District Court New South Wales Medium Neutral Citation: JP v R [2020] NSWDC 477 Hearing dates: 06 August 2020 Date of orders: 06 August 2020 Decision date: 06 August 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: I dismiss the conviction appeal. I dismiss the sentence appeal. Catchwords: CRIMINAL procedure- all grounds appeal- Juvenile- receive stolen property- possess implements to drive conveyance - unlawfully obtain goods in personal custody suspected of being stolen- knowingly drive stolen conveyance taken without consent of owner Legislation Cited: Criminal Procedure Act 1986 Crimes (Appeal and Review) Act 2001 Justices Act 1902 Cases Cited: Allesch and Maunz [2000] HCA 40 In KD v R [2020] NSWDC 237 Director of Public Prosecutions (NSW) v Chaouk & Anor [2010] NSW SC 141 Dyason v Butterworth [2015] NSWCA 52 Director of Public Prosecutions v Lazzam [2016] NSW SC 145 Director of Public Prosecutions v West [2000] NSW CA 103; 48 NSW LR 647 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 Category: Procedural and other rulings Parties: JP (Appellant) Regina (Crown) Representation: Solicitors: Ms Melhuish (ALS) Ms McFarlane (DPP) File Number(s): 2019/00165400 Publication restriction: non publication order in relation to the appellant's name Decision under appeal Court or tribunal: Albury Children's Court Date of Decision: 13 February 2020 Before: Magistrate Funston File Number(s): 2019/00165654 EX TEMPORE Judgment 1. HIS HONOUR: JP, the appellant, appeals against findings of guilt by his Honour Magistrate Funston at the Albury Children's Court on 13 February 2020. Sentencing occurred on 17 March 2020. 2. The appellant was found guilty of the following offences: 1. Receive stolen property; 2. Possess implements to drive conveyance; 3. Unlawfully obtain goods in personal custody suspected of being stolen; 4. Knowingly drive stolen conveyance taken without consent of owner. 1. He pleaded guilty to a charge of possess a prohibited drug, namely cannabis leaf. 2. Ms Melhuish, who appears for the appellant, contends that the appellant is not required to demonstrate error on the part of the learned magistrate, she relies upon what was said in Allesch and Maunz [2000] HCA 40. I reject that submission. 3. In KD v R [2020] NSWDC 237 I considered a similar submission. I rely upon what I said at [9] - [17] in rejection of the current submission. 4. It is incumbent upon the appellant to demonstrate that the order, the subject of the appeal, is the result of a legal, factual or discretionary error, in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. 5. The police case in the lower court comprised two witnesses; Shaun O'Brien and Senior Constable Lisa Roberts. A number of statements, photographs, and the ERISP of the appellant were tendered and became exhibit 1. I have read those documents. 6. Mr O'Brien gave evidence over the objection of the appellant. 7. Ms Melhuish contends that the learned magistrate fell into error and relies upon a literal interpretation of s 183(2)(a) of the Criminal Procedure Act. 8. Upon a plea of not guilty being entered the prosecution was required to serve, or cause to be served a copy of the brief of evidence relating to the evidence: s 183(1) Criminal Procedure Act. 9. Pursuant to s 183(2) of the Act the brief is to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence, and is to include inter alia written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence. 10. The offence alleged of take and drive conveyance is not an offence for which a brief of evidence is not required, per cl 24 of Criminal Procedure Regulations and s 187(5) of the Act. In other words a brief of evidence was required to be served. 11. The witness told police that he had seen the defendant driving a motor vehicle; that car turned out to be stolen. The police officer who received the information made a note and included it within her statement. The statement was served on the defence as required by s 183 of the Act. 12. In the Local Court the magistrate admitted the evidence over objection. As this is a conviction appeal it is to be conducted by way of rehearing on the basis of evidence given in the original Local Court proceedings; see s 18 Crimes (Appeal and Review) Act. 13. On appeal the appellant maintains that the evidence of the witness should not be admitted. Whether or not evidence in those circumstances can be admitted is governed by s 188 of the Act. Section 188 provides, "188 evidence not to be admitted. (1) the court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if in relation to that evidence this division, or any rules made under this division, have not been complied with by the prosecutor. (2) the court may, and on the application of, or with the consent of the accused person, must dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable". 1. In the Director of Public Prosecutions (NSW) v Chaouk & Anor [2010] NSW SC 1418 Johnson J considered circumstances where a witness intended to be called by the prosecution had taken part in an ERISP which had been served upon the defence but no statement adopting the interview had been taken. An ERISP is not a statement: [33]. 2. The prosecutor made application for dispensation with the requirements of s 188(1) of the Act as to allow the witness to give evidence in the hearing despite the statutory requirement for service of a written statement not having been met: [18]. 3. Counsel for the defendant conceded that the ERISP may have provided some understanding of the witness' likely evidence: [21]. His Honour said at [34], "It might be said that service of an ERISP given by a person proposed to be called as a witness is better than the absence of any document containing the account of the person who is to be called. If the person refuses to make and sign a written statement which complies with the legislative scheme then it may be that service of an ERISP from a person whom the prosecution seeks to call will be a necessary step in support of a prosecution application under s 188(2) that the court dispense with the requirements of s 188(1) so as to permit that person to give evidence". 1. In the matter now under appeal the inclusion of the conversation by the witness to the police officer was contained in the police officer's statement. It was not dissimilar to what occurred in Chaouk in the sense that the defendant was on notice of what the witness would likely say in evidence. Chaouk was ultimately decided on the basis that the magistrate refused to grant an adjournment which the defence had submitted would allow police time to obtain a statement and serve it curing any prejudice. 2. In Director of Public Prosecutions v Lazzam [2016] NSW SC 145 Adamson J considered the application of s 188 of the Act from [29] - [35]. "THE OPERATION OF S 188 OF THE ACT 29.Section 188(1) requires the court to refuse to admit evidence if, in relation to the evidence, "this Division or any rules made under this Division have not been complied with by the prosecutor". 30.Section 188 is only concerned with non-compliance by a prosecutor in relation to particular evidence with a provision of Division 2 of the Act or a rule. Accordingly it requires the particular evidence to be considered and the question to be answered whether there was any non-compliance by the prosecutor in respect of that evidence with a section of Division 2 or a rule. The recitation of relevant statutory provisions set out above demonstrates that there is a significant difference between a statutory provision, a rule, a Practice Note and a direction. Section 188 is concerned solely with a provision within Division 2 or a rule (as defined). No other non-compliance engages the section. 31.If any relevant non-compliance with such a provision or rule can be identified, the Magistrate is obliged, for the purposes of s 188(2), to ask whether the accused person consents to dispensation with the requirements of s 188(1); and, if so, the Magistrate is obliged to dispense with the requirements of s 188(1) "on such terms and conditions as appear just and reasonable". If the accused person does not consent, the Magistrate is obliged to consider whether the requirements ought be dispensed with and, if so, grant such dispensation "on such terms and conditions as appear just and reasonable". 32.The discretion conferred on the Magistrate by s 188(2) to dispense with the requirements (of the relevant provision of Division 2 or rule) on such terms and conditions as appear just and reasonable is a broad one and must be exercised judicially. The Act does not list the matters that are to, or may, be taken into account in exercising the discretion. Nonetheless, the purpose of the discretion can be divined from its statutory context and authorities in which this, and analogous discretions, have been considered and exercised. 33.The requirement to serve the police brief is a fundamental aspect of the administration of criminal justice. A defendant is entitled to have adequate notice of all the evidence to be relied upon by the prosecution before the charges are dealt with by the court. The time required to prepare the police brief is necessarily variable. An estimate which seems reasonable at the outset may prove to be optimistic. It is important that a prosecution not be required to be conducted on incomplete evidence since this (as in the present case) is apt to result in an acquittal, which may not have been warranted, if all of the evidence had been available to prove each of the elements of each charge to the requisite standard. 34.A balance is commonly struck by a court's extending the time within which a police brief is to be served and, if necessary, adjourning the hearing so as not to compromise the defendant's opportunity to consider the evidence that comprises the police brief in order to make forensic decisions, such as whether to plead guilty or not guilty. 35.In Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 the Court of Appeal considered the statutory predecessor to s 188 (s 66F of the now repealed Justices Act 1902 (NSW)). Of present relevance, Mason P (Sheller and Giles JJA agreeing) said of the discretion in s 66F(3) (now s 188(2)) at [24]: "(h) However (and subject to s 66F(3)), the magistrate may, and on the application of or with the consent of the defendant must, dispense with the requirements of subs (1) on such terms and conditions as appear just and reasonable (s 66F(2)). The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur: see further par (m), below" ... (m) It is possible to conceive of situations where it would not be just orreasonable to grant to a non-complying prosecuting authority an adjournmentand extension of time pursuant to s 66G. However, the general thrust of s 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: Ridgeway v The Queen (1995) 184 CLR 19 at 32 and 75." 1. Her Honour provided guidance to dealing with non-compliance under s 188(1) in consideration of the exercise of discretion pursuant to s 188(2), citing a number of relevant factors at [36]: "The circumstances of the instant case can be used by way of illustration. Had there been any relevant non-compliance (such as to engage s 188(1)) the following factors would have been relevant to the exercise of the discretion in s 188(2): (1) Whether there was any prejudice to the defendants; and, if so, whether it could be cured or ameliorated: for example, on conditions that included an adjournment (in the present case, no prejudice was identified; no adjournment was sought);" 1. In the Local Court no prejudice was identified. No adjournment was was sought nor was an application made for a Basha inquiry. To argue now that the appellant was not afforded procedural fairness in my view is disingenuous. Her Honour went on to say at [36]: "(2) The reason for non-compliance (in the present case, lack of police resources; absence of relevant police officers; the Christmas break; need to canvass the public);" 1. The matters listed in (2) above are not relevant to the exercise of the discretion in this case. Her Honour further stated [36]: "(3) The probative value of the evidence and its importance of the evidence to the proof of the offences charged (in the present case, crucial to the proof of the charges, as illustrated by the fact that its rejection would deprive the prosecutor of proof of identification and resulted in an acquittal on that basis alone); (4) The public interest in determination of criminal proceedings by reference to probative, (otherwise) admissible evidence (which, in the present case, was subverted by the rejection of the evidence):" 1. In the present case the evidence was relevant, probative and admissible. If the evidence was rejected it would deprive the prosecutor of proof of identification and would result in an acquittal on that basis alone. 2. Her Honour went on to say at [36]: "(5) The public interest in finality and avoiding delays in proceedings (in the present case, relatively slight delay)." 1. The defendant has not demonstrated that the learned magistrate fell into error by admitting the evidence over objection, nor has the appellant demonstrated a failure of procedural fairness on the part of the learned magistrate. 2. The appellant gave evidence and denied driving the motor vehicle, or suspecting goods found were suspected of being stolen. 3. The police case in short summary was that on 25 May 2019 a rented motor vehicle from Albury Super Cheap Car Rentals was stolen. On 27 May 2019 Shaun O'Brien was walking to the Albury Police Station to report in accordance with his bail undertaking. The appellant pulled up in a grey car from Albury-Rent-a-Cars and asked him if he knew where O'Brien could get stolen plates. O'Brien said "No" and the appellant drove off. 4. The witness' description of the motor vehicle and the rental company matches precisely with the photographs of the motor vehicle. It poses the question, how would he, that is O'Brien, be able to describe the car without having seen it and the appellant in it? 5. Mr O'Brien has known the appellant for a number of years since he moved to Albury. This is recognition evidence. It is harder to recognise strangers than it is to identify people who are well-known or familiar. The appellant was not a stranger. 6. Although the meeting was of short duration it was in daylight. Mr O'Brien attended the police station at 9.55am. He had seen the appellant prior to this time. When Mr O'Brien saw the appellant he was not under any stress or other factors that may call into question the reliability of his interaction with the appellant. 7. At the police station Mr O'Brien told Senior Constable Roberts of his observations of the appellant. Senior Constable Roberts made the note of the conversation on a rough bit of paper. She then spoke to Sergeant Binns. The notes were not read back to the witness nor was he asked to read them and sign them. 8. O'Brien was cross-examined about variations between what he told Senior Constable Roberts in his evidence-in-chief. In evidence-in-chief he said he spoke to the appellant in Kurnell Street. He told police that it happened in Endeavour Place. It would appear the streets are close together, some 500 metres apart. As said by the appellant's lawyer to the court at transcript 8. He told police that there were two girls sitting in the back of the car. In cross-examination he said that when the appellant departed two girls jumped in the back of the car but not when he pulled up. He conceded that he had ill-feeling towards the appellant but denied making up a false account. 9. The magistrate made the following finding about the evidence of Mr O'Brien, "...whilst I was troubled by a number of matters Mr O'Brien said he was very frank to the court when he made it clear that, yes, they do not have a good relationship. He admitted that but his evidence was quite significant that at the same time he went to the police he was reporting he was honest about that. He said `I was going to the police station to report'. I (sic) then said `By the way I've seen JP', and there was no serious cross-examination to that witness regarding his knowledge of this person, that he could've got JP mixed up and I think JP is pretty - he stands out as a young person and there was no suggestion at all that the witness didn't know who JP was. He knew, he knew exactly what he saw and I was satisfied that he did see JP driving. Actually I was satisfied that he did see JP driving". 1. I recognise the advantage enjoyed by the learned magistrate who saw and heard the witness O'Brien, and I observe the natural limitation stemming from proceeding wholly or substantially on the transcript record: Charara v The Queen [2006] NSW CCA 244 at [17] - [22]. 2. I agree with the learned magistrate that there was no serious cross-examination of the witness about the unreliability of his observations. The motive to give a false account was not developed from a premise that he had ill feelings to the appellant. Nothing more was asked. 3. I agree entirely with the findings of the learned magistrate. 4. At about 11.20am Detective Senior Constable Binns, who had spoken to Senior Constable Roberts, was patrolling the Glenroy area. He saw the stolen car. He saw the appellant in the car with his knees on the back seat. He was holding a dustpan broom in his left hand and was sweeping the handled door from the door-window sill area. The photographs of the car show that the rear window was broken. 5. Detective Senior Constable Binns got out of the police vehicle and jumped into the back seat of the stolen vehicle. He had a conversation with the appellant. The appellant said that the vehicle was not stolen and he was just waiting for a mate. His mate had taken off and he was just cleaning up. The appellant was arrested and taken to the Albury Police Station and participated in an ERISP. 6. In the ERISP he denied stealing the car or knowing it was stolen. He told police that he was walking when a mate drove up in the car. He hopped in and was driven to where the police found the car. The mate got out of the car and told him to watch it. In the absence of his mate he was cleaning the car when the police arrived. He was not prepared to disclose the identity of his mate. 7. The appellant gave evidence before the learned magistrate which accorded with what he told the police. The appellant in cross-examination said he was very affected by drugs and did not see the hire car sign or graffiti spray painted on the side of the vehicle; both are clearly visible. 8. He confirmed in cross-examination that when he hopped into the car he "jumped in the back seat": transcript 22 line 30. The passenger back seat. He said that he jumped in the front seat at some point in time. He denied seeing O'Brien earlier that morning and driving the car. 9. For conviction the prosecution had to satisfy the learned magistrate that the account given by the appellant should not be accepted as a version of events that could reasonably be true. The prosecution must satisfy the learned magistrate beyond reasonable doubt that he should reject the appellant's evidence as a reasonable possible version of the facts. 10. Two swabs were taken of the steering wheel. DNA was recovered which was a mixture originating from at least three individuals. The appellant could not be excluded as a contributor to the mixture. Assuming there are three contributors it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the appellant, and two unknown unrelated individuals, rather than if it originates from three unknown unrelated individuals in the Australian population. 11. A swab was taken of the gearshift lever. The DNA recovered was a mixture that originates from at least three individuals; the appellant cannot be excluded as a contributor to this mixture. Assuming there are three contributors it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the appellant and two unknown unrelated individuals, rather than if it originates from three unknown unrelated individuals in the Australian population. 12. The DNA evidence was significant, demonstrating that the appellant had touched the steering wheel and the gearshift lever. 13. He said in evidence-in-chief that he thought about taking the car and hopped in the front seat and grabbed hold of the steering wheel and the gearshift. He changed his mind and jumped back into the back seat: transcript 18 lines 31 to 43. 14. His police interview occupied 319 questions and answers. At no stage during the interview did he tell police that he touched the steering wheel and the gearshift lever. It appears to me that the appellant has constructed his in-court evidence to provide an explanation of the finding of DNA that he did not advance in his ERISP as, at that stage, DNA results were not known. 15. The learned magistrate made the following finding, "I also am of the view that the DNA, the prints on the steering and the gearbox are significant in the running of this matter. I do not find the explanation about maybe considering that he might drive the car later compelling at all. I did not actually accept that JP. You did give the evidence in the witness box but I just could not accept that you were thinking that maybe you might drive. I formed the view that you actually had driven the car and looking at the state of the car and looking at those photos.I also formed the view that it would be very hard not to seriously see that the car was a stolen car". 1. The learned magistrate was entitled to reject beyond reasonable doubt the evidence of the appellant, particularly in light of the evidence of Mr O'Brien that the appellant was driving the stolen car, and the independent supportive evidence of the appellant's DNA on the steering wheel and gearshift lever. 2. I, like the learned magistrate, reject the version given by the appellant; it speaks of construction and recent invention. The learned magistrate was entitled to apply common sense to his factual findings. He said, "I accept that it was a hire car but the reality is it was a hire car that was smashed at the back windows, or some of the windows. There was a lot of property scattered throughout the car and I also have not come down in the last shower.The fact what was found in JP's own pocket they were the items". 1. The learned magistrate in stating that he did "not come down in the last shower" was applying his common sense, something juries are instructed to do. The use of common sense does not occasion error on the part of the learned magistrate. 2. The appellant has been unable to demonstrate legal, factual or discretionary error on the part of the learned magistrate. 3. Accordingly I dismiss the appeal and I confirm the findings of guilt of the learned magistrate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2020