Kotz v Police

[1999] SASC 399

KOTZ V POLICE
[1999] SASC 399

Magistrate’s Appeal

1. MARTIN J.        This is an appeal against convictions for larceny and unlawful possession.

2. The appellant was charged on information with two counts of larceny contrary to s131 of the Criminal Law Consolidation Act 1935 and, in the alternative on each count, with two counts of receiving contrary to s 196(1) of that Act. He was also charged on complaint with three offences of possessing property that was reasonably suspected of having been stolen or obtained by unlawful means (“unlawful possession”) contrary to s 41(1) of the Summary Offences Act 1953. The learned Special Magistrate found the two offences of larceny and the three unlawful possession counts proven. He imposed one penalty of ten months imprisonment in respect of all offences. Pursuant to s 38 of the Criminal Law (Sentencing) Act 1988 his Honour ordered that the appellant be released from prison after serving five months of that sentence with the balance of the sentence to be suspended upon the appellant entering into a bond in the amount of $400 for that period of five months upon condition that he be of good behaviour and be under the supervision of a probation officer.

3. All charges were heard together in the one trial.  The first ground of appeal asserts that the Magistrate erred in conducting a single trial as there was no power to direct that the charges on information be heard together with the charges on complaint. 

4. Section 51 of the Summary Procedure Act 1921 is in the following terms:

   “Joinder and Separation of Charges

   51.    (1)    A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character. 

   (2)    The Court may direct that -

   (a).... charges contained in a single complaint be dealt with in separate proceedings; or

   (b)    charges contained in separate complaints be dealt with together in the same proceedings.”

5. The procedure with respect to charges on information is set out in Part V of the Summary Procedure Act.  Section 103(3) provides as follows:

   “(3).. If a defendant charged with a minor indictable offence does not elect, in accordance with the rules, for trial in a superior court, the charge will be dealt with in the same way as a charge of a summary offence.”

6. That section is to be considered in conjunction with the definition of “complaint” in s 4(1) which is as follows:

   “complaint” includes a charge of a minor indictable offence, if, and when, the Magistrates Court proceeds to dispose of such charge summarily;”

7. The scheme of the Summary Procedure Act is readily apparent.  It is intended that when a charge on information for a minor indictable offence is to be heard and determined summarily in the Magistrates Court, for all relevant purposes in connection with the trial procedure it is to be treated as if it was a charge on complaint.  Section 51(2)(b) empowers a Magistrate, therefore, to direct that charges on complaint and on information for minor indictable offences that are to be heard summarily be dealt with together in the same proceedings.  It is a practicable and sensible scheme.

8. The parties agree that counsel for the appellant sought an order that the charges on complaint be tried separately from those on the information.  They also agree that the Magistrate dismissed the application in a rather pre-emptory fashion.  In his reasons, however, his Honour stated that the matters were heard together by consent.  It appears that his Honour has erroneously referred to the attitude of a different counsel who appeared for the appellant on an occasion prior to the commencement of the trial and indicated that the appellant consented to a single trial.  His Honour should have given careful consideration to the application.  There were questions of substance to be assessed and weighed.  In the circumstances of this matter, if his Honour was influenced by the attitude of previous counsel for the appellant, in my opinion he was in error.

9. The critical question for this Court is whether an injustice has been caused by trying the charges on complaint at the same time as those on information.  In R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, King CJ with whom the other members of the Court of Criminal Appeal agreed, expressed the principle in the context of a joint trial of multiple accused in a passage that is applicable to the joint trial of multiple charges against one accused (p 310):

   “The critical issue on an appeal is not whether the exercise of the discretion of the trial judge miscarried on the material before him at the time when he made his decision, but whether the joint trial has produced a miscarriage of justice in the sense of depriving the appellant of a fair trial.”

10. Counsel for the appellant submitted that the trial was unfair because the appellant was deprived of the opportunity of exercising his right not to give evidence at the conclusion of the prosecution case in respect of the charges on information of larceny and receiving.  If the trial on the information had been conducted separately from the trial on the complaint, the appellant would have had the opportunity of relying upon the failure of the Crown to prove its case beyond reasonable doubt and of declining to give evidence.  It was submitted, however, that the opportunity of exercising that right was removed by the joint trial because of the burden of proof cast upon the appellant in connection with the unlawful possession charges.  If the appellant was to have any prospect of an acquittal on those charges, the burden required that he give evidence.  It was argued, therefore, that the ultimate result was to deprive the appellant of his right to choose not to give evidence in respect of the charges on information.

11. While the course adopted had the practical result of putting the appellant at a disadvantage in comparison with the position he would have occupied on a trial on the information alone, the appellant was not deprived of his right to decline to give evidence.  It is not unusual for a joint trial of multiple accused or of a single accused on multiple charges to result in practical disadvantages of this type.  It is not unusual for an onus to be cast upon an accused, particularly in relation to drug offences.  An accused who gives evidence in a joint trial with other accused may face the prospect of cross-examination by a co-accused about matters in respect of which the Crown would not be permitted to cross-examine. 

12. In my opinion, it cannot be said that a single trial on multiple charges is necessarily unfair merely because the accused bears an onus with respect to one charge and not another.  In making that observation I do not exclude the possibility that unfairness could ensue.  For example, if it appeared to the trial Court that the evidence with respect to the charge upon which the Crown bore the onus of proof was weak and unconvincing, but was strong on the charge in respect of which the accused bore an onus, it would be open to the Court to properly arrive at the view that this was a factor indicative of probable unfairness if a single trial was conducted.  In the circumstances of the charges under consideration, in my opinion while the disadvantage to which I have referred was a relevant factor to be taken into account, it was not particularly significant. 

13. It was submitted that the trial was unfair because of the admission of evidence upon the unlawful possession charges that was not admissible in respect of the larceny and receiving charges.  Recognising that the particular rules concerning unfairly prejudicial evidence applicable to trials by a jury do not apply with the same force to trials by Magistrates, and acknowledging that the dangers of misuse of evidence inherent in trials by jury do not exist to the same extent in a trial by a Magistrate, counsel nevertheless submitted that a consideration of the particular circumstances of this case and the evidence led in support of the various charges demonstrates that the trial was unfair by reason of the joinder of the charges.  In addition he submitted that the Magistrate failed to properly identify the use to which he put critical evidence and there is a real risk of a misuse of the evidence. 

14. The prosecution case was centred upon the finding of a large quantity of property either proven to be stolen or reasonably suspected of having been stolen at premises occupied by the appellant.  In addition to maintaining that he purchased some of the property innocently, the appellant also gave evidence that an acquaintance, Andrew Matthews, brought some of the property to his premises.  Matthews was a witness for the prosecution and denied bringing the particular property to the appellant’s premises. 

15. Police first attended at the appellant’s home on 7 May 1998.  They made observations of various items of property, including a Sony colour television receiver contained in a metal cradle and a large red tool box which appeared new and contained a complete set of tools.  The appellant told police that he purchased the television receiver through the Trading Post and the metal cradle from a street market at Christies Beach.  He said the tool box containing the tools belonged to Matthews who was then in prison.

16. The police did not take possession of the property on 7 May 1998.  They re-attended on 8 May 1998, but were unable to locate the television receiver, cradle, or tool box.  The appellant told the police that Matthews’ mates had collected those items from him on the previous day.  Matthews denied taking those items to the appellant’s premises.  In addition Matthews gave evidence that the appellant told him he bought the tool box “cheap somewhere” and that it was “worth heaps of money”.  He said the appellant told him he thought it was worth about $3 000 and said “don’t be nosey”.  The tool box was the subject of an unlawful possession charge.  The evidence given by Matthews about the appellant’s statements concerning that tool box and by the police concerning its disappearance after their first visit was not admissible in respect of the larceny and receiving charges.

17. As mentioned, the police attended on 8 May 1998 and seized a quantity of property.  On 27 May 1998 the defendant produced three receipts to the investigating officer.  The receipts related to property the subject of the unlawful possession charge.  One of those receipts was a total fabrication prepared at the appellant’s request.  Another was falsified by the appellant.  The third document produced by the appellant as a receipt for an electric drill was identified by the retail store as a receipt for white goods. 

18. The evidence of those falsifications was inadmissible on the larceny and receiving charges.  It was devastating to the appellant’s credit.  It was capable of being viewed as evidence of a consciousness of guilt, but guilt relating only to the charge of unlawful possession.  In his reasons, however, his Honour does not identify the use that he made of that evidence. 

19. In connection with the charges of unlawful possession, the prosecution was required to prove that the property was reasonably suspected of having been stolen or obtained by unlawful means.  As part of proof of that element, the Crown led evidence from the investigating officer that he believed the appellant did not have the financial means to purchase certain items of the property.  He added that the lack of means “coupled with his previous history” led him to the view that the property was likely to have been stolen.  Later in his evidence the officer said that he was aware that the appellant was on a pension and did not appear to have any other lawful income.  On that basis the officer concluded that the appellant could not afford to buy a particular item of property even on the second-hand market.  The same officer repeated his belief concerning the appellant’s means in the following passage:

    “I believe that he was on a pension, along with his de facto wife, Darlene Roberts.  I believe that was his only source of lawful income and the defendant was renovating a bus in the backyard and he told me that he has had a cabinet maker working on the inside of the bus who charged him $100 a day for the work.  I saw there had been extensive work carried out inside the bus and there was a large amount of consumables, such as wood and steel, have been used.  The bus had been fitted with new sliding windows, which were valued at $2 000 by Mr Weepers.  Extensive work had been carried out on the exterior of the bus by a welder and the bus had been fitted with a new stove, range-hood, near new refrigerator, and it just all appears to me to be so far in excess of what he could possibly afford.”

20. The investigating officer also gave evidence of enquiries at three Cash Converter locations in Adelaide.  He said he ascertained that the appellant was a regular client of Cash Converters and had undertaken 72 separate transactions with that group.  He then gave the following evidence:

    “Q.... What is your understanding or belief as an investigator in relation to persons who make continued transactions with Cash Converters.

    A.In this case the properties are the same and similar nature to those items that we seized, they are both loans and sales.  I formed the opinion that these articles were stolen. 

    Q.... In relation to all the items that you have itemised, what was your belief.

    A.I believe that they were stolen.”

21. The evidence went beyond establishing that the investigating officer believed that the appellant lacked the financial means to purchase the property that was the subject of the unlawful possession charges.  The evidence concerning the work done on the bus, coupled with the evidence about the appellant’s involvement with Cash Converters and the police officer’s belief concerning those transactions, had a strong tendency to suggest that the appellant was a regular thief or receiver of stolen property or both.  The evidence was highly prejudicial to the appellant.  The Magistrate was required to consider its admissibility in accordance with the well-established principles applicable to evidence of this type which include the exercise of the discretion to exclude the evidence.  If the evidence was properly admitted, it was admissible for a strictly limited purpose in connection with the charges of unlawful possession.  It was inadmissible in respect of the charges of larceny and receiving.  There is nothing in his Honour’s reasons to give any clue as to whether he addressed his mind to the issue of the proper use of the evidence.  His Honour’s general observation that some of the factual disputes and issues were irrelevant to the matters he needed to determine was not addressed to the use of evidence to which I have referred.

22. Counsel for the respondent submitted that this Court should presume that the Magistrate used the evidence only in a permissible way.  In many circumstances the Court would be entitled to rely upon such a presumption, but the circumstances to which I have referred demonstrate that this case posed particular difficulties with respect to the use of a number of items of evidence because the charges on complaint were tried at the same time as those on information.  In addition, the evidence that had to be restricted in its use was, if misused, highly prejudicial to the appellant. 

23. Towards the end of his judgment, the Magistrate found that the appellant had lied about a number of matters when questioned by the police.  However, he did not indicate whether he used the fact of those lies as evidence of a consciousness of guilt or merely as evidence relating to the credit of the appellant.  Similarly, there is no basis for knowing whether his Honour carefully distinguished between lies or conduct establishing a consciousness of guilt with respect to the unlawful possession charges from those lies or that conduct which evidenced a consciousness of guilt with respect to the larceny and receiving charges. 

24. Against that background, the appellant contended that the reasons for judgment of the Magistrate were so inadequate that an appropriate appellate review could not take place and the convictions should be set aside.  The scope of the duty of a Magistrate to give adequate reasons, particularly in contested matters, was recently examined by Duggan J in Harwood v Police (1998) 71 SASR 300 at 304-306. That decision and the authorities to which his Honour referred highlight the importance of adequate reasons to the process of appellate review. It is only if reasons are given that adequately reveal the reasoning upon which the decision is based that an appeal court can effectively discharge its functions.

25. The authorities also emphasise that justice must be seen to be done.  While the adequacy of the reasons in this regard will depend upon the circumstances of each case, in a contested matter where difficult questions arise concerning the use of highly prejudicial evidence, in my opinion the reasons should disclose the use that the Magistrate has made of the contentious evidence (cf Fleming v The Queen (1998) 73 ALJR 1). In such circumstances the failure to give adequate reasons cannot be excused on the basis that the Magistrate is presumed to know the law and to have applied it correctly. As mentioned, a presumption of that nature may be a sufficient answer in many circumstances, but not where a number of complicated questions arise that involve the use of highly prejudicial evidence.

26. In my opinion, in the particular circumstances of this matter his Honour should have explained the use he made of the evidence to which I have referred.  As previously discussed the evidence had a limited use with respect to the charges of unlawful possession and it was inadmissible on the charges of larceny and illegal use.  It was important that his Honour strictly exclude that irrelevant and highly prejudicial material from his consideration of the charges of larceny and illegal use.  In the absence of reasons explaining the use his Honour made of such evidence, this Court is unable to identify the reasoning processes and to judge whether his Honour fell into error.  In those circumstances, in my opinion justice has not been seen to have been done and the convictions must be set aside.

27. The appellant submitted that if the appeal is successful, the convictions on counts 1 and 3 of the information for larceny should be quashed and a re-trial on the information should be restricted to the charges of receiving.  It was contended that the evidence was not capable of proving beyond reasonable doubt that the appellant was the thief as opposed to the receiver.  The High Court in Gilson v The Queen (1991) 172 CLR 353 held that where a person is charged with stealing and, in the alternative, with receiving stolen goods, if a jury is satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but unable to say which, a verdict of guilty of the lesser offence is the appropriate verdict.

28. The Crown conceded in this Court that, with respect to the charge of larceny in count 3 on the information, the evidence was incapable of excluding the hypothesis that the appellant received the property that was the subject of the count.  I agree.

29. As to the first charge of larceny, the evidence was not restricted to the appellant’s recent possession of the property.  The evidence established a previous association between the appellant and the owner of the property.  The appellant had previously attended at the premises from which the property was stolen to buy an air-conditioner.  While the case against the appellant on the charge of larceny was not strong, in my opinion it was capable of establishing a case to answer and the appropriate course is to remit that matter to the Magistrates Court for further trial.  In my opinion the appropriate course is to remit all charges on the complaint and counts 1, 2 and 4 on the information to the Magistrates Court for further hearing and determination.

1. As there is to be a further trial, it is appropriate that I express my view concerning the procedure to be followed and matters of evidence.  I have already indicated that a serious question of admissibility exists with respect to some of the evidence led in connection with the investigating officer’s state of mind on the unlawful possession charges.  The evidence clearly has probative value and the case for exclusion on the ground of judicial discretion by reason of the prejudicial value of the evidence carries far less weight in a trial before a Magistrate than upon a trial by jury.  Ultimately, however, it will be a matter for the trial Magistrate to determine whether that evidence should be admitted.

2. If the prosecution maintain the view that the charges should be heard in a single trial and the appellant objects to that course, the trial Magistrate will be in a better position than usual to assess the competing arguments because of the knowledge available as a consequence of the evidence led at the first trial.  I am not prepared to say that a single trial would inevitably involve a miscarriage of justice.  It is clear from these reasons, however, that substantial difficulties will attend a single trial and the Magistrate would have to exercise particular care in the use of evidence.  Considerable evidence of a highly prejudicial nature may be admitted upon the trial for unlawful possession which would be inadmissible in respect of the charges on information. 

3. As mentioned, the Magistrate made findings adverse to the credit of the appellant.  In these circumstances, notwithstanding the capacity of the Magistrate to put aside those findings and decide the case upon the evidence before him, in my opinion it would be inappropriate for the same Magistrate to hear any further trial or trials.  As Mitchell J observed in Rendulic v Bevan (1971) SASR 340, the risk exists that a Magistrate in such circumstances may be unconsciously affected and fair-minded observers, if in possession of all the facts, would reach that conclusion.

4. The appeal is allowed.  The conviction with respect to count 3 on the information is quashed and a verdict of not guilty is substituted.  The verdicts with respect to counts one, two and four on the information and the three counts charged on complaint of unlawful possession are set aside and those counts are remitted to the Magistrates Court for further hearing and determination.