Bennett v Carruthers - [2010] WASCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BENNETT -v- CARRUTHERS [2010] WASCA 131

CORAM: McLURE P
NEWNES JA
MAZZA J

HEARD: 21 MAY 2010

DELIVERED : 20 JULY 2010

FILE NO/S: CACR 15 of 2010

BETWEEN: JOHN REGINALD BENNETT
Appellant
AND
JAKE TOBY CARRUTHERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :BENNETT -v- CARRUTHERS [2010] WASC 5
File No  :SJA 1096 of 2009

Catchwords:

Criminal law and procedure - Appeal from single judge - Adequacy of reasons - Section 31 of the Magistrates Court Act 2004 - Duties of magistrates courts in respect of selfrepresented parties - Section 30 Magistrates Court Act 2004

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 14(3), s 18
Criminal Code (WA), s 378
Criminal Procedure Act 2004 (WA), s 119, s 120
Magistrates Court Act 2004 (WA), s 30, s 31

Result:

Application for extension of time granted
Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr R W Richardson
Respondent: No appearance

Solicitors:

Appellant: Frichot & Frichot
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Anderson v Davis [2009] WASC 38
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASC 5
Browne v Dunn (1893) 6 R 67
Cameron v Hume [2009] WASC 265
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
MWJ v The Queen [2005] HCA 74; (2006) 222 ALR 436
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824
Tran v Claydon [2003] WASCA 318

McLURE P: I agree with Mazza J.
NEWNES JA: I agree with Mazza J.
MAZZA J: The appellant has brought two applications before the court. The first is for an extension of time to appeal. The second is for leave to appeal against the decision of Hall J dismissing his appeal against conviction for an offence of stealing in the Perth Magistrates Court: Bennett v Carruthers [2010] WASC 5.
The appeal was filed seven days out of time. The short delay has been adequately explained in the appellant's affidavit sworn 11 February 2010. I would grant the extension of time.
Leave to appeal is required for each ground of appeal. This court must not grant leave unless it is satisfied that the ground has a reasonable prospect of success: s 9(1) and (2), s 18 of the Criminal Appeals Act 2004 (WA).
To have a reasonable prospect of success, a ground must have a rational and logical prospect of succeeding. In other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61].

Background

(i) The trial

On 23 June 2009, the appellant was tried and convicted in the Perth Magistrates Court of stealing drill bits and locks worth about $60 from Bunnings, contrary to s 378 of the Criminal Code (WA). He was placed on a conditional release order and given a spent conviction order (ts 49).
Very little evidence at trial was disputed. The critical issue for the magistrate to decide was whether the State had proved beyond reasonable doubt that the appellant had an intention to permanently deprive Bunnings of the drill bits and locks. Between [3] and [8] of Hall J's judgment, his Honour summarised the evidence as follows:

The undisputed facts were that on 8 January 2009 the appellant had driven to the Bunnings store in Belmont. He went to the tool shop section and there selected three drill bits which he placed into his pocket. He then walked to another part of the store where locks were displayed and selected a twin pack of master locks. He then placed the locks in his pocket. A short time later he was apprehended by a covert security officer near the front doors of the store.
The appellant was asked to attend with the officer at the security office. In the office he was asked to produce any items that he had taken from the store without paying for them. He produced the drill bits and locks. He told the security officer that the reason he did not pay for the items was that he was going back to his vehicle for a bed head that he had left in the back of his ute and for which he wanted to purchase bolts. He said he intended to come back and pay for the items in his pockets once he had checked the size of bolts required for the bed head. The security officer asked the appellant if he knew what he had done, to which he answered 'shoplifting'.
The police were called, but did not arrive for approximately an hour and a half. The appellant repeated his explanation to the police. The police walked out to the car park with the appellant and found that there was no bed head in his ute. The appellant's explanation at that time was that he must have left the bed head at home.
The appellant gave evidence in his defence. He admitted placing the items into his pockets but said that he had done so because he was not carrying a basket or anything to put them in. He said he needed to put them into his pockets so that he could examine a toolbox that he was considering purchasing. He said that he had gone to Bunnings that day in order to obtain items needed to fix a bed. One of the items that was required was bolts for the bed head. In order to ensure that he got the right size bolts he placed the bed head in the back of his ute. He said he got some of the items he needed and then thought that because his car was only 50 yards outside the door he would go and get the bed head and bring it back to the store in order to select the bolts that were required. He said he did not get out of the store before being apprehended by the security officer. There was a dispute as to whether he had been stopped inside or outside the store, but little turned on this as on any view the appellant had passed the registers when stopped.
The appellant said that the security officer had used an aggressive manner with him and that when he was questioned as to what he had done he was not intending to confess by referring to shoplifting; rather his intention was to describe what he understood was being alleged. He said that it had been his intention to return to the store with the bed head, obtain the bolts and pay for all of the items.
He told both the security officer and the police about the bed head. He said in evidence that he had been sure that the bed head was in the back of the ute when he attended Bunnings. When asked why he had told the police officers that the bed head must have been left at home he said:
'Because I didn't - when I looked in there and it wasn't there I thought oh, my God, here's me been saying that I've got this bed head in the back of the ute and I need to get that to match these bolts up, then we go out to the ute and it's not there. I know you feel a bit of a goose.
But the officers did not hear you say anything to the fact that it was stolen? It was taken? It was gone?---Oh well, I didn't know. I thought oh, maybe I've left it back home or - as a matter of fact I'd been to a laundry before that and I picked up - Superclean, that is, and on the other side of the ute there was a stack of laundry that I'd picked up and I thought oh, maybe I took it out to put the laundry in. So I went back there and checked that as well. Then I went home and it wasn't there so I thought well, I must have had it and it's gone (ts 38)'.

In addition to his own evidence, the appellant called Ms Adrianna Lowicki. She was an employee at the motel which the appellant managed. She recalled that, on 8 January 2009, she had a discussion with the appellant during which the appellant mentioned that he was going down to Bunnings to get some bolts to put the bedhead together (ts 41). However, she did not see the appellant put the bedhead in his vehicle prior to him going to the store (ts 42).

(ii) The magistrate's reasons

The magistrate delivered her reasons orally, immediately after hearing the evidence and closing submissions. Her Honour correctly directed herself as to the onus and standard of proof. She stated that there was no issue as to the date on which the offence occurred, where it occurred and that the appellant had the items in his pocket (ts 44). She identified that the decisive issue for her to determine was the appellant's intention. She correctly said that intention was a matter of inference and that she could only draw the inference that the appellant intended to permanently deprive Bunnings of the items if that was the only reasonable inference open on the facts.
The bulk of her Honour's reasons were taken up with a comprehensive summary of the evidence that she heard on a witness by witness basis. In this process, she identified some inconsistencies in the appellant's evidence. When, in her reasons, her Honour summarised the evidence about the empty ute, she said (ts 47):
The ute was empty. There was no bed head, and there [were] some conflicting explanations given by Mr Bennett at that stage about the existence of the bed head in the motor vehicle. [It is to] be noted that his explanation was that he must have left it at home. His immediate reaction was not that [it] had been stolen from the vehicle. He did not give any explanation about it being left perhaps at the laundry, and the evidence of Ms Lowicki was that she never saw him load the bed head into the back of the ute, even though she was at work on that day.
Towards the end of her reasons, her Honour said (ts 48):
[T]here are some inconsistencies in Mr Bennett's explanation and there have been several of those, and there are some inconsistencies in the evidence itself in terms of if he went there for bolts to fix the bed head and he was going to measure the size why did he not in fact take the bolts from the store out to the bed head, which certainly would have been more to the point.
Her Honour then concluded her reasons by saying (ts 49):
At the end of the day, as I have indicated, it is for the court to determine to the required standard, that is beyond reasonable doubt, whether there has been a stealing that is an intent to permanently deprive the owner of this property on the part of Mr Bennett. In relation to that it is my view that the charge has been proven and I intend to enter a conviction.
Although her Honour did not use the words 'I find', it is obvious and was conceded by the appellant, that she found as a fact that the appellant had an intention to permanently deprive Bunnings of the items he took from the store.

(iii) Hall J's reasons

There were two grounds of appeal before Hall J. The first alleged that her Honour erred in law in failing to give adequate reasons. The second alleged that her Honour erred in the way in which she determined the appellant's intention.
As to the first ground of appeal, his Honour found upon an analysis of the reasons as a whole that they were adequate. His Honour observed that many of the facts were not in dispute. He was able to identify the intellectual process which led to the magistrate rejecting the appellant's explanation as to why he had not paid for the items [12] ‑ [39].
As to the second ground of appeal, his Honour found that the magistrate took into account all of the relevant evidence, including the appellant's, in deciding whether the prosecution had proved that the appellant had an intention to permanently deprive [40] ‑ [42].

The ground of appeal

The ground of appeal is set out in the appellant's case as:
The learned appeal Judge (Justice Hall) erred in law in failing to find that the Magistrate's reasons for finding the charge of stealing proved were inadequate.
Particulars
1.The learned magistrate's reasons made no express findings of fact save for the intention to permanently deprive the owner of his property and provided no reasons at all for the findings made in contravention of section 31 of the Magistrates Court Act and sections 119 and 120 of the Criminal Procedure Act.
2.The learned appeal judge erred by identifying the issue as whether the decision was open and justifiable on the evidence and by speculating as to what findings of fact had been made by the learned magistrate.
3. The learned appeal judge failed to find the learned magistrate's reasons were deficient by failing to deal with section 30 of the Magistrates Court Act.
One aspect of this ground can be disposed of immediately. Particular 1 alleges that the learned magistrate contravened s 119 and s 120 of the Criminal Procedure Act 2004 (WA) in addition to s 31 of the Magistrates Court Act 2004 (WA) (the Act). Although there is much in common between these provisions, s 119 and s 120 do not apply to summary proceedings. They apply to prosecutions in superior courts under pt 4 of the Criminal Procedure Act. The applicable provision in this appeal is s 31 of the Act.

Particular 1

Mr Richardson, on behalf of the appellant, submitted that the learned magistrate completely failed to provide adequate reasons for her decision in contravention of s 31 of the Act (appeal ts 2). Mr Richardson submitted that the reasons do not expose the intellectual process by which her Honour arrived at her decision.
I reject these submissions, for the following reasons.
Section 31 of the Act is in the following terms:
31.Judgments, content of
(1)The Court’s reasons for a judgment in a case ‑
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
Section 31 had no statutory predecessor. Prior to its commencement on 1 May 2005, the duty of a magistrate to give reasons for decision and the content of that duty were derived from the common law. Justice Hall, at [14] ‑ [21] of his reasons, refers to many of the relevant cases and accurately states the rationale for the existence of the duty and its content. There is no need for me to repeat what his Honour has already said.
Section 31 of the Act gives statutory voice to these common law principles. As much was stated in the Explanatory Memorandum to the Magistrates Court Bill 2003 WA in reference to cl 31, which later became s 31 of the Act:
[Clause 31] specifies the factual and legal components that are to be included in written reasons for judgment.
The clause also requires that Court must also give reasons for judgment thus complying with the minimum requirements set by the Full Court regarding judgments.
The purpose of the clause is to ensure consistency between the material content of the Court's judgments, to facilitate understanding by the parties affected and to aid determination of whether grounds of appeal exist. (emphasis added)
In order to gauge whether s 31 of the Act has been complied with, it is necessary to look at the reasons as a whole in the context of the evidence. The content of the obligation is not the same in every case and depends very much on the circumstances of the particular case: Tran v Claydon [2003] WASCA 318 [37] ‑ [38] (McLure J).
The question of compliance with s 31 of the Act and provisions such as s 120 of the Criminal Procedure Act raises questions of degree. In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [84] Heydon J said in the context of s 120 of the Criminal Procedure Act:
In many cases the question of whether there has been compliance with the duty imposed by s 120(2) of the Criminal Procedure Act will raise questions of degree. Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the 'reasoning process linking' the principles of law to the findings of fact. Sometimes the statement of positive propositions coupled with the non-statement of others can satisfy s 120(2) because it amounts to a statement of the principles of law actually applied or the findings of fact actually relied on even though the omission reveals error in what was said; sometimes, on the other hand, the statement will not satisfy s 120(2).
The question of whether reasons are adequate may involve a consideration of what can be legitimately inferred from the reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA).
This proposition was criticised by Mr Richardson in his written submissions. Mr Richardson noted that Meagher JA cited Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 in support of this proposition, but submitted that this case did not, in fact, support it. With respect, this is incorrect. An issue before the Privy Council in that case was whether the trial judge had omitted to make specific factual findings fundamental to the issues in the case. In delivering the Board's judgment Lord Scarman said:
It is understandable that the Court of Appeal may have felt disposed to criticise the judgment at first instance as unstructured and prolix. But it is abundantly clear that the judge had the evidence, all of it, very much in mind. It is, of course, not necessary for a trial judge to make explicit findings on every disputed piece of evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion … (826).
His Lordship was clearly speaking about what could be implied from reading the whole of the reasons and the trial judge's final conclusion. Selvanayagam v University of West Indies supports Meagher JA's proposition.
As I said earlier, in this case, the critical issue of fact for the magistrate to decide was whether the prosecution had proved that the appellant had an intention to permanently deprive Bunnings of the items he took. This issue was decided in the context of a case where there was no dispute that:
(a)the appellant took the drill bits and locks from the store shelves;
(b)he placed those items in his pockets;
(c)he knowingly went past the cash registers without paying for them;
(d)his initial reason for leaving the store without paying for the items was that he intended to go to his vehicle, where he had a bedhead and bring it back to the store to choose bolts for the item, after which he intended to pay for everything;
(e)there was no bedhead in the vehicle;
(f)the appellant then explained at the store that he must have left the bedhead at home; and
(g)at trial he said that the bedhead must have been stolen from his vehicle.
While her Honour did not make express factual findings about these matters, there was no need to because they went unchallenged [the parties proceeded on the basis they were proved].
However, the position with regard to the decisive and disputed issue of the appellant's intention was different. There was a need for the learned magistrate to expose in her reasons the intellectual process which led her to reject the appellant's evidence on the point and come to the conclusion that the prosecution had proved this element.

In my opinion, a reading of the reasons as a whole reveals that the intellectual process followed by her Honour was clear and rational.
Although she did not expressly say that because of the inconsistencies she identified she rejected the appellant's evidence that he had no intention to permanently deprive Bunnings of the items, that was very obviously the intellectual process. Once her Honour rejected the appellant's explanation, the unchallenged facts led inevitably to a conclusion that the appellant had the necessary intention.
In my opinion, the reasons were sufficient to inform the parties why the case was decided in the way it was. They were also sufficient to enable them to be scrutinised and judged by an appellate court.
Mr Richardson, in both his oral and written submissions, likened the present case to the failure of the trial judge in AK v The State of Western Australia to provide adequate reasons. With respect, the cases are quite different. The trial judge in AK v The State of Western Australia failed to identify the issue he had to decide and there was a complete failure on his part to expose the process of reasoning which led him to the conclusion that it was the appellant who had indecently dealt with the complainant: AK v The State of Western Australia [85] (Heydon J). Neither of these things occurred in the present case.
In my opinion, having regard to the circumstances of this case, the requirements of s 31 of the Act have been met. The reasoning which led to the finding that the appellant had an intention to permanently deprive Bunnings of the items is obvious and correct.
However, if I am wrong and if her Honour did not comply sufficiently with s 31 of the Act, it does not follow that her Honour's decision should be set aside.
By virtue of s 18 of the Criminal Appeals Act, s 14(3) of that Act applies to this appeal. The terms of s 14(3) are:
(3)The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence ‑
(a)in substance support the decision; or
(b)justify the finding,
and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it.
This subsection reflects the common law principle that a failure to give adequate reasons for decision does not necessarily lead to the decision being set aside: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [29]; and Beale v Government Insurance Office of NSW (444).
In my opinion, the deficiencies in the appellant's evidence completely justify the rejection of the appellant's evidence about his intention. On the basis of the unchallenged evidence, her Honour's decision is supported and was, in my view, inevitable.
Particular 1 has no merit.

Particular 2

Mr Richardson submitted that Hall J fell into error by 'speculating' about her Honour's findings of fact. He submitted that Hall J rationalised the learned magistrate's decision by making assumptions about the facts she found and the reasons for coming to those findings.
Justice Hall did not make assumptions about her Honour's findings of fact. Nearly everything was unchallenged. Her Honour rejected the appellant's evidence about his intention on rational grounds. The remaining evidence was sufficient to ground the conviction. Justice Hall recognised this. There was nothing speculative about Hall J's analysis of her Honour's reasons.
Particular 2 has no merit.

Particular 3

Section 30 of the Act is in the following terms:
30.Court's duties in respect of self‑represented parties
In a case where a party is self‑represented, the Court must inform the party of -
(a)the need, when cross‑examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self‑represented party -
(i)intends to adduce; and
(ii)intends to allege will contradict the witness's evidence;
and
(b)the consequences of not doing so.
This section is designed to ensure that self‑represented parties are aware of, and comply with, the rule in Browne v Dunn (1893) 6 R 67.
In MWJ v The Queen [2005] HCA 74; (2006) 222 ALR 436 Gummow, Kirby and Callinan JJ described the rule in these terms:
The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit [38].
As Hall J said, '[t]he rule has two aspects; it is a rule of practice to achieve fairness to witnesses and a fair trial and, secondly, it can also impact upon the weight or cogency of evidence' [27].
The rule in Browne v Dunn applies in the Magistrates Court. Section 30 itself makes this clear as do cases such as Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226; Anderson v Davis [2009] WASC 38; and Cameron v Hume [2009] WASC 265.
As the existence of the rule is hardly likely to be known to self‑represented litigants, and because of its potential to impact, to at least some extent, on a criminal trial in the Magistrates Court, s 30 imposes an obligation upon a magistrate to explain to self‑represented litigants the rule in Browne v Dunn and the consequences of not complying with it.
The gravamen of particular 3 is that her Honour did not comply adequately with s 30 and, in particular, she did not comply with s 30(b) by failing to inform the appellant of the consequences of not complying with the rule.
In my opinion, her Honour complied with s 30 of the Act.
At ts 4, just before the main prosecution witness, the store detective, Mr McKeage, commenced giving evidence, her Honour said:
Mr Bennett, the sergeant will call his witnesses to give evidence and they will tell us what they saw or heard or did, okay? ‑ in relation to the matter and you will be able to ask some questions at the end of that. So you will need to - got a piece of paper and pen there? You can make some notes as we go.
If a witness says something that you disagree with or did not happen, or you think he is not seen properly then you need to be asking questions about that because I need to make an assessment of how much the witness actually remembers: whether the witness is telling the truth: whether he could be mistaken - not necessarily come along to lie to the court but just his recollection is faulty for some reason, okay? So you must put your case to him. So whatever your defence is to the stealing charge you need to put it to this witness, okay?
While the appellant was cross‑examining Mr McKeage, there was an exchange between the appellant and her Honour where her Honour said in blunt terms that he needed to put to him what he intended to say in evidence. Her Honour told the appellant that he could give evidence in his defence and went on to say (ts 19):
[B]ut there is no point in telling me in your evidence the reason why you went there was because - you know, you were having a bad day, or you did not pay for it because you forgot. You need to put all this to the witness because I need to be able assess your credibility as much as his, and telling me that you are 67 years old and have got no record is not going to do it for you.
The effect of what her Honour told the appellant was that he was required, in cross‑examination of the witnesses, to put to them any matters which he believed might contradict the witness's evidence, and that the consequences of not doing so may impact on her assessment of the credibility of both the witness and the appellant.
The appellant understood what her Honour told him. Her Honour raised the matter when the appellant appeared to have concluded his cross‑examination of the security officer. Once this was done, the appellant resumed his cross‑examination which is recorded in a further three pages of transcript.
The appellant did not cross‑examine Mr McKeage about stopping to look at a toolbox or about the appellant looking for a staff member to ask if he could leave the store and go to his vehicle. These failures are mentioned in her Honour's reasons (ts 45). Her Honour was, having complied with her obligations under s 30 of the Act, entitled to make these observations. Having said this, I do not think, looking at her Honour's reasoning as a whole, she did not rely on its failure to comply with the rule in Browne v Dunn. Her Honour concentrated in her reasons upon the 'inconsistencies' in the appellant's explanation for the absence of the bedhead in his ute. She did not refer to the appellant's failure to comply with the rule in Browne v Dunn in this context.
Particular 3 has no merit.

Conclusion

The proposed ground of appeal does not have any reasonable prospects of success. Her Honour's reasons were adequate and conformed with the relevant statutory provisions. Leave should not be granted. Accordingly, this appeal should be dismissed.
The orders I would make are:
1.The time for the appellant to appeal is extended to 11 February 2010.
2.Leave to appeal is refused on all grounds.
3.The appeal is dismissed.