Strickland, Robert Rae v Stevens, Brett Thomas

[1998] TASSC 40

40/1998

PARTIES:  STRICKLAND, Robert Rae

v
STEVENS, Brett Thomas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/1997
DELIVERED:  24 April 1998
HEARING DATE/S:  5 February 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Appeal from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Magistrate misdirected himself in relation to findings of fact by considering each element of offence in isolation rather than totality of evidence.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Appellant:  M A Stoddart
             Respondent:  S J Upton
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  40/1998
Number of pages:  4

Serial No 40/1998
File No LCA 14/1997

ROBERT RAE STRICKLAND     v
BRETT THOMAS STEVENS

REASONS FOR JUDGMENT  COX CJ

24 April 1998

The respondent was charged with an offence against the Police Offences Act 1935, s39(1) in that on 19 November 1996 at Burnie he was found by Maurice Charles Fowler, a police officer, in possession of fuel reasonably supposed by Constable Fowler to have been stolen or unlawfully obtained without being able to give a satisfactory account of his possession thereof to the court before which he was charged.

Constable Fowler gave evidence that while driving his private vehicle on the Bass Highway eastwards towards Burnie through Cooee at 11.40pm on 19 November 1996, he observed a white 1978 Ford sedan registered number XC-7800 stationary off to the northern verge of the highway approximately 20 metres east of the Caltex service station.  An hour later, acting on a hunch, he returned to the site and found the Ford gone and two other vehicles which appeared to have been tampered with.  The petrol filler caps on both latter vehicles were missing and adjacent to the filler area on the ground beside each vehicle he found traces of unevaporated fuel.  He instituted enquiries as to the ownership of the Ford he had seen an hour earlier and, armed with a general search warrant, went to the respondent's home in Burnie where he spoke to the respondent at 1.30am that same morning.  He then searched the Ford (registered number XC-7800) which was locked and parked outside the respondent's premises and found in it, on the back seat, a 20 litre petrol container a little over half full of petrol and two lengths of garden hose about 1.5 metres long, one of which was still damp and had fresh traces of petrol in it.  He formed the belief that the petrol was stolen and asked the respondent whose property it was.  The respondent replied that it was his and that he kept petrol in a container in his car for use should the vehicle run out of fuel, as it had a defective fuel gauge.  He was taken to the police station and interviewed, the interview being video taped.  In it he repeated that claim, stated that he had spent the evening driving around with a man named David Eaves, had retired to bed at about 11pm and that he had left his car outside his premises where, so far as he knew, the vehicle stayed until the police had arrived at 1.30am on 20 November 1996.  He denied having been at the Cooee service station earlier that night or having any knowledge of the apparent thefts of petrol from the two cars there. 

Constable Ernst had accompanied Constable Fowler through Cooee on their way to work at 11.40pm and had taken note, on a cigarette packet, of the registered number of the white Ford sedan seen near the service station.  She confirmed that it was the same registration number as that on the respondent's car.  Both she and Constable Fowler disputed that they could have been mistaken about the number of the car.  She confirmed Constable Fowler's observations at the service station an hour later and at the respondent's home 50 minutes thereafter.  She was also present at the video taped interview.

The owner of the two cars at the service station gave evidence that petrol was missing from both of them and had been taken without his consent.  Mr Eaves was called by the prosecutor and he confirmed that he had been in the respondent's company in the Ford earlier in the evening when they had parked in the car park near the Beach Hotel and had smoked cigarettes there.  He had been taken to his home by the respondent some time before 10pm where they had parted.  He denied seeing any petrol container or hoses in the body of the car or having any knowledge of it having a defective petrol gauge.  He said that he had been a not infrequent front seat passenger in the car for some time prior to the night in question.  The police did not check the gauge on the respondent's car themselves.

The respondent gave evidence, repeating his claim not to have been at Cooee that night, to have been in the habit of carrying petrol in a container in case of emergency occasioned by the defective condition of the gauge and to have purchased some $5 worth of petrol and put it in the container earlier that night, the container being then partly full.  There were some discrepancies in his evidence on trial concerning the route taken by him that night when compared with his account the following morning during the video taped interview.  The trial, however, took place twelve months after the incident and he explained the discrepancies, not unreasonably, as due to the passage of time.

The learned magistrate dismissed the complaint, giving the following reasons:

"HIS WORSHIP:  The defendant has been charged with unlawful possession in that it was alleged that on 19th November 1996 at Burnie in Tasmania he was found by Maurice Charles Fowler, a police officer, in possession of fuel reasonably supposed by the said Maurice Charles Fowler to have been stolen or unlawfully obtained without being able to give a satisfactory account of his possession thereof to the court before which he is charged.

Under this particular Section the Prosecution must prove, beyond reasonable doubt, a finding of possession and at that same time there must be an existence in the finder, in this instance Constable Fowler, of a supposition, based on reasonable grounds, that the property was stolen or unlawfully obtained.  The test as to whether this supposition is reasonable or not is an objective one.  And I refer to the decision of Nicholas v Fleming (1959) TSR at page 165.  In applying this test to the current circumstances there is the evidence of a vehicle being seen in the vicinity of a service station, that later vehicles at the service station are observed to have been entered and petrol taken from the vehicles, petrol is spilt on the ground in the immediate area near the petrol tank.  As a result of this finding the registration of the vehicle observed earlier was checked, the owner located and officers attended at the residence.  The defendant is spoken to and a search is conducted of his vehicle.  And that search discloses a drum or container containing petrol and a length of garden hose which has dampness on it, being petrol.  The decision of Weston v Smith to which I was referred, being (1963) TSR at page 27, held that although suspicion must attach to the property and not the person what the person says with reference to the property may be part of the material upon which the suspicion may be based.  The character of the defendant cannot be used as the sole or even principal basis for suspecting the property.  In this case, taking into account the various matters noted by Constable Fowler, I am satisfied beyond reasonable doubt that the suspicion that he had was a reasonable one in those particular circumstances.  That merely means that the court must then consider the explanation given by the defendant as to his possession of the petrol.  There is little doubt that the burden of proof is quite different.  It is not beyond reasonable doubt but is on the balance of probabilities.  I refer to the decision of Strickland v. Lambert, a Court of Petty Sessions' decision at Smithton, being No 8 of 1985.  In this regard the defendant indicated he had a defective gauge in his vehicle and was unable to tell what petrol was in his vehicle.  This was not checked at any stage by the investigating police officers to either confirm it or to disprove it.  The defendant gave an indication through his evidence as to the problems he had with the lack of the gauge, that he carried petrol and filled the drum from time to time so he would be assured he would always have sufficient petrol to drive his vehicle.  This case is very difficult from the very point of view that petrol is not an item which is easily identified.  It has no clear markings.  It has no clear indication as to the petrol itself being from these vehicles.  The explanation he has given in this court's view is a reasonable explanation as to why he would have a petrol container and hose in his car.  I note the evidence from Mr Eaves, under cross-examination, he had not seen the drum in the car before and travelled in the vehicle frequently.  But that again, whilst that is relevant, I take into account the evidence given by the defendant himself.  It was pointed out that he had been inconsistent in relation to where he had travelled on the night in question.  That was explained by him on the basis that it was a long time ago, the comments I made in my record of interview were closer to the time, that must have been right.  In all ways he appeared plausible with his explanation and taking the lower burden of proof, being the balance of probabilities, I am satisfied that he has given a satisfactory account of his possession of the container and the hose at that time.  I therefore dismiss the complaint as to that charge."

The prosecutor has appealed on the following grounds:

"1        The learned magistrate erred in fact and/or in law in finding that the respondent had given a satisfactory account to the court before which he was charged of his possession of a quantity of petrol on the rear seat of his motor vehicle on 19th November, 1996.

2         The learned magistrate erred in fact and/or in law in placing insufficient weight, or alternatively, no weight at all, upon the evidence of the witness Eaves, to the effect that he did not see any drum of petrol on the rear seat of the respondent's vehicle shortly before the alleged offence.

3         The learned magistrate erred in fact and/or in law in dismissing the said complaint."

The third ground is not a ground at all, and the second has little merit in it.  Eaves conceded that although he had never seen fuel containers in the car, he "would never have actually looked anywhere other than in the front seat of the vehicle".  The learned magistrate adverted to the seeming conflict between Eaves and the respondent on the presence that night of the container, but was not prepared to disbelieve the respondent.  He had the advantage of seeing the witnesses and although the fact that smoking may have occurred in the car park suggests the unlikelihood of a container of petrol being in the car, the evidence as to whether or not the smoking took place within the car is unclear and it was very much a factual matter which the learned magistrate was in the best position to resolve.

As to ground 1, I am of the view that the learned magistrate misdirected himself in reaching what appear to be inconsistent conclusions or, alternatively, failing to take into account all the evidence in reaching such findings of fact as he did make.  On the face of it, it would appear that he accepted the evidence of the two police officers that the respondent's car was seen by them at the scene of the crime of petrol stealing about one hour prior to their detection of that crime.  He did not specifically make a finding to that effect but it seems to be the linchpin of his reasoning in respect of the finding that he was satisfied beyond reasonable doubt that Constable Fowler's suspicion was a reasonable one.  On the other hand, he accepted the respondent's explanation as to why he had a petrol container and lengths of hose in his car and regarded him as plausible.  He did not address the fact that the respondent, though a "plausible" witness in respect of his explanation of the presence of the container and hose, had no explanation to offer why his vehicle should have been at the Cooee service station at 11.40pm, an hour before the thefts were discovered.  He directed his mind to the question whether the respondent had a plausible explanation for the presence of the container and lengths of hose rather than whether he had a reasonable explanation for his possession of petrol reasonably supposed by the police to have been stolen or unlawfully obtained.  Although he adverted to the correct legal principles contained in the cases he cited, he failed to consider the totality of the relevant evidence but concentrated on each element in isolation (cf O'Garey v King [1972] Tas SR 136). Had he considered the whole evidence, including the conflict between that of the police as to the presence of the car at Cooee when compared with the respondent's apparently plausible demeanour, he may not have been persuaded that the first element had been made out, namely that the petrol was reasonably supposed to have been stolen. Alternatively, consideration of that evidence resulting in a rejection of the respondent's claim that his car had remained outside his premises in the crucial two hours prior to the arrival there of the police would almost certainly have rendered the explanation proffered by the respondent quite unsatisfactory. As the findings are not sufficiently precise, the only appropriate course is to quash the order dismissing the complaint and order that the matter be retried by another magistrate.