Londy Pty Ltd v O'REILLY - [2005] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LONDY PTY LTD -v- O'REILLY [2005] WASC 173

CORAM: HASLUCK J

HEARD: 29 JUNE 2005

DELIVERED : 12 AUGUST 2005

FILE NO/S: SJA 1044 of 2005

MATTER :Justices Act 1902

BETWEEN: LONDY PTY LTD
Appellant
AND
GEOFFREY O'REILLY
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR J R PACKINGTON SM
File No  :PE 18082 of 2004

Catchwords:

Appeal from Court of summary jurisdiction - Prosecution brought under Fair Trading Act 1987 (WA) - Issue concerning distance travelled by vehicle for sale - Status of witness statement admitted without objection - Whether Magistrate entitled to rely upon assertions in the statement - Whether the assertions should be characterised as matters of opinion or belief or as a compendious mode of summarising a sequence of inferences - Finding on appeal that the Magistrate could rely upon assertions in the statement

Legislation:

Criminal Appeals Act 2004 (WA) s 14, s 39

Evidence Act 1906 (WA) s 79C

Fair Trading Act 1987 (WA) s 12(1)(a)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr M N Solomon
Respondent: Mr M D Cuerden

Solicitors:

Appellant: Gadens Lawyers
Respondent: Department of Consumer & Employment Protection

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

A Child v Andrews (1994) 12 WAR 552
City Elevator Services Pty Ltd v Burrows [2004] NSWCA 26
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
Myers v Director of Public Prosecutions [1965] AC 1001
Pollitt v The Queen (1992) 174 CLR 558
R v Beckett (1913) 8 Cr App R 204
R v Birks (1990) 19 NSWLR 677
R v Kelly [1958] VR 412
Ramsay v Watson (1961) 108 CLR 642
Redman v Klun (1979) 20 SASR 343
Shaw v The Queen (1952) 85 CLR 365
Stack v Western Australia (2004) 29 WAR 526
Stirland v Director of Public Prosecutions [1944] AC 315
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Verhoeven v Ninyette (1998) 101 A Crim R 24

Case(s) also cited:

Nil

HASLUCK J:

Introduction

This is an appeal against the decision of His Worship Magistrate Packington of the Court of Petty Sessions on 1 April 2005 in respect of a matter arising under the Fair Trading Act 1987 (WA).
The appellant company carries on business as a motor dealer. Pursuant to a complaint dated 29 March 2004 two charges were laid against the appellant. The second charge, being charge number 0418083, was that Londy Pty Ltd trading as Purely Commercials, did in trade or commerce, in connection with the supply of goods, namely, a Toyota Hiace motor vehicle, registration number 1BEC 690, falsely represent that the goods had a particular history, namely, that the vehicle had travelled 198,000 kilometres, contrary to s 12(1)(a) of the Fair Trading Act.
Section 12(1)(a) of the Fair Trading Act provides that a person shall not, in trade or commerce, in connection with the supply of goods or services falsely represent that goods are of a particular standard, quality, grade, composition, style or model or have had a particular history or particular previous use.
I have before me various evidentiary materials bearing upon the matters in issue. The appellant relies upon the affidavits of Marcus Nathan Solomon sworn 22 April and 18 May 2005, and also the affidavit of Miranda Elisabeth Breisch sworn 24 June 2005. The transcript of the hearing before the learned Magistrate and his reasons for decision are exhibited to the first of these affidavits. The respondent relies upon the affidavit of Sean Louis Dworcan affirmed 20 June 2005.
It was common ground at the hearing before me that in order to find the charge proved, the Magistrate was required to find, beyond reasonable doubt, that the subject vehicle had in fact travelled in excess of 198,000 kilometres.

The nature of the evidence

The prosecution sought to rely upon the evidence of a former owner of the subject vehicle, Thomas Otto Lund. He was a retired taxi driver of 68 years of age. It seems that pursuant to arrangements made prior to the hearing before the learned Magistrate a witness statement or proof of evidence of Mr Lund was admitted in evidence by consent with the result that the former owner of the subject vehicle was not called as a witness and was not cross‑examined.
The Lund statement is dated 14 March 2005 and appears as exhibit MNS3 to the supplementary affidavit of Marcus Nathan Solomon (albeit being wrongly described as MNS6 in the subject affidavit).
The Lund statement is to the effect that in 2002 he owned the subject vehicle. It was taxi number 2042. In November 2002 he sought to sell the vehicle and in response to each call about it he informed the caller "that the vehicle was an ex‑taxi and had done over 800,000 kms. I also told them it had had replacement engines in that 800,000 kms period".
Mr Lund went on to describe an approach from Sean Quartermaine from the appellant company, Purely Commercials, and his response that the subject vehicle was "an ex‑taxi, it had 800,000 kms" and was generally in good condition. Mr Lund agreed to sell the vehicle to Purely Commercials for $6650. Mr Lund was disturbed when Sean completed the odometer reading on the Notice of Sale.
As to that matter, the Lund witness statement at par 13 reads as follows:
"Sean completed the odometer reading on the form at 198,555km. I questioned him on this as the vehicle had not travelled that number of kilometres. Sean told me it had to be filled in that way because that was the reading from the odometer."
Mr Lund then contacted Black & White Taxis and collected a letter from that firm dated 13 November 2002 containing certain assertions by the workshop manager (Anthony Caruso) as to the history of the vehicle. It appears from the Caruso letter that on 13 August 2002 a second‑hand speedo cluster was fitted due to the gear drive collapsing and the new speedo reading was 189,903.
Mr Lund delivered the Black & White Taxi letter to the appellant firm without delay. The Lund statement does not say expressly why the letter was delivered, but the context and sequence of events suggests that Mr Lund was seeking to underpin his earlier assertion to Sean Quartermaine that the vehicle had done over 800,000 kms.
I understand that the fitting of a replacement speedo serves to explain how the odometer reading stood at 198,555 km when the subject vehicle was sold to Purely Commercials three months later in early November 2002. However, because Mr Lund was still troubled by the situation he kept an eye on advertisements. An advertisement in The Sunday Times on 1 December 2002 prompted him to make an enquiry which led him to believe that the subject vehicle was being offered for sale by the appellant firm upon the basis that it had done 198,000 kilometres.
It was against this background that the subject complaint was laid. I note in passing that the Black & White Taxi letter was also received in evidence as an attachment to the Lund statement and thus without objection.
It is apparent from the learned Magistrate's reasons for judgment delivered on 1 April 2005 that he concluded that the vehicle had in fact travelled in excess of 198,000 kilometres. The appellant was convicted of the subject offence.

Grounds of appeal

The appellant obtained leave to appeal before McKechnie J on Friday, 13 May 2005. The relevant order is to this effect:
"1.The applicant have leave to appeal from the decision of Mr Packington S.M. given on the abovementioned complaint in the Court of Petty Sessions at Perth on the 1st day of April 2005 whereby the learned magistrate found the complaint proven the grounds for appeal being as follows:
(a)the learned Magistrate erred in law or in fact, or in both law and fact, in concluding that there was sufficient evidence for him to be satisfied beyond reasonable doubt that the motor vehicle the subject of the complaint had travelled in excess of 198,000 kilometres; and
(b)given (a), the learned Magistrate could not be satisfied beyond reasonable doubt that the charge the subject of the complaint was proven."
The appellant contended on appeal that the learned Magistrate's conclusion was based entirely on the Lund witness statement. The appellant submitted that the conclusion was arrived at by this process of reasoning. Mr Lund was a retired taxi driver and although there was no evidence as to how long he had owned the subject vehicle, the learned Magistrate stated "presumably he had been using it as a taxi" as indicated by transcript page 78 (second paragraph) and page 80 (third paragraph). The Magistrate concluded that Mr Lund was the owner of the vehicle and the operator and had "a considerable association with this vehicle". The learned Magistrate could not imagine why Mr Lund would tell people the vehicle "had travelled in excess of 800,000 kilometres unless that was indeed the case." Mr Lund made considerable efforts to advise people of his belief that the vehicle had travelled 800,000 kilometres and sought to confirm this by documentation.
It was submitted that all these matters led the learned Magistrate to the conclusion that "all those things together add up to me to sufficient in the way of circumstances to satisfy me beyond reasonable doubt that the vehicle had done far in excess of the represented kilometres."

The appellant's submissions

The appellant submitted that the learned Magistrate's conclusion could not be sustained. Nowhere in his statement did Mr Lund give evidence that the vehicle had, to his own knowledge, travelled more than 800,000 kilometres. It could not form the basis of a finding beyond reasonable doubt that this was the case.
The appellant submitted further that the Black & White Taxi letter was adduced simply as evidence that Mr Lund had received the document and sought to pass it on as information consistent with his own belief. However, the Black & White Taxi letter could not be regarded as evidence of the truth of its contents. It was put in simply to cast light on Mr Lund's state of mind and to explain his subsequent conduct in keeping an eye out for advertisements.
The appellant submitted further that the fact that someone has a genuine belief in a particular state of things cannot of itself prove beyond reasonable doubt that the state of things existed as a matter of fact. It is not permissible to infer the truth of a statement from the fact of the maker's belief in what he stated. Thus, even if it be held that Mr Lund believed the vehicle had done 800,000 kms, this did not permit the Magistrate to infer that the vehicle had in fact travelled such a distance.

The respondent's submissions

The respondent submitted that it was open to the Magistrate to make the finding he did upon the basis of the evidence before him. The Lund statement and annexures (including the Black & White Taxi letter) were tendered with the consent of the appellant. The transcript records no objection to or limitation on the use of the evidence to be made at trial. Counsel placed particular reliance upon par 13 of the Lund statement where the witness referred to questioning Quartermaine about the odometer reading on the form at 198,555 kilometres and went on to say: "I questioned him on this as the vehicle had not travelled that number of kilometres".
It was said that in the light of the appellant's consent to the tender of the statement, or at least the absence of any objection, the learned Magistrate was entitled to rely on the content of the statement as proof to the extent of whatever rational persuasive power it had: Cross on Evidence (7th Aust ed) at par 1665. The respondent submitted that the Black & White Taxi letter could be used in the same manner.
The respondent submitted further, and in the alternative, that the letter was admissible in any event under s 79C of the Evidence Act 1906 in that it was a statement made by a qualified person who might reasonably be supposed to have had at the relevant time personal knowledge of the matters dealt with by the statement. It was also a statement that directly or indirectly reproduced or was derived from a genuine business record.
Before resolving the matters in issue it will be useful to look briefly at some of the statutory provisions and legal principles bearing upon an appeal of this kind.

Legal principles

Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 but are now covered by Pt 2 of the Criminal Appeals Act 2004. By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
If the appellate Court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the appellate Court will usually provide relief, especially where findings depend on credibility: M v The Queen (1994) 181 CLR 487; Glennon v The Queen (1994) 179 CLR 1.
The relief may take the form of remitting back to the Court below, unless the appellate Court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest in the conviction of a wrong‑doer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.

The rule against hearsay

When I turn to legal principles bearing upon the evidentiary issues thrown up by the present case, I am conscious that the rule against hearsay comes into play.
The rule against hearsay means that an assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. An assertion can be express or implied, oral or in writing, or inferred from conduct: Cross on Evidence, (7th Aust ed) par 31010 at 970.
The hearsay rule is typically used to exclude a third person's assertion narrated to the Court by a witness for the purpose of establishing the truth of that which was asserted. Thus, in the present case, if Mr Lund had been called as a witness but could say only that he believed the vehicle had travelled 800,000 kms because that is what he was told by a previous owner, Mr Lund's narrative of what the previous owner said would be excluded as hearsay.
However, it is necessary to keep in mind also that statements made in documents by third persons who are not called as witnesses will be inadmissible. Thus, if Mr Lund could say only that he believed the vehicle had travelled 800,000 kms because he found a service manual in the glove box containing notes in writing to the effect that the vehicle had been serviced at regular intervals amounting in all to 800,000 kms the evidence would be inadmissible. In that hypothetical case, Mr Lund would be attempting to narrate to the Court assertions made by persons not called as witnesses for the purpose of establishing the truth of the assertions. The rule against hearsay operates to exclude evidence of that kind.
This may be illustrated by reference to the landmark case of Myers v Director of Public Prosecutions [1965] AC 1001. In that case, the prosecution sought to establish the numbers on cylinder blocks of stolen cars by adducing copies of manufacturers' records which had been compiled from information given by various unidentified workmen on the assembly line who were not called as witnesses. The House of Lords held that the evidence was inadmissible as hearsay, although the appeal was, in the event, dismissed as the House of Lords decided that other evidence in the case was persuasive and no substantial miscarriage of justice had occurred.
I note in passing that cases of this kind led to the enactment of s 79C of the Evidence Act 1906 which is relied upon to some extent by counsel for the respondent in the present case in regard to the Black & White Taxi letter. Put shortly, by s 79C statements in a document of fact or opinion made by a person who may reasonably be supposed to have personal knowledge of the matters dealt with by the statement will be admissible as evidence of that fact or opinion. The maker of the statement (described as a qualified person) must be called as a witness unless certain exceptions apply such as that he is dead, or it is not reasonably practicable to secure his attendance, or he could not reasonably be expected to have any recollection of matters dealt with in the statement, or a party with a right to cross‑examine him does not require him to be called as a witness. Further, written statements will be admissible as evidence of fact or opinion if they are derived from a business record and the Court is satisfied that the record is genuine.
It will be apparent from the preceding discussion that in many cases it is necessary to consider the relationship between the rule against hearsay and the rules concerning opinion evidence. By opinion is meant the inferences drawn by witnesses from facts they have observed.
As a general rule witnesses must give a plain account of what they have actually perceived with their physical senses, without venturing their conclusions, beliefs or opinion about what they perceived. The opinion rule excludes opinion evidence tendered to prove the existence of a fact about the existence of which the opinion was expressed. Moreover, it is not permissible to infer the truth of an assertion from a belief held by a witness that the assertion is true: Pollitt v The Queen (1992) 174 CLR 558 per Brennan J at 577; Martin v Osborne (1936) 55 CLR 367 at 375.
However, there are various exceptions to the opinion rule. The fact that an opinion is held may be relevant to the credibility of the witness or to a matter in issue (for example, a witness may refer to an out‑of‑court statement in the course of testifying that he believed he was about to be assaulted). An expert can express an opinion within his field of expertise. More importantly, for present purposes, in certain cases where it would be impossible for a lay witness to answer a question without expressing an opinion, his answer may be receivable in evidence if it can be characterised as a compendious mode of summarising a sequence of inferences based upon perceived facts.

One example of this exception is where a witness refers to another's speech as being like that of a drunken man: R v Kelly [1958] VR 412. Another, more extreme example, is provided by the case of R v Beckett (1913) 8 Cr App R 204, where the accused had been charged with maliciously damaging a plate glass window worth more than five pounds. Evidence was given by an assistant superintendent of the post office to the effect that the window was worth more than five pounds. Despite the fact that it was apparent that the witness's opinion was largely based on hearsay, the Court of Criminal Appeal upheld the conviction on the grounds that the witness's evidence was admissible.
I note in passing that this latter exception concerning lay opinions is now reflected in s 78 of the Evidence Act1995 (Cth) which provides that the opinion rule (whereby opinion evidence is generally excluded) does not apply if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event and is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
It is apparent from all of this that the law makes allowances for certain borderline cases by permitting lay witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based: Cross (supra) par 29015. In applying the so‑called exception concerning lay opinion, the Court must be satisfied that the assertion in question can properly be regarded as an assertion of fact in the compendious mode (otherwise it will be excluded pursuant to the general rule).
In applying the exception concerning expert opinion, the Court must be satisfied that the facts on which the opinion is based are proved by admissible evidence (for example, if the witness refuses to confirm in court what he said in the consulting room the basis for the physician's opinion has gone and it has no probative force): Ramsay v Watson (1961) 108 CLR 642 at 649. It is well‑known that expert opinions are often attacked on the ground of non‑admissibility of their factual basis where this basis offends the rule against hearsay: Cross (supra) par 29140.
It is immediately obvious in the present case that the evidence before the Magistrate concerning the previous history issue consisted essentially of two statements in writing that offended the rule against hearsay being first, the Lund statement containing various out‑of‑court assertions by a person not called as a witness and, second, the Black & White Taxi letter containing the out‑of‑court assertions about the state of the speedo by a workshop manager (Anthony Caruso) who was not called as a witness.
It therefore becomes necessary to look at the rationale for the rule against hearsay and at certain decided cases bearing upon the status of evidence that is received without objection.

The case law

The classic exposition of the rule against hearsay was given in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970. The Privy Council held that the appellant should have been allowed to give evidence of what terrorists said to him as a matter relevant to his plea of duress. Evidence was said to be hearsay and inadmissible when the object was to establish the truth of what is contained in the out‑of‑court assertions. The exclusionary rule did not apply when it was proposed to establish not the truth of the statement, but the fact that it was made.
The rationale for excluding hearsay is said to be that such assertions are not the best evidence and they are not made on oath. Moreover, their accuracy cannot be tested by cross‑examination. It is thought to be contrary to natural justice that the evidence of one party should be received against another without the latter having an opportunity of testing its truthfulness by cross‑examination: Stack v Western Australia (2004) 29 WAR 526 at par 77. Exceptions to the rule against hearsay, such as admissions against interest, are thought to be justified because of qualities in the assertion which outweigh the exclusionary factors.
In Pollitt v The Queen (supra) Brennan J noted at 573 that the first condition of admissibility is relevance. A fact to be proved must be a fact in issue or a fact relevant to a fact in issue. Evidence of an out‑of‑court statement may tend to establish a fact to be proved either because that fact is asserted by the maker of the statement and the maker of the statement is to be believed to have made this statement truthfully – in which case the evidence is hearsay – or because the making of the statement is itself the fact to be proved or, when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved – in which case the evidence is original evidence.
There is a view that if a hearsay statement is relevant to a matter in issue and is received without objection then it becomes evidence for all purposes, and the fact that it is a hearsay statement is significant only as to the weight to be attributed to it.
Support for this proposition is to be found in Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219, being a case relied upon by counsel for the respondent. In that case, Samuels JA stated at 219 that if evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose. If, on the other hand, evidence admitted without objection is not legally admissible in proof of any issue, it may, once in, be used as proof to the extent of whatever rational persuasive power it may have.
This approach seems to proceed from the notion that application of the rule against hearsay can be waived: City Elevator Services Pty Ltd v Burrows [2004] NSWCA 26 at par 18.
On the other hand, the learned author of Cross on Evidence (supra) observes at par 165 that there are some decided cases which suggest that there is no waiver doctrine in criminal cases, though failure to object may be a sign that the evidence was not prejudicial: Stirland v Director of Public Prosecutions [1944] AC 315 at 327.
For example, in A Child v Andrews (1994) 12 WAR 552 Steytler J quashed a decision based on hearsay evidence to which no objection had been taken. He held that counsel's failure to object, will not of itself necessarily be a bar to the successful raising of the fact of the admission of inadmissible evidence as a ground of appeal. His Honour's extensive review of the decided cases suggests that this approach is a manifestation of the precept that a judge must ensure that a trial is conducted fairly and in accordance with the law. An accused should not be convicted on any but legal evidence: R v Birks (1990) 19 NSWLR 677 at 703; see also Shaw v The Queen (1952) 85 CLR 365 at 381.
As to the Lund statement, counsel for the appellant contended that the statement is hearsay and should be excluded. However, even if it be treated as admissible owing to the lack of any objection, the rule as to waiver is correctly expressed by Samuels J in Jones v Sutherland Shire Council (supra) with the result that it is only proof to the extent of whatever rational persuasive power it may have.
Counsel for the appellant went on to submit that the assertions made in the Lund statement should be regarded as having insufficient probative value to substantiate the prosecution case beyond reasonable doubt that the vehicle had travelled more than 198,000 kms. This is because Mr Lund, the former owner, did not expressly make assertions of fact about the provenance of the vehicle based on his own observation – such as that he had used the vehicle as a taxi and driven it for many years – from which an inference could be drawn as to the fact in issue concerning the distance covered. Mr Lund's assertions appear to amount to nothing more than an expression of belief that the vehicle had done over 800,000 kms. It is said that it is not possible to infer the truth of a statement from the fact of the maker's belief in what he stated.
Counsel for the appellant submitted also that the Black & White Taxi letter should be put to one side. It is said to be inadmissible as an out‑of‑court hearsay assertion by the maker of the statement, Mr Caruso, and, for the reasons given by Steytler J in A Child v Andrews (supra) it is open to the Appeal Court to exclude it notwithstanding the absence of any objection in the court below. Further, and in any event, it is said to have been received in evidence not as proof directed to the central issue (that is, the previous history of the subject vehicle) but for the narrow purpose of serving to explain Mr Lund's actions. Thus, counsel submitted, even if it be held that the rule against hearsay can be waived, the letter cannot be received for all purposes, but is limited to the narrow purpose just described.
Against this background let me now return to the circumstances of the present case.

Findings

It follows from my review of the statutory provisions concerning appeals from courts of summary jurisdiction that, prima facie, I am obliged to resolve the matters raised on appeal having regard to the evidentiary materials before the court below.
I am of the view that in the circumstances of the present case the learned Magistrate was at liberty to treat the Lund statement and the Black & White Taxi letter as relevant and admissible evidence bearing upon the central issue before him, namely, the previous history of the subject vehicle and the question of whether it had travelled in excess of 198,000 kms.
In arriving at this conclusion I do not purport to be laying down a general rule as to whether the rules of evidence may be waived in criminal proceedings. As to that issue, I simply note that the reasoning in the decided cases seems to proceed from the premise that weight must be given to the notion that the trial process is an adversarial process. This means that, in the end, the critical factor is whether the accused has been treated fairly. If the accused is represented by competent and properly instructed counsel and decisions are taken not to object to certain evidence, for strategic or other reasons concerning cost and convenience, then it seems to me that all those involved in the trial process, including the Court itself, are entitled to proceed accordingly, unless the decision arises from inadvertence or is so clearly flawed that it is likely to give rise to a miscarriage of justice.
I note in passing that the tactical considerations underlying the decision not to object to the hearsay evidence may include a perception by defence counsel that if the maker of the statement is called to give evidence in Court he may proceed to clarify and gradually strengthen his assertions in the course of examination‑in‑chief or cross‑examination. In such a case, a waiver of the opportunity to cross‑examine bears directly upon the principal rationale for the rule against hearsay, and makes it difficult for defence counsel to assert at some later stage that reliance upon hearsay assertions has given rise to a miscarriage of justice.
The approach I have outlined appears to be reflected in the reasoning of Steytler J in A Child v Andrews (supra) when, after a thorough review of the decided cases, his Honour summed up the position in carefully qualified terms as follows:
"There is now a substantial body of authority to support the proposition at least that, in a case of genuine inadvertence, counsel's failure to object will not, of itself, necessarily be a bar to the raising of the fact of the admission of inadmissible evidence as a ground of appeal. … Each such case will … depend upon its own circumstances, albeit the Court will always be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made by counsel at trial."
Even if I be wrong in the view that I have expressed, I consider, having regard to s 14(2) of the Criminal Appeals Act, that in the circumstances of the present case, whereby the Lund statement and the Black & White Taxi letter were allowed in without objection, not as the result of inadvertence but due to a conscious decision in that regard made before trial, notwithstanding that both documents arguably infringed the rule against hearsay, no substantial miscarriage of justice has been demonstrated. A view to the contrary would represent a significant erosion of the adversarial system which is deeply embedded in the trial and appellate process, for such a view would open the door to a rehearing of any facet of a case that happened to arouse the interest of a second‑comer.
Thus, in the absence of any substantial miscarriage of justice referable to that aspect of the matter, I am not persuaded that the appeal should be allowed on that ground.
Having concluded that the Lund statement and the Black & White Taxi letters were relevant and admissible, I must now determine what use could be made of assertions contained in these documents.
In the circumstances of the present case, I consider that I should adopt the approach outlined by Samuels JA in Jones v Sutherland Shire Council (supra) at 219, namely, that once the contentious evidence is in it may be used to the extent of whatever rational persuasive power it may have unless it was admitted for a specific purpose (in which case its use will be confined to that purpose).
This approach requires me to deal with the Lund statement and the Black & White Taxi letter separately, for the assertions in each document, which might have been ruled inadmissible in each case as hearsay if objection had been taken, are arguably of a different kind and raise different issues.
As to the Lund statement, I recognise at the outset that the assertions made in the statement are of a rather elliptical (possibly ambiguous) kind. They are less forthright about the history of the vehicle than the prosecution, with the benefit of hindsight, might have wished. Nonetheless, I am of the view that the assertions in the Lund statement were relevant to the central issue. In the absence of any objection on the ground of hearsay I must proceed (for the reasons I have given) as if the assertions made by Mr Lund were placed before the learned Magistrate as evidence given from the witness box, and as evidence that could be used to the extent of whatever rational persuasive power it might have.
This brings me to a significant feature of the appellant's submission, namely, that on one view of the Lund statement the former owner of the car seems to speak not as to matters of fact referable to his own observation and experience but simply as to matters of belief concerning the distance supposedly travelled by the subject vehicle. It is said that the learned Magistrate failed to recognise that matters of belief cannot give rise to inferences as to a state of fact. He acted improperly in drawing upon assertions made by Mr Lund, which were no more than statements of belief, in the course of concluding as a matter of fact that the vehicle had travelled more than 198,000 kms.
This argument depends essentially upon how the Lund statement is to be construed. It can often happen that a witness will describe an event in a slightly incoherent form but make his meaning clear eventually by an accretion of detail and by outlining the sequence of events, even though he does not state explicitly what happened.
For example, a skilled observer might be inclined to say of a robbery, quite succinctly, that a man entered the shop, took bank notes from the till, and departed. On the other hand, an unsophisticated layman, recapturing the agitation of the moment, might speak of seeing a man rush in, of noticing the big ring on his finger as he opened the till drawer, of the way in which one of the bank notes dropped to the floor as the man rushed out with the rest of the notes in his hand. Without saying so explicitly, such a witness would nonetheless have managed to convey that the man took notes from the till and departed. Various random observations about matters of fact permit inferences of fact to be drawn about what happened.
Curiously, in the present case, the Lund statement does not contain a straight‑forward assertion by the former owner that he had been associated with the vehicle for many years, that he knew of facts concerning its usage which permitted him to say that the subject vehicle had travelled more than 198,000 kms. The question is whether the various rather elliptical statements made by the former owner can be characterised as a compendious mode of summarising a sequence of inferences based upon perceived facts, so that the summary (or various summaries) amount to an assertion of fact that the vehicle had travelled more than 198,000 kms.
If the various assertions cannot be characterised as assertions of fact in a compendious mode because, upon close analysis, they are revealed as simply expressions of opinion or belief, then they have no probative force. Opinions are generally excluded by the opinion rule and inferences of fact cannot be drawn from matters of belief.
The reasoning of the learned Magistrate is set out at pages 78 to 80 of the transcript. In summary, it seems that he extracted various propositions from the Lund statement. Lund was a retired taxi driver. In 2002 he owned the subject vehicle. At that time the vehicle was licensed for use as a taxi. He changed the taxi plates to private plates in order to sell the vehicle. He informed callers that the vehicle was an ex‑taxi and had done over 800,000 kms. He told this to Sean Quartermaine. When the latter completed the odometer reading on the form at 198,555 kms Mr Lund questioned him on this and asserted that the vehicle had not travelled that number of kilometres.
As to the last assertion, I pause to say in passing that, considered in its context, the statement clearly amounted to an assertion that the vehicle had travelled more than 198,000 kms, not less, although this leaves open the crucial question as to whether the assertion should be characterised as an inadmissible assertion of opinion or belief or as an admissible assertion of fact in a compendious mode.
I accept that assertions of belief are not a sufficient basis for the drawing of inferences of fact. However, I feel obliged to remind myself in passing of certain observations made by Dixon J in Martin v Osborne (supra) at 375 to this effect. If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of a fact to be proved is so high that the contrary cannot reasonably be supposed.
His Honour Justice Dixon went on to say that the circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.

It appears to me that the learned Magistrate in the present case, without saying so explicitly, treated the assertions made by Mr Lund as being assertions of fact in a compendious mode to the effect that the vehicle had been in regular use as a taxi over a long period and had covered more than 198,000 kms. He took account of common experience in arriving at that conclusion, namely, the repeated assertion by Mr Lund to prospective buyers that the vehicle had done over 800,000 kms amounted to an assertion in a compendious form of various facts known to Mr Lund that this was so including that the subject vehicle had been used as a taxi and had been fitted with replacement engines.
It is true that cross‑examination might have brought to light certain gaps in Mr Lund's personal knowledge of the vehicle's usage. It could conceivably have emerged that his personal association with the vehicle was more limited than the learned Magistrate supposed; that much of what he knew about the vehicle was based on inadmissible hearsay assertions made by third parties in conversations or in service manuals of the kind I alluded to in earlier discussion. In that event, Mr Lund's evidence might well have been objected to and ruled inadmissible pursuant to reasoning of the kind reflected in Myer's case (supra) subject only to the statutory exception concerning business records allowed for by s 79C of the Evidence Act. But the opportunity to cross‑examine was waived. The learned Magistrate was left with what appeared to be various assertions made by Mr Lund that were open to the interpretation that he was a taxi driver who had made considerable use of the subject vehicle in the course of his work. It was open to the learned Magistrate to find that the various statements made by Mr Lund amounted to an assertion of fact in a compendious mode to the effect that, to his personal knowledge, the subject vehicle was an ex‑taxi that had done 800,000 kms.
To my mind, in the absence of objection, evidence of the kind I have just described was admissible pursuant to the exception concerning lay opinions as reflected in cases such as Kelly (supra) and Beckett (supra).
It might be said that the lack of specificity underlying the Lund assertions weakened the weight to be attributed to the assertions relied upon by the learned Magistrate. Indeed, if the only evidence before the Court had been the Lund statement I would not necessarily be convinced that there was sufficient evidence before the learned Magistrate to sustain a conviction beyond reasonable doubt. Ultimately, however, it was for the Magistrate to weigh up the evidence before him as a whole. This makes it necessary to determine the status of the Black & White Taxi letter.
I am not persuaded that the Black & White Taxi letter was put in for a limited purpose such as to cast light on the state of mind of Mr Lund or to explain his subsequent actions. The witness statement to which the letter is attached does not refer expressly to such a purpose and nor can this be easily inferred. When the letter was tendered as part of the Lund statement (transcript page 5) there was no reference to any limitation of purpose.
I note in passing that knowledge of the falsity of a representation is not an element of the subject offence under the Fair Trading Act and thus the letter cannot be said to be directed to an issue concerning the state of Mr Quartermaine's mind or the appellant's mind.
It follows from all of this that the letter can be regarded as being relevant to the central issue; that is, the previous history of the vehicle.
It appears from the learned Magistrate's reasoning that he did not appear to give much weight to the Black & White Taxi letter. However, when he reviewed the question of whether the letter should be disregarded because it amounted to a hearsay assertion by a person not called to give evidence, he said that: "I don't regard the Black & White letter in that light" (transcript page 82). It seems that he continued to regard it as part of the evidence before him even though he gave more weight to the matters set out in the Lund statement.
I noted in earlier discussion that once contentious evidence is in, without having been limited in the course of its admission to any specific purpose, it may be used as proof generally to the extent of whatever rational persuasive power it may have.
It might be said, in accordance with the reasoning in Myer's case (supra), that the assertions in the Black & White Taxi letter were of little, if any, probative force in that the workshop manager, Mr Caruso, does not assert directly that he carried out the fittings mentioned in the letter. The assertions made by him might arguably be based upon records compiled from the hearsay assertions of various unidentified workers on the workshop premises.
However, I am of the view that in the absence of any objection by the appellant as a party with a right to cross‑examine it was open to the learned Magistrate to receive the letter under and by virtue of s 79C of the Evidence Act as admissible evidence of the assertions of fact made by Mr Caruso. Section 79C(5) permits the Court in determining admissibility to draw any reasonable inference from the form of the document and from any other circumstances. The letter is dated 11 November 2002 and there was evidence before the Magistrate that the letter was brought into existence at about that time in response to a specific request from Mr Lund for information bearing upon the history of the subject vehicle. These factors are sufficient to satisfy me that the statements in the letter are derived from genuine business records. The letter sounds authoritative and there is no suggestion by the author that the information could not be provided due to any inadequacy in records concerning the vehicle.
The Black & White Taxi letter contained assertions of fact concerning certain fittings. The speedo readings at the relevant dates were consistent with Mr Lundy's evidence. They provided a factual basis from which it could be inferred that the vehicle had been in use and had travelled in excess of 800,000 kms prior to the fitting on 13 August 2002 of a speedo with a reading of 189,903 kms. It was open to the Magistrate to infer from evidence of this kind that the odometer reading written on the Notice for Sale at the time Mr Lund sold the vehicle could not be regarded as a true record of the distance travelled by the vehicle. The letter reinforced the other evidence before him (the evidence of Mr Lund) that the vehicle had travelled more than 198,000 kms. In the absence of any objection to the hearsay component of the letter the assertions of fact made by Mr Caruso formed part of the evidence before the learned Magistrate. He was entitled also to take account of the evidential presumption of accuracy of scientific instruments: Redman v Klun (1979) 20 SASR 343; Cross (supra) par 3070.
I am of the view that when the assertions of fact in the Black & White Taxi letter are added to the assertions of fact in a compendious mode contained in the Lund statement, notwithstanding the reservations I have expressed concerning the weight to be attributed to the latter assertions, there was sufficient evidence before the learned Magistrate to sustain a finding beyond reasonable doubt that the vehicle had travelled more than 198,000 kms, even if it be thought that the Magistrate placed too much reliance upon the Lund statement, and tended to discount the importance of the Black & White Taxi letter. I consider that this flaw in his reasoning (if any) did not give rise to a substantial miscarriage of justice.
Accordingly, for these reasons, I will dismiss the appeal. I will hear from the parties as to whether any further orders are required.