R v Newchurch and Wanganeen - [2013] SADC 174

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEWCHURCH AND WANGANEEN
Criminal Trial by Judge Alone
[2013] SADC 174
Reasons for the Verdicts of His Honour Judge Tilmouth
20 December 2013
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
The accused Newchurch is charged with one count of criminal trespass and two counts of theft, based on circumstantial evidence and the (recent) possessions stolen from or nearby the residence in question. He is further charged with causing harm relating to events occuring later in the day.
The accused Wanganeen is charged with one count of illegal use of a motor vehicle as a passenger in the vehicle driven and alleged to have been stolen by Newchurch.
Held 1: The accused Newchurch is found guilty of the first three counts, there being no reasonable account of his recent possession of solen items and no reasonable hypothesis consistent with innocence.
2: There is no case to answer against him on the causing harm charge.
3: There is a reasonable hypothesis consistent with innocence in relation to the charge against Mr Wanganeen, so he is found not guilty.
Consideration given to the inferences open when an accused is found in possession of recently stolen property. Discussion as to the admissibility and use of certain items of 'discreditable conduct' evidence.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c)(i), s 21, s 29(3), s 86A, s 134(1), s 170(1), s 278(1); District Court Act 1991 (SA) s 9(3); R v Taylor, Weaver, George and Donovan (1928) 21 Cr App R 20; R v Cable (1947) 47 SR (NSW) 183; Evidence Act 1929 (SA) s 34P, s 34P(1)(a), s 34P(2)(b); R v Smith (1986) 7 NSWLR 444; R v Verde (2009) 193 A Crim R 211, referred to.
Chamberlain (No 2) v The Queen (1984) 153 CLR 521; B & D v R (1993) 66 A Crim R 192; R v Olasiuk (1973) 6 SASR 255; Douglas v The Queen (2012) 86 ALJR 1086; Bruce v The Queen (1987) 61 ALJR 603; R v Wanganeen (1988) 50 SASR 433; R v Schama And Abramovitch [1914] 11 Cr App R 45; R v Stafford (1976) 13 SASR 392; Dyers v The Queen (2002) 210 CLR 285; R v Slobodian (1982) 30 SASR 161; R v Daniel [2010] SASCFC 62, applied.
Ayles v The Queen (2008) 232 CLR 410, distinguished.

R v NEWCHURCH AND WANGANEEN
[2013] SADC 174
Introduction

There is no doubt that a two storey home Unit in Bower Street, Woodville was broken into, or that items of personal property were stolen from within, just before dawn on Sunday 26 August 2012. The intruders were disturbed by one of two occupants. They fled in a car parked in the street in front of the Unit, which they stole using an ignition key taken from the Unit.
The first defendant Ashley Newchurch, is charged with an aggravated form of trespass in a place of residence arising from these events (Count 1), stealing the items taken from the premises (Count 2), and the theft of the motor vehicle used as the getaway car (Count 3). He is further charged with deliberately colliding with a police vehicle later that day knowing that it was likely to cause harm to the driver (Count 4) and of possessing a Class H firearm without a licence found on his person (Count 5). He has pleaded not guilty to all charges but the possessing the firearm, to which he pleaded guilty. These reasons produce verdicts in relation to him concerning the remaining four counts.
The second defendant Klynton Wanganeen, is charged on Count 6 on the same Information with using the getaway motor vehicle without the owner’s consent, in as much as he was a passenger in the vehicle driven by Newchurch immediately before the events giving rise to Count 4 took place. These reasons also deal with the appropriate verdict with respect to that charge against Mr Wanganeen.
Broad summary of the evidence
Count 1 charges Mr Newchurch with serious criminal trespass in a place of residence, namely the Bower Street Unit, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), aggravated by the fact that he is alleged to have known, or was reckless as to whether anyone was inside the residence. It is alleged to be further aggravated by the fact that it was committed in the company of a person other than Mr Wanganeen.
In brief, the evidence from the occupants of the Unit ML and AK, was that AK was awoken from her sleep in the upstairs main bedroom by noises coming from downstairs. She woke her partner ML, who went downstairs to investigate. He heard voices and observed multiple flashlights coming from the kitchen area of the house. He was threatened ‘I’ll kill you you ....’ in a voice he considered to be of ‘Aboriginal nationality’.[1] He immediately returned upstairs to clothe. As he did so he organised for the police to be rung. At the same time he heard the car, an Hyundai Getz owned by him, start up and drive off from in front of the Unit, where it had been parked the night before.
[1] T 36.18 – 32.
AK also heard movement coming from the front of the house, so she went out onto a balcony of the upstairs bedroom. She saw one person getting into the passenger seat of the car. She saw another already seated at the driver’s wheel. According to her, both were wearing hooded baggy jumpers, one a dark colour and one of a dark red colour. The car stalled twice before it quickly drove off. She added that the sun had just risen by this time.
Afterwards both claim to have observed that entry had been obtained by removing a screen and prising open a laundry window. According to ML, marks around the window ledge had the appearance of ‘pry’ marks, which he described as of ‘screwdriver width’, less than a centimetre.[2] This description is accurate enough as can be seen from photographs taken of the laundry window during the trial.[3] Similar marks or scratches were observed by AK.[4] Both were adamant when recalled that such marks were not present beforehand and that the Unit had not been broken into subsequently.[5] It will become necessary to consider this evidence again later in these reasons.
[2]    T 34.25 – .36.
[3]    Exhibit P14.
[4]    T 65.28 – 66.25.
[5]    T 160.1 – 176.19.
Amongst other items stolen from the house, taken principally from either a coffee or kitchen table, was a wallet containing bank cards belonging to ML, a bundle of keys including a key to the Hyundai Getz and another vehicle owned by him, as well as the Unit keys, and personal electrical items, including an iPod Touch. The theft of those items from within the house form the basis of Count 2, a charge of theft against Mr Newchurch contrary to s 134(1) of the CLCA. The taking of the vehicle forms the basis of Count 3, a second count of theft against Mr Newchurch. There is no suggestion that the elements of these offences have not been otherwise established, the critical question being whether Mr Newchurch was one of the two offenders involved.
Count 4 charges him with intentionally colliding with a police vehicle knowing that it was likely to cause harm to the occupant, a police officer, contrary to s 29(3) of the CLCA. That count arises from the following facts. At 3.38 pm that afternoon, the precise time being fixed by reference to a ‘000’ call made at the time by the witness Robyn Smith who was stationary in her vehicle at a stop light heading south on Military Road, at its junction with West Lakes Boulevard. A small yellow vehicle came up quickly from behind, before veering left into the service lane leading into West Lakes Boulevard, which it entered and then strayed over to the wrong side of the road for east bound traffic. This manner of driving caused her to be troubled enough to report the matter immediately to the police.
Precisely ten minutes later at 3.48 pm (the time is fixed by reference to another ‘000’ call), Mr Turner was driving west along Grange Road having just entered from Findon Road. He observed a small yellow Hyundai Getz driving erratically, overtaking him at speed and at one point driving on the wrong side of the road for west bound traffic. This manner of driving disturbed him enough to pull over and call the police as well. Unlike Robyn Smith who could not say who was in the vehicle, Mr Turner observed two Aboriginal males wearing hoodies and baseball caps. Both defendants are of Aboriginal heritage. Both witnesses deposed to noticing the car was without registration plates. The yellow Hyundai Getz taken from outside the subject home Unit had number plates on when it was stolen.
At 4.31 pm that afternoon two police officers, Beatty and Van den Berg, were in a marked police vehicle when they saw what has been proven to be the yellow Hyundai Getz stolen that morning, travel across Port Road into King Street, West Croydon, without number plates. They pursued the vehicle for about four minutes at times of up to 80 kph, before it collided with a kerb, bringing it to a stop in Days Road. It then executed a U-turn but soon after collided with another kerb in Rainsford Avenue, coming to a complete stop in Pym Street.[6]
[6] Reference Google Maps Exhibit P12.
Van den Berg arrested Mr Wanganeen who had just alighted from the front passenger seat, whilst Beatty remained in the police vehicle. The driver of the Hyundai Getz, Mr Newchurch, then took off at speed, causing Beatty to continue the pursuit. Beatty later arrested him in York Terrace, Ferryden Park. All the aforementioned places are situated in the western and north western suburbs of metropolitan Adelaide.
It is alleged by the prosecution that just before taking off in Pym Street, Mr Newchurch deliberately reversed into the police vehicle. This forms the basis of Count 4, the charge of causing harm contrary to s 29(3) of the CLCA. Count 4 is alleged to have been aggravated by the fact that Mr Newchurch knew that Beatty, who was in police uniform, was acting in the course of his duty as a police officer at the time. The police vehicle was marked as such and had engaged its sirens and flashing lights during the latter parts of the chase so it must have been obvious to him that a police officer was driving the police vehicle. Neither Mr Newchurch nor his counsel suggested otherwise, so far as this aggravating feature of this offence is concerned.
The case against Mr Newchurch
Beatty searched a blue bum bag taken, according to him, from the shoulder of Mr Newchurch. He was seen to be wearing a red hooded jumper.[7] It may well have been in the car but the precise location is immaterial as he acknowledged it was his and that he was aware of its contents.[8] The imitation Class H firearm was in the bum bag, the possession of which he has pleaded guilty to. This demonstrates knowledge of the contents of the bum bag. This plea and the facts on which it is based are otherwise irrelevant to the remaining counts against him, and has therefore been ignored for the purposes of considering those counts.
[7] T 108.29 – 113.34.
[8] T 274.37 – 276.22, 301.8 - .13.
In a wallet found in a trouser pocket of Mr Newchurch, was a credit card undoubtedly belonging to ML. It bore his name on its front. An iPod Touch, positively identified as belonging to him, was also found in the bum bag.[9] Keys to the stolen Hyundai Getz and several other keys belonging to ML including those for his other car, were found in the ignition or about the person of Mr Newchurch, shortly after his arrest.[10] Each of the aforesaid items were without doubt taken from the Bower Street Unit roughly 10-11 hours earlier. Mr Newchurch was also said to be wearing a red hoodie at this time, similar to the one seen by AK earlier.
[9] T 120.3 - .6, 39.12 - .17.
[10] T 120.7 - .19.
The prosecution case against Mr Newchurch is therefore a circumstantial one. So to say does not imply that it is inherently weak or suspect: R v Taylor, Weaver, George and Donovan,[11] R v Cable.[12] It is submitted that a strong nexus exists between him and the trespass and theft occurring around dawn that morning, because of the proof of possession of the stolen items, thus excluding any reasonable hypothesis consistent with innocence.
[11] (1928) 21 Cr App R 20, 21
[12] (1947) 47 SR (NSW) 183.
The charge against Mr Wanganeen
Count 6 charges Mr Wanganeen with using a motor vehicle without consent, contrary to s 86A of the CLCA. This charge falls to be considered separately on the evidence admissible only as against him. The case for the prosecution is that as a passenger in the Hyundai Getz before and during the first stage of the police pursuit between 4.31 pm and 4.35 pm that Sunday afternoon, he must have known that it was stolen, or at least that Newchurch did not have the consent of the owner to drive it. As mentioned, the prosecution case is based solely on the fact that Mr Wanganeen was a passenger in the car and of course proof of the required mental element. Section 86A of the CLCA provides as follows:
86A—Using motor vehicle without consent
(1) A person who ... drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle is guilty of an offence.
The precursor to this offence, expressed in identical terms, was that contained in s 21 of the Motor Vehicles Act 1921 (SA) and later s 44 of the Road Traffic Act 1961 (SA). Of the former it was said by Richards J in Bollmeyer v Daley[13] that the word ‘uses’ should be given a ‘literal and natural meaning’, that is to say ‘it covers every degree of use’[14]. This construction was applied with respect to the latter act by Walters J in Ramsay v Samuels[15] in upholding a conviction against a passenger of a vehicle who knew that the vehicle was stolen.
[13] [1933] SASR 295, 297.
[14] At 297.
[15] (1975) 14 SASR 77, 78.
It remains to observe in this context that the joinder of Mr Wanganeen in Count 6 on the one information with Mr Newchurch, which is a summary offence, is one authorised by s 9(3) of the District Court Act 1991 (SA) which provides:
(3)The Court's jurisdiction to try, convict or sentence for a summary offence exists only where the offence is charged in the same information as an indictable offence.
There was no application for severance by counsel for Mr Wanganeen; on the contrary he supported joinder.[16] Nor was there any suggestion from either defence counsel that the charges were improperly joined or that they were not otherwise ‘founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character’, as required by s 278(1) of the CLCA. Nor was there any suggestion of prejudice or embarrassment thereby. The question of ‘cross admissibility’ is however another matter which is dealt with as and when it arises.
[16] T 15.31 - 16.2.
Of course each accused comes before the court with the presumption of innocence in his favour. Each charge must be separately proven against them on the evidence applicable to each charge beyond a reasonable doubt, before a finding or findings of guilt can be entered.
Cross-admissibility?
By two notices served upon the defence, the prosecution has sought to tender a number of items of evidence, or adduce circumstantial evidence said to fall within the rubric of ‘discreditable conduct evidence’ within the meaning of s 34P of the Evidence Act 1929 (SA). Two such items may be disposed of shortly. On Mr Wanganeen’s person were found two empty wallets. The prosecution claim no connection between them and any other offence, particularly those pressed against Mr Newchurch. It is said this evidence is admissible to rebut any suggestion of innocent association by him with the vehicle. It is difficult, if not impossible, to apprehend any connection of relevance between an empty wallet or wallets and a charge of illegal use of the motor vehicle. In any case, the evidence of possessing two wallets, although possibly attracting an innocent explanation, could only otherwise be suggestive of the fact that he might have been involved in the theft or unlawful possession of those wallets. That being so, that evidence is inadmissible because it only serves to suggest that Mr Newchurch is more likely to have committed an offence, thus infringing s 34P(1)(a) of the Evidence Act. The same applies equally to a wallet found in a jeans pocket of Mr Newchurch, otherwise unconnected to the subject burglary.
The other evidence sought to be admitted under s 34P is not so straightforward. First of all, the screwdriver found by the police late in the afternoon secreted in the lower forearm of Mr Newchurch’s right arm, is said to be admissible as providing a circumstantial link, in combination with all the other evidence, between him and the break-in many hours earlier. This arises because of the impressions said by ML and AK to have been on the frame of the laundry window that morning, which might well have been caused by a screwdriver or some other tool of similar proportions, to prise it open. As a matter of ordinary commonsense and without the need or the benefit of expert evidence on the point, it could be safely concluded that those marks may well have been made by a screwdriver or similar shaped object.[17] Otherwise screwdrivers are items of fairly common usage; they are generic in nature. The issue causing most concern lies in the fact that it was secreted on the person or Mr Newchurch. Nevertheless, this evidence lacks the necessary strong probative value having regard to the particular issues arising in this trial within the meaning of s 34P(2)(b) of the Evidence Act. In any event, it is likely to suggest only that Mr Newchurch might have been involved in other offences, or about to be involved in other offences, so that evidence will not be admitted.
[17] As seen particularly in the photographs Exhibit P14.
There is another consideration fatal to the reception of the evidence of the screwdriver anyway. The evidence on this subject given by ML and AK is summarised earlier. In contrast to that evidence, it was the evidence of Constable Randle who arrived at the Unit in response to the call to the police at round 6.15 am and according to him after daylight had broken,[18] that he did not recall seeing any such damage around the area of the laundry window.[19] More significantly, the experienced police crime scene investigator Fechner did not observe any such damage to the laundry window either, when he examined it at about 8.00 am on that Sunday morning.[20] The damage depicted around the laundry window can be seen in the colour photographs Exhibit P14. They would have been immediately obvious and have attracted the interest of a trained eye had they been there. On this state of the evidence it is simply not open to conclude there were tool damage marks about the window ledge and hence to find that an instrument as distinct from bodily pressure was used to prise open the laundry window. That being so, there is no demonstrable nexus between the evidence relating to Count 1 and the screwdriver found on the person of Mr Newchurch, so it has been ignored for the purpose of reaching the verdicts contained herein.
[18] T88.27-89.18.
[19] T89.31-90.5.
[20] T242.1-244.23. The trial was adjourned by consent to enable Fechner to be called, as he was overseas when the trial commenced, T2178.18-.27.
This conclusion passes no adverse reflections on either ML or AK. There is no reason to think that they were otherwise honest and genuine in giving the evidence they did on this topic. The within conclusion merely reflects the fact that it is impossible to resolve the conflicting evidence in a way that could lead to an indispensible basis for an inference of guilt: Chamberlain (No 2) v The Queen.[21]
[21] (1984) 153 CLR 521, 535

There are however other items of evidence capable of giving rise to a stronger nexus between Mr Newchurch and the events of that Sunday morning. In particular these include possession of the iPod Touch which undeniably was taken from the house that morning, the use of the Hyundai Getz for the better part of the day, the various keys belonging to the male occupant of the Unit, and the NAB credit card in the wallet stolen from the premises that morning. Given the fact that it has been proven beyond reasonable doubt that these items both belonged to ML and were stolen that morning, renders that evidence of such strong probative value such that it significantly outweighs any prejudicial effect. That being so the permissible and impermissible uses of that evidence can be kept separate. Of course that evidence is not admissible to suggest that Mr Newchurch is otherwise more likely to have committed any offence with which he is charged, or that he is the kind of person who might commit them: HML v The Queen.[22]
[22] (2008) 234 CLR 334 at [470-471], ss34P(1) Evidence Act.
Likewise, the evidence of the threat made downstairs in the Unit that morning is relevant as forming part of the res gestae of the offence itself, and as consistent with Aboriginal persons being the offenders, but it has no other use than that. ML recognised the threatening voice as that of a person of ‘Aboriginal nationality’.[23] He did not say whether it was male or female. AK did however say that she was pretty sure they were both male.[24] ML based his conclusion upon having worked for many years as a customer adviser with the National Australia Bank where he dealt with Aboriginal clients regularly, ‘easily between 20 to 30 per week’.[25] Of course, such evidence must be viewed with caution: R v Smith.[26] However given his experience in dealing with Aboriginal persons, this evidence has high probative value because it is reliable, as one small item of circumstantial evidence, seen in conjunction with all the other evidence and should therefore be admitted. But as just stated it is no more than consistent with the intruder or intruders being Aboriginal, yet it does not directly implicate Mr Newchurch: B &D v R.[27]
[23] T 36.24-25.
[24] T 62.7-11.
[25] T 36.26 - 37.7.
[26] (1986) 7 NSWLR 444, 459A.
[27] (1993) 66 A Crim R 192, 196 per King CJ
The evidence of the red hooded jumper worn by Mr Newchurch that afternoon should also be treated in the same way.[28] This is because although AK purported to remember that the driver of the getaway vehicle was wearing a dark red or red hooded jumper which she described as being ‘pretty close’ in comparison to Exhibit P5,[29] she admitted under cross-examination to having told the police shortly afterwards that although the driver was wearing a dark hoodie, she did not then describe it as red and in fact said to the police that it was the passenger who wore a red hoodie.[30] Accordingly this evidence is admissible only in conjunction with all the other evidence as merely consistent with one of the offenders wearing such a garment, but that is the sole limited purpose for which that evidence may be used.
[28] Exhibit P5.
[29] T 61.30-62.9, T67.17-27.
[30] T 69.17-73.2.
The case against Mr Wanganeen
The mental element of the charge under s 86A of the CLCA was defined by Doyle CJ in Police v Mariner:[31]
…as knowledge on the part of the offender that he or she has not obtained the consent of the owner of the vehicle prior to driving, using or interfering with it, or as an intention on the part of the offender to drive, use or interfere with the vehicle without first obtaining the owner's consent to do so. Alternatively, the mental element might comprise the absence of any belief that the consent has been obtained.
The other elements of the offence, namely that the owner gave no consent and that the vehicle was used by Mr Wanganeen in the sense described in the cases cited earlier, are clearly proven beyond reasonable doubt.
[31] (2002) 222 LSJS 499, 500 [9].
So the critical question is, what was his state of mind in the period during which he was a passenger in the vehicle? As explained in R v Olasiuk:[32]
The true position, we think, is that in inferring a man's intention from what he said and did, the jury are entitled to take into account their experience of life and to consider what intention would normally be inferred from such words or actions, but that they must realise that it is the intention of the particular accused which is in issue, not that of some hypothetical average or reasonable man.
[32] (1973) 6 SASR 255, 263.
Expressed in another way, has the prosecution demonstrated that the only reasonable inference open on the evidence, is that Mr Wanganeen knew that Mr Newchurch did not have the consent of the owner to use the vehicle, or alternatively that he did not believe consent to so use was obtained by Mr Newchurch: R v Verde.[33]
[33] (2009) 193 A Crim R 211, [15]-[22].
The intention with which he did or did not form may however be inferred as a matter of common sense from his actions and words at relevant times and more particularly in this instance, from the objectively proven facts.
The case against Mr Newchurch
It has been proven that fingerprint and DNA examinations yielded no evidence connecting Mr Newchurch with the subject premises. The direct evidence against him is the possession of a number of items taken from the Unit some 10 or 11 hours earlier. Before dealing with Counts 1, 2 and 3, which are interrelated, the quite separate and distinct offence charged on Count 4 may first be considered.
Count 4 – Doing an act likely to cause harm (aggravated form)
It is convenient to deal with Count 4 first because the evidence in relation to it is relatively discrete; no other evidence in the case is relevant here. Section 29(3) of the CLCA provides:
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
It can be seen that s 29(3) requires proof of actual knowledge of the likelihood of causing harm in the first place and proof of intent to cause such harm, or proof of reckless indifference as to whether such harm is caused, in the second. The requisite reckless state of mind constitutes an awareness that the conduct in question could result in harm and an engagement in the conduct despite that risk (s 21 CLCA). Harm means ‘physical or mental harm (whether temporary or permanent)’ (s 21 CLCA).
The aggravating feature or element of this charge is supplied by s 5AA(1)(c)(i) of the CLCA, that is to say knowing that the driver of the police vehicle was acting in the course of official police duty as at the time of impact. Mr Newchurch would be in no doubt that the occupants of the marked police car, with sirens and flashing lights activated, were police officers acting in the course of their duties. Nor was there any lawful excuse for doing what he is alleged to have done.
When the Hyundai Getz came to a halt in Pym Street at about 4.35 pm, according to Beatty there was a distance of about six metres between it and the police car.[34] According to Constable Van den Berg it was about six to seven metres.[35] Both purported to hear the engine of the Hyundai Getz revving up before reversing into their vehicle. Beatty remained at the driver’s wheel but of course Van den Berg had left it to effect the arrest of Mr Wanganeen. The evidence of Beatty about the impact was this:[36]
Q.    Had you felt anything when the car hit the police vehicle.
A. Yeah, there was a loud bang to the front of the police car and sort of, yeah, I got sort of a bit of whiplash with the force from it (INDICATES).
Q.    You are moving your head in a backwards direction.
A.    Yes.
For his part Van den Berg deposed that he looked up whilst affecting the arrest of Mr Wanganeen and saw the Hyundai Getz reverse into the parked car, hearing a ‘fairly loud noise, a big bang … like a fair impact’.[37]
[34] T112.16.
[35] T195.4-.18.
[36] T 112.35-113.3.
[37] T196.17-23.3.
The evidence of Brevet Sergeant Goodwin a crime scene examiner who examined the police vehicle afterwards, suggests that it was ‘not much more than a minor bump in a shopping car park’,[38] ‘more than just backing into a car in a car park … its more than just a bump going back slowly’.[39] He acknowledged there was no major structural damage to either vehicle.[40] The photographs of the front of the police vehicle show little more than impact scuffmarks (Exhibit P16 numbers 24-26, Exhibit P3 numbers 8-11) and practically no damage at all is apparent to the rear of the Hyundai Getz (Exhibit P16 numbers 31-33) and in any case Beatty said it seemed to have been damaged beforehand.[41] There was no evidence of a medical kind suggesting any particular serious or enduring injury to Beatty. The distance of six metres or so provided ample room for Mr Newchurch to have gotten the vehicle to such a speed to cause a significant impact had he intended to.
[38] T187.33-188.3.
[39] T189.34-190.3.
[40] T189.15-.26.
[41] T109.37-.38.
In light of all this evidence, the simple low-level impact between the two vehicles could only have been a benign and tame one. The evidence adduced in his case as just summarised, is incapable of supporting the inference that Mr Newchurch knew that by reversing the Hyundai Getz it was likely to cause harm to Beatty or that he either intended or was reckless as to whether such harm could be caused. Nor is it capable of supporting the conclusion - at least beyond reasonable doubt – that ‘harm’ as defined was caused. It was for the first two reasons that the court found no case to answer on Count 4.[42] It would have been for the third reason that a finding of not guilty on this charge was inevitable.
[42] T261.2-.9.
The defence cases
Both accused elected to give evidence in their own defence, a course they were not obliged to take. Mr Newchurch denied being anywhere near the Bower Street premises during the morning in question. He claimed to be at Dave Baker’s house on Grange Road, Baker being a dealer in drugs supplying Mr Newchurch with methylamphetamines which he was using at the time and during the course of this very day.[43]
[43] This evidence was adduced during the course of his evidence-in-chief pursuant to s 18(1)(d)(i) of the Evidence Act 1929 (SA), T264.10-.19.
Mr Newchurch gave evidence that he had the use of a Toyota utility which he knew to have been stolen, but which however he lent to ‘a bloke I met two weeks prior’, a man he called simply Aaron.[44] He said that Aaron gave him some ‘meth and some clothing’[45] for the use of the vehicle, more particularly the red Nike jumper and a white Adidas t-shirt. Whilst Aaron was using the utility Mr Newchurch remained at Dave’s house using drugs. Although the arrangement was that the utility would be returned, it was not, as Aaron had ‘left it somewhere’.[46] Instead Aaron told Mr Newchurch that he had a car that Newchurch could use if he wanted to.[47] This turned out to be the yellow Hyundai Getz used as the escape vehicle. The keys were given to him by Aaron. It was parked in a back street near Dave’s house. Mr Newchurch drove it to do a number of things around the nearby suburbs. He added that he looked in the car and found an iPod Touch and a plastic bag of credit cards and a wallet it in.[48]
[44] T263.4.
[45] T264.27-.28.
[46] T264.34.
[47] T264.38-.265.2.
[48] T266.5-.12.
Later in the day he returned to Dave’s place and took another man named Adam to a ‘pub down the road’.[49] Later in his evidence-in-chief he volunteered that he had used the screwdriver found on his person to take off a ‘beeper’ on the jumper given to him by Aaron and he indicated in court by reference to the jumper Exhibit P5 where there was a small rip indicating that this had occurred. He was not challenged about this aspect of his evidence under cross-examination. This situation furnishes an additional reason for rejecting the notion that the red hoodie is direct evidence against him.
[49] T268.29.
Returning to the evidence relevant to the case of Mr Newchurch, he described seeing the police vehicle after leaving a car park to a shopping centre in Welland, to crossing over the Port Road, then driving through some backstreets, realising the police had ‘turned around to come for us’.[50] He conceded an awareness that the police were giving chase and that the car later was pushed into a gutter during the course of the chase, where a tyre had burst. After Mr Wanganeen had gotten out he reversed in order to permit him to ‘get back out onto South Road’.[51] Under cross-examination he conceded that he kept the credit card because he was ‘probably going to use it’,[52] and that he also kept the iPod Touch as he ‘wanted the music’.[53] And he frankly conceded that he had ‘an idea’ that the Getz was a stolen vehicle, because Aaron had told him it was a ‘hot car’.[54]
[50] T270.29.
[51] T271.28.
[52] T276.22.
[53] T289.24
[54] T277.17-.26, T301.5-.13.
For his part Mr Wanganeen’s evidence was that during the course of the afternoon he was standing at a bus stop on South Road when Mr Newchurch pulled up by chance. Mr Wanganeen was initially heading for Port Adelaide but had the ultimate intention of travelling to the Yorke Peninsula as he was required to ‘sign in’ as a condition of a bail agreement at the Kadina Police Station the following day.[55] Mr Newchurch was a cousin. They had not apparently seen each other for some years. After a good deal of catch-up conversation in the car, they resolved that Mr Newchurch would drive him to the Yorke Peninsula. One way or another Mr Wanganeen contributed $50.00 for petrol. He explained that Mr Newchurch happily went along with this arrangement because it afforded him ‘a good chance to see his grandmother at the same time as they lived next door to my uncle at the Aboriginal community’ of Point Pearce on the Yorke Peninsula.[56]
[55] T308.16-.25.
[56] T309.29-.38.
More specifically with respect to the charge of illegal use, Mr Wanganeen said that he observed nothing unusual about the car even when filling it with petrol. Nothing alerted him to the fact that it did not have registration plates attached. He acknowledged the above course of events concerning the police pursuit after seeing the police car near the shopping centre on Port Road, Welland. During the course thereof he said that Mr Newchurch drove as high as 80 km per hour and by that stage all he wanted to do was just ‘get out of the car’.[57] He described thinking Mr Newchurch might have been ‘a little bit intoxicated and that’s why, I thought, he didn’t pull over for the police because he might have had a few beers or something’.[58] He added that he did not think or believe the car was stolen, rather ‘I just naturally thought it was Ashley’s car’.[59]
[57] T312.23-.27.
[58] T313,11-.14.
[59] T313.20.
Mr Wanganeen maintained this version of the events under cross-examination. He added that there was not enough time to get out of the car on a main road, ‘the first opportunity I had to exit the vehicle, I did’.[60] He explained that the wallet or wallets found on his person were his and that ‘it wasn’t two wallets it was one wallet with another compartment that comes apart’.[61] The wallet or wallets were not retained as Exhibits by police. He maintained under cross-examination that he had asked Mr Newchurch to stop the car.[62] The evidence of Mr Wanganeen concerning his limited involvement with the car is supported by that of Mr Newchurch as to the circumstances in which they met that afternoon and to the extent that he said ‘Klynton wanted to get out’.[63]
[60] T322.4-.5.
[61] T323.16-.20.
[62] T323.24-.28.
[63] T271.12-.19, T272.30-.38, T305.11-.32, T323.24-324.14.
Case against Mr Wanganeen – Analysis
In view of the confined scope of the evidence and that Mr Wanganeen is charged with but one offence, it is convenient to deal with the case against him now. First it is important to understand an aspect of the evidence which forms no part of the prosecution case against Mr Wanganeen. As mentioned earlier, the witnesses Turner and Smith who saw the yellow car earlier in the afternoon before the police pursuit, could not in the case of Ms Smith, give any evidence of description as to the occupants of the vehicle as she did not ‘really see who the drivers were’.[64] Mr Turner, described the occupants as two Aboriginal men wearing hooded tops. It is no part of the prosecution case that Mr Wanganeen was in the car at those two times because when he was arrested at about 4.30 pm that afternoon, he was wearing no such top.[65] Accordingly the prosecution eschewed any suggestion that he was in the vehicle at either of those times.[66] Nor was it the prosecution case that he was a party to the trespass and theft from the Unit that morning.
[64] T77.21.
[65] T 256.15-18.
[66] T216.15-.22, T368.5-.25.
The twin sightings of a small yellow car in the case of Ms Smith in the West Lakes area and the small yellow Hyundai Getz with two occupants about 10 minutes later near the junction of Grange and Findon Roads, both without registration plates, leads to the inevitable conclusion that it was one and the same vehicle. It is entirely improbable that two vehicles of similar description would be driving erratically in nearby suburbs effectively within 10 minutes of each other. For precisely the same reasons, there is no reasonable conclusion other than that this vehicle must have been the subject Hyundai Getz seen and pursued by the police within an hour from 4.31 pm onwards that day.
Since the latter sighting of the Hyundai Getz by the civilian witness was made at 3.48 pm, and the police chase commenced at about 4.31 pm, the prosecution can only prove that Mr Wanganeen was in the car for just over 40 minutes at most. It must also follow that Mr Wanganeen must have been picked up by Mr Newchurch on South Road near its junction with Grange Road sometime after 3.48 pm. Even if he drove directly to that vicinity after the last sighting by Mr Turner, as depicted in Exhibit P11 it is likely to have taken in the order of no less than five or ten minutes before he could have reached the bus stop, so that something approximating 30 minutes of occupancy in the car by Mr Wanganeen is the sum total of his proven involvement with it.
The prosecution case against him otherwise depends on proof of knowledge that Mr Newchurch had no permission to use the Hyundai Getz or the absence of a belief in consent to so use it on his part. The prosecutor contended it must have been obvious to him that no number plates were to be seen and that this would have alerted Mr Wanganeen to that fact Mr Newchurch had no permission to use it. An examination of the various photographs tendered in the trial, do show the car without registration plates, but that fact is by no means obvious or conspicuous. The two witnesses who saw the vehicle earlier were principally motivated to contact the police by the erratic nature of the driving, although they did observe it was without number plates. In any case, even assuming he appreciated that fact, it does not follow that this should have led him to the conclusion that the vehicle was used without permission, although it might have.
Moreover, the evidence is that he was desirous of getting out of the car. Of course, this may have been attributable to the fact that he did not want to become complicit in the police chase. The fact of the matter is however that the evidence is consistent with the fact that Mr Wanganeen was not aware that the vehicle was stolen. It is not strong enough to prove beyond reasonable doubt that he was so aware, particularly given the relatively short period of time over which he was involved with it. There is a distinct possibility consistent with innocence that he did not hold either of the requisite mental states of mind necessary to sustain the charge. The evidence of Mr Wanganeen and Mr Newchurch related to this count is neither implausible nor inherently unlikely. Indeed it is supported to an extent by the observations of the police that he got immediately out of the car in Pym Street once it came to a halt.[67] It is not therefore open to be satisfied that evidence was not reasonably true: Douglas v The Queen.[68] Accordingly he is entitled to be acquitted of the charge of illegal use.
[67] Beatty T111.23-.26, Van den Berg T195.19-.25.
[68] (2012) 86 ALJR 1086, [13]-[14].

It was contended by the prosecutor that Mr Wanganeen should be disbelieved on account of inconsistencies between what he said and what Mr Newchurch said about the subject of discussions in the car and the way in which the resolution came about to drive to the Yorke Peninsula. It may be accepted that the evidence evolved in slightly different forms on these topics, but it was very much the product of the fact that Mr Newchurch was led primarily in relation to other issues, whereas the evidence-in-chief of Mr Wanganeen was more focussed on those very questions. Moreover the prospect of going to the Yorke Peninsula is not inherently improbable; Mr Wanganeen’s assertion that he had to be there by the following day in order to comply with his bail conditions was not challenged under cross-examination or refuted by rebuttal evidence.
The two empty leather wallets found in Mr Wanganeen’s pants pockets, throw no light of any relevance on the issues in relation to him. He said they comprised one wallet. They were not retained or seized by the police and therefore not produced as Exhibits in the trial so as to permit this assertion to be refuted. In any case, it is difficult to see how they could be admissible in order to rebut any suggestion of innocent association with the vehicle. The wallet(s) is not said to have come from the Woodville Unit, has not even been shown to be illegally obtained, so that evidence simply has no relevance to the facts in issue on this count.
The case against Mr Newchurch – Analysis
As mentioned above, Mr Newchurch gave evidence effectively admitting the unlawful use of the Hyundai Getz during the greater part of 26 August 2012. Despite invitations from the bench before and after the close of the prosecution case to consider his position, the prosecutor insisted on pressing the charges of theft and illegal use against Mr Newchurch as particularised, the pith and substance being the commission of those offences at or near the Woodville premises that morning, rather than elsewhere later in the day.[69] Mr Newchurch effectively made admissions to either receiving, or the unlawful possession of two NAB cards, the iPod Touch and the car keys. Here again, the prosecution elected to pitch its case firmly against him on the basis that he was the thief of those items from the Woodville premises and on no other or any alternative basis.[70] Accordingly, the case for the prosecution must be assessed within those confines.
[69] T222.38-225.27, T330.20-331.31.
[70] Contrast Ayles v The Queen (2008) 232 CLR 410
The case against Mr Newchurch is one firmly based upon the (recent) possession of the stolen vehicle, the credit cards, the car and Unit keys and the iPod Touch, approximate to the time of the trespass and theft. Of course the evidence on these counts must be considered separately, however the evidence of ‘recent’ possession is bound up in each of them. It is obvious that the other items taken that morning including a wallet, a small amount of cash, an iPad and an Apple Mac Book as well as a Canon camera were not recovered by the police. No such items were found on or in the possession or constructive possession of Mr Newchurch. There was evidence that Mr Newchurch intended to visit a pawn shop that morning, but his purpose was not explored by counsel on either side of the bar table.[71]
[71] T286.26-.28.
When an accused person is found in possession of property recently stolen, the trier of fact is entitled to infer in the absence of any reasonable explanation to the contrary, guilty knowledge on the part of the accused: Bruce v The Queen.[72] The central question is whether the trier of fact is prepared to infer from the possession of the property recently stolen that it was stolen by the possessor having regard to the explanation as to how it was acquired: R v Wanganeen.[73] Nevertheless, the onus remains on the prosecution to prove the guilt of the accused beyond reasonable doubt, so that in the event of the failure to give a reasonable explanation for the recent acquisition of stolen goods, the trier of fact must nevertheless be satisfied beyond reasonable doubt of the guilt of the accused: R v Schama and Abramovitch[74] and R v Stafford.[75]
[72] (1987) 61 ALJR 603.
[73] (1988) 50 SASR 433 at 434.
[74] (1914) 11 Cr App R 45
[75] (1976) 13 SASR 392 at 403.
The explanation given by Mr Newchurch in this instance, is objectively considered, inherently implausible. The man Aaron had access to a vehicle, the Hyundai Getz. The question must be asked why he would want to borrow Mr Newchurch’s utility when he had his own means of transport? It may be that he desired to disassociate himself from the vehicle so as to distance himself from its theft earlier that morning. He had known Mr Newchurch for about two weeks, even so it is difficult to appreciate why he would run the risk of deliberately bringing Mr Newchurch under suspicion by associating him with the stolen vehicle! No explanation was given once the resolution was reached to drive to the Yorke Peninsula, why he did not attempt to recover his own utility for that purpose, rather than impose further upon Aaron’s largess. Moreover, Mr Newchurch’s credibility is questionable to the extent that he claimed that he otherwise drove within the limits of the road rules,[76] as this evidence is quite at odds with the evidence of Mr Turner and Ms Smith, as summarised above.[77] Crown counsel also sought to impinge his credit by reference to disputed evidence, such as whether he resisted arrest for instance, however such considerations are irrelevant for this purpose as they are peripheral or collateral issues: R v Slobodian.[78]
[76] T290.37-291.7, T292.26-.28, T296.15-.19
[77] T338.31-339.7.
[78] (1982) 30 SASR 161, 164-6, 168.
On the other hand it is not appropriate to draw an adverse inference against him for the failure to provide an alibi notice: Dyers v The Queen,[79] or an adverse inference against the prosecution for its failure to produce any rebuttal evidence in the combined circumstances.[80] It is unlikely given the extensive drug use said to have been occurring at the Grange Road house, that any of those said to have been present there that morning would be cooperative with either side. Mr Newchurch was not always completely forthcoming in providing other than first names for people said to be about the place. Although it was not formally proved in evidence, it was however accepted that he had raised being at that house in a record of interview, which was not for reasons unexplained, tendered in evidence. These considerations therefore are neutral in the circumstances.
[79] (2002) 210 CLR 285 [19], [52].
[80] Dyers above at [17-18].
Even though the court retains fundamental misgivings about the evidence of Mr Newchurch, it remains necessary to stand back and to analyse the evidence that it is prepared to act upon in order to determine the central question of whether the charge against him has been made out beyond reasonable doubt: R v Daniel.[81]
[81] [2010] SASCFC 62.
In the result it comes down to this. There is the objective evidence that Mr Newchurch was in possession of the stolen vehicle and several items unquestionably taken from the Unit that morning, and his own admission that he was in possession of the vehicle within a few hours of the robbery.
It is known that the trespass took place around day-break. ML spoke of being woken in the ‘early morning between, I think, 5, 5 o’clock, 4 to 5 … it was still relatively dark …’,[82] whereas AK described being on the upstairs balcony when ‘it was still kind of dark … - the sun was coming up’.[83] Constable Randle said that the tasking to attend the Unit came at 6.15 am and that he got there within five minutes.[84] A certificate tendered by counsel for Mr Newchurch under the Proof of Sunrise and Sunset Act 1923 (SA) proves that sunrise was at 6.43 am on 26 August 2012 (Exhibit D20). In light of this evidence the trespass probably occurred around 6.00 am, a time more favourable to Mr Newchurch than any later time.
[82] T37.25-27.
[83] T61.21-.23.
[84] T88.30-89.9.
His evidence as to when he first came into possession of the Hyundai Getz is vague and confusing. He described leaving Dave’s house in the yellow Hyundai Getz ‘in the morning – the sun was up’,[85] ‘an hour after Aaron came back’.[86] He conceded that when Aaron returned to the house ‘the sun was still down’.[87]
[85] T278.33-.38.
[86] T282.17-.24.
[87] T282.19-.24.
On the basis of this evidence he must have come into possession of the stolen Hyundai Getz by no later than, say 8.00 am, once again giving the benefit of any reasonable doubt to Mr Newchurch. That allows some 1¼ hours from the statutory sunrise and receipt of the vehicle. Assuming it was stolen just before 6.00 am and that Aaron arrived before 6.43 am, the period of time between the two is roughly two hours, or a little bit longer.
But whatever the time period involved, there is no reasonable doubt on his version of the events that he came into possession of the Hyundai Getz and the items of personal property positively identified as belonging to ML, within two hours or thereabouts of the offenders fleeing the Unit.
His explanation and account of how this situation came about is inherently unlikely and therefore rejected for the reasons given earlier. Viewing the proven circumstances objectively, there is no reasonable hypothesis consistent with innocence. The proximity in time between the charged events and his possession of the incriminating property, means there is no reasonable doubt other than that Mr Newchurch was one of the two intruders in the Unit that morning, that he was complicit in the theft of items of personal property stolen therefrom and that he must have been one of the two people in the Hyundai Getz stolen from outside the Unit, whether the driver or the passenger does not matter.
As mentioned earlier the objective evidence is not seriously in dispute (apart from that concerning the tool marks said to have been around the laundry window), so that there can be no doubt that the other elements of Counts 1-3 are established. The evidence plainly establishes a trespassory intrusion into the Unit and knowledge of the presence of a person in it by virtue of the verbal exchange and threat referred to earlier. Likewise there is no doubt that the items of personal property and the Hyundai Getz were taken without consent and with the intent of disposing of them regardless of the owner’s rights. No submission was made and no evidence adduced, suggesting Mr Newchurch acted involuntarily or was incapable of forming the requisite mental states of mind on account of his drug ingestion that day.
Verdicts
For the above reasons Mr Newchurch is found guilty on Counts 1 to 3 inclusive on the Information filed on 16 September 2013. Verdicts will be entered accordingly. The finding of no case to answer against him on Count 4 thereof is affirmed. Mr Wanganeen is found not guilty on Count 6 and a verdict of acquittal is entered accordingly.
Mr Newchurch is now entitled to be heard in relation to the appropriate sentences, including that for the firearms offence charged on Count 5, to which he already pleaded guilty.