R v Grindley - [2017] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRINDLEY
Criminal Trial by Judge Alone
[2017] SADC 41
Reasons for the Verdicts of His Honour Judge Tilmouth
20 April 2017
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Counts of trespass and theft found unproven given a reasonable hypothesis consistent with innocence.
Criminal Law Consolidation Act 1935 (SA) s 134(5), s 169(1); Mule v The Queen (2005) 79 ALJR 1573; Azzopardi v The Queen (2001) 205 CLR 50; Woolmington v The Director of Public Prosecutions [1935] AC 462; King v The Queen (2003) 215 CLR 150; Pitkin v The Queen (1995) 69 ALJR 612; Bruce v The Queen (1987) 61 ALJR 603; Gilson v The Queen (1991) 172 CLR 353; Ayles v The Queen (2008) 232 CLR 410, referred to.
Shepherd v The Queen (1990) 170 CLR 573, applied.

R v GRINDLEY
[2017] SADC 41
Preliminary

The accused Donald Grindley is before the court having pleaded not guilty to an aggravated charge of serious criminal trespass in a non-residential building and theft. The particulars of aggravation are that the trespass offence was committed in the company of another (unnamed) person.
The trial proceeded over the course of one day in late March 2017 during the Mount Gambier circuit of the Court. Mr Grindley made a valid election for trial by Judge alone and the trial proceeded in that manner accordingly. The case against him is entirely circumstantial. For reasons to follow he must be acquitted of both charges.
The charges
The aggravated charge of serious criminal trespass in a non-residential building is brought pursuant to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The particulars of the charge are that in the early hours of Friday, 5 June 2015 at Nangwarry, he entered the BP Nangwarry Service Station with the intention of committing theft. The charge of theft relates to $800 in cash, and 20 ‘WalknTalk’ brand mobile phone chargers taken from those premises, without the consent of the owner of the business.
The uncontested facts
The evidence was partly oral and partly by way of agreed facts. Photographs and CCTV footage taken from inside the kitchen and the office of the premises were tendered. These demonstrate beyond doubt that two male intruders entered the building by breaking through the back door at about 1.43am. They immediately smashed their way through a nearby office door by using a ‘pinch-bar’ and sledge-hammer. Once inside they forced open a relatively large safe and one or two smaller safes, two of which they took with them as they quickly decamped.
It is obvious from viewing the CCTV images, that both intruders knew exactly what they were looking for and where it was to be found. They bundled the mobile phone chargers into a plastic garbage bag whilst in the office. The entire incident took roughly 10 minutes. Only the accused is charged with this offence as the other offender is not known.
The circumstances are largely undisputed. The central question is whether the established or objective facts lead to an inevitable inference that Mr Grindley was one of the two offenders.
Circumstantial evidence
The case against Mr Grindley depends heavily on the proceeds of a search of his premises some seven days later on 12 June 2015, in Mount Gambier. Mount Gambier is some 30km South of Nangwarry, or a 20-25 minute drive. A search of the home resulted in police finding and seizing a pair of dark ‘Everlast’ track pants found lying on the bedroom floor occupied by the accused. These are similar in broad appearance to those worn by one of the two intruders. In a wicker basket on the floor of his bedroom, they found six unused mobile phone chargers in sealed packages. These are of an identical description and brand to the 20 that were taken from the Nangwarry service station.
Mr Grindley was interviewed at this time, which was video recorded.[1] The following exchange took place with Detective Martin about the six chargers:
[1] Exhibit P2, transcript MFI P2.
QNow Donald just here in this umm is this side basket.
AYep.
QAre a number of phone charges. Walk and talk charges.
AYep
QNow I believe that they’re the, they are items stolen from the Nangwarry Service Station.
AYep.
QYep
AIf that is what you say.
QWhere did they come from.
AI don’t know.
QYou don’t know. Whose are they?
AI don’t know.
QCould they be Trudy’s then.
ANo.
QNo. So who else uses this bedroom then.
AThey must be mine then.
QThey must be yours.
AYep
QDo you know where you got them from.
AReceived them. Bought them off someone.
QBought them off of someone. I put it to you that you have stolen them from the Nangwarry Service Station.
ANo
These unconvincing and bland denials of involvement carry very little probative weight in the defence case in the circumstances: Mule v The Queen.[2]
[2] (2005) 79 ALJR 1573, [22-23].
No other incriminating items were found in Mr Grindley’s home, such as a scarf or similar striped apparel worn over the head of one intruder, any implements of the type used to effect the break-in, or anything else that might connect him with the crime. Fingerprints examined at the service station proved of no use and so were not collected by the crime scene examination officer. Both offenders wore gloves.
Of more significance is the fact that although the six mobile phone chargers were bar-coded, there were no stickers or other markings to connect them directly to this particular service station business. The statement of the owner to police simply records that he spoke with the manager who advised him ‘twenty mobile phone accessories had been taken from the office’, and he added ‘(T)his number was only approximate as the items had not yet been inventoried’.[3] The manager’s statement is much to the same effect.[4] No attempt to take an inventory or stock-take was made.
[3] Exhibit P10 p 2.
[4] Exhibit P13 p 2.
On the police side of the inquiry, the manager was asked to ‘narrow it down’, however only the brand of the chargers was provided.[5] There is no evidence of enquiries to trace the supply origin of these chargers, or to otherwise connect them to the stock records held by the service station, that may or may not have been kept. This is an unfortunate state of affairs. Be that as it may, the fact remains that there is an insufficient nexus between the six phone chargers found in the home of Mr Grindley, and the 20 taken from the service station to sustain the conclusion that these were taken from there. Putting aside other circumstantial evidence, this in itself is fatal to the prosecution case.
[5] T35.34-36.2.
The defence case
At the close of the prosecution case Mr Grindley elected not to give evidence. Of course this is his right. In no sense does it constitute evidence against him, or amount to an admission and may not be used to fill gaps in the evidence of the prosecution case, or be used as a make weight in assessing whether the prosecution has proven its case beyond reasonable doubt: Azzopardi v The Queen.[6]
[6] (2001) 205 CLR 50, [51].
As in all cases in the criminal court, the prosecution bears the onus of establishing each element of both charges beyond reasonable doubt if it can: Woolmington v The Director of Public Prosecutions.[7] It follows that if the evidence raises a reasonable doubt as to guilt, the accused is entitled to the benefit of that doubt: Woolmington,[8] King v The Queen.[9] Still further, this being an entirely circumstantial case, if there remains a reasonable or rational hypothesis consistent with innocence, Mr Grindley is entitled to an acquittal: Shepherd v The Queen.[10]
[7] [1935] AC 462, 481.
[8] Above 481.
[9] (2003) 215 CLR 150, [18].
[10] (1990) 170 CLR 573, 579.
Analysis
Ms Spencer for the Prosecution urged the court to conclude that one of the two intruders was the accused. She began by drawing a comparison between the characteristics of the accused as shown in the CCTV images, compared with arrest photographs taken of him on 12 June 2015, and his appearance in court. This comparison goes not further than leading to the limited conclusion that in terms of height and build, Mr Grindley could be one of the two offenders, but that is as far as it goes. There is nothing distinctive or unique to take the matter any further than that: Pitkin v The Queen.[11] Likewise, the circumstantial evidence potentially connecting him to the robbery through finding a similar brand and colour of Everlast track pants to that worn by one offender, is too nondescript to be of much weight at all.
[11] (1995) 69 ALJR 612.
The evidence of finding the six mobile phone chargers in the house of Mr Grindley some seven days later, is certainly some circumstantial evidence linking him to the offence. It is unusual as a matter of ordinary human experience that he would have six brand new items of that kind. One is left to ponder how he came by them other than by having stolen them on the night in question!
This is not a case in which the taking of the property and subsequently finding it elsewhere at a time proximate to taking, is so recent that it gives rise to an inference of taking: Bruce v The Queen.[12] The circumstances are at best, equally consistent with Mr Grindley receiving them in the period in question. This remains the case even when the combination of circumstances are considered in their accumulative effect. His admission of as much is in itself, a reasonable possibility.
[12] (1987) 61 ALJR 603.
Since seven days passed between the trespassory entry and the search of Mr Grindley’s home, there is a reasonable hypothesis consistent with innocence, that he received them from some other person. Accordingly, he is entitled to be acquitted. Verdicts of acquittal must therefore be entered in respect of both counts.
An alternative verdict
It is open in some circumstances to return a verdict of guilt of receiving where the evidence is equally consistent with stealing or receiving: Gilson v The Queen.[13] This however, is not such a case, as the prosecution remained wedded to theft occurring on 5 June 2015. Nor is it, for the same reason, appropriate to amend the particulars of count 2: compare Ayles v The Queen.[14] Even if amended to particularise a charge of theft by receiving stolen property between 5 and 12 June 2015 contrary to s 134(5) of the CLCA, Mr Grindley would be deprived of the opportunity to conduct the defence case differently in that event. The prosecution quite properly did not seek to invoke either option.
[13] (1991) 172 CLR 353.
[14] (2008) 232 CLR 410.
Even so, there appears to be no reason why Mr Grindley could not now be charged on that basis – or at least with unlawful possession – as these would be offences, the pith and substance of which are quite different from those charged. This is however a matter for prosecution authorities to consider.
Verdict and conclusion
For the above reasons Mr Grindley is found not guilty of the aggravated offence of serious criminal trespass in a non-residential building and of theft therefrom. Verdicts of not guilty are entered accordingly.