2 HIDDEN J : The applicant, Reginald George Roberts, awaits trial in the District Court on charges of publishing a false statement with intent to obtain money (s178BB of the Crimes Act 1900) and stealing a motor vehicle (s154AA). He applied for a permanent stay of the proceedings before Backhouse DCJ, who refused the application. He seeks leave to appeal against that decision, pursuant to s5F of the Criminal Appeal Act 1912.
3 The first charge alleges that in September 1990 at Nowra the applicant made a false insurance claim on the basis that a Kenworth truck had been stolen, when in fact it had not. The second charge alleges that he stole a Commodore sedan at Lithgow in February 1992. The Crown case is founded primarily upon evidence that in mid-1994 a Kenworth truck and a Commodore sedan were found in the possession of the applicant at premises in South Australia. It is alleged that the truck is the same vehicle which the applicant had claimed was stolen in 1990, and the Commodore is the vehicle which was stolen in 1992. For those propositions the Crown relies upon expert evidence.
4 Both vehicles were examined by Constable Peter McKenzie of the South Australia Police Technical Services Branch, whose training included the examination of motor vehicles. As to the Kenworth truck, he found that the engine number on the Caterpillar engine had been obliterated, as had the chassis number on the front right chassis rail. When he examined the identification plate (or compliance plate) attached to the right-hand side fire wall, he found that an attempt had been made to remove the chassis number originally stamped on that plate and another number had been stamped over it.
5 He removed the identification plate from the vehicle for microscopic examination. He was able to determine that the chassis number originally stamped on the plate was 406382, which proved to be the chassis number of the vehicle which the applicant had reported as stolen. Also found at the applicant's premises in 1994 was a set of steel marking stamps for the impression of numbers onto metal, and the constable was able to report that several of those stamps had been used to insert the false chassis number on the identification plate.
6 As to the Commodore sedan, he found that the original compliance and vehicle identification plates had been removed and plates from a similar model vehicle had been attached. The engine number on the left side of the engine block had been obliterated and the chassis number, located on the top left side of the dashboard behind the front windscreen, had been concealed or removed. However, he was able to find a vehicle identification number on a broadcast sheet under the carpet on the passenger's side and also behind the front left headlight. That number, 503029, was found to belong to the vehicle stolen at Lithgow.
7 In an initial report, Constable McKenzie noted that both vehicles had been reported stolen and recommended that they be retained. Nevertheless, they were disposed of later in 1994 and, inexplicably, it appears that neither of them can now be traced. It is primarily this fact which gave rise to the application for a permanent stay. Evidence was led before Backhouse DCJ of the process of identification of a Kenworth truck, to which I now turn. I shall deal with the Commodore sedan later.
8 Mr Alan Stead, National Service Manager of Kenworth Trucks, gave evidence. He explained that the company's trucks are custom built and that most of their components, including, for example, transmission and axles, have their own serial numbers. For each truck comprehensive documentation setting out its components, known as a "bill of material", is prepared, and the company keeps microfiche records of them. He said that, to identify a particular vehicle, one would have to check not only the chassis number and engine number but also the serial numbers of all the major components.
9 He saw the chassis number as a very important reference, describing it as "our bible". However, he explained that, if the chassis number were discernible only from the identification plate, it would not provide reliable identification of the vehicle as the plate could have been removed from another truck. We received in evidence the transcript of Constable McKenzie's evidence at the committal proceedings, although it is not clear whether this material was before her Honour. There, the constable had said that his identification of the truck was entirely dependent upon the identification plate, and the plate appeared to have been riveted on to the fire wall after the new numbers had been punched onto it. Of course, this does not necessarily mean that the plate had come from another truck: it could have been removed from that truck and been replaced after the attempt to alter the chassis number.
10 Mr Stead went on to explain that the various component parts could be transferred from one truck to another. As he put it, "Kenworth trucks are a meccano set, anything can be changed around on it". Hence the need to check all the parts bearing serial numbers to ensure a reliable identification of a vehicle. Her Honour also had an affidavit of Mr Raymond Cool, who was experienced in the recovery and repossession of trucks over a lengthy period. That affidavit was not before us, but its effect was summarised in her Honour's reasons in this way:
In effect he stated the only way to identify a truck is to examine the totality of it; every item taken together identifies the truck. …It is too simplistic to look at major components.
11 Accordingly, argued counsel for the applicant, Constable McKenzie's examination of the truck was inadequate and, as the vehicle cannot now be located, it is not possible to conduct the sort of detailed examination recommended by Mr Stead and Mr Cool. The applicant cannot have a fair trial, it was said, because he has been deprived of the opportunity to establish that the truck found in his possession is not the one which he had reported stolen. It was pointed out that it is the behaviour of the prosecution authorities which has put him in this position.
12 The Crown prosecutor submitted that the result of any further examination of the truck is purely a matter of speculation. He also relied on the apparent strength of the Crown case. It would be a remarkable coincidence, he said, for the identification plate from the vehicle which the applicant reported stolen to have later found its way on to the vehicle found in his possession. He emphasised the significance of the fact that steel marking stamps found at the applicant's premises had been used to stamp a false chassis number on that plate.
13 Her Honour accepted that the Crown case is a strong one, adopting a submission by the Crown prosecutor "that while the accused has no onus whatsoever the fact of the matter is that without some explanation, if that is all the jury has then it seems impossible to envisage them concluding that it wasn't the same vehicle". However, this was not her only reason for refusing the application. She commented upon the seriousness of the alleged offences and the public interest in the prosecution of people suspected of crimes of that kind. Further, she did not consider that the applicant's loss of an opportunity to examine the truck resulted in such unfairness as to warrant the permanent stay of the proceedings. She was of the opinion that "the procedures and discretions available to a trial judge" would be sufficient to remedy any unfairness. Her Honour was guided by the principles enunciated by Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at 30ff and, in particular, the Chief Justice's observation (at 34) that a permanent stay should be ordered "only in an extreme case…".
14 No evidence was led about the assembly of Holden Commodores (which, presumably, are mass produced). Nevertheless, the same submission was made as to the charge relating to the Commodore, that is, that the applicant was unable to have it more thoroughly examined. That argument met the same fate. It seems that the application was based also on the delay since the applicant's arrest, but that was not pressed as an independent basis for a permanent stay. Nor was it in this Court.
15 Before us, senior counsel for the applicant submitted that her Honour's discretion had miscarried. As to the charge involving the truck, he argued that her Honour based her decision that there was no unfairness warranting a stay purely upon her finding that the evidence was sufficient to warrant a verdict of guilty. Reference was also made to the passage from the judgment, quoted above, in which her Honour said that it seemed impossible to envisage the jury "concluding that it wasn't the same vehicle". This was said to have reversed the burden of proof, the true question for the jury being whether they were satisfied beyond reasonable doubt that it was the same vehicle. Clearly, that is so but, reading the passage as a whole, I am satisfied that this was a slip of the tongue and it does not persuade me that this Court should intervene.
16 Her Honour was called upon to make a discretionary judgment, and I can detect no error in her approach to the matter. It is true that she referred to the strength of the Crown case but, as I have said, that was not the only foundation for her conclusion. She dealt appropriately with the potential unfairness to the applicant, having regard to the public interest in the fairness of trials, on the one hand, and the prosecution of persons charged with serious offences, on the other.
17 For the same reasons, it cannot be said that her Honour's discretion miscarried in relation to the charge concerning the Commodore. Indeed, senior counsel for the applicant realistically conceded that, as to that charge, he was on much weaker ground.
18 Certainly, it is regrettable that the Kenworth truck was not examined more thoroughly and that both vehicles were not retained, although whether further examination of either of them would have assisted the defence case will never be known. No doubt, the loss of that opportunity will be the subject of comment by counsel for the applicant at his trial and will found an argument that the evidence is inadequate to identify the vehicles (or, at least, the truck). At the end of the day, however, this is one of a number of cases in which the unavailability of evidence does not warrant the grant of a permanent stay: see R v Tolmie (CCA unreported, 7 December 1994) and the cases referred to at p5 of the judgment of Hunt CJ at CL.
19 I would propose that leave to appeal be granted, given the unusual circumstances of the case, but that the appeal be dismissed.