Pizzano v Walker [2002] ACTSC 81 (27 August 2002)

Last Updated: 28 August 2002

PHILLIP PIZZANO v CONSTABLE FREDERICK WALKER

[2002] ACTSC 81 (27 August 2002)

CATCHWORDS

APPEAL - appeal from conviction in Magistrates Court - three informations determined at one hearing - whether consent of defendant necessary - joint admissibility of evidence - sufficiency of evidence - whether Magistrate had advantage over appeal court - whether a reasonable hypothesis consistent with offences being committed by someone other than appellant.

Evidence Act 1995 (Cth), s 98, Pt 3.8

Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455

R v Murphy [1985-1986] 4 NSWLR 42

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 17 of 2002

Judge: Miles CJ

Supreme Court of the ACT

Date: 27 August 2002

IN THE SUPREME COURT OF THE )

) No. SCA 17 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PHILLIP PIZZANO

Appellant

AND: CONSTABLE FREDERICK WALKER

Respondent

ORDER

Judge: Miles CJ

Date: 27 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Each of the convictions and orders of the Magistrate be set aside and the informations dismissed.

1. Phillip Pizzano appeals from his convictions in the Magistrates Court on 5 April 2002 on two charges of theft and another of attempted theft. There is no dispute that the thefts occurred. The only question on those charges is whether the appellant was the thief. On the third charge there is a question of whether an attempted theft was committed by anyone at all.

THREE INFORMATIONS, ONE HEARING

2. It should be noted that three separate informations were laid against the appellant, each alleging a separate offence on a separate date. There is no provision for an information to contain several counts. On the face of it each information was to be determined by way of separate hearing. However a defendant may consent to multiple informations being determined by way of single joint hearing, such consent curing whatever formal defect there may be in the process: see Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455.

3. This is presumably what happened in the present case. It would have been wise to have the consent of the appellant recorded. There was but a single appeal.

CROSS-ADMISSIBILITY OF EVIDENCE

4. I was told that a so-called "coincidence" notice had been given pursuant to s 98 of the Evidence Act 1995 (Cth) (the Evidence Act). It appears that the evidence on each information was received and dealt with by the Magistrate as relevant to each of the other two informations. No objection was taken at the hearing before the Magistrate or on the appeal to this Court. Again, however, it would have been wise to have the admission of evidence on this common basis recorded. As indicated below, I do not think that the evidence as to the attempted theft should have been admitted as relevant to the other two charges.

EVIDENCE BEFORE THE MAGISTRATE

5. All events occurred in the Canberra Hospital where the appellant was employed as a menu monitor. He had been so employed for 12 years and has no previous convictions.

6. The menu monitors wore a sort of uniform recognisable by the colour of the shirt and the logo of the hospital on it. The job of a menu monitor was to hand a menu card to each patient in the wards for which that monitor was responsible, or to leave the menu card on the end of the bed of the patient during the morning. The menu card with the patient's requests marked on it are collected by other staff and then sorted by the monitors. There is no dispute that the appellant was rostered to work the shifts during which the thefts occurred. He was the only male monitor on duty during the shifts in the wards in question. Another male menu monitor, Mr Clarke, was not on duty that day.

7. The first theft was on 15 July 2001. According to the evidence of Ms Natalie Campbell, she was a patient occupying bed B in room 28 in the antenatal ward. She shared the room with one other patient, Ms Isabella Mooney. Ms Campbell was out of the room for about an hour at lunch time. She left her wallet in the top drawer of her bedside set of drawers. On her return Ms Mooney spoke to her. She found a menu present on her bed and about $170 in cash, credit cards and similar items missing from her wallet. She might have been back in the room as long as an hour and a half before she realised that the contents of her wallet were missing.

8. Ms Mooney's evidence was that she had been in the hospital for some four to five days. Ms Campbell told her that she was going for a walk and left the room. Ms Mooney showered in the adjoining bathroom. As she was returning after 10 to 15 minutes she heard what she described as the drawers of Ms Campbell's locker being opened and shut and also the rustle of paper. She called out and saw a male person walk out from behind the curtains. That person said, "I'm just leaving a menu". He appeared to be wearing a sort of uniform of light blue shirt with dark pants and dark blue vest. She described him as light skinned, five feet six inches tall or more and 30 to 35 years of age. She had not seen that person before but saw him a couple of days later delivering menus. On one occasion or the other he wore glasses. On his departure from the room she found a menu on her bed and another on the bed of Ms Campbell. It was not until about two hours later that Ms Campbell found her purse or wallet or its contents were missing.

9. Ms Mooney was restrained by counsel from identifying anybody in the courtroom.

10. According to Nurse Karen Rollason, she was told of the theft shortly before 2.00 pm. She saw someone in the ward whom she recognised as a man working as a menu monitor. She described him as of average height, normal build with dark curly hair and olive skin. She did not say at what time she saw that person. She had been told that "an employee was seen behind the curtain".

11. The attempted theft was alleged to have occurred on 21 July 2001. Mrs Gail Elizabeth Davis was visiting her husband who was a patient in the oncology ward. There were four beds in that ward or room. In mid-morning a male person dropped off a menu on her husband's trolley which was at the end of his bed. The person put another on a vacant bed where he wrote on a piece of paper. The person was well dressed, well presented with dark hair rather than fair and with shiny black shoes. He closed the curtain. She saw his shoes move towards the head of the bed and out of sight. She heard what she considered to be bedside drawers closing. She was distracted by a nurse who came into the room and left. The male person walked out from behind the curtain and out of the room into the corridor. She spoke to the nurse about the male person and then noticed that no menu had been left on the vacant bed.

12. Mr Kevin Morris Summerfield also gave evidence of some events having occurred in the same room on 21 July 2001. He was one of the other patients occupying a bed in that room and was coming and going during the day. He found nothing missing. His evidence added nothing of substance to that given by Ms Davis. Ms Selina Ann Kearney also gave evidence of events on 21 July 2001. Apart from saying that she had seen the appellant delivering menus in ward 14B that morning, she added nothing to the evidence of the other witnesses.

13. The second theft occurred on the morning of 12 August 2001. Ms Cheryl Ann Foster was a patient in room 28 in the antenatal ward. She shared the room with another patient, Ms Antonia Villarreal. Her backpack with purse containing various items including cards was in the bottom part of the bedside unit. The zipper of the backpack was closed. Ms Foster was in the shower for 15 to 20 minutes at about 10.00 am. The curtains on her bed were three quarters drawn. When she returned she found a menu on the trolley at the end of the bed. Half an hour or so later she found the zipper of the backpack open and her purse missing. The purse without the cash was returned to her some weeks later from Queanbeyan Police Station.

14. Mrs Antonia Villarreal said that during the absence of Ms Foster, a "young fellow" about 21 or 22 years old came and left a menu with her and went to the other bed. She said that he stayed at the other bed for a "very little time", and that he appeared to bend down.

15. Both witnesses said that no other menu was delivered on 12 August 2001.

16. Robyn Kaye Rankin was the nurse in charge of the antenatal ward but added nothing of substance to the evidence of the other witnesses.

17. Silvia Williams, relief ward clerk in the antenatal ward on 12 August 2001, said that she saw the appellant. She recognised him in the white jacket which she had often seen him wearing. She said, "He could have been holding a clipboard". In cross-examination she agreed that she had seen another person in the ward at about the same time, a clean-shaven male, 170 cms tall, of medium build, olive skin with short dark hair. At first she agreed that this other person was with the appellant but later she said that they were not together. She agreed that the other person was carrying a clipboard.

18. In a recorded interview with police on 18 August 2001, the appellant agreed that he was working in the wards in question on the relevant dates but denied stealing or attempting to steal anything. The prosecution was not able to rely on anything else incriminating in what the appellant told the police. During the interview with the police the appellant repeated on more than one occasion that he "never touched anybody's property". He said that he had worked for 12 years on the job and that he "wouldn't have touched anybody's property - never have, never even thought to".

MAGISTRATE'S REASONS

19. The Magistrate's reasons were brief. They were given in part at the end of the prosecution evidence in response to a no case to answer submission on behalf of the appellant. The Magistrate at that stage said as follows:

"It seems to me at this stage that taking the prosecution evidence at its highest, that I accept what Ms De Veau says that I can be satisfied in relation to the fact that on 15 July and also on 12 August the thefts occurred.

I'm also satisfied that in relation to each of the incidents that it was a menu monitor, a male menu monitor that was the person involved, and at this stage in relation to the state of the evidence that includes also 21 July, in relation to the state of the evidence it seems to me that the evidence I have before me - well, there is evidence before me that it must only be Mr Clarke or the defendant, and in my view the evidence before me also at this stage allows me to draw the inference - well, I don't even know that it's an inference I need to draw, I think there's direct evidence that Mr Clarke was not there on either 21 July or 12 August.

And in relation to those matters on that basis I'm satisfied that there's a case to answer in relation to the defendant, and bearing in mind those matters I'm also satisfied that there's a case to answer in relation to 15 July concerning the defendant."

20. The record before me on the appeal appears to be deficient but I infer that the appellant then elected not to give evidence and further submissions were made on whether the prosecution case was made beyond reasonable doubt. The Magistrate concluded as follows:

"Yes, I'm not sure about that last submission about needing coverage, but if the purport of that submission is to indicate that there could be another person that has not been considered, other than Mr Clarke or Mr Pizzano involved, then in my view that's not based on the evidence and it's not a reasonable hypothesis.

And in relation to - well I think, bearing in mind the evidence before me, as I said before I'm satisfied of those things beyond a reasonable doubt that the thefts occurred and that it was in fact an employed menu monitor who was the only reasonable person - was the only person who had the reasonable opportunity to commit those thefts.

In each of the cases the defendant is one of the people that - well, is the person in my view that is at the same place, and despite the fact that the rosters may have said something different, there is evidence that the rosters - the places that the menu monitors can work can be changed without the administration section knowing, and the defendant in fact was placed by other people at the scene in relation to the last two incidents, the incident on 21 July and 12 August.

I'm satisfied beyond a reasonable doubt that it was in fact the defendant who stole the purse on 12 August, and accordingly who also stole the wallet on 15 July. In relation to the attempted theft, bearing in mind that I'm satisfied that it was the defendant that was at the bedside and opening a drawer, and on the basis of the other two findings I'm satisfied that he must have been attempting to steal."

SUBMISSIONS ON THE APPEAL

21. The case against the appellant on each charge was entirely circumstantial and hence not the sort of case in which the Magistrate had any real advantage in seeing and hearing the witnesses. As already indicated, the appellant gave no evidence. It was purely a question in each case whether the only reasonable hypothesis consistent with the established facts was that the appellant was guilty of the offences under consideration.

22. As there was no issue that there was a theft on 15 July and 12 August 2001, the question became more precisely whether the only reasonable hypothesis was that the appellant was the person seen by the witnesses to be in the vicinity as deposed to by them. However in relation to the events on 21 July 2001 there was also a real issue whether there was any attempted theft on that date at all. In that regard, counsel for the respondent conceded on the appeal that the case against the appellant was much weaker and that without the findings that it was the appellant who committed the thefts on the other two days, there could be no inference at all of any attempted theft on 21 July 2001 by anybody.

23. In my view, the evidence of what happened on 21 July 2001 was of very dubious probative value for the purpose of showing that there was an attempted theft on that date and of no value at all for the purpose of proving the offences on the other dates. It would have been better to disregard the evidence of the former as capable of supporting the latter and vice versa.

24. That being so, the probative weight of the evidence of what occurred on 15 July and 12 August 2001 falls to be examined with greater scrutiny. Before that exercise is carried out however, there is a further matter that needs to be considered.

CHARACTER

25. The statements of the appellant to the police, in my view, clearly raise the matter of his previous good character, that of an employee of 12 years standing with no previous convictions. The Magistrate did not consider this matter of prior good character. I am told that in addresses counsel raised the question. The Magistrate therefore should have had regard to the prior good character of the accused and taken it into account on the central question whether the prosecution had proved the appellant's guilt beyond reasonable doubt, and also on the ancillary question whether the appellant's protestation of innocence to the police, although not evidence in the sense of sworn evidence, was capable of acceptability. By not taking good character into account, the Magistrate, in my view, fell into appellable error. The provisions of Pt 3.8 of the Evidence Act lay down conditions as to the reception of evidence about the prior character of an accused person, which conditions may not have been complied with in the present case. However, the evidence was in, as was the concession by the prosecution about the character of the accused. The relevance of that evidence remains: see R v Murphy [1985-1986] 4 NSWLR 42.

26. The prior good character of the appellant renders it less likely that he was a person who would abuse his position of trust in the hospital to resort to the despicable practice of stealing from patients absent from their beds. It also renders more credible the appellant's denial to the police that he was not involved in any way in the thefts.

27. In these circumstances it seems to me that there must be some doubt as to whether the appellant was the person observed by the witnesses to be in the wards in the vicinity of the beds handing out menu cards on the two days when the thefts occurred. In other words, the prosecution has not excluded the reasonable possibility that somebody else, possibly dressed to look like a menu monitor, was that person on both occasions or on either occasion. The various physical descriptions given by the witnesses do not tally in all respects and in any event there is nothing distinctive about them. They fit all sorts of men.

28. Although it is difficult to account for a menu being left if it were not left by the appellant, in my view, that difficulty is not sufficient to dispel the general doubt about the appellant's guilt. It is a matter of common knowledge that there is relatively free movement of persons in and around hospital wards. Hospitals are notoriously short staffed, and the possibility that somebody other than the appellant gained entry for the purpose of the thefts is a reasonable and not merely a fanciful possibility.

29. The appeal should therefore be allowed and each of the convictions and orders of the Magistrate set aside and the informations dismissed. I shall hear the parties on costs if they wish to be heard.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 27 August 2002

Counsel for the Appellant: Mr J Sabharwal

Solicitor for the Appellant: Romano & Co Solicitors

Counsel for the Respondent: Mr B W Standish

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 30 July 2002

Date of judgment: 27 August 2002