Le Cornu v Thomas (DEWNR)
[2019] SASCFC 154
•18 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LE CORNU v THOMAS (DEWNR)
[2019] SASCFC 154
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
18 December 2019
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against conviction of five offences contrary to the Marine Parks Act 2007.
The defendants, Le Cornu Sr and Le Cornu Jr, were observed by employees of the Department for Environment and Water to be operating an excavator in a zone of a marine park. An investigation was conducted and each of the defendants participated in a separate electronically recorded interview. The interviews were received into evidence at trial over objection.
Held, per Peek J (Bampton and Lovell JJ agreeing), allowing the appeal:
1. As to Ground 4 (the Judge erred in finding out of court statements by one defendant admissible against the other defendant and vice versa): In some cases, statements made by one defendant in an interview may be used against him or her as evidence going to prove the “common purpose” of the defendants. However, this will not justify the use of narrative statements by one defendant against the other defendant as proof of the charged offence. R v Aoukar (2011) 110 SASR 453; R v Tiplady (1985) 123 LSJS 37; Ahern v The Queen (1988) 165 CLR 87; R v Corak & Palmer (1982) 30 SASR 404; R v Singh et ors [1993] SASC 4109 discussed. By using the post offence narrative in both interviews as general evidence against both defendants, his Honour committed error of law.
2. As to Ground 1 (the reasons are inadequate): the Judge did not analyse the significance of the aspects of the evidence his Honour set out in his reasons for the correct conclusions on the particular counts and the Judge said little as to which submissions were accepted or rejected or for what reasons. Further, the Judge did not reveal the reasoning process by which his Honour concluded that the conduct alleged in Counts 1 to 5 was committed. DL v The Queen (2018) 356 ALR 197; AK v Western Australia (2008) 232 CLR 438 discussed.
3. The inadequacy of reasons means it is not possible for this Court to uphold the findings of guilt despite the error of law. It is not possible to know which statements, in which interview, and to what extent, were used as against which defendant. Pope v Ewendt (1977) 17 SASR 45; Police v Theophilus (2011) 110 SASR 420; Police v Rosales [2017] SASC 118 discussed. Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Procedure Act 1921 (SA) s 158(2) considered. Accordingly, the appropriate order is that there be a re-trial of the Information.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Procedure Act 1921 (SA) s 158(2); Magistrates Court Act 1991 (SA) s 42(5); Marine Parks Act 2007 (SA) s 17(1), referred to.
AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 356 ALR 197; Police v Rosales [2017] SASC 118; Police v Theophilus (2011) 110 SASR 420; R v Aoukar (2011) 110 SASR 453; R v Corak & Palmer (1982) 30 SASR 404; R v Robinson; R v Tiplady (1985) 123 LSJS 37; R v Singh et ors [1993] SASC 4109, discussed.
Ahern v The Queen (1988) 165 CLR 87; Pope v Ewendt (1977) 17 SASR 45, considered.
LE CORNU v THOMAS (DEWNR)
[2019] SASCFC 154Full Court: Peek, Bampton and Lovell JJ
PEEK J: Appeal against findings of guilt.
This prosecution commenced in somewhat serendipitous circumstances. On 5 December 2017, Mr Virag, a hydrographic surveyor employed by the Department for Environment and Water, was performing duties with others aboard a boat just off the coast. In the course of those duties, while just north of Morgan’s Beach, he happened to notice an excavator machine being used in shallow water in front of residential premises. He watched what was occurring for some time and later followed up by making various inquiries. The residential premises happened to be those of the first defendant (Mr Barry Lance Le Cornu) and it transpired that the excavator had been operated by his son, the second defendant (Mr Allan Russell Le Cornu). They will be referred to as the defendants, or individually as Le Cornu Sr and Le Cornu Jr in keeping with the terminology used by the Judge.
An investigation into the commission of offences contrary to provisions of the regulations prohibiting or restricting activities within a zone of a marine park was carried out. Evidence was gathered and witness statements were taken. Each defendant was interviewed separately; Le Cornu Sr on 23 May 2018 and Le Cornu Jr on 29 May 2018 respectively. Both interviews were electronically recorded with the transcripts being of 62 pages and 42 pages respectively. The interviews were received into evidence at trial; their admission was strongly objected to on various grounds but such objections were overruled and their admission (as distinct from their mode of use) is not challenged on this appeal.
The charges and the trial proceedings
Charges of five offences were laid on Information in the Environment, Resources and Development Court (ERD Court) against both defendants, it being specifically averred in each count that the defendants acted in concert and jointly performed the acts complained of. The charges, as amended, were as follows:
Count 1
1.Between about 4 December 2017 and 9 December 2017, the first and second defendants, acting in concert, jointly dredged in a channel in the Encounter Marine Park Habitat Protection Zone (HPZ-6).
Contrary to section 17(1) of the Marine Parks Act 2007.
This is a summary offence.
Particulars
1.1The dredging occurred within a “habitat protection zone” under the Marine Parks Act and was an activity that was prohibited or restricted in that zone by virtue of regulation 7(3)(c) of the Marine Parks (Zoning) Regulations 2012.
1.2The area dredged is located seaward to the boundary of section 208, Hundred of Yankalilla, near Cape Jervis and is marked as a yellow dotted line and labelled “Channel” on the attached map.
Count 2
2.Between about 4 December 2017 and 9 December 2017, the first and second defendants, acting in concert, jointly dredged in the Encounter Marine Park Habitat Protection Zone (HPZ-6).
Contrary to section 17(1) of the Marine Parks Act 2007.
This is a summary offence.
Particulars
2.1The dredging occurred within a “habitat protection zone” under the Marine Parks Act and was an activity that was prohibited or restricted in that zone by virtue of regulation 7(3)(c) of the Marine Parks (Zoning) Regulations 2012.
a. The area dredged is located seaward to the boundary of section 208, Hundred of Yankalilla, near Cape Jervis and is marked as a yellow dotted line and labelled “Rocks” on the attached map.
Count 3
3.Between about 4 December 2017 and 9 December 2017 the defendants, acting in concert, jointly deposited in the Encounter Marine Park Habitat Protection Zone (HPZ-6) solid matter removed as a consequence of dredging.
Contrary to section 17(1) of the Marine Parks Act 2007.
This is a summary offence.
Particulars
3.1The depositing of the solid matter occurred within a “habitat protection zone” under the Marine Parks Act and was an activity that was prohibited or restricted in that zone by virtue of regulation 7(3)(d) of the Marine Parks (Zoning) Regulations 2012.
3.2The solid matter was deposited in an area of the Encounter Marine Park located seaward to the boundary of section 208, Hundred of Yankalilla, near Cape Jervis and is marked as a red dotted line and labelled “deposited material 1” on the attached map.
Count 4
4.Between about 4 December 2017 and 9 December 2017, the defendants, acting in concert, jointly deposited in the Encounter Marine Park Habitat Protection Zone (HPZ-6) solid matter removed as a consequence of dredging.
Contrary to section 17(1) of the Marine Parks Act 2007.
This is a summary offence.
Particulars
4.1The depositing of the solid matter occurred within a “habitat protection zone” under the Marine Parks Act and was an activity that was prohibited or restricted in that zone by virtue of regulation 7(3)(d) of the Marine Parks (Zoning) Regulations 2012.
4.2The solid matter was deposited in an area of the Encounter Marine Park located seaward to the boundary of section 208, Hundred of Yankalilla, near Cape Jervis and is marked as a red dotted line and labelled “deposited material 2” on the attached map.
Count 5
5.Between about 4 December 2017 and 9 December 2017, the first and second defendants, acting in concert, jointly harmed algae in the Encounter Marine Park Habitat Protection Zone (HPZ-6).
Contrary to section 17(1) of the Marine Parks Act 2007.
This is a summary offence.
Particulars
5.1The harming of the algae occurred within a “habitat protection zone” under the Marine Parks Act and was an activity prohibited or restricted in that zone by virtue of regulation 7(3)(f)(ii) of the Marine Parks (Zoning) Regulations 2012.
5.2The algae were harmed when the rocks to which they were attached was removed from the water and placed at the location marked and labelled on the attached map as “AFB-Photo.64”.
As is required, the trial was heard by a single Judge of the ERD Court. Judge Durrant found both defendants guilty of each offence. Further proceedings concerning penalty and ancillary orders await the outcome of this appeal.
The appeal proceedings
This appeal is governed by s 42(5) of the Magistrates Court Act 1991 (the MC Act). The right of appeal in criminal proceedings before the ERD Court is declared to equate to an appeal in a criminal proceeding under the MC Act.[1] Such an appeal ordinarily lies to a single judge of the Supreme Court but the matter was referred to this Court by Blue J.
[1] Environment, Resources and Development Court Act 1993 (SA) s 30(4); Resourceco Pty Ltd v Harvey (2007) 96 SASR 495, 504 [34]–[35] (Debelle J).
The amended Grounds of Appeal are as follows:
(1) The Learned Trial Jude’s [sic] reasons are inadequate. In particular, the reasons are inadequate:
·
with respect to what conduct by the appellant was found proven in each of counts
1 –5 inclusive.
(2) The Learned Trial Judge erred in finding that the bed of marine waters includes the intertidal zone.
(3) The Learned Trial Judge erred in counts 1–4 inclusive in finding the appellant had dredged. In the alternative, the verdicts on counts 1–4 inclusive are vague and uncertain.
(4) The Learned Trial Judge erred in regarding the out of court statements of the appellant’s co-accused as admissible against the appellant.
(5) The Learned Trial Judge erred in finding count 5 proved.
For reasons that become apparent, it is only necessary to determine Grounds 4 and 1 of Appeal and they will be addressed in that order.
Ground 4 of Appeal: The uses of the records of interview
During the course of the trial (and in final submissions) defence counsel made plain that what was said in one interview by one defendant was not admissible against the other defendant. The prosecution did not gainsay that entirely orthodox submission and the Judge gave no indication prior to his written judgment that he would take any other course. However, in the course of his judgment, the Judge said this:[2]
101. The defendants referred to and repeated the argument they had made in respect of the admissibility of the records of interview and also submitted that the interviews were not admissible against each other defendant. I reject that submission. The defendants were jointly charged and I am entitled to have regard to the whole of the evidence.
[2] Chris Thomas (DEWNR) v LeCornu [2019] SAERDC 33.
This is a plain error of law and counsel for the respondent concedes that to be so in his Outline of Argument.
In fairness to the Judge, I think the genesis of his misunderstanding may be that his Honour misread the comparatively recent decision in R v Aoukar.[3] To explain, one may start with the earlier decision of this Court in R v Robinson; R v Tiplady[4] (Robinson and Tiplady) (referred to in Aoukar). There, the appellants had asserted error by the Judge in relation to each of two different categories of evidence, to which I will refer as Category A and Category B.
[3] (2011) 110 SASR 453.
[4] (1985) 123 LSJS 37.
Category A is evidence of the later recounting of narrative in a police interview. Here the situation is governed by the broad rule against hearsay – the statements of defendant one to a police officer cannot be used against defendant two and this is clearly the case even though it be alleged that the defendants acted in concert. Thus, as is stated by J D Heydon in Cross on Evidence:[5]
[33520] The out-of-court admission of one co-defendant, co-plaintiff or co-accused is not admissible evidence against the other by virtue of the mere fact that they are joint parties or said to be jointly involved in a particular transaction.
…
[33565] The acts (including declarations) of one conspirator or other participant in a common design are receivable against the other if they are done in pursuance of the original concerted plan and with reference to the common object, irrespective of whether the accused against whom the acts or declarations are tendered is proved to have been concerned in that particular action. But what one of the participants said, not in furtherance of the common design, but as a mere relation of some past transaction or as to the share which some of the others have had in the execution of it, is inadmissible against the others. [Emphasis added]
[5] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017), 1285 [33520], 1295 [33565].
Category B is evidence of acts (including speech) occurring at the time of the alleged offending in the presence of one defendant and in the absence of the other. Here, it is essential to note that in Robinson and Tiplady the two defendants were charged on the same Information with rape of the same complainant but there was no allegation of joint enterprise; the counts were separate and the prosecution case in relation to each count stood or fell according to the evidence concerning that count. It was in these circumstances that King CJ said as to this Category B:[6]
… There is, I think, a real danger in the circumstances of this case that each appellant might have been prejudiced in the minds of the jury by the evidence of what other people did in the absence of the particular appellant and without his knowledge. The jury should have been instructed that before using such material against a particular accused they should first be satisfied that he was either a party to the particular event or at least was affected by knowledge of it.
[6] R v Robinson; R v Tiplady (1985) 123 LSJS 37, 40.
However, in R v Aoukar the Court was dealing with different factual circumstances and a prosecution case which was clearly one of a joint enterprise. Thus, Vanstone J stated:[7]
15. Where, in a trial of more than one accused person, evidence is given of out-of-court statements by one of them which are of a narrative or assertive nature, perhaps, as here, in the form of an interview with police or telephone conversations with third parties, that evidence is, in the absence of a special rule, not admissible against the other accused person. (Relevant special rules would include those applying to statements made in furtherance of a joint enterprise; and to a joint attempt to fabricate, as in Khan v The Queen [1967] AC 454; R v Kamleh [2003] SASC 269). The trial judge must instruct the jury to that effect. Harbach’s case provides clear authority for that proposition. In that case the co-accused, Monika Munroe, had made a confession to police which implicated Harbach in the killing. She had also implicated Harbach in statements made to civilian witnesses prior to being charged. Plainly, her out-of-court assertions were not admissible against Harbach. Directions to that effect were given.
16. However, the situation with statements of the co-accused which are not of a narrative or assertive nature, and with evidence of his acts, is not necessarily the same. Assume A and B are charged jointly with a crime. Evidence of observations made of B’s activities, including non-narrative statements which accompany those activities or objective matters connecting B to the crime, is evidence which concerns only B, but it is admissible for all purposes. Often there will be no need to warn the jury against using it against A, because, logically, it will not be capable of such use, at least in a direct sense. Indeed it will often be of use to A, inasmuch as it will implicate B and not A. Ordinarily, no direction about it will be required.
17. Robinson and Tiplady was, in some respects, an unusual case and provides an example of a situation where directions about such evidence are required. There, the two appellants were each charged with offences of rape against a young woman. There was no allegation of joint enterprise, or of aiding and abetting. It was a matter of dispute whether the accused men were together when any of the acts of intercourse occurred. The appeals were allowed by reason of a number of defects in the summing up. One of those was that no direction was given prohibiting the use against Robinson of what Tiplady said to police in an interview. Another was that no caution was issued to the effect that events occurring between the victim and one or other accused man could only be used against the other if he were either present, and would have seen those events, or was otherwise apprised of them. …
[7] (2011) 110 SASR 453, 457–458. Doyle CJ and Peek J concurring.
Her Honour then reproduced the statement by King CJ in Robinson and Tiplady (extracted at paragraph 13 above) and made clear that in Aoukar, the evidence complained of by the appellant was not a post offence narrative by one defendant in the absence of the other (as it is in the present case) but rather the playing of intercepted telephone calls which, on the prosecution case, were made in furtherance of a joint enterprise. Her Honour considered that that material was available for use against either accused.
It is to be emphasised that in such cases there will often be a question as to how the fact of joint enterprise is to be proven so as to avoid circularity of reasoning. Although prior to the seminal decision of the High Court in Ahern v The Queen,[8] the judgment of King CJ in R v Corak & Palmer[9] remains notable for its clarity and simplicity of expression. His Honour there said:[10]
Both appellants complained of the admission against them of conversations in their absence between Detective Elliott and the man Waters. The appellant Corak also complained of the admission against him of conversations in his absence between Elliott and the appellant Palmer. The argument in each case was that there was insufficient evidence of preconcert to justify the admission of the evidence. Counsel stressed that this was a charge of possession of Indian hemp for trading, not a charge of conspiracy. The rule of evidence under which the evidence was admitted is, however, the same whatever the charge. The rule is that acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties. There is, however, a problem inherent in the application of the rule which arises because the evidence is admissible to prove the very common purpose whose existence provides the justification of the admission of the evidence. The efforts of the courts to minimize this problem have produced a difference in the practical application of the rule in trials of substantive charges and trials of conspiracy charges. In the former “some reasonable evidence of the preconcert must be adduced” before evidence of acts or words of one of the parties in the absence of the other is admissible against that other (Tripodi v. The Queen). In the latter it is not necessary to look for evidence of common purpose other than the evidence whose admissibility is in question before admitting the latter evidence. The reason for this difference in application of the rule is to be found in the nature of the charges to be proved. Proof of a charge of conspiracy is proof of the common criminal purpose. The evidence cannot therefore be misused. If the evidence proves the conspiracy it also proves the common criminal purpose which justifies the admission of the evidence. The verdict itself justifies the admission of the evidence. If the evidence does not prove the conspiracy, the charge fails and it is immaterial that the common purpose required to justify the admission of the evidence is seen not to exist. An accused may be convicted on a charge of a substantive offence without proof of common purpose between the accused on the one hand and the maker of the statement or the doer of the act sought to be introduced into evidence on the other. There is a danger of misuse. A jury might be influenced to convict by evidence of such statement or act although it might turn out that, there being no common purpose, it ought not to be used against the accused. On trials of substantive charges, at least where proof of the charge is not inseparably linked with proof of common purpose, the evidence is not admitted unless there is some other reasonable evidence which makes the existence of a common purpose a real possibility. Once admitted, of course, the evidence is available to prove the existence of the common purpose.
Counsel argued that the evidence of the conversations could not be admitted unless there was some evidence of acts or statements indicating participation in the common design, done or uttered by the particular accused at an earlier time than the statements whose admission is under challenge. The charge is not a conspiracy charge. It is a charge of a substantive offence which could be proved against the appellants without proof of pre-concert with Waters and could be proved against Corak without proof of pre-concert with Palmer. In cases such as the present case, there must, as I have already pointed out, be evidence raising at least a real possibility of pre-concert before the challenged evidence is admitted. The real possibility of the common design or purpose which in appropriate cases is a condition precedent to admission of the evidence, may, however, be indicated by evidence of acts or statements done or made by the accused or in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place. [Citation omitted]
[8] (1988) 165 CLR 87.
[9] (1982) 30 SASR 404.
[10] (1982) 30 SASR 404, 405–406.
In some cases (and the present case appears to be one of them), where defendants one and two have each participated in separate interviews, the statements made by defendant one in his interview may be used against defendant one as evidence going to prove the “common purpose” of the defendants (as referred to in Corak & Palmer); and, of course, the statements made by defendant two in his interview may be used against defendant two as proof of “common purpose” in the same way. However, as already noted, this will not justify the use of a narrative statement(s) by one defendant in his interview against the other defendant as substantive proof of the charged offence.
The situation as it applies to the present case was helpfully summarised in R v Singh et ors (eight years after Robinson and Tiplady) by Duggan J (with whom King CJ and Debelle J concurred) thus:[11]
The fact that this was a joint trial of a number of accused rendered it necessary for the trial judge to direct the jury that they were required to consider the case against each accused separately. In a case such as the present it is not adequate to confine the direction to a simple statement in those terms. (R v Towle (1954) 72 WN (NSW) 338.) The jury must be given clear directions as to the evidence which it is permissible to use against each accused and the circumstances in which and the purposes for which it can be used. (R v Robinson and Tiplady (1985) 123 LSJS 37 per King CJ at 39.) They must be warned not to use evidence against an accused which is not admissible in the case against that accused (R v Harbach and Munro (1973) 6 SASR 427) and this will involve identifying such evidence. In some cases the only evidence which will come into the last mentioned category will be out of court statements made by one accused in the absence of the other or others. [Emphasis added]
[11] [1993] SASC 4109 (18 August 1993).
As Duggan J there observed, sometimes the only evidence that must be dealt with separately will be out of court statements made by one accused in the absence of the other; and this appears to be so in the present case. However, as it happens, those out of court statements are here of a most important kind, detailed electronically recorded interviews of each of the defendants extending to some 62 and 42 typed pages respectively.
Thus in summary, the error that the Judge in the present case made was in not accurately distinguishing between what I have called categories A and B. His Honour here simply used the post offence narrative in both interviews as general evidence against both defendants of proof of the substantive charges. This was impermissible, irrespective of the fact that the case against the two defendants is here one of joint enterprise.[12]
[12] For the sake of completeness, I note that in quite unusual cases a situation may occur where the giving of a previously jointly concocted false story by each of two defendants in separate interviews may be said to be a continuation of a joint enterprise; in effect to “commit and conceal an offence”. It is to this type of situation that Vanstone J alluded in Aoukar when she referred to a “special rule” exception. However, no such “special rule” exception was under consideration on the facts in Aoukar itself and there certainly can be no suggestion that it arises in the present case.
I find that Ground 4 of Appeal is made out. However, before considering the effect of that finding, I will consider Ground 1 of Appeal.
Ground 1 of Appeal: Failure to give adequate reasons
There have been a number of relatively recent disquisitions concerning the nature and extent of the requirements of a Judicial Officer to provide reasons for judgment in a trial of a criminal offence.[13] However, I consider that for present purposes it is sufficient to refer to the precepts set out in DL v The Queen. The majority (Kiefel CJ, Keane and Edelman JJ) there stated:[14]
33. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[15] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[16] In particular:[17]
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
[13] These include (in chronological order) the judgments of the High Court in: AK v Western Australia (2008) 232 CLR 438; Filippou v The Queen (2015) 256 CLR 47; DL v The Queen (2018) 356 ALR 197; and a number of decisions of this Court including R v Keyte (2000) 78 SASR 68 and R v Becirovic [2017] SASCFC 156.
[14] (2018) 356 ALR 197, 204–205.
[15] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
[16] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443; 25 MVR 373.
[17] AK v Western Australia (2008) 232 CLR 438; 243 ALR 409; [2008] HCA 8 at [85] (footnote omitted).
The structure of the Judge’s reasons here may be summarised as follows.
Topic Paragraphs Number of Pages Introductory matters 1–8 3 The legislative and regulatory scheme 9–25 3 Reproducing the agreed facts 26 4 Summary of the evidence 27–53 5½ Reference to the interviews, including long extracts from interview of Le Cornu Sr 54–58 8 Reference to the interviews, including long extracts from interview of Le Cornu Jr 59–63 6 Reference to the evidence of the defence witness, Dr Rosalind King 64–65 ¼ Summary of the parties’ submissions 66–106 6 “Consideration” (of the facts and legal arguments) and “Finding” 107–118 1⅓ Total paragraphs and actual pages 118 37
Unfortunately, while the Judge did set out in his reasons a number of aspects of the evidence, he did not analyse their significance for the correct conclusions on the particular counts; and while his Honour did refer to submissions made by the parties, he said little as to which were accepted or rejected; or for what reasons. Further, his Honour did not adequately delineate the particular conduct of the respective defendants which he found to be proven beyond reasonable doubt and did not reveal the reasoning process by which he concluded that the conduct alleged in Counts 1 to 5 was committed. Indeed, the “consideration” section of the judgment is very short and consists only of the following:[18]
[18] Chris Thomas (DEWNR) v LeCornu [2019] SAERDC 33.
107. I have carefully reviewed the evidence and, in particular:
- the GPS data which proved the presence of the excavator on the days in question at each of the places pleaded;
- the available photographic before and after evidence of the status of the area adjacent to the property;
- the eye-witness accounts from Mr Zalups as to the before and after status of the property and the observations of Mr Virag as to work being undertaken; and
- the admissions contained in the records of interview of both defendants.
108. The GPS evidence was not seriously questioned and I have exercised the caution the defendants contended for in its use. Having done that, I do consider it to be objective compelling and incontrovertible evidence against which other evidence can be reviewed and considered. It is the strongest thread in the circumstantial evidence led.
109. I am satisfied, beyond reasonable doubt, that the activities pleaded in Counts 1 to 5 occurred and were carried out jointly by the defendants.
It is true that there was discussion arguendo during the course of the trial, but it was made clear by the High Court in AK v Western Australia that this was not a substitute for an ultimate statement of the reasons for decision. The position was clearly stated in the judgment of Gleeson CJ and Kiefel J thus:[19]
16. Section 120(2) of the Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied. The effect of such a statutory requirement was considered by this Court in Fleming v The Queen. All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant’s arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution. [Emphasis added] [Citation omitted]
[19] (2008) 232 CLR 438, 445–446.
I have no alternative but to accept the appellants’ submission that the Judge failed to delineate adequately the reasoning process by which he concluded that the charges were proven.[20] I find that Ground 4 of Appeal is made out.
Can the findings that the Counts are proven nevertheless stand?[21]
[20] I note here, by way of contrast, the analysis in Fowler v The Queen [2019] SASCFC 153, a judgment upholding a Judge’s very detailed reasons being delivered at the same time as this judgment.
[21] I here put to one side the matters referred to in the other Grounds 2, 3 and 5 of Appeal; some, all or none of which may be resolved in favour of the appellants by the new Judge at the re-trial.
Counsel for the respondent very properly accepted that the asserted error in Ground 4 of Appeal was made out and submitted thus in his written submissions:
2. By appeal ground four the appellants contend that the learned trial judge erred in admitting out of court statements of each appellant against the other appellant (the appellants being co-accused). The respondent concedes that ground of appeal. …
…
3. In light of the respondent’s concession as to appeal ground four the appeal should be allowed. The question before this Court is the consequential disposition of the appeal. The respondent contends that this Court should, in the interests of justice, confirm the findings of guilt of the trial judge pursuant to s 42(5)(a) of the MC Act. Alternatively, the Court should quash the findings and remit the matter for retrial under s 42(5)(b).
Counsel then carefully developed in detail his contentions as to how the findings of proof of each Count might be salvaged.
Consideration
In fact, as counsel for the respondent accepted on the hearing of the appeal, technically speaking his concession was that Ground 4 of Appeal was made out and his consequential submission was that the appeal should nevertheless be dismissed in the particular circumstances of this case.
It is to be noted at the outset that the common form “proviso” (formerly Criminal Law Consolidation Act 1935 s 353(1) but now Criminal Procedure Act 1921 s 158(2)) only applies to appeals under the Criminal Law Consolidation Act 1935 and that there is no equivalent provision in the MC Act.[22] The correct approach to the above contention in a Magistrates appeal (and hence in the present case) was discussed in Police v Theophilus as follows:[23]
[22] Police v Rosales [2017] SASC 118, [96].
[23] (2011) 110 SASR 420, 438–440.
52. In … Pope v Ewendt,[24] Bray CJ … stated that an appeal involving the admission of inadmissible evidence could be dismissed only if that evidence could have had no effect upon the result. His Honour emphasised, as had Napier CJ in the earlier decision in Pelham v Homes,[25] that “this course cannot be adopted unless it is clear that the same result must or would have been achieved if the wrongly admitted evidence had been excluded”.[26]
[24] Pope v Ewendt (1977) 17 SASR 45.
[25] Pelham v Homes [1928] SASR 105.
[26] Pope v Ewendt (1977) 17 SASR 45 at 50.
53. The later cases of O’Leary v Dair[27] (White J), Stock v Wierda[28] (Debelle J), Nikolettos v Johnston[29] (Legoe J) and Musico v Police[30] (Mullighan J) are all examples of former justices of the court adopting the approach of Bray CJ in Pope v Ewendt (and indeed that of Napier CJ in the earlier decision in Pelham v Homes[31]) and determining, with appropriate caution, that although a ground of appeal was otherwise made out, the charge had been so clearly proven that it must clearly have been held by the Magistrate to have been proven irrespective of the error which was found to have occurred.
54. In Gazepis v Police,[32] it seems to me that Doyle CJ (with whom Lander and Bleby JJ concurred) in effect adopted much the same approach even though using the slightly different language of miscarriage of justice.[33] His Honour referred to s 42(5) of the Magistrates Court Act 1991 (SA) and stated:[34]
Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, for example, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O’Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
55. However, with respect, it is my view that the previous authorities, including the decisions of two previous Chief Justices in Pelham v Homes[35] and Pope v Ewendt[36] respectively, do establish that it is incumbent upon the respondent to demonstrate that, in the language of Gazepis, no miscarriage of justice has occurred. I note that in cases subsequent to Gazepis, and in reliance upon that decision, the language of “miscarriage of justice” has been increasingly used. However, it is important to note that it has been emphasised that it is for the respondent to establish that no miscarriage of justice has occurred. This was the approach taken by Mullighan J in Musico.[37] I also note that in Wait v Police,[38] Besanko J found that the magistrate had erred in placing weight on the defendant’s “failure” to call witnesses in his defence. His Honour then stated:
[49]On the appeal under s 42 I must review the evidence and reach my own conclusions giving due weight to the fact that the Magistrate has seen and heard the witnesses. The fact that there is an error by the Court below does not mean that I am required or permitted to allow the appeal if I am satisfied that there has been no miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129). I am satisfied that there has been no miscarriage of justice in this case. The magistrate was entitled to accept the evidence of Ms Goodenough and to act on it. It established the guilt of the accused.
56. I propose to take the approach adumbrated by Bray CJ in Pope v Ewendt.[39] Adopting that approach, I have come to the view that the combination of strong circumstantial and strong direct evidence produced a prosecution case on count 9 that was overwhelming. … I am sure that her Honour would, on the basis of the combined circumstantial and direct evidence, have come to the same decision quite irrespective of that particular line of reasoning.[40] [Emphasis added]
[27] O’Leary v Dair (1984) 13 A Crim R 404 at 416.
[28] Stock v Wierda (unreported, Supreme Court, SA, Debelle J, No 2487 of 1990, 21 June 1991).
[29] Nikolettos v Johnston (1991) 14 MVR 491.
[30] Musico v Police [2003] SASC 26.
[31] Pelham v Homes [1928] SASR 105.
[32] Gazepis v Police (1997) 70 SASR 121.
[33] His Honour cites the two decisions of Newman v Byrne [1969] SASR 350 and O’Leary v Dair (1984) 13 A Crim R 404 in support of the use of that phrase in the context of a dismissal of a magistrates appeal. I note that Newman v Byrne was a decision by Mitchell J in the context of a prosecution appeal against an acquittal by a magistrate where the phrase “miscarriage of justice” may well have been thought appropriate as emphasising the high degree of error and injustice to the prosecution that would have been thought necessary to justify an appeal against an acquittal at a time when the stance against such a form of double jeopardy was much stronger than it is now. In the second decision cited, that of O’Leary v Dair, White J was considering a defence appeal against conviction but, as I read his judgment, his Honour counselled against the importation of a “miscarriage of justice” test from the Criminal Law Consolidation Act 1935 (SA), instead identifying the statement of Bray CJ in Pope v Ewendt as being the correct approach. Thus his Honour stated (at 416):
During argument, counsel referred repeatedly to miscarriage of justice and no miscarriage of justice. The Justices Act 1921 (SA) does not contain a provision equivalent to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) which empowers the court to dismiss an appeal (even if the appellant establishes all or some of his grounds of appeal) provided there has been no miscarriage of justice. Perhaps some analogous power of dismissal exists. An appeal may be dismissed if the errors at the hearing could have had no effect on the result: Pope v Ewendt (1977) 17 SASR 45 at 50 per Bray CJ. I hold that the errors complained of in the grounds of appeal (in so far as they were made out) could have had no bearing on the result, since the three convictions were founded upon evidence, which the magistrate believed, more than sufficient to justify them and the findings necessary to support them.
I note that White J took the same approach in the later decision in Daly v Medwell (1985) 40 SASR 281 at 292.
[34] Gazepis v Police (1997) 70 SASR 121 at 129.
[35] Pelham v Homes [1928] SASR 105.
[36] Pope v Ewendt (1977) 17 SASR 45.
[37] Musico v Police [2003] SASC 26.
[38] Wait v Police [2003] SASC 94. His Honour took the same approach in the later decisions in Grey v City of Marion [2005] SASC 92 and Gomez v Police [2005] SASC 64.
[39] Pope v Ewendt (1977) 17 SASR 45.
[40] I note in passing that in Gomez v Police [2005] SASC 64, Besanko J came to the same conclusion where the magistrate had erred in relation to the application of Browne v Dunn reasoning, being of the view that he had decided the case by reference to whether he was prepared to accept the evidence of the complainant beyond reasonable doubt without necessary resort to such reasoning. Thus his Honour stated (at [23]):
The sixth ground of appeal is that the Magistrate erred in saying that it was not put to L that the appellant did not touch her breast under her clothing for a short time. It was certainly put to L that the appellant did not touch or try to undo her clothing and I think it was effectively put to her that the incident involving the touching of her breast did not occur. I think the Magistrate did err but I do not think that it may have given rise to a risk of a miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129; Wait v Police [2003] SASC 94 per Besanko J at [49]). Reading his reasons as a whole I think that it is clear that he has decided the case by reference to whether he should accept L’s evidence beyond reasonable doubt and not by reference to what was and was not put to her. I reject the sixth ground of appeal.
In 2017 in Police v Rosales, I returned to this matter and stated:[41]
95. In Theophilus v Police[42] I considered the circumstances in which an appeal under s 42 of the Magistrates Court Act 1991 may be dismissed even though a ground of appeal has been made out. I there followed the decisions of Napier CJ in Pelham v Homes,[43] Bray CJ in Pope v Ewendt,[44] and other later cases, all to the effect that a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
96. I note the approach of counsel for the respondent in advocating for an approach couched in terms of “miscarriage of justice”, but I prefer the above approach. In part, this is because the term “miscarriage of justice” might be mistakenly thought to connote a de facto importation of “the common form proviso” in s 353(1), Criminal Law Consolidation Act 1935 into the area of Magistrate Court appeals brought pursuant to s 42 of the Magistrates Court Act 1991. That, of course, cannot be lawfully done; s 353(1) of the Criminal Law Consolidation Act 1935 has no application to an appeal brought pursuant to s 42, Magistrates Court Act 1991. Maintaining this distinction may be all the more important since the High Court has commenced to formulate a new approach to the common form proviso commencing with Weiss v The Queen,[45] continuing with a number of more recent decisions and, with all respect, further decisions not being unlikely. [Emphasis added][46]
[41] [2017] SASC 118.
[42] Theophilus v Police (2011) 110 SASR 420, 438–440.
[43] Pelham v Homes [1928] SASR 105.
[44] Pope v Ewendt (1977) 17 SASR 45.
[45] Weiss v The Queen (2005) 224 CLR 300.
[46] Of course, a number of the examinations of Weiss by the High Court had occurred prior to the Rosales judgment. Pertinent decisions of the High Court since that judgment include: Kalbasi v Western Australia (2018) 264 CLR 62; Collins v The Queen (2018) 355 ALR 203; Lane v The Queen (2018) 357 ALR 1; and OKS v Western Australia (2019) 93 ALJR 438.
I note that: in Corfield v Police [2017] SASC 170 and McLeod v Police [2019] SASC 69, Stanley J followed Rosales; in Hudson v Commissioner of Police [2016] SASC 145, Nicolson J followed Theophilus; and in Aslin v Police [2017] SASC 179, Doyle J (with the wisdom of Solomon) simply cited both Gazepis and Theophilus.
In the present case, at paragraph [107] of the Judge’s reasons (reproduced above), his Honour emphasised four categories of evidence that he had reviewed, one being “the admissions contained in the records of interview of both defendants”.
In my view, an insuperable problem for the respondent is that one cannot know which statements, in which interview, and to what extent, were used as against which defendant simply because the Judge used the whole of the two interviews indiscriminately as evidence at large against both defendants. To attempt to uphold the Judge’s findings of guilt despite the holding that Grounds 4 and 1 are made out would take the application of the Pope v Ewendt principle much further than any decided case of which I am aware. I also tend to agree with the appellants’ further submission that the inadequacy of reasons here “means that, were the Full Court now to proceed to make its own findings on the evidence, it would in effect be the Full Court conducting its own trial of the appellants. Importantly, it would be a trial from which no appeal would lie (other than by special leave to the High Court)”.
Accordingly, I would allow the appeal, quash the findings of the Judge and order a re-trial of the Information before a different Judge.
BAMPTON J: I agree that grounds 1 and 4 of the amended notice of appeal are made out for the reasons given by Peek J.
It is not in the interests of justice, given ground 1 concerning the adequacy of reasons is made out, for this Court, pursuant to s 42(5)(a) of the Magistrates Court Act 1991 (SA) (“the Act”), to confirm the findings of guilt made by the trial Judge. If this Court were to proceed to make its own findings on the evidence, it would be conducting its own trial of the Information.
Accordingly, I would allow the appeal and, pursuant to s 42(5)(b) of the Act, remit the matter for hearing in the Environment, Resources and Development Court before another Judge.
LOVELL J: I agree with Peek J that the appeal should be allowed and the matter should be remitted for a retrial before a different judge.
I agree generally with the reasons of Peek J with one caveat in relation to Ground 4.
Having conceded error by the Primary Judge, the respondent submitted that given the strength of the prosecution case this Court should, in any event, confirm the findings of guilt on its review of the evidence.
As Peek J has observed in his reasons there is debate in the authorities as to the appropriate test to be applied in such circumstances. While I acknowledge the force of the reasoning of Peek J, the issue was not fully argued before us. I would defer deciding the point until hearing full submissions. In my view, whichever test is applied, this Court, in the circumstances, should not proceed to make its own findings on the evidence. A re-trial is the appropriate remedy.
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