R v Henstridge & Ors No. Sccrm-97-324 Judgment No. S6710

[1998] SASC 6710

R v HENSTRIDGE & ORS

Court of Criminal Appeal: 
Coram: Doyle CJ, Millhouse and Nyland JJ

Millhouse J

This is an appeal brought pursuant to s352 of the Criminal Law Consolidation Act, by three accused, John Ernest Henstridge, Abel Verban and Danny Frank Verban, against their convictions and sentences for armed robbery. The jury had found each of them guilty, by majority, on 10 November 1997. Bollen AJ sentenced them on 26 November 1997.

The three appellants were jointly charged with committing an armed robbery upon the Findon branch of the TAB shortly after it closed on Tuesday 25 July 1995. 

The prosecution case was that two of the appellants drove to the TAB agency in a stolen car, one left the car and went inside, wearing a balaclava and carrying a sawn-off rifle.  He approached the front door of the TAB which faces on to Findon Road and smashed his way in using the rifle. He threatened the sole employee in the agency on that evening, Kylie Garrett, with the rifle.  He was given about $670 in cash from the cash drawer.  He then left taking Miss Garrett's handbag with him.   He went out through the broken door and got back into the car waiting at the front.  They drove off.  The driver turned left at the very next street which is a dead-end, called Bardia Avenue.  The car was abandoned.  The two made their way across Findon Oval, where the third appellant was waiting with a white van.  The three men at the time of the robbery were all living at a flat, 12/320 Tapleys Hill Road. 

The next day Miss Garrett's handbag and the rifle were found on the lawn of Mr Matthews' house.  The house is en route to the flat.  The flat and the TAB are about two kilometres apart.  

It was a circumstantial case.  There was no positive identification of any accused.  No one could be identified from the surveillance footage at the TAB.  The major pieces of evidence concerned; the flat where the appellants were living, .22 rounds seen at the flat, the white van seen after the robbery - it was like one belonging to Henstridge - the jack from the stolen Commodore used in the robbery found in Danny Verban's brown Holden, the expert testimony from Dr Yeo, a car opener, a radio scanner and a five dollar note (later identified as "bait money") found on Danny Verban an hour and a half after the robbery.

"Bait money" are bank notes, the serial numbers of which have been recorded, which are kept on premises in case of robbery, to be handed over to a robber, presumably with other moneys.  Because the serial numbers are known, the notes may be traced.

The Flat

Evidence suggested that the flat where two of the appellants lived, was used as a base by the robbers.  The flat was rented by Henstridge. Danny Verban lived there with him.  Henstridge had his own room.  In Henstridge's  room the police found a pair of black Nike shoes.  The shoes were examined: and glass fragments were found embedded in them.  The glass fragments married with glass fragments on a smashed door at the TAB.  All three admitted having slept in the flat the night before the robbery.

A podiatrist gave evidence that the shoes were too big for Henstridge: he was not the regular wearer of the shoes but he could have worn them for a while, possibly up to a day or two.

Some of the clothing found in the flat was generally consistent with some of the clothing worn by the men involved in the robbery.

The .22 Rounds

When Danny Verban was questioned in the flat, at about 9.30 on the night of the robbery, police officers noticed some .22 calibre rounds.  A .22 calibre rifle was the weapon used in the hold-up.  The police did not then seize the rounds.  When they came back to the flat two days later to look for them, they could not be found.

A rifle, probably that used in the hold-up as well as Miss Garrett's handbag, were later found on Mr Matthews' lawn.  The rifle  had .22 rounds in it.

The White Van and Stolen Commodore

The robbery was committed using a stolen Commodore sedan, registration number SPM 223.  The car had been taken from the Grange shortly after four o'clock in the afternoon.  Mr Peter John Bradmore was the owner.  After the robbery, it was found abandoned in Bardia Avenue.  The steering lock and a jack were missing.  Glass fragments matching those of the broken TAB door were found in the Commodore.

The jack was later found in a white van owned by David Verban, a brother of two of the accused.  The van had previously been noticed parked outside the flats.  Mr Bradmore identified the jack.  It was easily recognisable: he had put a piece of blue plastic, a piece of Electrolux vacuum cleaner hose, as a handle.  The engine of the white van was still warm when the police questioned Danny Verban at about 9.30 pm.

Mrs Bell, walking her dogs on the Findon Oval on the evening of the robbery, saw three men going towards a small light coloured van.  She heard a loud motor start and the van move west along Reserve Parade.  A month or so later Mrs Bell was shewn the van: it was started: she expressed the opinion that it sounded like the van she had heard starting up on the night of the robbery.

Dr Yeo

Dr Yeo, an engineer, gave expert evidence, (he was called by Danny Verban - his was the only evidence for the defence), based on security film, of the likely height of the robber.  It was agreed that Henstridge is 167 centimetres tall (5 foot 5 and three quarters), Abel Verban 164 centimetres (5 foot 4 and a half) and Danny Verban 178 centimetres (5 feet 10).  Dr Yeo said that the robber's height would have been between 5 feet 4 and three quarters and 5 feet 8.  The most likely height was 5 feet 6 and three eighths.  The gist of Dr Yeo's evidence was that neither of the Verban brothers could have been the robber but that Henstridge could have been: he was the only one of the three whose height was within the bracket.

Car Opener

A car opener (not further described) was found on the floor of Danny Verban's car, just in front of the driver's seat, at the time of Danny's arrest.  The car was a brown Kingswood.  There was no evidence to suggest that the car opener had been used to steal Mr Bradmore's car.  The keys were in the car when it was found: by implication, the keys had been used to take the car.  The Kingswood had been seen before at the flat and Henstridge was known to drive it from time to time.

Radio Scanner

A radio scanner was found two days after the robbery, at the flat, in a bag belonging to Abel Verban.  A radio scanner may be used to listen to calls between police vehicles.  There is no evidence that the scanner had been used in the robbery.  The flat, both cars and the accused had been searched within two hours of the robbery and the scanner was not found.

The $5 Note

Danny Verban was detained by police on the night of the robbery at 9.35pm.  He was asked to turn out his pockets: the $5 note was found: it was identified as "bait money" from the TAB.  When asked where he got it from he said he had received it from Abel Verban the day before.  As this had to be incorrect the police arrested him.  Danny Verban later changed his story in a record of interview.  He said that he received the $5 note on the night of the robbery from Abel Verban at the Seaton Hotel, at a time after the robbery.

Other Evidence

Evidence as to the robber's hair colour was given.  It was certainly not blond, which Danny Verban's hair is.  One witness described the robber's hair as brown or darkish brown: this could have been Henstridge's.

Mrs Bell, walking her dogs on the Findon Oval, saw two men of similar height run on to the Oval and meet a third taller man.  There is not much difference in height between Henstridge and Abel Verban but Danny Verban is rather taller.

Evidence Especially Relevant to Henstridge.

Henstridge rented the flat which the prosecution alleged was the base for the robbers.  As I have said in Henstridge's room the Nike shoes were found.  The shoes contained glass fragments which married with fragments found at the scene of the crime.  A podiatrist gave evidence that the shoes were too big for Henstridge to be the regular wearer but he could have worn them for a while.

The .22 rounds were seen at the flat where Henstridge lived. 

He is of a height which put him in Dr Yeo's bracket of height for the robber.

His fingerprints were found in the white van; he was known to drive it occasionally.

Henstridge gave to the police an alibi that he was with Abel Verban and a woman, Karen Benfell, on the evening of the robbery: that before 8.00 pm Abel telephoned Karen Benfell (Abel's girlfriend) and she came to the flat.  Karen Benfell, Abel, Henstridge and Abel's young child by Karen, Jared,  all went for a drive up to Skye after going to McDonalds to get some food for the child.  Abel and Henstridge went back to the flat, then to the Seaton Hotel on Tapleys Hill Road and later they went to the city.

The Crown called Karen Benfell to give evidence.  They had a statement from her rebutting the alibi and to the effect that Abel had asked her to give a false alibi.  She did not come up to proof.  Her evidence was equivocal in that it did not rebut the alibi nor did it strongly support it.  The learned trial judge refused an application to have Miss Benfell declared hostile.

Henstridge's connection with the car opener is that he was a frequent user of the brown Kingswood in which the car opener was found and the Kingswood was often parked at the flat.

Henstridge committed another armed robbery, at Gillman on 3 September 1996.  He was then on bail for the Findon robbery.  He pleaded guilty to the Gillman robbery and the learned judge gave him seven years.  He gave him seven years for the Findon robbery, too, making a total of 14 years to begin on   10 July 1999: the non parole period is 12 years.

Facts Especially Relevant to Abel Verban

Abel Verban is the younger brother of Danny.  At the time of the robbery Abel was 18 years and three months old.  He had no criminal record as an adult.  He had never been sentenced to a term of imprisonment or detention.  He did have offences as a child.

Abel did not live at the flat, though he would occasionally stay there and at this time had been staying there for a few days. 

The evidence pointed to three men involved in the robbery: Abel was one of three living at the flat at the time.

He was at the hotel with his brother Danny and Henstridge quite soon after the robbery.

The scanner was found in Abel's bag, two days after the robbery.  Abel said he had seen the scanner before but had not put it in his bag and didn't know who had.

Like Henstridge, Abel relied on an alibi by his girlfriend and mother of his young son, Karen Benfell, to the effect that at the time of the robbery Henstridge, Abel, Karen and the boy went to a McDonalds and later to Skye.

The learned trial judge sentenced him to seven years' imprisonment with a non parole period of four years.

Facts Relating to Danny Verban

Danny Verban lived at the flat alleged to be the base for the robbery.  Glass matching that found at the TAB was found in shoes inside the flat. Clothes which may have matched the robber's clothes were found in the flat.  The .22 rounds were seen there.

Danny Verban drove the white van regularly: it was registered in his name subsequent to the robbery.  He owned the Kingswood in which the car opener was found.

Danny was found in possession of the $5 note which constituted "bait money".  It was on his person within a couple of hours of the robbery.  He at first said he had been given the note the day before by Abel.  Later he changed this story to say that Abel had given him the $5 note at the hotel soon after the robbery.

At 9.35pm Detective Weeding noticed a man going towards the units from the Seaton Hotel. Weeding could not at that time identify the man. The units in which the flat is one, were under surveillance because a white van had been identified with the units and also with the robbery. The man got into the brown Kingswood. He was then detained by police. Weeding recognized him as Danny Verban. Weeding had Detective Pudney search the Kingswood. Pudney found the car opener. Weeding asked Danny to turn his pockets out and the $5 note was found. Danny was detained while the bank note was checked. Danny told Weeding that he had received the $5 note from Abel yesterday. As this was an obvious lie, he was arrested and given his rights pursuant to s78 of the Summary Offences Act.

Danny Verban has a history of offences including an assault in 1982, driving while disqualified, false name and address and a breaking offence in 1983 (for which he received nine months imprisonment) and he currently has outstanding expiation notices for cannabis offences.  The learned trial judge sentenced him to seven years imprisonment with a non parole period of six years.

Each appellant had separate grounds of appeal but two grounds were common to them all -

1.... His Honour's direction on lies was inadequate, and

2.... the sentences imposed were too heavy.

....... Some grounds were common to two of the appellants as follows:

Henstridge and Abel Verban:

3.... they should have had a trial separate from the trial of Danny,

4.... the verdicts were unsafe and unsatisfactory,

5.... there should have been a mistrial because of the failure of Karen Benfell to come up to proof on the question of alibi, in the light of what the Crown Prosecutor had said in opening to the jury.  Alternatively  His Honour failed to direct adequately on that, and he should not have allowed questions by the Crown Prosecutor of Karen Benfell, questions which were in the nature of cross examination, and

6.... the admission of evidence of the scanner and of finding the .22 rounds in the flat.

....... Finally some grounds were argued by one appellant only:

Henstridge:

7.... His Honour made a mistake about the effect of the evidence of Dr Yeo.

Danny Verban:

8.... evidence relating to the $5 note should not have been admitted,

9.... if it had been, then His Honour should have directed on the doctrine of recently stolen property,

10.. evidence relating to the car opener should not have been admitted, and

11.. His Honour should not have allowed the tender by the Crown of the alibi notice.

....... I shall deal with the grounds separately, in that order, except for the appeals on sentence which I shall leave until last.

1.... Lies

....... The most glaring lie was probably the lie told by Danny Verban.  Detective Weeding asked him how he came by the $5 note which Weeding found on his person and which was soon identified as "bait money" from the TAB.  Danny said his brother had given the note to him the day before.  This obviously was not true.  The lie was patent.  Danny subsequently admitted when interviewed by the police that Abel had given the note to him at the hotel at a time after the robbery.

....... The learned trial judge's summing up was not a long one and in his typically succinct style.  

I may add that the overall impression I have of the summing up is that it was favourable to the appellants. 

This is what he said about lies (after a request by counsel, for a further direction):-

"     If you come to the conclusion that any of the accused has told the police a lie about anything, about the money, or told a lie in the giving of the earlier alibi notice, or any lie at all, it doesn't follow automatically, as the night the day, that that person is guilty of the offence.  There are all sorts of reasons why people tell lies to the police and to others whom they are speaking to.  You can't ever just say 'He told a lie about the money, how he had it and his explanation', or that there was a lie in one of the alibi notices, because you don't know for sure what the reason was in this case, and you can think of all sorts of reasons.  So, if you find that there has been a lie told, you notice that and weigh it up with other things, but it does not swing the day against the accused person who you may find beyond reasonable doubt has told a lie."

His Honour did not identify any particular lie, such as Danny's about the $5, nor did he direct how a lie could be used against an accused.  A proven lie, such as that regarding the $5 note, can be used merely as going to credit or against an accused to convict. His Honour did not guide the jury by distinguishing between the two uses.  This omission prejudiced the accused by inferring that a lie could go only towards conviction.  In Edwards v The Queen (1993) 178 CLR 193 @ 210-211 per Deane, Dawson and Gaudron JJ, their Honours laid down a set of principles on which a lie can be used to convict an accused: the jury must be satisfied that -

1... the lie had been told,

2... had been told deliberately,

3... was relevant to a fact in issue,

4... had been told from a consciousness of guilt in relation to the offence charged, and

5... there was no other explanation for telling it, apart from the consciousness of guilt.

...... Unfortunately His Honour did not direct at all about consciousness of guilt.  With respect I think he should have.   His direction was therefore defective.

...... Certainly in relation to Danny, the case against whom depended so strongly on the $5 note, I suggest that because of the defect in the summing up, the conviction cannot stand.

3. . Trials for Henstridge and Abel Verban Separate from Danny Verban.

...... The principles surrounding separate trials are well established.  They were set out in The Queen v Harbach (1973) 6 SASR 427 per Bray CJ, Mitchell and Sangster JJ @ 432.

...... Counsel for Henstridge and Abel argued that the case against their clients was quite different to the case against Danny: Henstridge and Abel should have been tried separately from Danny.  Counsel relied particularly on Danny's first assertion to Detective Weeding that his young brother, Abel, had given him the $5 note.  This, of course, was evidence against neither Henstridge nor Abel but it certainly required a strong and explicit direction from the learned trial judge to that effect.  Only this would overcome the prejudice to Abel and perhaps to Danny as well.

...... The case was a classic one, against all three accused, of joint enterprise.  This was a case where one accused wished to blame another.  In such cases there should be separate trials only if the prejudice to an accused is such that it cannot be cured by the trial judge's direction.  Here it could have been so cured.

His Honour's direction:

"     I told you, and counsel emphasised to you, that things said by an accused person to anyone, but particularly we are thinking of to the police, out of court are capable of being evidence only against the speaker, only against the person who is speaking.  If an accused person says to the police officer 'I did not do it, but Bill Smith did', that cannot be evidence against Bill Smith.  Apart from anything else, he wasn't present to butt in and say 'I did not'.  The evidence of what a person says to the police when the police are interviewing him can be evidence against the speaker only.  It is for you to say whether there is any valuable or any worthwhile evidence in things said by any of the accused to the police.  But what Mr Henstridge said to the police, what Mr Abel Verban said to the police, and what Mr Danny Verban said to the police can only be evidence against the one speaker and not against the others."

This was an adequate, clear direction.  I suggest that there is nothing in this ground.

1. The Verdicts were Unsafe and Unsatisfactory.

It was a strong circumstantial case against all three accused.  Having reviewed the whole of the evidence I mention several of the most obvious pieces of circumstantial evidence, taken at random -

1... three men were involved in the robbery,

2... three men were living at the flat,

3... a white van was used as the second getaway car,

4... a white van was connected to the block of flats in which the accused were living and to the men themselves,

5... pieces of glass from the TAB were embedded in the Nike shoes found  in Henstridge's bedroom,

6... the $5 note known to be from the TAB was found on the person of Danny within an hour and a half of the robbery,

7... the jack from the stolen Commodore, used as the first getaway car, was found in the brown Holden when Danny was stopped by Detective Weeding,

8... .22 rounds were seen at the flat on the night but had gone two days later - a .22 rifle was the weapon used in the robbery,

9... a scanner was found in Abel's bag at the flat two days later.

...... Although the admissibility of some of these pieces of evidence is impugned, nevertheless, taken as a whole, it was so strong a circumstantial case as not to make any verdict of guilty unsafe or unsatisfactory.

5... Karen Benfell

...... In his opening to the jury Mr Peter Snopek, the Crown Prosecutor said:

"I want to now turn to what on the Crown case, once again, is an important body of evidence against the accused Abel Verban and the accused Henstridge.  Both were interviewed on that Thursday night, the 27th after the police had gone into the flat.  Both of them gave similar accounts of their movements at the time of the robbery.  Based around going for a drive with Abel Verban's young son and the mother of that child, Karen Benfell, the woman who had been in the flat when the police arrived.  On the prosecution case in due course the Crown will ask you to infer that they attempted to enlist Karen Benfell into giving them a false alibi, in other words, they made up a story regarding their movement at the time of the robbery and asked her to tell that story to the police saying she was with them and, therefore, they couldn't have done the robbery.  Karen Benfell will give evidence for the Crown and will tell you no such thing occurred.  She will tell you she did not go out with them on the evening of 25 July, 1995 and was not with them either at the time of the robbery.

On the prosecution case the two accused Abel Verban and John Henstridge attempted to create a false alibi for one reason and one reason only, that is they committed the armed robbery with Danny Verban and feared the emergence of the truth about that in the course of the police investigations."

Alas for the prosecution, Karen Benfell did not come up to proof.  All she would say was that Abel had telephoned her to come over to the flat: she had gone over and she and Abel and John (Henstridge) just talked generally, mainly about the child.  She was quite vague and certainly said nothing about the men asking her to make up an alibi that they all had driven up to Skye or anywhere else.   Her evidence did not advance either prosecution or defence.

Mr Snopek applied to have her declared hostile.  The application was refused.  Mr Snopek then, in the presence of the jury and over the objections of counsel for the accused, proceeded to ask Karen Benfell questions, in the nature of cross-examination, about her having given the police a statement. 

Counsel for the appellants argued that the questions were irrelevant. Whether or not she had given a statement to the police was not relevant.  Evidence of it was prejudicial in that, linked to what he had told the jury in opening, Mr Snopek was trying to shew that Karen Benfell had given a statement to the same effect as his opening. 

Karen Benfell was not cross-examined by counsel for any accused but counsel did ask for a mistrial.  A mistrial was refused, rightly because any prejudice to the accused ought to have been capable of being negatived by directions in the summing up.   Indeed this is what His Honour had told counsel he was going to do.
         I think Mr Snopek's questions were inappropriate but not so damaging as to cause us to interfere.  The point, though, is whether His Honour's directions were sufficient to instruct the jury that what the Crown Prosecutor had said in his opening  was not evidence and should be put right out of their minds, when considering their verdicts: all that the jury should take into account was what they had heard and seen of the witnesses in court.

His Honour:

(Mr Barnett, counsel for Henstridge) "pointed out that Karen Benfell supported the alibi.  It may be that Karen Benfell was expected to say something different to what she said in court, but it is what she said in court that counts.  She gave sworn evidence here and it is for you to give such weight to her evidence taking into account her demeanour as you think fit.  She did support the alibi of what I call the Skye trip, out to the suburb of Skye."

That's all.  To say, "It may be that Karen Benfell was expected to say something different to what she said in court, but it is what she said in court that counts," is perfectly accurate as far as it goes.  I am bound to say that His Honour should have gone on to emphasise that what was said in the prosecution opening should be entirely ignored.  This was something which, in the circumstances, needed emphasis and because of the brevity of the directions it was not given the emphasis needed.

I suggest that the two appellants should succeed on this ground.

That means that each of the appellants has succeeded on a ground sufficient for the appeals to be allowed.  For the sake of completeness, though, I shall go on to consider the other grounds.

1. Admission of the Evidence of the Scanner and of the .22 rounds.

The rounds were seen by the police in the unit during their visit on the night of the robbery.  At that time the police did not appreciate the significance of the rounds and did not take them.  Two days later the rounds were gone.

As for the scanner, that was in Abel's bag, at the unit, two days later.  Abel said he did not know how it got there: he didn't put it in the bag and people were coming and going.

In Thompson and Wran v The Queen (1968) 117 CLR 313, Barwick CJ and Menzies J said @ 316:

"     We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used."

Both the rounds and the scanner can be regarded as "tools of trade" for an armed robber, as they clearly might have been used in the commission of the crime.  The rounds could have been used in the .22 rifle which the robber had and the scanner could have been used by the robbers to track the police.  I suggest the evidence of them was properly admitted, though of itself not much weight.

His Honour gave no direction about propensity evidence.  I suggest with respect that His Honour should have directed the jury not to reason that because these things were found at the flat they shewed a propensity in the occupants to commit armed robbery.

1. Dr Yeo

Dr Yeo, called by Danny Verban, was the expert who expressed his opinion about the likely height of the robber who went into the bank.His Honour was generous to Dr Yeo in his summing up:-

"     I want to speak for a moment about Dr Yeo.  Dr Yeo gave evidence which indicated that he was a distinguished and competent engineer.  I told you that it is for you to say what evidence you accept or do not accept.  You do not have to accept him just because he appears to be an expert in his field.  It is for you to say.  You may remember that there is nothing to contradict him.

A lot depends on what you think about the demeanour of Dr Yeo and how he gave his evidence.  Perhaps he appeared to you to be a truthful, intelligent, well informed, sensible man.  It is for you to say.  On Dr Yeo's evidence, none of the three accused could have been the person we call the robber, the one who went in and pointed the gun.  Two, Mr Henstridge and Mr Abel were too short.  Mr Danny Verban was too tall.  As I say, you will reflect upon what you think of Dr Yeo's evidence.  It is perfectly possible and permissible, if you think fit, for you to bring in verdicts of not guilty against all three simply on Dr Yeo's evidence.  That is perfectly possible if that is how you see the case."

Unfortunately His Honour made a mistake.  Henstridge was, as I have already mentioned, within Dr Yeo's bracket.  He could have been the robber. Counsel did not ask that the mistake be corrected.

On appeal Mr Bill Boucaut, counsel for Henstridge, argued that the jury may have picked up the mistake themselves and given weight to the fact that Henstridge could have been the robber. They could have been influenced by the learned judge's encomiums into putting a lot of weight on Dr Yeo's opinion.  Because of His Honour's mistake, no countervailing arguments had been put.

I do not accept the argument.  The mistake was a mistake in favour of Henstridge.  Had it been corrected, His Honour may have been able to say something to balance Dr Yeo's opinion that Henstridge was within the bracket.  I doubt, though, if he had, Henstridge would have been as advantaged as he was by leaving the mistake uncorrected.

1. The $5 note.

Mr Bill Retalic, counsel for Danny Verban, argued that all evidence about the $5 note should have been excluded because Detective Weeding's stopping of the brown Holden had been unlawful.  Moreover, Mr Retalic argued, Weeding had been wrong to try to open the white van which was in the car park of the units.  [He had done this before he stopped Danny in the brown Holden.]  Weeding knew a white van was suspected of being connected with the robbery.  He felt this van and found the motor still warm.  He tried to get in but failed.  There was no suggestion that he had used any force to try to get in.  He simply tried the door and found it locked.  Detective Weeding's behaviour may have amounted to illegal interference  but was so trifling as to be ignored.

I return to the stopping of the brown Holden.  In the dark Weeding could not recognise the driver before he stopped the car.  He thought merely that the driver might be able to help him.

I can see nothing wrong with the stopping itself.  There is nothing inherently wrong with hailing a car, one may need help of many kinds.  It's what happens after the stopping which counts. 

It may appear from this that I disagree with what my brother Lander said in R v Frantzis and Bates (1996) 186 LSJS 301 @ 305. The facts in that case were sufficiently different from the facts here for the two to be distinguishable each from the other. In R v Frantzis and Bates Lander J had to consider a situation in which a police officer used his authority as a police officer.  In the present case Weeding was in plain clothes and simply flagged the car down.  He did not use his authority as a police officer to stop it.

Weeding then recognised Danny Verban and his suspicions were aroused.  On the voir dire Weeding's detention of Danny was justified pursuant to s68 of the Summary Offences Act. Weeding found the $5 note: he asked Danny how he got it: Danny said from Abel: Weeding detained Danny while the note was checked: in the meantime Weeding had Detective Pudney search the Holden: Pudney found the jack from the stolen Commodore.

Mr Retalic argued that all this evidence should be excluded.  The same arguments had been put to His Honour on the voir dire. His Honour rejected them:-

"I take Mr Moffa's" (then counsel for Henstridge) "four points in turn .

First, he says there was no basis for Weeding's stopping the car.  I think this is probably correct.  It is a very pedantic point.  I do not regard the stopping as an illegality.  I will say more about 'no basis for stopping the car' in a few moments.

Second, Mr Moffa says that the officers had no requisite state of mind to justify detaining and searching either the vehicle or the person.  In my submission this submission is not sound.  I accept the evidence of Weeding with his supporting reasons as to his state of mind.  That state of mind can enure  for the benefit of Pudney's search.  The fact that I think that the detaining and searching was permissible and legal makes point one [no basis for stopping the car] irrelevant in the circumstances of this case.

The third point is that the accused, the applicant Danny Verban was in de facto custody.  I think that correct but it carries us by itself nowhere.  It was not left nowhere.  Mr Moffa linked it to point four, that no caution was given when the officers came back from the hotel.  I refer to Mr Snopek's submissions.  I cannot see why there was any need to give a caution at the time when they came back.  But in the circumstances of Mr Snopek's cross-examination of the applicant Danny Verban, I think that the absence of a caution at that time was quite unimportant, quite insignificant and quite irrelevant.  He would have spoken to the police as he did (on the evidence), come what may.  In so far as John is concerned, I  think the police were on sound ground in not communicating with John.  Perhaps there was some slight failing in not offering to find another relative.  Mr Snopek points out he knew he could have a solicitor.  I do not think the absence of ringing John at all significant.  Then no ground excluded any of the impugned evidence exists.  Of course, what I am pleased to call my reasons may be wrong.  I mention, in any event, that I would hold in the exercise of my discretion that all that impugned evidence could be led by the Crown and none should be excluded."

I agree with all the learned trial judge said.  He was correct both in finding that there was no illegality and, even if there were, that he would have exercised his discretion to admit it: I would have done the same thing.

The ground fails.

1. Doctrine of Recently Stolen Property

Danny Verban was not charged with receiving, as Mr Retalic suggested he could have been.  Mr Retalic argued that possession of the $5 note, recently stolen property, was consistent in the absence of explanation, either with Danny being involved in its theft or with his having received it.  He was not charged with receiving and so could not have been convicted of that.  He should not be regarded as guilty of its theft in the equivocal state of the evidence.

The answer to Mr Retalic's argument is to be found in the judgment of King CJ in R v Wanganeen (1988) 50 SASR 433. At pages 434-435 the learned judge discusses what had been called "the legal doctrine of recent possession". This is his conclusion:-

"The significance 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 the crime in the course of which the property was stolen or at least of receiving the property knowing it to have been stolen."

"Recent possession" is circumstantial evidence.  That Danny was in possession of the $5 note which was known to have been stolen less than two hours before, was a piece of circumstantial evidence for the jury to take into account.  No rule of law was involved, that the recent possession must of itself lead to a conclusion either of theft or receiving.

1. The Car Opener

The car opener was found in the brown Holden when Danny had been stopped by Detective Weeding.

There was no evidence that the opener had been used during the robbery. There is evidence that Mr Bradmore's Commodore had been stolen and used.  Conveniently the owner had left the keys in the car.  All the robbers had to do was to get in and drive away.  Normally would-be car thieves expect - I make it clear that I am not speaking from first-hand knowledge but I am confident that this is so - to have to break into a vehicle or at least to use something to open a locked door.  Hence the need to have with them some sort of a car-opener.  By lucky chance the robbers did not need to use it on this car as the owner had left the keys lying about.

Mr Retalic argued that evidence of the car opener should have been excluded because there was no evidence that it had been used.  That this evidence was merely propensity evidence that Danny had a bent for stealing cars and  that could not properly point to his being involved in a robbery.

I suspect regretfully, that Mr Retalic is correct.  I feel bound by the following passage in Thompson and Wran v The Queen, per Barwick CJ and Menzies J @ 316-317:

"In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition; thus in R.v.Taylor, a ground for quashing a conviction for shopbreaking was that evidence of the finding of a jemmy in the house of the accused was inadmissible because there was nothing to suggest the use of a jemmy in the commission of the crime.  Again, if an entry by keys were to be proved, the finding of a jemmy would be inadmissible."

Here, be it by sheer chance, keys were most likely used to get into the car.  As Mr Retalic argued the evidence "screams keys".  Equally there was no forensic evidence to suggest that a car opener had been used.

Therefore, following Thompson and Wran v The Queen, evidence of the car opener should have been excluded.

1. The alibi notice

If an accused proposes to use an alibi as part of his defence then he must notify the prosecution of his intention. The prosecution then has the job of negativing the alibi beyond reasonable doubt. This is provided in s285C of the Criminal Law Consolidation Act, sub-section (7) which is:-

"     In any legal proceedings, a certificate apparently signed by the Director of Public Prosecutions certifying receipt or non-receipt of a notice under this section, or any matters relevant to the question of the sufficiency of a notice given by a defendant under this section, shall be accepted, in the absence of proof to the contrary, as proof of the matters so certified."

At trial the Crown Prosecutor tendered, over the appellants' objection, two certificates of the Director Public Prosecutions to each of which was attached an alibi notice.  The two notices were:

"RE:          Danny Frank Verban  

On behalf of the abovenamed we provide notice of alibi as appears hereunder.  Notice could not be given on an earlier occasion as not all of the names of Alibi witnesses were available.  You will note that two of the witnesses are still to be identified and addresses provided.

At about 8.00 p.m. the accused was at premises situated at 355 Tapleys Hill Road, Seaton occupied by David Verban, the accused's brother.  Present at the same address were his co-accused and Robin Seely now of either 7a or 74 Guthrie Street, Ovingham and his girlfriend Lilly, now of the same address.  In addition two other persons were present, known only as Kevin and Blonk.  Further enquiries are under way in order to ascertain the true identity of those persons and their present whereabouts.

The accused Danny Frank Verban says that he was at the premises situated at 355 Tapleys Hill Road from between the hours of 2.50 p.m. on the 25th day of July, 1996.  The occupier of the premises, the defendant's brother David Verban, was also at the premises during these hours."

And the next one:

"re:           Alibi Notice - John Henstridge
On behalf of the abovenamed we provide a Notice of Alibi as required by Section 107(5) of the Summary Procedures Act.  Notice of Alibi was not given on an earlier occasion due to our client changing solicitors.

At or about 8.00 pm on the 25th of July 1995, the accused was up at Skye with Karen Benfell, Abel Verban and Karen Benfell's son Jared, looking at the city lights.  They remained at Skye until about 8.15 pm and then returned to the accused's unit at unit 12/320 Tapleys Hill Road, Seaton, arriving at about 8.45pm.

Karen Benfell had picked the accused up at about 6.00 pm on the 25th of July 1996 and was with the accused thereafter until she dropped off the accused and Abel Verban at the intersection of Trimmer Parade and Tapleys Hill Road.  The accused went to his unit for a short time before leaving the unit at about 9.00 pm to go to the Seaton Hotel.

Abel Verban was with the accused throughout that time as well."   

It may be noted that because Karen Benfell did not come up to proof and no accused gave evidence, the notices became irrelevant but that could not have been known by the Crown at the time of tender.

Mr Brebner told us that it is usual for the notices to be tendered as they were at this trial.  He justified the tender by arguing that the notice is a statement against interest made by a solicitor on behalf of an accused and, it may be assumed, with the authority of the accused.  To tender a certificate without the notice would be meaningless.

That, I think, is sufficient justification for the Crown practice of tendering a notice of alibi attached to the Director of Public Prosecution's  certificate.  I can see nothing wrong with what was done.  The ground fails.

That completes consideration of the various grounds of appeal, except for the appeals against sentence.

As in my view the appeals on conviction all succeed.  Danny Verban succeeds primarily on a deficient lies direction.  Abel Verban and John Henstridge succeed on the ground that the learned trial judge ought to have directed far more emphatically that the jury should ignore the crown opening regarding the evidence which, it was expected, Karen Benfell would give.  There is no point in dealing with the sentences imposed.  Indeed it is better not to.  To do so could embarrass a judge who presides over a retrial in which one or all of the appellants are again found guilty.

However, in case I have the misfortune to differ from my brother and sister and the appeals are dismissed by majority, I should say that I think the non parole period fixed for Abel Verban, in view of his age and antecedents, was too high.  I would have fixed it at three years.

As it is, I suggest that the three appeals be allowed, the convictions be set aside and a retrial of all appellants be ordered.

DOYLE CJ

In my opinion the three appeals against conviction should be allowed, the convictions should be set aside and a retrial should be ordered.

Subject to one matter, I agree with the reasons of Millhouse J for so concluding.

I consider that evidence of the finding of the car opener was admissible.  In the unusual circumstances of this case, it was open to the jury to conclude that the accused had set out in Danny Verban’s brown Kingswood to steal a car, had taken the car opener with them, but upon finding Mr Bradmore’s car with the keys still in it, had not found it necessary to use the car opener.  The presence of the car opener was capable of providing a link between the brown Kingswood of Danny Verban, and the theft of Mr Bradmore’s car.

If the jury so concluded, they would not be reasoning in an impermissible fashion from the presence of an article that might be used in a furtherance of an offence to a conclusion that the accused were persons likely to offend.  Nor would the jury be simply reasoning that the presence of an implement that might be used to commit a crime was evidence that a crime had been committed.  If they reasoned as suggested, they would be coming to the conclusion that the presence of the car opener was of specific relevance to proof of guilt in the present case.  I doubt whether the High Court, in the passages that Millhouse J has cited from Thompson and Wran v The Queen (1968) 117 CLR 313, intended to exclude evidence such as the evidence now in question.

However, for the purposes of the appeal the matter is not important.  In my opinion the directions that the judge gave in relation to the finding of the car opener were inadequate.  The judge gave the jury no guidance about the permissible use of the evidence relating to the finding of the car scanner, nor did the judge warn the jury against reasoning in an impermissible fashion.

I consider that the admissibility of the evidence is supported by the reasoning of Cox J in R v Winters (unreported, 20 March 1998, judgment number S6595,) where he dealt with the admissibility of evidence of the finding of certain housebreaking instruments.

However, I acknowledge that the law on this point is not clear, and it will probably be necessary for the court, in the not too distant future, to grapple with the issue.

Nyland J

I have had the advantage of reading the reasons for judgment of Millhouse J and I am essentially in agreement with them.  I wish, however, to make a short comment.

In my opinion, there was no lawful basis for the Police stopping the brown Kingswood and thereafter detaining and searching Danny Verban.  Weeding agreed that the vehicle meant nothing to him prior to stopping it.  He did not know the identity of the driver when he made the decision to stop the vehicle.  He did not fit any of the descriptions available to the Police of the robbers and had done nothing to give Weeding any reason to suspect that the driver was associated with the white van.  Once the vehicle was stopped and Weeding recognised Danny Verban, he decided to detain him and to search the vehicle.  In the course of that search, Weeding discovered the $5.00 bait money and  Pudney later the car opener.  I consider that the comments of Lander J in R v Frantzis and Bates (1996) 186 LSJS 301 at 325 apply to the circumstances of this case. This, therefore, gave rise to the consideration of the exercise of discretion to exclude the evidence with respect to the note and the car opener. Although the learned trial judge found that no ground to exclude any of the impugned evidence existed, he went on to say that, if he were wrong in that matter, he would in any event hold in the exercise of his discretion that the evidence could be led by the Crown and none should be excluded. He does appear, therefore, to have considered the exercise of the discretion in favour of admitting the evidence. In the circumstances of this case, I am not persuaded that he erred in reaching that decision.

Subject to those comments I would like to add that I agree with the reasons of the Chief Justice concerning the evidence relating to the car opener.  In my opinion, each of the appeals against conviction should be allowed and the convictions should bet set aside.  I agree that there should be a re-trial.