Regina v Roberts

[1999] NSWCCA 95

Reported Decision: 106 A Crim R 67

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Roberts [1999] NSWCCA 95
FILE NUMBER(S):	CCA 60646/98
HEARING DATE(S):	12/04/99
JUDGMENT DATE:	3 June 1999
PARTIES :	Reginald George Roberts (Appellant) Regina (Respondent)
JUDGMENT OF:	Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0276
LOWER COURT JUDICIAL OFFICER:	C. E. Backhouse QC, DCJ

COUNSEL:	R. Kent QC (Appellant) C. Maxwell QC (Respondent/Crown)
SOLICITORS:	Byrne & Clark (Appellant) R. Gray (Respondent/Crown)
CATCHWORDS:	Criminal Law - application for leave to appeal under s5F Criminal Appeal Act - permanent stay of trial in District Court refused - loss of opportunity for defence to produce evidence
ACTS CITED:	Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	Jago v District Court (NSW) (1989) 168 CLR 23 R v Tolmie (CCA unreported 7 December 1994)
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APEAL

NO. 60646/98

WOOD CJ at CL
HIDDEN J
SMART AJ

Thursday 3 June 1999

Regina v Reginald George ROBERTS

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Hidden J and Smart AJ. I agree with their reasons and the orders proposed.
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IN THE COURT OF

CRIMINAL APPEAL

60646/98



WOOD CJ at CL
HIDDEN J
SMART AJ

Thursday 3 June 1999

Regina v Reginald George Roberts

Reasons for judgment

2 HIDDEN J : The applicant, Reginald George Roberts, awaits trial in the District Court on charges of publishing a false statement with intent to obtain money (s178BB of the Crimes Act 1900) and stealing a motor vehicle (s154AA). He applied for a permanent stay of the proceedings before Backhouse DCJ, who refused the application. He seeks leave to appeal against that decision, pursuant to s5F of the Criminal Appeal Act 1912.
3 The first charge alleges that in September 1990 at Nowra the applicant made a false insurance claim on the basis that a Kenworth truck had been stolen, when in fact it had not. The second charge alleges that he stole a Commodore sedan at Lithgow in February 1992. The Crown case is founded primarily upon evidence that in mid-1994 a Kenworth truck and a Commodore sedan were found in the possession of the applicant at premises in South Australia. It is alleged that the truck is the same vehicle which the applicant had claimed was stolen in 1990, and the Commodore is the vehicle which was stolen in 1992. For those propositions the Crown relies upon expert evidence.
4 Both vehicles were examined by Constable Peter McKenzie of the South Australia Police Technical Services Branch, whose training included the examination of motor vehicles. As to the Kenworth truck, he found that the engine number on the Caterpillar engine had been obliterated, as had the chassis number on the front right chassis rail. When he examined the identification plate (or compliance plate) attached to the right-hand side fire wall, he found that an attempt had been made to remove the chassis number originally stamped on that plate and another number had been stamped over it.
5 He removed the identification plate from the vehicle for microscopic examination. He was able to determine that the chassis number originally stamped on the plate was 406382, which proved to be the chassis number of the vehicle which the applicant had reported as stolen. Also found at the applicant’s premises in 1994 was a set of steel marking stamps for the impression of numbers onto metal, and the constable was able to report that several of those stamps had been used to insert the false chassis number on the identification plate.
6 As to the Commodore sedan, he found that the original compliance and vehicle identification plates had been removed and plates from a similar model vehicle had been attached. The engine number on the left side of the engine block had been obliterated and the chassis number, located on the top left side of the dashboard behind the front windscreen, had been concealed or removed. However, he was able to find a vehicle identification number on a broadcast sheet under the carpet on the passenger’s side and also behind the front left headlight. That number, 503029, was found to belong to the vehicle stolen at Lithgow.
7 In an initial report, Constable McKenzie noted that both vehicles had been reported stolen and recommended that they be retained. Nevertheless, they were disposed of later in 1994 and, inexplicably, it appears that neither of them can now be traced. It is primarily this fact which gave rise to the application for a permanent stay. Evidence was led before Backhouse DCJ of the process of identification of a Kenworth truck, to which I now turn. I shall deal with the Commodore sedan later.
8 Mr Alan Stead, National Service Manager of Kenworth Trucks, gave evidence. He explained that the company’s trucks are custom built and that most of their components, including, for example, transmission and axles, have their own serial numbers. For each truck comprehensive documentation setting out its components, known as a “bill of material”, is prepared, and the company keeps microfiche records of them. He said that, to identify a particular vehicle, one would have to check not only the chassis number and engine number but also the serial numbers of all the major components.
9 He saw the chassis number as a very important reference, describing it as “our bible”. However, he explained that, if the chassis number were discernible only from the identification plate, it would not provide reliable identification of the vehicle as the plate could have been removed from another truck. We received in evidence the transcript of Constable McKenzie’s evidence at the committal proceedings, although it is not clear whether this material was before her Honour. There, the constable had said that his identification of the truck was entirely dependent upon the identification plate, and the plate appeared to have been riveted on to the fire wall after the new numbers had been punched onto it. Of course, this does not necessarily mean that the plate had come from another truck: it could have been removed from that truck and been replaced after the attempt to alter the chassis number.
10 Mr Stead went on to explain that the various component parts could be transferred from one truck to another. As he put it, “Kenworth trucks are a meccano set, anything can be changed around on it”. Hence the need to check all the parts bearing serial numbers to ensure a reliable identification of a vehicle. Her Honour also had an affidavit of Mr Raymond Cool, who was experienced in the recovery and repossession of trucks over a lengthy period. That affidavit was not before us, but its effect was summarised in her Honour’s reasons in this way:
In effect he stated the only way to identify a truck is to examine the totality of it; every item taken together identifies the truck. …It is too simplistic to look at major components.
11 Accordingly, argued counsel for the applicant, Constable McKenzie’s examination of the truck was inadequate and, as the vehicle cannot now be located, it is not possible to conduct the sort of detailed examination recommended by Mr Stead and Mr Cool. The applicant cannot have a fair trial, it was said, because he has been deprived of the opportunity to establish that the truck found in his possession is not the one which he had reported stolen. It was pointed out that it is the behaviour of the prosecution authorities which has put him in this position.
12 The Crown prosecutor submitted that the result of any further examination of the truck is purely a matter of speculation. He also relied on the apparent strength of the Crown case. It would be a remarkable coincidence, he said, for the identification plate from the vehicle which the applicant reported stolen to have later found its way on to the vehicle found in his possession. He emphasised the significance of the fact that steel marking stamps found at the applicant’s premises had been used to stamp a false chassis number on that plate.
13 Her Honour accepted that the Crown case is a strong one, adopting a submission by the Crown prosecutor “that while the accused has no onus whatsoever the fact of the matter is that without some explanation, if that is all the jury has then it seems impossible to envisage them concluding that it wasn’t the same vehicle”. However, this was not her only reason for refusing the application. She commented upon the seriousness of the alleged offences and the public interest in the prosecution of people suspected of crimes of that kind. Further, she did not consider that the applicant’s loss of an opportunity to examine the truck resulted in such unfairness as to warrant the permanent stay of the proceedings. She was of the opinion that “the procedures and discretions available to a trial judge” would be sufficient to remedy any unfairness. Her Honour was guided by the principles enunciated by Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at 30ff and, in particular, the Chief Justice’s observation (at 34) that a permanent stay should be ordered “only in an extreme case…”.
14 No evidence was led about the assembly of Holden Commodores (which, presumably, are mass produced). Nevertheless, the same submission was made as to the charge relating to the Commodore, that is, that the applicant was unable to have it more thoroughly examined. That argument met the same fate. It seems that the application was based also on the delay since the applicant’s arrest, but that was not pressed as an independent basis for a permanent stay. Nor was it in this Court.
15 Before us, senior counsel for the applicant submitted that her Honour’s discretion had miscarried. As to the charge involving the truck, he argued that her Honour based her decision that there was no unfairness warranting a stay purely upon her finding that the evidence was sufficient to warrant a verdict of guilty. Reference was also made to the passage from the judgment, quoted above, in which her Honour said that it seemed impossible to envisage the jury “concluding that it wasn’t the same vehicle”. This was said to have reversed the burden of proof, the true question for the jury being whether they were satisfied beyond reasonable doubt that it was the same vehicle. Clearly, that is so but, reading the passage as a whole, I am satisfied that this was a slip of the tongue and it does not persuade me that this Court should intervene.
16 Her Honour was called upon to make a discretionary judgment, and I can detect no error in her approach to the matter. It is true that she referred to the strength of the Crown case but, as I have said, that was not the only foundation for her conclusion. She dealt appropriately with the potential unfairness to the applicant, having regard to the public interest in the fairness of trials, on the one hand, and the prosecution of persons charged with serious offences, on the other.
17 For the same reasons, it cannot be said that her Honour’s discretion miscarried in relation to the charge concerning the Commodore. Indeed, senior counsel for the applicant realistically conceded that, as to that charge, he was on much weaker ground.
18 Certainly, it is regrettable that the Kenworth truck was not examined more thoroughly and that both vehicles were not retained, although whether further examination of either of them would have assisted the defence case will never be known. No doubt, the loss of that opportunity will be the subject of comment by counsel for the applicant at his trial and will found an argument that the evidence is inadequate to identify the vehicles (or, at least, the truck). At the end of the day, however, this is one of a number of cases in which the unavailability of evidence does not warrant the grant of a permanent stay: see R v Tolmie (CCA unreported, 7 December 1994) and the cases referred to at p5 of the judgment of Hunt CJ at CL.
19 I would propose that leave to appeal be granted, given the unusual circumstances of the case, but that the appeal be dismissed.

IN THE COURT OF
CRIMINAL APPEAL


60646/98

WOOD CJ at CL
HIDDEN J
SMART AJ


Thursday 3 June 1999

REGINA -v- REGINALD GEORGE ROBERTS

JUDGMENT
20 SMART AJ : The applicant seeks leave to appeal against the refusal of the District Court to stay permanently the hearing of two charges against him, firstly, that at Nowra about 28 September 1990, with intent to obtain money, he published a statement in an insurance claim that motor vehicle UUJ601 (a Kenworth prime mover with South Australian Registration) had been stolen, which was false in a material particular in that to his knowledge it had not been stolen. The second charge alleged that at Lithgow on 20 February 1992 he stole a 1991 Holden Commodore SS sedan AAF 48Y (NSW registration) the property of Neil and Emmery Timlin.
21 In 1994 the applicant was living in South Australia. About 19 May 1994 consequent upon complaints made to the South Australian Police they seized four vehicles under the applicant’s control. The applicant was arrested that day in relation to the two subject charges and on other allegations. On 23 May 1994 Constable P R McKenzie, a police vehicle examiner, examined a Holden Commodore. On 24 May 1994 he examined a red and white Kenworth prime mover and took a number of photographs. He also examined the two other vehicles seized from Roberts. On 20 June 1994 Constable McKenzie made a brief report of his examination of each of the four vehicles. As to the Kenworth prime mover and the Holden Commodore he noted the salient features and concluded that the Kenworth and the Commodore appeared to have been stolen. He suggested that they should be retained.
22 On 1 July 1994 the applicant was again arrested in relation to the subject charges. On 5 July 1994 pursuant to an extradition order he was brought in custody from South Australia to New South Wales. On 19 July 1994 Constable McKenzie carried out examinations on three sets of steel marking stamps which had been found in premises associated with the applicant. He said that steel marking stamps numbered 0, 3, 4, 5, and 6 from one of the sets were used to produce the re-stamped numbers on the compliance plate of the truck.
23 Sometime prior to 17 August 1994 the police brief was served and included Constable McKenzie’s brief report of 20 June 1994. The police are unable to say when the detailed statements of 8 August 1994 prepared by Constable McKenzie were served. As to the Kenworth prime mover Constable McKenzie stated that the original chassis number had been ground off from the chassis rail in an attempt to hide the identity of the vehicle, that the engine number on the engine block had been obscured by using a tool to punch small depressions over the number and making the area appear similar to the cast surface on the remainder of the engine block and that an attempt had been made to obscure the original chassis number stamped into an identification plate attached to the fire wall and another number had been stamped over the top of the original in an attempt to re-identify the prime mover. The stamps used were those found in the applicant’s possession.
24 While Constable P R McKenzie was aware that other tests could be done, he regarded those done as sufficient. Constable McKenzie’s identification of the “new” stamps on the identification plate as having come from stamps in the applicant’s possession was telling. The applicant was in difficulty explaining how a red and white Kenworth prime mover with the chassis and engine numbers obscured and a compliance plate with the same chassis number on the compliance plate as that of the Kenworth prime mover which he reported stolen in 1990 and with numbers superimposed on the plate with stamps found in his premises came to be in his possession in May 1994.
25 The applicant sought to overcome these problems by evidence as to the frequent replacement of parts in prime movers, their individual nature and construction and the inspections which could have been done, for example, obtaining the individual numbers on axles and the transmission.
26 As to the Commodore, Constable McKenzie reported that there had been an attempt to change its identity by removing the original compliance and vehicle identification plates and attaching plates from a similar Commodore, by obscuring the original engine number by using a tool to punch holes in the engine number pad and by covering or removing the chassis number located behind the windscreen. Constable McKenzie located a vehicle identification number on a broadcast sheet under the carpet on the passenger’s side of the vehicle and on a metal plate behind the front left head light. The number on the sheet and the plate was identical. It was also the chassis number of the Commodore reported stolen at Lithgow on 20 February 1992. There was a photograph of the broadcast sheet but not of the metal plate behind the front left headlights.
27 It was common ground that neither the Kenworth prime mover nor the Commodore were returned to the applicant. We were told that the insurer which had met the applicant’s claim on the Kenworth prime mover asserted its entitlement to the prime mover seized in 1994 and obtained it. It was sold in November 1994. The applicant has not commenced any proceedings against the insurer nor taken any steps to recover the prime mover or damages in lieu of the prime mover. The only suggested explanation was that criminal proceedings were pending.
28 The information as to the Commodore was even more sketchy. We were told that it went to somebody other than the applicant. The insurer probably asserted a claim to it and it was probably sold. The applicant has not commenced proceedings against the insurer.
29 The committal proceedings were heard between 20 and 22 March 1995. On the latter date the applicant was committed for trial. The applicant did not seek to have the vehicle examined at any stage before or during or at the conclusion of the committal proceedings. On 7 September 1995 the matter was fixed for trial on 24 June 1996. That trial date was vacated on 13 May 1996. On 26 June 1997 the trial was fixed to begin on 5 January 1998 but that date was subsequently vacated. On 4 December 1997 the trial was fixed to commence on 29 September 1998. Until early August 1998 the applicant had been represented by Peter Ash and Associates, Solicitors, Sydney. On 13 August 1998 the applicant instructed his present solicitors to act for him in these proceedings. On 4 September 1998 the applicant’s present solicitors asked when and where they could have the prime mover and the Commodore examined. They were told by the Crown that neither vehicle could be located.
30 A Kenworth prime mover is likely to have a substantial value and the Commodore is likely to have more than a minimal value. The persons apparently entitled to the vehicles could not be expected to wait some years to obtain them. The commercial loss would be appreciable especially as the prices of most vehicles tend to decrease as they age. Nor could the police be expected to hold the vehicles for some years on the off chance that the applicant may wish to examine them. I have some difficulty with the proposition that an accused does not have to act in a timely way. Any examination should be held within a reasonable time. Once the applicant received the Crown brief with Constable McKenzie’s report he knew what was being alleged. The statements made the position even clearer. Having taken no steps to request an examination until early September 1998 the applicant is in some difficulty complaining about not being able to examine the vehicles. That is a delay of four years. An accused should not proceed on the basis that the use of assets of others will be frozen until a trial is held, especially where they have a substantial value. If he wishes to have tests or inspections carried out they should be done with reasonable promptitude. Delays in criminal trials in New South Wales are well and widely known.
31 For the proposed earlier trials it was apparently not considered necessary or desirable to have the vehicles inspected. When the delay in the request to have the vehicles examined is coupled with the lack of action by the applicant to recover either vehicle or damages in lieu thereof, the complaint that the applicant has been deprived of the opportunity of a fair trial lacks substance. The applicant cannot complain of self inflicted losses. The applicant does appear to have been experienced in dealing with motor vehicles.
32 I add two comments. The fact that items such as vehicles cannot sensibly be retained until trial means that the prosecution’s inspections should be thorough. It is also desirable for a record to be kept of where the goods (including vehicles) are, that is to whom they have been sold and where they are being kept. This may pose practical difficulties once the person to whom the police have delivered the goods disposes of them.
33 The applicant relied heavily on the evidence of Mr Alan Stead, National Service Manager of Kenworth Trucks. His evidence was to this effect. The company’s trucks are custom built and most of the major components have their own serial numbers. For each truck a “bill of material” is prepared setting out its components and the company keeps microfiche records of them. The chassis number was an important reference but if it was discernible only from a removable plate (such as an identification plate) it was of much reduced value. To identify a particular vehicle it was necessary to check the chassis number and the serial numbers of all major components. The various components can readily be transferred from one truck to another.
34 Constable McKenzie was dependent on the identification plate which appeared to have been riveted onto the fire wall of the vehicle after the new numbers had been punched onto it. That had to be taken in conjunction with the evidence as to the set of stamps in the applicant’s possession.
35 The evidence of Mr Raymond Cool, who was experienced in the recovery and repossession of trucks over a lengthy period was to the effect that the only way to identify a truck is to examine every item and that it was too simplistic to look at major components. In my view much must depend on what the examination conducted and the other evidence reveals.
36 The applicant complained that he could not have a fair trial because the inspection of Constable McKenzie was not sufficiently comprehensive and he could no longer have the vehicle examined. He had lost the opportunity to show or at least raise a reasonable doubt that the truck found in his possession was not the one which he had reported stolen. He contended that this was the fault of the prosecution in not retaining the truck. I see no fault on the part of the prosecution authorities in releasing the truck. As earlier mentioned, the fault lay mainlywith the applicant for not having a timely examination of the vehicle.
37 The applicant contended that if the Crown case on the present materials appeared to be a strong one that underlined the need for the applicant to have the vehicle examined.
38 The judge seems to have decided the application on these grounds
(a) there was sufficient evidence to go to the jury which could infer that the truck reported missing in 1990 was that seized in 1994 and that if the evidence remained as it was the jury would so infer.
(b) the alleged offences were serious and there is the public interest in those committing serious offences being prosecuted
(c) this was not an “extreme case” where a permanent stay should be granted. The procedures and discretions available to a trial judge would be sufficient to cure any unfairness or prejudice to the accused that may arise in the trial. The loss of the opportunity to have the truck examined on the applicant’s behalf did not result in such unfairness as to warrant a stay. It was unknown what a further inspection of the truck might disclose. Even if it appeared from the serial numbers that components had come from diverse places, perhaps emanating from different repair work or shops, there was still sufficient for the jury to infer that it was the same truck in 1990 and 1994.
39 It was open to the judge to take this view. She could have taken an even stronger view based on the lack of action by the applicant to recover the vehicle and damages and his failure to request an examination at a much earlier date.
40 The applicant criticised this sentence in the judge’s reasons:
“I also accept his [the Crown Prosecutor’s] submission that while the accused has no onus whatsoever the fact of the matter is that without some explanation, if that is all the jury has then it seems impossible to envisage them concluding that it wasn’t the same vehicle.”
41 It was submitted that the judge had mis-stated the onus of proof, the true question being whether they were satisfied beyond reasonable doubt that it was the same. The judge was not purporting to make a comprehensive statement of the law. She was accepting a factual comment made by the Crown which used the double negative. The words “impossible to envisage them concluding that it wasn’t the same vehicle” mean when put in positive terms that it is hard to envisage the jury concluding that the 1994 vehicle was other than the 1990 vehicle. I do not think that the particular form of words used is, in the context, of any consequence.
42 The applicant’s case as to the Commodore was significantly weaker than its case as to the truck. It was not suggested that Commodore vehicles are custom built The number found on each of the broadcast sheet and on a metal plate behind the front left head were identical. That number was the same as the last 6 digits of the chassis number of the stolen vehicle. There is no sufficient basis for the grant of a stay of the court proceedings based on the Commodore.
43 The judge did not err in the exercise of her discretion. I would go further. In my opinion the decision which she reached was correct.
44 The application for leave to appeal should be granted. The appeal should be dismissed.
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