Fox v Walker - [2004] WASCA 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FOX -v- WALKER [2004] WASCA 246

CORAM: JENKINS J

HEARD: 30 SEPTEMBER 2004

DELIVERED : 3 NOVEMBER 2004

FILE NO/S: SJA 1063 of 2004

BETWEEN: KAREN JANE FOX
Appellant
AND
GREGORY STIRLING WALKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR JONES SM
File No  :MI 6239 of 2004, MI 6240 of 2004, MI 7040 of 2004, MI 7041 of 2004, MI 7042 of 2004, MI 7043 of 2004, MI 7044 of 2004, MI 7045 of 2004, MI 7046 of 2004, MI 7047 of 2004, MI 7048 of 2004, MI 7049 of 2004, MI 7050 of 2004, MI 7051 of 2004

Catchwords:

Criminal law - Appeal from decision of Magistrate - Convictions for receiving and fraud - Circumstantial evidence proving knowledge that relevant goods were stolen - Admissibility of unsigned admissions where formal admissions made about same issues - Honest and reasonable but mistaken belief - Out of court identification

Legislation:

Criminal Code (WA), s 24, s 409, s 409(1)(c), s 414

Evidence Act 1906 (WA), s 32

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Noble
Respondent: Mr J Y Johnston

Solicitors:

Appellant: Jeremy Noble
Respondent: State Director of Public Prosecutions

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

Assafiri v Horne [2004] WASCA 40
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Domican v The Queen (1992) 173 CLR 555
Jack v Smail (1905) 2 CLR 684
Mathews v The Queen [2001] WASCA 264
McKinney & Judge v The Queen (1990) 171 CLR 468
Palmer v The Queen (1998) 193 CLR 1
R v Higgins (1829) 3 C & P 603
R v Smith [1981] 1 NSWLR 193
R v Soma (2003) 212 CLR 299
Wedd v The Queen [2000] WASCA
Yager v The Queen (1977) 139 CLR 28

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Alexander v The Queen (1981) 145 CLR 395
Calvetti v Warner, unreported; SCt of WA (Owen J); Library No 8960; 4 July 1991
Davies and Cody v The King (1937) 57 CLR 170
Dawson v The Queen (1961) 106 CLR 1
Driscoll v The Queen (1977) 137 CLR 517
Fox v Percy (2003) 214 CLR 118
McWaters v Talbot, unreported; SCt of WA (Scott J); Library No 930359; 24 June 1993
Peacock v The Queen (1911) 13 CLR 619
Proudman v Dayman (1941) 67 CLR 536
R v Gibson (1887) 51 JP 742
R v Kochnieff (1987) 33 A Crim R 1
R v Ollerton (1989) 40 A Crim R 133
Thomas v The Queen (1960) 102 CLR 584
Watt v Thomas (1947) AC 484

JENKINS J:

The Decision under Appeal

This is an appeal from the decision of a learned Stipendiary Magistrate sitting in the Court of Petty Sessions at Midland on 25 May 2004 whereby on complaints numbered 6239, 6240 and 7040 – 7051 of 2004 containing seven charges of receiving and seven charges of fraud the appellant was convicted of all charges.

Grounds of Appeal

The appellant says that the learned Stipendiary Magistrate erred in:
1.not applying the criminal standard of proof;
2.not applying the principles relating to the drawing of inferences;
2.1concluding the only inference that was open was that the appellant knew the relevant goods were stolen in light of direct evidence to the contrary;
3.not considering the defence of honest and reasonable but mistaken belief;
4.admitting into evidence an unsigned record of interview between the appellant and police officers when the interview did not contain any admissions relevant to the trial in light of admissions made by the appellant at the commencement of the trial;
5.not ruling the record of interview inadmissible as hearsay;
6.admitting into evidence and/or placing substantial weight on the record of interview, conducted on 29 August 2003, as an admission or a prior inconsistent statement without making reference to the circumstances in which the record of interview was made;
7.concluding that an out of court identification of the appellant by the witness Lambley was reliable without having regard to the principles relating to the dangers of accepting such an identification; and
7.1finding that the identification made by Lambley was bolstered by the fact that "the [appellant] came into the store a short time later" when there was no evidence of the time span between the disputed identification by Lambley and the appellant's attendance at the store.

Details of Charges and Proceedings

The charges arose out of receipt of stolen tools by the appellant from her son, Paul Maso ("Maso"), and the appellant's conduct in subsequently claiming ownership of the tools when she pawned them to second-hand dealers on seven occasions over a period of three weeks between 24 July and 14 August 2003. Thus, she faced seven charges which alleged that she received various tools the property of persons unknown which had lately been stolen as she then well knew, contrary to the Criminal Code (WA), s 414, and seven charges which alleged that with intent to defraud the relevant second-hand dealer by falsely claiming to own the tools she gained a benefit for herself being the amount of money that she received for the tools, contrary to the Criminal Code (WA), s409(1)(c).
The appellant pleaded not guilty on 18 May 2004 and a trial ensued. Through her counsel she made the following admissions:
(a)the tools had been stolen;
(b)she possessed the tools at the material times;
(c)that on the dates referred to in six of the complaints she presented the particularised tools to the relevant second-hand dealer and represented that the items belonged to her and thereby gained the benefit of a particular sum of money.
It appears that, through an oversight, no admissions were made of a similar nature made with respect to two counts, being that on 14 August 2003 at Midland the appellant received two Kincrome spanner sets and a socket set and that on the same date and the same place she with intent to defraud falsely claimed to own the said goods, gained a benefit of $50. For the purposes of this appeal, it does not seem that anything turns on this oversight. The appellant is content to conduct the appeal on the basis that the only issue that was not conceded by the appellant in respect to all 14 charges and which required the determination of the learned Stipendiary Magistrate was whether the prosecution had proved beyond reasonable doubt that the appellant knew that the goods she received from Maso, and which she subsequently represented were her own, were stolen at the time she received them and the time she pawned them. The defence case was that the appellant did not have such knowledge at the material times and that she only later learnt that Maso had stolen the tools. At the conclusion of the hearing, the learned Stipendiary Magistrate reserved his decision. He delivered it on 25 May 2004. On that date he gave his reasons for convicting the appellant of all offences and placed her on a community based order for a period of 12 months which included a requirement that she perform 70 hours of community service work.

The Evidence

The prosecution called four witnesses. The first witness was Robert Lambley, who worked for a second-hand dealer known as Cash Crusaders, in Midland. None of the charges were alleged to have occurred at this business. However, Mr Lambley testified that Maso had sold new tools through his business on two occasions. On the third occasion he attempted to sell new tools to his business, he refused him because of a policy whereby Mr Lambley refuses to deal with a person who attempts to sell new goods on a third occasion. Mr Lambley said he put a mark against Maso's name, presumably to indicate that he was not to be served in the future.
After Mr Lambley refused Maso service, Mr Maso left the shop and Mr Lambley went to the front of his shop and saw Maso get into a sedan. His description of the vehicle was unclear. He initially referred to it as a Commodore, V series. However, when that was put to him he said it was "like that sort of shape". He was not a 100 per cent sure of the colour but thought that it was blue or green. He said that the vehicle was parked on the right hand side of the shop.
He identified the appellant as the person sitting in the driver's seat of the vehicle that Maso got into.
He was then asked: "Now, after that, who then attended your shop?" Mr Lambley then indicated that the appellant had attended his shop to "hock" a Kincrome toolbox and socket set. In examination‑in‑chief Mr Lambley was not asked how soon the appellant came into the shop after Maso left. However, it was not immediately as Mr Lambley testified that after Mr Maso got into the car "they went". In cross‑examination it was put to him that in his police statement he said it was "several days later" and he did not disagree.
Mr Lambley testified that when the appellant came into his shop she gave him her passport. He said that she did not look like the person in the passport. He asked the appellant whether she knew Maso and she denied knowing him. In his words "alarm bells were ringing" and he declined to deal with her. Subsequently Mr Lambley advised the police about the contact he had had with the appellant and Maso. He also suspected that the tools had come from Bunnings and so he rang an acquaintance at the local store and advised him of his suspicion.
Mr Lambley also testified that a young woman with a pram had also come into his shop to attempt to sell new tools. The relevance of this evidence was challenged by the appellant's counsel, although he acknowledged that there was a link between the appellant and this woman. It appears that she was Maso's girlfriend who was later identified as Kelly Findlay.
In cross‑examination Mr Lambley's credibility and reliability was challenged. In summary it was put to him that he had wrongly identified the appellant as the person responsible for stealing an item from his shop on another occasion. Mr Lambley acknowledged that that had occurred. It was also put to him that in his statement to the police he had said that when he saw the appellant on 19 August 2003 he was not aware of the association between her and Maso. I note that this was the first time the exact date of this encounter was put to Mr Lambley. Mr Lambley attempted to explain this by saying that on a previous occasion the appellant had been into his shop. He said that on a previous occasion she had been in and asked him how much she would receive for a Kincrome socket set. He said that she had walked out without the transaction taking place. He acknowledged that this was not in his statement.
It was put to him that on the occasion he refused to deal with Maso he saw him get into a car 15 metres away from him and he appeared to acknowledge that. It was put to him that it was possible that it was not the appellant sitting in the car and he repeated that it was.
It was also put to Mr Lambley that his evidence‑in‑chief was the first occasion upon which he had said that the appellant had denied knowing Maso. Mr Lambley insisted that this evidence was correct but appeared to acknowledge that he had not said it on any prior occasion.
The second witness called by the prosecution was Sarah Rixon. She is employed by Bunnings in Midland as a "people greeter". She gave evidence that on 19 August 2003, after having been told to be on the lookout for a short gentleman with a heavily pregnant wife, a pram and a small baby girl, she saw them come into the tool shop in Bunnings. She said that she had seen these people in the store "quite a bit". Ms Rixon witnessed these people putting some things into the liner of their pram which were three rectangular socket set boxes and some grinding discs. They failed to pay for the boxes on the way through the checkout and were subsequently apprehended in possession of the unpaid boxes. She said that she had seen them on numerous occasions and was aware that they used a green coloured Commodore or Falcon sedan. She said that she had seen them with various family members. Cross‑examination established that these persons were not the appellant and her evidence does not appear to have been relevant to the case against the appellant. Its admission is not a ground of appeal.
The third witness for the prosecution was Constable Gregory Walker. On 29 August 2003 he attended at the appellant's home and executed a search warrant. No items were found in relation to these charges. He and his partner, Constable David James, took the appellant to Forrestfield police station and invited her to participate in a video record of interview. She declined the invitation but agreed to participate in a written record of interview which then took place. She refused to sign the notes of the interview.
Constable Walker produced the notes of that interview and sought leave to refer to them for the purposes of giving evidence. The appellant's counsel objected to the admission of the evidence on the ground that "the whole trend towards reformation of the law in this regard is to have things placed on an independent record, not a police officer's notes". The learned Magistrate was of the view that the evidence was admissible and, ultimately, the officer read into evidence the notes of the interview. The relevant portions of the interview are as follows:
"Question 1: How did you get 7 sets of spanners?
Answer 1: I purchased them off Paul Maso, my son? (sic)
Question 2: When was the first time you purchased off Paul?
Answer 2: Unknown.
Question 3: When was the last time?
Answer 3: Unknown.
Question 4: Didn't you think it was strange that Paul had so much and did you ask where he got them from?
Answer 4: Obviously they were purchased from somewhere.
Question 5: Would it be fare (sic) to say that you pawned 13 gear wrench sets since July 2003?
Answer 5: I wouldn't have a clue.
Question 6: Do you agree with my records that you pawned 14, 7 piece ratchet gear wrenches?
Answer 6: I don't think I can agree with that.
Question 7: The Makita Plainer (sic), 190803 1250 10690, item 6, do you know anything about it?
Answer 7: I've already told you the tools came from Paul, I can't remember individually.
Question 8: How much did you purchase them for?
Answer 8: I can't remember.
Question 9: Sidchrome toolbox 14116, did you get that off Paul?
Answer 9: I got all of the tools that I have pawned from Paul.
…
Question 10: Has it ever crossed your mind that Paul has so many new tools?
Answer 10: No.
Question 11: You said you purchased them off Paul, why?
Answer 11: He wanted to borrow money so I bought tools so I could get my money back.
Question 12: Did he bring the tools to your house?
Answer 12: I can't remember.
Question 13: If Paul needed money why didn't he pawn them?
Answer 13: You'd have to ask him.
Question 14: Did you tell him you pawned them?
Answer 14: I'm unsure you'd have to ask him.
Question 15: The other day I asked Paul if his partner, Kelly Findlay had ever pawned tools for him and he said yes. I also asked if you had, he said no never. Can you explain that?
Answer 15: That's correct.
Question 16: So you've got no idea why Paul would sell them to you and pawn them himself?
Answer 16: I suppose no."
It seems that the interview refers to some tools which were not the subject of the charges. Again, no complaint is made about that.
Seven photographs of the tools sold on each occasion the subject of the charges were tendered through the police officer. The photos show new tools of similar kinds and brands.
In cross‑examination Constable Walker agreed that the appellant had been very co‑operative with him. He agreed that the register maintained by the police of information provided by pawnbrokers and second-hand dealers shows that the appellant had, apparently legitimately, sold and pawned other items through such dealers.
It was put to Constable Walker that the appellant did not tell him that she had purchased the tools from Maso. He disagreed. Constable Walker acknowledged that when he spoke to Maso he told him that the tools were part of his trade. However, Maso was charged with and pleaded guilty to stealing the tools the subject of these charges.
The final witness for the prosecution was Constable James. His evidence‑in‑chief corroborated that of Constable Walker. In cross‑examination, Constable James maintained that Constable Walker had written down each question and answer asked and given during the interview but he had little independent recollection of the content of the interview.
The appellant gave evidence on her own behalf. She gave evidence that she was the mother of Maso who was in a relationship with a woman called Kelly Findlay. She said that in 2003 as a result of her lending Maso money over a period of about 12 months he owed her approximately $1,200. She finally agreed the debt as being $1,000. She said she did not know why he needed the money she lent him. The appellant said that around this time Maso was either working as a vehicle body builder or engineering frames for houses. She understood that he required tools and that she had seen him with tools for these purposes.
In January 2003 it was agreed that Maso would give her the tools in lieu of the money he owed her because he could not afford to pay her back. The appellant was shown Exhibit A which was a photograph of the tools traded at Cash Converters on 24 July 2003 being the subject of complaints numbered 7040 and 7041 of 2003. She said she recognised the router set in the photo because it was in her son's shed and he was using one of the pieces of it. She said he had made a wooden chess table and he was doing something with that. She said that those tools came into her possession at the same time as the remainder of the tools which she though was probably about six months prior to the dates of the charges. With respect to Exhibit C which was a photograph of a Makita electric planer she said that she had seen him using that, again, on the chess table.
Exhibit F, which is a photograph of the tools which the appellant traded at Cash City in Guildford on 13 August 2003 and which are the subject of complaints numbered 7050 and 7051 of 2003, includes two Kincrome Vernier callipers. The appellant said she had seen her son "fiddling with that" and she thought they were the same ones because she did not believe he had anymore. She identified the balance of the tools in the other photographs as the tools her son gave her and which she then sold. The appellant said she believed that the tools all belonged to her son.
The appellant testified that she did not believe that there was anything untoward about her son's possession of the tools because he kept them openly in his house and he has always had tools and taken good care of them. In cross‑examination she attempted to explain why Maso may have more than one set of the same tools by saying that she had been into plenty of workshops where there are "tools from one end of the shop to the other and that to me seems very normal". She said Maso would have given them to her even though he needed them for his work because of "money". In cross‑examination she acknowledged that some of the tools looked relatively new although she said some had been used.
In examination‑in‑chief the appellant said she kept the tools for a while but then she got into a position where she needed money so she took them "to the pawnshop" and exchanged them for cash. It should be noted that throughout this judgment I have referred and will continue to refer to the appellant pawning the tools. However, it is not clear to me whether she sold them or pawned them.
In respect to the interview with the police, the appellant denied telling the police that she had bought the tools from her son. In cross‑examination on that issue she also denied giving the answer "unknown" to the second question. She said that she did not accept the police's version of the interview and that they had left a lot of things out of it.

In response to Mr Lambley's evidence, the appellant testified that "on that relevant day" she was not at "Cash Converters". I assume that this was an error as Mr Lambley works at Cash Crusaders, not Cash Converters. She asserted that Mr Lambley must have got her confused with her son's girlfriend's mother. She said that at the time she did not have a driver's licence. In cross‑examination she expanded this evidence by saying that she had never been to the pawnbrokers with Maso. She also testified that she had only been into Mr Lambley's shop once. Her account of her visit to Mr Lambley's shop was that she had gone there with some tools and Mr Lambley had refused to deal with her because he had a flag on his computer, presumably against her name. She did not recall him asking if she knew Maso. In cross‑examination the prosecutor attempted to discredit her evidence that she was certain that she had only ever been into Mr Lambley's store once by asking her how many times she had been into pawnshops. She was not able to even guess at the number of times she had been into such shops.
The appellant denied knowing anyone who drove or owned a green Commodore sedan. She said that Maso's girlfriend's mother drove a green Magna "or something like that".
The appellant acknowledged that Maso was not working at the time he gave her the tools and that when he does work it is contract work which is very variable.
The appellant said that she sold the tools because she moved from a property to her mother's house and there were debts owing on the previous premises such as water rates. She said that she had arguments with Maso about him repaying the money that she had lent him and that she did not ask him to sell the tools for her because they had been arguing and he just said he would give her the tools. The inference being that she did not think he would be prepared to sell the tools for her given the circumstances in which he gave them to her.
In cross‑examination the appellant denied being with any man, woman and pram near Bunnings.
No other witnesses were called by the defence.

Magistrate's Reasons

After hearing submissions of counsel the learned Magistrate adjourned proceedings until 25 May 2004 when he delivered his reasons for decision.
He noted that the defendant admitted being in possession of the tools, pawning them and that they were stolen. He noted that the appellant denied knowledge that the tools were stolen. The learned Magistrate noted that the respondent submitted that the requisite knowledge was to be inferred from the evidence.
The learned Magistrate found that the tools were in apparently new condition as shown in the photographs. He also found that in several cases the tools appeared to be identical sets of tools. It is unsurprising that the Magistrate found the condition and type of tools to be of significance in his findings. The appellant's assertion that the type, number and condition of the tools did not alert her to the possibility that they were stolen is incredible given what is apparent in the photographs. For example, Exhibits E and F are two photographs of tools pawned on separate occasions. They show four sets of identical gear wrenches apparently still in store packaging. Another example is that the photographs show six sets of what appears to be brand new socket sets. Considering the appellant's evidence that Maso was unable to afford to repay her and was not in continuous employment, the appearance and types of the tools she said he gave her quite clearly would have rung alarm bells in the mind of any honest person.
The Magistrate then found that the notes of interview between Constable Walker and the appellant were an accurate record of questions put to the appellant and the answers which she gave in answer to the questions.
He noted then that there was a discrepancy between the evidence given by the appellant at the hearing to the effect that the tools had been given to her in satisfaction of a debt of $1,000 owed to her by her son whereas when interviewed she had said that she purchased the tools from her son. The learned Magistrate noted that the appellant's explanation that she had purchased the tools did not make sense as a consequence of being asked follow up questions which affected the credibility of her initial response. He concluded that in general the appellant's responses in the interview were unsatisfactory. He noted particularly the answer "unknown" to question 2 of the interview. He concluded:
"I have no doubt had the [appellant] obtained the property in satisfaction of a debt owed by her son she would have made that clear to Constable Walker who had asked three questioned (sic) specifically referring to her purchase of the tools."
He then referred to the evidence of Mr Lambley. The Magistrate found Mr Lambley to be a credible witness. He noted that he had readily acknowledged that he had wrongly alleged that the appellant may have been responsible for stealing a stereo from his shop.
In respect to Mr Lambley's purported identification of the appellant outside the pawnshop, the learned Magistrate stated that if the only evidence was his observation of the person sitting in the car a short distance away and a later identification in court many months later then he would not be able to exclude the possibility of mistaken identity. However, the Magistrate noted that the appellant had come into the store a short time later and attempted to sell new tools of a similar kind and the same brand as her son had attempted to sell. He accepted Mr Lambley's evidence. I take this comment to mean that he accepted his evidence that it was the appellant who was in the car at the time he refused Maso service.
The learned Magistrate concluded with the following comments:
"The case is circumstantial. However, I find the [respondent] has presented a compelling case from which the only inference to be drawn is that the [appellant] knew at the time receiving each of the items of property from her son that the property was stolen."
I now turn to the grounds of appeal.

Ground 1 - Application of Criminal Standard of Proof

This ground can be shortly dealt with. I am not prepared to find that the experienced learned Magistrate failed to apply the criminal standard of proof, namely proof beyond reasonable doubt, merely because he did not articulate the standard of proof and used the word "compelling" when referring to the prosecution case. The failure by a Magistrate to express the standard of proof does not lead to an inference that he failed to direct himself on what is the most fundamental and well known principle of the criminal law. The Oxford English Dictionary defines "compelling" to include "irresistible" and the Macquarie Dictionary defines it to mean "overpowering, forceful or secure". To describe the prosecution case as "compelling" is consistent with finding it proved beyond reasonable doubt.

Grounds 2 and 2.1 – The Drawing of Inferences against the Appellant in a Circumstantial Case

The appellant's complaint is that whilst the learned Magistrate correctly identified that the case against the appellant was circumstantial, his finding that the only inference to be drawn was an adverse inference against the appellant that she knew at the time of receiving the tools from her son that they were stolen was clearly not the only inference that could be drawn from the evidence. Two matters are said to flow from this. The first is that the Magistrate must have applied the incorrect test about the drawing of inferences because his findings do not indicate that he considered whether the inference he drew was the only reasonable inference open on the evidence. Secondly, the learned Magistrate was patently wrong in finding that an inference adverse to the appellant was the only reasonable inference to draw when there was evidence in the form of the interview with the police and the appellant's sworn evidence to the effect that she did not know that the tools were stolen.
As to the first issue there is no doubt that before the Magistrate could find the appellant guilty he had to draw an inference from all the evidence that at the relevant times she knew that the tools were stolen. Before the learned Magistrate could draw such an inference he had to be satisfied that the circumstances excluded any reasonable hypothesis consistent with the appellant's innocence: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 536 per Gibbs CJ and Mason J.
The learned Magistrate's conclusion that the only inference to be drawn was that the appellant knew at the time of receiving each of the items of property from her son that the property was stolen included an implied assertion that the learned Magistrate's view of the evidence was that there was no other inference consistent with innocence reasonably open on the evidence which he found to be proved and reliable.
In this respect it seems to me that the appellant's submissions have fallen into the error identified by Murray J in Wedd v The Queen [2000] WASCA 273 at [40]. That is, the submissions suggest that the Magistrate should have considered whether there was another reasonable inference open on the facts that was favourable to the appellant. As Murray J said at [41]:
"This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged."
As to the second issue, it is clear that the Magistrate rejected the self‑serving answers given by the appellant in the interview with the police and found that the untruthful nature of her answers affected her credibility in general. Those findings together with his findings concerning the appellant's interaction with Mr Lambley lead inevitably to the conclusion that the learned Magistrate rejected the appellant's sworn evidence also. His conclusion that the only inference to be drawn is that of the appellant's guilt reflected this rejection. The Magistrate was entitled to accept or reject the evidence as he saw fit. Thus, there is no appealable error in him concluding that the only inference open on the evidence as accepted by him was that the appellant knew that the goods were stolen.

Ground 3 – Honest and Reasonable Mistaken Belief

The appellant was convicted of offences against two provisions of the Criminal Code. One of those provisions was the Criminal Code (WA), s 414 which is the offence generally known as receiving. An element of the offence of receiving is that the accused knew that the property he or she received had been obtained by means of an indictable offence. In this case that offence was identified as stealing. The learned Magistrate identified that issue as the crucial issue for his determination. In this respect he found against the appellant. Such a finding is inconsistent with a defence of honest and reasonable but mistaken belief on the part of the appellant that the tools were owned by her. In other words, having found that the appellant knew that the tools she received from Maso were stolen, the learned Magistrate had implicitly rejected the defence in the Criminal Code (WA), s 24. Alternatively, having come to such a finding, to then go on and consider the Criminal Code (WA), s 24 would have been a waste of time as his finding as to this element of the offence meant that he would inevitably have found that the respondent had negatived that defence.
The second provision of the Criminal Code which the learned Magistrate found that the appellant had contravened was s 409(1)(c), being the offence commonly known as fraud. One of the elements of fraud is that the accused had an intent to defraud. In Mathews v The Queen [2001] WASCA 264 at [19] Burchett AUJ said:
"Under s 409(1), the relevant concepts are "intent to defraud" and "fraudulent means", rather than dishonesty. But the proper course for a trial judge is of the same kind: the knowledge, belief or intent said to reveal an intent to defraud and fraudulent means should be identified by the judge, and the jury should be instructed to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, what was relevantly done by the accused was so done with an intent to defraud and by fraudulent means. Generally, since s 24 requires the accused's state of mind, if he is to be exculpated, to be reasonable, introducing a consideration which is unnecessary to innocence under s 409, it will be inappropriate and confusing to direct the jury about s 24, and the judge should not do so. If, in a particular case, a direction under s 24 is required, great care will have to be taken to avoid confusion through a transference of concepts of reasonableness from the statutory defence to the crime under s 409."
Clearly the knowledge that the respondent alleged that the appellant had which determined that what was done by her was done with an intent to defraud by deceit was the knowledge that the tools were stolen. Thus, as Burchett AUJ said, introducing the Criminal Code (WA), s 24 would have introduced a consideration which was unnecessary to innocence under the Criminal Code (WA), s 409, and it would have been "inappropriate and confusing" for the learned Magistrate to direct himself in relation to s 24. He was correct not to do so. For these reasons this ground of appeal is not established.

Grounds 4, 5 and 6 – Admissibility of the Interview between the Appellant and the Police

Grounds 4, 5 and 6 raise the following two issues:
(a)whether the evidence of the interview was admissible given that it did not contain any admissions after the appellant made formal admissions at the commencement of the trial;
(b)whether the learned Magistrate having admitted the evidence of the interview ought to have placed substantial weight put on its contents as being a prior inconsistent statement given the circumstances in which it was taken and the appellant's sworn evidence that she did not tell the police that she had purchased the tools from her son but rather told them that the tools were given to her by her son in payment of a debt owed.
As to the first issue, the appellant does not dispute that the interview would have been admissible if it contained admissions against her interest relevant to the issues at trial. So much is trite law. The appellant's submission is that given the admissions made by her there were no such admissions against her interest contained in the interview.
Disregarding for the time being the formal admissions that were made by the appellant it is clear that the interview contained answers by the appellant which were contrary to her interest and relevant to the issues between the parties. For example it was open to the learned Magistrate to conclude that the tools referred to in the interview included the tools the subject of these charges and that the appellant admitted that she had obtained the tools from Maso, her son, and that she then pawned those tools. Prima facie those admissions were admissible against the appellant. It is generally accepted that where the prosecution chooses to rely upon admissions made in the course of an interview with the police, the whole of the statement made by the appellant should be tendered to put the admissions into context and to enable the accused to rely upon any explanations given in the statement. This is generally regarded as a rule of fairness: R v Higgins (1829) 3 C & P 603; Jack v Smail (1905) 2 CLR 684 at 695 per Griffith CJ.
The issue remains as to whether having regard to the formal admissions made by the appellant, the answers given by the appellant in the record of interview remained admissible. These formal admissions were presumably made pursuant to the Evidence Act 1906 (WA) which states:
"An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence."
The appellant submitted that the formal admissions made by her rendered the answers she gave in the interview self‑serving statements and they were thus inadmissible. To support this submission the appellant cited Palmer v The Queen (1998) 193 CLR 1 and Assafiri v Horne [2004] WASCA 40. It does not seem to me that these cases support the appellant's submissions. It can not be said that because an accused makes formal admissions about certain elements of an offence, admissions against interest in a record of interview become self‑serving statements. However, there is another issue and that is whether the prosecution may call further evidence on a point on which a formal admission has been made? According to the learned author of "Cross on Evidence", 6th ed (Aust) (2000) at [3180] there are authorities that support either a yes or no answer to this question. I have reviewed those authorities and in my opinion the view in R v Smith [1981] 1 NSWLR 193 is to be preferred, subject to a discretion to reject such evidence to prevent undue repetition or an abuse of the court's processes. In that case Street CJ said, at 194:
"The significance of an admission is essentially to constitute material before the jury on which the jury can place reliance when performing its final function of reaching a verdict. It is not correct to assert, as has been argued, that once a matter becomes the subject of a specific admission under s 404 it ceases to be relevant for further investigation … No doubt a persuasive, indeed strongly persuasive, basis for the jury reaching a finding adverse to the appellant on that issue was the formal admission. But this does not in principle preclude the Crown from adducing further evidence on the matter."
Samuels JA and Slattery J agreed with the then Chief Justice. I do not regard the comments of Gibbs J in Yager v The Queen (1977) 139 CLR 28 at 39 as stating the contrary. After referring to the Evidence Act, 1906 (WA), s 32 Gibbs J said:
"They were formal admissions, which dispensed with the need of evidence, and not informal admissions whose weight the jury had to consider. If the admissions had been complete it would have followed that once the question of law was decided against the applicant the jury, if they had done their duty, would have convicted. The learned Judge was entitled to tell them so, provided at the same time he made it clear that it was their right and duty to decide what verdict to return and that he did not direct them to return verdicts of guilty or otherwise attempt to coerce them into doing so."
In making these comments his Honour did not specifically address the issue as to whether the prosecution was prevented from calling evidence in addition to formal admissions made by the appellant in respect to a particular element of an offence.
In support of the submission that the learned Magistrate ought not to have placed substantial weight on the contents of the interview, the appellant cited McKinney & Judge v The Queen (1990) 171 CLR 468. In that case the majority of the High Court (at 476), ruled that a jury ought to be directed that it:
"Should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated."
It was said, at 478, that the basis of a prima facie requirement for such a direction is:
"The special position of vulnerability of an accused to fabrication where he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement."

The circumstances invoking the requirement for the learned Magistrate to give himself a warning in these terms did not exist in this case. In particular the evidence of the interview was not the only evidence implicating the appellant in these offences. Further, the respondent's evidence that the appellant had been cautioned, had agreed to speak to the police, had declined to have the interview videotaped and declined to read the notes of the interview are not disputed by the appellant. Thus the basis for the requirement for a warning did not exist.
Once the evidence of the interview was admitted the learned Magistrate was entitled to have regard to it for the purposes of determining whether the appellant had made a prior statement inconsistent with her sworn testimony. She denied that she had done so but her denials did not prevent the learned Magistrate from finding otherwise, as he did. Once he came to that conclusion he was entitled to use this finding to conclude that the appellant ought not to be believed upon her oath and that what she told the police about the alleged offences was also unreliable. Given the High Court's decision in R v Soma (2003) 212 CLR 299, it would seem that the approach the respondent took in leading evidence of the interview in his case was the correct and fair approach.

Ground 7 – Identification

This ground challenges the learned Magistrate's reliance upon the identification of the appellant as the person Mr Lambley says he saw in the car that Maso got into after Mr Lambley refused to deal with him. If she was that person, the inference was available that she knew that Maso had been unsuccessful in pawning tools and this increased the likelihood that she knew that the tools were stolen. It also undermined her credibility because she denied being aware that Maso had been stealing tools and pawning them.
The appellant makes two particular complaints about this reliance. The first is that the learned Magistrate failed to have regard to the principles of law concerning the dangers of relying upon a witness' evidence of identification. The second is that he used Mr Lambley's evidence that the appellant came to his store "a short time later" to bolster the reliability of Mr Lambley's purported identification when there was no evidence of the time span between the disputed identification of the appellant in the car and her return to the store.
As long as the learned Magistrate took into account, to the extent necessary, the relevant legal principles and he did not act on an incorrect appreciation of the evidence he was entitled to rely upon the evidence of Mr Lambley and it is not for me to substitute my view of Mr Lambley's evidence for that of the learned Magistrate: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
The legal principles to which the appellant refers to relating to the dangers of relying upon disputed identification evidence have been stated on many occasions. For example, in Domican v The Queen (1992) 173 CLR 555 at [11] a majority of the High Court said (excluding references):
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
Where a jury is not involved, as in this case, there is not the same need to identify for lay persons not familiar with the justice system what may be otherwise unappreciated dangers in relying upon disputed identification evidence. Nonetheless, the finder of fact must indicate that he or she is aware of and has taken into account those dangers.
When considering the reliability of Mr Lambley's identification the learned Magistrate said as follows:
"The identification of the defendant outside the pawn shop, if the only evidence was his observation of the person sitting in a car a short distance away and a later identification in court many months later, could not of course exclude the possibility of mistaken identity. However, the defendant came into the store a short time later and attempted to hock new tools of a similar kind and the same brand as her son had attempted to hock. I accept Mr Lambley's evidence."
In my opinion the learned Magistrate's reference to the "possibility of a mistaken identity" indicates that he was alive to the relevant legal principles applicable to the identification by witnesses of strangers. It is regrettable that he did not articulate them further but the paragraph in which the phrase appears indicates that the learned Magistrate was mindful of the danger of a mistaken identity and considered the evidence in light of that danger.
As to the learned Magistrate's reference to the appellant's appearance in his shop "a short time later" it is not correct to say that this "short time" was not identified. The appellant's counsel identified it when he put to Mr Lambley that portion of his statement to the police where, after saying that he saw Maso get into a car with a woman in the driver's seat, he said that "several days later" she attended his store. This was clearly a reference to the appellant. When this was put to Mr Lambley he replied "Yeah" and did not at any time dispute the truth of that part of his statement.
Further, although it was not mentioned in his statement, Mr Lambley testified that the appellant had been in his store on one other occasion attempting to pawn tools. Given that the learned Magistrate accepted Mr Lambley's evidence there was evidence that Mr Lambley had seen the appellant on three occasions these being once in the car and twice in his shop when he had served her. Consequently his evidence of identification was not of one sighting of the appellant in less than ideal circumstances. As the learned Magistrate found Mr Lambley to be a credible witness he was justified in taking this evidence into account so as to bolster the reliability of Mr Lambley's evidence of identification of the appellant.

Conclusion

For the above reasons the appeal is dismissed.