Director of Public Prosecutions (NSW) v Chaheh

Supreme Court of NSW|2016-09-08|Before: Rothman J

Solicitors: Director of Public Prosecutions (NSW) (Plaintiff) Toomey Criminal Defence Lawyers (Defendant) File Number(s): 2016/24463 Decision under appeal Court or tribunal: Burwood Local Court Date of Decision: 07 October 2015 Before: Mijovitch LCM File Number(s): 2015/00094985

Judgment

The Director of Public Prosecutions (NSW) ("DPP") appeals the dismissal of charges against the defendant, Gholam Chaheh. The charges were dismissed by the Local Court essentially on the basis that the time of the offence particularised in each Court Attendance Notice ("CAN") was not proved to the requisite standard. The DPP also appeals the order as to costs.

Time of charges

It is unnecessary to repeat the terms of the CAN, except to note that, after amendment on the day of trial, the CAN charging the offence of take and drive conveyance particularises that the offence occurred "between 4.00pm on 27/03/2015 and 12.30pm on 30/03/2015 at Belmore", without the consent of the owner. The second CAN particularises that the driving of the motor vehicle on the road during the disqualification period occurred "between 5.45pm and 6.00pm on 30/03/2015 at Belmore."

The Appeal

The DPP appeals under s 59(2) of the Crimes (Appeal and Review) Act 2001. Since the order made by the Local Court was one dismissing a matter the subject of summary proceedings and an order for costs against the prosecutor, the prosecutor is granted a right of appeal pursuant to the terms of s 56(1)(c) and s 56(1)(d) of the Crimes (Appeal and Review) Act and, pursuant to the provisions of s 59(2) of the aforesaid Act, the Supreme Court's power in relation to such an appeal is either to set aside the order and to make such other order as it thinks just or to dismiss the appeal.
An appeal against an order or orders of the kind here subject to an appeal is an appeal as of right, pursuant to the terms of s 56 of the Crimes (Appeal and Review) Act. However, such appeal lies on a ground that involves "a question of law alone". It should be noted that the learned magistrate did not dismiss the proceedings on the basis of any preliminary ruling, but rather on the basis that the evidence adduced did not establish that the offence occurred during the time particularised. In other words, the dismissal was not interlocutory, but final (see s 57(1)(c) of the Crimes (Appeal and Review) Act).
The Court notes, at this juncture, that the defendant has filed a Notice of Contention contending that, if the appeal by the DPP were otherwise to be successful, the dismissal should be affirmed on the basis that the evidence before the Local Court did not prove, and was not capable of proving, that the vehicle in question was "taken" by the defendant within the meaning of s 154A of the Crimes Act.

Facts and Evidence

The facts are within short compass and the evidence is relatively uncontroversial. The defendant and a co-accused were charged on 30 March 2015 and each pleaded not guilty. The co-accused was charged with being carried in a conveyance taken without the consent of the owner (Annexure A to the Affidavit of Karen Parouchais, Affirmed 1 February 2016 at p 4). The hearing occurred on 12 August and 7 October 2015.
The owner of the vehicle (a truck) in question gave evidence as did two police officers and a security and surveillance operator. The co-accused also gave evidence. The defendant did not.
From the evidence adduced at the hearing, it is clear that the registered owner was, at all relevant times, the registered owner of the truck that was alleged to have been taken. At about 4.00pm on Friday, 27 March 2015, the owner left the truck parked and locked on a street in Marrickville. At about noon on Monday, 30 March 2015 he returned to pick up the truck. It was not there. The owner did not, relevantly, give permission for anyone to take the truck or to drive it. He called the police and reported the truck stolen.
Shortly after 5:35 pm on 30 March 2015, the two police officers who gave evidence arrived at Canterbury Leagues Club and noticed the truck parked on the northern side of Bridge Road pointed in an easterly direction. The defendant and the co-accused were in the front, with the co-accused being in the passenger seat and the defendant in the driver's seat.
The defendant and the co-accused were arrested and cautioned. Thereafter the defendant told the police: "Two guys who went into the Canterbury Club asked me to mind the vehicle." This statement was made in response to a question as to why the defendant was sitting in the driver's seat. The defendant was asked what the men looked like and a description of sorts was given but largely the defendant said he could not remember. The defendant denied having driven the vehicle (Annexure C to the Affidavit of Karen Parouchais, Affirmed 1 February 2016 at p 14; Exhibit 1 in the Burwood Local Court proceedings).
The police also spoke to the co-accused who told the police as an explanation of why he was in the passenger's seat: "I was walking past and saw my friend in the driver's seat, I asked him if I could charge my phone so I got in the passenger's seat and started to charge my phone then yous (sic) came".
At the hearing in the Local Court, the co-accused gave evidence to a different effect and on a more expansive basis. The co-accused's evidence was to the effect that after leaving home he walked towards the shops, where he noticed the defendant in a parked truck. The co-accused asked the defendant if he could charge his phone and the defendant gave the co-accused a lift to the shops at Belmore in the truck.
The co-accused said he sat in the passenger seat during that drive. The defendant stopped the truck on Bridge Road and the co-accused left the truck to purchase some food. The co-accused was gone for about 10 minutes and then returned to the truck to retrieve his phone. It was at that point that the police arrived and told him that the truck was stolen.
The defendant and the co-accused each declined to participate in an Electronically Recorded Interview ("ERISP"). The police obtained from Canterbury Leagues Club closed circuit television footage covering Bridge Road, which indicated that the truck arrived at Bridge Road between 5.24pm and 5.44pm on 30 March 2015.
The CCTV footage discloses no person entering or exiting the driver's side door between the time of its arrival on Bridge Street and it being parked and the arrival of the police. The CCTV footage shows the co-accused returning to the vehicle at 5.34pm and the police arriving at 5:45 pm.
The Local Court also had before it a certificate tendered pursuant to s 257 of the Road Transport Act certifying that the defendant was disqualified from driving between 28 January 2014 until 27 January 2017.
As a consequence of the foregoing and the absence of evidence from the defendant, the Local Court had before it uncontested evidence that the truck in question had been taken without the owner's permission, some time between 4.00pm on Friday, 27 March 2015 and noon on Monday, 30 March 2015; that the co-accused had been given a lift in the truck, with the defendant driving; that the truck, with the defendant driving arrived at Bridge Road between 5.24pm and 5.44pm on 30 March 2015; that the co-accused, after first alighting the truck and spending approximately 10 minutes at shops, returned to the truck at 5.34pm and that the police arrived at the truck at 5.45pm.
Given the content of the CCTV footage, the statement by the defendant, albeit unsworn, that he had been requested by two men, whom he could not describe, to mind the vehicle for him, was incapable of being accepted.
As a result of the foregoing, the defendant was proved, beyond reasonable doubt, to have driven the truck without the consent of the owner and to have driven whilst disqualified. The Local Court determined that the charges should be dismissed because the taking and driving did not occur at the time specified in the CAN and the driving whilst disqualified did not occur during the time particularised in the CAN.

Was the evidence capable of proving that the defendant "took" the vehicle?

The provisions of s 154A of the Crimes Act deems the taking and driving of a conveyance to be larceny and a person who takes and drives a conveyance, without having the consent of the owner, is deemed to be guilty of larceny and liable to be indicted for that offence. Plainly, pursuant to the terms of s 154A(2) of the Crimes Act, the truck is a conveyance.
Ordinarily larceny involves the stealing of goods capable of being stolen. In that respect the common law requires that for larceny to be committed a person must, without the consent of the owner, take and carry away something capable of being stolen with intent permanently to deprive the owner thereof: Ilich v R (1987) 162 CLR 110; [1987] HCA 1.
The promulgation of s 154A of the Crimes Act obviates the necessity to prove that a person who has taken and driven a conveyance intended permanently to deprive the owner of the conveyance. Thus, in order for larceny to be proved, pursuant to the provisions of s 154A of the Crimes Act, a prosecutor must prove that the conveyance (the truck) was taken and driven.
The evidence, as already stated, incontrovertibly establishes that the truck was driven. The question asked by the filing of the Notice of Contention is whether the truck, on the evidence before the Local Court, had been taken.
As earlier stated, to take the truck does not require proof that the defendant had stolen or was stealing the truck. All that is necessary is that the prosecutor prove that the defendant took control of the truck and moved it, even if only slightly: R v Bogacki [1973] 1 QB 832. This must be done without the consent of the owner.
Even if the Local Court had accepted the version of events given by the defendant to the police, when first questioned, permission to mind the truck does not implicitly, or otherwise, involve permission to drive it and the defendant, on his own testimony, would have taken and driven the truck.
On the evidence otherwise given, there can be little doubt that the evidence was capable of proving that the defendant took and drove the truck. The act of driving the truck can be synonymous with the act of taking it or part of the act of taking it.
The effect of the content of the CCTV, the evidence of the co-accused, the evidence of the police and the version of events given by the defendant, the last of which cannot be believed, involves only one conclusion of fact, namely, that the defendant took and drove the vehicle. If, as is suggested in the Notice of Contention, "there were facts which explained or contradicted the evidence against [the defendant], they were facts which were within the knowledge only of the defendant and thus could not be the subject of evidence from any other person or source": The Queen v Baden-Clay [2016] HCA 35.
The foregoing is not intended to displace the onus of proof on the Crown to prove, beyond reasonable doubt, that the defendant took and drove the vehicle. The evidence is uncontradicted that he drove it and the inference is overwhelming that he took it.
If there be another explanation (given the incredible nature of the explanation proffered to the police), it would be contrary to common sense and would have to be provided by the defendant. In the absence of that explanation, common sense would be denied if the inference that the truck was taken was not drawn: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222; Fabre v Arenales (1992) 27 NSWLR 437 at 445.
The foregoing is not to import into the criminal law the inferences that may be drawn by reference to the principles in the High Court judgment in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. Rather, it is the process by which an inference may be drawn beyond a reasonable doubt, namely, that the inevitability of the inference must be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved: Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173; [1929] HCA 25; see also Carr v Baker (1936) 36 SR (NSW) 301 at 306-307.
In Carr v Baker, Sir Frederick Jordan CJ said: "The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: Hiddle v National Fire and Marine Insurance Co of NZ (17 NSWLR 46 at p. 49) - to such practical certainty as would justify a conviction in a criminal prosecution." (Carr v Baker at 306.)
The inference that the defendant "took" the truck, if not the subject of direct evidence by the co-accused, is of "such practical certainty as would justify a conviction in a criminal prosecution".

The time of the offence

As the Director of Public Prosecutions submits, issues relating to the particulars of offence are dealt with in the Criminal Procedure Act 1986. First, certain defects in an indictment (which is defined to include a CAN) do not render the indictment bad, insufficient, void, erroneous or defective: s 16 of the Criminal Procedure Act.
The provisions of s 16 of the Criminal Procedure Act render the omission of a time at which an offence was committed or the stating of a wrong time or the imperfect stating of a time not to be a matter which renders an indictment bad, insufficient, void, erroneous or defective, except where time is an essential ingredient of the offence: s 16(1)(g) of the Criminal Procedure Act.
It is unnecessary to trace at length how a CAN is treated as an indictment but reference should be made to s 175 of the Criminal Procedure Act allowing the promulgation of rules and r 3.11(2) of the Local Court Rules 2009. Further, indictment is defined in s 15(2) of the Criminal Procedure Act, for all purposes of Part 2 (which includes s 16) as including a CAN or any other process by which criminal proceedings are commenced.
The provision, insofar as it deals with the time of the offence, continues the distinction between essential factual ingredients of the actual offence and that which is a mere particular: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42. The distinction between essential factual ingredients and particulars has been the subject of a number of judgments: see, for example, De Romanis v Sibraa [1977] 2 NSWLR 264 at 291; Day v Rugala [1978] 33 FLR 208 at 212; Lodhi v R [2006] NSWCCA 101.
The essential elements of the offences in question do not include the precise time at which the offence occurred, unless, for example, by reason of the manner in which the proceedings were conducted, the time of the offence became essential. By way of further example, the time of an offence may become essential where an accused relies upon alibi for a particular time.
An essential ingredient of an offence may include the time in some circumstances, for example, where the offence involves a requirement that the victim be of a certain age or under a certain age or involves a result within a prescribed time. Nevertheless, it cannot be suggested in the circumstances of the charges with which the Local Court was dealing that the time of the offence was an essential element or ingredient of the offence.
Even if the time of the offence were an essential ingredient, or the timing in the charge denied to the accused a reasonable opportunity to prepare and to present a defence or to test the prosecution, then the Court would be required to allow an amendment to the charge or an adjournment to the defendant, respectively.
The learned Local Court Magistrate took the view that s 16 of the Criminal Procedure Act did not assist the prosecutor, because the defendant was not alleging that the charge was bad, insufficient or void, but was alleging that there had been no evidence of the offence having occurred at the time particularised in the CAN. Such an approach pays insufficient regard to the effect of s 16(2) of the Criminal Procedure Act.
The reference in s 16(2) of the Criminal Procedure Act to the variation between the evidence adduced in the proceedings and the statement of charge refers to the circumstance that the evidence in the proceedings may show that an offence occurred on a different day or at a different time than that which is charged (amongst other issues) and the mere fact that the evidence established a different time, did not render the statement of charge bad or the Local Court unable to determine the guilt of any accused.
As earlier stated, all of the foregoing is conditional on the accused (in this case the defendant) not being denied procedural fairness by basing a defence on the particulars and thereby being denied a proper opportunity to prepare and to present a defence or to test the case of the prosecution. No such allegation is made in these proceedings.
The time of the offence is a particular and is not an essential ingredient of the offence. In some respects, it would have been permissible for the prosecution not to insert a particular time, but leave the offence at the dates in question.
The mere fact that, on the evidence, the time at which the offences occurred was either earlier or later than the particular charge preferred does not render the charge insufficient and does not require or allow the dismissal of the charges on the basis that the evidence does not establish the charges in question. The essential ingredients of the charge were established and the Local Court Magistrate was required to find guilt.
As the Court of Criminal Appeal has made clear, a prosecutor is required to establish the essential facts alleged in the indictment and no more. The failure to establish, to the criminal standard, an inessential fact, including a particular, is not fatal to the charge. The Local Court has treated it as fatal in this instance. The Court of Criminal Appeal in R v VHJ (Court of Criminal Appeal (CCA), 7 July 1996, unrep) said: "As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualification are of present relevance. First, in some circumstances, the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.": R v VHJ, per Gleeson CJ, Handley JA and Studdert J agreeing. See also Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646, R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 at [20] and Lirisitis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 at [38], per Sackville AJA, Emmett AJA and Adamson J agreeing.
In this case there is no relevant unfairness and no complaint of a denial of procedural fairness associated with the proof of particulars of the offence that were not particularised on the CAN.

Conclusion

As a consequence of the foregoing analysis the learned Magistrate misunderstood the effect of s 16 of the Criminal Procedure Act and misunderstood or misapplied the distinction between essential elements of a charge and the particulars thereof. In so doing, his Honour erred and the error was an error of law and certainly "involves a question of law alone".
It was unnecessary for the prosecution to prove that the offences occurred at the time specified in the CANs. It was not submitted that, if error of the foregoing kind were disclosed, the error was other than one involving "a question of law alone".
In the circumstances the appeal must be allowed and the Court, in this matter, makes the following orders: 1. Appeal allowed; 2. Pursuant to s 59(2) of the Crimes (Appeal And Review) Act 2001 the order of the Local Court made on 7 October 2015 at Burwood Local Court dismissing proceedings against the defendant for the offences of (i) take and drive conveyance without consent of the owner, contrary to s 154A(1)(a) of the Crimes Act 1900; and (ii) drive whilst disqualified from holding a licence, contrary to s 54(1)(a) of the Road Transport Act 2013 be set aside; 3. Pursuant to s 59(2) of the Crimes (Appeal And Review) Act 2001 the order of the Local Court made on 7 October 2015 at Burwood Local Court awarding costs against the prosecutor in relation to the proceedings now under appeal, be set aside; 4. The matter be remitted to Burwood Local Court to be dealt with in accordance with law; 5. The defendant shall pay the plaintiff's costs of and incidental to the appeal.

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: 15 August 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (14)

Cited By (1)