R v Gregory Jason Merrilees
[2013] ACTSC 81
•4 April 2013
R v GREGORY JASON MERRILEES
[2013] ACTSC 81 (4 April 2013)
EX TEMPORE JUDGMENT
No. SCC 24 of 2012
Judge: Chief Justice Higgins
Supreme Court of the ACT
Date: 4 April 2013
IN THE SUPREME COURT OF THE )
) No. SCC 24 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
GREGORY JASON MERRILEES
ORDER
Judge: Chief Justice Higgins
Date: 4 April 2013
Place: Canberra
THE COURT ORDERS THAT:
The accused is guilty of the charge.
The accused, Gregory Jason Merrilees, stands charged on an indictment alleging that on 18 November 2010 at Canberra in the Australian Capital Territory that he made a false sworn statement in a legal proceeding with the intention of procuring someone else’s acquittal of an offence, that offence being punishable by imprisonment, and being reckless about whether that statement was false.
He elected for trial by judge alone, which means that I, as the trial judge, also fulfil the functions of the jury. I have to direct myself as if I were a jury and remind myself that the prosecution in this case, as in any other criminal case, bears the onus of proving each and every element of the offence charged.
They have the burden of proving that to the criminal standard; that is, beyond reasonable doubt. And that simply means what it says: beyond any doubt that I might think to be reasonable.
In the course of the trial Mr Merrilees, the accused, is entitled to the presumption of innocence. That is to say, he is presumed to be innocent unless and until the contrary is proved to the criminal standard. And that means not only that the prosecution bear that onus to that extent, but also that in viewing the evidence, any doubt or question that arises must be decided in favour of the accused unless excluded beyond a reasonable doubt. He is entitled, in other words, to the benefit of the doubt.
The elements of the offence are indeed not in issue. They imply that the accused made a statement on oath, and that includes affirmation and that he made it in a legal proceeding. In this case it is alleged that he made that statement in a legal proceeding involving the prosecution of a Mr Zanatta for both driving while disqualified and refusing a breath test in respect of that driving.
The intent of procuring acquittal means in this case that the allegedly false statement was made with the intention that it be accepted as true, and if true that Mr Zanatta would be acquitted. Indeed, that would have been the case, had the truth of the representation that Mr Zanatta was not the driver been accepted.
The two other elements, which are the ones really in issue here, are that the statement was indeed false. That means in this case very simply that, to Mr Merrilees’ knowledge, he had not been the driver of the vehicle as he claimed to have been, which would lead to the inference that Mr Zanatta was. Further that when he made that statement he was not mistaken or under some false impression. It follows that I must, in order to find him guilty, not only find that the statement he made on affirmation was false, but that he was aware that it was false.
Now, in this case there seems little doubt that if the statement was indeed made by him and was false that he would have known that to be so. After all, it related to his own activity, namely driving the vehicle. If he had not been driving he would obviously know that. The only purpose of making that false statement would be to procure Mr Zanatta’s acquittal.
I remind myself as to the evidence that I may accept or reject in whole or in part the evidence of any witness. That is not a whim. It must be on a rational basis. Nevertheless, the mere fact that I fail to accept part of a witness’ evidence does not imply that I must reject the whole of it.
I also note that in this case the accused did not give evidence, and no adverse inference may be drawn from that. It is his right not to give evidence, although there was, of course, in this case the impugned testimony which he gave to the Magistrates Court, and that may be relied upon for what weight it may bear in the course of deciding whether the statement indeed was false and whether he knew it to be so.
The evidence in this case was in relatively short compass. I will start with the evidence of that which Mr Merrilees had attested to before the learned magistrate, and his evidence, as he gave it there, was that he had arranged to borrow Mr Zanatta’s vehicle, and it is not clear entirely whether he was saying he had the vehicle before the alleged driving away from the Kambah Tavern. In one part, he did say that he thought Mr Zanatta had driven there, which would imply that he had not been himself involved in driving the Hilux utility before then.
That is not entirely material because the question is whether he drove on the journey from the Kambah Tavern to 11 Boustead Street, Kambah. His evidence there was that he did drive from the tavern with Mr Zanatta as a passenger. He said a ute overtook their vehicle, and he gave an estimate of speed of 130 to 140 kilometres an hour, which does seem rather in excess of that which the police subsequently estimated that vehicle to be travelling at.
He said he drove around the police vehicle and proceeded to 11 Boustead Street, Kambah. The police vehicle parked behind him at his place. It was not in issue that he was, at that time, resident at 11 Boustead Street, Kambah, renting a room off Mr Matic.
Mr Merillees gave an indication of where he started – on the passenger’s side, outside the front, underneath or between a bit of vegetation there, on a grassed area. He said he used Mr Zanatta’s keys, but on their arrival he gave him back the keys, and there was no conversation.
He said there was a conversation subsequently he observed between Mr Matic and a police officer, but the essence of that was that Mr Zanatta ran off. Mr Merrilees added that Mr Zanatta thought he was on an alcohol ban, although in fact it had expired the day before.
Now, the fact of the matter is that the alcohol ban which had been imposed upon Mr Zanatta’s most recent conviction, was for six months and expired on 15 March 2010, well over a month before this event.
One might have thought that if it had expired just the day before that there would be credibility lent to a proposition that Mr Zanatta was not sure that the ban had expired. It is much more difficult to draw that inference when it was over a month before. He also added that he did not own a Ford utility, a Ford utility having been identified as the lead vehicle travelling down Boddington Crescent and nearly colliding with the police vehicle, which was driven by Constable Coppin at that time.
He did identify the police vehicle as a van, and there does not seem to be any dispute it was indeed a van, although a VW van. I only mention that because it certainly was not a high-powered pursuit vehicle.
I turn now to the evidence of First Constable Mark Treloar, who gave evidence that he was a passenger in the van that was being driven by Constable Coppin, who was then a Senior Constable. He saw two vehicles as the vehicle came to the intersection of Castley Circuit with Boddington Crescent.
It was apparently indicated that that vehicle, that is, the police vehicle, was about to turn right into Boddington Crescent. At that point two vehicles were observed approaching at excessive speed, although the estimate he gave of that speed was 80 to 100 kilometres an hour, which although it was excessive is not grossly excessive as Mr Merrilees’ evidence to the magistrate might have indicated.
It was followed by a Toyota Hilux, and there is no issue but that that vehicle was the vehicle which was owned by Mr Zanatta and which Mr Merrilees claimed to then be driving. Constable Treloar identified the vehicle in his evidence initially as a dark Holden, but he did retract that later when it was pointed out to him that he had referred to it as a Ford in his evidence in the previous proceedings, and he agreed that that was correct. Indeed, no witness seems to suggest, apart from that particular lapse, that the vehicle was other than a Ford utility.
He gave evidence of following the two vehicles, obviously the Hilux being the one behind, down Boddington Crescent, and they turned right into Bateman Street. Now, there is some uncertainty in my mind as to the distances. I refer back to the proposition that this was a van, not a high-powered pursuit vehicle. So the distances I have to accept are somewhat rubbery.
In any event, he certainly agreed that they were some distance behind the white Hilux at the time when they were proceeding along Boddington Crescent, and he said that vehicle turned into Boustead Street. Boustead Street is U shaped with the two arms of the U each intersecting with Bateman Street.
The vehicle entered Boustead Street from the first of those two intersections; that is, the first as the vehicles were approaching. They followed. He said as they pulled up the white car pulled to the rear of a tree and they pulled up behind and parallel with the vehicle, with the lights of the police vehicle on high beam.
Constable Treloar hit the spotlight, as he called it, to the left side. There was only about a metre gap between the two vehicles, and he said that they were, in effect, seat to seat. That is to say, the passenger seat to driver’s seat were almost immediately adjacent, apart from that one metre distance.
He said he could see that the driver’s seat was not occupied. He saw Mr Zanatta on the passenger door side. He was getting out, and Mr Zanatta, as he put it, bolted. Constable Treloar observed, he said, the motion of opening and/or closing the door.
That is a little curious, because the vehicle did turn out to be locked, so there must have been some pause, you would think, after the vehicle stopped before doors were closed in order to lock them. As I understand it, you cannot lock a door that is open. In any event, more of that a little later.
Constable Treloar then chased Mr Zanatta. He gave an indication of that on a map. There is not much dispute about this aspect of the matter either. It was 200 or 300 metres up to a point which is, ironically, labelled “Local Liquor”, and, he said, Mr Zanatta stopped about that point, turned, and said to him, “All right, you got me.” He then lay down and Constable Treloar then proceeded to handcuff him, and apparently while doing so asked, “Why did you run?”
Mr Zanatta replied “My mate almost hit you and I don’t have a licence.” He made a note of this conversation in his notebook, unsurprisingly. He searched Mr Zanatta and found identification which identified him as Marco Zanatta. The image matched and he called Constable Coppin, who came with the police vehicle to pick up both of them.
It was after this, and when a sample was requested from Mr Zanatta for the purpose of a roadside breath test, that he said for the first time, “I wasn’t driving.” He was asked, not surprisingly, “Who was?” and he said, “I’m not telling you.” He was not obliged to say anything, of course, and one cannot draw any adverse inference from the fact that he did not give any further details, but the fact is that there was no revelation that it was indeed the accused, Mr Merrilees.
He was found also in possession of a set of Toyota keys. They were tested later and found to fit the Toyota Hilux. There is no issue about any of that, although I must point out that Mr Zanatta of course was, at the time when all that happened, in the back of the caged police vehicle, so would have been unable directly to notice any of that. But as I say, whether he could or could not, and I accept that he could not, it was not in issue but that the keys fitted that vehicle.
He was taken back to the police station. Constable Treloar was an authorised breath analysis machine operator, so he proceeded to conduct the test, and Mr Zanatta again claimed that he was not driving. As a result he not only refused the roadside breath test, which he had done, but also refused to undertake the breath analysis at the police station, again on the grounds that he had not been driving. He offered no other reason. It was Constable Treloar’s observation that he appeared moderately affected by intoxicating liquor.
Mr Zanatta’s criminal record revealed that he had been convicted previously of an offence involving drinking and driving. In fact, he had four previous convictions for such. And one of the terms upon which he had been released, having been sentenced on the last occasion, apparently by Chief Magistrate Cahill, was that he accepted as a condition of a good behaviour order a ban on drinking for six months. As previously noted, that ban expired on 15 March 2010. Certificates tendered proved the fact that he had no licence at the relevant time, and that the Hilux was registered to him.
Under cross-examination he confirmed to some extent the distances given. I regard those estimates of distance as rather rubbery. Constable Treloar confirmed that his vehicle had stopped parallel to the Hilux, and level with it at the time when it arrived at 11 Boustead Street, Kambah.
Little more can be drawn from that. The photographs which have been tendered of the area, even if they are Google photographs, disclose that a vehicle travelling along the upside of the U and coming towards the bend could see the other arm of the U through the trees and in front of the building line. So his statement that he saw the vehicle pulling up and saw the trail lights of it is not inconsistent with the police vehicle having been at that point when that observation was made.
Senior Constable Coppin was the driver of the police vehicle. He described the two vehicles and again, there is no difference between the two officers on this point. As they were entering Boddington Crescent he saw the two vehicles approaching. He described the second vehicle as tailgating the first. That may or not be literally true, but it certainly indicates that, as he saw them, they were close together.
And he described a similar route being taken to Constable Treloar. That is not surprising. He said that the Hilux stopped around the corner. He did not actually see it stop, but he saw the tail lights, and it was about three to four seconds, in his estimation, before the police vehicle arrived at that point and also stopped.
He described the stopping as in the form of a T, with the police vehicle to the rear of the Hilux. Now, of course, that was obviously inconsistent with what Constable Treloar had said. It follows that there is another issue. After all, the judge of fact has to decide what to accept, what to reject and what inferences may be drawn from any discrepancy there may be between witnesses.
He says he saw a male in a high visibility vest. There is no issue but that that person was Mr Zanatta, who shut the door and ran to the rear of the vehicle and off again. It is a little curious that, if he saw the door being opened and closed, why the person obviously fleeing would pause to lock it. That indicates to me that the simultaneity, if I may use that term, of the vehicle stopping, the passenger and/or driver leaving the vehicle, closing the door, is perhaps a little bit rubbery. I suspect there was a little more time between those events so as to enable Mr Zanatta to exit the vehicle and pause to lock it before he saw the police arriving and decided to flee.
Constable Coppin observed Constable Treloar pursuing Mr Zanatta. He alighted with a torch, he said, and shone it inside the Hilux vehicle, but no person could he see there. As he was doing that, the light came on in number 11 and the occupant came out. It would seem that occupant was Mr Matic.
Constable Coppin asked him who owned the Hilux, and he said he did not know. That probably was not quite truthful, because he obviously did know that Mr Zanatta owned it, because Mr Zanatta lived with him, and indeed he did say something to that effect when he gave evidence.
Constable Coppin saw no one else in the front yard. That, of course, does not conclusively prove there was no one there, but he certainly saw no one and no one came forward. He said he received then a message from Constable Treloar, no doubt to say he had apprehended Mr Zanatta, and indeed then went straight away to that location in order to assist him.
He agreed that there were two keys found with Mr Zanatta, Toyota keys, and those keys matched the vehicle, both in terms of opening it and in terms of it being able to be started with one of those keys.
Mr Zanatta gave evidence next for the prosecution. Though I say “for the prosecution”, that is putting it fairly loosely. He was called by the prosecution. His evidence was unfavourable to the prosecution, and I gave leave for the prosecutor to cross-examine him as to his evidence. That was not resisted, and indeed, nor could it have been.
He agreed that he knew both Mr Merrilees the accused and also Mr Matic, and that they had known each other for some years. He was living then at 11 Boustead Crescent, Kambah. He said in fact that he had been to the Kambah Tavern with two persons, each named Nathan – it is not necessary to identify them further - in his Hilux.
He lived at Linde Place, Kambah himself. He said he had a couple of beers at the tavern. That may be a slight exaggeration in the sense that he told Mr Ehlers later that he had four schooners. And that is probably true. Everybody has had a “couple” irrespective of how many there are, so I do not think there is any difficulty with that.
He recalled leaving in his car. He said Greg Merrilees had been there at the tavern. They spoke, and it had been arranged that Mr Merrilees would drive his car. He thought that Mr Merrilees had nothing to drink, and he had arranged, he said, for him to pick him up. It is not quite clear where that came from, in terms of when the arrangement was made, having regard to what had been earlier said.
In any event, he says that the arrangement was then that they would drive, with Mr Merrilees driving, to Mr Merrilees’ house and “hang out”. He chatted with Mr Merrilees at the tavern. They left together and went to the latter’s house. He says that a car overtook them. He said it might have been a Ford. He said it was a dark colour. That was consistent with Constable Treloar’s amended evidence and consistent with Constable Coppin’s evidence.
He said it almost hit a police van, though his vehicle was not that close to that vehicle. It continued along Boddington and then turned into Bateman and then they went into Boustead Street. That was his evidence and there does not seem to be any doubt about the course which that vehicle followed. All itineraries agree on that.
So they stopped, he said, at number 11. That is not surprising. They stopped parallel to the road. Again, there does not seem to be any great difference between any of the witnesses as to where the white Hilux stopped. That is probably because photographs were taken of it so there was no opportunity for confusion about that.
He said that they both got out. He got out the passenger side. He then saw a blue flash, which would be the police vehicle coming around the back corner. He said the police vehicle stopped along the cross-section nearer to them. His indication of the positioning of that vehicle was that it was parallel but behind. He said that they were already both out of the vehicle.
He said he was given the keys. He could not recall whether it was while he was still in the car or out of it. Mr Merrilees, he said, walked across in front of the Hilux. He recalled getting out of the car. He said when he saw the police arrive he panicked and ran. He believed, he said, he was on a drinking ban. Now, as I have already noted, that drinking ban in fact expired on 15 March 2010, had been for six months, so while if it had been the day before there might be some credibility to a proposition that he was uncertain as to the drinking ban being still in place, it is a bit difficult to accept that he would still be under that misapprehension on 27 April 2010.
He said as he took off, he ran for a distance, realised he was being stupid, and stopped, and the police officer caught up with him. He could not recall whether he was asked whether he had been driving or whether he had been drinking. However, he said he was asked to undertake a screening test, and he refused, saying he was not driving so he would not. That was only after Constable Coppin had been summoned for the very good reason that there was no screen test device present on Constable Treloar’s person. Plainly he had to get that from the police vehicle.
Now, that left unaddressed, at that point at least, that conversation to which Constable Treloar had deposed, namely that Mr Zanatta said, when asked, “Why did you run?” “My mate almost hit you and I don’t have a licence.”
Now, as was pointed out several times, if he did not have a licence it would not prevent him being a passenger. And that statement as Ms Jones subsequently submitted could only mean, whoever may have been “the mate” referred to, an indication of acknowledgement that whatever had happened, it was relevant that he did not have a licence.
In any event, for the first time he indicated he had not been driving at the point when he was asked to blow into the approved device for a screening test. Having refused that, he was put in the “paddy wagon”, as he said. I remind myself that “paddy wagons” are designed or originally used, and are so named for, confining the Irish. In any event, we know what he meant. He said he was asked only when he said that, “Who was driving?” and he would not say or did not say who was.
Subsequently a pre-sentence report was ordered when Mr Zanatta was convicted of those two offences in the Magistrates Court. He then went to see Mr Ehlers who was a Probation and Parole officer charged with the task of preparing a pre-sentence report.
He was asked concerning his attitude to the offences, and it is common ground that he said that he had been driving and offered an expression of remorse for his actions. There is no doubt that he said that. He says in evidence that he felt that he had been given the message, if not a statement expressly made by Mr Ehlers, that it would be better if he “owned up”. Whether or not Mr Zanatta indeed got that impression, I do not believe that Mr Ehlers said that to him. I will reiterate that when I come to Mr Ehlers’ evidence.
In cross-examination he conceded that he may have made the statement that, “My mate almost hit you and I don’t have a licence,” when he was speaking to Constable Treloar. He said, “I may have said that.” I take that to be an acknowledgement that he did say that. There certainly is no call to doubt Constable Treloar’s evidence as to that fact.
Mr Zanatta had told Mr Ehlers, it seems, that his reason for being uncooperative was because the handcuffs were tight and they would not loosen them. He asserted that what he had told Mr Ehlers was in fact a lie, and he said in cross-examination that he, the accused, “is only here because I lied to Mr Ehlers”, and reiterated that he thought he was subject to the alcohol ban on the day in question.
Now, he was asked what he meant by, “My mate almost hit you.” Did that refer to Mr Merrilees? He did not agree as to whether it did or did not. He was rather evasive on that point. In fact, the whole evidence given by Mr Zanatta could only be described as evasive and reluctant.
Mr Matic also gave evidence, and he of course was in the house when most of this event occurred. He said he heard yelling, and came out. I infer from that that the yelling he no doubt heard would have been from Constable Treloar yelling, “Stop, police,” or words to that effect as he said he did.
He gave evidence that the white Hilux parked outside. He knew it was Mr Zanatta’s car, so why he did not tell the police that is a little bit of a mystery but in any event he knew that. It was parked parallel and towards the back of the Hilux. He said that it was slightly overlapping but certainly not parallel and even, as did Constable Treloar, nor across the back of it as did Constable Coppin.
He exited the front door, triggering the lights. He recalled the red and blue lights were still flashing. He did not recall talking to anybody, but he did say that he walked back inside after that with Mr Merrilees, and he asserted quite definitely that Mr Merrilees was there.
Mr Ehlers, who I have to say is clearly a truthful witness, and, indeed, was not challenged on any aspect of his evidence in that respect, gave evidence that what he had recorded in his pre-sentence report as being Mr Zanatta’s attitude to the offences and his description of them was as he was told by him. Indeed, that is understandable.
He did concede that the reference in it to six drinks was a calculation, because he was directly told that it was four schooners, which he calculated as six standard drinks, which would be about right. He did not believe that he used the term to Mr Zanatta that he had be better to have owned up, and the only matter of interest there was that when he asked about the offence, Mr Zanatta said words to the effect that “The car” - that is the Ford utility - “overtook us.” The “us” was not explained. Now, it could just have been the royal plural, or it could have been just a slip of the tongue. But it certainly does not necessarily indicate to me one way or the other that he was asserting at that point that he was accompanied. It is, however, consistent with that.
That was the case. The accused called no evidence. I remind myself that he was not obliged to do so, and, indeed, no adverse inference can be drawn from the fact that he did not call or give any evidence. The question, as Ms Jones put it in her address, was whether the statement he made was false. She pointed out that the comment that he made and accepted as, in effect, he had, “My mate almost hit you and I don’t have a licence,” could only be interpreted as indicating that he indeed had been driving, because otherwise the presence or absence of a licence would be of no moment.
She put it to the court that Mr Zanatta had been both vague and evasive, he being the only person who gave evidence before the court as to the presence of Mr Merrilees, although I accept that he said that to the Magistrates Court.
Mr Sharman suggested the observations of the police were not conclusive, and with that I do concur. I think, as I have already indicated, that the estimates of distance were somewhat rubbery, and it is certainly obvious that the observations of the police as to where they stopped are seriously at issue not only with each other and the other evidence. I am inclined on that particular aspect of it to accept the other evidence.
Mr Matic, Mr Sharman said, corroborated Mr Merrilees’ presence. Now, that being the evidence, the issue is what is established? To my mind, the important part of the evidence I have just reviewed is the statement made by Mr Zanatta to Constable Treloar, and the statements he then made to Mr Ehlers.
It is possible that Mr Merrilees was present at 11 Boustead Crescent, but I am satisfied that he was not the driver of the vehicle, that is, the Hilux, when it pulled up. I think it more likely he was not present at all, but his presence or otherwise is not conclusive.
A matter which has caused me some query is why Mr Zanatta would exit the passenger side if he had not been the driver. But if he was going to claim that someone else was the driving, and that is why he was getting out of the passenger side, it is at least surprising that he did not say so when cornered. That fact, that he exited from the passenger side, does not therefore seem to me to detract from the force of the admission which he made.
So far as the statement of Mr Ehlers is concerned, it may be that he had in mind to help in the sentencing process; that is to make it easier for himself. But it does corroborate the statement which he made to Constable Treloar. In those circumstances, I find myself satisfied, and satisfied beyond a reasonable doubt, that the accused was not the driver and had not been the driver on that evening of the Ford Hilux, and it follows from that the statement he made to the court was indeed false. It can only have been false to his knowledge. I therefore find the offence proved.
I certify that the preceding seventy three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of Chief Justice Higgins.
Associate:
Date:
Counsel for the Applicant: Ms Jones
Solicitor for the Applicant: Director of Public Prosecutions
Counsel for the Respondent: Mr Sharman
Solicitor for the Respondent: Tim Sharman
Date of hearing: 4 April 2013
Date of judgment: 4 April 2013
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