Hobbs v Magry - [1999] WASCA 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HOBBS -v- MAGRY [1999] WASCA 102

CORAM: McKECHNIE J

HEARD: 15 JULY 1999

DELIVERED : 15 JULY 1999

FILE NO/S: SJA 1224 of 1998

BETWEEN: WALTER THOMAS HOBBS
Appellant
AND
KEITH ALCEDE JOHN MAGRY
Respondent

Catchwords:

Criminal law and evidence - Circumstantial evidence - Whether guilt the only inference - No new principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr D J A Hockton
Respondent: Ms V R Campbell

Solicitors:

Appellant: Wojtowicz Kelly
Respondent: State Department of Public Prosecutions

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

Nil

Case(s) also cited:

Beetham v Tremearne (1905) 2 CLR 582
Burke v R (1997) 96 A Crim R 334
Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991
Knight v R (1992) 63 A Crim R 166
Oset v Webb, unreported; FCt SCt of WA; Library No 8734; 28 February 1991
Pearce v Paskov [1968] WAR 68
Parker, unreported; CCA SCt of WA; Library No 960740; 20 December 1996
Power v Huffa (1976) 14 SASR 337
Pusey v Wagner; Ex Parte Wagner [1922] St R Qd 181
Taylor v Bow; unreported; SCt of WA; Library No 8835; 26 April 1991
Watt v Thomas (1947) AC 484
West v Palmer; Ex Parte [1960] Qd R 375

McKECHNIE J: On 7 December 1998 the appellant was convicted after trial of one charge of breaching a restraining order and one charge of stealing one engine hoist.
The charges arose out of an incident which had occurred on 28 May 1998 when the appellant went to the house of his estranged wife at 22 Gayhurst Road, Kenwick.
The appellant was fined $500 for the stealing and $100 for the breach of the restraining order. Although the appellant appealed against both convictions, he maintains the appeal only against the conviction for stealing.

The stealing charge

The evidence in relation to this charge was entirely circumstantial.
Mr Pauley gave evidence that in 1996 he bought an engine hoist coloured red from Marlows in Gosnells for $400. At some point a bolt broke off and he re‑welded it.
He stored the hoist at the house of Mrs Hobbs at 22 Gayhurst Road, Kenwick, from January 1998 around the back of the house out of view of the road. He gave nobody permission to take it.
In cross‑examination he was shown a number of photographs from which he was unable to positively identify his hoist. He was shown a pamphlet and gave the opinion that one could modify the hoist shown in the pamphlet to create a hoist shown in the photograph. In re‑examination he expressed the view when shown a photograph: "It looks nothing like my hoist but three‑quarters of the pieces of this could have come off my hoist."
Mrs Hobbs gave evidence that the hoist had indeed been left at her house. On 28 May 1998 it was there in the morning and when she arrived home from work it was not there. She had a dog, a bull terrier cross with a blue heeler, which does not allow anyone in the yard unless he knows the person. She confirmed that the hoist was kept on the back verandah behind locked double gates.
Mrs Hobbs' next door neighbour, Mr Klompmaker, gave evidence that at around 7.30 am on 28 May he saw the appellant outside the front of Mrs Hobbs' house loading bricks into the back of his ute. Mr Klompmaker was waiting for a lift at the time and was there for about five minutes. The appellant had reversed right up into the driveway to the gate. In cross‑examination he insisted that the utility was in Mrs Hobbs' driveway, not in the driveway of the next door neighbours. He did not give evidence of having seen the appellant with any hoist.
Constable Allen gave evidence that on 28 May he, having attended at Mrs Hobbs' address, then went to number 10 Boxley Place, Langford where he saw a white Ford F100 parked very close to the doorway of unit 8. He introduced himself to the appellant who acknowledged that it was his vehicle. When he looked into the rear of the vehicle he saw a red engine hoist with long black legs and wheels on the legs. The engine hoist had a yellow sticker on it stating the name of the manufacturer and various things like that. The witness was familiar with hoists and gave evidence that it was obviously a commercially made engine hoist.
In response to a question Mr Hobbs said:
"It's an engine stand. This is what I do for a living. I make them. I have another one over here."
He then indicated a covered area near the front door and showed Constable Allen the black or brown engine stand together with another engine hoist broken down. He also said that he puts them on layby, buys them, copies them, builds them and then returns the item. The one in the rear of the vehicle the appellant said he had got on consignment from a place in Maddington.
Constable Allen informed the appellant that he would need to make enquiries with the owner of the engine stand and would be back in contact in a few days. Constable Allen asked him not to get rid of it because the police would want to see it to which the appellant replied: "I won't get rid of it. It's mine."
The appellant admitted he had been to 22 Gayhurst Street earlier that day.
The witness was shown the same photographs that had been put to Mr Pauley. He confirmed that the hoist he saw in the rear of the appellant's vehicle looked nothing like exhibit 2F. The cross‑bar was similar to exhibit 2E, but down at the base it had two very long legs coming out either side. Generally it was not similar.
He was shown other photographs and observed other differences, including a white sticker which was different from the yellow sticker. He observed also the photograph showed very recent paint whereas the item he saw on the evening had been used and knocked around somewhat, although relatively new in comparison to the other engine hoist that he had been shown.
Constable Allen returned 45 minutes later on the same night and the appellant was not there.
Constable Magry gave evidence of a search which he conducted on 3 June 1998 and of a conversation he had with Mr Hobbs before making arrangements and subsequently conducting a video record of interview. When asked by Constable Magry as to what happened to the engine hoist in the back of the vehicle the appellant said, "I loaned it to my mate" and his name was Brian Chasanowsky, known as Brian Chas. Constable Magry was told: "Well, he's gone to Meekatharra". He had left on the weekend and being a diesel mechanic he had obtained a job to rebuild an engine.
On 30 November the appellant approached Constable Magry and showed him some red metal tubing in the back of a car, the series of photographs which were tendered in the trial.
The appellant gave evidence that he went to Mrs Hobbs' house at about 7.15 am on 28 May. He looked across the yard and in the yard he saw "a hoist thing or whatever it was - crane thing, hoist thing or whatever you want to call it - - I don't know. Some red gadget." He did not remove it.
In the evening Constable Allen came around about 6.00 pm to 6.30 pm when the appellant was getting ready to go out. He showed Constable Allen the back of the ute where he had a bundle of tubes. The Constable was quite satisfied. The appellant confirmed that in the back was an engine stand and gear hoist. The appellant indicated that he had taken the photographs in April or May before the police officer saw them. He said that the items in the back of his vehicle went for hire or consignment to a mate, business partner, or whatever, who said he might be interested, so he went up and took them to try them. That person was Brian who had sent most of the parts back except a couple of bits that were missing. He said there was never a yellow sticker on the items, but there was a white sticker. The appellant conceded that Constable Allen could have seen a yellow label on the hydraulic lifter because it was made by Caterpillar and all their gear is yellow.

The Magistrate's reasons

The Magistrate accepted Constable Allen's evidence and, in particular, as to the nature of the items. The Magistrate found that the appellant indulged in a degree of prevarication in the witness stand. I have not had the advantage of seeing the appellant in the witness stand, but from reading the transcript I would not disagree with the Magistrate's assessment. The Magistrate directed himself correctly as to the onus and standard of proof and acknowledged that this was a circumstantial evidence case.
In my view the circumstances were capable of establishing the following facts beyond reasonable doubt:
1.      Mr Pauley owned a black and red engine hoist which, until the morning of 28 May 1998, had been at the back of Mrs Hobbs' house.
2.      It was not there in the afternoon or early evening of 28 May 1998.
3.      The appellant had attended at the house on the morning of 28 May in his utility.
4.      The appellant was known to Mrs Hobbs' dog which therefore might accept him.
5.      An engine hoist was in the back of the appellant's vehicle on the evening of 28 May when observed by Constable Allen.
6.      Despite a request not to dispose of the hoist before the police had inspected it, the appellant did just that in circumstances where his explanation is implausible and his actions suspicious.
7.      The appellant produced photographs of what he had claimed was the hoist observed by Constable Allen, but which were not.
8.      The appellant had the opportunity to steal the hoist. He was at the house observed by Mr Klompmaker until his ride arrived. His utility was reversed up the driveway of the house. The gates to the property were not high.
9.      The appellant had a motive to steal the hoist. It is clear from his evidence and that of Constable Allen that the appellant has some sort of business involving engine hoists.
10.     The appellant's subsequent conduct in disposing of the hoist he had very quickly and against a request to hold on to it coupled with the production of photographs, which were not the hoist, is suspicious and such that an inference of guilt may be drawn in respect of it.
Taken together the facts, in my opinion, point inexorably to the appellant as the person who stole the hoist.
The grounds of appeal attack a number of circumstances leading to the result. It is said that the conviction is unsafe and unsatisfactory and has resulted in a miscarriage of justice. Those grounds are as follows:
"1.2(a)Mr Hobbs was consistent in his evidence and in the police video record of interview."
Consistency is of course a circumstance to be weighed. However, consistency is merely one aspect of an assessment of credibility. A person may consistently tell an untrue version.
"1.2(b)there were no grounds on which to dismiss Mr Hobbs as a witness not to be believed."
The proper formulation of the test is whether the offence has been proven beyond reasonable doubt. If all the circumstances are such to give rise to an inevitable inference of guilt, then it follows that the evidence of the appellant did not give rise to a reasonable doubt. In fact, the Magistrate found the witness was prevaricating. Some of his answers to questions in cross‑examination were implausible. For instance, he described what he saw in the yard as a "gadget", yet he was a man well familiar on his own evidence with hoists and cranes. His explanation for so describing it was: "Well, it’s a gadget to me because it doesn't belong to me."
His explanation about his toolbox was inconsistent and his explanation about the dog was unforthcoming. His responses about the man Brian and the circumstances in which he loaned it to him knowing the police wished to further inspect it are such that it was open for the Magistrate to positively disbelieve his explanations.
Having viewed the video record of interview and read the transcript of it, I consider it was open to the Magistrate to disbelieve the appellant. Of course, disbelief of the appellant does not equate with proof of guilt. Attention must still focus on the circumstances surrounding the event and whether guilt is the only rational inference to be drawn. Magistrates must resolve cases every day relying wholly on circumstantial evidence. They are entitled to draw inferences from facts, which they find to be proven. They are only entitled to convict when the only rational conclusion is guilt. This is sometimes expressed differently. It may be expressed as the irresistible inference being that of guilt. Alternatively, it may be expressed that there are no reasonable inferences consistent with innocence. In the present case, once the Magistrate was satisfied as to the factual matters I have enumerated, then in my view it was open for him to convict the appellant of stealing.
"1.2(c)the owner of the article alleged to have been stolen was inconsistent in their identification of the article."
I do not consider there was any inconsistency in Mr Pauley's description.
"1.2(d)the unique identifying mark of the alleged stolen hoist was not made out by the witness who allegedly saw the item in possession of Mr Hobbs."
This is a reference to the re‑welding of the security bolt. Constable Allen glanced at the hoist in the back of the truck by torchlight. It is not surprising that he might have missed seeing this particular weld.
I would dismiss the appeal against the stealing.
In relation to the restraining order offence as it is not being maintained I dismiss that also.