor vehicle without consent
Accused charged with one count of using a motor vehicle without consent and three counts of larceny from the person.
Trial by judge sitting without a jury. Consideration of circumstantial evidence - identification evidence - flight - recent possession.
Verdict - Guilty
Criminal Law Consolidation Act, 1935 s277; Juries Act, 1927 s7, referred to.
The Queen v Hallam and Karger (1985) 42 SASR 126; Murphy v The Queen (1994) 62 SASR 121; Festa v R (2001) 185 ALR 394; The Queen v Bridgman (1980) 24 SASR 278; R v Power & Power (1996) 87 A Crim R 407; R v Wanganeen (1988) 50 SASR 433; Laurens & Anor v Willers [2002] WASCA 183; Goldsmith v Sandilands and Others (2002) 190 ALR 370, applied.
R v BRUCE
[2008] SADC 26Introduction
The accused is charged with one count of illegal use of a motor vehicle contrary to s86A of the Criminal Law Consolidation Act, and three counts of larceny from the person, contrary to s155 of the Criminal Law Consolidation Act.
Particulars of the various offences are as follows:
First Count
Particulars of Offence
Craig Ian Bruce on the 2nd day of November 2002 at Torrensville and other places used a motor vehicle without first obtaining the consent of the owner Vicki Kay Bryant.
Second Count
Particulars of Offence
Craig Ian Bruce and another on the 2nd day of November 2002 at Glenside, stole form the person of John Herbert Gould, one hand bag, one purse, one mobile phone and one pair of prescription glasses together of the value of about $800.00 and money to the amount of $30.00.
Third Count
Particulars of Offence
Craig Ian Bruce and another on the 2nd day of November 2002 at Unley, stole form the person of Melissa Wibberley, one hand bag, one purse and credit cards together of the value of about $50.00.
Fourth Count
Particulars of Offence
Craig Ian Bruce and another on the 2nd day of November 2002 at Cumberland Park, stole from the person of Jane Margaret Monaghan, one hand bag, one wallet, one mobile phone, one driver’s licence, one credit card, one sunglass case, two pairs of sunglasses and one bank book, together of the value of about $760.00 and money to the amount of about $100.00.
Trial by Judge Alone
The accused elected to be tried by judge sitting without a jury pursuant to s7 of the Juries Act. The application was made on the morning of Wednesday, 12 March 2008, long after the first arraignment of the accused.
Clearly, an order was required dispensing with the requirements of Rule 8 of the Juries Rules 1996 because the application was not made on or before the date of the first arraignment.
Mr Stokes informed me that there has been several changes of counsel over the course of this matter. On his instructions, Mr Bruce’s intention has been clear from the outset that he wished to be tried by judge sitting without a jury.
Miss Davison for the Director of Public Prosecutions confirmed that there had been discussions along these lines going back for some time.
In those circumstances, I accepted Mr Stokes’s submission that it would be unjust to refuse to allow the application, and so I made an order pursuant to Rule 16 dispensing with the requirements of Rule 8, and ordered that the trial proceed before me without a jury.
Objection to the Form of the Information
Mr Stokes, counsel for the accused, took objection to the framing of the Information in relation to counts 2, 3 and 4. He did not make any submissions in support of this objection, but told me that he relied upon the same submissions made by Mr Mead, who was then counsel for the accused at the trial before Judge Beazley in 2007.
In my opinion, the objection has no substance.
Section 277(1) of the Criminal Law Consolidation Act provides:
(1)Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)Notwithstanding any rule of law or practice, an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Part.
The headings to s155 of the Criminal Law Consolidation Act as it applied in February 2002 were as follows:
Larceny from the person and other like offences .....
Robbery and stealing from the person .....
155Any person who robs another, or steals any chattel, money or valuable security from the person of other, shall be guilty of an offence and liable to be in prison for a term not exceeding 14 years.
In my opinion, the second, third and fourth counts in the Information comply with s277. The statement of the offence is taken from the heading. The particulars of the offence follow the wording of the section. The facts that the heading refers to larceny and the particulars refer to stealing are, in my opinion, of no moment whatsoever. All that s277 requires is the statement of the offence with which the accused is charged, and the provision of such particulars as are necessary to give reasonable information as to the nature of the charge. In my opinion, the pleader of this information has done that, and there is no ground to suggest that the Information is in any way invalid.
Mr Stokes’s objection is therefore overruled.
Rule 9 Application
Mr Stokes filed an application pursuant to Rule 9 of the District Court Criminal Rules for orders excluding the following evidence:
1.The evidence of flight referred to in the statement of Christopher Glen McInerney, dated 13 November 2002.
2.The identification evidence of Stuart Lord.
Mr Stokes acknowledged, however, that having regard to the fact that the trial was to proceed before me without a jury, applications to have evidence excluded on the basis that its probative value is outweighed by its prejudicial effect are inappropriate (see Abrahamson v R (1994) 63 SASR 139 per King CJ at p143). Mr Stokes did not pursue the application.
Preliminary Directions
I direct myself that the elements of the offence of illegal use of a motor vehicle are:
1.the accused used the motor vehicle in question. The use of the vehicle can include both driving it and being a passenger in the vehicle whilst it is being driven by another;
2.before doing so, he did not first obtain the consent of the owner of the vehicle, Ms Bryant; and
3.the accused knew that the vehicle was being used without the consent of the owner.
The elements of the offence of larceny from the person are:
1.either alone, or as part of a joint criminal enterprise, the accused took and carried away the items of property, or any one of those items, specified in the particular count in the Information;
2.he did so dishonestly;
3.the taking was without the consent of the owner;
4.at the time of taking, whether alone or as part of a joint criminal enterprise, there was an intention to permanently deprive the owner of the property;
5.the taking of the property was unlawful in the sense that there was no claim of right to the property; and
6.the property was taken from the person of the person named in the Information, or from the immediate vicinity of that person. It is not necessary that the prosecution prove that the victim was aware at the time of taking that the property was taken.
Joint Criminal Enterprise
For a joint criminal enterprise to exist, two or more people must reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement can take the form of a tacit understanding. Its existence may be inferred from the circumstances. The prosecution need not prove when the agreement was reached at any particular time before the crime was committed.
In the particular case before me, if it be proved beyond reasonable doubt that there was an understanding or arrangement between the accused and Ms Hollick that the accused would drive the vehicle and Ms Hollick would snatch the handbags from the respective victims, then the prosecution would have proved that a joint criminal enterprise existed to commit the offence of larceny from the person. In those circumstances, each of the offenders is criminally liable for the commission of the offence, no matter what part they played.
The case against the accused in this matter depends to a large extent upon circumstantial evidence. I direct myself that I may not convict the accused of any of the offences before me on the basis of circumstantial evidence unless any reasonable hypothesis which is consistent with innocence has been excluded by the prosecution beyond reasonable doubt. It must be established by the prosecution that his guilt is the only rational inference which can be drawn from the proven facts.
Circumstances of the Alleged Offence
Most of the evidence given at the trial was not in dispute. The following narrative represents my finding of fact as to the circumstances of the alleged offence.
The prosecution case is that at the relevant times the accused and the alleged co‑offender, Ms Hollick, were driving a Toyota Tarago motor vehicle, registration number UON‑127, which belonged to Vicki Kay Bryant, and which was stolen on 1 November 2002 from where she parked it in Ashwin Parade at Torrensville.
The prosecution allege that at about 3.20pm, Mr Gould, the person mentioned in count 2, was unloading groceries from a shopping trolley into his car in the car park beneath the Burnside Village shopping centre when a Tarago van sped up, and the passenger in the vehicle grabbed Mr Gould’s wife’s handbag from its position in the shopping trolley. The van then sped off.
Mr Gould pursued it on foot for a short distance and noted the registration number as UON‑127. Mr Gould was unable to identify either the driver or the passenger in the vehicle.
Only moments later, Mr Gould’s wife arrived at the scene. Mr Gould told her the registration number of the vehicle and she wrote the numbers down on a National Pharmacy docket, which is exhibit P3. The number she wrote down was UON‑127.
Mrs Gould confirmed that the handbag contained the items mentioned in the particulars of the offence in count 2.
The snatching of Mrs Gould’s handbag was observed by Stuart Lord, who was then aged 12, and who was a passenger in a vehicle driven by his mother, Mrs Meron Lord.
Stuart Lord told his mother what had happened, they stopped near where Mr Gould was standing, and he confirmed to them that the handbag was taken. They pursued the Tarago van out of the car park into Sydney Street. It turned left onto Greenhill Road and travelled west, then turned left onto Fullarton Road and travelled south until it reached the Arkaba hotel car park, just past the intersection of Fullarton Road and Glen Osmond Road.
The van was driven around the car park adjacent to the bottle shop, and then out onto Fullarton Road again and into the shopping centre car park next door.
Mrs Lord continued to follow the vehicle. It turned left again onto Fullarton Road and proceeded to travel south, at which point they lost sight of it.
At around 3.30pm that afternoon, Ms Melissa Wibberley (now Wallace) was at the Unley shopping centre. She had pushed a shopping trolley containing her groceries and her handbag out to the car park. Her small daughter was sitting in the small seat at the front of the trolley.
Ms Wibberley was in the process of putting her daughter into the car seat, giving her a drink, and loading the groceries into the car when she thought her handbag was taken. She was not aware that it had been taken at the time.
A receipt in Ms Wibberley’s handbag shows that she paid for her groceries at the checkout at 3.24pm that afternoon (see exhibit P1, photograph No 32).
After getting her daughter settled in the car, Ms Wibberley drove to the Heywood Park playground and it was not until she arrived there about 10 minutes after being at the shopping centre, that she realised that her handbag was missing.
The evidence of Mrs Jane Monaghan at the previous trial was tendered by consent, and is exhibit P9. Mrs Monaghan said that she was at the Woolworths supermarket on Goodwood Road at Cumberland Park that same afternoon. She took the groceries out to her car in a shopping trolley and proceeded to load them into the boot of her car. Her handbag was in what she described as the ‘dicky seat’ of the shopping trolley. She saw a van, which she described as a ‘beigey‑tanny colour’, drive up rather slowly, and then a person in the van grabbed her handbag, and the van sped off. She said that the person’s hand appeared to her to be female. She said that she could see through the back window of the van that the driver was male and the passenger was female, that they both had long hair, the female’s was darker than the male’s.
She thought they were aged at around ’20-ish’ and that the hair was ‘very unkept, ratty looking’.
Identification Evidence
Detective Brevet Sergeant Talbot said that Mr Bruce declined to participate in an identification line up, and so the police adopted the use of a photographic array during the identification process. (See The Queen v Hallam and Karger (1985) 42 SASR 126.)
Mr Gould said he was unable to describe the driver of the van and was unable to identify him from the array of photographs presented to him (exhibit P4). He thought there were ‘two guys’ in the van, and that ‘they probably had longish hair and looked a bit scruffy, but beyond that I really couldn’t say’ (T40).
Stuart Lord said that he got a side view of the driver of the van as it turned out of the car park onto Sydney Street. He described the driver as male, with long, dark hair which was thin and pulled back into a ponytail. He described his face as ‘skinny’. He had no facial hair. He was wearing something like a flannelette shirt which he thought was red and black. He thought the person was around 30 (T53).
Mr Lord got a better view of both the driver and the passenger as the car came towards them in the Arkaba shopping centre car park. He said the passenger was female, aged about 30, but that was all he could say about her (T54).
In answer to a rather leading question, he agreed that he got a ‘good look’ at the driver in the shopping centre car park (T56). He described him as ‘reasonably tall’ because his head was close to the roof of the car and he was ‘sort of very skinny’. He again mentioned that he appeared ‘scruffy looking’ and he was wearing a flannelette shirt. He repeated that his hair was long, brown and pulled back (T56).
When he was presented with the array of photographs by the police (exhibits P4 and P7), Mr Lord indicated photographs numbered 4 and 7 on the basis of the long hair and the ‘gaunt face’ (T59). He thought that the thin hair and the longer nose in photograph No 7 was more like the driver of the car. It is agreed that Mr Bruce was in photograph No 7.
Mr Lord said his opportunity to view the driver of the car was over a period of about five seconds, as his car and the van passed each other in opposite directions in the car park. This occurred in daylight and he saw him through the front windscreen of the van (T60).
On the basis of this evidence, Mr Lord has not positively identified Mr Bruce from the photographs. As King CJ observed in Murphy v The Queen (1994) 62 SASR 121 at p123-4:
This evidence was not, however, in the true sense identification evidence. None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery. Nevertheless the evidence did possess, in my opinion, some evidentiary value. The fact that the three persons each selected, independently of one another, one slide out of 24 as a person similar in appearance to a participant in the robbery was some evidence tending to support circumstantial evidence in the case implicating the appellant.
See also Festa v R (2001) 185 ALR 394 per Gleeson CJ at [11], McHugh J at [60], and Kirby J at [165].
Mr Lord told Miss Davison that he was now 100 percent certain that the person in photograph No 7 of the array was the driver of the van. At Miss Davison’s request, he identified Mr Bruce, in court, as the driver of the vehicle. He said he is ‘not as skinny now’ (T61).
In cross examination, Mr Lord conceded that he may have said at the previous trial that the driver was ‘between 30 and 35 ..... maybe a bit older’ (T63). He said that photographs numbered 4 and 7 in the folder most looked like the person (T64). He said he was not 100 percent sure when looking at the photographs ‘because I hadn’t seen the two people, the person and the photo, together’ (T65).
Mr Lord’s in‑court identification illustrated the classic objection to this type of evidence. In Festa (supra), Gleeson CJ said:
Of all forms of identification evidence, one of the most notoriously dangerous is in‑court identification, which is usually performed in circumstances that strongly suggest the answer that is ultimately given.
Mr Lord’s answer, that he had not seen ‘the person and the photo’ together before suggests that he assumed that Mr Bruce was ‘the person’. I do not place any value on Mr Lord’s evidence that he is now 100 percent certain that the driver was Mr Bruce, nor on the in‑court identification.
Mrs Meron Lord said that she saw the driver of the van as it came towards her car in the Arkaba shopping centre car park, and noted that the driver was male and had long hair in a ponytail. She said she only had a ‘fleeting glance’ (T74). She thought he was in his mid to late 20’s, or early 30’s, and he was sitting ‘reasonably high’ in the van, so he was ‘reasonably tall’. She said he had a thin face.
When presented with the photographic array, she indicated photograph No 4, who is not Mr Bruce, as a person who looked similar, but:
I only had such a brief glance that I wasn’t sure that that was as close as I thought to the person (T76).
She agreed with Mr Stokes in cross-examination that number 4 was ‘a possibility and no more than that’ (T77).
Ms Wibblerley (now Wallace) did not see her bag taken, and did not see who took it. It was not until after she left the Unley shopping centre car park that she realised her bag was missing.
Mrs Monaghan said that the hand that grabbed her handbag appeared female because of the size and the way the nails were shaped (T74). She said that there were two people in the van that she could see, the passenger being female and the driver male. She said they both had long hair and the male had ‘blonde bits through and both of them, were very unkept, ratty looking hair’ (T74). She said she thought both the male and female were ‘around the 20‑ish’ in age, and it was ‘just unkept, dreadlocky, rattail sort of look, hadn’t been brushed for a while’.
In cross-examination, Mrs Monaghan conceded that she had said in her statement to the police that both the driver and the passenger were in their ‘late teens to early 20’s’.
The totality of this evidence is that each of the witnesses has given a description of the male offender which, to a greater or lesser extent, is consistent with that of Mr Bruce. There were discrepancies about hair colour, hairstyle, shirt colour and the like. Mr Gould thought the passenger was male. The only witness who purports to make a positive identification is Mr Lord, but I give no weight to that part of his evidence. The in‑court identification added nothing to Mr Lord’s previous nomination of photographs 4 and 7.
The fact that several witnesses have given reasonably similar descriptions of the offender which correspond, to a greater or lesser extent, to that of Mr Bruce, is circumstantial evidence of slight weight that he was the offender.
Circumstances of Apprehension
At about 4.55pm on the same afternoon, 2 November 2002, Constable McInerney was driving and Constable Osborne was a passenger in a police vehicle travelling west on Henley Beach Road at Torrensville. They were on the look out for a Tarago vehicle, registration number UON‑127.
Both officers saw it travelling east on Henley Beach Road in the vicinity of The Royal Hotel. The vehicle turned left onto Jervois Street (the hotel is on the corner of Jervois Street and Henley Beach Road) and McInerney accelerated the police vehicle and followed the van into the car park.
A female person alighted from the passenger side front door of the van and walked south east across Jervois Street. Constable Osborne pursued her and although she ignored him when he initially called out to her, she eventually stopped. He arrested her and took her back to the police vehicle. She identified herself as Sheree Hollick. Osborne did not see who else was in the van.
Constable McInerney saw a person, whom he identified in court as Mr Bruce, get out of the driver’s side door of the van and run off. McInerney and an attendant at the hotel bottle shop, Mr Jones, chased him through the bottle shop, and into the car park of a commercial premises on the other side of Henley Beach Road. He climbed over a fence, and Jones and McInerney followed him. McInerney fell, but Jones continued to pursue him and apprehended him up against the fence on the other side of the car park.
When he caught up, McInerney arrested Mr Bruce and took him into custody.
Constable McInerney identified a photograph of Mr Bruce taken at around the time he was arrested (exhibit P13). Stuart Lord’s comment that Mr Bruce is ‘not as skinny now’ (T61) is amply demonstrated by that photograph.
The statement of Mr Jones, who pursued and apprehended Mr Bruce, was tendered by consent, and is exhibit P14. His evidence confirms that of Constable McInerney.
Evidence of Flight
The prosecution pointed to Mr Bruce’s actions in running away from the police at The Royal Hotel on 2 November 2002 as evidence of a consciousness of guilt.
The prosecution also referred to Mr Bruce’s absence from his trial in this court before Judge Clayton in 2004 as evidence of consciousness of guilt. This non‑attendance is the subject of paragraphs 8, 9, 10, 11 and 12 of the Statement of Agreed Facts, exhibit P16. These agreed facts are as follows:
8.A trial commenced in the District Court for Sheree Hollick and Craig Bruce on 27 August 2004. Counts 9, 10, 11 and 12 on the information presented represented the same charges as on the information before this Court. On 31 August 2004 Sheree Hollick pleaded guilty to counts 9, 10, 11 and 12 on the information.
9.The trial was thereafter conducted against Mr Bruce alone. The Crown opened and Ms Bryant and Ms Monaghan were called to give evidence. Both completed their evidence. The trial adjourned to 1 September 2004.
10.Mr Bruce did not attend for trial on that day. No explanation was provided. The trial was adjourned to 2 September 2004.
11.On 2 September 2004 Mr Bruce failed to attend. The jury were discharged and a warrant was issued for his arrest.
12. That warrant was executed on 18 June 2006 by Constable Carlier.
The reference to the execution of the warrant on 18 June 2006 is the subject of the statement of Leonard Rodney Carlier, a constable of police, which was tendered by consent and is exhibit P20.
Constable Carlier states that he stopped a vehicle at about 7.55pm on 18 June 2006, and the driver produced a photographic South Australian driver’s licence in the name of Craig Bruce. It is admitted the driver was the accused. While Constable Carlier was conducting the usual checks, Mr Bruce fled from the scene on foot.
The police established that there was an active bench warrant for his arrest. They proceeded to an address in Morphett Vale and took up a position outside the address and waited until Mr Bruce arrived. Mr Bruce arrived about 10 minute later. When he became aware of the presence of the police, he ran away again, and ignored calls by the police to stop. As he was chasing him, Constable Carlier grabbed him by his jacket, but lost his grip. Bruce then punched outwards, connected with his cheek and nose area, causing bleeding from the nose.
Constable Carlier deployed ‘defensive spray’, but Mr Bruce ran off again towards the property and Constable Carlier pursued him again, despite obstructions from various occupants of the house. He pursued Mr Bruce through the main part of the house, through the car port, and down Nash Lane. At one point Mr Bruce turned around and put up his fists in a boxing stance so Constable Carlier deployed the spray again, which had no effect. Mr Bruce ran back towards the house, and again, one of the occupants of the house attempted to obstruct the officer.
Bruce entered the car port area and closed the roller door behind him. The officer went through the house again to the rear of the premises, then went round to the front again as Bruce was opening the roller door again to exit.
Finally, Constable Carlier struck Bruce in the right leg with his baton, which temporarily immobilised him, and then physically subdued him and handcuffed him.
Again, the prosecution points to Mr Bruce’s behaviour on this occasion as evidence of consciousness of guilt.
It has long been the case that courts have received evidence of flight or absconce from bail as evidence of consciousness of guilt.
In The Queen v Bridgman (1980) 24 SASR 278 at 281, White J referred to an unreported judgment of Cox J in The Queen v Pignataro and Spiero in which his Honour said:
The tone of Wills on Circumstantial Evidence (7th Ed) 138-142, is guarded on the subject of evidence of flight, but it is important to bear in mind that the predicament of the defendant who in fact had an innocent explanation for his apparently incriminating behaviour was greater in the days when he was unable to go into the witness box to give to the jury the true explanation. No such obstacle confronts the defendants in the present case.
White J added:
And I would add the comment that the punishment for crime was such in the early nineteenth century when most of the rules were formulated that innocent defendants might have been tempted to flee then more than now.
In Bridgman, White J excluded evidence of flight because there was evidence that he was on parole at the time of the offence and he would have been forced to disclose to the jury his previous bad character when explaining his reason for flight. White J said at p282:
..... in the present case before me, evidence of flight was not placed before the jury once an additional substantial reason for flight was disclosed in circumstances which made the fact of flight ambiguous and the task of explaining the ambiguity onerous and prejudicial.
In R v Power & Power (1996) 87 A Crim R 407 Doyle CJ, with whom Millhouse and Williams JJ agreed, said at p409-10:
In my opinion, the evidence was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332. It would not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278 is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
“I would however say that in my opinion, where there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person’s flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.”
It was an agreed fact that, as at 2 November 2002, Mr Bruce was on parole, a condition of which was that he not contact or associate in any way with Sheree Hollick.
I remind myself that, this being a piece of circumstantial evidence, I should consider whether there is a reasonable hypothesis consistent with innocence to explain Mr Bruce’s behaviour. He has not given evidence to explain his behaviour, so there is nothing to connect the fact of his parole with his flight on 2 November 2002. Of course, Mr Bruce is under no obligation to give evidence, and no adverse inference can be drawn from his failure to do so.
I consider that it remains a reasonable possibility that his flight on 2 November 2002 was motivated by his concern about the fact that being in company with Ms Hollick was in breach of his parole, rather than from a consciousness of his guilt of these offences.
I therefore exclude his flight on 2 November 2002 from my consideration.
The same considerations do not apply to Mr Bruce’s absconce in 2004 and his flight on 18 June 2006. There is no suggestion he was still on parole at these times. In any event, if he was in breach, the breach was apparent on 2 November 2002. There is therefore no reasonable hypothesis that these later incidents were motivated by concern about breach of parole.
As to the trial in 2004, by that time, Ms Hollick had pleaded guilty and the trial against Mr Bruce had commenced. In my opinion, it is open to consider that his absconce from the trial was motivated by a consciousness of guilt. There is no evidence connecting Mr Bruce’s absence with a development in the trial which might have led him to apprehend an unjust or incorrect outcome. Mr Bruce is under no obligation to give any such evidence, but I am not prepared to assume that he had any such apprehension in the absence of evidence.
I am satisfied beyond reasonable doubt that Mr Bruce’s absconce from his trial in 2004 was motivated by a consciousness of guilt. I can see no reasonable hypothesis to the contrary.
The evidence of Mr Bruce’s behaviour on 18 June 2006 is in the same category. Parole had no relevance by then. There is no evidence that Mr Bruce was being treated unfairly upon his arrest. He ran away despite several requests to stop. He struck an officer who was seeking to apprehend him. He was not being subjected to excessive force or otherwise oppressive treatment by Constable Carlier. I am satisfied beyond reasonable doubt that Mr Bruce’s behaviour on 18 June 2006 was motivated by a consciousness of guilt. I can see no reasonable hypothesis to the contrary.
On the basis of those findings, the evidence of flight on those latter two occasions are pieces of circumstantial evidence tending to show Mr Bruce’s guilt of the offence charged.
Recent Possession
The best evidence there is about the precise time at which the offences were committed is the shopping docket of Ms Wibberley, which disclosed that she went through the checkout of the supermarket at the Unley shopping centre at 3.24pm.
Paragraph 1 of the Statement of Agreed Facts (exhibit P16) is as follows:
Stuart Lord telephoned the Police at 15:19:54 on 2 November 2002. He gave them the registration number of the van as UON 127. At 15:27:39 he had lost sight of the van as it travelled south on Fullarton Road.
Accepting the unchallenged evidence of the police officers, the accused and Ms Hollick were apprehended having just alighted from the stolen Tarago van at about 4.55pm that afternoon, so less than two hours later.
In summary, the stolen Tarago van was found in the possession of Mr Bruce and Ms Hollick within a day of it having been stolen, taken without its owner’s consent, and the handbags of Mrs Gould, Mrs Wallace/Wibberley and Mrs Monaghan were found in the vehicle within less than two hours of them having been stolen.
In R v Wanganeen (1988) 50 SASR 433, King CJ at p434 said:
Since the demise of the notion that recent possession gives rise to a presumption of guilt and reverses the onus of proof, there has been a gradual strengthening of the realisation that it has no claim to be treated as the subject of a special rule of law or “legal doctrine”.
.....
The significance of recent possession was expressed to be a matter of fact by the High Court in R v Bruce (1987) 61 ALJR 603 in the opening sentence of the joint judgment:
“Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused.”
The significant of the possession of recently stolen property is that it is a potentially incriminating fact which, if unexplained, is capable of supporting the inference of guilt of a crime in the course of which the property was stolen or at least of receiving the property knowing it to have been stolen. No special rule of law is required to validate that process of reasoning.
.....
A sound summing up in a case which depends to a significant degree upon the fact of possession of recently stolen property will point out to the jury that such possession is capable, in appropriate circumstances, of supporting an inference of guilt of any crime in the course of which the property was stolen or, depending upon the circumstances, of receiving the property knowing it to have been stolen. It will explain that whether such an inference should be drawn beyond reasonable doubt depends upon all the circumstances of the case including the proximity in time of the possession to the theft and anything that is known of the circumstances of the possession, as well as upon the weight which is attached to any explanation which the accused has given as to circumstances in which he came into possession of the property. It should, generally speaking, relate recent possession to the onus of proof, by directing the jury that if any explanation given by the accused, or the other circumstances of the case, or both, leave the jury in doubt as to whether the accused stole or criminally received the property as the case may be, the case against him has not been proved and the verdict should be not guilty, R v Aves (1950) 34 Cr App R 159. It may be necessary, depending upon the facts, to direct the jury that although no inference adverse to the accused is to be drawn from his exercising his right to silence either before trial or at trial, they are nevertheless entitled, if they see fit, to draw the inference of guilt from the fact of possession if the exercise of the right of silence leaves the possession unexplained, R v Bruce (supra).
See also Laurens& Anor v Willers [2002] WASCA 183.
Applying those principles to the facts before me, it is clear that the accused was found by the police in possession of stolen property, namely the Tarago motor vehicle which contained the handbags stolen from the three respective victims. In both cases, the thefts were recent, the handbags more so than the vehicle. The evidence is that the accused was driving the vehicle and the handbags were plainly in view in the centre of the three rows of seats. The accused has exercised his right to silence and I draw no inference adverse to him by his exercising that right. Nevertheless, his possession of the recently stolen motor vehicle and the recently stolen handbags is unexplained. In those circumstances, it is appropriate to draw an inference of guilt of both the taking of the motor vehicle and the taking of the handbags in question. I can see no reasonable hypothesis arising from the evidence which is consistent with Mr Bruce’s innocence of the offences charged.
Defence Case
Mr Stokes, counsel for the accused, sought to tender the transcript of Mr Bruce’s evidence before Judge Beazley in the previous trial in July 2007. This was opposed by Miss Davison. I pointed out to Mr Stokes that the only basis upon which such a document might be tendered is if the prosecution attacked any explanation the accused might now give for these events on the basis that it was a recent invention. Otherwise, the document is inadmissible as it is simply a prior consistent statement.
In Goldsmith v Sandilands and Others (2002) 190 ALR 370, McHugh J said at p379 [36]:
Another exception to the finality rule is that sometimes a party may be permitted to tender evidence that a witness has made an earlier statement that is consistent with the witness’ evidence. If the evidence of a witness concerning a material fact is attacked on the ground that the witness has recently invented or reconstructed the evidence, the party calling the witness may tender evidence proving a previous consistent statement of the witness. Nominal Defendant v Clements (1960) 104 CLR 476.
Clearly, there had been no attempt by the prosecution to attack an explanation given by the accused on the basis of recent invention, since the accused exercised his right to silence both during the interview with the police, and also at trial. Mr Stokes was unable to point to any other basis upon which the transcript was admissible. Accordingly, the prosecutor’s objection was upheld.
As I said, Mr Bruce elected not to give evidence at trial and there was no other evidence adduced by the defence.
Conclusion
Considering the cumulative weight of the circumstantial evidence in this matter, I have regard to the following:
·the evidence that Mr Bruce was found in possession of the Tarago motor vehicle which had recently been taken without the owner’s consent, and in which the police found the handbags of Mrs Gould, Mrs Wallace/Wibberley, and Mrs Monaghan, which had been even more recently stolen;
·the fact that the recent possession of that property by Mr Bruce has not been explained either by evidence or by the surrounding circumstances;
·the descriptions given by the various witnesses which is consistent with the hypothesis that Mr Bruce was the male offender who was driving the Tarago motor vehicle at the time the handbags were stolen is an item of circumstantial evidence of relatively slight weight; and
·the evidence of Mr Bruce’s flight from his trial in 2004 and from Constable Carlier on 18 June 2006, both of which events provide evidence of consciousness of guilt.
I have considered the cumulative weight of this evidence. I find that I am satisfied beyond reasonable doubt that each of the elements of each of the four counts on the Information has been proved.
I have considered Mr Stokes’s submission that there is no evidence that Mrs Wallace/Wibberley’s handbag was taken from her person or the immediate vicinity thereof. He submitted it is reasonably possible that Mr Bruce is guilty of larceny by finding rather than larceny from the person. The possibility that Mrs Wallace/Wibberley may have dropped her handbag in the process of loading her child and the groceries in the car was not put to her in cross-examination. Her evidence was that her handbag was in the main part of the shopping trolley with her groceries, and her daughter was in the seat. In my opinion, the circumstances of the three offences are so strikingly similar to each other, so closely connected in time and place, and so clearly associated with Mr Bruce and Ms Hollick, that I am satisfied beyond reasonable doubt that the crime occurred in the same manner as in the other cases. There is no other hypothesis which reasonably arises from the evidence. I am therefore satisfied beyond reasonable doubt of the sixth element of count 3 on the Information along with each of the other elements of each of the four counts on the Information.
Accordingly, my verdicts are as follows:
Count 1: Guilty
Count 2: Guilty
Count 3: Guilty
Count 4: Guilty
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