Saunders v Commissioner of Police
[2008] QDC 89
•28 April 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Saunders v Commissioner of Police [2008] QDC 89
PARTIES:
WILLIAM ARTHUR SAUNDERS
Appellant
AND
COMMISSIONER OF POLICE
Respondent
FILE NO/S:
Appeal No 10/07
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 of the Justices’ Act
ORIGINATING COURT:
District Court, Toowoomba
DELIVERED ON:
28 April 2008
DELIVERED AT:
Brisbane
HEARING DATE:
7 December 2007
JUDGE:
Nase DCJ
ORDER:
1. That the appeal from the conviction be dismissed;
2. That the appeal from the sentence orders be allowed in part;
3. That the order for a licence disqualification is deleted from the sentencing orders
CATCHWORDS:
APPEAL AGAINST CONVICTION – FINDINGS OF FACT – whether the Magistrate erred in his primary findings of fact – whether Magistrate was entitled to act on the evidence of identification
APPEAL AGAINST SENTENCE – whether sentence was manifestly excessive – discretion to vary sentencing orders
Cases considered:
R v Turnbull (1977) 1 QB 224
COUNSEL:
Mr R Salehkon for the appellant
Mr M Pollock, solicitor for the respondent
SOLICITORS:
RFG Finlayson and Associates for the appellant
Office of the Director of Public Prosecutions for the respondent
Introduction
Oakey is a pleasant rural town in country Queensland. The name Oakey is taken from the river oaks growing gently along the banks of the river on which the town is built. In summer the air is languid and the days long. As the chronology of events in this case demonstrates, the languor of the town has permeated into the business of policing at the local police station.
On a Saturday evening in late autumn (28 May 05), William Saunders and a Blackiss McKeller pulled into the BP service station at Charleton, on the Warrego Highway. On the findings later made by the magistrate they had hatched a plan to drive off without paying for petrol. A key part of the plan involved the removal of the rear number plate from the white Commodore they were driving. Unfortunately for William even the best laid plans can go astray. Just as they were busy pumping petrol into the car a Shirley White‑Bunter pulled in to buy some bread and milk at the service station. She knew both of them well, and, of course, immediately recognized them. William she had known since he was 12 or 13 years old. She knew his mother and step father.
The only other witness to the crime was the console operator, Ms Palmer. She also had an uninterrupted view of the two men, although from a little further away than Ms White‑Bunter. In her case, however, she did not know either of them.
When Ms White‑Bunter went inside she saw the console operator was upset, and she ended up telling her the names of the two offenders. All this happened, as I said, on 28 May 2005.
The next day (29 May 2005), Constable Jocelyn Malcolm, who seems a very pleasant young lady, was directed to attend the service station to commence inquiries. She spoke to Ms Palmer, obtaining a brief account of the offence, and importantly the information that a witness, Ms White‑Bunter, had recognised the two offenders. At that point, only a day after the offence, the police were equipped with all the information necessary to quickly wrap up the case.
Time moves at a more measured pace in the country, and so the investigation proceeded steadily. Set out below is a chronology of the investigation.
Date Event 6 June 2005 Constable Marshall contacts Ms White‑Bunter 15 July 2005 Constable Marshall speaks to William Sanders 11 December 2005 Constable Marshall obtains a statement from Ms White‑Bunter 1 February 2005 Constable Marshall obtains statement from Ms Palmer 14 March 2006 Constable Marshall conducts an informal conversation with Williams Saunders when he is at the police station for an unrelated reason. During the conversation she tells him she intends to serve a notice to attend on him. 24 July 2006 Constable Marshall serves the notice to attend on William Saunders 4 October 2006 Constable Marshall shows Ms White‑Bunter a photoboard which includes a photograph of Williams Saunders. Ms White‑Bunter first selects photograph number 5 (which is not William Saunders) and then selects photograph number 6 (which is a photograph of Williams Saunders).
Blemishes in the trial
Saunders’ trial, which was heard by Mr Schemioneck, magistrate, over a number of days, was marred by a number of blemishes.
The first blemish related to the attempt by the prosecution to rely on the photoboard identification by Ms White‑Bunter on 4 October 2006. The photoboard identification was worthless as evidence and added virtually nothing to the prosecution case against Saunders. I will briefly indicate why the photoboard identification was of no evidentiary value:
(i) Ms White‑Bunter knew Saunders. All she was doing when she identified his photograph from the other photographs on the photoboard was picking out a photograph of a person she knew well. Even then, she initially selected a photograph (photo number 5) of another person,[1] perhaps because she did not have her spectacles with her at the time.[2]
(ii) The circumstance that Ms White‑Bunter had told other people she had seen Saunders (who she knew as Prince) drive off without paying,[3] and the 16 month delay between the offence witnessed by her and the photoboard identification she was asked to carry out, further undermined any possible evidentiary value of the identification. All that the exercise carried out on the 4 October tested was her ability to pick out a photo of someone she knew well from a series of photos. The real issue was whether the court could safely act on her claim she recognized Saunders at the service station back on 28 May 2005.
[1]T 28.
[2]T 35.
[3]T 25.
The other blemish in the trial is the admission of the informal interview between Constable Marshall and Saunders on 14 March 2006. The Police Powers and Responsibilities Act 2000 required the conversation be recorded electronically,[4] or if that was not practicable, that it be reduced to writing, as Constable Marshall did, and then read over to the suspect,[5] which she did not do. Although Mr Schemioneck retained a discretion to admit the evidence of the conversation, he could only do so if satisfied that in the special circumstances of the case the admission of the evidence was in the interests of justice.[6] The Police Powers and Responsibilities Act does apply throughout the State, even in the quiet township of Oakey.
[4]S 436.
[5]S 437.
[6]S 439(2).
The real case against Saunders
The real case against Saunders was Ms White‑Bunter’s recognition of him at the service station during the offence on 28 May 2005. The subsequent effort to conduct a photoboard identification on 5 October 2006 added nothing to her evidence of identification (recognition) on 28 May 2005.
The two offenders were strangers to Ms Palmer. Because she had a clear view of the two men, and, as their identity was known to the police (through Ms White‑Bunter) a photoboard identification, if it had been conducted promptly with Ms Palmer, may have added to the evidence. In any event, descriptions of the two offenders should have been obtained at an early stage in the investigation from both eyewitnesses.
The decision
The magistrate did turn his mind to the correct issues when assessing Ms White‑Bunter’s evidence. He had been referred to R vTurnbull[7] and he quite consciously carried out the exercise of assessing the strength of Ms White‑Bunter’s recognition of Saunders in accordance with the dicta in that case.[8] She was friends with Saunders’ mother and step-father, and had known him since he was 12 or 13. He was a friend of one of her children. Coincidently some months before the trial, when one of her sons was considering purchasing Saunders’ white Commodore, she inspected it with him. She said that was the last time she had spoken to Saunders. The view she had of him, on 28 May 2005, was unobstructed, from close range, and in good light. It was also unhurried. I have no doubt that Mr Schemioneck was entitled to act on her evidence of recognition. And in this connection the blemishes in the trial did not directly undermine Mr Schemioneck’s analysis of the real case against William Saunders.
[7]R v Turnbull (1977) 1 QB 224.
[8]See especially reasons for decision pp 7, 8, 12, 13, and 14.
William Saunders was competently represented by Mr Salehkon in the trial. Mr Schemioneck conducted a fair and firm trial. There is no suggestion the police acted dishonestly.
The appeal
Mr Salehkon, who appeared before the magistrate, also appeared before me. He presented a series of elegant arguments. I think it fair to say that many of Mr Salehkon’s arguments were directed at the photoboard identification on 4 October 2006 (ground 1). This photoboard identification in reality had little or no probative value and I do not think that its admission affected the primary conclusions reached by the magistrate.
Grounds 2, 3, and 4 are criticisms that the magistrate failed to warn himself of the danger of dock identification (ground 2), or of the need for caution (grounds 3, 4). I think the magistrate did adequately scrutinise the evidence.[9]
[9]See reasons for decision pp 7, 8, 12, 13, 14, and 15.
In ground 5 Mr Salehkon pointed out the magistrate appears to have made a simple factual error in stating that the vehicle used in the offence was in fact William Saunders’ vehicle. An inference may be drawn, from the circumstance he owned a white Commodore, that the white Commodore he was driving on 28 May 2005 was his white commodore. But it may not be an inference which can be drawn to the criminal standard of proof simply because it may be reasonably possible the vehicle was not his. The inference, however, was merely a secondary finding, not a primary finding of fact, and it does not effect the validity of Mr Schemioneck’s primary findings.
Grounds 6 and 7 challenge the magistrate’s finding the two men were acting in concert. Under the party provisions in the Code it was not necessary for the prosecution to establish which of the two men physically operated the petrol bowser. The fact the rear registration plate was removed, together with the organised way in which the two acted during the offence, is capable of supporting an inference that the two men were acting in concert. Technically, however, it is not necessary to resort to the party provisions in the Criminal Code as the relevant act of asportation is the act of driving away with the petrol in the tank, and on the only evidence (Ms White‑Bunter) Saunders was the driver. As the console operator allowed the petrol to be dispensed into the vehicle’s tank in the normal course of business, the relevant act of asportation is (or included) the act of driving the vehicle out of the service station.
The final ground argued relates to the sentence. I think the licence suspension of three months is manifestly excessive. When Saunders was sentenced he had a very limited criminal history. To employ a licence disqualification against him was to use a sledgehammer to crack an acorn. If he is foolish enough to get up to the same mischief again, no doubt an order for disqualification may be made.
Conclusion
I am satisfied the appeal from conviction should be dismissed. The blemishes in the trial did not affect the magistrate’s primary findings of fact on which the conviction is based. On the other hand, I believe the sentence appeal should be allowed in part.
The prosecution of the charge against William Saunders has no doubt been a salutary lesson for him (and a warning to his associates), and, as far as Oakey, well, it strikes me as the sort of place a man could retire to in peace among the acorns.
Orders
1. That the appeal from the conviction be dismissed but the appeal from the sentence orders be allowed in part;
2. The sentencing orders are varied in that the order for a licence disqualification is deleted from those orders.
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