Charrington v Commissioner of Police

Case •

[2016] QDC 277

•

11 November 2016

DISTRICT COURT OF QUEENSLAND

CITATION:

Charrington v Commissioner of Police [2016] QDC 277

PARTIES:

BRADLEY RAYMOND CHARRINGTON
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO:

2072/16

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 November 2016

DELIVERED AT:

Brisbane

HEARING DATES:

14 October, 3 November 2016

JUDGE:

Rafter SC, DCJ

ORDERS:

1.   Allow the appeal.

2.   Set aside the conviction.

3.   Order a new trial.

4.   Remit the matter to the Magistrates Court at Pine Rivers and direct that the new trial be held before a different magistrate.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS – where appellant charged with entering premises and committing an indictable – where brief of evidence given to appellant on day of summary trial – whether defendant denied procedural fairness by being provided with brief of evidence on day of trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRAIGE – OTHER IRREGULARITIES – where, on summary trial, appellant was self-represented – where magistrate intervened in questioning of appellant in the nature of cross-examination – whether intervention by magistrate caused unfair trial

Criminal Code 1899, ss 22, 421, 590AB, 590AC, 590AD, 590AH, 590AI

Evidence Act 1977, s 9
Justices Act 1886, ss 222, 223, 225

AK v Western Australia (2008) 232 CLR 438, cited.
Davis v Commissioner of Police [2016] QCA 246, cited.
Douglass v R (2012) 290 ALR 699, cited.
Mbuzi v Torcetti [2008] QCA 231, cited.

Michael v The State of Western Australia [2007] WASCA 100, cited.

Galea v Galea (1990) 19 NSWLR 263, considered.
R v Brdarovski (2006) 166 A Crim R 366, cited.
R v Capaldo [2015] SASCFC 56, cited.
R v Corcoran [2013] QCA 148, cited.
R v Mohammadi (2011) 112 SASR 17, considered.
R v Senior [2001] QCA 346, cited.
R v Waine [2006] 1 Qd R 458, considered.
Rowe v Kemper [2009] 1 Qd R 247, cited.
Shambayati v Commissioner of Police [2013] QCA 57, cited.
Teelow v Commissioner of Police [2009] QCA 84, cited.

COUNSEL:

The appellant appeared on his own behalf
J K Rodriguez, solicitor for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

Introduction

  1. The appellant was tried in the Magistrates Court at Pine Rivers on 10 May 2016 in relation to a charge that, contrary to s 421(2) Criminal Code, on 8 November 2015 at Dakabin he entered the premises of the Moreton Bay Regional Council and committed an indictable offence namely stealing in the premises.

  1. The appellant represented himself at the trial and on the hearing of the appeal.

  1. The appellant was found guilty of the offence.  The magistrate recorded a conviction and imposed a fine of $1,000.

Appeal against conviction

  1. By notice of appeal filed 31 May 2016 the appellant appealed against the conviction on the grounds that:

1.          He was denied procedural fairness because he was provided with the prosecution brief of evidence on the day of the trial only shortly before the commencement.

2.          He was denied procedural fairness because of interventions by the magistrate.

3.          The magistrate prevented him from calling his 11 year old son as a defence witness.

  1. The appellant’s written submissions filed 27 June 2016 enlarge on these grounds and contend that the prosecution evidence was insufficient to support a conviction.

Nature of the appeal

  1. The appeal is brought pursuant to s 222 Justices Act 1886.  The appeal is by way of rehearing on the evidence given at the trial.[1]

    [1]Justices Act1886, s 223.

  1. The court is required to conduct a review of the evidence.[2]

    [2]Rowe v Kemper [2009] 1 Qd R 247 at 253, para [5].

  1. The magistrate’s advantage in seeing and hearing the witnesses should be kept in mind.[3]  In order to succeed on the appeal the appellant must establish some legal, factual or discretionary error: Teelow v Commissioner of Police;[4] Shambayati v Commissioner of Police.[5]

    [3]Mbuzi v Torcetti [2008] QCA 231 at [17].

    [4][2009] QCA 84 at para [4].

    [5][2013] QCA 57 at para [23].

  1. The powers of the court are set out in s 225 Justices Act 1886 and include that the judge may confirm, set aside or vary the order appealed from. By s 225(2) if the order is set aside, the matter may be remitted to the Magistrates Court with directions of any kind for the further conduct of the proceeding.

The prosecution case

  1. At approximately 8.00 pm on Sunday, 8 November 2015 the appellant drove to the Dakabin waste facility at 336 Old Gympie Road, Dakabin.  He was driving a white van.  He was accompanied by his 10 year old son.  The appellant gained entry to the waste facility through a side access point using a key that he had in his possession.

  1. The appellant loaded ceiling fans, tyres/wheels, sinks, batteries, screen doors and air-conditioning units into the van.

  1. The appellant’s van was captured on closed circuit television entering the waste facility.  An email alert was sent to the principal waste facility officer who was at home at the time.  He contacted the police who attended the waste facility and intercepted the appellant as he was leaving.

  1. The appellant was asked by a police officer what he was doing in the area and he said that he had permission to remove property from the Dakabin refuse tip.[6]

    [6]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 11, LL 1-5.

  1. The appellant was arrested and taken to the Pine Rivers Police Station.  He took part in a recorded interview[7] in which he said that he had paid an employee at the waste facility a total of $7,250 over a period of 18 months to two and a half years for permission to take property from the waste facility.  He said that he had been given a key to the facility.

    [7]Exhibit 4.

  1. The key was seized from the appellant and was found by the police to open the padlock on the gate.[8]

    [8]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 26, L 40 to p 27, L 5.

  1. During the police interview the appellant said that he used to attend the waste facility during the day but was subsequently told that he should attend after hours due to workplace health and safety concerns.  He said that he would attend the facility a “couple of times a week, maybe”.

  1. The employee at the waste facility nominated by the appellant as having given him permission to attend and remove property denied knowing him.[9]  The waste facility employee denied giving the appellant permission to enter the premises after hours and denied receiving any money from him.[10]  At the commencement of the appellant’s cross-examination of the waste facility employee he made it clear that the employee was not the person he said he had been dealing with.[11]

    [9]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 37, L 43.

    [10]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 45, LL 35-40.

    [11]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 46, L 25.

The appellant’s case

  1. The appellant gave evidence.  He essentially adopted what he had said to the police during his interview as being correct.  The only variation to that account was that the waste facility employee he had named was not the person he had been dealing with.[12]

    [12]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 57, LL 20-25.

The magistrate’s reasons

  1. The magistrate gave the following reasons for finding the appellant guilty:

“Mr Charrington’s pleaded not guilty to the offence of entering premises and committing an indictable offence on the 8th of November 2015.  There is no challenge to the evidence that he, on that night, entered the premises by a side gate and removed property which was on site.  As soon as he – and he was leaving by that side gate – that side entrance – sorry, side access point.  He was apprehended by the police in doing so.  He immediately told the police that he thought he was entitled to because of an alarming situation that was said to exist, and that is that he had paid some $7250 over a period of some 18 months to two years to entitle him to take initially only a selected quantity and nature of property, and then later a more broadly described type of material.  He gave detailed explanations then and later to the police and his dealings with (the waste facility employee) and the passing of money to him, and some intricate details as to the conversations and entitlements.

He also gave evidence that he had been given a key and was able to produce a key that gave access to the Dakabin Waste Facility.  That story is a fanciful one in that even if that had occurred, Mr Charrington would have, should have and could not have avoided thinking that – by the 8th of November – that he was participating in an illegal activity.  He had been, he says, pressured to give three amounts of money of two and a half thousand dollars each, the last of which he couldn’t make and ended up giving $2,250 and was advised that he could no longer take stuff during the day, but take stuff out of hours and at night.  He acknowledged that he – his wife thought that it was fishy, and for Mr Charrington in those circumstances not to think that that was the – in the context of an illegal enterprise is just beyond belief.

That does not mean I accept Mr Charrington’s explanation.  I am, however, satisfied that out of his own mouth he has described a circumstance which means that he is guilty of the offence with which he’s charged because he, in my view, could not have failed to appreciate that he was participating in a criminal enterprise.  The explanation that he gave about giving the money to (the waste facility employee), or another employee, is extremely alarming because it is an allegation of a reasonably significant instance of corruption and it – if it’s correct is a very serious matter that needs to be thoroughly investigated.  Mr Charrington did, however, give me the impression that he is a person who’s able to speak quickly, forcefully and with authority, and with a little bit of information and knowledge turn it into a very significant and convincing story.

I was not satisfied that what he said was true, but that’s not the basis upon which I’m finding him guilty of the offence.  It is on the basis that out of his own mouth he could not have avoided being completely aware of the fact that on the – at least on the 8th of November that he was participating in an illegal enterprise in removing property from the premises.  I’m not dealing with other instances that he’s described; it’s just that night on the 8th of November, and in respect of that offence I’m finding him guilty of the offence.”[13]

Denial of procedural fairness on the ground that the brief of evidence was provided to the appellant on the day of trial

[13]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016 at pp 62-63.

  1. The respondent accepts that the appellant received the prosecution brief of evidence on the day of the trial.[14]  At the commencement of the trial the magistrate asked the appellant if he had received a copy of the material being relied upon by the prosecution.  The appellant indicated that he had received the material that day.[15]

    [14]Outline of submissions on behalf of the respondent filed 21 July 2016 at para 6.3.

    [15]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 2, L 10.

  1. The magistrate then asked the appellant whether he was “ready to participate in the hearing” and the appellant replied “Ready as I’ll ever be.  Yes”[16]

    [16]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 2, L 16.

  1. The Criminal Code provides in s 590AB that:

“590AB Disclosure obligation

(1)This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.

(2)Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of—

(a)all evidence the prosecution proposes to rely on in the proceeding; and

(b)all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.” 

  1. Section 590AH provides:

“590AH Disclosure that must always be made

(1)         This section applies—

(a)without limiting the prosecution’s obligation mentioned in section 590AB(1); and

(b)subject to section 590AC(1)(a) and chapter subdivision D.

(2)For a relevant proceeding, the prosecution must give the accused person each of the following—

(a)a copy of the bench charge sheet, complaint or indictment containing the charge against the person;

(b)a copy of the accused person’s criminal history in the possession of the prosecution;

(c)a copy of any statement of the accused person in the possession of the prosecution;

(d)for each proposed witness for the prosecution who is, or may be, an affected child—a written notice naming the witness and describing why the proposed witness is, or may be, an affected child;

(e)for each proposed witness for the prosecution other than a proposed witness mentioned in paragraph (d)—

(i)        a copy of any statement of the witness in the

possession of the prosecution; or

(ii)       if there is no statement of the witness in the

possession of the prosecution—a written notice naming the witness;

(f)if the prosecution intends to adduce evidence of a representation under the Evidence Act 1977, section 93B, a written notice stating that intention and the matters mentioned in section 590C(2)(b) to (d);

(g)a copy of any report of any test or forensic procedure relevant to the proceeding in the possession of the prosecution;

(h)a written notice describing any test or forensic procedure, including a test or forensic procedure that is not yet completed, on which the prosecution intends to rely at the proceeding;

(i)a written notice describing any original evidence on which the prosecution intends to rely at the proceeding;

(j)a copy of anything else on which the prosecution intends to rely at the proceeding;

(k)a written notice or copy of anything else in possession of the prosecution prescribed under a regulation.”

  1. The term “relevant proceeding” includes a prescribed summary trial.[17]  A “prescribed summary trial’ includes a charge for an indictable offence that must be heard and decided summarily under s 552BA.[18]

    [17]Criminal Code, s 590AD.

    [18]Criminal Code, s 590AD.

  1. The appellant’s trial was a prescribed summary trial and therefore the prosecution was required to provide him with the brief of evidence at least 14 days before the commencement of the trial: s 590AI(2)(a) Criminal Code.

  1. However, the failure by the prosecution to comply with their disclosure obligation did not invalidate the trial: s 590AC(2) Criminal Code.

  1. The appellant did not apply for an adjournment of the trial on the ground that he was not ready to proceed.  Furthermore he cross-examined witnesses and he had brought to court his son who was 11 years old at the time and who he intended to call as a defence witness.

  1. In all the circumstances there is no substance in the appellant’s complaint that he was denied procedural fairness on the ground that the brief of evidence was given to him on the day of the trial.

Intervention by the magistrate

  1. At the commencement of the trial the Magistrate explained to the appellant the procedure for cross-examining witnesses, objecting to evidence and calling witnesses.[19]

    [19]        Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, pp 3-6.

  1. On occasions the magistrate interrupted the appellant during the cross-examination of prosecution witnesses by pointing out that his question included a comment.  For example, when the appellant was cross-examining a police officer he asked “You’re approaching these headlights; you did not hit your recorder to record any conversation that’s said at the beginning?”  The police officer answered “No” and the appellant responded “Convenient.  Thank you.”  The magistrate said “Well, that’s a comment.  That’s not appropriate.”[20]

    [20]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 17, LL 30-35.

  1. There were a number of instances where the magistrate told the appellant not to make comments when asking questions.[21]

    [21]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 31, L 40; p 48, L 1.

  1. It was entirely legitimate for the magistrate to intervene to ensure that the appellant’s questions were appropriate and did not include comments.

  1. However, when the appellant gave evidence and was being cross-examined by the prosecutor the magistrate intervened and the following exchange occurred:

“HIS HONOUR:  Just excuse me for a moment, Sergeant.  Perhaps I might shorten things.  Mr Charrington, what you told the police was that over a period of time you paid a bloke at the council tip $7250 - - -?---Yep.

- - - to allow you to take stuff away from the tip?---Yes.

At some stage you realised that you weren’t getting much value for money?---Yes.

But you were then also told that you couldn’t take it during the day any more, you had to come back at night after the place was closed?---Yeah, I was told - - -

Just listen to me for a minute.  Your partner told you that you – that she thought something was fishy?---Yeah.

You kept going back at night?---No.  I went to the council first and went - - -

You – well, you went on several occasions at night - - -?---Yeah.

- - - and took stuff away.  Wouldn’t it have been as clear as the nose on your face that the bloke at the council was on the take?---No, not at – I’d just started – I’ve got my – I just started a business at the time and I guess I got caught up in the – I’ve stopped it all now.  Like, because of this incident I don’t operate any more.  It’s just not worth the trouble.  But I’ve got cards and I’ve got shirts and – etcetera.  Like, it was - - -

Forget that - - -?---It’s not like I just decided to do it. It - - -

Forget that.  A bloke on the council is taking cash from you, not giving you a receipt and asking you to take stuff – suggesting that you only take stuff away at night?---But I was taking it during the day first and I didn’t have any problems.

Right?---I didn’t think any issue.  And when I went and checked the – and I spoke to (a female) at the - - -

Right.  But by the time we get to the 8th of November you’re going back at night to take stuff - - -?---Yeah.

- - at his suggestion?---But it wasn’t that long between.

Right?---I should have listened to my partner ultimately.  I shouldn’t have let my - - -

Right?---You know, I shouldn’t have trusted them.  That’s the only thing I did.

So by the 8th of November, when you go back at night to take stuff from the council, where you’ve given a bloke cash, surely it’s as clear as the nose on your face - - -?---No.

- - - that you’re getting stuff from a fellow who’s on the take?---I didn’t think that he was on the take.  It’s – you pay – you buy stuff from the treasure market there all the time.

All right?---I didn’t – I – that’s why I went to the council to make sure the person was the – was the right person.  I spoke to the lady … at the – the front reception.  I had a conversation with her.  I just – I wanted to make sure for myself that the name I was given was, in fact, the right name because - - -

And it was (the waste facility employee)?---Beg your pardon?

And it was (the waste facility employee)?---Yeah, well, I thought it was (a similar name).  I gave the – I thought she said it as a B instead of a V. But I - - -

Well, you checked with the council that that was the bloke?---Yeah.  I spoke to (the female) at the counter - - -

Okay.  All right?--- - - - and I remember her name because she’s the same name as my mum so I thought everything – I just thought – they gave me the key.  The key fit.  I just assumed - - -

Right.  Okay.  Even on that basis, Sergeant, is there any point in continuing your cross-examination?  I don’t – I won’t truncate you, but it seems to me that on a prima facie one couldn’t sensibly have a belief that one wasn’t – one was entitled to the property at that stage.

PROSECUTOR:  Your Honour, if you’ve got that view that saves me a lot of time.

HIS HONOUR:  All right.  Now, I’ve indicated my prima facie view, Mr Charrington.  Say what you would like to about it.  It seems to me that it’s incomprehensible that someone in your position could have thought you were entitled to go there after hours and take property.  Even if you’d been told you could by the council it should have been perfectly obvious to you that if the story that you tell is true and that that bloke is on the take and you’re participating in it?---I didn’t know he was on the – you know, maybe I should have known better, but, you know, it’s my - - -

Well, you said your wife even suggested to you it was fishy?---She did.  And that’s why I went to the council to confirm he was who he was and so forth, but - - -

And yet you still went there at night to get it rather than in daytime?—Yeah, well, I was told not to go there during the day before the – I guess there’s nothing I can do then.  It’s – you know.

All right.  Nothing else you’d like to say?---No.  There’s no point, I guess.”[22]

[22]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, pp 59-61.

  1. In R v Mohammadi the Court of Criminal Appeal of South Australia considered the issue of judicial intervention in the conduct of a criminal trial.[23]  Gray and Sulan JJ summarised the relevant considerations as follows:

    [23](2011) 112 SASR 17.

“[24]Many authorities have discussed the approach taken to suggested undue interference by judges in the course of criminal trials.  A number of those observations can be conveniently summarised as follows:

·    The role of a judge in a trial is to ensure the propriety and fairness of the trial and to instruct the jury as to the relevant law.  The judge is to take no part in the contest between the prosecution and the accused.

·    Excessive interference or involvement by a judge during the trial may constitute such a departure from the due and orderly processes of a fair trial as to result in a miscarriage of justice.

·    Departure from the due and orderly processes of a fair trial may infringe the principle that criminal justice must not only be done but must also appear to be done.

·    To determine whether a judge has inappropriately intervened, one must ask whether judge’s intervention has created a real danger that the trial was unfair.  To decide this, the appellate court must consider whether the judge’s interventions “indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”.

·    When deciding whether the judicial intervention has reached the point of unfairness, one must look to the number, length, terms and circumstances of the interventions and must consider the interventions in the context of the trial as a whole.  The point at which the intervention occurs is also relevant.

·    Active participation of a judge in the conduct of cases has become more common.  However, the judge is under more stringent requirements in respect of the conduct of the criminal trials, particularly those with a jury.  Greater latitude of intervention by a judge through questioning and comment will be accepted when a judge is sitting alone without a jury.”[24]

[24](2011) 112 SASR 17 at 22-23 para [24] (internal citations omitted).

  1. Those observations were adopted by the Queensland Court of Appeal in R v Corcoran.[25]

    [25][2013] QCA 148 at [19].

  1. In Galea v Galea,[26] Kirby A-CJ (as his Honour then was) said that the test was whether excessive questioning by a judge had created a real danger that the trial was unfair.  His Honour said that:

“Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’.”[27]

[26](1990) 19 NSWLR 263.

[27](1990) 19 NSWLR 263 at 281.

  1. Where the accused is self-represented it may be necessary and appropriate for a judge to intervene to ensure that the evidence remains relevant:  Michael v The State of Western Australia.[28]

    [28][2007] WASCA 100 at para [65].

  1. However, a judge should be careful not to take over the cross-examination of an accused which may create the risk of an apprehension of bias: R v Capaldo.[29]  The impression can be given that the prosecutor and judge are acting in tandem: R v Senior.[30]

    [29][2015] SASCFC 56 at paras [14]-[15] and [34]-[35].

    [30][2001] QCA 346 at [37].

  1. It is not the function of a trial judge to ask questions designed to cast doubt on the credit of the accused: Michael v The State of Western Australia;[31] R v Brdarovski.[32]

    [31][2007] WASCA 100 at para [72].

    [32](2006) 166 A Crim R 366 at 374-375 para [25].

  1. In the present case the magistrate’s questions of the appellant created the distinct impression that his Honour had sided with the prosecution.  The appellant was not expressly told that he had the opportunity to give evidence in re-examination to clarify issues that arose in the course of cross-examination at the magistrate’s questions. He was simply asked by the magistrate “Nothing else you’d like to say?”.  In view of the manner in which the magistrate assumed the task of undertaking the cross-examination, it is not surprising that the appellant replied “No. There’s no point I guess”. In my view this led to an unfair trial.

  1. A consequence of the magistrate’s intervention in the cross-examination of the appellant was that aspects of his version in the police interview were not challenged.  For example, the appellant said to the police that after his partner had told him that the arrangement “doesn’t seem right” that he then went to the waste facility and “spoke to the lady at the front counter”.  He said that he had wanted to confirm that the person he was dealing with was in fact in charge.

  1. Furthermore, the appellant said to the police that on one earlier occasion when he was at the waste facility he had been stopped by the police.  He said that he told the police what he was doing and they had told him “off you go”.  He had therefore assumed that “it was ok”.  He told the police that there were cameras throughout the waste facility and that he had not worn a mask or disguised himself in any way.

  1. The appellant also told the police that on one occasion when he was at the waste facility the security guard had forgotten his keys and called out as there was an alarm going off in the lunchroom.  The appellant said that he had opened the gate for the security guard.

  1. If these aspects of the appellant’s version were disputed by the prosecution they should have been the subject of cross-examination: Davis v Commissioner of Police.[33]  These facts were clearly relevant to the appellant’s claim that he believed he was entitled to the property.

    [33][2016] QCA 246 at [30]-[37].

  1. I consider that the magistrate’s questioning of the appellant led to an unfair trial.  Accordingly this ground of appeal should succeed.  In the circumstances, subject to the appellant’s ground of appeal relating to the sufficiency of the evidence to support a guilty verdict, I consider that there should be a new trial to be held before another magistrate.

The appellant’s contention that the magistrate refused to allow him to call his son as a defence witness

  1. At the commencement of the trial the prosecutor informed the magistrate that the appellant had his son with him and that this was “of concern in light of the nature of the charge”.[34]

    [34]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 6, LL 35-37.

  1. The following exchange then occurred:

“HIS HONOUR:  Right.  How old is your son, Mr Charrington?

APPELLANT:  He’s 11.  He was there when I – when – like, he’s a complete witness.  His memory’s obviously fading but he knows enough to give you - - -

HIS HONOUR:  What, you were going to expect me to listen to the evidence of an 11 year old child?

APPELLANT:  Well, he was there when I paid the people and - - -

HIS HONOUR: Listen to the question.  You were going to – you’re contemplating asking me - - -

APPELLANT:  Yes.  Well, that’s my – my other witness passed away.

HIS HONOUR:  - - - to hear the evidence of an 11 year old child?

APPELLANT:  That was – who was my dad has passed away three weeks ago but the only other person I have - - -

HIS HONOUR:  Listen to my question.  You need to concentrate on the questions that you’re being asked and not just go off on you own tangent.  You’re potentially going to call you son as a witness?

APPELLANT:  Yes.

HIS HONOUR:  Have you thought that through seriously?

APPELLANT:  Yes.

HIS HONOUR:  And you’re going to ask me to receive his evidence in these proceedings?

APPELLANT:  Yes.

HIS HONOUR:  Have you sought advice about that?

APPELLANT:  No.  He’s just my – he’s my only person who can speak who was there at the time who actually seen money pass hands and me having discussions with the people at the time.  He – he – he was with me.

HIS HONOUR:  So you’re – all right.

APPELLANT:  So it’s the only person – I can’t bring – I don’t want to bring - - -

HIS HONOUR:  Do you - - -

APPELLANT:  I can’t bring someone who wasn’t there along.  I’ve got to – he just happened to be the one who was there on numerous occasions.

HIS HONOUR:  There are very – there are significant difficulties in calling a – the evidence of a child.

APPELLANT:  I just thought he’d be more – with him, he’s a child.  It’s – they – you know, they – children, you can’t convince them otherwise.  They will say what’s on their mind and I’m sure he will - - -.”[35]

[35]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, pp 6-7.

  1. After the appellant had given evidence the following exchange occurred:

“HIS HONOUR:  It’s a matter for you whether you wish to call your son - - -

APPELLANT:  No.  There’s no point at this time, you Honour.

HIS HONOUR:  - - - and I – it’s a matter for you whether you wish to, but it would seem to me to be clearly not in his interest for him to be dragged into - - -

APPELLANT:  Yeah, no, it’s okay.

HIS HONOUR:  - - - into this enterprise and that you would be being extraordinarily negligent as a father to expose him to that.  Now, I’m making my point of view fairly clear.

APPELLANT:  Yeah, no, I don’t - - -

HIS HONOUR:  To some extent I am interfering with your rights to call whatever evidence that you like, but I’ve expressed a view and I’m taking that step in an endeavour to try and protect him as well.  All right.  Now, the steps that I’ve taken are unusual, but because I’ve indicated that I’ve formed a view as a result of what you’ve said that calling him as a witness to effectively just confirm your story, which as I’ve said, on its own still suggests to me that you are guilty of the offence.  So I take it you’re not going to call him as a witness? 

APPELLANT:  No.

HIS HONOUR:  All right.  All right.  Now, Mr Charrington, I’ve expressed that view.  I’ve not found you guilty of the offence yet, but I still invite you to make whatever submissions you like about it.  Is there anything more that you’d like to say?”[36]

[36]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, pp 61-62.

  1. It can be seen that the magistrate strongly discouraged the appellant from calling his 11 year old son as a witness.  His Honour told the appellant he would be “extraordinarily negligent as a father” to call his son as a witness.  It is not entirely clear what the magistrate meant when he said that there are “significant difficulties” in calling a child as a witness.[37]  After all every person, including a child, is presumed to be competent to give evidence and competent to give evidence on oath.[38]

    [37]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 7, L 40.

    [38]Evidence Act 1977, s 9.

  1. The appellant explained to the magistrate that his son was the “only person who can speak who was there at the time who actually seen money pass hands and me having discussions with people at the time”.[39]

    [39]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p7, L 27.

  1. On the hearing of the appeal the appellant did not seek to place evidence before the Court in relation to what evidence his son could have given.  On the limited information placed before the magistrate, it seems that the evidence of the son related to aspects of the prosecution case that were not really in dispute.

  1. The appellant’s ultimate decision not to call his son as a witness was made after the magistrate had asked him a number of questions in the nature of cross-examination and expressed the view that it seemed “incomprehensible” that someone in the appellant’s position could have thought that he was entitled to go to the waste facility after hours and take property.[40]

    [40]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 61, L 5.

  1. It is perhaps understandable that in the circumstances the appellant saw no point in calling his son as a witness.  However, in view of the limited information before the Court relating to the evidence that the son could have given, I am unable to conclude that a miscarriage of justice resulted from the magistrate discouraging the appellant from calling him as a witness.

Sufficiency of the evidence

  1. The main issue at the trial was whether the prosecution could prove beyond reasonable doubt that the appellant did not have an honest claim of right to the property within the meaning of s 22(2) Criminal Code.

  1. The magistrate was certainly not obliged to accept the appellant’s version of events.  There are certainly aspects of the appellant’s version that seem implausible. 

  1. Furthermore, the prosecution relied on the fact that the front number plate on the appellant’s van was missing leading to a possible inference that he was endeavouring to avoid being detected.  He had gained access to the waste facility through the southern boundary by moving temporary fencing rather than using the main public entrance. 

  1. The whole of the evidence is capable of supporting an inference that the appellant is guilty of the offence. 

Adequacy of the magistrate’s reasons

  1. The main issue in the trial was whether the prosecution proved beyond reasonable doubt that the defendant did not have an honest claim of right to the property: s 22(2) Criminal Code. The respondent conceded that the appellant’s interview with police raised the issue of honest claim of right.

  1. The magistrate correctly told the appellant at the commencement of the trial that the prosecution had the onus of proving his guilt beyond a reasonable doubt and that he did not have the onus of proving his innocence.[41] However the magistrate’s reasons did not make reference to the onus and standard of proof, the elements of the offence or the issue of honest claim of right. The magistrate said that the appellant “could not have failed to appreciate that he was participating in a criminal enterprise” and “that out of his own mouth he could not have avoided being completely aware of the fact that on the – at least on the 8th of November that he was participating in an illegal enterprise in removing property from the premises”.

    [41]Transcript of proceedings, Magistrates Court at Pine Rivers, 10 May 2016, p 5, LL 37-47.

  1. The application of s 22(2) requires “…an honest claim by the accused to an entitlement in, or with respect to, property”: R v Waine.[42] As Keane JA (as His Honour then was) explained at [25]:

“It has been said that the clearest example of the operation of s. 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property. But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one’s own title.”

[42][2006] 1 Qd R 458 at 462 per Keane JA (as His Honour then was) at 462 para [23]

  1. The appellant’s actual belief was the critical issue. The magistrate did not expressly deal with that question. His Honour focussed on what the appellant must have been aware of.

  1. The reasons for decision should include a statement of the principles being applied and the main findings of fact: Douglass v R;[43] AK v Western Australia.[44]

    [43](2012) 290 ALR 699 at 701-702 para [8].

    [44](2008) 232 CLR 438 at 480-481 para [107].

  1. In the circumstances of the present case, it would have been preferable if the magistrate expressly dealt with the elements of the offence and the issue raised by s 22(2) Criminal Code.

Conclusion

  1. The appellant has established that the intervention by the magistrate led to an unfair trial. In the circumstances I consider that the most appropriate order is that the matter be remitted to the Magistrate Court for a new trial. An order for a new trial is permitted by s 225(2) Justices Act 1886 which enables the Court to “send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for re-hearing or re-consideration”: see Davis v Commissioner of Police.[45]  As I have said,[46] the trial should be held before another magistrate.

    [45][2016] QCA 246 at para [6].

    [46]Para [45].

  1. I therefore make the following orders:

1.          Allow the appeal.

2.          Set aside the conviction.

3.          Order a new trial.

4.          Remit the matter to the Magistrates Court at Pine Rivers and direct that the new trial be held before a different magistrate.


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Mbuzi v Torcetti [2008] QCA 231
Teelow v Commissioner of Police [2009] QCA 84
Shambayati v Commissioner of Police [2013] QCA 57