Lavaring v Forbes - [2009] WASC 88

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LAVARING -v- FORBES [2009] WASC 88

CORAM: SIMMONDS J

HEARD: 19 JANUARY 2009

DELIVERED : 9 APRIL 2009

FILE NO/S: SJA 1064 of 2008

BETWEEN: LEISA MICHELLE LAVARING
Appellant
AND
ALEISHA JAYDE FORBES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT MANDURAH
Coram  :MAGISTRATE T J McINTYRE
File No  :RO 2404 of 2008, RO 2406 of 2008, RO 2407 of 2008, RO 2408 of 2008

Catchwords:

Criminal law and procedure - Admissibility of text messages downloaded from mobile phone and put to accused in video recorded interview - Infringement of the principle in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 - Infringement of the principle in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - When following allowance of appeal and quashing of convictions appeal court should substitute a decision of acquittal rather than remit for a new trial

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 409(1)(a)

Result:

Appeal allowed
Convictions quashed
Decision substituted of acquittal on all charges faced

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Mr B M Hollingsworth

Solicitors:

Appellant: Belinda J Lonsdale
Respondent: Director of Public Prosecutions (WA)

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

Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Reid v The Queen [1980] AC 343

SIMMONDS J:

Introduction

This is an appeal by leave against convictions in the Magistrates Court in Mandurah for four offences. There were eight grounds of appeal for which leave was granted.
At the hearing of the appeal, counsel for the respondent confirmed that the appeal should be allowed on at least some of the grounds, although counsel put to me that some of the grounds on which the appeal should be allowed required amendment. Counsel for the respondent accepted that the convictions should be quashed, but submitted that the case should be remitted to the Magistrates Court to be dealt with again by a different magistrate. Counsel for the appellant, for her part, submitted that the appeal should be allowed on all of the grounds and that the appropriate order was for me to return a judgment of acquittal on all charges. After I gave counsel an opportunity to make further submissions on the matter of remitting the case to the Magistrates Court or substituting my decision for that appealed against, the differences between the parties on that matter fell away.
In these reasons I provide a background to the appeal before describing it in more detail. I then turn to consider the submissions as to the grounds of appeal and the appropriate disposition of it put to me, before I describe my determinations as to those grounds and that disposition.

Background

On 23 June 2008 following a trial before him Magistrate McIntyre convicted the appellant on four charges of obtaining property by fraudulent means contrary to Criminal Code (WA) s 409(1)(a). The appellant had in fact faced six such charges before his Honour. However, during the trial, and following evidence from the complainant, a Ms Van Arkel, and a concession by the prosecutor that there was no case to answer as to two of the charges, his Honour dismissed those two charges.
The four charges on which the appellant was convicted related to four withdrawals on 22 November 2007, each of $200, from an account of the complainant. The complainant was an acquaintance of the appellant. The withdrawals were by the use of the complainant's ATM card (the ATM card), in a series of transactions at a store in Mandurah.
The prosecution case was that on the day in question the complainant had left her handbag containing her purse in the living room of the appellant's home. The purse contained the ATM card. The appellant had used the ATM card and its PIN (the PIN) to withdraw the amounts in question (the withdrawals) without the complainant's knowledge or authorisation.
The defence was that the appellant had used the ATM card and the PIN to make the withdrawals, but had made the withdrawals after the complainant had provided the ATM card to the appellant, and at the request and for the benefit of the complainant.
At the trial on 23 June 2008, the complainant gave evidence; a video record of an interview of the appellant by police was played; and one of the police officers who had conducted the interview gave evidence. I was provided with the trial transcript, a copy of the video record of interview (which was exhibit B at the trial) and a copy of the transcript of that interview. The appellant was not called to give evidence, and no other witness for the defence was called. There were three exhibits: exhibit A, identified in the transcript as 'police affidavit' (23 June 2008, ts 5), which it appears from his Honour's reasons for decision (ts 50) was 'an affidavit prepared by a bank officer which shows ‑ or attaches to it the records of Ms Van Arkel's banking transactions'; exhibit 1, identified in the trial transcript (23 June 2008, ts 40) as 'unauthorised record of transactions'; and exhibit B.
During the trial, the prosecution sought to put to the police officer who testified a document said to record SMS messages downloaded from a mobile phone (the text messages). The text messages were said to be from the appellant's phone to that mobile phone, and from it to the appellant's phone. The complainant testified that after the incidents in question she discovered a mobile phone on which she found in its inbox messages she said were from the appellant to a male companion. In the video record of interview police put to the appellant what they referred to as the content of messages sent from a mobile phone, the number of which the appellant acknowledged in the interview was a number for her. However, the appellant stated in the interview that she did not understand how police could say the text messages were downloaded from a phone which she said was not hers but that of a friend, and which the appellant said she did not have 'at that time' (VRI, ts 9). The appellant also said in the interview that she could not make 'any sense' (VRI, ts 11) of the messages that were quoted to her.
At the trial, counsel for the defence, who was also counsel for the appellant before me, objected to the document being put to the police officer. Then ensued an exchange between his Honour, counsel for the defence and the prosecutor about the use which could be made of the document, if any. The prosecutor confirmed the document had not been prepared or obtained by the police officer to whom it was to be put, but by another police officer who had downloaded the messages from the mobile phone and who could be called to testify to this. The police officer, to whom the prosecutor proposed to put the document, stated in reply to a question from his Honour that she had looked at the document and used it during the interview with the appellant. Counsel for the defence indicated that she maintained her objection to the use of the document, on relevance and admissibility grounds.
During the exchange with counsel, His Honour stated he would not receive the document as an exhibit, as it was 'not admissible as an exhibit' (23 June 2008, ts 36). However, he indicated he would treat it as a record of 'matters that were put to the accused in the recorded interview' that 'go directly to the issues' (ts 37). This use of the document, apparently as an aide memoire for his Honour, may have been based on the document having been used by the witness in the interview with the appellant. If so, as counsel for the defence indicated to his Honour at the time, its relevance to any fact in issue is difficult to discern.
In any event, his Honour dealt with the subject-matter of the document at two points in his reasons for decision (23 June 2008, ts 48 ‑ 49, 52) as follows. In his decision, his Honour appears to have revised his view about the admissibility of the document and treated its content as evidence before him:
The prosecution case, as I said, relies principally on the evidence of Van Arkel, but there are a number of other issues that they point to which they claim to be indicative of guilt, and without dealing with them in any particular order, the prosecution have elicited evidence which was put to the accused in a video‑recorded interview, and I'm referring in particular to the records relating to the telephone number, 0420‑656‑716, which is admitted by the accused in the videotaped record of interview and not disputed in evidence as a telephone belonging, if that's the right word, to her.
The issues that were put to the accused in the interview were that the telephone records had been accessed and that by reference to another telephone, the police were able to put to the accused that a series of messages had passed between her telephone and the other telephone at about the relevant time in circumstances where the content of those messages were indicative of guilt. The accused has had an opportunity of those matters being put to her, and at the end of the day during the videotaped record of interview, I don't believe she actually addressed the content or the meaning of the messages, she simply indicated that she was confused about the issues and so it is then, at the end of the day that it's submitted to me that the conversation in relation to the telephone records is inadmissible. That is not a submission which I accept.
…
Far from being inadmissible, in my view the telephone records which were put to the accused in the videotaped record of interview could only be consistent with guilt. In my view there is evidence which will allow me to find that those communications occurred at or about the time of these transactions and there could be no other viable explanation for those communications other than what is conveyed in them that the accused was then in possession of Van Arkel's property and she was trying to determine precisely what she could do.

This appeal

By appeal notice dated 31 July 2008 the appellant applied for leave to appeal.
On 26 October 2008 McKechnie J granted leave to appeal on all eight grounds on which leave was sought. Those grounds, with amendments which the appellant sought leave to make at the hearing before me, were as follows (emphasis added):
1.The Learned Magistrate erred in law by ruling that a document (MFI 1) purporting to contain text messages sent to and from the Appellant be admitted in to evidence.
Particulars
(a)The document was hearsay;
(b)The document did not meet any of the requirements for admissibility of documentary evidence;
(c)The Appellant did not accept that the document was an accurate representation of messages sent or received by her;
(d)The contents of the text messages were not adopted by the Appellant
2.Alternatively, the Learned Magistrate erred in affording the evidence on MFI 1 any weight as the content of the messages was equivocal.
3.The Learned Magistrate erred in placing weight on the part of the video record of interview where the police questioned the Appellant about the contents of the document (MFI 1).
4.The Learned Magistrate reversed the onus of proof by offending the principles in Azzopardi v The Queen.
Particulars
(a)The Learned Magistrate commented that 'there was no evidence on oath to contradict the complainant'
(b)The Learned Magistrate failed to accord any or adequate weight to the Appellant's version of events
5.The Learned Magistrate failed to appreciate that the standard of proof is beyond reasonable doubt
Particulars
(a)The Learned Magistrate failed to accord any or adequate weight to the account given by the Appellant to the police officers which provided a defence to the charges;
(b)The Learned Magistrate failed to direct himself in terms of Liberato v The Queen.
(c)The Learned Magistrate failed to appreciate that there was no evidence to suggest that the Appellant's account was not a credible one.
6.The Learned Magistrate erred in failing to pay adequate weight to the documentary evidence (Exhibits A and 1) which demonstrated that the complainant's version of events was inaccurate.
Particulars
(a)Exhibit A and Exhibit 1 showed that the events surrounding the events as the complainant described them could not have happened.
7.The Learned Magistrate failed to accord any or adequate weight to evidence which reflected adversely on the credibility of the complainant.
Particulars
(a)The complainant gave evidence that she might have given the Appellant the PIN number to her account at some point prior to the alleged offences.
(b)The Learned Magistrate failed to accord any or adequate weight to the fact that the complainant had made a prior inconsistent statement to the ANZ bank to the effect that she had never given her PIN number to the Appellant.
(c)The Learned Magistrate failed to refer to the fact that the complainant had an extensive criminal record including several convictions for dishonesty.
(d)The Learned Magistrate failed to accord any weight to the fact that on the day in question the complainant had smoked amphetamines.
8.By reason of the errors made by the Magistrate either alone or in combination, there has been a miscarriage of justice justifying the convictions being quashed.
At the hearing before me, counsel for the appellant sought leave to amend grounds 1 ‑ 3 to replace the words 'Exhibit B' in each case with 'MFI 1', as shown by the words emphasised. This leave was sought, it was explained to me, because it was common ground that his Honour in his decision, while ruling the document was admissible, and while relying on its contents, never formally received the document into evidence. At the same time I note that, while his Honour appears to have physically received the document when it was handed up to him by the prosecutor during the trial, there was a failure at the trial to mark that document for identification. While it is regrettable that was not done, it appears to me no difficulty was created for this appeal by that failure. As both parties were able to identify the document in question before me as a copy of that which is the subject of the grounds of appeal as so amended, and as a copy of the document and its contents were treated by his Honour in the ways I have indicated, there seemed to me no possible prejudice to either party that would flow from identifying that document in that way. Indeed, the appeal was conducted by reference to the document so identified. To the extent necessary I grant the leave sought accordingly. My references to the grounds of appeal from now on are to the grounds so amended.

The hearing before me

At the hearing, counsel for the respondent submitted that grounds 1 and 2, whether in their original or their amended form, could not be upheld as they stood, because his Honour had never admitted MFI 1 into evidence. However, as counsel for the respondent accepted, ground 3 could be read with grounds 1 and 2, and, whether so read or read alone, that ground must be upheld, the appeal allowed on that basis alone, and the convictions quashed.
Counsel for the respondent also conceded that grounds 4 - 6 should be upheld, and that the appeal should be allowed and the convictions quashed, at least on grounds 4 and 5, alone, or when taken with ground 3, or when taken with grounds 1 ‑ 3.
As to ground 7, counsel for the respondent submitted that ground should not be upheld. This was on the basis that his Honour had referred to and made findings about the particular matters relied upon (ground 7(a) and (b)); or that his Honour would not have been in error in not giving significant weight to the matter in the circumstances (ground 7(c) and (d)); or both (ground 7(b)).
As to ground 8, counsel for the respondent submitted at the hearing that that ground was unnecessary, as the upholding of ground 3 (or grounds 1 ‑ 3), or grounds 4 ‑ 6, would be sufficient for the appeal to be allowed and the convictions quashed. As in my view that submission is plainly correct, I do not consider any useful purpose is served by considering whether or not ground 8 on its own would justify allowing the appeal and quashing the convictions.
Counsel for the respondent went on to submit that I should order a retrial, before a different magistrate. This was on the basis that the prosecution's case depended upon an assessment of the complainant's credibility which, as I had not heard her give her evidence, I could not assess. Further, the prosecution at the retrial should have an opportunity, denied to them before his Honour because of the way his Honour approached the matter, to put in evidence the document recording the text messages (MFI 1). At the same time the prosecution should have the opportunity to put in evidence that the times of the transactions shown in exhibit 1 were recorded by reference to Western Standard Time. This would allow the prosecution an opportunity to make its case, with the aid if necessary of evidence as to the time zone used for the text messages, to show the relationship, which counsel for the respondent suggested would emerge, between the times of the messages of concern and the times of the transactions of concern.
At the hearing before me, counsel for the appellant, not surprisingly, did not make further submissions that I should uphold grounds of appeal 1 ‑ 6. However, she submitted that ground 7 should be upheld, and in combination with grounds 1 ‑ 6, that ground should cause me to exercise my power in Criminal Appeals Act 2004 (WA) s 14 to enter a verdict of not guilty and acquit the appellant. I had sufficient material before me to show that a reasonable doubt as to the guilt of the appellant necessarily arose in this case. The prosecution should not have the opportunity a re-trial would afford them to repair a defective case.
At the hearing and following these submissions, I made the orders I earlier described allowing the appeal and quashing the convictions. I also gave the parties liberty to put on written submissions as to what further orders I should make consequent on those orders.

The subsequent submissions as to further orders

I received written submissions dated 20 January 2009 from the respondent (the respondent's further written submissions). I received none from the appellant, for reasons which will shortly become apparent.
The respondent's further written submissions were to the effect that a second trial should not be ordered, which was of course, as the submissions acknowledged, to the opposite effect of the submissions made at the hearing before me. The respondent's further submissions were, as I understood them, made on the basis of the principle in Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 321 (Gibbs CJ), which was considered in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [52] (Gummow, Hayne, Heydon and Crennan JJ) as follows:
Insufficiency of evidence at one trial does not justify an order for a second trial. In Gerakiteys …[at 321; see also at 322 per Murphy J and at 331 per Deane J], Gibbs CJ, when considering what was a sound exercise of the power of a court of criminal appeal to order a new trial, said: 'It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction' [See Reid v The Queen [1980] AC 343 at 349-350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel; and see also R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518 per Dixon J and Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 at 211 per Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ]. That proposition rests in part on the idea that if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial; and in part on the idea that a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first [Reid v The Queen [1980] AC 343 at 349-350 per Lords Diplock, Hailsham of St Marylebone, Salmon, Edmund-Davies and Keith of Kinkel.].

The departure of the respondent's further written submissions from the submissions counsel for the respondent had made at the hearing before me was explained as the result of an opportunity after the hearing for a proper consideration of this issue and the applicable law.
The respondent's further written submissions referred me to evidentiary insufficiencies of two sorts. One sort was as to the evidence of the text messages. The other sort was as to the remaining admissible evidence.
The respondent's further written submissions acknowledged that the prosecutor was invited by his Honour to consider calling the officer who had downloaded the text messages to produce the document MFI 1 (23 June 2008, ts 38). In response, the prosecutor reported that the relevant officer was ill (ts 38). The prosecutor did not apply for an adjournment so as to call that officer later.
In addition, the respondent's further written submissions acknowledged that if at a second trial the prosecution were to adduce evidence of the text messages in admissible form, it would be necessary for further evidence to be called for the text messages to have sufficient probative effect as independent evidence of guilt. Such evidence would be as to the times of the withdrawals, that would permit a comparison of those times with the times of the text messages; the contact name for the number shown in each case for the messages in the inbox and sent records on the mobile phone; the user of the mobile phone; the times and dates of the messages in the sent box, the record of which lacked this information; the time zone for the times of the text messages; and the accuracy of the clock in the mobile phone.
The respondent's further written submissions conceded that if the text messages were excluded, the only evidence that the appellant fraudulently used the ATM card and the PIN was that of the complainant. However, as the respondent's written submissions acknowledged, the complainant's evidence was that she had lent the appellant $200 earlier on 22 November 2007, which had involved a withdrawal made by the complainant with the ATM card. After this withdrawal she had gone by car to the appellant's home with the ATM card, after which the withdrawals occurred. Exhibit A and exhibit 1 both showed for 22 November 2007 that the only transactions of $200 were five in number, while exhibit 1, the only one of the two documentary exhibits showing times for the transactions, showed the times between the transactions were between one minute and four minutes at most. The complainant's evidence of an earlier transaction of $200 that day, the respondent's written submissions conceded, could not be explained consistently with that documentary evidence. At the same time the appellant's explanation in the video record of interview of the transactions with the ATM card and the PIN on 22 November 2007 was entirely consistent with that evidence.
The respondent's further written submissions conceded that, excluding the text messages, the difficulty with the complainant's evidence just described meant that on the admissible evidence a reasonable doubt as to the appellant's guilt must arise.

My conclusions and orders

In my view the learned magistrate's reliance on the text messages put to the appellant in the video record of interview was misplaced, and on that basis alone, being that to which grounds 1 ‑ 3 (read together) refer, the appeal had to be allowed and the convictions quashed. Without a basis, altogether absent in the trial, for the admission of those messages, no such reliance was possible. The basis might have been the adoption of the messages by the appellant or evidence from the officer who had downloaded the messages. However, neither basis was to be found in the trial.
Further, even if the text messages had been properly put into evidence, their weight would have been insufficient for the purpose to which the learned magistrate put them, without additional evidence of the kind referred to in the respondent's further written submissions.
Further, it seems to me that the learned magistrate made the errors to which grounds 4 - 6 refer. On those grounds also the appeal had to be allowed and the convictions quashed.
His Honour in the course of his decision said (23 June 2008, ts 51):
I have in front of me four matters alleging the fraudulent taking of $200 and I intend determining those four matters on the basis of the evidence which I have heard. There is no evidence on oath which counters the evidence on oath given by Van Arkel, and that is because the accused has elected not to give evidence. That is the accused's right. She is under no obligation whatsoever to give evidence and there are no adverse inferences to be drawn from that, but as I said, the fact is there is nothing which directly contradicts the evidence of Van Arkel and, at the end of the day, I am satisfied that with respect to the essential components of these four disputed transactions, Van Arkel's evidence is accurate and truthful and should be accepted.
In my view the learned magistrate's reliance on the fact that there was 'no evidence on oath which counters the evidence on oath given' by the complainant clearly infringed the principle in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, [51], [64], [68] and [73] (Gaudron, Gummow, Kirby and Hayne JJ). The principle is, for my purposes, sufficiently described in Cross on Evidence [1220] (at 22 March 2009), as follows:
Because juries may use the failure of the accused to testify detrimentally to the accused, 'it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt'. (Azzopardi … at [51]; … Since the warning is 'desirable', not universally mandatory, in some circumstances not all its ingredients need be stated, and even if all should be stated, it is sufficient to state their substance: R v Wilson (2005) 62 NSWLR 346 at [15]‑[25]; [2005] NSWCCA 20; BC200500719; R v DAH (2004) 150 A Crim R 14; [2004] QCA 419; BC200407327; R v Surrey [2005] 2 Qd R 81; [2005] QCA 4; BC200500150; cf R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261; BC200404880.) However, the cases in which comment about the way in which the jury might use the accused's failure to testify is permissible 'will be both rare and exceptional' (Azzopardi … at [68]; …) They will arise where there are 'additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw', being facts 'which (if they exist) would be peculiarly within the knowledge of the accused'. (Azzopardi … at [64]; … See Kalmar v Ballantyne (2006) 95 SASR 42; [2006] SASC 160; BC200604011.) However, 'comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case'. (Azzopardi … at [68]; …) The consequence is to render wrong a comment that in assessing the value of the Crown's evidence the jury could take into account the accused's failure to deny or contradict it in relation to matters within the accused's personal knowledge . (Azzopardi … at [73]; …)
His Honour also failed to make reference or otherwise indicate in his reasons for decision that he had taken account of the appellant's explanation in the video record of interview (exhibit B) for the transactions made with the ATM card and the PIN on 22 November 2007. That explanation, unlike that of the complainant, was consistent with the records of those transactions in exhibits 1 and A, as I have indicated. The statements of the appellant, consistent with her innocence in the video record of interview, were of course evidence for her.
In proceeding as he did his Honour infringed the principle from Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J):
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".
See also Cross [7085].
Further, his Honour had clearly understood that the complainant's evidence as to the transactions on 22 November 2007 was inconsistent with the records of those transactions in exhibit 1 and exhibit A. In his reasons for decision (23 June 2008, ts 47 ‑ 48, 51) his Honour said:
At the end of the day, it's suggested that there were five transactions undertaken by the accused without any form of authority, and there's a list of transactions in exhibit 1 which shows and has been referred to on a number of occasions, an inquiry at 1534 about a balance, and then a series of $200 withdrawals which occurred at 1534, 36, 40, 41 and 42. Of course as is obvious, the number of prosecution notices, there's four, don't accord with those withdrawals, and when I raise it with the prosecutor, he's suggesting that the $200 withdrawal at 1535 was that which was willingly engaged in by Van Arkel, but at the end of the day, that's not a proposition that appeals to me.
…
I have already pointed out the inconsistency between the prosecution case and the five withdrawals of $200. On Van Arkel's evidence, the matters could not have occurred in the sequence which is indicated by the transactions in exhibit 1.
At the same time there is no indication his Honour took account of that matter in determining the credibility of the complainant.
However, I am not convinced the learned magistrate erred in the respects described in ground 7.
In his reasons for decision his Honour referred to the complainant's evidence that she might have given the appellant the PIN at some point prior to the alleged offences, and to the evidence that she had made a statutory declaration earlier that was inconsistent with her evidence (ts 49). It is apparent from the text of his decision preceding and following those references that his Honour had weighed those matters for the purpose of assessing the complainant's credibility. He had weighed them together with 'the whole of the evidence' including 'the way in which she expresses herself; … her body language and all other factors of that kind' (ts 48), and 'the explanation' which she gave (ts 49). It is not evident from this that he erred in the respects indicated in ground 7(a) and (b).
True it is, however, that the learned magistrate did not refer in his reasons for decision to the complainant's criminal record. That record, which included offences of stealing, had been put to and accepted by her (cross‑examination, 23 June 2008, ts 18 – 19). Counsel for the defence had also put to her, but she had denied, that she was 'not an honest person', although she did accept that she had a conviction for 'thieving' which she agreed showed she had been 'deceitful' (ts 19 – 20).
Further, there was evidence of her use of amphetamines on 22 November 2007 at about the times of the alleged offences (ts 21, 22, 23), which it appears his Honour understood as going to show the complainant's recollection of those times could not be relied upon (ts 22). His Honour did not refer to this evidence in his reasons for decision, except for the light that evidence cast on the complainant's explanation for her possible provision of the PIN to the appellant (ts 49).
However, it is not apparent to me that the evidence of the complainant's criminal record and use of amphetamines was of such significance to an assessment of credibility as to make a failure to refer to that evidence an error of the kind assigned by ground 7. There is a marked contrast, it seems to me, between the significance of the evidence in respect of credibility, and of the evidence in the transaction records in exhibit 1 and exhibit A.
It follows from my conclusions on grounds 1 - 6 and the reasons for those conclusions that not only must the appeal be allowed and the convictions quashed, but I should also substitute, for the decision appealed against, a decision acquitting the appellant of all four of the charges she had faced.
There was insufficient evidence in the trial to justify those convictions without the admission of the records of the text messages, and without further evidence as to the text messages and the mobile phone from which they were taken. However, allowing for such admission and the further evidence would represent providing 'the prosecution an opportunity of mending its hand' by 'presenting new evidence at the second trial which it failed to present at the first' (Taufahema [52]).
I would make the orders of acquittal accordingly.