Smith v Dudley
[2003] WASCA 317
•12 DECEMBER 2003
SMITH -v- DUDLEY [2003] WASCA 317
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 317 | |
| Case No: | SJA:1063/2003 | 2 DECEMBER 2003 | |
| Coram: | MCKECHNIE J | 12/12/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GRAEME LESLIE SMITH NEIL JAMES DUDLEY |
Catchwords: | Criminal law and procedure Creating false belief Fraud Evidence Whether conviction open No new principles Turns on own facts |
Legislation: | Nil |
Case References: | Melbourne v The Queen [1999] HCA 32; 198 CLR 1 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
NEIL JAMES DUDLEY
Respondent
Catchwords:
Criminal law and procedure - Creating false belief - Fraud - Evidence - Whether conviction open - No new principles - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr K J O'Toole
Respondent : Mr W J C De Mars
Solicitors:
Appellant : O'Toole & Oprandi
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Melbourne v The Queen [1999] HCA 32; 198 CLR 1
Case(s) also cited:
Nil
(Page 3)
- MCKECHNIE J:
Introduction
1 At about 10 to 5 in the afternoon of a wet and rainy 5 June 2002 a young probationary driver, Trent Smith, lost control of a red Ford Laser he was driving through a roundabout at Abbotswood Drive and Brendale Place in Lansdale and hit a lightpole. He reversed and drove away. That minor accident set in train a series of events which led his father, Graeme Leslie Smith, the appellant, to be charged:
2 "Complaint JO 009103/02:
• that on 7 June 2002 by written statement to Samantha Beanland a member of the Western Australian Police Force represented contrary to the fact and without a genuine belief in the truth of your statement the existence of a circumstance reasonably calling for police investigation, or inquiry, namely, an investigation into a traffic crash. Section 90A(1) of Police Act;
3 Complaint JO 009102/02:
• that between 11 and 14 June 2002 at Kingsley with intent to defraud by deceit namely made false insurance claim, and did obtain a benefit, namely $2,950 the property of RAC Insurance Pty Ltd. Section 409(1)(c) of the Criminal Code."
4 After a trial held before Ms Musk SM on 22 May 2003 Graeme Leslie Smith was convicted of each charge. From those convictions he appeals, pursuant to leave granted on 5 August 2003, on the following grounds:
"1.1 The learned Magistrate erred in law and in fact in making findings of fact in respect of which there was no or insufficient evidence.
1.2 The learned Magistrate erred in law in failing to give any weight in the determination of credibility to the proven good character of the defendant.
1.3 The learned Magistrate should have found the charges and each of them had not been proven to the requisite
(Page 4)
- standard and should have dismissed the charges accordingly."
The prosecution case
5 To understand the appeal and the submissions made in support of it, it is necessary to outline the evidence adduced in the case at trial.
6 Mrs Erin DeBarro, the first witness, gave evidence that on 5 June 2002, at about 4.50 pm, she was in her bedroom getting ready for work when she heard a large or loud bang, she looked outside and saw a red car "with its front implanted neatly on the lightpole across the road". She took down the registration number and reported the accident to the police. The driver was a young person with a "P" plate. The car was put into gear and reversed off with "a bit of a clank and a clunk but nothing major".
7 In cross-examination Mrs Debarro said that she had been acquainted with the appellant from many years ago and had not seen Trent for many years.
8 Constable Strong attended at the accident scene and in due course submitted a crash report.
9 Mr Richard DeBarro, the husband of the first witness, said that he knew the appellant from when they lived in Koondoola about 10 or 12 years before.
10 After the incident Mr DeBarro's wife received a phone call from the appellant and she handed the phone over to her husband: "After we'd say the normal 'hellos' to each other, Graeme said his son had got himself in a spot of bother. He said you know regarding that he started work and things and was just trying to sort it out…".
11 Mr DeBarro said: "I don't like the way this conversation's heading my wife has saw what she has saw. She's not the only one who saw it. No-one's going to be changing anything". The phone call was on a mobile phone and the connection dropped out. In cross-examination Mr DeBarro denied any animosity with the appellant.
12 Constable Beanland was on duty on 7 June 2002 when the appellant attended at the Warwick Police Station counter and completed a P72 crash report form. It is this document which forms the subject of the first charge. The form completed by the appellant indicated the location of the accident was at "Ocean Reef on Ocean Reef Road, 200 metres north of Swanson Road", at 9.00 pm on 5 June 2002.
(Page 5)
13 The description of the accident was as follows:
"Seat belt worn, 60 kilometres per hour, raining, lights on, no injuries, no roo bar, no airbags, car overtaking me, cut back in too soon forcing me to swerve off the road to avoid contact, and hit object at low speed, hit rock no damage, did not see other vehicle which kept going, did not get rego."
14 Mr Adrian Pearsall is an investigator with RAC Insurance. He produced the relevant claim form.
15 In that form the appellant gave the details of the accident as occurring on Ocean Reef Road, Ocean Reef on 5 June 2002 at approximately 9 pm. The circumstances were described:
"Driving on no-lit road in rain, other vehicle overtook and cut in. I ran off left side of road to avoid contact."
16 Under question 8: "Was it reported to the police?", the appellant has ticked "Yes" "Which station?" "Warwick."
17 The appellant certified on the form that the details were true and correct. Mr Pearsall gave evidence that the vehicle was paid out as total loss in the sum of $2,950 plus towage costs. In cross-examination Mr Pearsall was asked whether Trent Smith was covered under the policy, and he replied:
"…If he was a regular driver of the vehicle then RAC would ask that his traffic record be produced and they can make an evaluation as to whether cover would be considered for him...
…
Mr O'Toole: It's not unusual that sons and daughters of insured have accidents, have their claims paid out?---…
…
…that the evaluation would be made on his driving record if he was declared to be a regular driver of the vehicle."
(Page 6)
18 In re-examination Mr Pearsall indicated that:
" ... Obviously we look at previous accident history and driving record where there's been previous driving convictions and also the age of the driver.
... There is certain age excesses imposed ... the younger the age, the more the excess. The driving history will also affect as to whether they would be insured with - - whether they would be given cover in the first place."
- On the insurance policy the appellant is listed as being a 1 per cent use of the vehicle and Mrs Stephanie Smith (his wife) as being 99 per cent use of the vehicle. If the son [Trent] was a regular driver of the vehicle:
"…Obviously in the instance if we appear to have been misled in the situation that somebody is a regular driver of the vehicle -- sorry, that they're not, and it appears that they are, and that we would not have provided cover in the first place because of their driving record then underwriting would make an assessment as to whether we would provide indemnity in that situation."
20 Mr Ernest Batts is the Rear Commodore of Angling at the Whitfords City Sports Club. He produced the attendance book for a meeting on 5 June 2002 which the appellant had signed. The meeting commenced at 8.05 pm and finished at 9.30 pm but Mr Batts was unable to say whether the appellant was present for the whole of the meeting.
21 First Class Constable Dudley gave evidence about a record of interview with the appellant on 6 December 2002. The record of interview was typed because the appellant did not wish to take part in a video record of interview. During the course of the interview, the appellant generally maintained the account which he had given on the accident report form. The appellant said that he glimpsed the damage to the car that night. He guessed the accident occurred anywhere between 9.30 and 10.30 pm. He did not look at his watch or anything. The appellant was asked:
"Q Where were you going that night?
A Just out to see a friend.
(Page 7)
- Q What was your friend's name?
A That's personal.
Q Will you tell me your friend's name?
A No.
Q Where does your friend live?
A That's personal.
Q Will you tell me where your friend lives?
A I've already said that.
Q Do you mean that you won't tell me where your friend lives or any details of your friend?
A Correct.
Q Why would you not tell me that?
A It is personal.
Q Was your friend expecting you?
A No comment.
Q If you tell me who your friend was and where they live it would help me verify why you were in that area?
A No comment.
Q When did you tell your wife or family about the crash?
A The next day."
22 The appellant said that he used the car because his vehicle was low on petrol. The next morning the appellant and Trent exchanged information about their respective crashes. The appellant found out that there were witnesses to the accident. He phoned the lady who had seen the accident (Mrs DeBarro) "Because I heard that she had heard something about it and I wanted to find out what happened."
23 At the conclusion of the record of interview the appellant was asked whether he had made the record of his own free will, to which he replied
(Page 8)
- "Yes." There were no promises, he was not threatened or offered any inducements:
"Q Are you happy with the way you've been treated?
A Yes, after I got to know you."
The appellant then wrote:
"I have read this record of interview out aloud and have been told by 1st class Cons Dudley that I can change, add, or take out anything that is not correct, or that I disagree with, and to initial and sign alterations. This record is a true record of the questions that were asked and the answers that I gave of my own free will."
The defence case
25 The appellant gave evidence broadly similar with the account recorded as the interview and similar to the account given in the P72 crash report form. He indicated that he arrived home roughly near 8 o'clock, maybe a quarter to 8.00, staying for about 2 to 3 minutes, and seeing no-one. The appellant took the red Laser because of a lack of petrol in his car and went to the meeting at the Whitfords Angling Club. He was a new member and did not know anybody and left at the end of the meeting. He headed off towards the roundabout and thought "'It's not to late.' I knew it wasn't too late and I thought I'd pop in and see a friend of mine". This was at a point after he had passed Swanson Way which intersects with Ocean Reef Road. He continued to the roundabout of Ocean Reef Road and Ocean Side Promenade and then headed back in a northerly direction towards Swanson Way. He described how a car cut him off too close so he swerved to avoid hitting the car. It was raining and windy and visibility was bad and the car came to rest against a rock. The appellant tried to glimpse it but with the strong winds and rain and with his glasses on "I couldn't view it so I presumed that I'd hit the rock". He indicated that his account was consistent with the accident report and the north location "because I was travelling north". He thought that Trent was covered by the insurance policy:
(Page 9)
- "Because he'd had an accident I think a few months beforehand and they'd paid out and they'd never let us know that he wasn't on it.
26 The appellant gave evidence of animosity with Mr DeBarro over the break-up of another person's marriage and over a belief that there were drugs at Mr De Barro's house. I interpose to note that the substance of the detail about animosity was not put to Mr and Mrs DeBarro.
27 The appellant had never been in trouble with the police and testified that he did not make a false report or false insurance claim.
28 In cross-examination, the appellant said he got mixed up between north and south because "I knew I was heading north after I came out of the roundabout." He was cross-examined extensively about the position of rocks, the location of photographs that he had taken and the height of rocks. He indicated that he was not sure whether his vehicle had hit a rock – he believed it had hit a rock. His explanation for going for Swanson Way was as follows. After he left the club at about 9.35:
"Then I've decided to go and visit a friend up Swanson Way so I went around the roundabout and headed back to go back up to his place.
Prosecutor: Okay. Didn't you decide to go and visit a friend before?---No. I thought of it on the spur of the moment because I thought, 'I'll go and visit him. He might have finished his shift now, I'll pop in.' "
29 When asked: "How did you realise it wasn't too late to visit him?" when he had no watch on, the appellant said: "…because if a person's on shift work time doesn't matter." In response to why he had said "no damage" on the RAC form, he said that he was referring to the other vehicle. He said he did not report the two accidents because he made an error of judgment: "I should have reported both of them."
30 The appellant said that he was forced to sign the record of interview if he wanted to go home and the police had made it quite clear that he was guilty before he started and that there were several threats throughout the interview. The appellant launched into a lengthy recitation of alleged misconduct by the police officers in considerable detail. None of this material had been put to the police officers.
(Page 10)
31 The appellant called two character witnesses. One, Mr Michael William Miller, was an insurance broker who had handled minor claims from Mr Smith: "All the dealings I had with him were honest. He disclosed all relevant information to me… – All legitimate claims."
32 The other witness was Kenneth Reginald Galvin, an investment manager with a stockbroking firm who had known the appellant for 25 years: "Well, I've dealt with Graeme, I think, over the last 25 years businesswise and I have no reason to fault his character at all. It's been very businesslike and I haven't had any problems with him at all."
The Magistrate's reasons
33 The Magistrate accepted the prosecution evidence and found, on the basis of that evidence, that all the elements of both charges had been proved beyond reasonable doubt.
34 She rejected the evidence of the appellant, forming the view:
" ... on all of the evidence that the defendant is not being honest with this court and, further, that he was not honest when he made the report to the police and that he made a fraudulent insurance claim to the RAC because on all of this evidence, I don't accept all of these coincidences and anomalies which the defendant really is asking me to accept. I don't accept he was driving the red Laser that night, given the time he left work, given the time of the meeting at which he attended started.
Even if I am wrong in that - - let's say somehow he got that red Laser, I don't accept he was driving it because it had already been damaged and he wouldn't have had time to do all that, change cars, get there, but even if somehow he did drive the red Laser, I don't accept it was involved in an accident at 9 o'clock because he was at the meeting. He said to the police in the report there was no damage and that could only relate to his vehicle because his was the only vehicle he says hit anything.
He didn't mention the fishing meeting in the record of interview. He wouldn't give the name and address of the friend he said he was visiting to the police but does today so why not then? This is a friend he says he was going to visit after the meeting, not before the meeting. So none of that adds up or makes sense and I don't accept it."
(Page 11)
Was it open for the Magistrate to convict the appellant
35 It was specifically put to the appellant by the prosecutor:
"Well, I put it to you that there was never really a second accident at all. You were just doing a cover-up for your son?---Why would I cover? What's the motive?"
36 This was the principal issue in the case - whether there was a second accident involving the appellant as driver. The appellant swore that there was and was disbelieved.
37 The appellant challenges the Magistrate's conclusion that he did not have time to get from Bayswater to Ocean Reef between 7.30 and 8 pm, go home, change cars and be seated in a meeting.
38 The evidence which the Magistrate accepted was that the meeting commenced at 8.05 pm. The attendance register shows the appellant's signature as number six out of 11 persons attending.
39 In his record of interview the appellant was asked:
"Q What time did you go out the night you hit the rock?
A After 8pm.
Q Where did you leave from?
A Home."
40 In his evidence the appellant said that he arrived home roughly near 8 o'clock, maybe a quarter to 8.00, and left after 2 or 3 minutes. In the record of interview the appellant made no reference whatever to attending the Angling Club meeting. It was open for the Magistrate to regard the difference in times as an inconsistency which reflected on the appellant's credibility. The fact that the appellant failed to mention the visit to the sports club at the record of interview also reflects on his credibility, as well as the fact that he refused to nominate the person whose house he was said to have been visiting.
41 In the police P72 crash report form, the appellant said the accident occurred to the "north of Swanson Road", which is materially inconsistent with the explanation advanced at trial that the accident occurred to the south of Swanson Way.
(Page 12)
42 The appellant's explanation in the record of interview as to the size of rock he hit is materially at odds with his evidence to the effect that he was not even sure whether he hit a rock.
43 Although the Magistrate did not specifically refer to it, she was entitled to regard the appellant's evidence as to threats and intimidation being levelled at him by police to induce him to make the record of interview as inconsistent with his adoption of the record of interview at the time as true and correct made without any promises or threats. It is to be noted also that the explanation about threats arose for the first time in cross-examination, not being part of the evidence-in-chief nor having been ever put to Constable Dudley.
44 The appellant submitted that there was no motive for the commission of either offence. It was open for the Magistrate to accept, as she did, the evidence of Mr DeBarro that after some years of non-contact the appellant had telephoned and said that his son had got himself into a spot of bother. Trent was apparently a probationary driver who had a previous accident in a car which he apparently drove regularly, even though not listed as a regular driver. The insurance form had a specific question whether the accident had been reported to police.
45 In these circumstances, I conclude that a possible motive for each offences did arise. There was a query at least as to whether Trent would be covered for the accident. It is open to construe the appellant's conversation with Mr DeBarro as indicating the appellant's awareness that Trent was "in a spot of bother". The police P72 crash report form was misleading in describing "no damage" but enabled the appellant to claim in the subsequent RAC insurance claim that the accident had been reported to police.
46 The appellant did not report the accident involving Trent to the RAC and his only explanation was "I made an error of judgment, I should have reported both of them". On the police report made on 7 June 2002 the appellant reported "no damage." Despite his explanation that he was referring to the other car, having regard to the paragraph he wrote on the form, it was open for the Magistrate to conclude that he was referring to his own vehicle. On 11 June 2002 the appellant lodged the form with RAC Insurance as a claim for damage.
47 The evidence of a coincidental second accident on the evening of 5 June 2002 came entirely from the appellant. There was no corroborative evidence. The Magistrate who heard and evaluated all of the evidence in
(Page 13)
- the trial rejected the appellant's evidence absolutely. Having regard to the inconsistencies in his account of important matters, some of which I have referred to and the implausibility of other explanations, I consider it was open to the Magistrate to completely reject the appellant's account. I therefore dismiss the appeal on grounds 1.1 and 1.3.
The evidence of good character
48 That leaves for consideration the ground 1.2 as to the use of evidence of good character. The Magistrate did not refer to the evidence of good character in her reasons. However, the trial concluded in the day and the character evidence was the last evidence in the trial. The issues were not complicated. A trial Judge retains a discretion as to whether to direct a jury on evidence of good character after evaluating its probative significance in relation to both "(a) the accused's propensity to commit the crime charged; and (b) the accused's credibility ... Whether the discretion has miscarried in a particular case will depend upon the facts of that case." McHugh J in Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at [30]. It was open for the Magistrate to conclude that, notwithstanding the appellant's previous good character as indicated by his lack of a record and the positive evidence of the witnesses called on his behalf, nevertheless the objective facts of the case overrode the effect of that evidence.
49 I do not consider there has been a miscarriage of justice by reason of the Magistrate's failure to specifically advert to the evidence of good character.
Conclusion
50 The only evidence as to the second accident was that of the appellant. It was open to the Magistrate to entirely reject his evidence as raising no reasonable doubt in her mind. Once that evidence was rejected and the prosecution evidence accepted the only conclusion to be drawn is that each of the two charges were proved. The appeal is dismissed.
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