R v Neal
[2017] SASCFC 44
•12 May 2017
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 Law (Sentencing) Act 1988 (SA).
Held per Kourakis CJ (Nicholson and Parker JJ agreeing), allowing the appeal:
1. A direction made by a police officer pursuant to s 40H of the Road Traffic Act 1961 (SA) for the purposes of conducting a licence check pursuant to s 96 of the Motor Vehicles Act 1959 (SA) imposes a duty on the driver to stop the vehicle he or she is driving. The Judge correctly found that the evidence found during the police’s search of the appellant’s vehicle was admissible.
2. There was insufficient evidence to prove that the appellant jointly possessed the shotgun with his co-accused. The evidence may have established that the appellant knew of the presence of the shotgun, but that is not enough to establish his possession of the gun. The verdict of the jury is unsupported by the evidence.
3. The Judge ought to have directed the jury as to whether the appellant’s mere knowledge of the gun was sufficient to prove possession.
4. Appeal allowed
5. Conviction set aside, order instead that the appellant be acquitted.
6. An order that a sentence be served on home detention pursuant to s 33BB(1) of the Criminal Law (Sentencing) Act 1986 (SA) is a form of suspended sentence. Therefore a sentence of imprisonment for a serious firearm offence cannot be served on home detention pursuant to s 20AAC(1)(b) of the Criminal Law (Sentencing) Act 1986 (SA) unless there are exceptional circumstances.
Correctional Services Act 1982 (SA) s 22; Criminal Law (Sentencing) Act 1988 (SA) ss 20AAC, 30, 31, 33BB, 33BD, 38; Firearms Act 1977 (SA) ss 5, 11; Firearms Regulations 2008 (SA) ss 41, 61; Motor Vehicles Act 1959 (SA) s 96; Road Traffic Act 1961 (SA) ss 40H, 40M, 40N, 40R; Summary Offences Act 1953 (SA) ss 17A, 68, referred to.
Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; The Palace Gallery Pty Ltd v WorkCover Premium Review Panel & Others (2014) 119 SASR 408, applied.
R v Colson (1999) 73 SASR 407, discussed.
R v NEAL
[2017] SASCFC 44Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ: After a trial by jury the appellant was convicted of one count of aggravated possession of a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA). In the same trial he was acquitted by majority verdict of the jury of the offence of failing to secure ammunition contrary to reg 41(1) and 61 of the Firearms Regulations 2008 (SA). Mr Neal’s co-accused Danielle Booth was also convicted of aggravated possession of a firearm without a licence and also acquitted of the charge of failing to secure ammunition.
On 22 December 2016, Mr Neal 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 Sentencing Act).
Evidence of Mr Neal’s possession of the shotgun was given by Senior Constable Horner (SC Horner). SC Horner testified that on the evening of 14 February 2015 he pulled over a Mitsubishi SUV which, at that time, was being driven by Ms Booth on The Grove Way, Golden Grove. Mr Neal was seated in the front passenger seat. SC Horner arrested Ms Booth after he discovered that she was not licensed and was in breach of a bail agreement. Whilst retrieving some of her property from the vehicle he noticed what appeared to be a white hessian bag protruding from the gap between the front passenger seat and the centre console of the Mitsubishi. SC Horner attempted to retrieve the bag but discovered that it was a white hessian cloth wrapped around a shotgun. Sometime later, the ammunition was found in the glovebox.
The vehicle had been hired by Ms Booth, and perhaps another person, on 31 January 2015 from the Avis car rental office at Adelaide Airport for two days but was not returned on 2 February 2015 in accordance with the car rental agreement.
In response to a question from the defence counsel, Mr Neal testified that he and Ms Booth were friends and that there was no romantic relationship between them. The prosecution did not adduce any evidence of the nature of the relationship between Mr Neal and Ms Booth.
Ms Booth gave evidence that she paid for the hire of the Mitsubishi SUV for a friend, Briony Boots, because she had been residing with Ms Boots from about 21 January 2015. Ms Boots name was recorded as the hirer of the Mitsubishi SUV on the car rental agreement. Ms Booth claimed that she paid for the hire car as a way of payment in kind for her board. Ms Booth testified that Ms Boots used the Mitsubishi SUV from the time it was hired until 14 February. On that day Ms Booth borrowed the car to give Mr Neal a lift to his parents’ place from the home of JB in Parafield Gardens. Ms Booth testified that whilst taking Mr Neal to his parents’ place in Golden Grove, the police pulled her over. She claimed that she did not know that the shotgun was in the Mitsubishi SUV until the police produced it and questioned her about it.
On the trial, Mr Neal testified that he met Ms Booth in January 2015 about six months prior to their arrest. He gave evidence that they happened to meet again on Friday 13 February 2015 at the home of a mutual acquaintance who was holding a social gathering. The next day Ms Booth drove him to JB’s house at Parafield Gardens, Mr Neal’s testimony was not certain as to whether they drove in the Mitsubishi SUV or a Daewoo Lanos. At around tea time, they spoke on the phone and he asked if she could give him a ride to his parents’ place at Golden Grove. Mr Neal testified that Ms Booth picked him up in the Mitsubishi SUV. He too testified that he was unaware of the presence of the gun. On the way to his parents’ home they were stopped by the police on The Grove Way. Plainly, given the verdict, the jury did not believe the evidence of Ms Booth and Mr Neal.
Mr Neal appeals on the grounds that:
·The Judge erred in admitting evidence of the discovery of the shotgun because Senior Constable Horner acted unlawfully in stopping the Mitsubishi.
·The Judge erred in finding that there was a case to answer.
·The Judge failed to adequately explain the concept of possession and the requirements of knowledge and control and did not adequately apply those elements to the evidence in the case.
·The verdict of guilty of possession of the firearm was inconsistent with the acquittal on the charge of failing to secure ammunition.
·The conviction was unreasonable and not supported by the evidence.
I would hold that SC Horner’s request that Ms Booth stop the Mitsubishi SUV pursuant to s 40H of the Road Traffic Act 1961 (SA) (the RTA) enlivened a duty on Ms Booth’s behalf to comply. If I am wrong about the construction of s 40H of the RTA, and therefore insofar as the direction to pull over amounted to a detention of Ms Booth and Mr Neal, the Judge was right to decline to exercise the discretion to exclude the evidence of the presence of the shotgun.
I am persuaded that the Judge’s failure to direct the jury’s attention to both the fact that Ms Booth hired the car and that the evidence showed no more than a casual acquaintance between her and Mr Neal was a defect in the trial which resulted in a miscarriage of justice. More fundamentally, however, and irrespective of whether or not there was a case to answer, the verdict was unreasonable in that the prosecution evidence did not exclude the possibility that Ms Booth was in sole possession of the shotgun. Therefore, the conviction should be set aside and an order of acquittal made.
Even though it is unnecessary to decide, there was no inconsistency between the acquittal on the charge of failing to safeguard the ammunition and the verdict of guilty on the charge of aggravated possession of the firearm. That is because the ammunition was in the closed glove box of the car. It was rational to distinguish between the two charges because the inferences which could be drawn as to knowledge of the presence of the ammunition and the gun varied because of their respective positions.
The Director of Public Prosecution has applied for permission to appeal against the sentence on the ground that an order to serve a sentence on home detention is a suspended sentence within the meaning of that term in s 20AAC of the Sentencing Act, and therefore an order for home detention is precluded by s 20AAC(1)(b) in the case of serious firearm offences. Mr Neal’s offence was a serious firearm offence because it involved the carriage of a prescribed firearm. It is not necessary to decide the Director’s application because an order of acquittal will be made, but it is desirable to discuss the contention he makes as it raises a matter of general importance. The Director’s contention that a home detention order is a suspended sentence for the purpose of s 20AAC should be accepted.
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.
SC Horner and Constable Spiniello followed the Mitsubishi SUV in their police vehicle in a north-easterly direction along The Golden Way before turning right into the Grove Way. The junction of The Golden Way and The Grove Way is between one and two kilometres away from where the Mitsubishi SUV was first seen.
Once behind the Mitsubishi SUV SC Horner activated his vehicle’s warning lights to stop the SUV for the purpose of conducting a driver’s licence check. SC Horner testified that he believed that s 40H of the RTA empowered him to stop any vehicle for the purposes of checking that the driver held an appropriate licence. SC Horner testified that, before leaving the police vehicle, he warned Constable Spiniello to keep an eye on the passenger whilst he spoke to the driver. SC Horner arrested Ms Booth after he discovered that she was not licensed and was in breach of a bail condition not to occupy the driver’s seat of a car. After making inquiries about Ms Booth’s personal possessions, SC Horner returned to the car to retrieve her handbag and her personal mobile telephone. It was then that he noticed what appeared to be a hessian bag in the gap between the centre console and the seat. When he pulled the top corner of the bag from the gap he discovered the shotgun.
Constable Spiniello described the first conversation with SC Horner about the Mitsubishi SUV as follows:
A. Senior Constable Horner and I were on a traffic stop at the time. I was seated in the vehicle and Senior Constable Horner has gotten back into the vehicle into the driver’s seat. He has identified a blue vehicle that has driven past that was of interest to him.
…
A He mentioned that a person he thought to be someone named Marc Neal was in the passenger seat of that vehicle.
Constable Spiniello could not recall any remark by SC Horner to the effect that the Mitsubishi SUV was speeding.
Ms Booth, who gave evidence on the voir dire, denied that SC Horner put to her that she had been speeding. She agreed, however, that she might have been going a little faster than the speed limit.
The Judge’s ruling on the voir dire
The Judge found that SC Horner pulled over the Mitsubishi SUV to conduct a licence check on Ms Booth because he believed that she had been speeding and not to harass Mr Neal. The Judge found:
Defence counsel argues that Senior Constable Horner’s evidence about the speeding is a recent construct by him that is unsupported by the evidence. I do not accept that submission. Neither the evidence nor the matters put by defence cause me to doubt Senior Constable Horner’s evidence. Implicit in the defence argument is that Senior Constable Horner in effect determined to pull the vehicle over as some form of harassment of the passenger Mr Neal. I reject that proposition. I accept Senior Constable Horner’s evidence that having noted the vehicle speeding he determined to stop it for the purpose of undertaking a licence check with the driver. This, on all of the evidence, is precisely what he did and was in my view a valid exercise of his powers.
That paragraph clearly records the Judge’s finding, but no reasons for making it are given there or elsewhere. In particular, that paragraph fails to address the submission that SC Horner’s account that he conducted the licence check because the Mitsubishi SUV appeared to be speeding was a recent invention. It does not deal with Constable Spiniello’s testimony that SC Horner did not mention the Mitsubishi SUV speeding at the time, or with SC Horner’s failure to record the vehicle speeding as a reason in his first witness statement. Plainly enough, the Judge accepted SC Horner’s evidence despite those criticisms but her Honour has failed to explain why. The arguments put against SC Horner’s credibility are of sufficient substance to deserve an explanation for their rejection. In particular, the evidence of Constable Spiniello that he was told by SC Horner that there was a person of interest in the Mitsubishi SUV tells strongly against SC Horner’s account that he only decided to conduct the licence check because the Mitsubishi SUV appeared to him to be speeding.
Regardless, it is plain that for whatever reason, SC Horner pulled the Mitsubishi SUV over in order to conduct a licence check because that is precisely what he did when the Mitsubishi SUV was pulled over. SC Horner made the request that Ms Booth pull over for that purpose even if he had a collateral motive for doing so. Those collateral motives were no doubt to see whether or not he might discover evidence of offending by Mr Neal or Ms Booth, or perhaps both.
However, it is not improper for a police officer to make a request of a person in circumstances in which a duty to comply with the request will arise, and at the same time be alert to other proper policing objectives. It is different if the power or authority is exercised for illegitimate reasons like personal vindictiveness, or in an attempt to obtain a personal benefit. The exercise of the power or authority for reasons of that kind is an abuse of the power and the conduct may be unlawful.
More difficult questions may arise in cases sometimes loosely described as police harassment. It is understandable that police resources will be focussed on persons and occasions where they are more likely to be effective. For those reasons, it is sometimes the case that police powers or authorities are properly enlivened, and exercised more frequently with respect to certain persons, or in certain kinds of circumstances where the persons being targeted may subjectively view that conduct as harassment. However, other than in the extreme cases of personal vindictiveness or benefit it is difficult to see how that conduct can be characterised as unlawful or improper.
The first question to be determined therefore is whether the power or authority which was exercised was properly enlivened. The particular issue in the circumstances of this case is whether a police officer who requests the production of a licence pursuant to s 96 of the Motor Vehicles Act 1959 (SA) (the MVA) is exercising a power within the meaning of that term in s 40H of the RTA.
Section 96 of the MVA provides:
96—Duty to produce licence or permit
(1)The driver of a motor vehicle, if requested by a police officer to produce his or her licence or learner’s permit, must produce the licence or learner’s permit either—
(a) forthwith to the police officer who made the request; or
(b) within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.
Maximum penalty: $1 250.
…
(4)In this section—
driver includes—
(a) a person sitting next to the holder of a learner’s permit in a vehicle being driven by the holder of the permit;
(b) a person being carried as a passenger on, or in a sidecar attached to, a motor bike being driven by the holder of a learner’s permit;
police officer includes an authorised officer.
Section 40H of the RTA provides:
40H—Direction to stop vehicle to enable exercise of other powers
(1)An authorised officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a) the driver of a vehicle to stop the vehicle; or
(b) the driver of a vehicle or any other person not to do one or more of the following:
(i)move the vehicle;
(ii)interfere with it or any equipment in or on it;
(iii)interfere with its load.
…
(5)A person commits an offence if—
(a) the person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(6)In this section—
stop a vehicle means to stop the vehicle and keep it stationary.
Section 40 H of the RTA may usefully be compared with s 42 of the RTA which it replaced. The now repealed s 42 of the RTA provided:
42—Power to stop vehicle and ask questions
(1) A member of the police force or an inspector may—
(a) request the driver of a vehicle on a road to stop that vehicle;
(b) ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner or the operator of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2) A person must forthwith—
(a) comply with a request made under subsection (1) to stop a vehicle;
(b) truthfully answer any questions put under subsection (1).
Unlike s 40H RTA the occasion for making a request of a driver to stop a vehicle and to provide particulars prescribed by s 42 RTA was not confined by reference to a specified purpose. Nor was the engagement of s 42 RTA limited to the facilitation of other powers. Accordingly, a police officer was entitled to ask a driver to stop, and to ask questions of him or her, for any proper policing purpose, and any such driver was duty bound to stop and answer. A police officer would be acting properly if they told, or signalled to, a driver to stop. Such a communication would accurately inform the driver of his statutory obligation to do so.
Plainly enough s 40H does not confer a power to physically stop a vehicle whilst it is moving; it merely authorises the officer to give a direction. In this respect s 40H of the RTA may be contrasted with s 68 of the Summary Offences Act 1935 (SA) (the SO Act) which empowers police officers to actually physically stop a car when they have reasonable grounds to believe they will find evidence of the commission of an offence. In addition ss 74B and 74BAA of the SO Act authorise the creation of road blocks. However, those powers are exercisable only with reasonable cause.
Strictly defined a legal power, of a public kind, authorises the person or tribunal on which it is conferred to administratively abrogate, alter, or affect the rights or interests of others.
Section 96 of the MVA, in terms, does not confer a power of that kind. It imposes a duty on a motorist to provide his or her licence when a police officer makes the relevant request either forthwith to that police officer or, within 48 hours, to a police station. The request made by the police officer in each case is the exercise of a legal authority but is not the exercise of a statutory power in the strict sense. Any person may make a request and does not need the authority of a statute to do so. Whether or not the making of the requests has a legal consequence depends on whether a law attaches legal consequences to the fact of its making (as a factum). Section 96 of the MVA operates on the fact of a police officer’s request to impose a duty on a driver to produce his or her licence when a request to do so is made by a police officer. However, the police officer making that request has no more exercised a power, in the strict sense, than the owner of property who requests a trespasser to leave his premises thereby attracting the operation of s 17A of the SO Act.
The same is true of s 40H of the RTA which imposes a duty on a driver when an authorised officer gives a direction in accordance with that section.
Examples of the conferral of power in the strict sense can be found in s 40M and s 40N of the RTA. Section 40M empowers a police officer to move a car if that vehicle is unattended. Section 40N[1] of the RTA empowers an authorised officer in similar circumstances to remove a broken down or unattended vehicle. The powers so conferred allow police officers to abrogate the property rights of the driver and owner of the car so that the police officer may engage lawfully in conduct which would otherwise be a trespass, or other tortious or criminal interference, with those rights.
[1] Section 40N of the RTA appears in subdivision 3 of Part 2 and is headed ‘Power to move or remove unattended or broken down vehicles’.
Section 40R of the RTA also confers a power, in the strict sense, to search a vehicle but the power is conditioned on the existence of reasonable cause.[2]
[2] Section 40R appears in subdivision 4 which is headed ‘Power of inspection and search’.
Be that as it may, the ordinary meaning of the word ‘power’ extends beyond the narrow technical meaning I have described. It extends more generally to a legal ability, capacity or authority. The term may therefore include the legal capacity of a person to unilaterally impose a duty on another by acting in accordance with his or her statutory authority.
The headings to subdivision 3 and 4 suggest that the legislature was alive to the narrow meaning of the word power. However, there is a strong indication that the word is used more broadly in s 40H of the RTA because it provides that an authorised officer may make the request in connection with exercising ‘other powers’. The implication arising from the word ‘other’ is that the legislature regards the making of a formal request which imposes a duty under a road law as an exercise of a power for the purposes of s 40H of the RTA. It is also significant that s 42 of the RTA previously authorised police officers to request a driver to stop his or her vehicle for a licence check, and there is no express indication that Parliament did not intend that to continue to be the case on the enactment of s 40H of the RTA.
I acknowledge that the presumption of legality supports a narrower construction of the word ‘power’. However, that rule of construction is displaced by the other considerations to which I have referred. I therefore hold that a direction that a driver stop their vehicle made pursuant to s 40H of the RTA for the purpose of conducting a licence check pursuant to s 96 of the MVA imposes a duty on the driver to stop the vehicle he or she is driving.
If, contrary to my construction of s 40H of the RTA, that section did not authorise SC Horner’s request to stop, it is necessary to consider whether Ms Booth and the appellant were unlawfully detained.
A mere request made, without any threatening behaviour, by one civilian driver to another to stop does not convey any obligation to stop. If the other driver politely complies there is no unlawful detention. The activation of police warning lights is commonly understood by motorists to convey an obligation to stop to enable police officers to perform their duties. Generally, it impliedly conveys that a failure to stop may result in further police action, including arrest. It is neither improper nor unlawful for a police officer to pull over a driver in that way when there is a statutory obligation to stop. If there had been no obligation on Ms Booth in the circumstances of this case to stop, it is arguable that both she and Mr Neal were detained unlawfully. However, their detention before the discovery of the gun was momentary. Moreover, the distinction between powers and requests which enliven a duty is a subtle one. Finally leaving aside the difficulties of proving joint possession the evidence in this case was strong cogent objective evidence of the commission of a serious offence. Further, the evidence does not support a finding that SC Horner or Constable Spiniello knowingly stepped outside the powers available to them as they understood them to be. For these reasons even if s 40H of the RTA had not authorised the request to stop, there was insufficient reason to exclude the evidence of the discovery of the shotgun.
Inadequate Directions
The Judge gave the following directions on the element of possession:
The essence of the concept of possession in law is that at the relevant time you intentionally and knowingly have control over the object in question. You may have this control alone or you may share the control jointly with others. You or you and the others must have the right to exclude other people from possession of the object. It is not necessary that you have the object in your hand or on your person, it is not necessary that you own the object. You do not need to possess the object permanently, you could possess it temporarily or for some limited purpose.
You will recall the example that the prosecutor gave you in his opening concerning the television. To reiterate and expand upon what Mr Mulvihill said, if you have a television set at home, you are in possession of it even though you are here in court and you do not have immediate physical possession of it, you still possess the television in your home.
You may be in possession of the television on your own or you might be in joint possession of it with other members of your family. You may not own the television, you might rent it or you might be borrowing it or you might be looking after it for a short period for someone else. In each of those cases you would still be in possession of it. It would be different, however, if you did not know the television was in your house.
The direction does not give the jury guidance as to whether, even if it is possible on the evidence that Ms Booth was alone in the possession of the gun, Mr Neal’s mere knowledge of the gun would be sufficient to prove ‘possession’. The evidence that Ms Booth hired, and was in charge of, the car and that she was only casually acquainted with Mr Neal clearly raised that possibility. The jury’s attention should have been drawn to the evidence and its legal significance.
A direction of that kind would also clearly have distinguished the appellant’s case from Ms Booth in respect of the difference between the onus of proving common law possession against Mr Neal and the statutory reversal of the onus in the case of Ms Booth who was a person in charge of a motor vehicle in which the firearm is found pursuant to s 5(14)(c) of the Firearms Act 1977 (SA).
The absence of directions of that kind has resulted in a miscarriage of justice which, but for my conclusion on the unreasonable verdict ground, would have resulted in an order for a retrial.
Verdict not supported by the evidence
The Judge found that there was a case to answer for the following reasons:
The question of law is whether on the evidence as it stands Mr Neal could be lawfully convicted of one or both of the charged offences. There is no direct evidence against Mr Neal. The Crown case against him is a circumstantial one. On the assumption that all of the evidence taken at its highest for the prosecution is accepted and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn it is my view that the evidence is capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused, Mr Neal, in respect of both of the charged offences.
It was plainly open to the jury not to believe Ms Booth’s evidence. It was open to find from her possession of the car, and the use of her credit card to pay for its rental, that the signatory to the hire agreement, Briony Boots, was her alter ego.
The evidence clearly put Ms Booth in charge of the vehicle both because she was the driver and the person, or one of the persons, who had rented it. Moreover, the gun was placed in a position between the driver and the passenger seat. In those circumstances it was impossible to exclude Ms Booth as a possessor of the firearm unless her evidence to the contrary were to be accepted, on balance of probabilities, by the jury. Plainly, the jury rejected her evidence. As such, the case against the appellant could only succeed on the basis that he was jointly in possession with Ms Booth.
I accept that an inference might be drawn that the appellant knew of the presence of the gun. The hessian bag protruded above the level of the seats and was on the passenger’s side of the centre console which is where the appellant was seated. If knowledge of the presence of the gun was sufficient to prove possession, then there would be little reason to interfere with the verdict of a jury. The evidence would support the conviction. However, knowledge is not enough for an offence of possession. Mr Neal’s mere acquiescence to Ms Booth’s possession of the gun, by accepting a lift with her, does not establish his joint possession of the shotgun with her.
The only evidence accounting for the appellant’s presence in the car were the testimonial explanations given by both the appellant and Ms Booth. If there were evidence that at the time that they were pulled over by the police, Ms Booth and the appellant were embarked on a criminal enterprise which involved use of a gun, then an inference might be drawn as to their joint possession of that gun. However, there was no such evidence other than the presence of the gun.
To establish that the appellant possessed the shotgun jointly with Ms Booth, the evidence must show that they shared physical possession of it, or had an understanding as between themselves that they could and would share possession of it. I tend to the view that there was no such evidence and that there was therefore no case to answer. However, it is not necessary to finally decide that question. On any view there was a dearth of evidence of joint possession. The verdict of the jury cannot be supported having regard to the evidence.
Sentence appeal
Section 20AAC(1) and (2) of the Sentencing Act provides:
20AAC—Sentence of imprisonment not to be suspended
(1)Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 18 does not apply in respect of the sentencing of the person;
(d) if—
(i) the person is also being sentenced in respect of other offences; and
(ii) 1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2)A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a)his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b) it is, in all the circumstances, appropriate to suspend the sentence.
A serious firearm offence is defined by s 20AA of the Sentencing Act to include:
(a)an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or carriage of—
…
(iii) a prescribed firearm (other than a firearm declared by the regulations to be excluded from the ambit of this subparagraph).
The shotgun is a prescribed firearm[3] and its possession in this case was said to be constituted by its carriage in the Mitsubishi SUV.
[3] Firearms Regulations 2008 (SA) reg 4(1).
Division 3A of Part 3 of the Sentencing Act (Division 3A) was enacted on 1 September 2016 and established a scheme for the imposition of the detention of a defendant at a suitable residence as an alternative to imprisonment. Before turning to the provisions of Division 3A, I observe that s 22(2) of the Correctional Services Act 1982 (SA) provides that on the imposition of a sentence of imprisonment by a Court, the person so sentenced will be imprisoned in such correctional institution as the Chief Executive of the Department of Correctional Services determines.
In the ordinary sense, to serve a sentence of imprisonment means to serve it in a correctional institution.
Section 33BB(1) of the Sentencing Act provides:
33BB—Home detention orders
(1) Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
But for an order that the sentence be suspended pursuant to s 33BB(1) of the Sentencing Act or suspension under Part 5, any sentence of imprisonment must be served in a correctional institution pursuant to s 22(2) of the Correctional Services Act 1982 (SA). On the suspension of the order of imprisonment pursuant to s 33BB(1) of the Sentencing Act the sentence will be served on home detention and not in a correctional institution.
In this respect there is an important contrast with suspension of a sentence of imprisonment pursuant to s 38(1) of the Sentencing Act (a Part 5 suspension). Section 38 provides:
38—Suspension of imprisonment on defendant entering into bond
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
Whereas s 38(1) of the Sentencing Act speaks of a bare suspension conditional upon entering into a bond, s 33BB(1) of the Sentencing Act couples the suspension with an order that the defendant serve the term of the sentence on home detention. However, the order is elliptically described in that it is the term of the sentence of imprisonment which is spent, or served, on home detention and not the imprisonment itself. Home detention is not imprisonment in a correctional institution pursuant to s 22(2) of the Correctional Services Act 1982 (SA).
On a breach of a condition of home detention s 33BD(1) of the Sentencing Act provides that ‘the Court must revoke the home detention order and order that the sentence of imprisonment that the person serving on home detention be carried into effect’. On a revocation of the suspension pursuant to s 33BB of the Sentencing Act the sentence of imprisonment is carried into effect by the detention of the defendant in a correctional institution. Section 33BD(4) of the Sentencing Act provides that when a court ‘orders that the relevant sentence of imprisonment be carried into effect’ the Court may direct that the period of compliance with the home detention order be counted as part of the term of that sentence. That power confirms the distinction between the imposition with immediate effect, of a sentence of imprisonment and the suspension of that order to enable the sentence to be served on home detention instead of in custody. It is precisely because the sentence of imprisonment in a correctional institution is not being served whilst a defendant is detained on home detention that it is necessary to empower a court in its discretion to direct that the period of compliance with home detention ‘be counted’ as part of the term. It is necessary to note that is only a period of time where the conditions of home detention have been complied with that will be counted.[4]
[4] Section 33BD(4)(a)(i) of the Sentencing Act.
It follows that on the plain words of s 33BB of the Sentencing Act, a home detention order is a suspended sentence for the purpose of s 20AAC(1)(b) of that Act.
There is a further strong textual reason for so reading the provisions. Before Division 3A was enacted, s 30 of the Sentencing Act provided that a court which imposes a sentence of imprisonment, but does not suspend the sentence, must specify the date on which the sentence is to have been taken to have commenced. At that time the only power to suspend a sentence of imprisonment was that conferred by Part 5 of the Sentencing Act. On the enactment of the home detention regime, s 30 was amended with the effect of limiting the section’s application to orders for suspension not made pursuant to Part 5 of the Sentencing Act:
30—Commencement of sentences and non-parole periods
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence under Part 5, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
The amendment of s 30 shows that Parliament intended to impose an obligation on courts to specify the commencement date for a home detention order. That is to be expected. There are at least three important reasons why the commencement date of a period of home detention must be known. First a defendant must know when the obligation to comply with the home detention conditions commences. Secondly both the defendant and justice agencies must know when the order is discharged by compliance and thirdly they must know how much of it has been complied with in the event of breach.
When an Act is amended by a later Act both the principal and amending acts are to be regarded as one connected and combined statement of the will of the Parliament.[5]
[5] Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463, 479. See also The Palace Gallery Pty Ltd v WorkCover Premium Review Panel & Others (2014) 119 SASR 408 at 418 (per Kourakis CJ).
If s 30 had not been amended, it would not, on its face, have applied to home detention orders because of its express exclusion of suspended sentences and the express reference to suspension in s 33BB. The amendment of s 30 demonstrates that Parliament treats references to suspension in the Sentencing Act as including suspension for the purposes of giving effect to a home detention order pursuant to Division 3A.
There is also a practical reason for treating a home detention order as a suspended sentence for the purposes of other provisions of the Sentencing Act. Section 33BB(2)(a)(ii) of the Sentencing Act precludes the making of a home detention order where the defendant is being sentenced to a sentence of imprisonment which is to be served cumulatively or concurrently on another term of imprisonment then being served or about to be served. If a sentence of imprisonment served on home detention is not a suspended sentence, and is instead a sentence of imprisonment being served, or about to be served, then s 33BB(2)(a)(ii) of the Sentencing Act would prevent the Court from imposing concurrent sentences of home detention. Such a construction would preclude a home detention order as a sentencing option in many cases because defendants often fall to be sentenced for multiple offences. Section 18A of the Sentencing Act may obviate that practical difficulty in many cases but the application of that section is precluded by statute for certain offences. Moreover, occasionally for other reasons it may be undesirable or impractical to use s 18A of the Sentencing Act. It is unlikely that Parliament intended to burden sentencing courts with this practical difficulty by treating a home detention order as an unsuspended sentence of imprisonment.
I observe here that the making of concurrent orders of home detention affects only the length of the term of home detention if the home detention orders are not breached. Section 33BD(4)(c) of the Sentencing Act provides that on revocation of the suspension of a sentence of imprisonment for breach of a home detention order condition the Court may order the sentences to be served cumulatively. Parliament contemplated therefore that multiple home detention orders may run concurrently but if breached may be ordered to be served in prison either concurrently or cumulatively.
My observations about the proper construction of s 33BB(2)(a)(ii) assume that there is a power elsewhere to order sentences of home detention to be served cumulatively.
Section 31 does not apply to home detention orders. It provides:
31—Cumulative sentences
(1)Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
Section 31 empowers a court to order that a sentence of imprisonment it imposes be cumulative upon another sentence of imprisonment then being served or to be served. It follows that a sentence of immediate imprisonment cannot be made cumulative upon a period of home detention because the service of that sentence in a correctional institution has been suspended. That in itself will not pose any real difficulty because rarely will there be any good reason to order a sentence of immediate imprisonment to be served after a period of home detention has been successfully completed.
Nor can a sentencing court impose consecutive sentences of home detention pursuant to s 31(1) of the Sentencing Act because the sentence of imprisonment on which the first home detention order is founded is not ‘being served or to be served’. The suspension order made as part of the first home detention order excuses the defendant from serving the underlying sentence of imprisonment in a correctional institution.
The lack of power to make consecutive home detention orders can be overcome in most cases by engaging s 18A of the Sentencing Act which allows a single overall sentence of imprisonment to be imposed before it is suspended on home detention conditions. However, that is not the case if one or more of the offences for which the defendant has been sentenced is a serious firearm offence because, as has been seen, s 20AAC of the Sentencing precludes the use of s 18A to impose a single sentence for both serious firearm and other offences.
In R v Colson[6] this Court held that s 30 of the Sentencing Act, by necessary implication included the power, which had been expressly stated in its predecessor provisions, to order that a sentence commence at some time in the future. So construed s 30 of the Sentencing Act provides an alternative power to s 31 of the Sentencing Act to order sentences to be served cumulatively. However, importantly it also allows for orders that sentences be served partially concurrently and partially cumulatively by fixing a date certain in the future during the term of an earlier sentence for the commencement of a subsequent sentence.
[6] (1999) 73 SASR 407.
Section 30(1) of the Sentencing Act by implication applies to a sentence of imprisonment suspended by a home detention order because only a Part 5 suspended sentence is excluded expressly by the amendment to s 30(1) made at the time that Division 3A was enacted.
It is therefore open to a court to order sentences of imprisonment which it proposes to suspend pursuant to Division 3A to be served sequentially with the effect that they are either wholly or only partially cumulative. There is, of course, no reason to make such an order when suspending sentences of imprisonment pursuant to Part 5.[7]
[7] In the event of a breach, s 58(4)(c) of the Sentencing Act empowers a court on the revocation of a Part 5 suspended sentence to order that it be served cumulatively on another sentence.
However, if a court so proceeds, each sentence it imposes and then suspends pursuant to s 33BB(1) is a separate sentence. Moreover, the obligations imposed by s 33BC to comply with the conditions of the home detention order only apply during the period of the home detention order. It follows that a breach of a condition whilst serving an earlier period of home detention will not be a breach of a condition of the home detention order with respect to a sentence which has been ordered to commence in the future.
Accordingly, on a breach of a home detention condition, a defendant may be required to serve the remainder of the term of imprisonment on which the earlier home detention order was founded in prison, but still be entitled to be released on home detention with respect to the sentence order to commence in the future. That will not necessarily be an undesirable outcome in that after returning to prison the defendant may more faithfully comply with the later home detention sentence. Of course, if the breach involves the commission of another offence for which the defendant is sentenced to a term of immediate imprisonment which runs during the period of the subsequent home detention order or orders, both that immediate imprisonment and the term of the home detention order will run concurrently. In effect then a defendant will escape punishment for the offences for which the later home detention orders were imposed. Those considerations will tend against a sentencing judge utilising s 30(1) of the Sentencing Act to impose cumulative sentences of home detention.
They also call for consideration by Parliament.
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.
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