R v Burles

[1990] TASSC 72

Serial No 71/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Burles [1990] TASSC 72; A71/1990

PARTIES:  R
  v
  BURLES, Michael

FILE NO/S:  C147/1990
DELIVERED ON:  13 December 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  A71/1990
Number of paragraphs:  30

Serial No 71/1990
List "A"
File No C147/1990

R v MICHAEL BURLES

REASONS FOR JUDGMENT  ZEEMAN J

13 December 1990

1. In November 1990 Michael Burles was tried on an indictment containing two counts of burglary, two counts of stealing and two counts of unlawfully injuring property. On 20 November 1990 a jury acquitted Mr Burles on all counts. He now applies for an order for costs pursuant to the provisions of the Costs in Criminal Cases Act 1976.

1. Evidence given at the trial indicated that on 9 April 1990 the premises of the Launceston Football Club at Riverside were entered by one or more persons, that property was stolen from those premises (which property included a safe containing a substantial sum of money) and that the safe was forcibly opened whereby it was damaged. The evidence further indicated that on 19 April 1990 the premises of the South Launceston Bowls Club were entered by one or more persons, that two safes were stolen from those premises (each containing a sum of money) and that the safes were forcibly opened whereby each was damaged. The evidence appeared to establish beyond question that the six crimes charged by the indictment were committed by some person or persons. The real issue on the trial was whether those crimes had been committed by the accused.

1. There was substantial evidence connecting the accused's motor vehicle to the commission of the crimes. It was seen parked in the vicinity of the Launceston Football Club in the early hours of the morning of 9 April 1990 at a time when the jury might infer that the burglar or burglars were at the premises of the club. Other evidence connected that motor vehicle to the crimes relating to the South Launceston Bowls Club. There was evidence that a vehicle similar to the accused's vehicle was seen by a jogger in Denison Road in the early hours of 19 April 1990 in the vicinity of the area where the safes taken from the Bowls Club were found. It would have been open to the jury to infer that the safes had been transported to that point in the car seen at the scene and that they were there smashed open. More significantly, there was scientific evidence from which the jury could have concluded that the two safes had been transported in the accused's motor vehicle.

1. The ultimate issue of fact which was raised was whether or not it had been established beyond reasonable doubt that it was the accused who used his motor vehicle at the relevant times. The accused gave evidence that other persons, and in particular his son, made use of his motor vehicle and that evidence was not really challenged in cross–examination. The principal evidence against the accused was evidence of alleged oral admissions made by the accused to police officers. Counsel for the Crown conceded that the jury could not convict the accused on any count unless the jury accepted that the accused had made the relevant admissions and I directed the jury accordingly. Having regard to the undisputed nature of the evidence tending to establish the commission of the crimes by some person or persons, it is reasonable to infer that the jury was not satisfied beyond reasonable doubt that the accused had made the admissions which, according to police officers, he had made. It is appropriate to observe that this is another case where the use of a video recorded interview would have saved significant public money. The admissions allegedly made were recorded in a record of interview which the accused did not sign. In substance, the accused's case was that the interview did not occur.

1. It is appropriate that I summarise the evidence given by the accused. On 20 April 1990 he was residing in a flat in Hillside Crescent Launceston. He was woken at about 7.00am when four police officers, Groves, Allen, Cameron and Birk, arrived. They entered the premises with the accused's consent and stated that they wished to carry out a search. Groves and Allen searched the bedroom in the presence of the accused. Cameron and Birk (both female officers) searched the loungeroom/kitchen area. Groves said to the accused, "You've been a naughty boy since coming to Launceston" and the accused replied, "What do you mean? I've been here for ten, twelve years." Groves said, "You haven't been here that bloody long" to which the accused replied, "I beg your pardon I have". Groves asked the accused to accompany him to police headquarters for questioning, giving as his reason, "because your record is not too handsome" to which the accused replied, "I haven't got a bloody record." Groves was waving a piece of paper which the accused took to be a "record". The accused was taken to headquarters in a police vehicle, being seated in the back of the vehicle, with Allen driving and Birk being in the front passenger seat. En route, Allen said, "I don't know why you just don't admit all of this and get it over with so we can all go home" to which the accused responded, "I'm not admitting to nothing I haven't done. I know nothing about it." There was then some further reference to the accused's alleged record.

1. Upon arrival at police headquarters, the accused was taken to an interview room. He asked Groves whether he could telephone his employer. This was permitted. The call was made from an office. After the call had been made, the accused was taken back to the interview room. Birk made him some coffee and the accused was then left alone. He was taken to the interview room by Allen and Birk. After he had been left in the interview room for some ten minutes Groves and Birk returned, still talking about "this record business". The accused assured them that he had no record, and one of them told him that he or she did not believe the accused. He was asked his date of birth, which he provided. Groves left the interview room, leaving Birk behind. After some ten minutes Groves returned, indicating that he would sort out the question of the record later. He then obtained from the accused some personal particulars and wrote on a pad. Groves asked the accused where he had been on the nights of the 8 and 18 April and asked him whether he had been involved in the two burglaries. As to the latter, the accused said that he did not know what Groves was talking about.

1. After the accused had been at the police station for about an hour, he asked for the names of some of the senior officers at the police station, as he knew some of them on a personal basis. Groves went through a couple of names and then came up with the name of Powell, to which the accused said that he knew Powell and that Powell knew him. He told the jury that he and Powell each had a daughter and that he had taken his daughter to children's parties at Powell's home on a number of occasions and that he had spoken to Powell on those occasions. He further told the jury that he had met Powell whilst employed at the Launceston Working Mens Club some years earlier when Powell had been involved in investigating a burglary which had occurred at the club premises.

1. Groves left the room and returned with Powell, a Detective Senior Sergeant. He said that Powell came in and said, "No, that's not the man" but then said, "but I think he's bloody guilty anyway". It transpired that Powell and other officers were aware of another person by the name of Michael Burles residing in Hobart who had a significant criminal record. The inference which it was suggested ought to be drawn was that all or some of the police officers who had gone to the accused's residence had believed that the accused was the other Michael Burles.

1. The accused was then asked questions about his car and provided particulars of the persons who used it. All four officers who had gone to his residence were then in the interview room. When he mentioned his son, Kim, as being a person who used his vehicle, Allen and Cameron left headquarters. I observe that in evidence each of Allen and Cameron agreed that he or she had made a number of enquiries that day which resulted in them bringing Kim Burles to police headquarters. However, each denied having gone to headquarters at the time that the accused was brought there, asserting that they had proceeded with their other enquiries immediately upon leaving the accused's residence.

1. After Allen and Cameron left the interview room, the accused was left alone for about half an hour. Groves then came in alone and asked further questions about the football club and the bowls club, to which the accused responded that he knew nothing about those matters. Groves told the accused that he did not believe him. Birk then came in with a second cup of coffee and the accused was left alone. His next contact with a police officer was when Allen came in, walked about the room and said, "I don't know about this. I don't know whether you are involved or not. I know damn well your car is." Allen then left the room. Some time later, Groves returned, screwed up the piece of note paper upon which he had made notes earlier. He again asked personal particulars of the accused and wrote on the note pad. He suggested to the accused that he was involved in the commission of the crimes which the accused denied. Groves then said, "Well, I think I have got enough evidence to charge you over your car. I am going to go ahead and charge you." He added, "We know your car was involved. We will find out one way or the bloody other whether you was or not, because you will get off your arse and find out who was using your car and tell us or you will go to goal for stealing." The accused denied that any form of document was typed in his presence. He said that he did not see a copy of the record of interview until it was shown to him by his solicitor.

1. Senior Sergeant Powell gave evidence. He denied having had any conversation with the accused on 20 April 1990, but he admitted to having had a conversation with the accused at police headquarters some months earlier. He agreed that he knew the other Michael Burles. He said that he had interviewed and charged that person whilst he was stationed at Bellerive CIB in 1977. He said that earlier in 1990, he was told by someone (presumably a police officer) that Michael Burles was being spoken to. He wondered whether the person spoken to was the Michael Burles from Hobart. He said that he went and spoke to the person being interviewed and that it was obvious to him as soon as he saw that person that it was not Michael Burles from Hobart. He identified the person then being spoken to as being the accused. He agreed that if the accused had been interviewed on a previous occasion as a suspect then a record of that fact would be available. No such record could be found by him. It is possible that the accused was being spoken to in a capacity other than that of a suspect. The accused gave evidence that he had never been to Launceston Police Headquarters prior to the occasion when he was spoken to in relation to the subject matter of the present indictment. One might have expected Powell to have made careful enquiries, not merely by an examination of records, but also by speaking to such officers as who might have been speaking to the accused, in order to provide independent evidence that the accused had been at police headquarters on an earlier occasion. If any such enquiries were made, the evidence would suggest that they were perfunctory to say the least. It was, of course, important for there to be some basis upon the evidence whereby the existence of the other Michael Burles and his criminal record was established as having been conveyed to the accused. An absence of such a basis would tend to confirm the accused's account of what happened at the police station.

1. There was some internal evidence in the record of interview which might be thought to affect its reliability. The evidence was that police officers took possession of the accused's motor vehicle upon the completion of the search of his flat. In the boot of the motor vehicle was a mattock. A second mattock was recovered from the area in Denison Road where the two safes were found. Each mattock was the subject of examination by Mr Dolliver of the Government Analyst Laboratory. The mattock found in Denison Road was found to have upon it paint flakes which appeared to have come from the two safes stolen from the South Launceston Bowls Club. There was not found upon the mattock found in the boot of the accused's vehicle any material indicating that that mattock had come into contact with either safe.

1. The following appears in the record of interview:

"Q63    Where did you take the safes to?

A        Up some road like I said and broke into them.

Q64     How did you break into them?

A        With a couple of maddocks (sic) we had with us."

1. The evidence strongly suggested that only one mattock, i.e. the mattock found in Denison Road, was used to break open the safes. At the time Groves spoke to the accused he was substantially aware of the circumstances of the commission of all crimes. In cross–examination he claimed that at the time he spoke to the accused he was not aware that the boot contained a second mattock. One might be sceptical about that. Certainly he had every opportunity to inspect the boot by the time that he spoke to the accused, but in any event, if one were to accept the accused's version of what occurred, the record of interview may have been typed at a time subsequent to the accused having been present at police headquarters and therefore at a time when Groves had examined the contents of the boot, the car remaining at the police station. The answer to question 64 suggests that it was one which conformed to Groves' belief as to what had happened but which did not reflect what had actually happened.

1. In general terms the jury might well have formed a favourable impression of the accused as a witness, even leaving aside the fact that the evidence was that he was a man aged 41 in steady employment and of previous good character. If he were minded to falsely deny having made the admissions attributed to him, one might wonder why he would seek to invent a story which involved creating roles for a number of police officers who, on the Crown case, had no involvement with any aspect of the alleged confession.

1. The jurisdiction to award costs under s4 of the Costs in Criminal Cases Act 1976 is to be exercised in the discretion of the court. Prima facie the discretion is unfettered, being required to be exercised having regard to all relevant circumstances save that the matters referred to in s4(2) are matters to which particular regard is to be given and that the provisions of subs(3), (4) and (5) affect the exercise of the discretion to some degree. Counsel for the accused particularly relied upon paras(c) and (e) of s4(2). In the first instance, I will deal with the latter of those provisions.

1. Section 4(2)(e) is drafted in terms which might be thought to be inappropriate in dealing with the case where an accused person has been acquitted by verdict of a jury. It makes a relevant circumstance the fact that the defendant is acquitted by a jury because "he established ..... that he was not guilty". If by so providing the legislature intended that the basis upon which a jury has acquitted an accused person is a relevant matter, then that provision is incapable of application. It forms no part of the jury's function to consider whether or not an accused person has established that he is not guilty. Its function is to consider whether the Crown has established his guilt beyond reasonable doubt. It is inconsistent with the sanctity of the deliberations of a jury to enquire as to the basis upon which the jury has arrived at a particular verdict. This provision cannot be read literally because it will not be known to the judge exercising the jurisdiction under s4 why a jury has acquitted an accused person.

1. This provision has been the subject of some judicial consideration. Crawford J said in R v Walters [1978] Tas SR 122 at p125, that it can only be the judge who can form the opinion for the purposes of s4(2)(e). That is plainly right.

1. The difficulty is in determining what is the requisite opinion before the statutory requirements are satisfied. In R v Walters (supra), Crawford J expressed the view that it was incumbent upon an accused person to establish innocence on the balance of probabilities. In R v Martin [1980] Tas SR 280 (NC12), Everett J left open the question as to whether that construction of the provision was correct. Regrettably it should be noted that Parliament has not acted upon his Honour's criticism of the form in which this provision is drafted and his suggestion that it ought to be amended "to express with clarity the concept it was intended to convey."

1. In a number of cases Neasey J did not adopt this construction of s4(2)(e). In R v Powell [1985] Tas R 63 at p67, his Honour said:

"'That he was not guilty' means in my view, 'that on the evidence before the court he should be found not guilty'. It does not mean establishing positively his actual innocence of the charge. I think R v Walters [1978] Tas SR 122 supports that view; but, with respect, I doubt whether any formal onus of proof is involved as was held in that case. I think 'established ... that he was not guilty' simply means that the applicant must produce an affirmative persuasion in the mind of the judge that he was not."

1. His Honour expressed the same view in R v Walker Unreported No 31/1987 at p19.

1. The difficulty which I have with the views expressed in R v Powell (supra) arises out of what I perceive with great respect to be a difference between on the one hand satisfying a trial judge "that on the evidence before the court an accused should be found not guilty" and on the other hand to "produce an affirmative persuasion in the mind of the judge that the accused was not guilty". Neasey J appears to have treated those expressions as being interchangeable.

1. The difficulty I have arises as follows. A trial judge may be persuaded that an accused person should be found not guilty. That view may be as the result of being persuaded that the state of the evidence is such that there must inevitably be engendered in the mind of a reasonable juror a reasonable doubt as to the guilt of the accused. However, it would not be unreasonable for a trial judge to hold that view without being affirmatively persuaded that an accused is not guilty in the sense of being innocent.

1. The distinction between those two concepts is of some importance in the present case. The jury quite rightly acquitted the accused. I would have been surprised if they had convicted him. The nature of the evidence was such that inevitably it must have engendered real doubts in the minds of the members of the jury. On the other hand, the accused has not produced an affirmative persuasion in my mind that he was innocent. He may well be. I should not be taken as suggesting that there is any affirmative persuasion in my mind that he was guilty. There was not. I simply do not know.

1. My state of mind is that applying the criminal standard of proof to the evidence the accused ought to have been acquitted. That goes beyond merely saying that upon the evidence it was reasonable for a jury to acquit him. It suggests that I would have difficulty in understanding how a jury acting reasonably could have convicted the accused upon the evidence.

1. The evidence established that the accused ought to have been found not guilty. I hold that that is sufficient to attract the provisions of s4(2)(e). As a matter of law an accused person ought to be acquitted if a reasonable doubt is engendered in the minds of the members of the jury. That in itself is not sufficient to justify an exercise of the discretion because of the provisions of s4(3). If the evidence goes further and satisfies the trial judge that the members of the jury ought to have a reasonable doubt then the accused person has brought himself within s4(2)(e).

1. The only other provision of s4(2) relied upon by the accused was para(c). The investigations into the crimes the subject of the indictment included various scientific examinations of objects found in or near Denison Road and found in the accused's motor vehicle. No scientific examination was made of any article of clothing belonging to the accused. The accused's motor vehicle had already been connected to the series of crimes affecting the Launceston Football Club by way of other evidence in the possession of the investigating officers. The scientific examinations primarily went to connecting that vehicle to the later crimes. If the state of mind of each of the police officers who went to the accused's residence and searched it was that the accused and another person had been involved in the forcible breaking open of two safes in Denison Road (and the evidence would indicate that that must have been in the minds of some of them at least) then one might have thought that it would have occurred to such officers that the action of smashing open a safe with a mattock might have resulted in particles of paint or other materials from such a safe becoming attached to articles of the accused's clothing. Police officers called at the accused's residence at 7.00am on 20 April 1990 then having available to them a statement of a witness indicative of the breaking operation in Denison Road having occurred at about 4.00am on 19 April 1990. No article of clothing was taken possession of for the purposes of examination. It would have been prudent to do so, but I consider that a failure to do so did not constitute such a departure from appropriate investigative procedures so as to result in the investigation not having been conducted in a reasonable and proper manner.

1. No reliance was placed on paras(a) and (b) of s4(2). Clearly, para(d) has no application.

1. No other matters were put to me as to the exercise of my discretion. Having regard to all the circumstances of the case, I consider it just that an order for costs be made. I order that the accused be paid, in respect of his defence, the whole of the costs reasonably incurred by him in respect thereof. I order that the Registrar tax those costs.

1. I propose making an order under s5A(2) specifying the appropriate scale to which regard is to be had in taxing the accused's costs. Before specifying such a scale, I shall hear counsel further.