Cameron v Director of Public Prosecutions
[2022] WASC 17
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CAMERON -v- DIRECTOR OF PUBLIC PROSECUTIONS [2022] WASC 17
CORAM: ARCHER J
HEARD: 16 NOVEMBER 2021
DELIVERED : 25 JANUARY 2022
PUBLISHED : 25 JANUARY 2022
FILE NO/S: SJA 1037 of 2021
BETWEEN: RAYLENE MARJORIE CAMERON
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Catchwords:
Appeal against conviction - Weissensteiner principle - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Extension of time granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions |
Cases referred to in decision:
HDS v The State of Western Australia [2015] WASCA 148
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12
Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998)
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
Wells v The State of Western Australia [2017] WASCA 27
ARCHER J:
Overview
On 19 January 2021, the appellant was found guilty of burglary and stealing by his Honour Magistrate Walton.
The prosecution had alleged that the appellant had participated in a burglary on a home in Tarcoola Beach, a suburb of Geraldton. A night shift nurse lived in the home but was at work when the burglary occurred. The appellant's fingerprint had been identified on a box inside the house that had been moved during the burglary. The box contained a flat pack storage trolley. The nurse had bought it from Target in Northgate (which is in Geraldton) about a week before the burglary. When she bought it, the box had been on display on a shelf in the store.
The appellant did not give evidence in the trial.
In his reasons, the learned magistrate referred to what is sometimes called the 'Weissensteiner principle', taking its name from WeissensteinervThe Queen.[1]The principle is that 'hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused'.[2] It has been said that such circumstances 'cry out' for an explanation from the accused.[3]
[1] Weissensteiner vThe Queen [1993] HCA 65; (1993) 178 CLR 217.
[2] Weissensteiner, 228 (Mason CJ, Deane and Dawson JJ), cited with approval in R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [50].
[3] Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998).
His Honour said that the circumstances in the case before him cried out for an explanation from the appellant. He said that her failure to explain how her fingerprint got on the box meant that the inference that she had been involved in the burglary was the only reasonable inference that could be drawn.
The appellant seeks leave to appeal against the conviction on two grounds.
First, the appellant alleges that the magistrate erred in finding that the appellant's failure to give an explanation meant that the only reasonable inference that could be drawn was that she had participated in the burglary. This ground relates to his Honour's application of the Weissensteiner principle.
The second ground of appeal is that there was a miscarriage of justice because the finding of guilt was unreasonable and unsupported by the evidence.
The appellant also seeks an extension of time within which to appeal.
The applications for leave to appeal and an extension of time were ordered to be heard at the same time as the appeal.
What follows are my reasons for concluding I should grant an extension of time in which to appeal, and leave to appeal, but dismiss the appeal.
Appeals from magistrates' decisions[4]
[4] This section reproduces or draws on statements I have made in other judgments.
The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[5]
[5] Criminal Appeals Act 2004 (WA) s 8(1).
A miscarriage of justice will have occurred where, for example, the nature of the evidence raises a real doubt as to whether the conviction can be regarded as safe or just.[6] In determining this, the test is whether the court considers that, upon the whole of the evidence, it was open to the decision‑maker to be satisfied beyond reasonable doubt that the appellant was guilty.[7] That is, whether the decision‑maker must, as distinct from might, have entertained a doubt about the appellant's guilt.[8]
[6] HDS v The State of Western Australia [2015] WASCA 148 [51], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523. See also The State of Western Australia v Olive [2011] WASCA 25 [40], [44] and Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [43] ‑ [45].
[7] HDS [52], quoting M v The Queen 494 ‑ 495. See also Wells v The State of Western Australia [2017] WASCA 27 [13] and Pell [43].
[8] HDS [53], citing Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also Wells [13] and Pell [44] ‑ [45].
Leave to appeal is required.[9]
[9] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[10] That means that the ground must have a real, rational and logical prospect of succeeding.[11]
[10] Criminal Appeals Act s 9(2).
[11] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[12]
[12] Criminal Appeals Act s 9(3).
Finally, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[13] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[14]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[13] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[14] Strahan [90].
The trial
Identity was the only issue in the trial.[15]
[15] Transcript of 19 January 2021 (Decision Transcript) pages 7 - 8.
The appellant's written submissions in this appeal helpfully summarised what had occurred in the trial.[16] What follows largely reproduces that summary.
[16] Outline of Submissions filed 21 September 2021 [4] - [28]. The respondent accepted the accuracy of these paragraphs – see the Respondent's Outline of Submissions filed 4 October 2021 [1] - [2].
The prosecution commenced the trial by calling the complainant. Her uncontested evidence was as follows:
1.She had moved into her new home in Tarcoola Beach (a suburb of Geraldton) on 18 August 2019, and had not finished unpacking by the time of the burglary;
2.She left for work around 9 pm on 25 August 2019 and returned home around 7.30 am on 26 August 2019;
3.She noticed that the sliding door was open, her belongings were all over the floor, and her puppy, which she had left in the laundry, was running around;
4.Numerous items of property had been stolen;
5.A box containing a flat pack storage trolley (Box) that had been in the living area had been moved in front of the sliding door;
6.She had purchased the Box from Target in Northgate, which is in Geraldton, on 18 August 2019;
7.She took it from a shelf in the store, where it was on display.
After the complainant gave evidence, the prosecution read into evidence the statement of Senior Constable Christopher Chang, by consent.
Senior Constable Chang's evidence was that the complainant had shown him a number of items believed to have been handled by the offender, which he photographed. He identified seven areas where fingerprints were present. Those photographs were uploaded and a fingerprint comparison requested. The photographs were tendered in evidence.
The prosecution then read into evidence, by consent, the statement of Senior Constable Cameron Nigel Harold Owen, a fingerprint examiner, confirming that he had prepared a report. That report was tendered.
The photographs of the Box showed it was of similar size to a DVD player. It was positioned as if the DVD player was resting on its back edge. In that position, the width of the top of the Box was about 10cms. There were what appeared to be marks on the upper part of one side of the Box.
Two of the marks were examined by the fingerprint examiner, and identified as fingerprints. One was of insufficient quality and quantity of features to permit identification. Another was identified as a print from the left ring finger of the appellant. It was pointing downwards, such that the tip of the finger would have been closer to the ground than the palm of the hand.
The position of the marks on the Box was consistent with the marks being placed there by a person carrying the Box by putting their hand on the top edge with their fingers gripping one side and their thumb on the other.[17]
[17] This is apparent from the photos themselves. However, the magistrate was, understandably, not willing to conclude that the fingerprint on its own showed that the Box had been picked up by the appellant – see Decision Transcript page 7.
There were also 17 fingerprints found on a tablet in the kitchen, which could not be identified, but which were not the appellant's. There was also a fingerprint on a razor packet in the bedroom which could not be identified and was not the appellant's.
The appellant elected not to give evidence.
After closing addresses, the matter was adjourned to the following day for a decision to be handed down.
The next day, the learned magistrate delivered his decision orally.
The magistrate's decision
The magistrate's reasons were extensive, encompassing 13 pages of transcript. The appellant does not challenge most of the reasons.
The magistrate set out the fundamental principles and the proper approach to be taken. In particular, his Honour correctly identified the burden of proof and noted that an accused bears no burden of proof.[18] He also noted that the appellant did not have to give evidence.[19]
[18] Decision Transcript page 2.
[19] Decision Transcript pages 3 - 4.
The magistrate correctly identified that the prosecution case was fundamentally and substantially circumstantial. His Honour correctly identified the approach to drawing adverse inferences.[20]
[20] Decision Transcript pages 4 - 5.
His Honour then summarised the evidence and noted that identity was the only issue in dispute.[21]
[21] Decision Transcript pages 5 - 8.
His Honour then said:[22]
It is possible to draw two competing inferences from the evidence that I've set out. Firstly, the existence of the fingerprint in the position described and in particular circumstances raises the possible inference that between the time the complainant was at work and her return to her unit, the unit was broken into and items stolen, and the accused was involved to the extent she entered the unit without consent and stole the items noted by the complainant.
Secondly, the inference is open that the accused placed a fingerprint or [that the] fingerprint came to be on that box, the flat pack box, without in any way having entered the unit or having stolen anything from the unit or participate [sic] in any way in the burglary. At the close of prosecution case, the two interferences [sic] [were] open, neither was more probable than the other, arguably. There's no explanation for the presence of the fingerprint was [sic] provided by the accused.
Therefore, as appreciated by the defence counsel, no alternative hypothesis from the accused's point of view - point or perspective could be legitimately placed before the court. That's critical. I refer to the case of Pickett v [Fuderer], which is direct [sic] relevant to this case. It is relevant also in relation to the potential for the rare and exceptional Weissensteiner direction. I am extremely reluctant to give myself a Weissensteiner direction, because of its rare and exceptional nature.
I made that clear when I called for submissions on it yesterday, on 18 January 2021. However, it's - in my view, it's appropriate to quote a large portion of Ipp Js decision in Pickett v [Fuderer], because of its relevance. I continue now from that quote …
[22] Decision Transcript page 8.
His Honour then quoted extensively from Pickett v Fuderer.
His Honour then turned to his analysis of the evidence. His Honour noted the following facts:[23]
1.The appellant's fingerprint was located on a movable item, being a flat pack box inside the unit.
2.The complainant was away from her home between just before 9 pm on 25 August 2019 and 7.30 am on 26 August 2019.
3.During the time the complainant was away, her home was burgled, many items were stolen and some items were moved but not stolen.
4.One item that was moved during the period she was away was the Box.
[23] Decision Transcript page 11.
The magistrate said that, given the confined timeframe in which the Box was moved, 'the circumstances cry out for an explanation by [the appellant] as to how her fingerprint came to be on that item'.[24] He said:[25]
There was – appears to be no reasonable explanation for her omission to give an explanation. This resulted in a further inference that there was no innocent explanation to give. That being so, the inference consistent with guilt was significantly reinforced. It wasn't - my inference is not based on - solely on speculation. However, in my - I find that the accused failed [sic: accused's failure] to provide any explanation for the existence of the fingerprint meant that the inference that she participated in the burglary and the stealing became compelling and the only reasonable inference that could be drawn.
In my opinion, in the particular circumstances of this case, the failure on the part of the accused, together with the other evidence that I've referred to, led to the prosecution case being established beyond reasonable - against her being established beyond reasonable doubt.
[24] Decision Transcript pages 11 - 12.
[25] Decision Transcript page 12.
The magistrate went on to consider the position if he was wrong about 'giving myself a Weissensteiner direction'.[26] By this, his Honour clearly meant if he was wrong about being able to conclude that the appellant's failure to give an explanation had this effect. His Honour went on to conclude, in effect, that, even if he did not have regard to the appellant's failure to give an explanation, he would still be satisfied beyond reasonable doubt that the appellant had participated in the burglary.[27]
[26] Decision Transcript page 12.
[27] Decision Transcript pages 12 - 13.
Grounds of appeal
Ground 1 – Weissensteiner
The appellant submits that, unlike the circumstances in Pickett, the facts in this case did not 'cry out for an explanation'. The appellant submits that his Honour was wrong to find that they did.[28]
[28] Appellant's Submissions [40] - [41].
As noted earlier, the Weissensteinerprinciple is that, where an accused person with knowledge of the facts is silent, 'hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused'.[29] In such a case, an inference of guilt may be more safely drawn.[30]
[29] Weissensteiner, 228 (Mason CJ, Deane and Dawson JJ), cited with approval in Baden-Clay [50].
[30] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [35], citing the majority in Weissensteiner.
The operation of the Weissensteinerprinciple in the context of the accused's right to silence was succinctly summarised by Ipp J in Pickett as follows:[31]
Undoubtedly, an accused person is not obliged to testify and no inference can be drawn against him or her arising from a decision not to do so. But, when the circumstances call for an explanation to be given, and where the facts are within the knowledge of the accused person, the failure to provide an explanation may be used to strengthen an inference that otherwise might not be established beyond reasonable doubt. It is to be emphasised that such a failure may only so be used when 'it is reasonable, given the circumstances of the case, to expect that an innocent person would offer an explanation of the events in question and an explanation has not been advanced in some way, either before or during the trial' (per Gaudron and McHugh JJ in Weissensteiner v The Queen at 242).
[31] Pickett, 6.
It is important to understand that
[n]ot every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.[32]
…
The use to which the appellant's failure to give evidence may be put is correctly restricted to the strengthening of an inference of guilt from the facts proved. … [T]he drawing of an inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him.[33]
[32] Weissensteiner, 228 (Mason CJ, Deane and Dawson JJ), cited with approval in RPS [35].
[33] Weissensteiner, 237 - 238 (Brennan and Toohey JJ), cited with approval in RPS [35].
As was noted by the High Court in Baden-Clay:[34]
Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.
[34] Baden-Clay [51].
The following facts were established on the evidence:
1.The complainant's home was burgled sometime between 9 pm on 25 August 2019 and 7.30 am on 26 August 2019.
2.During the burglary, the Box was moved by a person participating in the burglary.
3.The appellant's fingerprint was on the Box in a position consistent with her having carried it.
4.The complainant had bought the Box a week earlier. It had been on display on a shelf in the Northgate Target.
One inference reasonably open on this evidence is that the appellant participated in the burglary.
The question that arose was whether this was the only reasonable inference.
Other possible inferences include that the appellant was involved in the manufacture of the Box, the packing of the Box prior to its delivery to the Northgate Target, or the delivery to the store. Another inference is that she had been the person who stacked the Box on the shelf. The appellant did not suggest that any of these inferences were reasonably open, and they were plainly nothing more than speculative theoretical possibilities.
The only other possible inference is that the appellant had touched the Box when it was on the shelf at Northgate Target when shopping. In my view, to be a reasonable inference, and not mere conjecture, there needed to be some evidence that the appellant had, for instance, attended the Northgate Target. Whether or not she had was something entirely within her knowledge.
Counsel for the appellant noted that 17 months had passed from the date of the offence and the date of the trial. She submitted that, therefore, if the appellant had touched the Box in the store, it was unlikely she would remember having done so. Counsel submitted that, therefore, the circumstances did not call out for an explanation.
I do not accept this. Even if it is objectively unlikely that a person would remember what they had touched in a store more than 17 months earlier, I do not accept it is unlikely a person would remember if they had ever been in a particular store. If the appellant had touched the Box in the store, but could not remember it, she could have given evidence that she had been in the store. She could have given evidence as to the extent of her memory - including what, if anything, she could remember about when she had been to the store, the number of occasions she had been there, aisles she had walked down, items she had considered buying or had bought. If she had given this evidence, the magistrate would have been required to evaluate whether the only reasonable inference open on the evidence was that the appellant had participated in the burglary, without that inference being strengthened by her failure to give evidence.
I agree with the learned magistrate that the facts did cry out for an explanation. Whether the appellant had touched the Box in the store, or even just been in the store, was peculiarly within her knowledge. In addition, as I will explain later, the circumstantial evidence was capable of establishing her guilt beyond reasonable doubt. It was plainly reasonable in the circumstances to expect an explanation. In my view, the magistrate did not err in finding that the appellant's failure to give an explanation strengthened the inference of guilt.
For these reasons, ground 1 fails.
I further note that the magistrate said that he found the appellant guilty on the basis of the circumstantial evidence 'with or without a Weissensteiner direction'.[35] It is apparent from his reasons that his Honour found that, even if he did not treat the appellant's failure to give evidence as strengthening the inference of guilt, the circumstantial evidence proved the appellant's guilt beyond reasonable doubt.[36] As the discussion in the next section will show, this is unsurprising.
Ground 2 – miscarriage of justice
[35] Decision Transcript page 13.
[36] Decision Transcript pages 12 - 13.
The appellant relies upon the magistrate's statement that '[a]t the close of prosecution case, the two [inferences were] open, neither was more probable than the other, arguably.'[37]
[37] Decision Transcript page 8.
In my view, reading his Honour's decision as a whole, it is plain that his Honour was following the analysis and language used in Pickett. Included in the passages from Pickett that the magistrate quoted was the following:[38]
In the circumstances, it seems to me, the case has to be approached on the basis that, at the close of the Crown case, the two inferences were equally open and neither was more probable than the other. … As mentioned, no explanation for the presence of the fingerprints was provided by the appellant …
…
At the close of the Crown case, the two possible inferences were both entirely speculative and, hence 'tenuous' and were evenly balanced. However that was no longer so by the time the appellant closed his case. The circumstances cried out for an explanation by him as to how his fingerprints came to be on the window. Had an innocent explanation existed, it would have been very easy for him to have given it. No reasonable explanation existed for his omission to do so. That resulted in the further inference that there was no innocent explanation to give. That being so, the inference consistent with guilt was significantly reinforced. No longer was it based solely on speculation. The inference consistent with innocence remained, however, speculative - and tenuous.
In the particular circumstances, the appellant's failure to provide any explanation for the existence of the fingerprints meant that the inference that he participated in the stealing of the vehicle became compelling, and the only reasonable inference that could be drawn. In my opinion, in the particular circumstances of the case, that failure on the part of the appellant, together with all the other evidence, led to the Crown case against him being established beyond reasonable doubt.
[38] Pickett, 4 - 10.
In using the phrase relied upon by the appellant, the magistrate was simply echoing the path of reasoning followed in Pickett. In my view, by adding the word 'arguably' to what had been said in Pickett, his Honour was saying that, even if the two inferences in this case were equally probable, this would not inevitably mean that the prosecution had failed. This construction of his Honour's reasons is supported by his Honour ultimately finding that the appellant was guilty 'with or without a Weissensteiner direction'.[39]
[39] Decision Transcript pages 12 - 13.
In any event, in considering whether it was open to the magistrate to find the appellant guilty, it is for me to evaluate the evidence.[40]
[40] Wells [13].
The principles that apply to circumstantial evidence cases are:[41]
(1)When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2)The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3)For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[41] Wells [14]; Baden-Clay [46] ‑ [47].
Further, by the Weissensteiner principle, where an accused person with knowledge of the facts is silent, then 'hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused'.[42]
[42] Baden-Clay [50], citing Weissensteiner, 228 (Mason CJ, Deane and Dawson JJ).
In discussing ground 1, I set out the evidence. I also set out the various possible innocent explanations as to why the appellant's fingerprint was on the Box. In the absence of any supporting evidence, each was pure conjecture. In my view, the only reasonable inference open on the evidence was that the appellant participated in the burglary, committing the offences on her own or with co-offenders.
In my view, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. Accordingly, I am not satisfied that there was a miscarriage of justice. Ground 2 fails.
Extension of time
The appeal notice was lodged one day out of time. The delay has been adequately explained. The respondent did not oppose the grant of an extension of time within which to appeal.
Even though I have concluded I should dismiss the appeal, I will grant an extension of time.
Conclusion
I grant an extension of time within which to appeal, and leave to appeal in relation to ground 1, but dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
24 JANUARY 2022
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