White v Police - [2010] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITE v POLICE
[2010] SASC 290
Judgment of The Honourable Justice Vanstone
15 October 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS
Appellant convicted of theft after trial - whether conviction bad for uncertainty - whether conviction unsafe and unsatisfactory - whether good character evidence was properly brought to account.
Held: appeal dismissed.
Weissensteiner v The Queen (1993) 178 CLR 217; R v Trimboli (1979) 21 SASR 577, considered.

WHITE v POLICE
[2010] SASC 290
Magistrates Appeal

VANSTONE J: The appellant was charged with theft of seven blue “Marrell” bins of the value of $30,000, the property of OneSteel. The original charge alleged the theft of eight such bins, which was the number seized by police; but upon his trial in the Magistrates Court the particulars of the charge were amended to allege seven only. At the end of the short trial the learned magistrate reserved her decision and later delivered carefully compiled reasons for finding the appellant guilty of stealing only two of the bins.
At the hearing of the appeal in this Court, the Notice of Appeal was amended to replace the original grounds of appeal with seven new ones, some of which were refinements of the originals. The grounds raise the issue of whether the magistrate’s reasons should be interpreted as relating to two of the seven bins seized by police and the subject of the charge, or, alternatively might have related to two different bins. If they were two of the seven seized bins, then it is said there was no way of determining which two they were. Further, it is contended that, such were the infirmities associated with the witness, Mr Clifton, upon whose evidence the finding of guilt must have been based, that the findings were unsafe and unsatisfactory. Then it is said that the magistrate erred in the way that evidence of good character was brought to account in considering whether the charge was proved.
Background
The evidence established that the appellant managed a waste metal recycling business in Port Augusta known as “Goldfields”. One of the firms with which Goldfields dealt was Smorgens. In about 2008 Smorgens was taken over by OneSteel. From that time OneSteel owned all the property of Smorgens, including some 500 or so Marrell bins. Marrell bins are large steel bins which have fittings by which they may be lifted with specific equipment fitted to the back of a truck, being two hydraulic arms and four chains. Smorgens bins were painted blue. It does not appear that at the relevant time either Smorgens or OneSteel had records of the location of bins belonging to them. Goldfields also owned bins – though not Marrell bins – and Goldfields did not own a truck with the hydraulic equipment necessary to handle the Marrell bins.
On 17 September 2009 police attended at the Goldfields premises to search for Marrell bins. They found eight of them, being seven white and one blue. They were photographed in situ, and seized. It does not appear that they have at any stage been forensically examined. They were not tendered at trial, although photographs of them were.
The main thrust of the prosecution case came from the evidence of the witnesses Long, Clifton and Corbett. In order to evaluate the appellant’s contention that Mr Clifton’s evidence could not be safely relied on, it is necessary to examine their evidence in some detail.
Mr Long’s evidence was to this effect. He formerly drove trucks for Goldfields. After an injury he worked on site at the premises at Port Augusta. He became aware of a man whose name was Drewe, a driver for Smorgens, who sometimes called in and had coffee with the defendant. Commonly his truck would be carrying Smorgens’ Marrell bins. In about April 2008 Mr Long said he noticed Smorgens’ Marrell bins in the Goldfields yard. Mr Long said that on several occasions a man called Tim Corbett attended the Goldfields yard and sandblasted Smorgens bins and then painted them white. This was done in the rear yard “towards … the eastern fence line”. Ultimately the magistrate was not prepared to rely on Mr Long’s evidence of Mr Corbett’s activities.
Mr Corbett said in evidence that he is the manager of Corbett’s Abrasive Blasting and Engineering. He said that he had done some sandblasting of scrap metal bins for the appellant at various times but only one job involving the larger, Marrell bins. I understand his evidence to be that he worked on these bins on only one occasion. He said there were about six or seven such bins of various colours, but mainly blue. He said some of them had been painted many times which made the job longer. His instructions were to sandblast them and then paint them white. He was unable to recall any logo or marking on the bins. Mr Corbett performed the work in an area behind the appellant’s shed, an area he identified on a photographic exhibit. He explained that this area was suitable as it was contained by the shed and fencing, leaving less area for him to fence in order to secure his working space.
Among the photographs tendered at trial were several showing the area behind the appellant’s shed. Visible on the ground are lines of white paint in rectangular shapes, suggesting that white rectangular objects had been painted in that location.
Mr Clifton said that between November 2007 and November 2008 he was contracted to work for the appellant carting scrap steel in his own truck. He said that in about March 2008 he saw Smorgens’ Marrell bins at the Goldfields premises. They were the blue Smorgens colours and bore Smorgens signage. On one occasion he saw some of them being painted white. This occurred in part on what he called the “other side of the yard” and also behind the shed. He saw a man who he knew to be from Port Augusta changing the colour of the bins from blue to white with a spray gun. After they were painted white he noticed them stored in the same area. At one point he took a closer look at the bins. He noticed that on the inside of at least one of them there was a foot or so of blue paint extending down from the rim. He took two photographs of them with his mobile phone. These were tendered in evidence.
In cross-examination of Mr Clifton it was suggested that he bore the appellant ill-will because of a perception that he had been underpaid for his work. He agreed that their personal relationship had deteriorated, although he denied bearing a grudge against him.
Analysis
I deal first with the controversy about which two bins the magistrate found were stolen. As mentioned, the magistrate found she could not accept Mr Long’s evidence, but was satisfied of the reliability of Mr Clifton’s. Her reasons included this paragraph:
I find the defendant guilty of theft of the two Morel bins with the Smorgens logo that Clifton saw Corbett painting. I find the defendant not guilty of the charge in relation to the other bins. The ownership of those can be sorted out by a civil court …
Plainly, the magistrate accepted Mr Clifton’s evidence insofar as it established that he saw not less than two Smorgens bins being painted white by Mr Corbett. The controversy raised before me was whether those two bins were necessarily among the eight bins seized by police. Whether it would matter, one way or the other, is another question.
It seems clear to me that the magistrate found that the two bins about which she was satisfied were two of those seized by police. Mr Clifton spoke of only one occasion when he saw Mr Corbett painting bins, as did Mr Corbett himself. While it is theoretically possible that the defendant had disposed of the bins painted by Mr Corbett and had arranged for other Marrell bins to be painted white and it was these that the police seized, I think this possibility can be discounted entirely.
Grounds 2, 4 and 7 focus on the magistrate’s reliance upon Mr Clifton’s evidence in the finding of guilt. In particular it is said that his identification of the Smorgens’ logo or signage on the blue bins when being painted by Mr Corbett is unreliable. This aspect of the evidence was critical, as although evidence at trial given by Smorgens personnel was to the effect that the bins seized by police were in all likelihood Smorgens’ bins, they could not be certain of that.
Mr Dadds, for the appellant, outlined what he said were infirmities in the evidence of Mr Clifton. As mentioned, it was suggested that, like Mr Long, Mr Clifton had an “axe to grind”. He referred to the commercial dispute upon which he had cross-examined Mr Clifton. Then Mr Dadds pointed to a passage of the magistrate’s reasons in which she observed that Mr Clifton “gave the impression he might be contending with a slight intellectual disability or illness”. She observed that there had been a substantial time delay before Mr Clifton answered a number of questions. Then, counsel pointed to the fact that the painter, Mr Corbett, did not confirm that there was any writing or logo on the side of any that he painted. The also appellant attacked the way in which the magistrate appeared to rationalise Mr Corbett’s lack of memory of any logo. She said:
His concern was with the paint, not in the messages the paint had been used to communicate anything by anyone, for any reason. Some bins had been painted a number of times, and in a number of colours. It took him longer to prepare these bins for repainting.
The appellant argued there was no justification in the evidence for the observation that Mr Corbett was not particularly concerned with logos. Finally, counsel attacked the finding of the magistrate that there was other evidence to support Mr Clifton’s. He submitted there was no such supporting evidence. I set out the impugned paragraph in full:
It was put to [Clifton] that he was lying about what he saw. He denied it. His denial was believable, but that is not what is important. No reliable external evidence contradicts anything he said. Seeing and hearing him, he appears unlikely to be able to make up a story and stick to it. Clifton’s evidence, unlike Long’s is internally consistent and supported by other evidence.
In my view none of these criticisms is made good. It is not as if the suggested infirmities were not raised with the magistrate and addressed in her reasons. On the contrary, she specifically dealt with the suggestion that Mr Clifton was poorly motivated towards the appellant. It was the magistrate herself who raised the issue of Mr Clifton possibly suffering from a slight disability. The magistrate acknowledged in her reasons that Mr Corbett said he could not recall seeing any signage on any of the bins. I might say on my reading of his evidence this was not a topic on which he was very definite. He repeatedly framed his answers in terms of not being able to recall any logo or the like. I think the magistrate was justified in observing that this had not been a matter of interest to him.
It is not correct to say that Mr Clifton’s evidence was unsupported by other evidence. Mr Corbett’s evidence strongly supported it. The fact that Smorgens personnel were able to identify the bins seized by police as being consistent with being Smorgens’ stock – some, even to the extent of having been reinforced in the way that Smorgens bins had been – was strong supporting evidence. In addition, one of the Smorgens men, Mr Beaton, said that at least one of the bins he saw in police custody had a foot or so of blue paint on its inside at the top – referred to as “overspray” – which was consistent with Mr Clifton’s evidence. I might add that Mr Beaton, who was formerly the state manager of OneSteel Recycling, said he was unaware of any other company in South Australia using blue Marrell bins, or any Marrell bins, at that time.
My reading of the evidence of Mr Clifton is that it is credible. None of the criticisms made of it give rise to misgivings about the magistrate’s reliance on it.
Ground 3 complains that the “information and conviction are bad for latent duplicity and uncertainty”. In argument, Mr Dadds conceded that the issue was not in fact one of latent duplicity, but rather that the conviction is uncertain. He argued that it has not been and cannot be established which two of the seven white bins seized by police is the subject of the conviction. By way of illustrating the uncertainty, counsel submitted that were the appellant to be charged in the future with the theft of Marrell bins he would not know in respect of which two bins he could plead autrefois convict. Nor, it is said, on a retrial, could the two bins be identified.
In my view the argument must fail. It is clear that the appellant has been convicted of theft of two of the bins seized by police. Implicitly, no finding has been made in respect of the balance of the bins. It does not matter that, on the evidence, the seven white bins in issue are indistinguishable. Upon any retrial, the same evidence would be presented. The prosecution case would be confined to the two bins clearly nominated by Mr Clifton as bearing Smorgens signage and the evidence of the seizure of all eight bins would be led in support of the charge. Similarly, were the appellant to be charged with theft of any of the seven bins in the future, his plea in bar could avail him if it could not be shown that the new charge did not relate to the two bins the subject of the current conviction. The situation in terms of uncertainty is just the same as if no bin had been located on the appellant’s premises and seized by police.
Ground 5 focuses on a particular sentence in the reasons of the magistrate. I have already set out the longer passage. The magistrate said of Mr Clifton’s evidence:
It was put to him that he was lying about what he saw. He denied it. His denial was believable, but that is not what is important. No reliable external evidence contradicts anything he said.
It is suggested that by this analysis the magistrate effectively reversed the onus of proof, inferring that the evidence was stronger because there was no evidence in contradiction of it.
I do not consider that the passage is suggestive of error. In Weissensteiner v The Queen (1993) 178 CLR 217 at 227 Mason CJ, Deane and Dawson JJ described as “almost a truism” that “uncontradicted evidence is easier or safer to accept than contradicted evidence”.
In this case, the evidence of the painter, Mr Corbett, supported Mr Clifton’s evidence. On the issue of the logos, Mr Corbett’s denial of recollection did not contradict Mr Clifton. In my view the magistrate’s observation was a valid one.
Ground 6 complains of error in the way in which the magistrate assessed and applied the evidence of good character called on the appellant’s behalf. It is said that the positive evidence ought to have been put into the balance in determining whether it was likely that the appellant had committed the offence. Counsel referred to R v Trimboli (1979) 21 SASR 577 at 578 per King CJ. There, King CJ, with whose judgment Mohr J agreed, was addressing the question of appropriate jury directions where good character evidence had been given. However, the principles are applicable to evaluation by a magistrate of such evidence. The former Chief Justice relevantly said:
No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
The character evidence in the trial was that of Mr Ireland. It was of a very limited nature. He said that he knew the appellant as a customer and supplier of the firm he himself managed and also socially through a football club. The evidence was not led in the traditional way of allowing the witness to speak of his knowledge of the defendant’s reputation. Instead, the witness spoke of his own “personal thinking” about the appellant and he said that he inferred from the fact that some of the appellant’s larger customers would deal with him, that they must also think him to be reliable. In my view, the way in which the evidence came out probably made it inadmissible and, in any event, almost without value. In addition, there was no evidence that Mr White had no prior conviction. Nonetheless, the magistrate was prepared to consider the evidence. She made two references to it. The magistrate said:
The character witness’s evidence is that the defendant has a good reputation, personally, and in his commercial dealings with other local small business operators. The character evidence reinforces the importance of the burden of proof. It does not assist with evaluating the defendant’s evidence in this case. The defendant did not give evidence.
Towards the end of her reasons the magistrate returned to the topic. She said:
Notwithstanding the character evidence that was called, it would be fanciful to say that an innocent explanation for the defendant’s conduct remained open on the evidence that was put before me.
I agree with the appellant that the magistrate’s reference to reinforcing the importance of the burden of proof is an unusual one. It can only mean, however, that the evidence of good character was to be weighed when assessing whether the charge was proved. That was the correct approach. The later reference – which is not subject to criticism – only serves to reinforce that the evidence was taken into account in this way.
In my view, the magistrate was generous in giving the evidence such weight as she appears to have. Furthermore, she did not err in her treatment of it.
Conclusion
As I have said, none of the criticisms levelled at the reasons of the magistrate have been sustained. The appeal must be dismissed.