Brailsford v The State of Western Australia - [2007] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRAILSFORD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 84

CORAM: EM HEENAN J

HEARD: 26 MARCH 2007

DELIVERED : 26 MARCH 2007

FILE NO/S: SJA 1085 of 2006

BETWEEN: ANDREW BRAILSFORD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K FISHER
File No  :BU 4354 of 2005

Catchwords:

Criminal law - Appeal from conviction for burglary - Appeal against sentence - Critical parts of reasons for decision missing - Recording malfunction - Not possible to consider and determine issues raised by grounds of appeal because of missing material - Conviction quashed - New trial ordered

Legislation:

Nil

Result:

Conviction quashed
New trial ordered

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A A Liveris

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Garrett v Nicholson (1999) 21 WAR 226

EM HEENAN J: On 27 October 2006, Blaxell J granted leave to appeal to Andrew Brailsford against a conviction after trial in the Magistrates Court at Bunbury and in respect of a sentence of imprisonment which was subsequently imposed in relation to that conviction. The appeal today has been argued by Mr Brailsford in person by video‑link from the prison at Albany, and I have had the assistance of written and oral submissions by counsel for the State of Western Australia in opposition to the appeal.
The charge against Mr Brailsford was that between 30 and 31 March 2005 at Capel he did, without consent, in the place of Derek Holdings Pty Ltd, trading as Rick Tucker Welding, commit an offence; namely, stealing property to the value of $6948.50. He entered a plea of not guilty and the matter was tried before his Honour Magistrate Fisher on 26 July 2006.
At the trial the owner of the premises gave evidence that he did not know Mr Brailsford, who had not been employed at the premises, and that no person had any permission to break into the premises or attempt to steal the safe which was located in one of the storerooms. He gave evidence that there were about 35 employees engaged by his company at the time of the theft and that the usual closing time for the business was between 4 and 5 pm.
Senior Constable Khng gave evidence that he had attended the scene on the morning of 31 March 2005 at about 8.15 am, having been called out by other workers who had attended earlier. He found the chain links to a perimeter gate were cut and the roller door to the workshop premises was damaged. Senior Constable Khng also noted that there was damage to a Coca‑Cola vending machine inside; that there was a jemmy bar found on the premises; that oxyacetylene equipment belonging to the premises had been moved and used on a safe; that no fingerprints were detected, but the marks of latex gloves were found; and, that there was a torch found on the premises which did not belong to the owner of the premises, or to anyone else, as far as could be discovered. Fingerprints were not detected on the torch either.
A senior storeman, Mr Turner, who had been employed at the premises for eight years, gave evidence that he closed up the premises the night before, that everything was then in order, and that there was no Coca‑Cola can seen in the vicinity of the workroom as was discovered by employees and the police the next morning.
It was accepted and formally admitted by counsel for the accused that the particular Coca‑Cola can which had been found at the premises was later taken by the police, delivered to forensic laboratories and submitted for DNA testing, and that DNA matching Mr Brailsford's DNA was found on the can.
According to Mr Brailsford's own evidence, in March 2005 he had been living at 1 Tucker Street, Capel and was working as a ceramic tiler. He said that with a friend named Mick Garcia he had shared in the renting of a shed or some elementary premises directly across the road from where this break‑in had occurred and that he had kept some of his work gear in that shed. He also said that he and Mr Garcia had kept and consumed cans of Coca‑Cola in that shed from time to time.
He was unable to explain how the Coca‑Cola can carrying his DNA came to be found on the premises after the theft. He said that he had been to the premises to visit Mr Garcia from time to time in the past, but denied being there at the time of the burglary.
He explained that the police took a swab from him in prison on 5 September 2005, which was subsequently found to match the DNA on the Coca‑Cola can. He was unable to explain where Mr Garcia was at the date of the trial and said that he had hoped that Mr Garcia would be present to give evidence to support his statements; namely, that they shared this shed across the road, kept Coca-Cola there, and that from time to time he, Mr Brailsford, met Mr Garcia at the premises of Derek Holdings Pty Ltd.
On that subject the owner of the premises had said that no‑one, other than an employee, was allowed to go into the working areas or into the workshop. However, the storeman, Mr Turner, said that Mr Garcia had come into the premises and into the office area from time to time.
After hearing this evidence the learned Magistrate gave reasons for decision leading to his conviction of Mr Brailsford for this offence. The reasons for decision have partly, but not entirely, been transcribed, and are before me on this appeal. They run from page 36 to 40 of the transcript which is before this Court, but it is evident that the transcription then stops abruptly, before having been concluded, and the next sequence of the transcript, pages 41 and following, is in connection with a plea in mitigation of sentence and the imposition of the sentence of imprisonment.
There is therefore a significant portion of the reasons for decision missing. The section which is missing obviously must have dealt with the reasons which the learned Magistrate gave for accepting that the presence of the Coca‑Cola can with Mr Brailsford's DNA signified beyond reasonable doubt that it was Mr Brailsford who was there on the night and that he committed the crime, and for rejecting Mr Brailsford's denial of being present. All that can be inferred with a high degree of confidence. However, the grounds of appeal include a ground that the learned Magistrate incorrectly applied the civil burden of proof, the balance of probabilities, rather than correctly applying the criminal standard of proof, beyond reasonable doubt.
There is much in the context of the reasons for decision, so far as they have been given by the learned Magistrate, to indicate that a careful and thorough analysis of the facts and the law had been undertaken. Therefore, an inference is available that on the crucial area of where the ultimate decision to convict and to reject the defence of denial put up by the accused was concerned, a similar meticulous standard was exercised. However, to draw that inference would be to speculate.
In the exercise of a right of appeal an appellant is entitled to have the decision under challenge reviewed according to law. This has been established by a line of authority, which includes the decision of the Full Court of this Court in Garrett v Nicholson (1999) 21 WAR 226, which held that if in the reasons for decision there is a failure to attend to some essential component of the case upon which the decision turns, and where the correct application of the proper principles of law are equally critical, there is a failure which justifies appellate intervention. There are many other authorities to similar effect.
In this case, although my impressions are that the learned Magistrate gave careful attention to all aspects of the case, and while there is certainly evidence upon which the accused could have been convicted, the actual process of reasoning which leads to the decision to convict is not before the Court because of the technological failure of the recording apparatus. Consequently, in the absence of this process of reasoning, I am not able to exercise the jurisdiction of this Court to review the decision and so determine this appeal according to law.
In those circumstances, I consider that the appeal should be allowed; that the conviction should be set aside; that the sentence imposed should be quashed; and, that there should be a new trial on all aspects of this case. I will make orders to that effect.
Mr Brailsford also appealed by leave from the sentence of imprisonment of 18 months which had been imposed by the learned Magistrate together with an order for eligibility for parole following this conviction. His submissions in this regard were not that the sentence of 18 months' imprisonment with parole was itself excessive, but rather that in combination with a previous sentence of 5½ years for armed robbery and other offences which had been passed against Mr Brailsford in this Court, the totality of the combination of the two sentences was disproportionate. That earlier sentence of 5½ years had been imposed by Jenkins J in this Court in December 2005, but had been backdated to the date of his arrest on 26 May 2005.
Mr Brailsford was accordingly serving that sentence at the time he was sentenced by the learned Magistrate for the offence which is the subject of this appeal. From the detailed submissions and reasons for decision given by the learned Magistrate in respect of that sentence, it is apparent that his Honour recognised that the severity of this case warranted some additional term of imprisonment. So, his Honour observed that it was inappropriate to order that all of the sentence which he was then imposing should be served concurrently with the sentence imposed by this Court of 5½ years. However, the learned Magistrate did indicate in the plainest of terms that he thought that some modification of the sentence which he was minded to impose was appropriate, having regard to the principle of totality. The effect was that he imposed a sentence of 18 months' imprisonment, with eligibility for parole, to be served cumulatively upon the earlier sentence.
Mr Brailsford has complained that the effect of this means that he would not be released until up to seven years from 26 May 2005 and that this is excessive having regard to all the circumstances. He submits that there should be a period of overlap between the two sentences.
His submissions appear to me to have merit. Had it been necessary for me to deal with this ground of the appeal, I would have been disposed to vary the sentence which had been imposed by the learned Magistrate and to direct that it should be served in part cumulatively and in part concurrently with the 5½ year sentence previously imposed by this Court. Had it been necessary to do so, I would have directed that the commencement of the 18‑month sentence for this burglary should take effect on 26 November 2008; and, from then on, that it should be served concurrently with any remaining portion of the sentence of the 5½ years still to be served by Mr Brailsford.
That would mean that, assuming that Mr Brailsford was considered eligible for parole both in relation to the Supreme Court sentence and in relation to this conviction, the first date of eligibility for parole would be in August 2009. However, because the appeal against conviction has been allowed and the sentence set aside, it is unnecessary for me to make any orders on the appeal against sentence.