Santos v R [1987] HCA 55; (1987) 75 ALR 161; (1987) 61 ALJR 668; (1987) 29 A Crim R 122 (12 November 1987)

HIGH COURT OF AUSTRALIA

LUCIANO SANTOS and ROY CARRION v. THE QUEEN
F.C. 87/055

High Court of Australia
Mason C.J.(1), Brennan(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
12:11:1987

DECISION

MASON C.J., BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ. The applicants were tried jointly and were convicted of armed robbery. Their appeals against their conviction were dismissed by the Court of Criminal Appeal of South Australia. They now apply for special leave to appeal against the dismissal of their appeals.

2. The information of the Attorney-General charged that on 1 February 1986, at Belair, being armed with an offensive weapon, namely, a piece of metal pipe, they robbed Norman John Hauth of $1,056.76 in cash and a cheque in the sum of $317.00. The Crown case was that at about 8.55 p.m. on 1 February 1986, two masked men held up members of the staff at the bottle department of the Belair Hotel and robbed them of the sum of money and a cheque. The men were in a Ford Cortina. This car was located by police at 9.10 p.m. near a railway line not far from the hotel. A police tracker dog followed a trail from the vicinity of the car at about 9.30 p.m. in the general direction of a flat where the applicants were living. The dog lost the trail 500 or 600 metres from the flat. The Ford Cortina was stolen from the Mitcham area. On 17 February at about 2.30 p.m. the police raided the flat which was occupied by the applicants and arrested them on suspicion of armed robbery. The police gave evidence that amongst the articles which they took from the flat were a pair of tracksuit pants and a top. Mrs Evans, the owner of the Ford Cortina, gave evidence that these garments were in her car when it was stolen. There was evidence from the police that the applicants confessed to the crime, the confessions being recorded in a record of interview. According to the police evidence Carrion, who was unable to read and write, acknowledged his record of interview with a cross. Carrion denied that he was unable to read and write and that he acknowledged the record of interview in any way. Santos refused to sign his record of interview. The applicants gave evidence denying the charge of armed robbery, that there was an interview of the kind claimed by the police and that they made a confession. Carrion denied that he made the cross. They each denied any knowledge of the tracksuit pants and the top. The detectives were cross-examined on the footing that they had fabricated the evidence that these garments were found in the flat.

3. The applicant Santos raises three points in support of his application for special leave to appeal. They are:

(1) that evidence of the confessions should have been
excluded by the trial judge in the exercise of his
discretion on the ground that the detention in custody
of the applicants at the time when the confessions were
alleged to have been made was no longer authorized by
s.78(2) of the Summary Offences Act 1953 (S.A.);
test and failed to evaluate the prejudicial effect of
evidence of the applicant Santos' bad character when it
ruled that the trial judge had exercised his discretion
correctly in refusing to discharge the jury on account
of the disclosure of Santos' bad character; and

(3) that although the case was left to the jury on the
footing that the jury could convict on the basis of the
circumstantial evidence alone without relying on the
confessional evidence, the circumstantial evidence was
inadequate to sustain a conviction and that the Court of
Criminal Appeal should on that account have quashed the
conviction on the ground that it was unsafe.

The applicant Carrion relies on points (1) and (3) above. The first of these points is of sufficient general importance to justify the grant of special leave to appeal.

Section 78 of the Summary Offences Act

4. In order to demonstrate the use which the applicants make of s.78(2), we shall set out the relevant evidence in some detail. The police arrested the applicants at gunpoint in their flat at about 2.30 p.m. on 17 February on suspicion of armed robbery. They were then taken to police headquarters and held in interview rooms while police investigated the robbery. Between 3 p.m. and 5.30 p.m. they were held in detention, being interrogated by Detective Sergeant Fellows. At 5.50 p.m. Santos was delivered into the custody of Sergeant Fleet, the officer in charge of the City Watch House attached to the Adelaide Police Station, and was charged with escaping from lawful custody. This charge related to his escape from prison at Goulburn, New South Wales. At that stage the police had insufficient evidence to charge the applicants with armed robbery. Earlier at about 3 p.m. the investigating police became aware that the applicants were escapees from lawful custody in New South Wales, and that no further investigation of that offence was necessary. According to the police evidence, the interview with Carrion took place between 5.20 p.m. and 6.50 p.m. and, as he confessed to the offence of armed robbery, he was thereupon charged.

5. At 10.25 p.m. Detectives Couch and White obtained permission from Sergeant Fleet to interview Santos. He was removed from a cell to a line-up room where he was left with the police, the door being locked. The interrogation ended at 11.10 p.m. Santos gave evidence that he did not wish to leave his cell and would not have done so had he known the reason for his removal.

6. Counsel for Santos submits that he was transferred from the custody of Sergeant Fleet to the custody of Detectives Couch and White and that the transfer was illegal because it was not authorized by a magistrate pursuant to s.78(3). The trial judge ruled that, notwithstanding Santos' removal into a line-up room with the detectives, he remained in the custody of Sergeant Fleet. In the Court of Criminal Appeal King C.J. (with whom Jacobs and Millhouse JJ. agreed) considered that the trial judge was correct in so holding.

7. Section 78 of the Summary Offences Act, so far as it is material, provides:

"(1) Subject to this section, a person who is
apprehended without warrant shall be forthwith
delivered into the custody of the member of the
police force in charge of the nearest police
station.

(2) Where a person is apprehended, without
warrant, on suspicion of having committed a serious
offence, a member of the police force may, for the
purpose of investigating the suspected offence -

(a) detain that person, prior to delivering him
into custody at the nearest police
station, for so long as may be necessary
to complete the investigation of the
suspected offence, or for the prescribed
period, whichever is the lesser;

and

(b) take that person, or cause him to be taken,
during the course of detention under this
subsection, to places connected with the
suspected offence.

(3) Where a person has been delivered into
custody at a police station in pursuance of this
section, he may, on the authorization of a
magistrate, be temporarily removed from that
custody to the custody of a member of the police
force for a purpose related to the investigation of
an offence."

8. Section 78(6) defines the expressions "the nearest police station" and "the prescribed period" for the purposes of the section. "The nearest police station", in relation to a person apprehended without warrant, means -

"(a) the police station nearest the place of
apprehension at which facilities are
continuously available for the care and
custody of the person apprehended;

or

(b) in the case of a person apprehended within a
radius of 30 kilometres from the General Post
Office at Adelaide -

(i) the police station at Adelaide known
as the City Watch House;

or

(ii) any other police station within
that radius at which facilities are
continuously available for the care
and custody of the person
apprehended ..."

The definition of "the prescribed period", as applied to the circumstances of the present case, fixed a period of four hours.

9. Counsel invites us to endorse the interpretation of s.78 which was adopted by White J. in The Queen v. Wilson & Ors (unreported - 6 March 1987), with some support from a judgment of Johnston J. in The Queen v. Bennett and Clark (1986) 131 LSJS 477, that interpretation having been rejected by the Court of Criminal Appeal in the present case. White J. attached importance to the circumstance that the old s.78, which was replaced by the present provision, had caused difficulties. As interpreted, the old section permitted investigating officers access in two situations to a person in custody who had been apprehended without a warrant; first, where the officer in charge of the police station delegated his custodianship of the person apprehended to the investigating officers, they having satisfied the officer in charge that they required the person apprehended for genuine investigatory purposes (The Queen v. Conley (1982) 30 SASR 226, at p 242); and, secondly, where access was granted for further questioning without removal of the person from the custody of the officer in charge: The Queen v. Johnston (unreported - judgment of Cox J. delivered in August 1981). In the second situation the person apprehended was regarded as still being within the custody of the officer in charge if he was still within the complex of buildings under the jurisdiction of the officer in charge. White J. took the view that the new section provided for investigating officers to have two opportunities to complete their investigations, one before the apprehended person is delivered to the officer in charge of the station and the other afterwards, but then subject to the authorization of a magistrate.

10. This interpretation takes too much from the section, especially sub-s.(3). The object of the section is to ensure that, subject to the stated exceptions in sub-ss.(2) and (3), a person apprehended is forthwith delivered into the custody of an officer in charge of the nearest police station so that he may be charged and apply for bail. Sub-section (2) does not terminate the authority to detain which it confers as soon as the investigating officers are in a position to lay a charge for any offence. Sub-section (3) plainly implies that the person apprehended cannot be removed from the custody of the officer in charge, without the authorization of a magistrate, for a purpose related to the investigation of the offence. But neither that sub-section nor any other provision in the section prohibits further investigation of an offence by means of interrogation of the person apprehended so long as he remains in the custody of the officer in charge and he is willing to answer questions. See Williams v. The Queen (1986) 161 CLR 278, at pp 284, 306. The section makes no provision authorizing further interrogation of the person apprehended while he remains in the custody of the officer in charge for the very good reason that such authorization is not required, there being no prohibition against such interrogation. This being so, the question whether the interrogation involves a removal from the custody of the officer in charge is a live question, just as it was under the old s.78.

11. The applicant Santos submits that because the interrogation took place in a locked room the applicant was no longer in the custody of the officer in charge of the station. The thrust of the submission is that in this situation the officer in charge was unable to exercise personal supervision over the applicant. But there must be many instances in a large police station where, by reason of distance and geographical separation, the officer in charge is unable to exercise personal supervision over particular persons who are held there. This does not mean that they are not in his custody, personal supervision being a concept different from custody. The section, when it speaks of the custody of the officer in charge, refers to control which that person exercises or is capable of exercising over persons within the station in virtue of his office. No doubt in some circumstances the officer in charge may surrender his custody of a person apprehended to another officer within the police station. But the materials do not support this inference. Sergeant Fleet's grant of permission to the detectives to interview Santos within the station is consistent with his retention of custody, rather than with a surrender of his custody. The locking of the room, which seems to have been in accordance with the general practice applicable to use of that room, did not amount to a surrender by Sergeant Fleet of his custody. Nor did the locking of the room operate as a removal of Santos from that custody. There is nothing to suggest that the locking of the room had as its purpose the exclusion of the officer in charge or the suspension of his control of the applicant.

12. Accordingly, the detention of Santos was not unlawful and the trial judge was not in error in refusing to exclude the evidence of his confession. The circumstances of Carrion's detention were different. Although it is possible that his interview ended outside the four hour period, on the police evidence he confessed to the crime well within that period so that the trial judge was not in error in refusing to exclude Carrion's confession.

The Refusal to Discharge the Jury

13. The applicant Santos points to evidence of four matters which, he claims, amounted to evidence of bad character. In answer to a question from counsel for the Crown, Sergeant Fleet, referring to Santos, said, "He was charged at 1750 hours or 5.50 p.m." According to other evidence, Santos was not charged with armed robbery until 11.30 p.m. approximately. The jury could infer, as indeed was the fact, that Santos had been charged with another offence at 5.50 p.m. King C.J. expressed the view, with which we agree, that it would require a particularly astute juror to draw this inference. His Honour was correct in treating the answer as inconsequential.

14. The applicant then pointed to evidence given that on two occasions before the robbery he had used a false name. He gave the name "Delborn" in connection with the tenancy of the flat which he and Carrion occupied. And he and Carrion used the name "J. Mitchell" when they spent two nights at a motel immediately before moving to the flat. The Court of Criminal Appeal rightly concluded that this evidence was admissible on the footing that it was part of the history of the applicants' movements prior to the robbery. Furthermore the use of the name "Delborn" was relevant to evidence that the applicants made use of a bank account in that name just before the robbery. Their financial transactions at this time were relevant to motive.

15. The next matter complained of relates to evidence given by Carrion. He said that he and Santos were accompanied to Adelaide by a third man who stayed with them at the motel and who accompanied Santos to make arrangements for occupation of the flat. The third person then returned to Sydney. He also provided the rent for the flat. In cross-examination Carrion at first refused to name this man otherwise than as John, but later admitted that he was John Delborn. In re-examination Carrion explained his reluctance to identify Delborn by saying that he did not want Delborn "to get into trouble for helping us escape". He then gave this evidence:

"Q. What do you mean by that?

A. Well I escaped from New South Wales and he
helped us get a flat and everything.

Q. What date did you escape from prison?

A. 15th January.

Q. And this accounts why you answered the
question you stayed at the flat most of the
time, isn't that right?

A. That is right. I didn't want to get
recognised because I got tattoos all over
me."

16. The decision by Carrion to disclose that they were escaped prisoners was his decision and could not be a cause for complaint on his part. But the disclosure, it is argued, worked a miscarriage of justice so far as Santos was concerned. The trial judge exercised his discretion to continue with the trial and refused to discharge the jury.

17. In the Court of Criminal Appeal King C.J. dealt with the matter in this way:

"An appellate court will call into question the
exercise of the trial judge's discretion to
continue the trial, notwithstanding the
disclosures, only in exceptional circumstances. A
conviction following the exercise of the discretion
to continue the trial will be set aside only if the
appellate court is convinced that, making full
allowance for the discretionary nature of the
decision to continue the trial, there has
nevertheless been a miscarriage of justice in
consequence of the disclosures. I think that in
all the circumstances the learned judge exercised
his discretion correctly and that the disclosure
that the appellant Santos was a prison escapee has
not led to a miscarriage of justice."

18. The applicant submits that this statement of the principle is incorrect in that it departs from the principle applied by this Court in Maric v. The Queen (1978) 52 ALJR 631; 20 ALR 513. There Gibbs ACJ. (with whom Jacobs and Mason JJ. agreed), with reference to a conviction following the reception of evidence which was both inadmissible and gravely prejudicial, said (at p.635; pp.520-521 of ALR):

"At basis the question is whether the Court of
Criminal Appeal can be satisfied that the
irregularity has not affected the verdict and that
the jury would certainly have returned the same
verdict if the errors had not occurred ..."

See also Simic v. The Queen [1980] HCA 25; (1980) 144 CLR 319, at pp 330-332. It follows that in the passage quoted from his judgment King C.J. stated the principle in such a way as to place too heavy a burden on an appellant who seeks to establish that a miscarriage of justice has occurred. However, in a later passage in his judgment to which we shall refer shortly, when dealing with the evidence of Mrs Tilbrook, King C.J. stated the principle correctly and cited Maric. In these circumstances we are not persuaded that the Court of Criminal Appeal misunderstood or misapplied the correct principle.

19. In any event we are not convinced that the applicant has made out a foundation for the application of the principle. There was no error in the reception of the evidence in question at the trial. It was introduced by Carrion in order to explain his reluctance to identify Delborn. But it was admissible as against Santos as well because it showed, along with the other evidence to which we have referred, including the evidence as to the account in the name of Delborn, that the applicants were on the run and had a motive to commit the crime with which they were charged.

20. One of the consequences of a joint trial is that accused A may lead evidence which is inadmissible against accused B or seriously prejudicial to him. Then it is for the trial judge to consider, if application is made for a discharge of the jury, whether the prejudice is so grave as to require that course to be followed or whether by means of an appropriate direction a fair trial can be ensured. If, as here, the trial judge exercises his discretion in favour of continuing the trial, it is for him to explain to the jury the use to which the evidence can be put and to direct them that it cannot be used against the accused B. In this case the trial judge specifically directed the jury that they should not conclude from Carrion's evidence that he was a person of bad character and that he was likely to have committed the offence charged. His Honour concluded his comments on the evidence with these words:

"But it is only in relation to Carrion's personal
explanation about those other matters to which that
is relevant, and it relates of course to him, and
to him alone, and you must not speculate about that
any further."

The direction might have been more emphatic. However, his Honour may have thought it undesirable to give the matter more prominence so far as Santos was concerned, lest that might magnify the potential for prejudice. No request for an additional direction was made.

21. The final evidence indicative of bad character to which counsel points was evidence that the applicants were in possession of female clothing taken from a vehicle stolen two weeks after the robbery and subsequently found by the police in the flat occupied by the applicants. Mrs Tilbrook, a Crown witness, gave evidence that her car had been stolen on 15 February and that certain female clothing had been in the car when it was stolen, including the clothing identified by police as being in the applicants' flat. The evidence was admitted over objection. The trial judge seems to have admitted the evidence on the ground that it tended to establish that the applicants or one of them had a practice of taking female clothing and that the existence of such a practice tended to disprove the applicants' case at the trial that the police had fabricated the finding in the flat of the tracksuit pants and top which had been in the Ford Cortina when it was stolen. In the Court of Criminal Appeal the Crown prosecutor acknowledged that evidence that the female clothing was stolen from Mrs Tilbrook's car was inadmissible. The Court concluded that it was inadmissible, proof of the finding of the clothing in the flat being sufficient in itself to establish the practice, without evidence linking the clothing to the stolen car.

22. King C.J. acknowledged that the evidence of Mrs Tilbrook had a tendency to implicate the applicants in wrongdoing concerning her car and its contents. But his Honour considered that it "led to no very definite conclusion in that regard". His Honour went on to say that any impression formed by the jury as a result of this evidence paled into insignificance compared with the knowledge which the jury had that the applicants were escaped prisoners. His Honour then said:

"I feel no doubt that the jury accepted the police
evidence that the appellants had confessed the
crime and disbelieved the appellants' allegations
of fabrication. I do not think that whatever
impression the jurors may have got from Mrs
Tilbrook's evidence, would have had the slightest
effect upon their minds in deciding the crucial
issue as to the truth or otherwise of the
confessional evidence. I do not think that the
inadmissible evidence could have made the slightest
difference to the outcome of this case and I am
satisfied that the admission of the evidence has
not affected the verdict and that the jury would
certainly have returned the same verdict if the
evidence had not been admitted, R. v. Maric."

The concluding sentence in this passage is a correct statement of the principle and indicates, as we have already pointed out, that the earlier passage in the judgment should not be regarded as showing that the Court of Criminal Appeal misunderstood the principle.

23. But it is the first sentence in the passage just quoted that creates a problem. It is crucial to the conclusion that there was no miscarriage of justice. Yet there is no way in which the correctness of the statement can be demonstrated. Santos' refusal to sign his record of interview and Carrion's denial of his acknowledgment in the context of his claim that he could read and write were factors which might have caused a reasonable jury to hesitate before accepting the police evidence of the confessions in preference to the evidence given by the applicants. Absent a foundation for concluding that the jury accepted the confessional evidence, then the stated basis for the conclusion that there was no miscarriage becomes impossible to sustain. The admission of the evidence relating to the female clothing taken from Mrs Tilbrook's car might have been productive of a miscarriage of justice on the alternative basis on which the Crown case was put to the jury and with which we now deal.

Circumstantial Evidence

24. As indicated earlier, the Crown case consisted of circumstantial and confessional evidence. The Crown prosecutor put to the jury that, if they were not satisfied to act upon the confessions, the circumstantial evidence, if accepted, was alone sufficient to sustain a conviction. The trial judge lent his support to that approach, directing the jury in these terms:

"The Crown suggested to you that such was the
importance of that evidence and the accused's
denial of the existence of that clothing (i.e. the
clothing from the Ford Cortina) in the flat, that
that evidence combined with other circumstantial
evidence can justify a conviction. That is that
you could convict the accused, even without the
reference to the alleged confession. If you were
minded to reason in that way, then you will have to
bear in mind the direction that I gave you
yesterday on circumstantial evidence. That is you
can only convict on evidence comprised solely or
mainly of circumstantial evidence if there is no
reasonable or rational hypothesis or explanation of
that evidence consistent with innocence."

The jury were thus directed that it was open to them to convict on the basis of the circumstantial evidence standing alone.

25. The Court of Criminal Appeal did not assess the sufficiency of that evidence standing alone to sustain the conviction because the Court concluded that it was unnecessary to do so, being persuaded that the jury had accepted the confessional evidence. In the light of our conclusion that we are not justified in finding that the jury accepted the confessional evidence, we must now determine whether a reasonable jury could have convicted on the basis of the circumstantial evidence standing alone.

26. The Crown case based on circumstantial evidence may be summarized in this way. Mr Hauth and Mr King, bottle shop attendants at the Belair Hotel, gave in evidence a description of the offenders which, it is claimed, matched the applicants' appearance. However, the description given by the witnesses was extremely general. Hauth said that they were of average height 5'6" or 5'7". Although King stated that the offenders "moved freely in the manner of young men", he conceded that their ages were possibly within a range extending to 40 years, and he said that he was able to give to the police "only the barest description" of the men. In fact Santos was 25 and Carrion 26. The Crown claimed that shoes found at the flat matched the description given by Hauth of the shoes worn by one of the offenders. However, Hauth acknowledged that he was not sure whether the shoes were either sandshoes or running shoes and that they may or may not have been of canvas.

27. The next matter on which the Crown relied was that the applicants lived within a short distance of the place where the stolen vehicle used for the robbery was found. This evidence was not of much significance because there was evidence from a police officer that the get away vehicle is often abandoned near the scene of the robbery, as this vehicle was, and another car used from that point.

28. The Crown also relied on the evidence relating to the tracker dog. The get away car was abandoned at the end of a street which ended at a railway line which was two tracks wide. A car could not cross the railway tracks at that point. On the other side of the railway track from where the car was abandoned, another road commences after one has scaled a small grassy hill. Initially the tracker dog followed a trail from the vicinity of the get away car and straight across the railway tracks in the direction of the road on the other side of the track, away from the applicants' flat. It crossed over the first railway track and proceeded to the second railway track where it appeared to lose the trail. When taken to the grassy hill the dog was unable to pick up a pedestrian trail there. The dog appeared to pick up a trail on the eastern railway track which led in the general direction of the applicants' flat. The dog followed the trail in the general direction of the applicants' flat until it executed a turn of at least 90. in order to follow a fresher trail apparently left by a school girl who was walking home on a path alongside the railway line. The movements of the tracker dog were consistent with the view that the true perpetrators of the robbery had left another vehicle on the other side of the railway, thus ensuring police or other motor vehicles could not pursue them by car. The evidence is therefore equivocal.

29. The Crown's evidence as to the applicants' financial position was of limited significance. Although they were short of money they had access to funds through a flexicard that operated on a Sydney account. There was evidence from a witness Roessler that he had seen money on a table in the applicants' flat a few days after the robbery. He was asked if it was something like $50 or $60 and he said he was not sure and it could have been more.

30. The most significant circumstantial evidence was that relating to the presence of the tracksuit top and pants in the applicants' flat. The applicants denied all knowledge of the items of clothing and alleged that the police fabricated the evidence. Nothing else connected with the robbery was found at the flat.

31. There were two factors which might have affected the jury's finding on the issue whether the tracksuit pants and top were in the applicants' flat as the police alleged. The first was the credibility which the jury would have attributed to the evidence of the police witnesses who were the witnesses who gave evidence of the confessions. As the jury would have found it necessary to consider the sufficiency of the circumstantial evidence standing alone only if they had entertained a doubt about the police evidence of the confessions, the jury might well have refused to accept beyond reasonable doubt the police account of the finding of the tracksuit pants and top in the applicants' flat. The second factor was the inadmissible evidence of the finding in the flat of the clothing taken from Mrs Tilbrook's car. To bolster the police evidence of the finding of the tracksuit pants and top, the jury were erroneously allowed to have regard to the inadmissible evidence. If the jury had found that the police account of finding the tracksuit pants and top was true in partial reliance on the inadmissible evidence, the jury's finding would have been vitiated.

32. If the inadmissible evidence had been rejected, it would seem unlikely that a jury which entertained a reasonable doubt about the confessions would have been satisfied beyond reasonable doubt that the tracksuit pants and top had been found in the applicants' flat as the police alleged. Unless the jury accepted the police allegation as to the finding of the tracksuit pants and top, there was insufficient in the rest of the circumstantial evidence - though it would raise a case of suspicion - to prove, to the criminal standard of satisfaction, the applicants' guilt of the offence for which they were convicted. It follows that an appellate court could not be satisfied that, if the jury had entertained a doubt as to the confessions, an adverse verdict founded on the circumstantial evidence alone was reached without reliance on the inadmissible evidence.

33. It is therefore impossible for the Crown to show that there was no substantial miscarriage of justice. We would accordingly grant special leave to appeal, allow the appeal, quash the convictions and order a new trial.

ORDER

Applications for special leave to appeal granted.

Appeals allowed.

Order of the Court of Criminal Appeal of South Australia dated 5 June 1987 set aside and in lieu thereof allow the appeals, quash the convictions and order a new trial.