Dalton v The State of South Australia (in the Right of the Department for Families & Communities)
[2010] SASC 45
•1 March 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DALTON v THE STATE OF SOUTH AUSTRALIA (IN THE RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES)
[2010] SASC 45
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Nyland)
1 March 2010
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - RIGHT OF APPEAL
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - EFFECT OF ENTERING OR RECORDING JUDGMENT OR ORDER
Appeal against decision of Workers Compensation Tribunal – reasons for decision published by Tribunal – order drawn and sealed – s86A of the Workers Rehabilitation and Compensation Act 1986 then came into effect, conferring a right to appeal to the Full Court of the Supreme against a decision of the Full Bench – further orders drawn and sealed – whether s 86A applicable to the decision of Workers Compensation Tribunal – whether s 86A of the Workers Rehabilitation and Compensation Act 1986 operates retrospectively – when order came into effect.
HELD: appeal dismissed – s 86A does not operate retrospectively – the decision appealed against was made and announced at the time the reasons for decision were handed down – s 86A does not apply to the decision appealed against – appeal incompetent.
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - EVIDENCE
Whether Workers Compensation Tribunal erred in finding trial Judge failed to consider the strands of circumstantial evidence as a whole – whether the Workers Compensation Tribunal erred by basing its decision in part on material which was led at the trial but not cross-examined upon.
HELD: The Workers Compensation Tribunal erred in finding that trial Judge evaluated the circumstantial evidence in an incorrect manner – denial of procedural fairness not established.
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - GENERALLY
Whether a question of law raised in relation to the issue of reliance on material not the subject of cross-examination – whether a question of law raised in relation to the trial Judge’s approach to the circumstantial evidence.
HELD: The present appeal does not raise any question of law.
Public Sector Management Act 1995 (SA) s 58; Workers Rehabilitation and Compensation Act 1986 (SA) s 86, s 86A, s 88I; Supreme Court Civil Rules 2006 (SA) r 226; Workers Compensation Tribunal Rules 2005 (SA) s 26(1)(2)(3), referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Maxwell v Murphy (1957) 96 CLR 261; Rodway v The Queen (1990) 196 CLR 515; Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28; Moller v Roy (1975) 132 CLR 622; Ex parte Hookey; In the matter of The Risca Coal and Iron Company (1862) 4 De GF & J 456; R v Ireland (1970) 126 CLR 321; Driver v Driver [1950] SASR 8; Ljoljic v Sherlock (1989) 152 LSJS 484; The Church of the New Faith Inc v Bower and Australian Broadcasting Commission (No 2) [1979] 21 SASR 161; R v Hillier (2007) 228 CLR 618; Neat Holdings Proprietary Limited v Karajan Holdings Proprietary Limited and Others (1992) 110 ALR 449; Waterford v The Commonwealth of Australia (1987) 163 CLR 54; R v The District Court: ex parte White (1966) 116 CLR 644; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Clark v Flanagan (1934) 52 CLR 416; Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121; Rayney v AW [2009] WASCA 203, applied.
State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64; Dalton v The State of South Australia [2007] SAWCT 58, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"Decision"
DALTON v THE STATE OF SOUTH AUSTRALIA (IN THE RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES)
[2010] SASC 45Full Court: Doyle CJ, Duggan and Nyland JJ
DOYLE CJ: I would dismiss the appeal as incompetent. I agree with the reasons given by Duggan J.
DUGGAN J: The appellant, Anne Elizabeth Dalton, was a social welfare worker employed by the State of South Australia, the respondent to the appeal. She commenced employment with what is now the Department of Families and Communities (“the Department”) in 1971.
On 10 April 1995 the appellant was appointed Manager of the Modbury Family and Youth Services Office. In this capacity she piloted a domestic violence outreach program which responded to the needs of victims of domestic violence. Under the program applications for assistance were fast-tracked and financial payments to victims could be made after an assessment of their needs. The appellant was authorised to undertake assessments and arrange for the payment of assistance. She dealt with the bulk of the referrals.
In May 2003 the appellant was served with a Notice of Inquiry pursuant to s 58 of the Public Sector Management Act 1995 (SA). The notice advised that the Chief Executive of the Department suspected that the appellant had misappropriated domestic violence assistance payment monies for her own purposes and that she had been negligent in the performance of her duties. At about the same time the appellant was advised in a letter from the Chief Executive that an inquiry into the matter would be held. She was also advised that she was suspended without pay.
After being served with these documents the appellant ceased work on 9 May 2003. She resigned on 12 May 2003 and her resignation was accepted by the Department on 16 May 2003.
The appellant lodged a claim for worker’s compensation dated 30 September 2003. The claim stated that the appellant suffered psychological injury while employed as the Manager of the Modbury office and sought weekly payments as from 16 May 2003. The appellant stated in the claim that the psychological injury was caused by pressures associated with her work including the allegations of improper conduct which resulted in her resignation.
The appellant’s claim was rejected. The Determination by the respondent stated that a departmental investigation into the misappropriation of departmental funds associated with domestic violence financial assistance payments authorised by the appellant had commenced in April 2003. The Determination also stated that an internal audit revealed that funds totalling $1.3 million were unaccounted for and that the Department had reported the appellant to the police in relation to this matter. The Determination went on to state:[1]
Therefore the conclusions drawn from these facts are:
1.You have suffered a disability consisting of an illness or disorder of the mind;
2.Employment with the department was not a substantial cause of the disability;
3.The disability arose wholly or predominantly from reasonable administrative action taken in a reasonable manner by the department in connection with your employment;
4.The disability is wholly or predominantly attributable to serious and wilful misconduct on your part;
5.Your disability is not compensable under the Workers Rehabilitation and Compensation Act, 1986;
6.Even if your disability is compensable, by your conduct or by your resignation you have breached the obligation of mutuality and you are not entitled to any weekly payments of compensation.
[1] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [6].
After receiving the Determination, the appellant filed a Notice of Dispute dated 10 May 2005. The notice challenged the conclusions reached in the Determination.
The disputed claim was then heard by the Workers Compensation Tribunal constituted of a single Judge who presided over a lengthy hearing.
At the hearing the respondent alleged that the appellant had misappropriated departmental funds to the extent of approximately $1.3 million since 1994. The case against her was based on circumstantial evidence. The appellant gave evidence denying this allegation.
After considering the evidence the trial Judge concluded that the State had not proved the criminal conduct alleged by it. His Honour stated in his reasons for decision:[2]
It follows that the determination made by the respondent must be set aside. In lieu there must be a determination that the applicant is entitled to weekly payments of compensation in accordance with the Act at the appropriate rate from 16 May 2003, plus any interest which may be payable under the statute.
[2] Dalton v The State of South Australia [2007] SAWCT 58 at [744].
The respondent appealed to the Full Bench of the Workers Compensation Tribunal. The respondent complained, inter alia, that the single Judge erred in law in considering and dealing with the circumstantial evidence led on behalf of the Department and that he misdirected himself as to the Briginshaw v Briginshaw[3] onus.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
The main focus of the appeal was in relation to the first mentioned complaint. The Department submitted that the single Judge had considered each item of circumstantial evidence separately and failed to consider the combined effect of those items in order to determine whether, collectively, they established the defendant’s case to the required standard of proof. In their reasons for decision, the members of the Full Bench upheld this ground of appeal.
The Full Bench decided that it was unnecessary to consider the other grounds of appeal. The appeal was allowed and the matter remitted for rehearing before another Deputy President. The determination of the single Judge that the appellant was entitled to weekly payments of compensation from 16 May 2003 was set aside.
The Notice of Appeal to this Court asserts that the Full Bench of the Workers Compensation Tribunal erred in finding that the single Judge had failed to consider the strands of circumstantial evidence as a whole. A second ground of appeal claims that the Full Bench erred by basing its decision in part on material which was led at the trial but not cross-examined upon.
Jurisdiction
The respondent raised a threshold question as to the competency of the appeal. According to the submission, the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”) does not provide for an appeal to this Court in the circumstances of the present case.
Immediately prior to 1 January 2009 there was no appeal from the Workers Compensation Tribunal to the Supreme Court. However, the Act contained a procedure for the Full Bench to refer a question of law for the opinion of the Full Court of the Supreme Court. The relevant sections were as follows:[4]
[4] Workers Rehabilitation and Compensation Act 1986 (02.10.2008 - 31.12.2008) s 86, s 86A, s 88I.
86—Appeal on question of law
(1) An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.
(2) An appeal under this section must be commenced, heard and determined in accordance with the rules.
86A—Reference of question of law
(1) A Full Bench of the Tribunal may refer a question of law for the opinion of the Full Court of the Supreme Court.
(3) On a reference under this section, the Full Court of the Supreme Court may—
(a)decide the question of law referred to the Court;
(b)refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)make consequential or related orders (including orders for costs).
…
88I—Finality of the Tribunal's decisions
No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except—
(a) as provided in this Act; or
(b) in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.
On 1 January 2009 ss 86 and 86A were replaced with the following provisions:
86—Appeal on question of law
(1) An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.
(2) An appeal under this section must be commenced, heard and determined in accordance with the rules.
86A—Reference of question of law and final appeal to Supreme Court
(1) A Full Bench of the Tribunal may refer a question of law for the opinion of the Full Court of the Supreme Court.
(2) Subject to subsection (2a), an appeal also lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
(2a) An appeal cannot be commenced under subsection (2) except with the permission of a Judge of the Supreme Court.
(3) On a reference or appeal under this section, the Full Court of the Supreme Court may—
(a)decide the question of law;
(b)refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)make consequential or related orders (including orders for costs).
(Emphasis added)
Section 88I remained unchanged.
There is no transitional provision in relation to the operation of s 86A of the Act.
In my view s 86A does not operate retrospectively. In Maxwell v Murphy,[5] Dixon CJ drew a distinction between legislation which affects substantive rights and that which relates to practice and procedure. When referring to the latter category in Rodway v The Queen,[6] the Court noted that:
There is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.
[5] Maxwell v Murphy (1957) 96 CLR 261 at 267.
[6] Rodway v The Queen (1990) 196 CLR 515 at 518.
However, the amendments to ss 86 and 86A of the Act effected changes in substantive rights.
It is well established that legislation providing for an appeal confers a right. In Worrall v Commercial Banking Co of Sydney Ltd,[7] Barton J, delivering the judgement of the Court, said:
There can be no doubt that the power to “appeal” is a right, and not procedure. Procedure may and generally does surround it, but the central notion of an appeal is undoubtedly a right. Lord Westbury described it thus: “an Appeal is the right of entering a superior Court, and invoking its aid and interpretation to redress the error of the Court below” (Attorney-General v Sillem).[8]
[7] (1917) 24 CLR 28 at 31.
[8] (1864) 10 HL Cas 704, at p724. See also Question of Law Reserved (No 4 of 2008) (2008) 102 SASR 51 per Doyle CJ (White J agreeing) at [75]; Rocter Tanks Pty Ltd v Adam & Ors (2001) 80 SASR 214 per Perry J at [93].
The amending legislation does not evince an intention that the appeal provisions are to operate retrospectively so as to apply to decisions made prior to the commencement of the amending Act.
Accordingly, the issue of jurisdiction in the present case turns on whether the “decision” which is the subject of the appeal was in existence prior to 1 January 2009.
It is necessary, therefore, to consider the chronology of events surrounding the finalisation of the appeal from the single Judge to the Full Bench of the Tribunal.
The reasons for decision of the Full Bench were published on 2 December 2008. On this occasion the President of the Tribunal said:[9]
It is the unanimous decision of this Full Tribunal that the appeal is allowed, the matter is remitted for rehearing before another deputy president, that we grant liberty to apply in relation to the costs of this appeal and the costs of the hearing at first instance, and we publish our reasons.
In relation to the issue of costs, we would suggest that an exchange of written submissions would be an appropriate way to deal with costs, perhaps within 21 days of today’s date.
After some discussion about the time for provision of written submissions on costs, the President said:
We will grant both parties until the end of January to submit written submissions on the question of costs in relation to both this hearing and the hearing at first instance. If thereafter we need to reconvene, then we will advise the parties.
[9] Transcript of Proceedings Department for Families and Communities v Dalton (Workers Compensation Tribunal, 2 December 2008).
After the hearing of the appeal before this Court the Associate to the Chief Justice, on instructions from the Court, requested a report from the President of the Workers Compensation Tribunal as to when the formal order was drawn up and sealed. The Associate to the President subsequently advised that the sealed order would have been forwarded to the parties by no later than 9 December 2008. The sealed order is in the following terms:
PRESIDENT JUDGE JENNINGS, DEPUTY PRESIDENT McCOUAIG AND DEPUTY PRESIDENT LIESCHKE
TUESDAY THE 2ND DAY OF DECEMBER 2008
UPON THE APPEAL filed herein on 4 December 2007 coming on for hearing before the Full Tribunal on 9th, 10 and 11 April 2008, 20 August 2008 and this day AND UPON HEARING Mr C Kourakis SC and Mr B Ikonomopoulos of counsel for the appellant and Mr A Rossi and Ms K Chambers of counsel for the respondent THE FULL TRIBUNAL ORDERS:
1.That the appeal be allowed and the matter remitted for rehearing before another Deputy President.
2.That the parties be granted until 31 January 2009 to submit written submissions on the question of costs in relation to this appeal and the matter at first instance.
By the Full Tribunal
The appeal was not filed on 4 December 2007 as stated in the order. It was filed on 29 January 2008. However I am of the opinion that nothing turns on this error as to the date. It is clear that the appeal referred to is the appeal from the single Judge to the Full Bench.
A further order was drawn up on or about 28 January 2009. It stated:
PRESIDENT JUDGE JENNINGS, DEPUTY PRESIDENT McCOUAIG AND DEPUTY PRESIDENT LIESCHKE
WEDNESDAY THE 28TH DAY OF JANUARY 2009
UPON THE APPEAL filed herein on 29 January 2008 coming on for hearing before the Full Tribunal on 9, 10 and 11 April 2008, 20 August 2008 and 2 December 2008 AND UPON HEARING Mr C Kourakis SC and Mr B Ikonomopoulos of counsel for the appellant and Mr A Rossi and Ms K Chambers of counsel for the respondent THE FULL TRIBUNAL ORDERS:
1.That the appeal be allowed and the matter remitted for rehearing before another Deputy President.
2.That paragraphs 1, 2 and 3 of the Trial Judge’s Orders dated 5 December 2007 with respect to weekly payments of income maintenance, including arrears, and payment of s 32 expenses be set aside.
3.That all issues pertaining to costs, including the matter dealt with in paragraph 4 of the Trial Judge’s Orders dated 5 December 2007, be reserved pending hearing further submissions from the parties.
By the Full Tribunal
On 25 June 2009 the Full Bench made the following order:
BEFORE PRESIDENT JUDGE JENNINGS, DEPUTY PRESIDENT McCOUAIG AND DEPUTY PRESIDENT LIESCHKE
THURSDAY THE 25TH DAY OF JUNE 2009
UPON CONSIDERATION of the submissions received from the parties in relation to the costs of the appeal, the costs of the initial trial and other matters THE FULL TRIBUNAL FINDS AND ORDERS as follows:
1.That all orders made by the trial judge relating to the costs of the trial, including his order relaxing the limitation imposed by Rule 28(7)(d) of the Workers Compensation Tribunal Rules 2005 in respect of the respondent’s counsel fees, be set aside.
2.That any and all issues relating to the costs of the initial trial be adjudicated by the Deputy President hearing the retrial.
3.That the respondent pay the appellant its costs of the appeal, to be agreed or taxed, save any costs incurred by the appellant in relation to its request for orders directing the repayment of moneys paid to the respondent.
4.That the Full Bench does not possess the jurisdiction to direct the respondent to repay the amounts paid to her pursuant to the trial judge’s orders.
By the Full Tribunal
The Full Bench delivered reasons on 25 June 2009 in relation to the orders which it made on that day. In the reasons delivered by McCouaig DP, His Honour traced the history of events from and including the delivery of the reasons on 2 December 2008 to the making of the order on 28 January 2009. He said:[10]
[10] State of South Australia (in right of Department for Families and Communities) v Dalton [2009] SAWCT 18 at [41]-[46].
Orders were drawn and sealed on 2 December 2008 in the following terms:
1. That the appeal be allowed and the matter remitted for rehearing before another Deputy President.
2. That the parties be granted until 31 January 2009 to submit written submissions on the question of costs in relation to this appeal and the matter at first instance.
On 24 December 2008 the appellant filed an Application for Directions in the Tribunal seeking the following orders:
1. That the orders of His Honour Auxiliary Justice Olsson dated 5 December 2007 be set aside.
2. That an order be made that the payments of income maintenance and s 32 expenses paid to or on behalf of the respondent pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1986 be discontinued.
3. Such further or other orders as the Tribunal deems fit to make.
4. Costs.
On 14 January 2009 the President wrote to the respondent’s solicitors asking if the respondent opposed the making of the orders sought by the appellant, indicating that if she did he would reconvene the Full Bench to hear from the parties.
By letter dated 19 January 2009 Mr Rossi informed the President, inter alia, that the respondent agreed that it would be appropriate for the Full Bench to make orders setting aside the orders made by the learned trial judge on 5 December 2007 with respect to weekly payments of income maintenance and payment of s 32 expenses. Mr Rossi indicated that the respondent conceded that if such orders were made by the Full Bench then the appellant was entitled to discontinue income maintenance payments without further order.
With respect to costs, Mr Rossi expressed certain views and requested that amended directions be given in relation thereto.
The President thereafter sent draft proposed orders of the Full Bench to each party’s solicitors inviting their response.
His Honour then said that, after hearing from and taking into account the comments of the parties’ solicitors on 28 January 2009 the Full Bench made the orders which are set out in [28] of these reasons.
The appeal to this Court, as expressed in the amended notice of appeal, is:
…against the whole of the orders dated 28 January 2009 and grounds 1, 2 and 3 of the Orders dated 25 June 2009.
The grounds of appeal are as follows:
1.The Full Bench of the Workers Compensation Tribunal have erred in:
1.1. finding that Auxiliary Justice LT Olsson had failed to consider the strands of the circumstantial evidence as a whole.
1.2. considering and using extraneous material including financial records in a manner not put at trial so as to amount to an error of law.
1.3. setting aside the orders in relation to costs made by Justice LT Olsson.
1.4. ordering that issues relating to costs of the trial be adjudicated upon rehearing.
1.5. ordering that the respondent before the Full Bench pay the appellant’s costs of that appeal.
The appellant seeks the following orders:
1.That the orders of the Full Bench of the Workers Compensation Tribunal dated 28 January 2009 and 25 June 2009 be set aside.
By way of summary, therefore, the Full Bench delivered its reasons for decision on 2 December 2008. The President of the Tribunal stated in court that the appeal was allowed; that the matter was remitted for rehearing before another Deputy President; and that liberty was granted to apply in relation to the costs of the appeal and the costs of the hearing at first instance. The order was drawn up and sealed by no later than 9 December 2008. The order stated that the appeal be allowed and the matter remitted for hearing. Paragraph 2 of the order dealt with the question of costs. Following a discussion in court immediately after the handing down of the decision, an order more specific in relation to costs than the liberty to apply order was announced in court. In the formal order the order relating to written submissions on costs replaced the order giving liberty to apply.
On 21 January 2009 the Act creating the right of appeal to this Court came into effect. On or about 28 January 2009 another formal order was drawn up. It repeated para 1 of the order previously drawn up in relation to the appeal being allowed and the matter being remitted for rehearing. In para 2 it directed that the trial Judge’s orders with respect to weekly payments of income maintenance be set aside and in para 3 the question of costs was reserved.
The original notice of appeal to this Court was filed on 27 February 2009.
Costs orders were made in court and drawn up on 25 June 2009.
An amended Notice of Appeal incorporating grounds of appeal relating to the costs orders was filed on 21 August 2009.
Under the present legislation an appeal lies on a question of law “against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court”.[11] There is no definition of “decision” in the Act.
[11] Workers Rehabilitation and Compensation Act 1986 (SA) s 86A.
The distinction between a decision by a court and the reasons for the decision is well recognised in the context of appeals. In Moller v Roy,[12] Barwick CJ said:
It is fundamental to our jurisprudence that an appeal is brought against an order and not against the reasons which support the order.[13]
This being so, then the relevant focus for present purposes is on the orders of the Full Bench of the Workers Compensation Tribunal and when they were made. The appellant contends that the order appealed from was made on 28 January 2009 after the legislation providing for an appeal to this Court came into effect. The respondent contends that the matters raised in the appeal were the subject of the order made on 2 December 2008 at a time when there was no appeal to this Court. These arguments also give rise to the question as to when court orders come into effect.
[12] Moller v Roy (1975) 132 CLR 622 at 627.
[13] See also Mason J at 639 and R v Ireland (1970) 126 CLR 321.
Leaving aside Rules of Court which may affect the situation, the general position is as stated by Lord Westbury LC when referring to the then Chancery practice in Ex parte Hookey; In the matter of The Risca Coal and Iron Company:[14]
An order of the Court of Chancery, however long a time may elapse in the ministerial duty of drawing up that order and committing it to paper, is made to bear date on the date on the day when it is pronounced by the court. That date appears in the document in which the order is recorded, and the principle, therefore, involves of necessity this consequence, that the order must be accepted for all purposes as having been made on the day on which it is dated… The principle which makes the order, whenever drawn up and entered, to bear date on the day when it is pronounced by the court, I hold to be one in perfect conformity with the whole theory of judicial procedure. The theory of judicial procedure is that the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the judge, and if that could be done physically which legally is supposed to be done if it were possible, every order would be completed on the spot, written out by the judicial officer and in curia before the court rises, and delivered to the parties. That is the unquestionable theory of judicial procedure, and in conformity with that theory that is the time when the order is ‘made,’ for the two words must be considered as equivalent and capable of being substituted the one from the other. The mere defining of the words of the court by writing and reducing them into a form in which they can be evidence is a ministerial operation in which, according to the true theory, succeeds the delivery of the order by the judge, and must be in point of fact nothing in the world more than the physical embodiment on the spot by the court of the words which the judge has used.
[14] Ex parte Hookey; In the matter of The Risca Coal and Iron Company (1862) 4 De GF & J 456, 458-9; 45 ER 1261.
Of particular importance is the observation that, unless otherwise stated, the order takes effect from the time it is announced. This statement was followed by Napier CJ in Driver v Driver[15] and the Full Court in Ljoljic v Sherlock.[16]
[15] Driver v Driver [1950] SASR 8 at 10.
[16] Ljoljic v Sherlock (1989) 152 LSJS 484.
There is, of course, the power to recall an order. In The Church of the New Faith Inc v Bower and Australian Broadcasting Commission (No 2), Zelling J said:[17]
In general the time at which an order is made is the date on which it is pronounced and not the date of its being drawn up: see Ex parte Hookey; In the matter of The Risca Coal and Iron Company. It is perhaps more accurate to say that it is provisionally effective from the date it is stated orally, because a Judge can always recall or alter his order up to the date of its being drawn up: see In re Harrison’s Share under a Settlement; Harrison v Harrison.
(Footnotes omitted)
[17] The Church of the New Faith Inc v Bower and Australian Broadcasting Commission (No 2) [1979] 21 SASR 161 at 163.
In some jurisdictions Rules of Court stipulate when a judgment is to take effect. The Supreme Court Civil Rules 2006 reflect the case law which is summarised above. SCR6R226 provides that a judgment of the Supreme Court following a process of adjudication takes effect when the Court pronounces judgment. This is subject to the power to correct, vary or set aside a judgment provided for in SCR6R242.
The Workers Compensation Tribunal Rules 2005 (SA) (“the WCT Rules”) contain provisions which regulate the drawing up of orders. However these rules do not conflict with the proposition that an order is effective from the time it is pronounced in court. WCT r 26(1) regulates the situation where the parties have resolved their dispute by agreement. Rules 26(2) and (3) provide:
(2)In all other matters, unless the Tribunal directs otherwise an order that does not finally determine a question or dispute need not be drawn up and an order that finally determines a question or dispute must be drawn up.
(3)Orders that are required or directed to be drawn up shall be prepared by one of the parties or as directed by the Tribunal. It is intended that such draft will in the ordinary course be sent electronically. Upon receipt, the Registrar shall, subject to settling the terms of the order with the parties, sign and seal the order and forward sealed copies to the parties.
These provisions contemplate the existence of an order before it is drawn up. The operation of the order is not dependent upon it being drawn up.
The findings of the Full Bench which are said to have been in error are those relating to the trial Judge’s consideration of circumstantial evidence and the use of financial records on appeal in a manner not put forward at the trial.
The decision of the Full Bench on those issues is reflected in the order that the appeal be allowed and the matter remitted for rehearing. The subsequent order made on 28 January 2009 relating to the setting aside of the trial Judge’s orders as to weekly payments and costs are consequential in the sense that they “follow logically or of necessity from a prior substantive order”.[18]
[18] Rayney v AW [2009] WASCA 203 at [33].
In my view the fact that the order allowing the appeal and remitting the matter for rehearing was repeated in the order of 28 January 2009 does not alter the fact that these orders were made in the first place on 2 December 2008. Their inclusion in the document setting out the orders made on 28 January 2009 appears to have resulted from a decision to ensure that all orders, with the exception of those relating to costs, were incorporated in the same document,
The decision appealed against is that which was made and announced at the time the reasons for decision were handed down on 2 December 2008. This was at a time when there was no right of appeal to this Court.
It follows, in my view, that the appeal is incompetent.
The substantive issues
This Court heard argument on the main issue raised in the Notice of Appeal, namely, whether the Full Bench of the Workers Compensation Tribunal was correct in finding that the trial Judge erred in his approach to the consideration of the circumstantial evidence led before him. The Court also heard argument on a further ground of appeal which alleged procedural unfairness to the appellant on the hearing before the Full Bench. Although I regard the appeal to this Court as incompetent for the reasons stated above, I consider it appropriate to express my views on the arguments put forward in relation to these issues.
The trial Judge’s assessment of the State’s circumstantial case
It is well established that an important step in assessing circumstantial evidence is to consider the combined effect of the individual items of evidence. In other words it is necessary to have regard to the whole of the evidence. In R v Hillier[19] Gummow, Hayne and Crennan JJ said:[20]
[19] R v Hillier (2007) 228 CLR 618.
[20] R v Hillier (2007) 228 CLR 618 at [46], [48].
It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said [88] in Plomp:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
(Original emphasis) (Footnotes omitted)
As previously observed, the Full Bench of the Tribunal concluded that, although the trial Judge had considered the relevant items of evidence separately, he had not taken the further step of assessing the combined effect of these strands in the case for the State. It appears that the Full Bench reached this conclusion after an analysis of the trial Judge’s process of reasoning as revealed in his judgment and after accepting the argument for the State which is set in the following passage in the judgment of the President of the Tribunal:[21]
The Department maintained that its appeal did not depend on a finding that the learned Trial Judge wrongly assessed the weight of much of the evidence it adduced. It was not simply that the weight of much of the evidence was underestimated, rather it was said that the error lay in the reasons for the underestimation of the evidence. It submitted that the only reason that could explain the gross underestimation of the force of so much of the evidence adduced by the Department was the failure of the learned Trial Judge to appreciate the very nature of circumstantial evidence.
[21] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [29].
There was some uncertainty at trial as to the scope of the case for the State. The trial Judge stated in his reasons that, at the commencement of the trial, he understood that the case was based on 272 transactions involving fraudulent conduct. However, he gathered from the presentation of the case and the cross‑examination of the appellant that the case was confined to 152 transactions. In his final address counsel for the State indicated that he sought to impugn 272 transactions.
The essence of the case for the State was that the appellant had an addiction to gambling on poker machines and that she misappropriated considerable sums of money in order to finance her gambling habit. It was alleged that in each selected transaction, the name and address of the alleged recipient of funding was fictitious. The appellant claimed that the funds were spent to assist victims of domestic violence who were referred to her branch of the Department at Modbury. She said they were emergency payments and that limited details of the handouts were recorded.
The State relied on evidence from various sources to establish its case. In addition to the evidence of a gambling habit, the State sought to establish that there was a temporal connection between the cash payments allegedly made to victims of domestic violence and certain credits appearing in the appellant’s bank statements. Reliance was also placed on the evidence of a handwriting expert who compared the appellant’s handwriting with the handwriting of alleged recipients of funding. The State led evidence that the alleged recipients could not be traced.
In his reasons the trial Judge subjected these categories of evidence to close scrutiny. He also made findings on credibility. He was critical of a number of witnesses who gave evidence for the State, but found the appellant to be a reliable and truthful witness.
The appellant acknowledged that she was a “binge gambler” and that she spent large sums of money playing poker machines. However, the trial Judge rejected the argument that links had been demonstrated between domestic violence cash payments and credits shown in the appellant’s bank statements. He referred to the evidence that the appellant’s husband paid money into the accounts to meet accruing interest commitments. The trial Judge said that many of the credits recorded in the appellant’s bank account followed a gambling session. The trial Judge said he was unable to find that any domestic violence payments found their way into the appellant’s bank account. He rejected the State’s contention that there was no special domestic violence program administered by the appellant.
The trial Judge acknowledged that in all the impugned transactions the stated addresses of the clients proved to be spurious or could not be validated on enquiry. He said that this constituted the high watermark of the case for the State. However, he pointed out that these searches were made only in the case of the eight per cent of cases which were selected to establish the allegation of fraudulent conduct. His Honour went on to criticise the limited extent of the enquiries made in relation to the alleged clients. The appellant agreed that she had been remiss in not recording sufficient details in the Department’s database in relation to these transactions, but said she considered such information irrelevant to the one‑off domestic violence assessment applications which were involved. The trial Judge said he had no doubt that the appellant honestly and reasonably held this view.
A handwriting expert, Ms Ockleshaw, provided a written statement to the Court. She examined 272 assessment application forms. She compared the appellant’s handwriting with the handwriting on the forms. She said all but 43 applications had been written by the appellant. This evidence was not necessarily in conflict with that of the appellant. However, Ms Ockleshaw also compared the purported client signatures with the appellant’s handwriting. She said that in the case of nine signatures there were some similarities between the suspect writing and the appellant’s handwriting. She came to the conclusion that in these cases there was moderate support for the proposition that the appellant had written the client’s signatures. The witness was unable to reach a definite conclusion that any client signature had been written by the appellant. The trial Judge commented:[22]
In summary, there is little in the expert forensic evidence to either impugn the credit of the applicant or to support the respondent’s positive averments against her.
[22] Dalton v The State of South Australia [2007] SAWCT 58 at [607].
Mr Walker SC, for the appellant, drew attention to various passages in the evidence which he submitted indicate that the trial Judge considered the circumstantial evidence appropriately.
When commenting on a submission by the appellant’s counsel at the trial that there was no evidence that the practices of the appellant’s co-workers differed from hers in the level of information recorded in the application for assessment forms, the trial Judge said:[23]
I agree with his contention that this omission, coupled with the total dearth of the material that had obviously been stapled to the relevant application for assessment forms at some stage or any notes or other material from the applicant’s office, necessarily redounds against the respondent [the State] when the overall weight and significance of the evidence relied on by it is assessed.
(Emphasis added)
Mr Walker did not suggest that the trial Judge was referring to the entire case when making this remark, but submitted that it does indicate that His Honour appreciated the significance of considering the whole of the evidence relevant to a particular issue.
[23] Dalton v The State of South Australia [2007] SAWCT 58 at [121].
Later in his reasons the trial Judge discussed the appellant’s claim that she was under considerable stress and strain during the relevant period while working at the Modbury branch and that this had an effect on her ability to recall specific transactions. He said:[24]
I am compelled to the view, on the whole of the evidence, that the scenario portrayed by the applicant in her statement, as above recited, is generally accurate, both as to fact and also the perceived effect of the situation upon her.
(Emphasis added)
Mr Walker pointed out that the appellant’s explanation was a most important issue in the case and that the trial Judge reached his conclusion by reference to the whole of the evidence.
[24] Dalton v The State of South Australia [2007] SAWCT 58 at [468].
Mr Peek QC, for the State, submitted that, read in context, the trial Judge’s reference to the whole of the evidence was in relation to the evidence of the stressors which the appellant claims were affecting her at the time.
Next, Mr Walker drew attention to a segment in the trial Judge’s reasons where he discussed the State’s analysis of the documentation in relation to the applications for financial assistance. After discussing this issue the trial Judge said:[25]
I have dwelt on the foregoing aspects at some length because an adequate appreciation of them forms an important backdrop to the issues to be addressed in this case and they fall to be considered against the backdrop of the totality of the evidence. What may well otherwise be regarded as apparently aberrant, odd or even negligent administrative conduct on the face of it tends to assume a potentially different conceptual complexion when a full appreciation of the program, its rationale and the personal situation of the applicant are borne in mind.
(Emphasis added)
Again it was argued that this was a crucial aspect of the case and that the trial Judge rightly referred to the requirement to consider it against the background of the totality of the evidence.
[25] Dalton v The State of South Australia [2007] SAWCT 58 at [579].
In order to appreciate the significance of the next passage referred to by counsel it is necessary to commence at [707] of the trial Judge’s reasons where His Honour commenced a summary of the evidence relating to the alleged fraudulent conduct by saying:[26]
I have already canvassed the salient points as to the issue of misconduct in these reasons, but it is desirable to tie the various threads together by way of summary.
The trial Judge then set out a series of enumerated points which included his view of the appellant’s credibility, a repetition of the finding that there was an outreach domestic violence program in place which was responsible for a high volume of domestic violence business, reference to the fact that the appellant failed to make relevant entries in the Department’s records and that most of the application forms referred to in the case were filled in by the appellant. The trial Judge also referred to the appellant’s reasons for not filling in contact details of clients. This analysis includes favourable comments about the appellant’s case. However, the topics in the Judge’s summary cover most of the central issues in relation to the alleged misconduct.
[26] Dalton v The State of South Australia [2007] SAWCT 58 at [707].
The trial Judge then turned to an important argument put forward by counsel for the State, namely, that the:[27]
…features of the overall impugned transactions should be looked at as a totality (cf the schedule set out in his written submissions) and that the continuity and similarity of those features formed a striking pattern that was indicative of a fraudulent course of conduct.
His Honour continued:[28]
He [counsel for the State] drew attention to what he said were repeated failures to complete the ID box, the lack of contact telephone numbers for the client, the failure to record referral contact details, the failure to fill in relationship details, the lack of detail of the presenting problem, the staccato nature of the continuation notes, the fact that all clients were said to be domestic violence clients, the fact that all applications involved removals but exhibited no contact or precise address details of the proposed new location, the apparently bogus addresses given, the absence in many cases of CIS entries and the inability to confirm client identity.
Mr Ikonomopoulos argued that the repetition of such similar situations gave rise to a relevant and sinister connotation. He referred to the concepts emerging from authorities such as Martin v Osborne,[29] R v Hayes[30] and Gibbs v The Queen.[31] He contended that a review of the table prepared by him demonstrates an improbability that the transactions were legitimate.
His Honour then dealt with a number of what he called the State’s “basic submissions”. He referred to the documentary evidence which he said established the genesis of the domestic violence outreach program, the fact that the appellant did engage in a high level of gambling on poker machines, his view that the State failed to establish any perceivable temporal or other relationship or link between the entries in the appellant’s bank statements and the impugned transactions, the handwriting evidence, the State’s contention that the appellant contravened policy, the fact that the State was unable to identify and locate any person said to be a client in relation to the impugned applications and other matters. His Honour then stated:[32]
At the end of the day it must be said that such are the obvious question marks and loose ends remaining on the whole of the evidence that, at their very highest, the matters relied on by the respondent cannot rise above the level of some degree of suspicion. They certainly fall far short of satisfying the principles adverted to in Briginshaw and Neat Holdings. The respondent has not clearly and unequivocally demonstrated the criminal conduct alleged by it.
[27] Dalton v The State of South Australia [2007] SAWCT 58 at [710].
[28] Dalton v The State of South Australia [2007] SAWCT 58 at [711]-[712].
[29] Martin v Osborne (1936) 55 CLR 367.
[30] R v Hayes (1986) 128 LSJS 460.
[31] Gibbs v The Queen (1992) 58 SASR 347.
[32] Dalton v The State of South Australia [2007] SAWCT 58 at [715].
In my view there is little doubt that, having referred to the major issues in the prosecution case in the paragraphs which immediately preceded it, the trial Judge was referring in this passage to the exercise which he had undertaken of reviewing the whole of the evidence. He referred to the “matters relied upon by the respondent”. This must refer to the prosecution case. Furthermore, the reference to Briginshaw[33] and Neat Holdings[34] indicates that he was applying the Briginshaw standard of proof and that could only be in relation to a consideration of the whole of the prosecution case.
[33] Briginshaw v Briginshaw (1938) 60 CLR 336.
[34] Neat Holdings Proprietary Limited v Karajan Holdings Proprietary Limited and Others (1992) 110 ALR 449.
It is true that His Honour took an unfavourable view of many aspects of the case for the State. However, whether or not he was correct in this respect is not a matter for this Court; nor was it a matter which could be inquired into by the Full Bench of the Tribunal. Furthermore, it was unnecessary for the purpose of the trial Judge’s reasons to repeat again at this stage what he had said about various aspects of the case for the State. These conclusions were stated by His Honour after he had set out his views in considerable depth in the preceding 165 pages of the reasons for decision.
Against this Mr Peek QC drew particular attention to the following passage in the reasons of the trial Judge:[35]
As a first reaction, these criticisms superficially appear to be of considerable weight in their totality. However, it is necessary to examine them seriatim as to their individual validity.
It was argued before the Full Bench and this Court that the trial Judge’s comment reflects an erroneous view by His Honour of the manner in which the circumstantial evidence should be approached. The Full Bench accepted this argument and attached considerable significance to it.[36]
[35] Dalton v The State of South Australia [2007] SAWCT 58 at [620].
[36] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [24], [38], [50], [77].
In my view His Honour’s remarks do not indicate that he ignored the approach which is basic to the consideration of circumstantial evidence, namely, that at the end of the day it is necessary to consider the totality of the evidence. The exercise which His Honour embarked upon of assessing the individual items of evidence is also a fundamental step in the process of considering the effect of circumstantial evidence.
At this point in his reasons the trial Judge was dealing with a 10 point argument which the State had advanced in relation to the documentation which had been prepared in relation to each of the impugned transactions. This was an important part, of the State’s circumstantial case. It was a strand in the case which, of itself, depended upon inferences to be drawn from a number of circumstances. To that extent it was necessary to consider the combined effect of these circumstances.
The trial Judge recognised the relevance of the totality the evidence on this issue in the opening words of the passage quoted above. But he also recognised the importance of determining the reliability of the individual strands which were put forward as supporting the claim that, in their combined effect, possessed the relevance claimed for them.
It is apparent that the trial Judge considered there were significant flaws in each of the individual items of evidence which were presented. As previously stated, it is not for this Court to enquire into the validity of these findings. It was necessary for the trial Judge to carefully analyse the evidence of these individual circumstances and it is apparent from his reasons that they were considered by him in great depth. It would be expected in a case of this nature that the discussion in relation to the individual items would occupy the greater proportion of the reasons for decision.
In a circumstantial case the evidence upon which the strands of the case are based may themselves be the subject of dispute. There may be a contest about the validity of expert evidence, issues of credibility may arise and so on. In the passage quoted above from Hillier their Honours referred to the weighing of “all the circumstances established by the evidence”. If there is no controversy about a particular item, as was the case with the appellant’s gambling addiction, it is appropriate to carry that matter forward to consider along with other items established by the evidence. If, however, there is reason to doubt the validity of the evidence put forward to prove other strands in the case, it is essential for the Court to consider whether it is appropriate to include that item as part of the combined evidence. In my view, when the trial Judge stated in his reasons that it was necessary to examine the individual components of the case “seriatim as to their individual validity” he was doing no more than referring to this process.
Each of the individual items in the present case had to be assessed in the context of the case as a whole and, further, the combined effect of the items had to be assessed. However, after perusing the trial Judge’s reasons, I think it unlikely that he overlooked such a basic step as assessing the evidence as a whole in the manner referred to in the cases. This is particularly so in the light of his references to the significance of considering the evidence as a whole in various contexts.
In my view the Full Bench erred in finding that the trial Judge evaluated the circumstantial evidence in an incorrect manner.
The second ground of appeal states that the Full Bench erred in:
…considering and using extraneous material including financial records in a manner not put at trial so as to amount to an error in law.
It was argued that the reasons for decision of the Full Bench evidenced a denial of procedural fairness to the appellant. It was claimed that the Full Bench exceeded its jurisdiction by embarking on a rehearing of the matter and that, in doing so, the members of the Tribunal took into account hearsay material and matters upon which the appellant had not been cross-examined at the original hearing.
At the commencement of the investigation into this matter Mr Boyd, an audit manager in the Department, conducted an audit of files from the Modbury branch. Initially he investigated a large number of transactions, but eventually produced a report in relation to 272 transactions. We were advised on the hearing of the appeal that there was cross-examination on 152 of these transactions.
It appears that some material in Mr Boyd’s evidence was based on hearsay, but it was nevertheless admitted into evidence by the trial Judge. The appellant does not complain of unfairness in the conduct of the trial. It should be noted that the trial Judge nevertheless took into account the fact that the hearsay nature of the material was a significant factor in justifying his conclusion that the evidence was unreliable.
The Full Bench based its decision on evidence which was admitted at the trial. The State alleged a course of conduct which included 152 transactions as well as other transactions which were the subject of evidence.
The remarks made by the Full Bench in relation to this evidence were of a general nature and, in my view, it has not been demonstrated by the appellant that procedural unfairness arose by reason of the fact that some of the transactions which formed part of the basis of these comments were not the subject of cross‑examination at the trial.
In any event the argument presented on this issue does not give rise to a question of law.
Does the trial Judge’s approach to the circumstantial evidence give rise to a question of law?
The remaining issue is whether a failure by the trial Judge to properly assess circumstantial evidence gives rise to a question of law. This was not a ground of appeal, but was the subject of some argument in the course of the hearing before this Court. It is of relevance to the hearing before the Full Bench and the purported appeal to this Court.
Section 86 of the Act provides that an appeal lies “on a question of law” from a decision of a single presidential member to a Full Bench of the Tribunal. Furthermore, s 86A of the Act, as amended, provides that an appeal lies “on a question of law” against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
Mr Peek QC submitted that if the single Judge failed to consider the combined effect of the individual items of evidence this would amount to an error of law. The Full Bench of the Tribunal reached its conclusion that there had been an error of law on the same basis.
The President of the Tribunal summarised the State’s argument on the issue as follows:[37]
The error of law alleged by the Department was that the learned Trial Judge did not consider the ultimate improbability of Ms Dalton’s innocence demonstrated by the improbability upon improbability arising out of each item of circumstantial evidence. It was contended on appeal that the learned Trial Judge failed to consider whether the possibility of guilt demonstrated by each circumstance so buttressed the possibility of guilt demonstrated by every other circumstance that when the last circumstance was added to the mosaic the case against Ms Dalton was made out. The error complained of was the failure to properly assess the circumstantial evidence in accordance with the reasoning process explained in R v Szach[38] and Shepherd v The Queen[39].
[37] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [28].
[38] (1979 - 1980) 23 SASR 563.
[39] (1990) 170 CLR 573.
As Brennan J observed in Waterford v The Commonwealth of Australia,[40] there is no error of law in simply making a wrong finding of fact. In R v The District Court: ex parte White,[41] an application for judicial review, Menzies J commented:
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.
[40] (1987) 163 CLR 54 at 77.
[41] (1966) 116 CLR 644 at 654.
There was no suggestion on appeal that the trial Judge failed to consider the relevant evidence; on the contrary he did so in considerable detail. Furthermore, there was no submission that there was no evidence to support his ultimate conclusions. The reasoning which led the President to conclude that there was an error of law is set out in the following passage:[42]
Whilst it was open, based on his methodology, for the learned Trial Judge to conclude that Ms Dalton’s “explanation was at least as plausible as any other alternative thesis” and to conclude that the Department “has signally failed to establish any perceivable temporal or other relationship or link between the entries in the applicant’s bank statements and the computer transactions” the evidence to which I have just referred was so powerful in suggesting a readily apparent and stark temporal relationship between the bank statements and the impugned work transactions it begged the question that the learned Trial Judge’s reasons for decision suggest was not asked, and that is: “What are the chances of all these things having happened and Mrs Dalton being innocent?” Notwithstanding the fact that the learned Trial Judge’s reasons contain phrases such as “the overall weight and significance of the evidence”; “the whole of the evidence”; “the backdrop of the totality of the evidence” ; and “their totality” , the fact that the learned Trial Judge’s reasons do not make it demonstrably clear that he posed for himself that question leads me to conclude that his evaluation of the circumstantial evidence was undertaken as he elsewhere suggested, and that is that he looked at it and evaluated it seriatim. I therefore agree with Mr Kourakis that the learned Trial Judge made the same error as that made by the Court of Appeal in Hillier.[43] It follows that his conclusions resulted from a process of reasoning that was infected by errors of law.
(Footnote added)
Deputy President McCouaig concluded that there was an error of law for the same reason.[44]
[42] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [38].
[43] R v Hillier (2007) 228 CLR 618.
[44] State of South Australia (in right of Department for Families and Communities) v Dalton [2008] SAWCT 64 at [95], [96].
The reasoning of the Full Bench was influenced by an assessment of the weight of the evidence before the single Judge. In Azzopardi v Tasman UEB Industries Ltd,[45] Glass JA referred to an earlier New South Wales decision and an observation by Dixon J in Clark v Flanagan[46] to draw a distinction between an error of law and an error of fact in the case on appeal:
The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9. (Emphasis supplied.)
In another workers’ compensation case Dixon J, as he then was, put the position in the following words:
... the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law.
[45] (1985) 4 NSWLR 139 at 155.
[46] (1934) 52 CLR 416 at 428.
In my view the assertion that the trial Judge erred in evaluating the circumstantial evidence did not justify the Full Bench in reviewing and determining for itself the reasonableness of his findings.
In the criminal jurisdiction there are some matters associated with the assessment of circumstantial evidence which involve issues of law. The requirement of proof beyond reasonable doubt and the application of that requirement to circumstantial evidence[47] is an example. The necessity in some cases of proving intermediate facts in a circumstantial case beyond reasonable doubt is also a matter of law.[48]
[47] Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234.
[48] Shepherd v The Queen (1990) 170 CLR 573.
In my view, however, it cannot be said that the question of whether the trial Judge has undertaken a logical and commonsense assessment of the circumstantial evidence gives rise to a question of law.
An analogy is provided by cases in which the maxim res ipsa loquitur is invoked. In Schellenberg v Tunnel Holdings Pty Ltd,[49] Kirby J said:
This Court has emphasised many times, and for over sixty years, that the maxim res ipsa loquitur “should be regarded merely as an application of the general method of inferring one or more facts in issue from circumstances proved in evidence”: Davis v Bunn (1936) 56 CLR 246 at 268. In this respect, this Court has not been alone. Judges elsewhere have been at pains to deny to the maxim any “magic qualities”: Roe v Minister of Health [1954] 2 QB 66 at 87, per Morris LJ. They have expressed exasperation at the suggestion that the maxim amounts to a “principle”, or even worse, a doctrine of law: Ballard v North British Railway Co [1923] SC 43 at 56. Lord Shaw of Dunfermline remarked nearly eighty years ago that if it “had not been in Latin, nobody would have called it a principle”: Ballard [1923] SC 43 at 56.
In the same case Gleeson CJ and McHugh J said:[50]
The plaintiff contends that the application of res ipsa loquitur has accumulated a number of “encrustations” in the course of its judicial history that have hardened the maxim into a rigid rule of law, when it is merely a factor to be weighed “with the direct evidence to determine whether the plaintiff had established, on a balance of probabilities, a case”. The plaintiff urged the Court to follow the Supreme Court of Canada in Fontaine v British Columbia (Official Administrator) [1998] 1 SCR 424 at 435 (see also McInnes, “The Death of Res Ipsa Loquitur in Canada”, Law Quarterly Review, vol 114 (1998) 547) and abolish the maxim “as a separate component in negligence actions”. To do so, it was said, would be “consonant with the steps taken by this court to absorb isolated pockets of technical law into a context appropriate to its original rationale” as this Court did in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.
In our opinion, this Court should not follow that course. The Court has affirmed time and again that res ipsa loquitur is merely a mode of inferential reasoning and is not a rule of law.
(Emphasis in original)
Gaudron J referred to the maxim as “no more than a Latin phrase describing a permissible process of reasoning”.[51]
[49] Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at [121].
[50] Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at [46].
[51] Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at [70].
Mr Peek QC relied on The Queen v Hillier[52] in support of the argument that a question of law was raised. In that case the respondent to the High Court appeal was the former de facto partner of the victim. He was convicted of murdering the victim. The prosecution case was based on circumstantial evidence. It relied principally on evidence of motive, the fact that the respondent’s movements were unaccounted for at the relevant time, evidence that his DNA was found on the victim’s pyjamas and evidence suggesting he had attempted to remove trace material from his hands by chemical means. The case of motive was based on the fact that the respondent and the victim were engaged in a custody dispute at the time of the killing.
[52] (2007) 228 CLR 618.
The Court of Appeal set aside the conviction for murder on the ground that it was unsafe and unsatisfactory. The prosecution applied for leave to appeal to the High Court.
The approach of the majority of the Court of Appeal was summarised in the judgment of Gummow, Hayne and Crennan JJ in the following passage:[53]
[53] (2007) 228 CLR 618 at [39], [51]-[52].
The ultimate conclusion reached by the majority was expressed as being that “there is a real possibility that another person was responsible” for Ms Hardwick’s death. That, of course, is no more or less than a conclusion that it was not established beyond reasonable doubt that Mr Hillier was responsible for her death. Five, perhaps six, matters were identified as yielding one or more alternative hypotheses consistent with Mr Hillier’s innocence. Those matters were, or at least included, some evidence about handcuffs found at Ms Hardwick’s house and some marks on her bed-head, the bruises on her wrists, the DNA from an unknown person on her collar, some footprints observed in soot deposited by the fire in her bedroom and other evidence said to be consistent with the presence of a third person at the relevant time.
…
None of the matters mentioned by the majority in the Court of Appeal as permitting an inference that someone other than Mr Hillier caused Ms Hardwick's death was said to require that conclusion. (As the majority said, “[T]here may be explanations for these matters that are compatible with the Crown case.”) And as the majority also said:
[A]spects of the evidence, particularly that relating to motive, timing and DNA extracted from the 15C7 tape lift, provided ample grounds for grave suspicion that [Mr Hillier] may have murdered [Ms Hardwick].
But the conclusion then reached (that it was “impossible ... to conclude that it was open to the jury to find that the guilt of [Mr Hillier] had been proven beyond reasonable doubt”) was said to depend upon:
other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs [which] make it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death.
Assuming, as one must, that these “other aspects of the evidence” were those identified earlier in their Honours’ reasons, it by no means followed that it was not open to the jury to conclude that guilt had been proved beyond reasonable doubt. The asserted conclusion would follow only if the significance to be given to the “other aspects of the evidence” was assessed separately from the rest of the evidence. The reasoning of the majority was, therefore, erroneous.
(Emphasis in original; footnotes omitted)
Mr Peek QC submitted that Hillier is authority for the proposition that the incorrect treatment of the circumstantial evidence by the majority in the Court of Appeal constituted an error of law. In my view this submission should be rejected.
The Court of Appeal concluded by majority that the verdict of guilty of murder was unsafe and unsatisfactory. The High Court decided that the Court of Appeal had erred in considering whether the verdict was unsafe or unsatisfactory because of the way in which it dealt with the circumstantial evidence. However, the High Court did not identify the error made by the majority as an error of law.
If I am correct in the view that the present appeal does not raise a question of law this would be an additional reason for holding that the appeal to this Court is incompetent.
Conclusion
For the reasons which I have stated I would dismiss the appeal as incompetent.
NYLAND J: For the reasons expressed by Duggan J I would dismiss the appeal as incompetent.
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