PARTIES: PETER MARK THOMAS

v

FRANCIS NGARRI

TITLE OF COURT: Juvenile Court

JURISDICTION: Juvenile Justice Act

FILE NO(s): 20326526

DELIVERED ON: 10 November 2004

DELIVERED AT: Darwin

HEARING DATE(s): 23 September 2004

JUDGMENT OF: Jenny Blokland SM

CATCHWORDS:

Admissions – Electronic Recording – Police Administration Act ss 142, 143 – Juvenile Justice Act – Evidence – Character - evidence of commission of other offences –

R v Straffen [1952] 2 QB911
R v Mansfield [1978] 1ALL.ER134
Cross on Evidence, Australian Evidence, para 21175

REPRESENTATION:

Counsel:
Complainant: Sgt Tudor-Stack
Defendant: Mr Powell

Solicitors:
Complainant: Summary Prosecutions (ODPP)
Defendant: NAALAS

Judgment category classification: B
Judgment ID number: [2004] NTMC 083
Number of paragraphs: 20

IN THE JUVENILE COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20326526

BETWEEN:

PETER MARK THOMAS
Complainant

AND:

FRANCIS NGARRI
Defendant

REASONS FOR DECISION

(Delivered 10 November 2004)

JENNY BLOKLAND SM:
1. In this matter, Francis Ngarri (a juvenile) is charged with 26 counts primarily comprising unlawful damage of property and interfering with motor vehicles. Before me the defendant pleaded guilty to damaging a number of vehicles on 6 December 2003, in particular, unlawful damage of a Ford Falcon NT 601-834 (count 1); unlawful damage of Ford Fairlane NT 492-140 (count 2); unlawful damage of Ford Fairlane Sedan NT 560-624 (count 3); unlawful damage of Ford Falcon NT 633-648 (count 4); unlawful damage of Ford Falcon NT 710-006 (count 6); unlawful damage of Ford Falcon NT 665-390 (count 9); unlawful damage Ford Sedan NT WW11-672 (count 10); unlawful damage Toyota Landcruiser WA BM-6566 (count 22). In the great majority of offences that the defendant has pleaded guilty to, as well as the counts in contest, the property belongs to Frost Ford, Darwin and occurred on Frost Ford’s property. Some of the counts relate to allegedly facilitating the offences being various trespasses and counts 22 and 24 relate to a vehicle belonging to John Forgione.
2. In relation to the contested matters (counts 5, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26), it is alleged the defendant further damaged or interfered with the various vehicles as well as allegations of trespass: (counts 8, 13, 17, 21, 23). It is accepted before me that Frost Ford did not give permission to any person to damage the vehicles on that evening; that the vehicles damaged are those mentioned in the complaints; that the vehicle relating to counts 22, 23 and 24 was owned by one John Forgione who had parked it at that site between McMinn Street and McMinn Street Service Road and had not given anyone permission to use or damage it. Essentially the question is whether the prosecution can prove the remaining counts on the basis of circumstantial evidence that will be outlined below. It is also agreed the offences must have occurred between 4.00pm and 10.40pm of the evening of 6 December 2003 and the offences occurred at the premises of Frost Ford. It is also accepted that earlier in the evening the defendant was released and told a police officer “I’m going out to steal and smash some cars”.
The Evidence
3. Constable Brent Warren gave evidence that he and other officers were on patrol on 6 December 2003 responding to an alarm in the area of the Shell Service Station; that after a conversation with a civilian (Matthew Hill) Constable Warren and Acting Sgt. Godding inspected a number of vehicles that had been interfered with; that Constable Warren noted a beige coloured four wheel drive vehicle in the Service Road; that the motor was running and a car window was smashed. Constable Warren noted an Aboriginal male person in the drivers seat with his hands on the steering wheel and directed him to get out of the car. There is no dispute the Aboriginal male he observed is the defendant. The defendant was handcuffed and seated at a nearby fence. Constable Warren administered the caution, whereupon he says the defendant stated:
“I found the keys in the middle there. I just want to go back to Don Dale. I smashed all the cars up there. I just came from up top”.
This alleged admission is challenged on the grounds that it is not recorded and does not therefore comply with the Police Administration Act; it does not comply with the Juvenile Justice Act and there is ambiguity surrounding the statement “I smashed all the cars up there”.
4. Constable Warren purchased a disposable camera and photographed a number of the damaged vehicles, I(ncluding the vehicle the defendant was found in), showing the damage to the window. A number of other photos depict damage to various vehicles, including photo 14 with vehicle registration number 665-390 the subject of count 9. That photo shows “Francis Ngarri” is written on the vehicle. That is one of the counts the defendant has pleaded guilty to. Photo 15 depicts vehicle (registration number 643-874). Officer Warren gave evidence of a splinter of wood being found on that vehicle.
5. Constable Warren spent some time inspecting the car lot and assessing the damage. He noted that a number of the vehicles appeared to have been moved and damaged, including a white Ford Falcon that has been rolled and collided with a silver coloured Ford Laser. His observation was that three vehicles had been moved.
6. Constable Warren said that he first attended the scene at 10.40pm; that at that time there was no pedestrian traffic and little vehicle traffic.
7. In cross-examination Constable Warren agreed the car yards were readily accessible to the public; that it was a Saturday evening; he did not agree there were a lot of people about, notwithstanding it may have been in the Christmas Party period. In relation to the alleged admission Constable Warren said he was not in possession of a tape recorder which is usually in his brief case and that he had no further conversation with the defendant. In relation to the splinter of wood he observed with the car depicted in photo 15, Constable Warren said it seemed to be hanging; that he had left it for “forensics” to have a look at but that he did not know whether they had attended.
8. Acting Sgt. Godden also attended on that evening; he noted that cars appeared to be out of place at Frost Ford; he noted parking lights on in a vehicle with no-one apparently in the vehicle. He then attended in the McMinn Street area and noted that Constable Warren had an Aboriginal male in custody; that he had heard Constable Warren yell out “get out of the vehicle (or car)”; and “don’t move, drop the axe”. He gave a description of the defendant. Acting Sgt. Godden said there was no pedestrian traffic save for police officers going in and out of the car yard. Acting Sgt. Godden also took photos of the damage and made observations as to one vehicle being moved. He said there was mainly damage to the windscreen of vehicles rather than panel damage and that the damage was, in his view, consistent with use of a weapon. Acting Sgt. Godden told the court that at Darwin Police Station he was involved in the preparation of an interview of the defendant and that he attempted to contact appropriate persons, including an interpreter, to be present for the interview. He said that the defendant had been placed in the cells pursuant to s 137 Police Administration Act as the defendant had asked to rest and further investigations were being carried out. He said he finished work at about 7.00am and the Watch Commander was briefed on inquiries being made for the presence of an interpreter. In cross-examination Acting Sgt. Godden said a call had been made to the legal aid service but it was not done by him.
9. Matthew Hill gave evidence that he and his sister and friend were driving around looking at car yards and pulled up at Frost Ford; he heard a banging noise; he saw broken windows and saw someone pushing a ute; he reported the matter to the police; that this all occurred at about 10.30pm; that he heard the bangs when he was at Wood Street coming from McMinn Street; that he knew that sound was breaking glass. He said he couldn’t describe the person he saw pushing the ute. He said there was no-one else present at that time; that he was observing the car yard for about 10-15 minutes. In cross-examination he said he looked at a few cars; he agreed town was a bit busier that usual that weekend; that the traffic was medium; that he had seen a number of people walking around the streets in the area of Frost Ford. He said the person pushing the car had a white cap – something close to a baseball cap. (I note police had noted the defendant had a baseball cap or a bucket hat).
10. Constable Thurlow also gave evidence that items from the beige troupe carrier were brought to her being a piece of wood, a leatherman, rock and small torch; that she exhibited these items that had all been given to her by Mr Forgioni. The piece of wood has been exhibited in this matter at P3. While she was at Frost Ford she did not see anyone else at the scene – only police. Acting Sgt. Godden gave her a white hat and texta to exhibit that had been seized from the defendant.
11. Constable Turnball also gave evidence confirming a number of matters already in evidence. He was at the scene for 1 – 1½ hours; he didn’t see anybody around the Frost Ford area. He said he didn’t remember if there were other persons in general pedestrian traffic.
12. I found a prima facie case on all counts and the defendant elected not to give evidence. The prosecution must of course prove each count beyond reasonable doubt.
Admissibility of the Admission
13. The admission was not electronically recorded, hence subject to s 143 Police Administration Act it is not admissible: (s 142(1) Police Administration Act), unless, if made before the commencement of questioning, it was confirmed later by the person on an electronic recording device: (s 142(1)(a) Police Administration Act). I agree with Sgt. Tudor-Stack that this was not an admission made during “questioning” as anticipated by s 142(1)(b) as “questioning” had not commenced. The focus should be on s 142(1)(a) Police Administration Act. Pursuant to s 143 Police Administration Act there is a public policy style discretion to admit the evidence, notwithstanding non – compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
14. In this matter, favouring receiving the admission is the fact that the admission occurred during an apprehension when the officer did not have a tape recorder on his person and would not be expected to have it at that time; the admission was not in response to questioning but appeared to be spontaneous after the caution given at the point of arrest; police back at Darwin Police office were unable to locate an interpreter despite calls being placed at 2.00am and 3.00am; police attempted to contact legal aid. Arguments in favour of excluding the admission include the fact that the defendant obviously does need an interpreter, as acknowledged by police; he was a juvenile at the time and had no adult with him as required by the Juvenile Justice Act. He was a person for a variety of reasons under a disability. Despite the objections, which in most settings have very great weight, I think it would not be contrary to the interests of justice to admit them in this case. This is an admission of a spontaneous nature made at the point of apprehension when the defendant was engaged in offending. One would not expect the police at that moment to be able to tape the defendant. Police also made relevant inquiries of interpreters later to prepare for a formal record of conversation which would have been the opportunity to confirm or deny the admission but those inquiries did not yield results. The accuracy of the admission as reported to the court has not been seriously challenged, and no evidence has been given to suggest a contrary version. Similarly, it would have been impossible for the Juvenile Justice Act requirements to have been fulfilled. The prosecution bear the onus to persuade the court that the conversation should be admitted and I do admit it. I find it would not be contrary to the interests of justice. Having admitted it, however, I find it does not carry significant weight to assist in proving those counts that the defendant has not pleaded guilty to. In the context of this case, the statement “I smashed all the cars up there” does not prove of itself that he smashed each and every one that he has been charged with. I agree there is some ambiguity in the admission in terms of whether it really means “all” the cars.
Discussion of the Evidence
15. The prosecution evidence is that the defendant was at the scene of one of the offences and in the vicinity of other cars; that he had stated an intention earlier in the evening to behave in this way; that the offences must have occurred between 4.00pm and 10.00pm; that the texta colour and white hat were found on the defendant; that he made an admission; that the weapon was tendered in court was most likely used to smash at least some of the windows; that no-one else was in the car yard at the time and who could have smashed the other car windows or moved the other cars.
16. For the defendant Mr Powell has submitted that the prosecution cannot exclude beyond reasonable doubt the hypothesis that persons unknown could have damaged and interfered with those vehicles that the defendant has not admitted some involvement with.
17. It is trite to say that proof of commission of one or more offences cannot be used to prove the commission of other offences. This type of evidence is presumptively excluded as evidence of disposition or bad character. Here it is accepted that each of the offences have been committed but for some of the offences there is no direct evidence linking the defendant to those offences.
18. In my view the defendant’s stated intention that he was going to smash up some cars; his presence at the scene actually committing an offence is all part proof of his participation in the contested offences.
19. This is an analogous situation to R v Straffen [1952] 2 QB911, (although that was much more serious subject matter). The question all comes down to the strength of the evidence. Here the car windscreens all appeared to be smashed and various attempts made to move the cars. Here there was a stated intention to commit such acts. There are also some similarities with R v Mansfield [1978] 1ALL.ER134 where the defendant was charged with offences arising out of three fires occurring at his employer’s premises. There was evidence of his presence at each fire; evidence of a similar method being used to start each fire as well as there being evidence of only one other person present against whom there was no evidence. (Note, I have summarised this case from Cross on Evidence, Australian Evidence, para 21175). I am aware of the dangers of acceptance of such evidence but in my view this is a case where the circumstances cry out for admission of such evidence. It is the defendant’s statement of intent plus his presence and proven commission of some of the offences, that notwithstanding it was not a particularly unusual modus operandi as one sees in the classic cases, it nevertheless forms part proof of the commission of offences.
20. I have considered whether the evidence is probative enough to exclude the possibility of others committing the offences. I consider that hypothesis to be excluded beyond reasonable doubt. There is some evidence on light pedestrian traffic in the area but none at or in the car yard. I accept that from time to time car yards are targeted by persons committing this type of offence. I accept car yards are readily accessible and vulnerable to this, however, to think as a possibility that some other person held the precise same intent as the defendant did in the same time frame on the same night and carried that intention to effect is something that is an affront to common sense. I find the contested offences proven. I have already ordered a pre-sentence report for today (10 November 2004). I intend making some rulings on overlapping charges that while technically proved may require some rationalisation prior to sentence.

Dated this 10th day of November 2004.

_________________________
Jenny Blokland
STIPENDIARY MAGISTRATE