CMH (a child) v Bower - [2009] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CMH (a child) -v- BOWER [2009] WASC 347

CORAM: HALL J

HEARD: 6 NOVEMBER 2009

DELIVERED : 26 NOVEMBER 2009

FILE NO/S: SJA 1089 of 2009

BETWEEN: CMH (a child)
Appellant
AND
SIMON BOWER
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
Citation  :BU 458 of 2008

Catchwords:

Criminal law - Circumstantial evidence - Fingerprints - Explanation given to police - Failure to give evidence - Whether Weissensteiner applicable - Whether reasons adequate

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr I MacFarlane
Respondent: Ms R J Haylock

Solicitors:

Appellant: Ian MacFarlane
Respondent: Director of Public Prosecutions (WA)

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

Hunter v WA [2009] WASCA 197
Piccolo v WA [2007] WASCA 149
Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998)
R v Fowler [2000] NSWCCA 142
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Hugo (2000) 133 A Crim R 484
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Stockman v The Queen (Unreported, WACCA, Library No 960267, 17 May 1996)
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

HALL J: On 28 May 2009, after a hearing in the Children's Court at Bunbury, the appellant was convicted of one charge of burglary contrary to s 401(2)(c) of the Criminal Code (WA). He appeals against that conviction.
An appeal notice was filed on 30 July 2009 containing three grounds of appeal. On 5 August 2009 McKechnie J granted leave to appeal in respect of ground 1. The application for leave in respect of grounds 2 and 3 was to be heard at the same time as the appeal.
Ground 1 is as follows:
The leaned Magistrate erred in law in his application of the principle stated by the High Court in Weissensteiner -v- The Queen [1993] HCA 65; (1993) 178 CLR 217.
In the face of an explanation given by the Appellant on his second video record of interview as to how his fingerprints could have come to be on the window, the Learned Magistrate held that an explanation was called by the Appellant which would be consistent with innocence: thus, misapplying the principle stated in Weissensteiner.
At the hearing of the appeal grounds 2 and 3 were abandoned and the appellant sought to add a fourth ground of appeal. There being no objection, leave was granted.
Ground 4 states:
The Learned Magistrate erred in law by giving insufficient reasons as to how he reached findings of fact.

Evidence before the magistrate

The complainant was the part‑owner of a jewellery and clothing business and art gallery located in Parkville Street in Bunbury. At approximately 3.00 pm on Sunday 23 March 2008 the complainant attended the premises to show her mother some jewellery she had recently made. As it was a Sunday the shop was closed. The complainant only stayed for about 10 minutes and locked the front door as she left. The lock on the front door was a Yale lock which automatically locked when the door was closed.
At about 10.00 am on Tuesday 25 March 2008 the complainant received a call from her business partner. As a result of that call the complainant attended the shop and found that display cabinets that had contained jewellery had been emptied. All of the silver and some beaded jewellery had been taken from the cabinets and, in addition, some scraps of silver from the complainant's workshop had also been taken. The complainant also observed a broken window in the kitchen area at the rear of the shop.
The broken window was a double hung sash window. The complainant observed that the putty around the edge of the window appeared to have been removed from the outside and that the left bottom corner of the window was broken and missing. The complainant said that the window had not been broken or cracked when she visited the shop on 23 March 2008. The window had a latch that was secured and, in any event, was stiff and hardly ever opened. The complainant also said that prior to the burglary there had been scraps of silver on the window ledge inside the shop and that she noticed that these scraps were now on the ledge both inside and outside the window.
On 25 March 2008 a police officer from the Forensic Investigation Unit attended the shop and conducted an examination of the premises. This included taking photographs, later tendered in evidence, and dusting for fingerprints. Several possible fingerprints were developed and lifted from the kitchen window and one from the glass display cabinets. The print on the glass display cabinet was examined but could not be identified. The appellant was subsequently eliminated as the donor of this print.
Fingerprints were lifted from the outside of the kitchen window in two locations. The whole of the window was dusted but only two identifiable prints were developed. The police officer who took the prints testified that this was likely due to the poor quality of the surface. The prints that were obtained were adjacent to, but did not overlap, the broken edge of the glass.
The fingerprint lifters were sent to the Fingerprint Bureau where they were entered into a database and compared with the national fingerprint database. On 17 or 18 June 2008 an initial match was found to the fingerprints as being those of the appellant. In November 2008 the fingerprint lifters taken from the shop were examined by an expert. Analysis of the prints found on the window identified the left palm print and the left thumb print of the appellant.
Two other prints were developed but both were of poor quality and not suitable for identification. However, the police officer who analysed the prints testified that one of these prints had similar characteristics to the identified thumb print (to which it was closely adjacent) and in his opinion was a 'double tap' or repeat of the left thumb print of the appellant. The reference to 'double tap' was not clearly explained, but it appeared to refer to closely connected touching movements. The officer said that if a person was holding the glass they would likely do so at an angle and this would necessitate 'two grabs'. The officer stated that this was consistent with trying to take the glass out of the frame. In such a circumstance the fingers of the left hand would be on the inside of the glass but the reverse side of the glass was opaque and, according to the officer, this explained why no corresponding fingerprints were lifted from that side of the glass.
The officer also testified that the location of the palm print on the window was consistent with someone trying to slide the window upwards. The officer said that as the broken piece of glass from the left‑hand bottom corner was not recovered or analysed it was not possible to conclusively determine the location and orientation of the hand on the window. The police officer was not cross‑examined as to any other possible explanation for the location of the palm and thumb prints on the window.
Two video records of interview were conducted with the appellant on 2 July and 24 July 2008. Both interviews were tendered at the hearing through the investigating officer. On the first occasion the interviewing officers had not attended the scene and were unable to clearly describe it to the appellant. It was put to the appellant that his fingerprints had been found on the rear window of the premises in Parkville Street and that this was the point of entry for the burglary. The appellant said he was not familiar with the location and did not know how his fingerprints came to be on the window. The appellant said that he did not usually go into that part of the town but said that he sometimes took shortcuts through back alleys and may have touched the window in passing.
In the second interview the appellant was shown photographs of the rear of the shop. He said that he had visited the scene since the first interview and that he now remembered that he had been chased by a group of youths from Eaton sometime in the period prior to the date of the burglary. He said that he ran into the alley behind the shop to get away from the group and hide. As he was out of breath from running the appellant said he placed his hands against the window to catch his breath. He could not recall exactly when this took place but said it was probably a Friday or Saturday night in March. When asked why he had not mentioned this during the first interview the appellant said that he did not recall it until he had visited the scene. The interviewing officers put to the appellant that the window where his prints were found was an exposed area and not somewhere where it was obvious that a person could hide from pursuers. He replied that it was at night and he was wearing dark clothing and the group walked by and did not see him.
The appellant did not give or adduce any evidence at the hearing and relied on the explanation that he gave at the second interview for the presence of his fingerprints on the window.

The magistrate's reasons

In giving his reasons, the magistrate recognised that the prosecution's case was based upon circumstantial evidence and that it was necessary for the prosecution to establish that the only reasonable inference available was that the appellant had committed the burglary. He specifically referred to the need to discount other possible inferences that were inconsistent with guilt.
His Honour then summarised the evidence. In doing so he referred to the explanation provided by the appellant at the second interview. His Honour then found as a fact that the premises were subject of a burglary sometime between 3.00 pm on 23 March and 10.00 am on 25 March 2008. His Honour also made a finding that the prints on the rear window were those of the appellant. His Honour then said:
In that respect, there is, of course, the explanation of the accused as to how his prints came to be on that window frame. There is otherwise no explanation falling from the accused. It is worthy of some note as to the fact here that the accused has elected not to call evidence, as is his right, to maintain his right of silence and in the course of which he can elect not to give evidence.
His Honour then referred to the Full Court decision of Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998). His Honour noted that in that case the prosecution case was substantially dependant upon fingerprints that were found on the exterior window of a stolen motor vehicle. In that case the appellant gave no explanation as to how his fingerprints had come to be on the vehicle and gave no evidence at his trial. His Honour noted that the Full Court referred to the High Court's decision in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 in concluding that the appellant's failure to provide an explanation meant that the inference that he participated in the stealing of the vehicle became compelling and the only reasonable inference that could be drawn.
His Honour then stated:
Here, the accused, with the exception of the explanation provided to Senior Constable Bower on 27 July has provided no explanation. The evidence presently before the court would indicate that there was a clear dealing with the pane of glass by the accused, the inference both from the evidence of Doyle and also of Senior Constable Walker would suggest that the pane of glass was either being removed or placed back into its location after being removed to permit access to the building; that access was gained, self‑evidently, through that window.
In the circumstances there was, self‑evidently, with the presence of the fingerprints, an explanation called for by the accused which would be consistent with innocence in the absence of that explanation short of that provided to the investigating police officer in the course of the video interview, and if that be rejected, then, self‑evidently, the prosecution can seek to rely on his failure to testify to give an explanation consistent with evidence as evidence supporting and strengthening the concluded inferences sought to be drawn by them on the circumstantial case.
In respect of the evidence or the indications and explanations offered by the accused in the video record of interview, then patently it is self‑evident that they were, in my view, insufficient and in the circumstances not reasonable or rational, they are put to one side, and his absence to testify strengthens the inference available to the prosecution. The charge is proven, and proven beyond a reasonable doubt.

Ground 1

Weissensteiner involved an accused who was charged with the murder of two people and the theft of their boat. The other two persons were not seen again but the accused remained in possession of the boat. The accused did not give evidence at his trial and called no witnesses. After telling the jury that the onus was on the prosecution to prove the accused's guilt beyond reasonable doubt, the trial judge said that an inference might more safely be drawn when an accused elected not to give evidence of relevant facts which must have been within his knowledge. Gaudron and McHugh JJ said:
[T]here is a difference between mere silence or the absence of evidence, on the one hand, and, on the other, the failure to explain facts for which, it is assumed, an innocent person would offer some explanation. Where there is an assumption to that effect, the failure to explain is conduct which proves or tends to prove guilty knowledge on the part of the accused and is, itself, evidence (244 ‑ 245). (footnotes omitted)
The principle in Weissensteiner was subsequently considered in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620. That case has been interpreted as confining the principle to circumstantial cases where an innocent explanation might only reasonably lie in the mouth of the appellant: R v Fowler [2000] NSWCCA 142; R v Hugo (2000) 133 A Crim R 484.
Counsel for the appellant submitted that the principle in Weissensteiner could only have application where an accused person had failed to provide any explanation either to the authorities or at his trial. It could not have application in circumstances where an explanation had been provided to the police but the accused had not repeated it in sworn evidence at his trial. Counsel submitted that since the appellant did give an explanation for the fingerprints at the second interview there was no basis for applying the principle in Weissensteiner and the magistrate was wrong to do so.
It is certainly true that the reasoning in Weissensteiner proceeds upon the basis that there was a failure in that case to provide an explanation of any type. Whilst it could be argued that it might be expected that in the relevant circumstances an innocent person would be expected to provide an explanation in sworn evidence at their trial, there may be very good reasons why an innocent person would not wish to expose themselves to the stresses of cross‑examination, particularly if they had already provided an explanation to the police and knew that this would be tendered as part of the prosecution case. I also note that Gaudron and McHugh JJ said:
[I]t 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 other way, either before or during the trial (242). (emphasis added)
This would reinforce the conclusion that where the circumstances are such that it would be expected that an innocent person would provide an explanation, an inference of guilt can not be more readily drawn merely because the accused has not given sworn evidence when an explanation has otherwise been provided to the authorities.
Where there is evidence of an alternative explanation before the court it will be necessary to deal with it in order to determine whether the prosecution has discharged its onus of excluding any inferences consistent with innocence. As is evident from the extract of the reasons of the magistrate quoted earlier, his Honour was very conscious of the need to consider the explanation that had been advanced. His did so on the basis that the inference to be drawn from the evidence of the fingerprint expert was not merely that the appellant's prints were on the window but that those prints had been placed there when the pane of glass was either being removed or placed back into its location and that that window was the point of entry for those who committed the burglary. The explanation advanced by the appellant sought to explain why his prints were on the window but it did not explain why he would have removed the pane of glass. It is in this context that the magistrate's remarks that 'an explanation was called for' need to be understood.
It is clear from the magistrate's reasons that he took into account the explanation that had been provided by the appellant but considered that on the basis of the findings that he made upon other evidence that explanation did not account for why the appellant would have removed the glass from the window. It is possible that where an explanation is only partial, or does not satisfactorily explain all of the relevant features of the prosecution case, that there may be scope for Weissensteiner to still have some application. That appears to have been the assumption upon which the magistrate proceeded.
The magistrate was influenced by the apparent similarities between this case and Pickett v Fuderer. In that case the fingerprints had been located on the outside front passenger window of the stolen vehicle. It was not open to dispute that the appellant must have touched the window during the period between the time the vehicle was first broken into and stolen and the time that it was found. However, it was common cause that it was possible to draw two competing inferences at the close of the prosecution case. One inference was that the appellant had unlawfully used the vehicle within the meaning of s 371A of the Criminal Code. The other inference was that the fingerprint had been placed on the vehicle without in any way having used it or participated in the stealing of it. Ipp J accepted that at the end of the prosecution case neither of the inferences was more probable then the other, however, the failure by the appellant to give evidence to explain the presence of the fingerprint enabled the inference of guilt to become compelling and the innocent inference to be rejected.
In Pickett v Fuderer no explanation had been provided to the police. Certainly there was no reference to any such explanation being in evidence. That does not, however, mean that in the present case because an explanation was provided it was not possible for the magistrate to come to a conclusion that the inference of guilt was the only reasonable inference that could be drawn. In Pickett v Fuderer the presence of the fingerprints was at least susceptible to other reasonable explanations because of the location of the prints and the time between the stealing of the car and its later location. In the present case it was not merely the finding of the appellant's fingerprints at the burgled premises that were significant, it was the location and interpretation of those prints that was also relevant. Where the case is circumstantial the evidence must be looked at as a whole when considering what inferences are available; it is wrong to examine each piece of circumstantial evidence in isolation to see whether it is consistent with an innocent hypothesis: R v Hillier [2007] HCA 13; (2007) 228 CLR 618; Piccolo v WA [2007] WASCA 149; Hunter v WA [2009] WASCA 197.
The magistrate made findings that the fingerprints were found on a rear window of the premises and in a position that was consistent with them having been placed there when the appellant was removing the pane of glass. He also found that that window had been the point of entry for the burglary. In those circumstances this was not a case, as was Pickett v Fuderer, where at the close of the prosecution case the alternative inferences were equally open.

On the view that the magistrate took of the evidence it was possible to reach a conclusion that the inference of guilt was the only reasonable inference available. Having rejected the appellant's explanation as lacking credibility it was open to the magistrate to consider whether the remaining evidence satisfied him beyond reasonable doubt as to the accused's guilt. In my view he could have done so without regard to Weissensteiner: Stockman v The Queen (Unreported, WACCA, Library No 960267, 17 May 1996). The question then is whether because he did rely upon Weissensteiner his Honour's conclusion is tainted.
It would appear that what the magistrate did was to reject the explanation and then use the fact that the appellant had not given evidence to strengthen the inference that he had committed the burglary. As I have noted, there may be some room for Weissensteiner to be applied in such circumstances when an explanation is incomplete or does not meet the allegation that is made. But it is unnecessary for me to reach a concluded view in that regard because on the basis of the findings made by the learned magistrate there was no reasonable inference available other than that the appellant had committed the burglary by removing the glass to enable entry to the premises and the stealing of the jewellery. The learned magistrate having rejected the explanation advanced by the appellant, there was no evidence that could support any other inference. In Pickett v Fuderer Ipp J said:
In order to establish the appellant's guilt beyond reasonable doubt, the Crown was only required to exclude an hypothesis consistent with innocence in order to establish the appellant's guilt beyond reasonable doubt, if such an hypothesis was 'reasonable' and rested upon more than mere conjecture: Barca v The Queen (1975) 133 CLR 82 (at 104‑105). To be 'reasonable' an hypothesis must possess some degree of acceptability or credibility. An hypothesis cannot be reasonable if it is obviously fanciful, impossible, incredible, or not tenable, or too remote, or too tenuous: Parker v The Queen at p 20 (per Malcolm CJ) (9).
Accordingly, even if the magistrate was wrong to rely upon Weissensteiner, he could have reached no other conclusion on the facts as he found them and there is, therefore, no substantial miscarriage of justice: s 14(2) Criminal Appeals Act 2004 (WA).

Ground 4

It was submitted that the learned magistrate in concluding that the explanation offered by the appellant was insufficient and 'not reasonable or rational' failed to provide reasons as to why he had reached this conclusion. If that were the only reference to the appellant's explanation there might be merit in this ground. However, very shortly before he made these findings, the magistrate referred to the explanation in the context of the expert evidence regarding the fingerprints. When placed in context it is clear that the magistrate's conclusions regarding the explanation were based upon the failure to account for the whole of the evidence, including the evidence of the fingerprint expert that the prints were consistent with having been placed there by a person who was removing the glass. Accordingly this ground cannot succeed.

Conclusion

The appeal is dismissed.