R v Peter Paul Flanigan No. SCCRM 96/430 Judgment No. 6114 Number of Pages 9 Criminal Law

[1997] SASC 6114

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, MILLHOUSE and DEBELLE, JJ

Criminal law - evidence - judicial discretion to admit or exclude evidence - appellant convicted of larceny as a servant - appellant cautioned and chose not to answer questions but agreed to accompany police while they searched his house - during search appellant volunteered information about ownership of certain property and the detective then asked him questions on that subject - no objection to evidence being led at trial - whether trial Judge should have excluded evidence on own motion - propriety of Judge admitting evidence, without objection, of a possible attempt by appellant to suborn a witness - sufficiency of Judge's direction on multiple counts - lies direction - conviction upheld but sentence reduced. Moriarty v London, Chatham and Dover Railway Co. (1870) LR 5 QB 314; R v Watt (1905) 20 Cox CC 852, applied. R v Harris (1995) 64 SASR 85; Bunning v Cross (1978) 141 CLR 54; Attorney-General's Reference (No. 3 of 1987) (1987) 48 SASR 1; Harris v R
(1990) 55 SASR 321; R v Hooper (1995) 64 SASR 480; R v Smith (1987) 44 SASR
587, considered.

ADELAIDE, 17 March 1997 (hearing), 29 April 1997 (decision).

#DATE 29:4:1997

#ADD 5:5:1997

Applicant: Peter Flanigan

Counsel - Ms A M Vanstone QC

Solicitors:

Patsouris and Associates

Respondent R:

Counsel - Ms W J Abraham

Solicitors - DPP (SA)

Order: - appeal against conviction dismissed. Appeal against sentence allowed.

COX J

1. The appellant was tried in the District Court on an information that charged him with thirty-four counts of larceny as a servant (Criminal Law Consolidation Act 1935 s176) between January 1990 and October 1995. The prosecutor entered a nolle prosequi with respect to two of the counts in the course of the trial. As to the rest, the jury found the accused guilty of twenty-five counts and not guilty of seven. The Judge imposed a global sentence of six years' imprisonment with a non-parole period of two years. The appeal is brought against the convictions and also the sentence.

2. The appellant was employed as a casual delivery driver by Renniks Hire Pty Ltd which was in the business of hiring marquees and furniture and other equipment for special functions. The appellant, often with an off-sider, would take the equipment to the customer's premises and see to the erection of any marquee that had been hired, and then after the function pick up the hired material and take it back to the warehouse. For this he was paid wages. The appellant also had a truck of his own and sometimes Renniks would engage him as a contractor to do a particular job using his own truck. Evidence was given about the system that Renniks had in place for checking goods on hire out of the warehouse and then back into it afterwards. In October 1995 Renniks complained to the police that one of its marquees was being used at a house at Kensington Gardens without its authority. It transpired that the appellant had supplied the marquee free of charge to a fellow employee for a social function. It was assembled from a collection of used vinyl tarpaulins that the appellant had stored at his brother's business premises. The appellant said that Renniks had thrown the tarpaulins away because they were no longer suitable for hire. The police made further enquiries, including a search of the appellant's house, and the result was this large number of charges. The appellant was said to have stolen marquees and tables and chairs and a power drill and coloured lights and other goods or materials used in Renniks' business. He put forward a number of explanations for his possession of the property - that some of it had been given to him by Renniks after it had been dumped because it was worn out, that some items had been stored at his house for safekeeping when he realized that another employee had needlessly loaded them on to his truck, and that other items were in his possession because he simply had them for safe keeping between jobs with no intention of retaining them. He also said that some of the property that he was charged with stealing, and this included the drill, had been acquired by him legitimately as his own personal property from sources unconnected with Renniks. Witnesses from Renniks gave evidence that the company had on occasions dumped worn out or superseded equipment into a bin and that staff were permitted to take whatever was dumped into the bin, but they said that none of the items that the appellant was charged with stealing had been discarded by Renniks in this fashion. The appellant gave evidence in his defence explaining, in the way I have indicated, how he came to be in possession of the property. The jury convicted him of most counts.

3. Ground 1 in the notice of appeal complains that the trial Judge erred in admitting evidence of conversation between the police and the appellant after the appellant had declined to answer questions.

4. Evidence was given by Detectives Fry and Weber that they were called in by Renniks on 3 October 1995. They made some enquiries and then approached the appellant. They told him they were investigating allegations that he had stolen property from Renniks, and they cautioned him. The appellant said he understood. Detective Fry said, " The management of Renniks alleged that property was located at 25 West Terrace, Kensington Gardens, today. This property, a marquee, belongs to Renniks. Further Renniks' property was located at 16-18 Nixon Road, Wingfield. Do you know how these items came to be at these locations? " The appellant said, " Yes. I put them there after I had asked Renniks after 6, 7 years, or even longer, if I could have them. Am I going to be charged or something? " Fry said, " I am making enquiries. An allegation has been made that you have stolen these items. I wish to ask you some questions to establish your explanation regarding the property. Do you understand? " The appellant said, " I believe I better get someone. " Fry then suggested that he should obtain some legal advice and he gave the appellant the use of the telephone. Evidently the appellant made an attempt to contact someone. He told Fry that he did not want to speak with him further about the allegations until he had legal advice, and he thought that would be the following day. Fry said, " I wish to search your house for further stolen property. Do you understand?The appellant said " Yes. " Fry said, " You may seek legal advice in regard to that now if you wish. " The appellant said, " No. " Fry said, " Are you prepared to accompany us to your premises while a search is conducted? " The appellant said, " Yes. " Fry reminded the appellant that he was not under arrest. The appellant and the detectives then went to a house at Plympton North where the appellant was living. They went into a family room. Fry saw three chairs and a table near the bar area. The appellant said, evidently with respect to those things, " Just these. " Fry said, " Is there any further property belonging to Renniks? " The appellant said, " Just a trestle. " They went out to a shed. Inside the shed the appellant said, " The trestle is behind here, " and indicated a trestle in the shed with " Renniks Hire " on it. Weber said, " Is there any other Renniks gear in here? " and the appellant said, " No. " The detectives found other gear in the shed marked " Renniks Hire " . One item was an orange plastic container. The appellant volunteered the statement, " I've never seen that before in my life. " Weber looked at some marquee frames and while he was doing so the appellant said, " They have set me up. I have never seen them before. " The search continued. Inside the house, in a spare bedroom, the police saw a Mikita power drill. (The evidence at the trial was that this was not an ordinary handyman's drill but a special kind of drill that Renniks used to screw wooden flooring onto bearers inside their marquees. It was said that one of the Renniks' drills had gone missing soon after it had been bought.)Fry said to the appellant, " Is this drill yours? " The appellant said, " It could have RH on it. " The appellant inspected the drill. So did Weber.Weber asked the appellant, " Whose drill is it? " The appellant said " Mine. " Weber said, " It hasn't got RH on it. Why would it have RH on it? " The appellant said, " Don't know. " Weber said, " Did you buy it? " The appellant said, " Yes. " Weber said, " Who did you buy it from? " The appellant said, " I can't remember. " At the end of the police search Fry said to the appellant, " A search of the house has been conducted. We have located the following items: the trestle, four marquee frame joints, a Renniks crate containing coloured lights, the cartridge box and drill and the crate with power cords. Do you agree? " The appellant said, " Yes. " Fry said, " In the family room is a table and four chairs. Do you agree with that? " The appellant said, " Yes. " Fry said, " Do you wish to comment about these items as we are going to seize them. You are reminded you are not obliged to as your reply may be given in evidence. " The appellant said, " I'd better not say anything. " The appellant signed Fry's notebook. There was no complaint at the trial about the accuracy of the detective's account.

5. Fry and Weber gave evidence at the trial of the statements and answers of the appellant in the course of the search. The appellant was represented by counsel and no objection was taken to the evidence being given. However, it was argued (by different counsel) on the appeal that the evidence should have been excluded on the ground that the appellant had already made it plain that he did not wish to talk to the police until he had had legal advice.

6. The general rule that prohibits a police interrogation of a suspect after he has exercised his right to silence is important and should be strictly enforced by the courts. Thus, it is said, the prosecution should not have led this evidence and the learned Judge, on their attempting to do so, should have intervened of his own motion and excluded it. I do not think the position is as simple as that.

7. It was understandable in the circumstances that the police should want to search the appellant's house and that they should want to do so as soon as possible. It was prudent of them, in the appellant's interests and their own, to invite him to accompany them. (Indeed, they had already been to the house at North Plympton and found no-one home.) His accompanying the police on the search did not, of course, amount to any waiver of his right to silence. However, it was the appellant who spoke first at the house. Notwithstanding his saying earlier that he did not want to talk to the police about the theft allegations until he had had legal advice, he volunteered with respect to the table and chairs, "Just these", in circumstances that the jury was entitled to conclude amounted to an acknowledgment by the appellant that the table and chairs belonged to Renniks. It seems to me, as it probably seemed to defence counsel at the trial, that this amounted to a voluntary and volunteered modification by the appellant of his earlier position. It was not provoked by a question or by any deception or other impropriety on the part of the police or, apparently, any misunderstanding by the appellant. A suspect's stated intention not to answer questions is not as a matter of law irreversible, although there will be cases in which a stated or implied change of mind should be treated with reserve and not acted upon without at least careful explicit warning, possibly more. R v Harris (1995) 64 SASR 85. In my opinion, it was not improper in the circumstances of this case for Fry to respond to the appellant's statement by asking, "Is there any further property belonging to Renniks?" No doubt it suited the police to have the appellant tie himself down, if that is what he was disposed to do, but it also gave the appellant the opportunity of making the ambit of his volunteered statement ("Just these") quite clear. The form of Fry's question was unexceptionable and there is no suggestion that the appellant did not understand it or, indeed, did not understand that he was not obliged to answer it. As it happens, he gave an answer ("Just a trestle") that the prosecution used against him at the trial, but that did not make the evidence inadmissible or its use improper or unfair.

8. When they got to the shed it was the appellant, again, who spoke first ("The trestle is behind here"), although it could be said that that added little to the answer he had given inside. However I would hold again, and for the same reason, that Weber was entitled in the circumstances to ask him, "Is there any other Renniks' gear in here?" When they got to the crate and lights it was the appellant again who spoke first ("I've never seen that before in my life") and he made another volunteered statement when they got to the marquee frames. It seems to me that the police were probably justified in concluding from all this that the appellant was waiving altogether his right to silence on the narrow subject of the identification of any of Renniks' property at the North Plympton house. If so, that entitled the prosecution to lead all of the appellant's answers and statements on the subject. The police made no attempt to question the appellant about anything else.

9. The prosecutor argued to the jury at the trial that the appellant lied to the police in the course of the search, but that, as I have indicated, cannot dictate the answer to this belated issue. The evidence was relevant and admissible, and it is not at all obvious that the appellant, in the particular circumstances of this case, was entitled to have it excluded in the exercise of a Bunning v Cross discretion. Of course, the Judge was not asked to exclude it. The question of the detectives' bona fides or of the appellant's own state of mind was not explored. It was not the sort of case, in my opinion, in which the Judge was obliged to take the initiative in the matter notwithstanding that the appellant was represented. The status of evidence in a criminal trial, admissible though possibly objectionable but in fact not objected to by the defendant or his counsel, was not debated before us. Plainly there is a policy factor to be considered in this situation. In my view, the appellant has failed to make good this ground of appeal.

10. Ground 2 complains that the learned trial Judge erred in admitting evidence amounting to an alleged attempt to pervert the course of justice in the form of a conversation said to have taken place between the witness McQuade and the appellant.

11. Mr McQuade was the owner of Renniks between February 1994 and September 1995. He said in evidence that on the night of 3 October 1995 (which was the day the police spoke to the appellant and searched his house) the appellant telephoned him. His evidence was -"I had a phone call from Peter. Peter stated he thought he was going to be in a bit of trouble and that a couple of items of Renniks were found in his possession and he suggested that I might have given them to him and as I remember that was perhaps the contents of the discussion. He mentioned that he thought I'd be getting a phone call from the Police Department and would I suggest to them that the items were given to him."He said that the appellant rang him again a couple of days later."The spirit of the conversation would have been that I'm not lying for anybody and that there was no items of hire equipment that I had given Peter Flanagan or any other employee."The words, "I won't lie for anyone", were McQuade's. In cross-examination he agreed that the word "lie" was not used - "He suggested that I say that they were given to him."

12. McQuade's evidence was that the only property he ever gave the appellant were two football passes.

13. The appellant said in evidence that he telephoned McQuade after the detectives left his house. He said he did not recall asking McQuade if he would tell the police that the property they had found in his possession was given to him by McQuade. He did not recall that the spirit of his conversation with McQuade was that he asked McQuade to lie for him to the police and he did not recall McQuade telling him that he was not prepared to lie for him. Evidently he did not recall what he said to McQuade. He was upset at the time.

14. Counsel for the appellant did not object to McQuade's evidence at the trial. However, it was submitted on the appeal that the Judge should not have admitted the evidence - while it had some relevance to the matter of the appellant's credibility, its probative value was so limited that it should have been excluded as a matter of discretion.

15. It is generally open to the prosecution to prove that an accused person has attempted to suborn a Crown witness. It is treated as an admission by conduct. Moriarty v London, Chatham, and Dover Railway Company (1870) LR 5 QB
314, R v Watt (1905) 20 Cox CC 852. McQuade could not give the appellant's exact words but that did not make his evidence inadmissible. The evidence McQuade gave was not as explicit as it might have been, perhaps, but it was open to the jury to find that the appellant was attempting to induce McQuade to give a false account of the matter. Whether the jury would draw such a conclusion was a matter for them.

16. In his summing up the learned Judge's summarized McQuade's evidence about the telephone conversations and then said -

"Make of that what you will. You will remember, of course, on the other hand, the explanation given to you by the accused. Of course you will also bear in mind what [defendant's counsel] said as to the state of mind that the accused had at that point in time. It is a matter for you to apply your own common sense in judging how would a person feel, bearing in mind the accused in particular and his demeanour as you have seen it in the witness box, and during the course of this case. Is it likely that he would say something which, to say the very least, was a foolish thing to say, if you accept that that is what he said? Was it mere foolishness or, was he attempting, at that point in time, if you accept that that was said, to pervert the course of justice? If you thought that, could you accept that as being a consciousness of guilt."

17. Earlier in the summing up the learned Judge had given the jury a full lies direction and no complaint is made about that. Later he turned to the addresses of counsel and, when speaking of the prosecution case, he reminded the jury of his lies direction. Then his Honour came to the subject of McQuade's evidence. I think it would have been better had his Honour adapted the lies direction expressly to this topic - the telephone evidence was only relevant in so far as it may have indicated a consciousness of guilt - but I am satisfied that this is the way the jury would have understood the direction he gave . The possibly innocent or guilty implications of any improper overture to McQuade were plainly implied, concluding as they did with an express reference to the words "consciousness of guilt" that the Judge had used and reiterated earlier with respect to telling lies. During the appellant's evidence on this topic the Judge gave him a self-incrimination warning, but there is no reason to suppose that the jury might on this account have misused McQuade's evidence. The Judge was not asked to redirect on this or any other aspect of the matter. In my opinion, this ground of appeal is not made out.

18. Ground 3 complains about an amendment that the Judge permitted the prosecution to make to certain counts in the information at the end of the Crown case. All that the amendments did was to change the description of certain allegedly stolen property from "marquee" to "tarpaulin." The evidence was that a marquee is made up of a number of tarpaulins. There was never any doubt about the identification of the items in question; the amendments simply improved their description in the information. They did not prejudice the appellant. They were authorized by s281(2) of the Criminal Law ConsolidationAct. See Attorney-General's Reference (No. 3 of 1987) (1987) 48 SASR 1, 19. There is no merit in this ground.

19. Ground 4 says that the trial Judge erred in failing to direct the jury as to the use it could make on one count of the evidence going to other counts.

20. It is not suggested that these counts were not properly joined in the one information. What is said is that the Judge's warning about misuse was inadequate. The evidence on a lot of the counts was cross-admissible, to rebut the appellant's claim of innocent possession, and I think that was probably the case even where the appellant was claiming that some of the items with which he was charged did not belong and never had belonged to Renniks but were acquired by him from some other source. However, that did not obviate the need for a clear warning to the jury to guard against impermissible prejudice flowing from the joinder of all these charges.

21. What the learned Judge said to the jury was this -

"Well, ladies and gentlemen, you've seen - and, in fact, you have a copy, the finally amended copy of the information - that in all, the accused is now charged on 32 counts of larceny as a servant. Each count, because it charges a separate offence, must be dealt with and treated quite separately by you upon its merits. When ultimately you return your verdicts, you will be asked successively in relation to each count whether you find the accused guilty or not guilty of that charge. It does not follow that where an accused is charged with more than one count, simply because you may be satisfied of guilt of one offence, that the accused is also guilty of any other offence charged in the same information. The charges do not stand or fall together. If separate charges are tried together on the one information - as is the case here - it becomes very necessary to take special care to see that the method by which the guilt of the accused on any count may be established is by only considering the evidence which is offered in relation to that charge and not the evidence in relation to that charge and not the evidence in relation to the information as a whole - except to the extent that such evidence indicates the general relevant background context and sequence of events. You may find the accused guilty of one or more counts and not guilty of the others or guilty or not guilty of both or all of them or vice versa, depending upon the view which you take of the facts."

22. Ms Vanstone, for the appellant, criticized the reference to "the general relevant background, context and sequence of events" as erroneous if not meaningless. I suspect that what his Honour said was, "...the general relevant background - the context and the sequence of events," but it does not really matter, for that is the way the jury would have understood that passage, anyway. And there was nothing wrong about saying that. As one would expect in a case of this sort, different witnesses gave evidence about different counts and some of them in doing so explained how their particular matters fitted into Renniks' general business operations. In that way a picture would have been built up in the minds of the jury about how Renniks ran their business and how it was possible, perhaps, for an employee to steal property without immediate detection. Other background information emerged in the same piecemeal fashion. It was open to the jury to interpret the evidence on any particular count against so much of this background evidence as was relevant to that count. That is all that the Judge was saying and it was unexceptionable.

23. The learned Judge told the jury to consider the evidence on each count separately. He warned them against concluding, should they find the appellant guilty of one count, that he must also be guilty of other counts as well. He told them that charges did not stand or fall together. He warned them to take special care about that. He could have added in so many words that, if they were satisfied that the accused was guilty of a particular offence, they should not act on the footing that he was the sort of person who was likely to commit other such offences. However, in my opinion, the directions on this subject, read as a whole, were adequate. The learned Judge was not asked to redirect on the subject. It is noteworthy that the jury acquitted the accused on some counts.

24. In my opinion, this ground of appeal fails.

25. Ground 5 complains of the lies direction that the learned Judge gave the jury with respect to two or three of the answers that the appellant gave to the police in the course of the search. Prosecuting counsel had suggested to the jury in his address that the answers were deliberate lies and indicated a consciousness of guilt on the appellant's part. The Judge gave the jury a general lies direction with respect to that evidence. It was put to us that he should have said that the alleged lies could only be regarded as touching the matter of the appellant's credibility.

26. I do not think that this ground of appeal can succeed. This Court has said a number of times that juries should be very cautious about inferring guilt from lies told after an accused person realizes that he is under suspicion, but as a general rule the type of lies direction to be given is left to the discretion of the trial Judge. Harris v The Queen (1990) 55 SASR
321, at 323-5, R v Hooper (1995) 64 SASR 480, at 490. Here the learned Judge told the jury that, ordinarily speaking, lies were not evidence of guilt. His application of the standard direction to the circumstances of this case was certainly not unfavourable to the appellant. He was not obliged to confine his direction to the aspect of credibility.

27. Finally, the appellant submitted that the convictions were unsafe and unsatisfactory. It is unnecessary to discuss in turn the alleged imperfections in the evidence in this case or in the way it was presented to the jury, but I have borne the appellant's criticisms in mind when reading the transcript. I can say that I do not think it was unfair to the appellant that the prosecution relied on photographs and witnesses' descriptions of the items allegedly stolen and did not produce the items in court. They had been handed over to Renniks after the charges were laid so that the company could have the use of them in their hire business. The questioning of the appellant in the witness box by prosecuting counsel and by the Judge on the matter of lies was not immoderate or unfair. In my opinion, it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of those charges on which he was found guilty.

28. In my opinion, the appeal against conviction must be dismissed.

29. There remains the appeal against sentence.

30. The learned Judge took a serious view of the matter. He could hardly have done otherwise. The appellant had been found guilty of twenty-five counts of larceny as a servant. The Judge pointed out in his sentencing remarks that the crime involved a breach of trust, and that in this case there was a large variety of items stolen. The total value placed on the goods of which the appellant was found guilty was of the order of $12 000. He noted the appellant's attempt to influence McQuade's evidence. The offences were committed over a period commencing in January 1990 and ending in October 1995, and that qualified the submission from counsel that the appellant was of good character and should be treated as a first offender. It was necessary to mark the community's condemnation of crimes of this kind, and the aspect of general deterrence was important. There was no sign of remorse or contrition. There was no good reason for suspending the sentence. However, in the light of the appellant's age, previous record, good work record and other mitigating factors advanced by counsel his Honour was willing to fix a comparatively short non-parole period. He imposed a global sentence of six years' imprisonment with a non-parole period of two years.

31. We received, without objection, a report by a psychiatrist describing the appellant's experience and medical condition in prison since he was sentenced last October. The report suggested an increased vulnerability by the appellant to imprisonment, but not an extraordinary vulnerability. The opinion was related, at least in part, to the appellant's mental state at the time he was sentenced. Cf. R v Smith (1987) 44 SASR 587. The Court could not interfere with the sentence on this evidence.

32. Ms Vanstone submitted that the head sentence was manifestly excessive. She referred to sentencing levels for substantial and systematic defalcations from employers. She had two particular points to make about the sentencing remarks. First, the assessment of the stolen goods' value appears to have been based chiefly on the figures alleged in the information. However, some at least of the estimates put on particular items by the Renniks witnesses were simply the original purchase prices and, while some of the items were in almost new condition, others were not. A notable case was the Kensington Gardens marquee which was given a value in count 1 of $6 500 but appears on the evidence to have been worth, at least at the time of trial, no more than half that amount. Ms Vanstone was willing to settle for a figure of $6 000 or thereabouts in all but I think that represents an excessive discount. It does appear, though, that the learned Judge's figure of $12 000 is more than the evidence supports. Secondly, the information alleged that these goods were stolen over a period of nearly six years, between January 1990 and October 1995, and the learned Judge has accepted that. However, the information in this respect simply reflects the period of the appellant's employment by Renniks. It is simply not possible to determine from the evidence over what span of time the thefts were made. It is most unlikely to have been in a short burst but one cannot say more than that. If it was, say, only two or three years that would have some effect, though not much, on the allowance to be made for the period of previous good character as well as the reduced seriousness of a shorter stealing period.

33. Ms Abraham, for the Crown, conceded that the head sentence was high.

34. In all the circumstances I am of the opinion that the head sentence was manifestly excessive. I would substitute a sentence of three years' imprisonment, and fix a non-parole period of eighteen months.

35. For these reasons I would make the following orders -

- appeal against conviction dismissed;
- appeal against sentence allowed for the purpose of substituting for the global sentence passed in the District Court a sentence of three years' imprisonment, with a non-parole period of eighteen months, with both head sentence and non-parole period running from 1 February 1997.

MILLHOUSE J

37. I agree.

DEBELLE J

38. I agree that the appeal against conviction should be dismissed for the reasons given by Cox J. I agree that the sentence should be varied as he proposes.