Goodwin v Williams
[2018] ACTSC 279
•24 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Goodwin v Williams |
Citation: | [2018] ACTSC 279 |
Hearing Date(s): | 4 June, 27 July 2015 |
DecisionDate: | 24 October 2018 |
Before: | Penfold J |
Decision: | 1. The appeal will be dismissed. 2. The parties will be heard about any orders required to give effect to sentences stayed by this appeal. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against convictions – claim of errors of fact – claim of error in application of principle – whether verdict was unsafe and unsatisfactory – appeal dismissed |
Legislation Cited: | Criminal Code 2002 (ACT) ss 38, 300, 301, 304, 306, 308 and 311 Evidence Act 2011 (ACT) s 144 Magistrates Court Act 1930 (ACT) ss 28 and 216(1)(a) |
Cases Cited: | Liberato v The Queen (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; 230 CLR 559 Roberts v Rhodes [2014] ACTCA 20 |
Parties: | Jason John Goodwin (Appellant) Daniel Wilton Williams (Respondent) |
Representation: | Counsel Mr M Toole (Appellant) Mr J Walker (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 11 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 20 January 2015 Case Title: R v Goodwin Court File Number(s): CC14/8597; CC14/8598 |
Introduction
Jason Goodwin was found guilty on 20 January 2015 in the Magistrates Court of one burglary and an associated theft. On 24 February 2015 he was sentenced for those offences.
On 17 February Mr Goodwin filed a notice of appeal against his convictions. He has not appealed against the sentences imposed, but they have presumably been effectively stayed under s 216(1)(a) of the Magistrates Court Act 1930 (ACT).
By an amended notice of appeal dated 19 March 2015, the grounds of appeal were specified as follows:
(a) Her Honour erred in finding that the defendant’s intent was formed whilst remaining on the premises as opposed to his intent at the time of entry to the premises;
(b) Her Honour erred in finding that the defendant intended to treat or dispose of the property as his own, and therefore erred in finding the offence of theft was proved.
(c) Her Honour erred in finding that the defendant acted dishonestly.
(d) Her Honour erred in applying the principle stated by Brennan J in Liberato v the Queen (1985) 159 CLR 507 at 515.
(e) Her Honour’s finding of guilt was otherwise unsafe and unsatisfactory.
Background
The undisputed facts, in summary, were that the complainant, Michael Collins had lived for some months in a house in a southern suburb of Canberra rented by Kerryn, or Kerry Anne, Moore. After some months, Mr Collins left the house and moved to a house in Amaroo, in the northern suburbs of Canberra. He and Ms Moore had fallen out over the arrangements for his departure, and Mr Collins did not give Ms Moore his new address. Ms Moore considered that Mr Collins owed her money in relation to various aspects of his occupation of the house, but the existence of the debt, or at least the amount of money involved, was in dispute between the two of them.
Although Mr Collins did not give Ms Moore his new address, he had at some point told her about the house, including showing her pictures of it, and an internet search enabled her to identify the address quite quickly. As well, Ms Moore still had his phone number and used that to send Mr Collins text messages.
On 10 March 2014, Mr Goodwin, who by then had formed a relationship with Ms Moore, went to the house in Amaroo, with a view to resolving the debt. Ms Moore was with him, but remained in the car outside the house. At the house he found the front door open, and walked in. After finding no one in the ground floor of the house, he went upstairs. There he found Mr Collins in a bedroom playing music, apparently with the aid of two laptops.
After a conversation between the two men, Mr Goodwin left the bedroom with one of Mr Collins’ laptops.
A call was made to police, who arrived at Mr Collins’ house shortly afterwards and talked to Mr Collins. In the course of that discussion, Mr Collins apparently showed a small red mark on his arm to the police officer, indicating that “an assault may have taken place as well”.
Two days later, acting under a warrant, police went to Mr Goodwin’s home. As soon as they entered, Mr Goodwin said words along the lines of “You must be here for the laptop”, and handed it to them.
The evidence
10. The Magistrate heard evidence from:
(a)the complainant Michael Collins;
(b)Senior Constable Williams, who had attended the house in Amaroo in response to a report to police of an incident at the house;
(c)Ms Moore; and
(d)the defendant Jason Goodwin.
The complainant
Evidence in chief
11. Mr Collins gave evidence that he had rented a room in Ms Moore’s house in a southern suburb of Canberra for about 4 months, that it was always intended to be a temporary arrangement, and that Ms Moore had been “fine” when he said he was moving out. When he moved out, he had not told her where he was moving to. He had paid rent until the Wednesday, and moved out on a Saturday, but Ms Moore had said he owed her a full week’s rent for the last few days. She had also asked him, in a text message, to pay for a damaged flyscreen and for a doona cover. In evidence he initially said that he was willing to pay this money, and had asked Ms Moore to give him her BSB and account details so he could transfer it. In later evidence he said that she had refused a bank transfer because she needed the money “on the day”, and explained that he had been willing to pay the rent for his last three days in the house, but had never agreed that he owed Ms Moore $200.
12. On 10 March 2014, Mr Collins said, he had been in the house to which he had moved in Amaroo, a northern suburb of Canberra. He assumed that the front door was closed. He was listening to music with headphones on. Around 5pm, he was sitting on the end of his bed when the bedroom door was opened and Mr Goodwin came in. He was a bit shocked at first, because he had never told Mr Goodwin where he had moved to, or given Mr Goodwin permission to come to his house.
13. Mr Collins summarised what happened next:
So I was sitting there, he come in and like I sort of looked up because I recognised him and I was like hey pretty much, I was like what are you doing? And then he’s lent down, he’s grabbed the laptop and like started pulling that apart. So as he’s done that he’s sort of lifted me up with the equipment because like I was all connected to it and then as he’s done that that’s when he’s sort of like grabbed me, tried to get me to the ground, body slammed me.
14. Mr Collins gave more detailed evidence of the incident, including that Mr Goodwin had grabbed him by the arm and by the neck, that Mr Goodwin had put his leg behind Mr Collins’ legs and pushed on his chest to get him to the ground, and that Mr Collins had finished up on his back with his upper body against a wall. He said:
Then after that he was sort of arguing with me being like what the hell, but before it got to that he was like leaning on me, he was right in my face and like he was pressing down on me and like I couldn’t breathe pretty much. So like he’s trying to talk to me and say what the hell, but you know.
15. Mr Collins said that Mr Goodwin had “pinned” him, and had stayed on top of him for a minute or a minute and a half. After Mr Goodwin got off Mr Collins, leaving him sitting on the ground, Mr Goodwin sat on the bed and:
he was trying to say like what are you doing, you know, Kerryn needed that money type thing and he was trying to talk to me about it.
16. Mr Collins said that the two men talked about the money, including Mr Goodwin’s assertion that Ms Moore had needed the money “for this weekend”. Mr Collins said he had told Ms Moore that he would happily pay the money but “she didn’t want to do it that way” (it was not clear from his evidence whether he said this to Mr Goodwin at the time). He also gave evidence that Ms Moore had told him she needed the money “on the day”, but that he had told her it would be difficult for him to drive to her place in the south of Canberra to pay it in person (because it was raining and he couldn’t afford fuel).
17. Mr Collins gave the following evidence about the removal of the laptop:
Did he say anything to you about any of your property that was in your bedroom, about the laptop?---So like … with the PC he said to me pretty much like there’s nothing stopping me from taking anything I can in this room, because I was like you know you’re not taking my laptop and that was when he said that because my PCs like renting type thing, and he’s like, “Do you need that, do you know I could take that.” He said pretty much he can take anything he wants and there’s nothing I can do about it.
Did he say anything else about the laptop?---So like he said that he’s taking the laptop as collateral for the money.
Did you agree for him to?---No, I never.
Did you give him permission to take the laptop?---No.
Did you ever say anything to him about - - - ?---So like eventually when he was down the stairs leaving like what could I do? I was pretty much like, “Just take it, I was like I was going to call the police anyway like straight away as soon as you leave.” And he’s like, “Go on, do it,” he’s like, “I don’t care.” So like I didn’t exactly grab it back.
So you didn’t give him permission to take the laptop?---No.
Cross-examination
18. Mr Collins said that during the assault he had sustained a scratch on his arm, and also had a sore shoulder. Counsel put to him that he had agreed to Mr Goodwin taking the laptop as “collateral”, and he said:
No. I could only agree because he was threatening me in my own house, so what could I do?
Senior Constable Williams
19. Senior Constable Williams gave evidence of going with another police officer to a house in Amaroo about 5.30 pm on 10 March 2014, following a call to an armed robbery. At the house, he spoke to Mr Collins who “told us what had happened”, and showed them “a little bit of an indication of a red mark on Michael’s arm which indicated an assault may have taken place as well”. This was the only injury he had observed. He said that there was no sign of a disturbance at the premises, but Mr Collins had picked up a keyboard that had been knocked on the floor.
20. Later a search warrant was executed at Ms Moore’s premises, where Ms Moore and Mr Goodwin were present. The transcript of the search warrant was marked as an aide memoire to the exhibited audio recording of the search warrant process, and indeed, with the consent of counsel, was read by her Honour in preference to listening to the audio recording; it did not appear in any of the papers initially provided by the Magistrates Court, but was later retrieved from the Magistrates Court file.
21. Senior Constable Williams gave evidence of the return of the laptop:
And that was found at the house, wasn’t it?---Yes. Yes, it was. In fact, as soon as we knocked on the door Mr Goodwin answered and actually said to us, “This will be what you’re here for,” and he handed us the computer straightaway.
22. Senior Constable Williams said that he had seized mobile phones from both Ms Moore and Mr Goodwin. He had downloaded relevant text messages from Ms Moore’s phone, but had not been able to do so from Mr Goodwin’s phone, which was a more sophisticated phone, and had instead produced screen shots of relevant text messages.
Kerryn (Kerry Anne) Moore
23. Ms Moore was called by the defendant. She said that Mr Collins had stayed at her place for a few months until he found a place to live with his mates. She explained the circumstances in which she asserted that Mr Collins owed her money after he moved out, and described her difficulty in dealing with him about those matters. After that, she said, she did not wish to deal with Mr Collins anymore, because “we were not being nice to each other”, and she had asked Mr Goodwin to deal with him, because Mr Goodwin was a calmer person.
24. Ms Moore described sitting in the car outside Mr Collins’ new place while Mr Goodwin went inside to ask for the money. After Mr Goodwin came out with the laptop, he told her that he and Mr Collins had made an agreement “that [Mr Goodwin] would hold on to it until we got the money”. There had been no other contact with Mr Collins except a message to him to organise a meeting to swap the money for the laptop.
25. Ms Moore also said that she was worried that Mr Collins would come back from Cootamundra with his brothers, because she had heard stories about one of his brothers, who had “been in a lot of trouble with the law”.
26. In cross-examination, Ms Moore agreed that she had never had consent from her landlord to have Mr Collins living in her house, that she had been receiving a government benefit with an “income qualification”, that she would still have been “under it” if she had declared the rent being paid by Mr Collins, but that she had not declared it because it “was just easier that way”. She denied that her wish to receive the rent in cash was related to the benefit she was receiving.
27. Ms Moore said that some of the money she wanted from Mr Collins related to three flyscreens she said he had damaged, but admitted that at the time Mr Goodwin took Mr Collins’ laptop she had not obtained a quote for repair of the flyscreens, and had instead guessed a price after talking to other people.
28. Ms Moore conceded that she had gone to Mr Collins’ house “unannounced without contacting him”, despite knowing his phone number. She said that Mr Collins had agreed he owed her money, but that they had not agreed on the amount. Because Mr Goodwin told her that Mr Collins had agreed to him taking the laptop, she had not told Mr Goodwin he should return it to Mr Collins.
29. Ms Moore agreed that Mr Goodwin had sent her a text message:
Send Michel [sic] a sms saying you can pick the money up tonight. Don’t say anything about the laptop.
30. She had never talked to Mr Goodwin about why he hadn’t wanted her to mention the laptop.
31. Ms Moore said that when Mr Goodwin came out of Mr Collins’ house with the laptop, he was calm, and she “couldn’t imagine there being anything bad that had happened in there”. She agreed that having worked in the security industry he had had a bit of experience in trying to stay calm under pressure, but disputed that he could have regained his composure “that quickly”. Asked whether Mr Goodwin was an angry guy, she said “He is a calm guy. But he’s a good person”.
32. In re-examination Ms Moore said that having worked at a bank, she didn’t give her bank details to anyone, that she believed cash “would be more secure” for her, and that she understood that the laptop was to be collateral for a debt to be paid; her reply, “Yes. That was agreed”, might have referred to the collateral arrangement or the debt itself, and was not clarified.
The defendant
Evidence in chief
33. Mr Goodwin gave evidence that when he went to Mr Collins’ house and found the door wide open, he knocked and called out Mr Collins’ name. There was no answer, so he walked into the house, and after finding no-one on the ground floor, he went upstairs, where he found Mr Collins in a bedroom. Mr Collins asked him what he was doing there, and then moved over, allowing Mr Goodwin to sit on the bed.
34. Mr Goodwin said that when he walked into the bedroom, Mr Collins had been “a bit shocked”, apparently because he had not told Ms Moore or Mr Goodwin where he had moved to. Mr Goodwin said:
the fact that he didn’t say where he moved was so we couldn’t find out where he was, so he didn’t have to pay the money back.
35. The two men began talking about the money that Mr Collins owed Ms Moore. Mr Goodwin said that he told Mr Collins that Ms Moore “only wants her $200”, which Mr Goodwin claimed was a lot less than Mr Collins actually owed her. Mr Goodwin then got up off the bed and picked up the laptop. He gave the following evidence in chief:
So when you say you came and you sat on the bed, did you move from that position at any point, or did you remain on the bed?---I got up and then that was when I picked up the laptop.
Okay?---I’m going to need something as collateral.
Did you say anything further to Mr Collins?---I said, “Look, I’m not going to sell it, you’ll get it back.” And then told him that I’m not going to take the charger or anything. It shows that I’m not going to steal – so I’m not stealing the laptop, he’s going to get it back. All I want is the $200.
…
What did you intend to do with the laptop?---I was always intending to give it back. It was only just to get the money. That’s all.
What did you do next after you picked up the laptop?---I walked out.
36. Subsequently, a meeting with Mr Collins at Ms Moore’s place was apparently arranged by Ms Moore by text message, but instead of Mr Collins the police arrived. Mr Goodwin said “You must be here for the laptop” and handed it to the police.
37. Mr Goodwin also gave evidence suggesting that he believed that, if Mr Collins “tried to get out of paying”, Mr Goodwin might at some point have had to defend himself against Mr Collins’ brothers.
Cross-examination
38. Mr Goodwin conceded that no-one had given him permission to enter Mr Collins’ house.
39. Mr Goodwin said that they had only gone to Mr Collins’ house “after he’d stopped contact”. He knew that Mr Collins had offered to pay by electronic transfer, but that Ms Moore had refused to give him her bank account details. Mr Goodwin conceded that there had been no agreement about the exact amount owed, which was why Ms Moore had specified an amount less than the actual debt that was asserted.
40. Mr Goodwin denied that in the bedroom he had picked up Mr Collins or his equipment, and denied putting one of his legs behind Mr Collins’ legs “to facilitate throwing him on the ground”. He conceded that he was a bouncer with martial arts training, but denied throwing Mr Collins to the ground or pinning him down, denied going round to “rough him up”, and denied “pinning” Mr Collins and telling him to “cough up the money”.
41. Mr Goodwin agreed that he took the laptop as “collateral”, conceded that it wasn’t owned by him or Ms Moore and that he had no right to it, but also said that Mr Collins had said “Just take it”. Mr Goodwin also said that the laptop was “a swap”, but agreed that there was no connection between the amount of the debt and the laptop, and repeated his reference to “collateral”. He denied suggesting to Mr Collins that he knew people who lived in the area, or that he would be roughed up if he didn’t pay up, but sought to argue the point: “If I was considerably larger than him, why would I need people [to rough him up]?”
42. Mr Goodwin gave the following evidence about giving the laptop to the police:
And you do that because you know you’re not supposed to have it?---I wasn’t hiding it. I wasn’t trying to sell it. That afternoon was going to be the get the $200 for the laptop. That’s why it was sitting on the table.
Sorry, that doesn’t answer the question. You gave it straight to them, because you knew you weren’t supposed to have the laptop, that you had not right to it?---It was obvious what he’d done.
Okay. But you knew that you weren’t supposed to have the laptop, and that’s why you gave it to the police after they came in on the search warrant?---Yes.
43. Mr Goodwin was also asked about what he had told police about Mr Collins’ indication that he was ready to pay the money back. He gave the following evidence:
You told police that Michael had text you saying that you were going to go round and get the money back at 8 o’clock that night. That’s the night of the 12th?---Pardon?
So something else you said to police at the search warrant was that Michael had told you to come round at 8 o’clock?---Yes. It was supposed to be earlier and then he said he was in Cootamundra and just come round later (indistinct) - - -
Okay. Have you seen the text message that Ms Moore sent to Mr Collins, asking when he would be available?---It was some time ago now.
Have you seen the one that he sent back?---I can’t recall what he’d sent back.
Okay. What he says is – and this is, again, on page 6 - - - ?---Something about being in Cootamundra, I think it was.
“I won’t be home until 8.00. I’m coming from Coota.” But you tell police in the search warrant that he has agreed to pay the money at 8 pm, but he hasn’t actually done that, has he? He has just said that that’s when he’ll be home. Do you agree that’s right?---I’d just used that time as it would be roughly around then.
44. Mr Goodwin said that he originally went to Mr Collins’ place to get the $200, and he hadn’t planned at that stage to take the laptop.
Re-examination
45. After confirming that he believed that Mr Collins owed Ms Moore a debt of at least $200, and that Ms Moore had asked him to help her get the money, Mr Goodwin said:
You arranged to swap the laptop for the money owed. Is that right?---Yes.
Did Mr Collins agree to pay the $200?---Yes, he did, after his payday.
When you took the laptop, did you believe that you could take it as collateral for a debt owed?---I just thought that I could – you know, I could take it and then – it wasn’t something that I was going to keep and then just give it back to him - - -
The offences – legislation
46. The offence of burglary is created by section 311 of the Criminal Code 2002 (ACT), as follows:
311 Burglary
(1) A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a) to commit theft of any property in the building; or
(b) to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
(c) to commit an offence in the building that—
(i) involves causing damage to property; and
(ii) is punishable by imprisonment for 5 years or longer.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
(2) In subsection (1)(b) and (c), offence includes an offence against a Commonwealth law.
(3) Absolute liability applies to subsection (1)(c)(ii).
(4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—
(a) for a purpose that is not the person’s intended purpose; or
(b) because of fraud, misrepresentation or someone else’s mistake.
(5) In this section:
building includes the following:
(a) a part of any building;
(b) a mobile home or caravan;
(c) a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.
47. The offence of theft is created by s 308 of the Criminal Code.
308 Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
Note For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372.
48. Aspects of the concept of theft are defined or expanded in ss 300, 301, 304 and 306 of the Criminal Code.
49. Taking account of the Criminal Code definitions of terms used in the description of theft, the concept of theft is that a person commits theft if the person appropriates property (that is, assumes the rights of an owner to ownership, possession or control of property (s 304)):
(a)dishonestly according to the standards of ordinary people, and knowing that it is dishonest according to the standards of ordinary people (s 300); and
(b)without the consent of a person to whom the property belongs (s 304), being a person having possession or control of the property, or having any proprietary right or interest in the property (s 301); and
(c)with the intention to permanently deprive the other person of the property, which includes appropriating property belonging to the other person without meaning the other person to permanently lose the property but intending to treat the property as one’s own to dispose of regardless of the other person’s rights (s 306).
50. Finally, s 38 of the Criminal Code deals with the defence of claim of right, as follows:
38 Claim of right
(1) A person is not criminally responsible for an offence that has a physical element relating to property if—
(a)when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)the existence of the right would negate a fault element for any physical element of the offence.
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
(3) This section does not negate criminal responsibility for an offence relating to the use of force against a person.
The decision
51. Her Honour reserved judgment at about 4:00 pm on the day of the appeal hearing, and delivered a judgment at about 9:30 am the following day. Immediately before she did so, counsel for Mr Goodwin drew her Honour’s attention to the “Liberato” direction and handed up material relating to the direction from the NSW Criminal Trials Bench Book. Her Honour accepted the material and then said she had had regard to its contents.
52. Her Honour outlined the evidence of events leading up to Mr Goodwin’s visit to the Amaroo house. She accepted Mr Goodwin’s evidence that he found the front door open and that no-one answered when he knocked, and noted that it was common ground that Mr Collins was surprised when Mr Goodwin entered his room.
53. Her Honour then outlined the evidence given by Mr Collins, by Mr Goodwin, and by Senior Constable Williams about events inside the house. She said:
Mr Collins’ and the defendant’s version of events in the bedroom are entirely opposite on the question of the use of physical force, although in some respects they correlate, such as to discussion about payment of the money to Ms Moore. It is not sufficient that the court simply prefer one version of events over the other. The prosecution must establish the version of events which it relies on to make out the offence beyond reasonable doubt.
Both witnesses gave evidence in a straightforward manner with no obvious embellishment. However, I am satisfied of Mr Collins’ version beyond reasonable doubt for the following reasons: his evidence was plausible, consistent and unshaken. If it were a concoction designed to cause trouble for the defendant, which would appear to be the only reason he might lie about the event, it was a very modest one. It would have been very easy to attribute more substantial threats or behaviour to the defendant if Mr Collins’ story were untrue.
Mr Collins called the police immediately after the defendant left, consistent with the evidence of Senior Constable Williams, who attended the premises at about 5.30 pm, leaving little opportunity for concoction. Mr Collins complained of a sore shoulder, but also of the scratch on his arm which he attributed to the defendant’s actions. Senior Constable Williams corroborated that he saw a red mark on Mr Collins’ arm and that he was told on his attendance that it was the result of an assault by the defendant.
Mr Collins was not challenged as to the fact that he had sustained this minor injury at the defendant’s hand. Finally, Mr Collins allowed the defendant to remove his MacBook Pro laptop computer, a valuable and personal item, particularly to a person of limited means. It is implausible that he would have done so as the result of a genuinely consensual arrangement as opposed to responding to fear and intimidation.
54. She then turned to the legal issues, specifically whether there had been a burglary or theft.
55. In relation to the burglary, her Honour found:
(a)that the premises was a building;
(b)that Mr Goodwin had entered the building as a trespasser (relying on the fact that Mr Collins had no established friendship with Mr Goodwin and that his relationship with Ms Moore had soured, and on Mr Goodwin’s evidence that he had not been given permission to enter the house); and
(c)that, while remaining in the building as a trespasser, Mr Goodwin formed an intention to commit an offence which involved causing or threatening harm to anyone in the building, which he then gave effect to by causing harm to Mr Collins.
56. In relation to the theft, her Honour made the following findings:
(a)That Mr Goodwin took the laptop belonging to Mr Collins.
(b)That despite Mr Collins having said “Just take it”, there was no consent by Mr Collins, and that this was borne out by Mr Goodwin’s concession in cross-examination that he was aware that he had no right to take the laptop and had no right to have it.
(c)That Mr Goodwin had appropriated the property, in that he took possession or control of it without consent and on the basis that its return was conditional upon Mr Collins complying with Mr Goodwin’s demand that he pay an amount of money.
(d)That Mr Goodwin in appropriating the laptop had the intention to permanently deprive Mr Collins of it, as defined in s 306 of the Criminal Code: specifically, her Honour found that although Mr Goodwin may not have intended Mr Collins to permanently lose the laptop, he intended to treat the property as his own to dispose of regardless of Mr Collins’ rights (s 306(1)).
(e)That ordinary people would consider it dishonest to take an item belonging to another person, without that person’s consent, as some kind of security for the payment of a disputed debt.
(f)That Mr Goodwin knew that ordinary people would consider his behaviour dishonest (relying on Mr Goodwin’s evidence that he knew he had no right to the property, and on the recognition that he was not entitled to have the laptop that could be inferred from his comment to the police who had come to his home, namely “you must be here for this [laptop]”).
(g)Finally, that Mr Goodwin’s defence of claim of right under of the Criminal Code had been disproved by the prosecution beyond reasonable doubt.
57. Accordingly, her Honour found that the charge of theft was made out.
The appeal
Ground (a): when was intent formed?
(a) Her Honour erred in finding that the defendant’s intent was formed whilst remaining on the premises as opposed to his intent at the time of entry to the premises;
58. The charge as drafted by police alleged that Mr Goodwin had entered Mr Collins’ house “with intent to commit an offence [involving] a threat to cause harm”. Her Honour found that Mr Goodwin had formed a relevant intention after entering the building, and that the intention was to commit an offence involving causing or threatening harm to anyone in the building.
59. On its face this appeal ground could be a challenge to her Honour’s finding of fact or a challenge to whether that finding was adequate to support the verdict, having regard to the form of the charge. It seemed to be intended as the latter, but in written submissions, counsel for Mr Goodwin conceded that appellate intervention would not be justified purely by reference to her Honour’s conclusion that the intent necessary to make out the burglary charge was formed after Mr Goodwin had entered the premises. Rather, he said, it was simply an example of “the unsatisfactory manner in which the charges were considered”, and could usefully be referred to in determining appeal ground (e).
60. There was some further discussion of the elements of the burglary charge in oral submissions, during which counsel for Mr Goodwin said that the error asserted in this appeal ground could not have given rise to a miscarriage of justice, because although there was some discrepancy in terminology between her Honour’s finding and the description of the charge on the bench sheet, Mr Goodwin had been found guilty of “the same offence under the same section”.
61. It seems that in the Magistrates Court there had been some discussion about the form of the burglary charge, in particular the nature of the intent alleged (being to commit an offence that involves a threat to cause harm to anyone in the building). The prosecutor had indicated that, if her Honour was inclined to find a burglary proven on the basis of a different intent (being to commit theft in the building), he would seek leave to amend the particulars before the matter was finalised. In the end that amendment was not required, but her Honour’s finding that the intent charged was formed not before Mr Goodwin entered the building (as was charged) but only while he remained in the building arguably raised a similar issue, although this was not raised after her Honour delivered her judgment.
62. At the appeal hearing, counsel for the Crown submitted that if leave to amend the particulars in that respect had been sought, it could have been given under s 28 of the Magistrates Court Act 1930 (ACT). He noted that there would have been no injustice to the defendant from any such amendment, since his defence was that at no stage had he had the relevant intent.
63. After that discussion, leave was given to the appellant to make further submissions in relation to the form of the charge and the nature of the finding, but when the hearing resumed some weeks later, counsel for Mr Goodwin indicated that no further submissions would be made in relation to this appeal ground as such.
Grounds (b) and (c): intention to permanently deprive and dishonesty
(b) Her Honour erred in finding that the defendant intended to treat or dispose of the property as his own, and therefore erred in finding the offence of theft was proved.
(c) Her Honour erred in finding that the defendant acted dishonestly.
64. Mr Goodwin submitted that since these two grounds relate only to the theft charge (CC2014/8598), they are usefully considered together.
Intention to permanently deprive
65. Mr Goodwin challenges her Honour’s conclusions that, despite Mr Goodwin not meaning for Mr Collins to “permanently lose” his laptop, Mr Goodwin had intended to “treat or dispose of the property as his own”. In support of that finding, her Honour pointed to Mr Goodwin’s evidence that he had taken the laptop “as collateral”, that he did not intend to sell or break it, that he would return it to Mr Collins when Mr Collins paid the amount demanded from him by Ms Moore, but that the laptop would not have been returned until the money was paid. That is, Mr Goodwin intended that the laptop was not to be returned to Mr Collins “unless he complied with the demand made of him”, and her Honour concluded that this satisfied s 306(1), specifically that Mr Goodwin intended “to treat the property as [Mr Goodwin’s] own to dispose of regardless of [Mr Collins’] rights”. In doing so, her Honour referred to my comments in R v Baxter and Brading [2012] ACTSC 82; 263 FLR 160 (Baxter) at [69]-[91] and [109].
66. Mr Goodwin’s evidence that the laptop would not have been returned unless and until the disputed debt was paid demonstrates that Mr Goodwin asserted a right to determine the future of Mr Collins’ laptop that was inconsistent with Mr Collins’ right to possession and control of the laptop.
67. In Baxter I also noted (at [107(c)]) that the complainant would not necessarily have been able to meet the condition imposed by the accused, being the return of property that she believed the complainant had stolen but that might not have been stolen by him or, even if stolen by him, might no longer be available for him to retrieve.
68. In this case, there was a disagreement about the amount of the debt: Mr Collins says that $93 was all that he owed Ms Moore, Mr Goodwin demanded $200 from Mr Collins, and Ms Moore, who claimed to be owed the debt, says it was at least $200 and possibly more. This also raises the possibility that Mr Collins would not have been able to satisfy the condition imposed on him by Mr Goodwin for the return of the laptop, or would only have been able to satisfy it by paying more than any amount genuinely owed by him to Ms Moore.
69. The Chief Magistrate also referred to R v Dardovska [2003] VSCA 4; 6 VR 628, in which the Victorian Court of Appeal (Charles JA at [24], with whom Phillips CJ and O’Bryan AJA agreed) identified a common law extension of the concept of an intention to permanently deprive referred to as the “ransom principle”. That principle applied where “a person took property from the owner intending to return the property only if the owner paid for it”.
70. The right asserted by Mr Goodwin to determine the future of the laptop, especially in conjunction with the nature of the condition identified for the return of the laptop, was sufficient to establish an intent on Mr Goodwin’s part to treat the property as his own “to dispose of regardless of [Mr Collins’] rights” as provided by s 306 of the Criminal Code.
Dishonesty
71. As to whether Mr Goodwin had acted dishonestly, her Honour quoted my comments in Baxter at [109] that:
While ordinary people might not regard it as dishonest for a person to ask for the return of his or her property, I am satisfied that they would regard it as dishonest for a person to take an item belonging to another person believed to have the property, without that other person’s consent, as some kind of security for the return of that property, especially if the person’s intention in doing so was to disregard the rights of the other person.
72. Baxter involved an accused who had taken items from the complainant by way of security for the return of property that she believed had been stolen by the complainant. In the current case the analysis is slightly different, being that her Honour had found that Mr Goodwin had taken Mr Collins’ property as “collateral” for the payment of a disputed debt of at least $93, and assessed by Mr Goodwin as $200, that was said to be owed to Mr Goodwin’s then partner.
73. In finding that ordinary people would consider it dishonest to take an item belonging to another person, without that person’s consent, as some kind of security for the payment of a disputed debt, her Honour referred to the laptop as “an item of significant value” and noted that “the debt was for what I infer was significantly lesser value than the item taken”.
74. In Baxter, the items taken were largely of sentimental or practical value to the complainant and of no value to the accused, whereas the items that the offender in that case sought to recover might have had significant monetary value (although there was no evidence to that effect).
75. However, an apparent disproportion between the value of the property taken as “collateral” and the amount of the debt sought to be recovered is not in my view a necessary factor in assessing whether the taking was dishonest (although it may well have been relevant in this case in assessing the nature of any alleged “consent” by Mr Collins to the taking). For that reason, her Honour’s assessment that there was a significant disproportion between the value of the laptop and the amount of the asserted debt, even if it had been incorrect, would not have rendered her conclusion about dishonesty erroneous.
76. In oral submissions counsel for Mr Goodwin argued that the evidence given by Mr Goodwin in cross-examination about his taking of the laptop might have indicated a change between his belief at the time he took the laptop and his belief at the time he was being cross-examined. This argument depended to some extent on the use of different tenses at different points when the relevant questions were asked (some of which might have reflected inadequate transcribing). Counsel suggested that Mr Goodwin’s acceptance in court that when he took the laptop he had no right to do so did not establish that when he took the laptop he knew he had no right to do so. Mr Goodwin was asked about when he took the laptop:
You understood at that point in time, didn’t you, that you had no right to take that laptop?---I was taking it as collateral.
But you had no right to it, did you?---The only reason I took it was for collateral.
Okay. It’s not owned by you?---No, it’s not owned by me.
It’s not owned by Kerryn?---No.
So you’ve got no right to that property, did you? No.
77. Despite several opportunities, Mr Goodwin did not at any point go beyond saying he was taking the laptop as “collateral” by, for instance, asserting a belief that he had a right to take the laptop as collateral to enforce the debt to Ms Moore. The ungrammatical mixture of tenses in the last question quoted (if that is in fact how the question was asked) may not have been helpful to the clarity of the evidence, but the fact is that at no point did Mr Goodwin give evidence of an actual belief that taking property as collateral (either without consent or only with consent extracted under pressure) was an honest approach to enforcing a debt. Nor did his evidence in chief help in this respect:
So when you say you came and you sat on the bed, did you move from that position at any point, or did you remain on the bed?---I got up and then that was when I picked up the laptop.
Okay?---I’m going to need something as collateral.
Did you say anything further to Mr Collins?---I said “Look, I’m not going to sell it. You’ll get it back.” And then told him that I’m not going to take the charger or anything. It shows that I’m not going to steal – so I’m not stealing the laptop, he’s going to get it back. All I want is the $200.
78. It is clear that Mr Goodwin realised that his actions were, at the least, susceptible to misinterpretation. His repeated assertions that he was not stealing the laptop suggest to me not an honest (if mistaken) belief in the legality of his actions but a concern that his actions were not legally defensible. This interpretation was borne out by his reaction when the police came to his house.
79. Neither Mr Goodwin’s evidence in general, nor the mixed-up tenses in the evidence about his beliefs about collateral in particular, establish any belief, or any basis for inferring any belief, in the honesty of his actions in taking the laptop.
Claim of right
80. As to her Honour’s consideration of the claim of right, her Honour said that Mr Goodwin had raised the defence of claim of right, and that such an issue, once raised, must be disproved by the prosecution beyond reasonable doubt. She referred to R v Williams [1988] 1 Qd R 289 in which Macrossan J said at 295:
An honest claim of right arises when a person honestly believes himself to be entitled to do what he is doing … the belief need only be honest and need not be reasonable.
81. Her Honour went on to note, referring to R v Bernhard [1938] 2 KB 264 at 270, that:
…the belief must relate to a legal entitlement to do what has been done rather than a moral one.
82. She accepted:
(a)that Mr Goodwin genuinely believed that there was an amount of money owing to Ms Moore and that the debt was larger than the amount that Mr Collins was apparently willing to pay; and
(b)that Mr Goodwin had taken the laptop as “collateral” for the payment of the debt.
83. However, her Honour noted that Mr Goodwin had not identified any “legal basis, valid or otherwise, to support his view that he was legally entitled to take the laptop as collateral”. Rather, her Honour concluded, Mr Goodwin knew that he had no right to the property, and what she described as his “sense of moral vindication” did not amount to a claim of right that could provide a defence.
84. On the appeal, counsel for the Crown referred to Macleod v The Queen [2003] HCA 24; 214 CLR 230 in which the plurality (Gleeson CJ, Gummow and Hayne JJ) said:
39. … Rather, in this case, the notion of "claim of right" is a manifestation of the general principle identified by Dawson J in Walden v Hensler, namely that it is:
"always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence".
Hence the statement by Glanville Williams:
"The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it."
40. The submissions for the appellant in this case stopped short of relying upon a distinct and wider principle identified by Dawson J in Walden as being that:
“the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act innocent: R v Tolson. The generality of that proposition may best be seen at common law in its application to statutory offences of strict liability which, although containing no requirement of intent, or mens rea as it is ordinarily understood, are nevertheless presumed to contain the requirement of a lesser mental element which may be expressed negatively as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence. The existence of a defence based upon honest and reasonable mistake in the context of statutory offences has recently been discussed in He Kaw Teh v The Queen.”
41. Against that background, several points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden:
"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs."
42. Secondly, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence that, although an honest claim "may be both unreasonable and unfounded", if it is of that quality then the claim "is less likely to be believed or, more correctly, to engender a reasonable doubt".
43. Thirdly, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.
(citations omitted)
85. While counsel for Mr Goodwin is correct in saying that a defence of claim of right under s 38, if raised, must be disproved by the prosecution beyond reasonable doubt, this does not mean that once the words “claim of right” are mentioned in court, the prosecution must itself provide the evidence to rebut any such claim. Rather, if the evidence appears to raise the existence of a claim of right (that is, that the defendant believed he had a proprietary or possessory right to the property), thus satisfying the evidential burden referred to in Macleod v R at [39] and quoted at [84] above, then the claim provides a defence unless it is excluded, beyond reasonable doubt, by evidence before the court.
86. As noted by Macrossan J and quoted at [80] above, the belief founding a claim of right must be a belief in a legal entitlement rather than a moral one. In this case, any belief, however honestly held by Mr Goodwin, that he had a legal right to take Mr Collins’ laptop, without consent, as “collateral”, may have been based on excessive viewing of gangster movies, but it clearly had no basis in the law, and nor did Mr Goodwin attempt to suggest that it did.
87. Her Honour’s conclusion about Mr Goodwin’s beliefs about his actions was, in effect, that the evidence before her did not raise any claim of right because it did not identify any belief by Mr Goodwin (however mistaken) about the existence of any kind of legal entitlement to take Mr Collins’ laptop. Her Honour’s statement that the asserted claim of right had been disproved by the prosecution beyond reasonable doubt may not have been the most appropriate way to explain that the evidence did not even raise an claim of the required kind, but there was nothing erroneous about her Honour’s assessment of whether the relevant evidence could support a claim of right defence.
Whether Mr Collins intended to pay the debt
88. Both counsel pointed to matters that could have raised a doubt about whether Mr Collins had any intention of repaying any debt he owed to Ms Moore, these being:
(a)the ongoing dispute about the amount of the debt;
(b)the deterioration in the relationship between Ms Moore and Mr Collins as indicated in their text message exchanges;
(c)that while he was living in Ms Moore’s house, he always seemed to be short of money, and had apparently failed to pay some other creditors.
89. Mr Collins’ failure to give his new address to Ms Moore was also mentioned in this context.
90. However, each counsel placed different significance on this doubt about Mr Collins’ intentions.
91. Counsel for the Crown said that Mr Goodwin’s belief that Mr Collins did not intend to pay the debt to Ms Moore was directly relevant to whether Mr Goodwin had an intention to permanently deprive Mr Collins of the laptop he took, in that it underlined the conditional nature of any asserted intention on Mr Goodwin’s part to return the laptop.
92. Counsel for Mr Goodwin said that the belief that Mr Collins was unlikely to pay his debt meant that the actions Mr Goodwin might take would be different from the appropriate actions that he might have taken in attempting to enforce a debt against a large corporation, or at least that the relevant belief “might go to any inferences to be drawn as to someone’s state of mind”. In attempting to explain what those inferences might be, counsel said that “in the circumstances of [Mr Collins’] behaviour [Mr Goodwin] could have genuinely believed that it was not dishonest [to take] the computer as what he referred to as collateral”.
93. The difficulty for Mr Goodwin is that there was evidence before her Honour, including from Mr Goodwin himself, that he knew he had no right to take the laptop (at [41] and [83] above), as well as evidence from Ms Moore that could have been taken to suggest at least that Mr Goodwin was not comfortable about having taken the laptop (at [29] above). Furthermore, even if Mr Goodwin had genuinely believed that it was not dishonest to take the laptop as collateral, there was no evidence suggesting that he believed he had a legal entitlement to take it such as to found a claim of right.
Conclusions
94. I am satisfied that it was open to her Honour to conclude that Mr Goodwin’s attitude to Mr Collins’ laptop and its future amounted to an intention to permanently deprive Mr Collins of the property, and that the property was taken dishonestly (including because there was no claim of right available).
Ground (d): the Liberato direction
(d) Her Honour erred in applying the principle stated by Brennan J in Liberato v the Queen (1985) 159 CLR 507 at 515.
95. In Liberato v The Queen (1985) 159 CLR 507, Brennan J said at 515:
11. When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification".
96. Counsel for Mr Goodwin says that her Honour simply preferred Mr Collins’ evidence rather than complying with the Liberato requirements. In a trial of this matter before a jury, a Liberato direction in relation to the burglary charge could have been along the following lines:
It is the Crown who must prove the guilt of the accused beyond reasonable doubt. It is not up to the accused to prove his innocence. The Crown has to prove beyond reasonable doubt that the acts alleged by the complainant took place, and he has given evidence before you that they did. The accused has denied that events took place as claimed by the complainant, and has given in evidence before you a different version of the events at the house occupied by the complainant.
The question is not about which of the two you believe. Rather, the position is this:
·If you believe what the accused said in his evidence at trial, then you will find him not guilty of the charge concerned.
·If you are unsure about the accused’s evidence, if you have difficulty in accepting it, but you think it might be true, then you must also find him not guilty of the charge concerned.
·If you do not believe the accused’s evidence, then you must simply put it to one side, and consider whether, on the basis of evidence that you do accept, the Crown has proved beyond reasonable doubt that the accused committed the offence with which he has been charged.
·That is, you cannot find the accused guilty just because you do not accept his evidence – even in that situation, you may only find him guilty if you are satisfied that his guilt has been proved, beyond reasonable doubt, by the evidence that you do accept.
97. In order to comply with this direction, her Honour would have needed:
(a)to disbelieve Mr Goodwin’s evidence where it conflicted with Mr Collins’ evidence and,
(b)having set aside that evidence of Mr Goodwin’s, to be satisfied beyond reasonable doubt, by the evidence that she did believe, that events unfolded as described by Mr Collins.
98. What her Honour said is quoted at [53] above.
99. It is true that her Honour did not recite the various stages of the Liberato direction, but she did remind herself that it was not sufficient that the court simply preferred one witness’s version over that of another, and it was also clear that she accepted Mr Collins’ evidence as true beyond reasonable doubt.
The written submission made on behalf of Mr Goodwin was that:
… it is in no way clear that her Honour has done anything [except prefer one witness’s version over that of another]. Her Honour describes both witnesses as having given “evidence in a straightforward manner with no obvious embellishment”. Moreover, it may equally be said that the appellant’s evidence was “plausible, consistent and unshaken”. A similar submission was made to her Honour.
In oral submissions, counsel expanded on this complaint at some length, while noting that his submissions were also relevant to appeal ground (e).
One aspect of Mr Goodwin’s complaint in this appeal ground seems to be, in effect, that her Honour went straight to the end of the process, expressing her satisfaction that Mr Goodwin’s guilt had been proved, beyond reasonable doubt, by the evidence that she did accept, without providing an adequate explanation for rejecting Mr Goodwin’s evidence as not sufficient even to raise a reasonable doubt.
Furthermore, counsel said, the reasons that her Honour did give for rejecting parts of Mr Goodwin’s evidence, and accepting Mr Collins’ evidence including where it was inconsistent with Mr Goodwin’s evidence, were not adequate.
Failure to give reasons
These two complaints are somewhat contradictory. It is clear from the second complaint that reasons were given: her Honour’s summary was in fact the introduction to a series of reasons for that conclusion which were stated by reference to the content of the relevant evidence rather than by reference to how it was given (at [105]–[129] below). That is, the claim of a failure to give reasons cannot be made out.
Giving of inadequate reasons
Counsel for Mr Goodwin criticised her Honour’s reasons on several grounds, which can be summarised as:
(a)That each of the reasons given by her Honour for accepting the evidence of Mr Collins where it conflicted with that of Mr Goodwin, taken by itself, would not have been an adequate reason for her Honour accepting Mr Collins’ evidence beyond reasonable doubt.
(b)That her Honour assumed that Mr Collins had complained to police but that there was no evidence of this complaint.
(c)That in the Magistrates Court, Mr Goodwin was deprived of the opportunity to make a particular submission to the Magistrate, because her Honour did not indicate before she gave her reasons that she had inferred that Mr Collins’ laptop was worth substantially more than the estimated debt.
Reasons for accepting Mr Collins’ evidence
Counsel for Mr Goodwin criticised her Honour’s reasons for accepting Mr Collins’ evidence on several ground. First, he said:
(a)that her Honour’s assessment of the witnesses’ demeanour did not distinguish between the two witnesses;
(b)that her finding that Mr Collins’ evidence was “plausible, consistent and unshaken” could equally have been made about Mr Goodwin; and
(c)that she gave no reason for ignoring or rejecting Mr Goodwin’s evidence.
Counsel also criticised as inadequate what he saw as her Honour’s expressed reason for finding that Mr Collins’ evidence was plausible, which was:
If it were a concoction designed to cause trouble for the defendant, which would appear to be the only reason he might lie about the event, it was a very modest one.
Furthermore, counsel said, her Honour’s suggestion that causing trouble for Mr Goodwin was the only reason why Mr Collins would have lied seemed to reverse the onus of proof.
Counsel also challenged the validity of her Honour’s conclusion that it was implausible that Mr Collins would freely allow his laptop (which she described as a valuable and personal item) to be taken rather than, as he had said, allowing it to be taken under some sort of threat or compulsion. In this context, counsel for Mr Goodwin said, correctly, that there was no evidence of the value of the laptop and therefore no explicit evidence that it was worth more than the estimated debt, and that there was evidence from Mr Goodwin that he had offered to take a different laptop if this was more convenient to Mr Collins.
Demeanour and plausibility: It may well be that no single one of the particular comments made by her Honour and criticised by counsel for Mr Goodwin, standing alone, would have justified rejection of Mr Goodwin’s evidence, thus leaving it open to her Honour to accept Mr Collins’ evidence beyond reasonable doubt, where the evidence given by the two witnesses was inconsistent. However, the process of assessing whether a witness can be believed, where conflicting evidence is given by two apparently credible witnesses, rarely involves a single “killer point” that leaves no option but to accept the evidence of one witness and reject that of another. Faced with two witnesses who had, in her Honour’s view, both given their evidence “in a straightforward manner with no obvious embellishment”, her Honour was entitled to consider other aspects of that evidence, and plausibility was a legitimate test to apply in that consideration.
Reversal of onus of proof: I do not entirely understand the submission that her Honour, in concluding that causing trouble for Mr Goodwin was the only reason why Mr Collins would have lied, had reversed the onus of proof. Perhaps counsel intended to suggest that her Honour, in assessing the credibility of witnesses, had incorrectly assumed that Mr Collins was telling the truth because his only reason for lying would have been to cause trouble for Mr Goodwin and there was no evidence suggesting that he had any such intention or even any motive for such an intention.
If her Honour had assumed that Mr Collins’ evidence had to be believed unless Mr Goodwin proved that he had a reason to lie, then she would have fallen into error. However, I cannot see anything in her Honour’s brief comment suggesting such a fundamentally erroneous belief about the onus and burden of proof in criminal matters.
Rather, her Honour’s comment seemed to be a parenthetical and probably unnecessary addition to her direct comment about the possibility that Mr Collins’ story had been concocted, to the effect that, if so, it was a fairly half-hearted concoction although a more dramatic concoction would have been easy (and, parenthetically, a more dramatic concoction would have made more sense of the only reason she could think of for Mr Collins to concoct a story, being to cause trouble for Mr Goodwin).
In oral submissions, counsel for Mr Goodwin made the rather odd suggestion that, when he spoke to police initially, Mr Collins might have had a different reason to lie which her Honour had overlooked, being that he had lied in the hope of regaining possession of his laptop. This possibility was not raised with Mr Collins in cross-examination; it was not raised in submissions to her Honour; and it does not seem to be relevant to any issue in the case.
In referring to why Mr Collins might have concocted his story, her Honour has obviously adverted to the possibility that he might in fact have been lying, but she has not taken the further step of rejecting the only reason she can think of for such lying. To the contrary, she has made a general statement to the effect that if Mr Collins had a reason to lie, he could have come up with a more dramatic lie; that conclusion would have been equally relevant to the reason to lie suggested by counsel before me. Her Honour did not imply that it was up to the defendant to explain why Mr Collins might have lied, only that Mr Collins’ story did not appear to involve any obvious exaggeration that might have caused her to doubt it.
A valuable and personal item: As to whether it was implausible that Mr Collins would have freely allowed Mr Goodwin to take his laptop rather than, as he had said, allowing it to be taken under some sort of threat or compulsion, I note that her Honour’s description of the laptop as “as a valuable and personal item” need not have depended only on the monetary value of the laptop, and therefore is not invalidated by the absence of evidence of that monetary value.
While computing hardware in general may lose much of its re-sale value quite quickly after purchase, the actual (not necessarily monetary) value of the item to its owner may be found in its software and, often more significantly, in the material collected or created by the owner and stored in the item. In short, the real value of the laptop to Mr Collins may well have outweighed any kind of monetary value that either he or Mr Goodwin could have realised by selling the laptop, and that possible non-monetary value was appropriately recognised in her Honour’s reference to the laptop as a “personal item”.
I consider that the nature and use of laptops, and the fact that the important contents of laptops are often personal to the owner or user, are properly treated as “matters of common knowledge” (Evidence Act 2011 (ACT), s 144), even if the new and second-hand prices of particular items of computing equipment are not.
Whether her Honour’s inference about the monetary value of the laptop, which was not foreshadowed during the hearing, had been in some way unfair to Mr Goodwin is addressed at [127]–[129] below.
Reliance on Mr Collins’ complaint
In summarising the evidence, her Honour said:
Mr Collins called the police immediately after the defendant left, consistent with the evidence of Senior Constable Williams, who attended the premises at about 5.30 pm, leaving little opportunity for concoction. Mr Collins complained of a sore shoulder, but also of the scratch on his arm which he attributed to the defendant’s actions. Senior Constable Williams corroborated that he saw a red mark on Mr Collins’ arm and that he was told on his attendance that it was the result of an assault by the defendant.
Her Honour noted the relatively short period between Mr Goodwin’s visit to Mr Collins’ house and the arrival of police at the house in support of her finding that Mr Collins was unlikely to have concocted his complaint against Mr Goodwin.
Counsel criticised her Honour’s reference to Mr Collins’ complaint. In written submissions he said:
In so far as this might be read as complaint evidence there was no such evidence of complaint.
In argument, however, counsel did not dispute the evidence:
(a)that Mr Collins had telephoned police shortly after Mr Goodwin left;
(b)that police had recorded a report relating to a possible robbery at Mr Collins’ house, to the taking of property, to a possible assault, and to a “home intrusion” (I note that the combination of an assault and the taking of property would have explained the police reference to a robbery); and
(c)that police had responded to Mr Collins’ call, at the most within 30 minutes (and possibly within 15 minutes) after Mr Goodwin’s departure.
Neither Mr Collins nor the police witness was cross-examined about the exact nature of Mr Collins’ communication with the police.
After an extended discussion, counsel for Mr Goodwin summarised his complaint as that “there’s absolutely no evidence of what Mr Collins said to the police”. This was true in the sense that there was no direct report, either from Mr Collins or from Senior Constable Williams; on the other hand, and especially in the absence of any relevant cross-examination of either witness, the evidence that was before the Chief Magistrate was quite an adequate basis from which to draw the inferences relied on in her findings quoted at [120] above.
In the end it seemed that counsel’s complaint went no further than the uncontroversial proposition that the concoction of Mr Collins’ story need not have taken anything like 30 minutes. Her Honour’s comment that the timing left “little opportunity for concoction” did not, however, undermine her treatment of the evidence put before her by Mr Collins and the police officer.
Inference about value of laptop
As well as complaining about her Honour’s comment about the value of the laptop in relation to assessing the plausibility of the evidence (at [109] above), counsel criticised her Honour’s failure to advise the parties before she delivered judgment that she had inferred that the value of Mr Collins’ laptop was greater than the amount of the disputed debt.
The basis for this criticism seemed to be that if Mr Collins had no intention of paying his debt, and if the laptop was of low value, then Mr Collins might have chosen to let Mr Goodwin take the laptop, in effect, in satisfaction of the debt, thereby getting Mr Goodwin and Ms Moore off his back about the debt. The complaint seems to be that this scenario, which would have been consistent with Mr Goodwin’s evidence, should have been considered by her Honour as casting another doubt on the plausibility of Mr Collins’ evidence, but that it was not until her Honour delivered her judgment that it became clear that her inference about the value of the laptop would have excluded this scenario.
This scenario was not put to Mr Collins in cross-examination, and was not put to the Chief Magistrate. I cannot see that, in that vacuum, her Honour was obliged, in considering whether she had any reasonable doubt about Mr Collins’ evidence, to develop a scenario which appeared to have no basis in either the evidence or the submissions that were before her.
Failure to exclude reasonable doubt
The appellant’s fundamental complaint, and the heart of the claim that her Honour did not act in accordance with the Liberato requirements in reaching her conclusions, seems to be that despite giving several reasons for accepting Mr Collins’ evidence beyond reasonable doubt, her Honour did not explain, or even say, that she was satisfied that Mr Goodwin’s evidence did not raise any kind of reasonable doubt about whether he had committed the offences.
It may be that, in any “judge-alone” trial in which the evidence raises the Liberato issue but the judicial officer is nevertheless satisfied of the accused’s guilt beyond reasonable doubt, it would be wise for the judicial officer to say specifically that, having disbelieved the accused’s evidence, she has put that evidence aside and has concluded, on the basis of evidence that she does accept, that the Crown has proved beyond reasonable doubt that the accused committed the offence concerned.
However, I do not understand this to be a requirement for dealing properly with a Liberato issue, especially not in a busy Magistrates Court and in the course of giving judgment at 9.30 am in a trial that has been adjourned at 4 pm on the previous day. Even less convincing is the argument that the judicial officer must, as well as finding that an offence has been proved beyond reasonable doubt, also articulate separately that the accused’s evidence has not raised a reasonable doubt in her mind about the accused’s guilt.
I cannot see any error in her Honour’s conclusions about whether Mr Collins’ evidence should be accepted where it was inconsistent with Mr Goodwin’s evidence, or about whether she could be satisfied by that evidence beyond reasonable doubt despite Mr Goodwin’s conflicting evidence, or any error in how her Honour expressed those conclusions and the reasons for them.
There was undoubtedly evidence before her Honour that was sufficient, if accepted, to make out the two charges. In that sense it was clearly open to her Honour to reject Mr Goodwin’s evidence where it conflicted with Mr Collins’ evidence, to accept Mr Collins’ evidence, and to be satisfied that, taken with the other evidence before her, Mr Collins’ evidence established the charges beyond reasonable doubt. It was also clear that her Honour was specifically aware of the Liberato issue, and had consciously taken it into account.
This appeal ground accordingly fails.
Ground (e): unsafe and unsatisfactory verdict
(a) Her Honour erred in finding that the defendant’s intent was formed whilst remaining on the premises as opposed to his intent at the time of entry to the premises;
(e) Her Honour’s finding of guilt was otherwise unsafe and unsatisfactory.
Availability and nature of appeal ground
As to whether a claim that a verdict was “unsafe and unsatisfactory” is an available ground in an appeal from the Magistrates Court, counsel for the Crown referred me to a brief comment by the ACT Court of Appeal in Roberts v Rhodes [2014] ACTCA 20 at [33]. That case was an appeal against a Supreme Court decision overturning a magistrate’s verdict on the ground that the finding of guilt was “unsafe and unsatisfactory”. In affirming the Supreme Court’s decision, the Court of Appeal said:
the expression “unsafe and unsatisfactory” is ordinarily used in the context of a jury verdict, but nothing turns on his Honour’s use of that expression.
See also Mapham v Bannerman [2013] ACTSC 157 at [56]–[60].
As submitted by counsel for the Crown, counsel for Mr Goodwin appears to have misunderstood the nature of an appeal against the outcome of a trial on the grounds that the verdict was “unsafe and unsatisfactory”. It is accordingly necessary to start by referring to the explanation of this appeal ground given in M v The Queen (1994) 181 CLR 487 at 494-495 by Mason CJ and Deane, Dawson and Toohey JJ as follows:
9. ... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(citations omitted)
In Libke v The Queen [2007] HCA 30; 230 CLR 559 (Libke) at [113], Hayne J, with whom Gleeson CJ and Heydon J agreed, said in explaining how the court should deal with the claim that a conviction was unsafe or unsatisfactory:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(citations omitted)
Counsel for the Crown submitted that the test set out in Libke was the appropriate test in considering an “unsafe and unsatisfactory” appeal from the Magistrates Court, and counsel for Mr Goodwin did not dispute this in oral submissions.
Appellant’s submissions – challenges to the verdict
However, because counsel, it seemed, had originally misunderstood the ultimate question arising in an “unsafe or unsatisfactory” appeal, the written submissions made on behalf of Mr Goodwin did not properly focus on why I should find that her Honour must have entertained a doubt about Mr Goodwin’s guilt.
Rather, the written submissions alleged problems in her Honour’s reasoning, several of which were also raised, and have already been rejected, in the context of the specific appeal grounds (for instance whether there was any real complaint evidence, and her Honour’s approach to the value of the laptop in the absence of specific evidence).
Other challenges to the verdict raised matters of little or no significance, for instance:
(a)whether there was any basis for her Honour to describe Mr Collins as “a person of limited means”;
(b)whether her Honour’s description of Mr Collins’ evidence as “consistent” with Senior Constable Williams’ evidence implied some form of “corroboration” of Mr Collins’ evidence (which Mr Goodwin disputed); and
(c)whether Senior Constable Williams’ evidence was somehow inconsistent with her Honour’s conclusion that there was little opportunity for concoction.
Finally, counsel for Mr Goodwin submitted that her Honour “had insufficient regard to matters favouring the appellant”, including in particular the apparent lack of disturbance at Mr Collins’ house, evidence that “might be considered character evidence” given by Ms Moore in cross-examination, and Mr Goodwin’s evidence about his “right” to take the laptop.
Some of these submissions might have had some minor significance in a challenge to a discretionary decision (although even in that kind of case a claim that her Honour “had insufficient regard” to a particular matter would not provide a useful appeal ground).
Some of them do not stand up to any serious analysis:
(a)the claim that Ms Moore gave useful character evidence appears to rely on the comment at [23] above that Mr Goodwin was “a calmer person” than she was, and the comments summarised at [31] above;
(b)Mr Goodwin’s evidence about his “right” to take the laptop, at [42] above, may have reflected a degree of (fairly grudging) honesty, but does not require that all of Mr Goodwin’s other evidence ought to have been accepted if there were other reasons to reject it.
Crown submissions
As to whether her Honour had reasons to reject Mr Goodwin’s evidence, counsel for the Crown pointed to aspects of Mr Goodwin’s evidence that could have raised credibility questions as a result of their content rather than as a result of how the evidence was given.
In his evidence about the alleged assault, Mr Goodwin at several points referred not to the evidence that he had heard Mr Collins give in court but to what Mr Collins had said in his police statement, which Mr Goodwin had presumably seen as part of the brief of evidence.
For instance, when it was put to Mr Goodwin in cross-examination that Mr Collins had never agreed to him taking the laptop as collateral, Mr Goodwin said:
He said “Just take it”, as he explained in his statement.
In cross-examination about the alleged assault, there was the following exchange:
And you put one hand on one of his arms and your other hand on his neck and then you throw him to the ground?---So he stood up at that stage, or sat down, like he was in his statement?
Well, what’s your evidence? He was standing, wasn’t he? That’s right?---In his interview I - - -
HER HONOUR: Just answer the question that’s asked of you, please, Mr Goodwin.
Later on, he gave the following evidence:
There’s no connection between the amount of the debt and the laptop?---The only reason I had the laptop, as Michael said, was for collateral.
Okay. So you told him that you could take the laptop and there was nothing he could do to stop you?---As Michael said, again, he said, “Just take it,” and that was when I’d left.
Counsel for the Crown noted in particular her Honour’s direction to Mr Goodwin just to answer the questions he was asked. Some of the extracts quoted above suggest to me that Mr Goodwin had attempted to tailor his evidence to meet the case against him, or was trying to ensure, separately from whatever had been achieved in cross-examination, that prior statements by Mr Collins favourable to Mr Goodwin were drawn to her Honour’s attention.
I note also that there were occasions in cross-examination when Mr Goodwin, instead of confining himself to straight denials of allegations put to him, seemed to be trying to muddy the waters by raising questions about his own motivation. Two examples are sufficient.
After agreeing that he was trained in martial arts, Mr Goodwin confirmed that he was familiar with a move called a “sweep”, in which a leg movement is used “to knock someone’s legs out”. Cross-examination went on:
You’re familiar with the movement, and that accurately describes what you did to Mr Collins, doesn’t it?---No, and why would I try and subdue him?
Shortly afterwards, there was the following exchange:
Well, you didn’t leave any marks on him, but you did subdue him – to borrow a word from you – didn’t you? You pinned him and you told him to cough up the money?---No. For what reason would I do that?
Mr Goodwin’s questions to counsel strike me as entirely disingenuous, given that the motive for his visit to Mr Collins that had been clearly identified in his own evidence (namely to persuade an apparently recalcitrant Mr Collins to pay the alleged debt) of itself suggested a reason for any attempt by Mr Goodwin to subdue or otherwise apply physical pressure to Mr Collins.
Conclusion
None of the submissions made in relation to this appeal ground (or appeal ground (a)) identified any aspect of the trial which in my view would justify a conclusion that her Honour must have entertained a doubt about Mr Goodwin’s guilt.
Conclusions
Appeal ground (a) was not argued as such, but was relied on as an aspect of the claim that the verdict was unsafe and unsatisfactory.
None of appeal grounds (b), (c) and (d) has been made out.
I have not found any basis on which to conclude that her Honour must have had a doubt about Mr Goodwin’s guilt, and so appeal ground (e), that her Honour’s verdicts were unsafe and unsatisfactory, even when supplemented by appeal ground (a), must also be rejected.
The appeal must therefore be dismissed.
Before finally dismissing the appeal, I shall hear the parties about any orders required to give effect to the sentences which have presumably been stayed by this appeal.
| I certify that the preceding one hundred and sixty-two [162] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 24 October 2018 |
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