Stephen James Stuart v SA Police No. Scgrg-97-527 Judgment No. 6205 Number of Pages 10 Criminal Law and Procedure

[1997] SASC 6205

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Criminal law and procedure - unlawful possession - the appellant appealed against his conviction for unlawful possession of a television set and compact disc player which were reasonably suspected of having been stolen or obtained by unlawful means - on the prosecution case, after the items were found on a search of the house in which he was living, he confessed that he had bought the goods from someone who had stayed in the house for a short period, knowing that they were "hot" - at the trial he claimed that the investigating police officer's record of interview in which his alleged confession was recorded was fabricated - he did not give evidence himself - there was evidence from a handwriting expert that there were a number of differences between his alleged signature appearing at the foot of each page of the record of interview and other known signatures of the appellant, and that the signatures of the appellant on the record of interview might not be genuine - he could not, however, offer a positive opinion - none of the appellant's fingerprints appeared on the record of interview, although fingerprints attributable to the officer who conducted the interview did - a number of police officers gave evidence of having seen the appellant being interviewed, and of the record of interview having been taken down in longhand - one officer in particular said that he was present during the whole time and that the record of interview was correct - in accepting the evidence of the police officers, the learned Special Magistrate said that she was "entirely confident" of her decision - held that giving due weight to the learned Magistrate's assessment of the credit of the police witnesses, but otherwise assessing the evidence independently, the appeal should be dismissed. Summary Offences Act 1953s41, referred to. O'Sullivan v Tregaskis [1948] SASR 12; Taylor v Hayes (1990) 53 SASR 282; Weissensteiner (1993) 178 CLR 217, 117 ALR 545; Palmer "Silence in Court - the evidential significance of an accused person's failure to testify"
(1995) 18 UNSWLJ 730, considered.

ADELAIDE, 13 May 1997 (hearing), 19 June 1997 (decision)

#DATE 19:6:1997

#ADD 4:7:1997

Appearances:

Appellant:

Counsel: Mr T Mcrae

Solicitors: Eric Van Kruyssen

Respondent:

Counsel: Ms K Hodder

Solicitors: Crown Solicitor for the State of South Australia

Order: appeal dismissed.

PERRY J

The appellant appeals against his conviction in the Magistrates Court sitting at Elizabeth on a complaint which alleged that on 20 June 1995 at Paralowie he had in his possession personal property, namely a television set and a compact disc player, which either at the time of such possession or at a subsequent time before the making of the complaint was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s41 of the Summary Offences Act 1953.

Following the appellant's conviction, the learned Special Magistrate constituting the Magistrates Court ordered him to enter into a bond in the sum of $500 to be of good behaviour for eighteen months, and to appear before the court for sentence in the event of a breach.

At about 12.40 pm on the day in question, five members of what was known as the Titan Task Force, which was a special operations squad within the police force, attended at premises at 19 Arrow Crescent, Paralowie. The appellant, then aged 37 years, lived at the premises in company with another man, Leeandrew McDonald.

It was the function of the Titan Task Force to investigate so-called motor cycle gangs, with particular reference to drug and firearm offences and stolen vehicles.

The officers who attended at the appellant's house were five detectives, Messrs Dewar, Talbot, Pedersen and Johnson. They were accompanied by Constable Williams, a uniformed senior constable who had been co-opted to the Titan Task Force from the police motor cycle section.

The appellant admitted, without protest, all of the officers when they came to the door of the house, with the exception of Detective Pedersen, who chose to remain outside.

Two of the officers searched the appellant's bedroom, where they found a small bag of cannabis. Another small quantity of cannabis was found in the bedroom occupied by McDonald.

Subsequently, attention was drawn to a large TV set in the lounge room. The prosecution case was that on questioning by Constable Williams, who recorded the interview in longhand, the appellant admitted that he had bought the set, which was worth about $2,000, for about $250; that it was sold to him by a man whose first name was Michael who had stayed in the house for about a week; that he had also acquired from the same man a CD player which was found by the police officers in the lounge room; and that he realised that both items were "hot".

At the hearing in the court below, the appellant, through his counsel, challenged the admissibility of the record of interview said to have been prepared by Constable Williams, asserting that it was a fabrication. The learned Special Magistrate overruled the objection and admitted the document.

The appellant's counsel then submitted that there was no case to answer. Upon the Magistrate ruling that there was a case to answer, the appellant elected to call no further evidence.

I say no further evidence, as at an early stage, counsel for the appellant had tendered two typed statements of a forensic scientist, Ian Riebeling. Riebeling offered opinions as to the authenticity of what was said to have been the appellant's signature at the foot of each page of the record of interview.

After rejecting the submission of no case to answer, the learned Special Magistrate went on to convict the appellant, after giving ex tempore reasons.

In his grounds of appeal the appellant complains that the learned Special Magistrate did not give sufficient weight to the "forensic evidence in relation to the defendant's record of interview"; that the finding of guilt was against the weight of that evidence; that the learned Special Magistrate erred "in the exercise of her discretion" in not excluding the record of interview; that she did not give sufficient weight to various inconsistencies or irregularities as between the various investigating officers; and that she erred in finding that the property was reasonably suspected of having been stolen or unlawfully obtained. He also complains that the learned Special Magistrate erred in finding a case to answer; in finding that the evidence against him was "safe and reliable"; and in convicting the defendant against the weight of the "admissible evidence".

When the objection to the admissibility of the evidence was taken at the outset of the case, the learned Special Magistrate conducted a voir dire hearing, in the course of which all of the police officers gave evidence. When she ruled in favour of admissibility, they were not recalled. The voir dire evidence was treated as evidence to be considered on the substantive hearing of the charge. In effect the voir dire evidence and the evidence at the trial became merged. This did not give rise to any procedural unfairness, as at the end of the day the correct questions were addressed. They were whether the authenticity of the confession was proved beyond reasonable doubt, and if it was, whether the learned Special Magistrate was satisfied beyond reasonable doubt that it was true.

It was submitted that apart from the "confession", there was other evidence which could properly lead to a conviction. In that regard, the prosecution relied upon the fact that the furnishing in the house, which was described as a "up-market" Housing Trust style house, was sparse, that the house was dirty and untidy, and that the TV set was incongruous and out of character with the rest of the contents.

I will dispose of that argument before proceeding further.

While there may be cases in which the incongruity of the presence of an item of property in the setting in which it is found might provide evidence to justify a reasonable suspicion as to the lawfulness of its possession or acquisition, in my opinion, this was not such a case. TV sets are a common item of property. Some people may go to extraordinary (lawful) efforts and make sacrifices to obtain an expensive TV set which does not match the quality or style of the rest of their possessions.

It would be different if the item was not only expensive and incongruous but an item which was of no apparent use to the possessor, such as an expensive pair of binoculars in the hands of somebody who is neither a bird watcher nor a racing or sporting enthusiast.

Other evidence which suggested that the TV set might have been stolen was not, in my opinion, sufficient to justify the conviction. As will be seen, the evidence as to that was unsatisfactory and equivocal.

Accordingly, I approach the case on the basis that it was essential to sustain the conviction, that the prosecution prove the authenticity of the alleged confession by the appellant beyond reasonable doubt.

Furthermore, the question on appeal is not whether or not there was material upon which it was open to the learned Special Magistrate to reach the conclusion that she did. Rather, the question is whether or not the appellate court, on an independent assessment of the evidence, reaches the same result. Of course, in assessing the evidence, I must give appropriate weight to the advantage held by the learned Special Magistrate in seeing and hearing the witnesses.

The prosecution case

Constable Williams gave evidence that after first questioning the appellant in the bedroom concerning the cannabis found there, Detective Johnson called out to him, as a result of which he entered the lounge room where his attention was drawn to the TV set.

He then sat down on a lounge in the lounge room, as did Detective Johnson, with the appellant sitting between them. He commenced to write out notes of the interview in question and answer form on a foolscap pad. Although Johnson got up once or twice, he did not leave the room. The appellant was coughing and did not look well. He was holding a rag or a handkerchief during the course of the interview. He made mention of having a doctor's appointment "for a shadow on his lung".

After the completion of the interview, Williams' evidence was that he asked the appellant if he wanted to read the notes, to which he said "No", saying "He didn't need to as he'd seen me write them". Williams' evidence continued: "Q. Did you ask him to sign those notes or not.

A. Yes, yes, I did, and he made some comment like 'Do I have to?' and I explained he really didn't have to and he said, 'All right, I'll sign them'."

His evidence was that the appellant then signed at the foot of each page. The signing was interrupted by the appellant experiencing a coughing "fit".

Soon afterwards the police officers left in two vehicles, Williams, Johnson and the appellant travelling in one of them. According to Constable Williams, Detective Johnson read the record of interview both in the car on the way to Elizabeth police station and also at Elizabeth police station.

At this stage, I set out part of the record of interview: "Q. Can you just come into the lounge room I need to talk to you about your TV.

Conversation in lounge room.

A. What's the problem with the TV.

Q. My colleague has made some checks and its recorded as stolen.

Q. How long have you had it.

A. 3 months or more.

Q. How did you come to get it.

A. Well I bought it from a mate.

Q. Who.

A. Well he's not really a mate he stayed here for a week or so and asked if I'd like a tele. Cause I only had a 34 cm little one you know, and he said he could sell me a big one.

Q. How much.

A. $1700.

Q. So you bought it from this guy. What's his name.

A. Col. I don't know his last name.

Q. Do you know where he lives.

A. No I don't he didn't seem to have an address he just shown up.

Q. So he took you to the TV.

A. No I said I'd have it. Paid him the $1700 and he brought it around.

Q. You gave this person who you hardly know let alone how to find him. You give him $1700 for a TV you have never seen.

A. Well OK I trusted a bloke is that a crime.

Q. No. Where did you get $1700 from. Would you bank have records of this deal.

A. No.

Q. Come on. What's the real story. How much did you really pay for the TV.

A. $250.

Q. For that, it's worth about $2000.

A. I know it was a good deal.

Q. You didn't ask where he got it from,

A. Well I knew he had pinched it, but I thought I should get something out of him staying here.

Q. Did he tell you how he came by this TV.

A. Col does breaks he can get any stuff.

Q. How do you mean.

A. Well when he was here a while back he got some gear.

Q. What.

A. Well the CD player he got that for me.

Q. How long ago.

A. I reckon it would have been 3 years or a little less don't know.

Q. What was the story with that.

A. Well he said Do you need one and I had a couple of CDs people had given me.

Q. Were they stolen.

A. No they were gifts and things.

Q. Go on.

A. Well he said he could pick me up a unit for 50 bucks so I said yeah great.

Q. What then you paid him 50, before or after you got it.

A. No wait on, he brought it around here and said that it would cost 100 bucks. I felt sorry for him so I paid $100.

Q. What would it have been worth.

A. I reckon about $300 or more.

Q. And this was before you had dealings with him regarding the TV.

A. Yeah I knew they were hot.

Q. So you have known Col for more than 3 years and you can't tell me his full name.

A. I'm not good mates or nothing.

Q. He stayed here for a week.

A. Yeah I know he has a nickname of Red and I'm sure he has another name he uses. I don't think his name is Col.

Q. You mean you know his name isn't Col.

A. Yeah OK it's Michael I don't want to get him in trouble.

Q. That's very loyal Stephen. Would he do the same for you.

A. He's a druggy usually off his head. I feel sorry for him.

Q. Stephen you will be reported for possession of cannabis. Do you understand that.

A. Yes.

Q. You will also be reported for receiving the SONY TV. Do you understand that.

A. Yes it's a good tele though but I knew it was hot."

... "

The four detectives who attended the appellant's house were also called. They all gave evidence of the presence and appearance of the TV set which was removed, together with the CD player, when they left. Indeed, the presence of both items in the house was common ground.

Dewar gave evidence that the appellant claimed that he was suffering from "acute flu symptoms. He was definitely very ill or appeared to be ill ... and had a blanket wrapped around him and over his head".

One item of evidence given by Detective Dewar should have been excluded. He said, with reference to the TV, that it was "a really large, modern stereo/television which in my experience I've invariably found them to be stolen if I locate them in similar circumstances". Although that assertion by Dewar was not objected to by counsel for the appellant, it does not appear to have played any part in the reasoning of the learned Special Magistrate which led to her entering a conviction, and I exclude it from my consideration of the matter.

Dewar remembers seeing Constable Williams interviewing the appellant and making notes in longhand on what he described as "foolscap paper". He recalls that this was in the lounge room and that Detective Johnson was present. He went into some detail as to the appearance of the folder upon which Williams was resting his notes. He saw enough to be able to say:

"It was obvious to me that Senior Constable Williams was writing out all of the notes in full longhand and not using any abbreviations .... there was always a delay as he asked or wrote down each question before going on with the next one."

He said that although he had subsequently seen the record of interview, he did not read it.

Detective Talbot also saw Williams writing down notes while he held what he described as a "folder". He recalled that Williams and the appellant were sitting down and

that Johnson was sitting down with them as well. But his questioning of McDonald concluded before Williams had apparently finished speaking to the appellant, and Talbot then went outside.

Detective Pedersen gave evidence of having searched around the outside of the premises, but at one stage he entered the house. When he saw the TV set, he made an inquiry on the telephone to Port Adelaide police station, to whom he relayed the serial number and model number of the TV set which were given to him by Detective Dewar. He was informed that a TV set with the same serial number was reported stolen from the Elizabeth Grove area in January 1995 but that that set was estimated only to have been worth $500. His evidence was that he then asked that the model number of the stolen set be checked and "it appeared to be a different model; however, it was still a Sony television". He attempted to ring the person who had reported the TV as having been stolen, but there was no answer.

Later on, apparently after the day in question, he made some further inquiries in an effort to find whether or not a TV with a similar description to that found in the appellant's house had been stolen during the previous twelve months, and he found that there was one such TV. In that case, however, there was no serial number given but a model number was given which tallied with that assigned to the TV in question, that one also being a Sony.

He too had seen the appellant, Constable Williams and Detective Johnson sitting down in the lounge room, and his evidence was that there appeared to be a conversation "going on between Stuart and Williams" and that Williams had a folder between his knees and appeared to be writing on it.

Later that afternoon at the Elizabeth CIB office, he had seen a hand written record of interview of five or six pages which he read, at which time he noticed that there was a signature at the bottom of each page. He confirmed that the appellant appeared unwell on the day in question, and was carrying a handkerchief or large rag.

Detective Johnson confirmed that while Williams conducted the interview, he sat on one side of the appellant while Williams sat on the other, when Williams conducted an interview, making what he described as longhand notes on foolscap paper. He confirmed that the appellant appeared to have a "bad dose of the flu". When the interview concluded, he remembered Williams handing over the folder for the appellant to sign at the bottom of each page. He said that ordinarily he would have signed as well, but he overlooked doing so. He said that he read the notes while Williams was writing, and also read them afterwards in the car. He said that the notes were a true and accurate record of the conversation.

There is no doubt that if the evidence had gone no further than I have just summarised, the prosecution case would have been unanswerable.

However, the appellant points to further items of evidence which he maintains should have led to the exclusion of the record of interview, or if not, raised a reasonable doubt as to its genuineness and consequentially as to his guilt.

The appellant points to the evidence of another police officer, Senior Constable Ganna, who was called as part of the prosecution case. He gave evidence of conducting an examination of the record of interview with a view to identifying any fingerprints which might have been on it.

He was able to identify four fingerprints on the record of interview as prints attributable to Constable Williams. As to six other prints, or at least impressions, he was unable to ascribe any positive identification. He compared those prints or impressions with samples of the appellant's prints and found them not to be identical.

In his evidence he explained that as a fingerprint expert he was able to say that a person can touch a piece of paper with his fingers and not leave prints which are picked up.

The effect of the evidence of the handwriting expert, Mr Riebeling, which was put before the Magistrate in the form of two statements, was that there were indications in the signature appearing at the foot of each page of the record of interview as compared with a number of known signatures of the appellant which were supplied to him to suggest a number of differences. He concluded that the five questioned signatures of the appellant on the record of interview "may not be genuine", but he went on to state that the appellant could be "capable" of signing the five questioned signatures. He further concluded:

"Whilst I have concluded that Andrew Williams could be capable of signing the five questioned signatures on the record of interview this opinion falls well short of any form of absolute identification and I cannot exclude the possibility that Stephen Stuart has altered the features of his own signature on the record of interview signatures to create five self-written 'forgeries'."

I have carefully considered whether or not the absence of any identifiable finger print attributable to the appellant on the record of interview, coupled with the questions which arise as to the genuineness of the signature at the foot of each page, give rise to a reasonable doubt as to the authenticity of the confession.

Of course, these items of evidence are to be considered in the context of the evidence as a whole.

The learned Special Magistrate in her ex tempore reasons described the evidence of Riebeling (in the form of the two reports) as "inconclusive". She specifically referred to the evidence of the police officers that the appellant looked unwell, the evidence that while signing he had what was described as a "very bad coughing fit" and that he had in his hand either a large handkerchief or piece of rag.

All of the police witnesses were cross-examined at length. As to Constable Williams, the learned Special Magistrate observed that during the course of giving his evidence and his cross-examination:

"... he had remained composed and unshaken despite what was very searching cross-examination."

She found by inference that various inconsistencies and inaccuracies in the prosecution witness's evidence did not shake her confidence in it. She described the criticisms as amounting to "little in substance" and that she would have been suspicious if there had been "no such discrepancies". She described in favourable terms the evidence given by the various police witnesses who had attended at the house, and was clearly disposed to accept it.

She said at the outset of her reasons, "I am entirely confident in my decision".

The police witnesses were all cross-examined at length. To the extent that the learned Special Magistrate's acceptance of the authenticity of the appellant's confession was based upon her assessment of the credit of those witnesses, I must give due weight to it.

I must also give due weight to the fact that the appellant did not enter the witness box and give contrary evidence. That is obviously a circumstance to be taken into account. If the evidence led by the prosecution remains unanswered, it may be open to the court to reach a conclusion of guilt more readily than might otherwise be the case.

There is a further aspect to be considered if, contrary to the view which I have expressed, the record of interview should have been excluded, the court would then be faced with a situation where there was no evidence of any explanation being given by the appellant to the investigating police officers when they challenged him as to his possession of the items in question. In that regard, it is significant to note that it was not put to any of the police officers in the course of cross-examination that any innocent explanation was proffered by the appellant when he was questioned.

The appellant did not raise the defence provided for in s41(2). He did not attempt to prove that he had obtained possession of the property honestly.

In my opinion, and on my own assessment of the evidence, but allowing due weight for the advantage held by the learned Special Magistrate in seeing and hearing the police officers who gave evidence as to the circumstances in which the appellant's confession was obtained, the authenticity of the record of interview was proved beyond reasonable doubt. Furthermore, there is no reason to doubt that it was true.

It follows that the charge was correctly found proved.

The appeal must be dismissed.