R v Devine, Robert Joseph

[1998] TASSC 42

42/1998

PARTIES:  R
  v
  DEVINE, Robert Joseph

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  14/1998
DELIVERED:  22 April 1998
HEARING DATE/S:  20, 21, 22 April 1998
RULING OF:  Slicer J

Edited edition of ruling delivered orally.

CATCHWORDS:

Criminal Law - Evidence - Matters relating to proof - Miscellaneous matters - Alibi - Presumption of regularity - Whether inferential evidence constitutes alibi.

R v Gill A4/1974; R v Johnston A62/1973, followed.
Aust Dig Criminal Law [460]

REPRESENTATION:

Counsel:
           Crown:  M A Stoddart
           Accused:  S C Chopping
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Steven Chopping

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  42/1998
Number of pages:  3

Serial No 42/1998
File No 14/1998

THE QUEEN v ROBERT JOSEPH DEVINE

RULING DURING THE COURSE OF TRIAL  SLICER J

(DELIVERED ORALLY)   22 April 1998

The accused seeks to lead evidence claimed by the prosecution to be alibi evidence despite not having given notice in accordance with the Criminal Code, s368A. He contends that no such notice is required since the nature of the evidence lacks the precision necessary for the characterisation required of alibi evidence.

There is evidence that, at the time of his committal, the accused was advised by the Committee Magistrate of this statutory requirement to provide notice.  In any event, the Court is entitled to rely on the presumption of regularity as provided by the Justices Act 1959, s56A(9). See R v Gill A4/1974 and R v Johnston A62/1973.

The case against the accused is that in the early hours of the morning, 16 April, he was found hiding in the yard of a property at Lawitta Road, Magra.  Police had been summoned to the general area at about 1.30am and soon thereafter located the accused.  The motor vehicle said to be owned by the wife of the accused was parked in front of the premises and a quantity of stolen plants was found in that vehicle.  Three other items, a jacket, blanket, and vehicle pump, were found nearby.  Those items had been taken from a vehicle parked at a nearby house.  The plants were taken from that house and the one at which the accused was found.  The following morning a three piece bird bath and other plants, also stolen from the second house, were discovered alongside the roadway but some little distance from and in the other direction to the two houses.  The location of the recovered items and the necessity to locate, dig up, remove and collect the various items indicate that some considerable time had been required in the commission of the criminal conduct.  Police officers and a householder claimed in evidence that the accused had admitted responsibility and that he had collected the items in order to "set up" another nearby resident, presumably as retaliation for some other perceived injury inflicted by that person on the accused.

Because the opening statement made by counsel for the accused did not afford sufficient precision to the evidence sought to be adduced, counsel for the Crown made objection and successfully sought that it be heard on the voir dire.

The evidence of the accused, for which no notice is required, is that on the evening preceding the events he was with his family, but received a telephone call from his wife that friends who had been visiting her had taken her vehicle because of mechanical problems with their own vehicle.  In the course of the journey they had had an altercation and left the vehicle at the place where it was subsequently located.  In response to the telephone call the accused had returned home, collected the keys which had been returned, and walked until he recovered the abandoned vehicle.  The distance between the residence of the accused and the vehicle is approximately one kilometre.  He said that he left his residence at approximately 1am and at about 1.20am, as he got near the residence, was passed by a police car, the only one on duty in the area, as it proceeded to the house from which a call had been made.  When he arrived at the vehicle, or soon thereafter, the police car returned, and, fearing guilt by presence, he hid, only to be discovered shortly thereafter.  On his version, he would not have had sufficient time to have committed the crimes.  The challenged evidence is that of Mandy Shea.  She deposed that she was the owner of the motor vehicle and that during the evening of 15 April, two friends had visited her but had difficulty with their vehicle so she lent them her own vehicle.  They left at some time after 8pm and returned at some time after 11pm.  Miss Shea was told the whereabouts of the vehicle and rang her husband who returned home about midnight.  He waited some little time and left on foot to recover the vehicle at some time around 1am.  She next saw her husband when he returned with the police officers.  Further evidence was called on the voir dire from Rachel Fisher who corroborated the evidence of Miss Shea.  She deposed that early in the evening she and her companion, Peter Vernon, had visited the accused and Miss Shea but were unable to start her vehicle, so she borrowed Miss Shea’s vehicle and the two went to a nearby hotel.  On their return they stopped for about an hour and on resuming the journey stopped the vehicle.  She said that she saw some ferns on the lawn of a nearby house, a few plants and a blanket.  She said that she took two plants and put them in the vehicle.  She said that there was an altercation with Vernon, who left with the keys of the vehicle.  She followed him and both walked back to the home of Miss Shea.  There she managed to start her own vehicle.  She was unaware of the location of the vehicle and believed that she and Vernon left Miss Shea’s house on the second occasion at some time after 11pm.  The relevant provisions of the Code, s368(A) state:

"368a ¾ (1)  On a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.

(2)   Without prejudice to subsection (1) on a trial on indictment the defendant shall not without the leave of the court call any other person to give any such evidence as is referred to therein unless ¾ 

(a)the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the defendant at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness;

...

(3) The court shall not refuse leave under this section if it appears to the court that the defendant was not informed, either in accordance with section 56A of the Justices Act 1959, or in writing by the Crown Solicitor, of the requirements of this section.

...

(8)   In this section ¾ 

"evidence in support of an alibi" means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; ..."

The significant words are those relating to the presence of a person at a particular place or in a particular area at a particular time, and such evidence as is sought to be adduced that he was not or was unlikely to have been at the place at a particular time.  There is need to give effect to the words, “unlikely to have been”.  The evidence which can be characterised as alibi evidence need not necessarily place the accused person at a particular place at a particular time, but it must be of a nature that its acceptance renders it impossible, improbable or unlikely that he could have been present.  Thus evidence that a person who was in Launceston one hour before the commission of a crime at Huonville would possess the characteristics of alibi evidence.

Provisions comparable to the Code, s368A(8), exist in other jurisdictions. In R v Hassan [1970] 1 QB 428, the court of appeal considered the problem in the following terms:

"What does appear to this court to be a conclusive point is that the statutory definition of the phrase 'evidence in support of an alibi' does appear to envisage an offence which necessarily involves the accused being at a particular place at a particular time.  Section 11 (8) provides that:

'"evidence in support of an alibi" means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.'

What the defendant sought to call by way of rebutting the Crown case related to his assertion that he was not and could not have been the man whom the police said they saw hurriedly leaving the flat on August 20.  But even if he was not, he was still capable of being guilty of the offence charged of living on prostitution between the dates alleged; and even if he was, it did not of itself establish that he was living with or habitually in the company of the named prostitute.  That incident was only part of the narrative which the Crown presented and upon which they were inviting the jury to draw the conclusion that an offence had been committed.

Section 11 seems to us to contemplate the commission of an offence at a particular place.  Here the crime is anchored to no particular location.  It is important to have in mind the nature of the crime charged; it was that the accused was living on the earning of prostitution, no place other than 'the city of Cardiff' being designated."

The court concluded that, in that case, the accused could still have committed the crime at a different place since the nature of the crime, that is, living off the earnings of prostitution, did not require physical presence at a particular place.  This is not the case here.  The Crown case is that the accused took the items some little time before 1.30am.

There is a distinction between the evidence sought to be led from Shea and that from Fisher and Vernon.  The effect of the evidence of Shea is that the accused could not have been or was unlikely to have been at the scene of the crime in sufficient time to commit the crimes.  It may properly be characterised as alibi evidence.  Discretion ought not be exercised in favour of the accused.  He was legally represented at committal proceedings, he was advised of the statutory requirement and notice of sorts given to the Crown that Fisher would say that the occurrence was a joke, that notice differs from that of alibi so one may conclude that some consideration was given to a defence of some nature.  See R v Sullivan [1971] 1 QB 253. It will be difficult in the time available for the prosecution to obtain rebuttal evidence. See Blewitt v R (1988) 62 ALJR 503, Kellick v R (1981) 56 ALJR 35, Browne, Moorehouse and Blewitt v R (1987) 30 A Crim R 278.

The evidence of Shea may not be called on the trial.  The evidence of Fisher, and, in the event that Vernon is to be called, the evidence of both will be admitted.  Their evidence provides explanation for the presence of a motor vehicle and of the plants found within that vehicle.  It places the commission of the crime at a different time but does not relate directly to the whereabouts of the accused at or about the time when the prosecution claims the crime was to have occurred.  The evidence does not render it unlikely that the accused was present at the scene at a time subsequent to 11pm, that is some two and a half hours before detection.  The determination is that notice is not required and the evidence sought to be adduced may be led.