R v Neal

Case [2017] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NEAL

[2017] SASCFC 44

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

12 May 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

Appeal against conviction. DPP appeal against order that sentence be served on home detention.

During a traffic stop, a police officer recognised the appellant as a passenger in a vehicle which was travelling past him. The police officer later stated he believed that the vehicle was travelling faster than the speed limit applicable at the time. The police officer and his partner pursued the vehicle and stopped it to inspect the driver’s licence. The driver of the vehicle was in breach of a bond which contained a condition that the driver was not to occupy the driver’s seat of a car.  Whilst retrieving the co-accused's possessions to take into custody, the police officer located what he suspected was a shotgun.  The car was searched and a shotgun was found wrapped in a hessian cloth and lodged between the centre console and passenger seat.

The Court heard evidence that the appellant was a casual acquaintance of the co-accused, and was being driven back to his parents place after a night of drinking where they happened to meet. The evidence also suggested that the co-accused had recently rented the car from the airport and drove it from time to time, perhaps sharing it with another person.

A jury found the appellant guilty of one count of aggravated possession of a firearm. The appellant was sentenced to four years imprisonment with a non-parole period of two years. The Judge suspended the sentence and ordered that it be served on home detention pursuant to s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA).

The appellant appeals his conviction on the grounds that the Judge: erred in admitting the evidence of the discovery of the shotgun as the police acted unlawfully in stopping the car; erred in finding that there was a case to answer; failed to adequately direct the jury on the concept of possession; did not apply the elements of possession to the case and that the conviction was unsupported by the evidence.

The Director of Public Prosecutions appeals the sentence on the ground that an order that a sentence be served on home detention is a suspended sentence and so cannot be ordered for serious firearms offenders pursuant to s 20AAC of the Criminal…

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Details
AGLC
R v Neal [2017] SASCFC 44
Case
[2017] SASCFC 44
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction against the appellant, Mr Neal, heard in the Supreme Court of South Australia. The central dispute revolved around the lawfulness of the police stop that led to the evidence against Mr Neal. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The legal issues before the court were whether the police officer, SC Horner, had a lawful basis to stop the vehicle in which the appellant was a passenger, and consequently, whether the evidence obtained as a result of that stop should have been excluded. This involved an examination of the officer's stated reasons for initiating the stop, particularly in light of inconsistencies in his evidence and statements.

The court's reasoning focused on the credibility and reliability of SC Horner's testimony regarding the grounds for stopping the Mitsubishi SUV. SC Horner initially stated he believed he recognised the appellant and that the vehicle was speeding. However, his subsequent statements and testimony revealed significant discrepancies regarding the timing of his recognition of the appellant, the certainty of the speeding observation, and the absence of any mention of speeding in earlier statements. The court noted that the officer's explanation for these omissions was unsatisfactory, particularly his admission that the reference to speeding only appeared in a statement given after questioning by the prosecutor. The court concluded that the evidence did not establish a lawful basis for the stop, as the officer's account was not sufficiently credible or reliable to justify the initial action.

The appeal was allowed, the conviction was set aside, and an order of acquittal was made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

My reasons follow.The Evidence On the voir dire SC Horner testified that on 14 February he was on uniform patrol in a marked police car. He gave evidence that at 7.44 pm he and Constable Spiniello were completing a traffic stop on another vehicle on The Golden Way, accordingly the warning lights on their police car had been activated and a 25 kph speed limit applied. While speaking to Constable Spiniello SC Horner noticed a Mitsubishi SUV drive past in excess of the applicable speed limit. SC Horner testified that he recognised the appellant, who was sitting in the passenger seat, because he had gone to school with him and had previously arrested him for driving whilst disqualified and illegal use. He testified that he told Constable Spiniello that he would like to follow the Mitsubishi SUV in order to speak to the driver and that he believed he had seen a person named Marc Neal who was known to him. In cross-examination, SC Horner testified that ‘one of the main reasons’ he gave Constable Spiniello for following the Mitsubishi SUV was that it appeared to exceed the 25 kph speed limit. SC Horner accepted that when he later formally interviewed Ms Booth he did not put to her that she had been speeding, but he claimed that he may have informed her of that when he first approached her in the car. SC Horner denied that his prior dealings with Mr Neal played any significant part in his decision to pull over the Mitsubishi SUV. SC Horner denied that he had followed the Mitsubishi SUV because, having recognised Mr Neal, he decided to ‘shake the car down and see what comes of it’. SC Horner accepted that in a statement he made on 13 April 2015 he said that he was on uniform mobile patrol, already travelling south along the Grove Way at Golden Grove, when he first noticed the Mitsubishi SUV. He also accepted that in that statement there was no reference to recognising Mr Neal as the Mitsubishi SUV drove past the stationary police vehicle. SC Horner gave no explanation for recording in his first statement that this police car was moving when he saw the Mitsubishi SUV (in contrast with his latter statement and testimony) but insisted that he had ‘clarified’ the matter in an addendum statement. SC Horner provided a further witness statement dated 1 May 2015. In cross-examination, SC Horner also agreed that the May 2015 statement did not mention that the Mitsubishi SUV was speeding. When pressed for an explanation for that omission, SC Horner responded:To tell you the truth, like I’ve written in my notes, the vehicle was stopped on the Grove Way in order to conduct a driver’s licence check on the person who was driving that vehicle at 1948 hours ‘yes I saw the car go past my location but I couldn’t confirm the identity of Mr Neal at that stage. I didn’t have sufficient evidence in order to take any further action in relation to a speed because I didn’t have enough observations of the vehicle in order to conduct an appreciation of the exact speed the vehicle was going. I didn’t have a speed detection device attached to my patrol car.’ SC Horner accepted that it was only in a statement given on 4 October 2016 that he referred to his belief that the Mitsubishi SUV was exceeding the speed limit. SC Horner agreed that that statement was given in response to questioning on the topic by the prosecutor in a proofing session.

Decision

Reasons for decision

I acknowledge that the problem of breach of consecutive sentences of home detention may limit the utility of home detention orders. However in many cases s 18A of the Sentencing Act will overcome that difficulty. In other cases an appropriate sentence for all of the offences can be imposed on the most serious offence allowing the other shorter sentences to be served concurrently. In some cases home detention orders which run concurrently may adequately serve the demands of sentencing because the successful completion of even the shorter concurrent period of home detention will satisfy all of the purposes of sentencing, and if the defendant breaches the conditions of home detention imposed on those concurrent sentences, the enforcing Court may order the remainder of the sentences to be served cumulatively.Conclusion I would allow the appeal, set aside the conviction and make an order of acquittal. NICHOLSON J: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons. PARKER J: I agree with the reasons of the Chief Justice and the orders he proposes.

Ratio Decidendi

Legal Principle Established

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