Ciminata v Reynolds - [2000] WASCA 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CIMINATA -v- REYNOLDS [2000] WASCA 97

CORAM: MILLER J

HEARD: 4 APRIL 2000

DELIVERED : 14 APRIL 2000

FILE NO/S: SJA 1218 of 1998

BETWEEN: MARIO CIMINATA
Appellant
AND
KELVIN JOHN REYNOLDS
Respondent

Catchwords:

Criminal law - Appeal - Magistrate's reasons - Question of bias - Charges of receiving - Doctrine of recent possession - Turns on own facts

Legislation:

Criminal Code, s 414

Police Act 1892, s 69

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr J Dickinson
Respondent: Mr S Van Dongen

Solicitors:

Appellant: Melasecca Zayler
Respondent: State Director of Public Prosecutions

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

Harling (1997) 94 A Crim R 437
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248
Webb v The Queen (1993-94) 181 CLR 41

Case(s) also cited:

RPS v The Queen [2000] HCA 3

MILLER J: The appellant was charged in Petty Sessions with five counts of receiving, contrary to s 414 of the Criminal Code and one count of unlawful possession contrary to s 69 of the Police Act 1892. The charges of receiving alleged offences within a timeframe which spanned the period 10 March to 29 August 1997. These charges were heard by Mr K Moore SM in the Perth Court of Petty Sessions over the period 20 July 1998 to 30 October 1998. There were a number of hearing days during that time. Following the final day of hearing on 30 October 1998 the learned Magistrate convicted the appellant of all charges and imposed an effective sentence of 2 1/2 years' imprisonment without parole. From the convictions the appellant has appealed to this Court by leave of Steytler J granted 29 January 1999. The grounds of appeal are as follows:
(i)The learned Magistrate erred in law in failing to assess the evidence of each of the witnesses for the defence in that he found that he did not believe the defendant and therefore, 'And his witnesses are desperately trying to assist him, … I can place no reliance upon them at all.'
(ii)The learned Magistrate erred in law in finding that, because he relied upon the evidence of the prosecuting witnesses, then the defence witnesses could not be relied upon at all.
(iii)The learned Magistrate erred in fact and in law in the manner in which he came to the conclusion that he relied upon the prosecution witnesses and not the witnesses for the defence.
Ground (iii) is extensively particularised and deals with the learned Magistrate's assessment of the witnesses Justin Campbell, Bruno Ciminata and the appellant's evidence on the issue of a mobile telephone.
The appellant was found in possession of the goods which were the subject of the charges. These comprised various household items, a toolbox, tools and other assorted pieces of property. The prosecution case was based upon the doctrine of recent possession, the accused having been found in possession of the goods after they had been stolen and allegedly failing to give a credible explanation of the manner in which they were discovered in his possession. In this case an explanation for the possession of the property was put forward by the appellant and by a number of witnesses called on his behalf. That explanation was that a woman named Angelia Yek had conveyed the property, the subject of the various charges, to the appellant's address when she moved in to live with him after 12 July 1997. According to the appellant, Ms Yek had lived with him for only a couple of weeks, following which he had thrown her out of the house. His testimony was that Ms Yek was going through a bad time with a boyfriend and in essence the appellant felt sorry for her. He took her to dinner, coffee and some nightclubs and "sort of hooked up with her", as a result of which she moved into his place. He claimed that when she did so she gradually moved various items in. Over a period of perhaps two, three or four weeks she brought over a bed, lounge chair and various other "dribs and drabs". According to the appellant's evidence Ms Yek had "rocked up with them on the back of a trailer. I don't know who the guy was. She just rocked up and I give them a hand to offload … I stuck them in the other room … the spare room." It appears that other items such as wine and wine racks were brought on different occasions. The appellant had no recollection of toolboxes being brought by Ms Yek, but thought that perhaps his brother or some other person had just left some tools at his place. A Pentax camera was said by the appellant to have come from his mother's place and another one from Ms Yek. There was a mobile telephone which was Ms Yek's and which the appellant gave to a Ms Fazio on the occasion of her birthday in the month of July 1997.
The police attended at the appellant's property on 10 September 1997, as a result of which the appellant rang somebody who knew Ms Yek and explained that there had been a visit by the police and it would be in the best interests of Ms Yek if her property was picked up. This apparently happened between 10 and 11 September because when the police returned on 11 September the property had gone. There was conflicting evidence from the appellant about some items, including the bed, which a police officer said the appellant had contended he had for a year or two and had bought from Bedshed in Osborne Park. According to the appellant, he did not say he had bought it from Bedshed in Osborne Park but that it had come from Bedshed. His evidence was that it was Ms Yek who said she had bought it from Bedshed.
The learned Magistrate in his reasons first reviewed the sporadic progress of the case which, he said, had caused problems in relation to the ultimate disposition of it. His Worship noted that prior to coming into court on the last day of the hearing he had re‑read notes he had taken of the proceedings and "re‑advised" himself of what the position was. He then reviewed the evidence, pointing out that various witnesses had been called to establish that their property was stolen, as to which evidence he had no doubt. Some of that property he found to have been located in possession of the appellant at his house, although the appellant contended that possession of it was entirely innocent. The learned Magistrate then reviewed the evidence of Ms Yek. He found her to have given evidence in a very positive, forthright manner, that evidence being to the effect that between 12 May and 12 July 1997 she was in custody in Bandyup Prison and upon her release, had no contact with the appellant until about two weeks before she appeared in court. On that occasion she contended that the appellant had told her at a café in Northbridge that he was in trouble and a friend had told him "to get someone to plead an immunity". This, she said, she did not understand. She was thereafter contacted by the appellant on a number of occasions but changed her telephone number as she wanted no further contact with him.
When cross‑examined by counsel for the appellant she elaborated upon the appellant's request to her, saying that he wanted her "to cop these charges to get him out of trouble". She was adamant that she did not live at any time in the appellant's house and she added that at no time had she ever owned a four poster bed, nor had she experienced any trouble fitting a four poster bed on a trailer. When this had been put to her she said that she that she simply did not know "what the hell you're talking about". Ms Yek's mother confirmed that after her daughter's release from prison she had lived with her. She had stayed there for a period of approximately two months and then left in late August with a person named Mark whom she had recently met. Her mother was specific that she recalled going with Ms Yek to a flat in late August 1997 where she observed the flat to be partly furnished and to which she took her clothes and personal items, being helped by her mother to move in. Thereafter she visited her daughter quite often during the period she lived with Mark in this flat and on no occasion did she ever meet the appellant. Indeed she had only seen him once, which was an occasion when her daughter had introduced her to the appellant at her father's place. On that occasion he was not introduced as a boyfriend but only by name.
Having reviewed all of this evidence the learned Magistrate concluded that he was satisfied beyond reasonable doubt that Ms Yek was not at the house of the appellant at any time between May and July (when she was in prison) or thereafter. His Worship clearly accepted Ms Yek and her mother as witnesses of truth and he made a clear and positive finding that at no time had Ms Yek, after her release from prison, moved into the appellant's house as the appellant had contended. When his Worship's reasons are so analysed, it is clear that this conclusion was fatal to the appellant's defence that it was Ms Yek who had brought the various items of property to his house when she moved in to live with him for a period of a couple of weeks shortly after her release from prison.
The learned Magistrate reviewed the evidence of the appellant and witnesses called on the appellant's behalf. His Worship's conclusion was that the appellant was "telling a tissue of lies" and his witnesses were "trying desperately to assist him" and no reliance could be placed upon them at all. Each witness was dealt with in turn, the first of them being the appellant's brother, Bruno Ciminata. The learned Magistrate was critical of Bruno Ciminata's testimony, seizing upon the fact that in the course of his testimony Bruno had contended that on an occasion when he and his brother had gone to Ms Yek's house, his brother had got out of the car but he (Bruno) had remained in it. Nevertheless, he had said in re‑examination to his own counsel that when it came time to leave "we'd basically jumped in the car". This the learned Magistrate took to indicate a change in testimony. However, upon a fair reading of the transcript of Bruno Ciminata's evidence, it is apparent that at all times he was insistent that he had remained in the car. He used the word "we'd" on several occasions, but it appears to have been the case that he spoke in less than perfect English. For example, during the course of his examination‑in‑chief, he said:
"And when Mario was at the front of the car and sort of, like, explained it to him and backed it up with a few facts, obviously this fired the guy up again and he started storming towards the house, right. And as he took off I said to Mario, I says, 'Mario,' I says, 'I think we'd better get back in the car and get out of here.' "
The use of language, and in particular the use of the word "we'd" was anything but precise and it does seem to me that on balance the learned Magistrate misapprehended the import of Bruno Ciminata's testimony, which was clearly to the effect that he had remained in the car on the day in question and his brother had got out of it. When he referred to the two of them doing things he meant that all of this occurred whilst he remained in the vehicle.
The learned Magistrate also referred to the evidence of Justin Campbell. Campbell had testified that in the middle of 1997 he had helped Ms Yek move stuff from her house to the appellant's house in Yokine. To do this he borrowed a car and trailer. The learned Magistrate quoted from his notes to the effect that Campbell stated that he had picked up the car from a house off Wanneroo Road. This, he said, was in contrast to his testimony in cross‑examination that he had picked up the car and trailer from Kenwick. There is no doubt that the learned Magistrate was wrong about this. At no time did Campbell say that he had picked up the car and/or trailer from a house off Wanneroo Road. At all times he testified that the vehicle and trailer had been collected from Kenwick. The learned Magistrate went further in relation to the evidence of Campbell. He pointed out that he had spoken of moving Ms Yek's stuff in the middle of the year, but when told by the police prosecutor that Ms Yek had been in prison between May and July, he "changed his tune … changed his story" and testified that he had moved her stuff in between July and August 1997. The learned Magistrate was wrong about this, because Campbell had consistently maintained that it was around mid July when he had moved Ms Yek's possessions. As a fact she had been released from prison on 12 July 1997 and when the prosecutor put to Campbell that he must be saying that he saw her some time between 12 July and the month of August 1997, he agreed that he had. In my view there was no real inconsistency in Campbell's testimony.
The learned Magistrate also made passing reference to the evidence of Basil Lampros, whom he said had "something to say, but what it was (was) of little significance and not such that I can in any way place any reliance to it that contradicts any of the other evidence of the prosecution witnesses". Although not identified by the learned Magistrate, what Lampros had said was that he had met Ms Yek at a time when she was staying at the appellant's house. This meeting was on one occasion and had been "about the middle of the year" that he could remember. He said that the person had introduced herself as "Angela" and that he did not know her at that stage. The learned Magistrate's dismissal of Lampros without reference to what he had to say may be accounted for by the fact that when further pressed in examination about the issue, he said that he had been to the appellant's house before on one or two occasions but had not seen Ms Yek there on either of those occasions. He was asked whether he could reach any conclusion about whether Ms Yek was staying at the house and all that he could say was that Mario had said that it was his girlfriend "plus the way it looked out is she felt so vulnerable over him the way she was carrying on in the kitchen with him … so it obviously looked like they were staying together". In the end, the learned Magistrate clearly considered that the evidence of Lampros could not be relied upon to support the proposition that Ms Yek was living with the appellant as he had contended.
The conclusion reached by the learned Magistrate was that he could place no reliance on the evidence of the appellant, Justin Campbell, Bruno Ciminata or Basil Lampros. It may be that he was in error in some respects in his summation of the effect of the evidence of Campbell and Bruno Ciminata, but at the end of the day, it is perfectly clear that the learned Magistrate accepted without reservation the testimony of Ms Yek and her mother that at no time after Ms Yek's release from prison on 12 July 1997 did she go to reside with the appellant at his home. To the contrary, the learned Magistrate accepted that Ms Yek had lived with her mother for some period of time until she left to go and live with a person named Mark. Once this conclusion was reached by the learned Magistrate the defence of the appellant fell to pieces. It could not have been the case that Ms Yek had moved her property to his house between July and August 1997 as he contended and as Justin Campbell contended. Nor could it have been the case that Ms Yek was at the appellant's home and gave the appearance of staying there as testified to by Lampros. To the extent that counsel for the appellant criticises the learned Magistrate's conclusions in relation to the witnesses Campbell and Bruno Ciminata, he is entirely correct. This does not, however, affect the outcome of the matter, as errors in detail aside, the learned Magistrate clearly found beyond reasonable doubt the testimony of Ms Yek and her mother to be the truth. Once that conclusion had been reached, the evidence of the appellant himself, his brother, Campbell and Lampros could not affect the result. It is, of course, true that the learned Magistrate was obliged to find on the whole of the evidence that the case was proven beyond reasonable doubt. A finding of guilt cannot, of course, be reached simply by rejecting the case put forward by a defendant. It was put this way in Harling (1997) 94 A Crim R 437 by Anderson J (at 443):
"A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say that he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case. Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree."
However, slightly different considerations applied in this case. It was a case in which the Crown relied upon the doctrine of recent possession. It was therefore critical for the learned Magistrate to decide whether or not the appellant had given a credible explanation of the manner in which the various items were discovered in his possession. It is transparently obvious from the learned Magistrate's reasoning that far from any credible explanation being given by the appellant, the learned Magistrate was of the view that his explanation was incredible. In any event, there was ample evidence which independently demonstrated the appellant's explanation to be unacceptable. All of this evidence was highlighted by counsel for the respondent at the hearing of the appeal. It is sufficient for me to refer to some examples. The first is the question of the mobile telephone. In this respect the appellant testified that on a date which he thought was 14 July 1997 he gave a friend, Ms Fazio, a mobile telephone as a birthday present. Initially he said this was Ms Yek's telephone but later he said that it might have been her telephone. He later said that he did not think that she had a mobile telephone. In the end, he stated that he'd found the telephone at his house and assumed it was Ms Yek's. Ms Fazio herself testified that she had been seeing the appellant between April‑May 1997 and early 1998. She was aware that a female had stayed at the appellant's address at some earlier time but she did not see anyone there during her relationship with the appellant. This evidence flew in the face of the appellant's testimony that Ms Yek had moved in with him in July‑August 1997. Further, Ms Fazio specifically stated that although she did not go to the appellant's address on a regular basis she saw nothing when she was there to indicate that any other person was living with him. This evidence contrasted sharply with evidence of Bruno Ciminata to the effect that Ms Yek had lived at the appellant's house "about a year and a bit" before 30 October 1998 and that over a three month period when he went there he had seen Ms Yek on each of six to 10 occasions. Bruno Ciminata said that he thought the appellant had started going out with Ms Fazio two or three months after Ms Yek had been at the appellant's address. On no view of it was this consistent with the evidence of Ms Fazio.

There was also evidence that after the police had searched the appellant's house on 10 September 1997 and seized a number of items of stolen property, they took note of other property. They returned the following day and when they did so the property which they had noted had gone. The appellant's explanation for this was that he had moved the property because he "didn't want to get involved" and because he wanted to save Ms Yek. It was an unlikely explanation and although not specifically dealt with by the learned Magistrate, told heavily against him.
The evidence of Campbell created even greater problems for the appellant. Campbell had given evidence that between 12 July and the month of August 1997 he helped Ms Yek to move a lounge suite to the house of the appellant. He said that he had been to the appellant's house on numerous occasions around mid 1997 and that when he arrived at the appellant's house with the lounge suite the appellant had given him a hand taking the stuff on to the verandah. The appellant, on the other hand, gave evidence that he did not know the identity of the person who had brought the lounge suite to his house. This created a marked conflict between the testimony of the appellant on the one hand and Campbell on the other, and it also told against the appellant.
I have already touched upon the question of where the bed found at the appellant's house had come from. One police officer gave evidence that the appellant had told him that he had had the bed for a year or two and had bought it from Bedshed in Osborne Park, and another said that the appellant had said something "along the lines" of he having had it for a year and having got it from Bedshed in Osborne Park. That second officer conceded that the appellant may have said that it had been bought a year ago from Bedshed in Osborne. The appellant himself said that he had told police that the bed had come from Bedshed and he had said this because Yek had told him that is where it came from. He said he assumed it came from Bedshed on Scarborough Beach Road but he conceded that he did not tell the police that it had come from his girlfriend who had bought it from Bedshed. Although not entirely conclusive against the appellant, the evidence was unfavourable to him in that his explanation of the origin of the bed hardly coincided with his testimony that it had been brought from the appellant's house to his house between 12 July and the month of August 1997.
Evidence of the appellant in relation to the toolbox and tools found in his possession was entirely wanting. He testified that he had no recollection as to how the toolbox had come into his house but he conceded he did not think it was Ms Yek's. What he said was that somebody had put the toolbox in the laundry and he assumed that is may have been his brother or somebody else. This was unconvincing evidence and really gave no credible explanation as to where the property had come from.
It can therefore be seen that on the facts the case against the appellant was extremely strong. However the learned Magistrate went about dealing with the evidence of the appellant and the witnesses called on his behalf, at the end of the day there was ample evidence before him which exposed the fact that there was no credible explanation given by the appellant in relation to how the stolen property found in his possession had come into his possession. Acceptance without reservation of the testimony of Ms Yek that it was not her property and that she had not brought it to the appellant's house was fatal to the case of the appellant.
Counsel for the appellant did argue that the learned Magistrate had given an appearance of pre‑judging the case before all the evidence was concluded. Reference was made in particular to the learned Magistrate's intervention in the cross‑examination of the appellant when it was put to the appellant that if Ms Yek had been in prison at the time the equipment was stolen, it could not possibly have been the case that she attended at his house with a trailer with that equipment. This was not, of course, the question. The question was whether property which had been stolen had come into the possession of the appellant, his well knowing that it was stolen. In any event, the learned Magistrate did stress to the appellant that it was for him to answer the question which was a fair and "very very poignant question". When the witness Campbell was cross‑examined and it was put to him that Ms Yek was in prison between 12 May and 12 July 1997, the learned Magistrate again intervened. He said that he did not want Campbell to do anything that might be to his detriment and in response, counsel for the appellant made it clear that he had spoken to and reminded Campbell of his obligations and had told him "about perjury".
Apart from these interventions by the learned Magistrate the thrust of the submissions of counsel for the appellant was that the reasoning of the learned Magistrate itself betrayed a pre‑judgment of the case and that the ordinary observer would have the appearance that there had been pre‑judgment. Reference was made to the leading cases in relation to the matter, particularly The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248, especially at 264 where the court said:
"The question is not whether there was a real likelihood that Watson J was biased. The question is whether it has been established that it might reasonably be suspected by fair‑minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.
…
As the cases show, there are some matters on which a judge may have preconceived opinions, and yet be qualified to sit, but speaking generally the credit of an essential witness, where the case may turn on credibility, is not one of them."
Reference was also made to Webb v The Queen (1993-94) 181 CLR 41 and in particular the passage at 47:
"When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair‑minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspension test is that it is of 'fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi‑judicial tribunal, we dot no think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias."
On the present case, I can see no evidence that the learned Magistrate could be said to have pre‑judged the case in question. Applying the test of whether a fair minded person might reasonably apprehend or suspect that the learned Magistrate had pre‑judged or might pre‑judge the case, it seems to me that the interventions during the course of evidence were insufficient to justify a complaint, and the basis upon which the learned Magistrate dealt with the evidence in his reasons, accepting as he did without qualification the evidence of Ms Yek, and rejecting the evidence of the defendant and his witnesses, could not lead a fair minded person to reasonably apprehend or suspect any pre‑judgment.
In my view the grounds of appeal cannot be made out and the appeal will be dismissed.