Hollands v GROOTVELD

[1999] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   HOLLANDS -v- GROOTVELD [1999] WASCA 99

CORAM:   McKECHNIE J

HEARD:   14 JULY 1999

DELIVERED          :   14 JULY 1999

FILE NO/S:   SJA 1064 of 1999

BETWEEN:   STEVEN JOHN HOLLANDS

Appellant

AND

KELLY JUSTIN GROOTVELD
Respondent

Catchwords:

Criminal law - Sufficiency of evidence - No new principle - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr D P A Moen

Respondent:     Ms M L Moffett

Solicitors:

Appellant:     Lewis Blyth & Hooper

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Galea v Galea (1990) 19 NSWLR 263

Jackson v Dyball (1993) 74 A Crim R 10

Paterson v Paterson (1953) 89 CLR 212

Sharrett v Gill (1993) 65 A Crim R 44

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Warren v Coombes (1979) 142 CLR 531

1. McKECHNIE J: In August 1998 Mr McLeod took his car to Auto Masters Midland to be fixed.  He paid cash and received a photocopy invoice.  He was not happy with the repairs and returned the car under the repair warranty.  This led to an investigation, culminating eventually in the conviction of the appellant, the manager of Auto Masters at the time, for stealing $340 from his employer.  He was fined $500 and ordered to pay costs.

2. The trial was held in the Midland Court of Petty Sessions on 26 March 1999.  The prosecution called four witnesses and the defence one witness, the appellant.  The trial was concluded in less than a day and the issues were not complex.  The Magistrate accepted Mr McLeod's and Mr Coombes' testimony and rejected that of the appellant.

3. Essentially, employees of Auto Masters could, on occasion and after hours, do private works.  The issue was whether the work done for Mr McLeod was private work or work done for Auto Masters so that payment for the work should have gone to that company.  I propose to deal with each ground of appeal.

Ground (i):

"The learned Magistrate erred in law and in fact in finding that the work that was done by the Applicant on behalf of the Respondent when another inference could reasonably be drawn from the evidence and there was no or no sufficient evidence to support this finding to the proper standard."

1. This ground really is the major ground and other grounds are subsidiary to it.  In my opinion it was open for the Magistrate to be satisfied on the totality of the evidence that the only conclusion was that the work was done by the appellant on behalf of Auto Masters.  There are a number of factors in reaching this view:

   (1)Mr McLeod brought the vehicle in expecting a special deal from Auto Masters;

   (2)Mr McLeod was not told that the job was to be done as a personal favour.  He was not a friend of the appellant whom he only knew at work;

   (3)Mr McLeod spoke to one of the other mechanics about the work, as well as to the appellant;

   (4)presentation to Mr McLeod of the photocopy invoice and the invoice itself is some evidence against the appellant.

2. The appellant's name does not appear on the invoice and as the Magistrate noted there was a considerable amount of work done.  That work was extensive work done well beyond the installation of a fuel pump.

3. I will deal with the admission of the appellant, or his evasion I should say, to Mr Coombes by telephone later.

Ground (ii):

"The learned Magistrate erred in fact in finding it was everybody's understanding that the employees of Cash Converters would obtain special rates for work by Auto Masters, Midland."

1. The Magistrate may have misstated, or overstated, the evidence somewhat by saying "it was everybody's understanding", but it seemed to be at least that of Mr McLeod and Mr Hollands.  In my opinion there is no substance in this ground.

Ground (iii):

"The learned Magistrate erred in fact in finding that Mr McLeod was adamant that he would not have had the matter dealt with on a private basis."

1. The Magistrate's comments read in context disclose no real error.  "Adamant" is a reasonable description of the summary of Mr McLeod's evidence that he was contracting with Auto Masters.

Ground (iv):

"The learned Magistrate erred in fact and law in relying upon the belief of Mr McLeod as to whom he made payment to when examining the arrangement between the applicant and Auto Masters, Midland."

1. The belief of Mr McLeod as to whom he made the payment is a relevant circumstance in determining the ultimate question; namely, whether the prosecution had proved beyond reasonable doubt that the appellant converted money the property of Bruness, the owner of the Auto Masters' franchise.

2. The circumstances of the transaction are relevant.  The belief may be induced by the manner in which the transaction was concluded.  In fact the Magistrate in his reasons correctly focused not upon Mr McLeod's belief but upon his intention.  There is another importance to the evidence.  Acceptance of Mr McLeod's belief is necessarily a rejection of the appellant's evidence that he told Mr McLeod he would do the work on his own and charge him accordingly.

Ground (v):

"The learned Magistrate erred in fact in not finding that there was no evidence that work had been done other than as allowed by Auto Masters, Midland, for family, friends and associates."

1. This ground is linked to the other grounds.  If they are rejected so too must this ground be rejected.

Ground (vi):

"The learned Magistrate erred in law and in fact in finding a possible procedural error in the method of recording work for family, friends and associates as evidence that the work was Auto Masters' Midland work."

1. There was evidence before the Magistrate that when private work was done Mr Coombes would generally be notified.  There was also an arrangement whereby a photocopy would be kept on the file.  The appellant did none of the matters normally associated with recording work for family, friends and associates.  This factor of itself is not decisive but was capable of being used by the Magistrate in reaching a conclusion to convict.

Ground (vii):

"The learned Magistrate erred in fact and law in interpreting the offer of settlement by the applicant as an admission of guilt."

1. The offer of settlement was capable of amounting to an admission of guilt and in my view it was open to the Magistrate as a matter of law to so regard it.  Whether one would convict solely upon it is perhaps a more open question as there may be a number of reasons why a person who was innocent could nevertheless make an offer of payment.

2. I have read the Magistrate's reasons and am satisfied that he did not give undue weight to this circumstance as an admission of guilt, leading necessarily to a conviction.  The more important admission was the finding that the appellant had suggested to Mr Coombes that the money had been accounted for and that if Mr Coombes looked for it he would find it.  This was plainly untrue.  The Magistrate clearly referred to this fact and put weight upon it as he was entitled to do.

3. This telephone conversation suggests an evasion by the appellant.  It is inconsistent with the claim of private work and constitutes a powerful piece of evidence against the appellant.

Ground (viii):

"The learned Magistrate erred in law in approaching the matter on the basis that he needed to be satisfied that the work fell into the category of work done for friends and relatives to find the applicant innocent."

1. When looked at in context, in my opinion the learned Magistrate did not err.  He posed a legitimate question when he said:

   "It is a question of whether or not the defendant Steven John Hollands has misappropriated the money, that is this cash of $340.  The question to be answered of course is was the work done on Mr McLeod's vehicle done under the auspices of this special privileged category of people of a friend or relative, or employee's vehicle in his own time."

2. In my opinion it was a legitimate question to ask but it is clear from later in his reasons that the Magistrate did not confuse this question with the ultimate question; namely, whether the prosecution had discharged its onus to the required standard.  In my opinion the ground does not disclose error.

Conclusion:

1. There was an abundance of evidence from which the Magistrate was entitled to reach the conclusion that the work done on Mr McLeod's vehicle was done by an Auto Masters' employees in the ordinary course of business, using a photocopy invoice which was given to Mr McLeod.  There was no record within Auto Masters that any work had been done.  The appellant could then simply pocket the $340 cash profit in payments by Mr McLeod.

2. In my judgment, mindful of the appropriate approach for an appellate court in reviewing decisions of Magistrates, it was open for the Magistrate in this case to convict on the available evidence and such conviction is not unreasonable.  It is supported by the evidence.  I therefore dismiss the appeal.