MAK v Police - [2008] SASC 342

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
MAK v POLICE
[2008] SASC 342
Judgment of The Honourable Justice Kourakis
4 December 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING
Appeal against conviction - the appellant was charged with the theft of a personal cheque - the appellant pleaded not guilty and was tried in the Magistrates Court - he was convicted and fined - whether the Magistrate's finding was unsafe and unsatisfactory and against the weight of the evidence - whether the Magistrate erred in failing to consider or give sufficient weight to certain matters including the good character of the appellant and the bad character of the prosecution witness - whether the Magistrate erred in giving weight to irrelevant and extraneous matters - whether the Magistrate erred in not taking into account the fact that the appellant banked the cheque into his own account - whether the Magistrate's reasons were adequate - if error found, whether the matter should be remitted to the Magistrates Court for rehearing or disposed of on appeal.
Held: The Magistrate did not fail to consider the good character evidence of the appellant or bad character of the prosecution witness - the Magistrate did not give weight to irrelevant or extraneous matters - the Magistrate did not fail to consider the appellant's banking of the cheque into his own account but did err in not mentioning that fact in his reasons - the Magistrate's failure to mention that fact amounted to an error of law because justice was not seen to be done - the Magistrate's reasons were sufficient to enable the court to decide the appeal - the matter did not need to be remitted for rehearing - the appellant's account was so inherently improbable that it was fanciful - appellant guilty beyond reasonable doubt - conviction confirmed - appeal dismissed.
Criminal Law Consolidation Act 1935 s 134(1), referred to.
Melbourne v The Queen (1999) 198 CLR 1; R v Falealili [1996] 3 NZLR 664; R v Trimboli (1979) 21 SASR 577; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Abalos v Australian Postal Commission (1990) 171 CLR 167; Fox v Percy (2003) 214 CLR 118, applied.
Papps v Police (2000) 77 SASR 210; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, distinguished.
Police v Mak (Unreported, Magistrates Court of South Australia, Magistrate Harris, 19 June 2008); R v Berrada (1989) 91 Cr App Rep 131; R v Vye [1993] 3 All ER 241; R v Aziz [1995] NLJR 921; Harwood v Police (1998) 71 SASR 300; R v Keyte (2000) 78 SASR 68; Coghlan v Cumberland [1898] 1 Ch 704; Dearman v Dearman (1908) 7 CLR 549; Taylor v Hayes (1990) 53 SASR 282; CSR Ltd v Della Maddalena (2006) 80 ALJR 458, considered.

MAK v POLICE
[2008] SASC 342
Magistrates Appeal
KOURAKIS J
Introduction

Mr Mak was convicted of the offence of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 in the Magistrates Court on 19 June 2008. The Trial Magistrate found that Mr Mak had committed that offence on 7 July 2006, when he retained a personal cheque that was the property of Ms Beverley Bennet, dishonestly and without her consent.
The appellant complains that the verdict of guilty is unsafe and unsatisfactory and against the weight of the evidence. The particulars of that ground allege quite distinct errors by the Trial Magistrate in failing to have sufficient regard to, or give sufficient weight to, various factual matters. The particulars also allege that the Trial Magistrate gave weight to certain irrelevant and extraneous matters.
The facts
The appellant, Kwan Chiu Mak, is 28 years of age. He was born in China but has lived in Australia since 2002. He studied English at Eynesbury College shortly after arriving in Australia. He then enrolled in and completed a course in hotel management at the International College of Hotel Management at Regency Park.
On 7 July 2006 Mr Mak sold his Ford Festiva to Cassandra Sage. Ms Sage and Mr Mak had negotiated the purchase of the car over a period of about 10 days. They had agreed upon a price of $5,000. To my mind it is of some importance that Ms Sage only agreed to that price after arranging a mechanic to inspect the car and after researching its market value with some care. Ms Sage’s 83 year old grandmother, Ms Bennet, had told her that she would pay for the car.
Ms Sage and Mr Mak arranged to meet in Flinders Street in the city to complete the transaction at about lunchtime on Friday 7 July 2006. A friend of Ms Sage drove her and Ms Bennet to Flinders Street so that Ms Sage could drive away with the car. The transfer of ownership documentation was completed in Flinders Street and the cheque handed to Mr Mak before Ms Sage and Ms Bennet drove away. Ms Sage admitted in her evidence that she had falsely recorded a lower purchase price of $3,000 in the transfer of ownership papers to save some money on stamp duty.
A little later while Ms Sage and Ms Bennet were having lunch at the Hackney Hotel, Ms Sage received a phone call from Mr Mak. He complained that the cheque he had been given was not a “cash cheque”. He said that he could not cash the cheque and that he needed the money straight away. Immediately after lunch Ms Sage and Ms Bennet drove back into the city and met Mr Mak in Flinders Street at a branch of the Savings and Loans Credit Union (the Credit Union). The cheque that had been provided to Mr Mak was drawn on Ms Bennet’s account with that financial institution.
Ms Bennet and Mr Mak went into the Flinders Street branch. Ms Sage stayed in the car. Whilst inside the branch, Ms Bennet signed the back of the cheque hoping that by so endorsing it the Credit Union would cash it, but Mr Mak and Ms Bennet were told that the Flinders Street branch did not have $5,000 in cash. They were directed to the Pulteney Street branch.
Ms Bennet and Mr Mak travelled with Ms Sage in the car to the Pulteney Street branch. When they arrived, Ms Sage remained in the car whilst Ms Bennet and Mr Mak went into that branch.
There is some dispute as to what happened when Ms Bennet and Mr Mak were inside the Pulteney Street branch. Ms Bennet gave evidence that she placed her credit card and the cheque on a table where she was attended to by an employee of the Credit Union, Ms Joanne Maglieri. Ms Maglieri testified that she did not recall seeing the cheque. However, she explained that she effected a withdrawal on Ms Bennet’s account on the basis of the production of her credit card and some identification.
Ms Bennet had no recollection of seeing the cheque again after placing it on the table at the Pulteney Street branch.
Ms Bennet was asked:
Did you give the defendant $5,000 in cash and a $5,000 cheque?
She answered:
No, of course not.
Mr Mak’s evidence was that Ms Bennet came into the Flinders Street branch with him and asked the credit union to do something about cashing the cheque. In his evidence in chief Mr Mak said that he had forgotten whether he had returned the cheque to “the young lady or the old lady”. It is clear that by the time that he went into the Flinders Street branch with Ms Bennet she had the cheque because his evidence was that Ms Bennet pointed to the cheque when asking whether the employee of the Credit Union could do anything about cashing it. That is consistent with Mr Mak’s later evidence that he saw Ms Bennet with the cheque at the first branch they visited in Flinders Street.
In cross-examination it was put to Ms Bennet that she gave the cheque back to her granddaughter after she had presented it to the Credit Union. She was asked whether she was sure she didn’t give the cheque to her granddaughter. She replied that she was positive. A little later the following exchange occurred in cross-examination:
QAnd I’m suggesting that you might have picked up the cheque at the same time.
ANo.
QAnd given it to Cassandra.
AThe cheque?
QYes.
ANo, she had the car. There was no reason.
After Mr Mak and Ms Bennet had successfully obtained $5,000 in cash from the Pulteney Street branch, Mr Mak walked Ms Bennet across Pulteney Street to where Ms Sage was waiting near the car. Ms Bennet said that there was no conversation between Mr Mak and Ms Sage at that point. Ms Sage said that she thanked Mr Mak for the car and then left with her grandmother.
Mr Mak’s evidence was that after he walked Ms Bennet across the road he asked Ms Sage whether she was interested in buying a pair of watches. He told Ms Sage that he had certificates for the watches and that they were worth in the vicinity of $6,000. He said that the watches were a gold and silver pair that he had purchased in Hong Kong, intending to give one as a gift to his fiancé. He was selling the watches because he and his fiancé had recently separated. Mr Mak gave evidence that there were then some negotiations over the price to be paid and that ultimately Ms Sage agreed to pay him $5,000 for the watches. He said that he accepted the cheque originally drawn by Ms Bennet for purchasing the car from Ms Sage because she explained, as must have been obvious, that she did not have $5,000 in cash.
Mr Mak testified that he then walked from Pulteney Street to Rundle Mall where he had arranged to meet a friend. Mr Mak explained that he preferred to spend the whole of the afternoon with that friend rather than take time out to bank the cheque for $5,000 on that day.
Mr Mak left for Hayman Island on Monday 10 July, where he had secured employment in a resort. Some weeks later, on 28 July, Mr Mak deposited the cheque in his National Australia Bank account whilst visiting Airlie Beach. There was no branch of that bank on Hayman Island.
When it was put to him that he had created the story of the purchase of the watches Mr Mak replied:
That is not story. I am not that stupid. Because if you get someone’s money without paying them the – I have the cheque put in my bank, I clearly understand that, the cheque owner will know which bank account they will go to and I’m openly telling two police all the bank collect for Hayman Island, so, and if something going wrong police or anyone can find me easily. Just one phone call I’ll be available.
The defendant was asked in his evidence about his contact with the police officer investigating this matter. In answering that question he volunteered that it was the first time “I have the police looking for me to ask questions”. He was then asked whether he had ever been in trouble with the police before and answered “Never in my life”.
Ms Bennet’s evidence was that at the end of the month when she received her account statement she saw that the cheque was cashed as well as there being a cash withdrawal in the sum of $5,000. She immediately phoned the Credit Union and then reported the matter to the police. Ms Sage drove Ms Bennet to the police station so that she might make her complaint.
The Trial Magistrate’s reasons
After setting out the evidence to which I have referred, the Trial Magistrate recorded that the defendant’s counsel had submitted that Mr Mak’s evidence should be preferred over Ms Sage’s because of her admission that she had understated the value of the vehicle.[1] The Trial Magistrate then directed himself on the proper use of the evidence of the defendant’s good character.
[1] Police v Mak (Unreported, Magistrates Court of South Australia, Magistrate Harris, 19 June 2008) [18].
The Trial Magistrate then compared the inherent probabilities of the conflicting accounts that had been given about the sale of the watches. I will return to those matters in a moment. The Trial Magistrate concluded:
The improbabilities associated with the defendant’s description of the conversation in question lead me to the conclusion that his account of that conversation was so inherently improbable as to be incredible. I reject his evidence where it conflicts with the evidence of Ms Sage.
Of course, it does not necessarily follow from my rejection of the defendant’s evidence that I should accept the evidence of Ms Sage as truthful and reliable beyond reasonable doubt. In my assessment her evidence of her conversation with the defendant by the car in Pulteney Street was truthful and reliable. I do not think that there is a reasonable possibility that the defendant’s version of that conversation might be true. That finding has implications for the defendant’s credibility in relation to other issues.[2]
[2] Police v Mak (Unreported, Magistrates Court of South Australia, Magistrate Harris, 19 June 2008) [24]–[25].
The Trial Magistrate also found that Ms Bennet was an honest witness who endeavoured to give a truthful account of the events. He expressed some reservations about the reliability of Ms Bennet’s memory “of the details of some events”. The Trial Magistrate preferred the evidence of Ms Maglieri to the evidence of Ms Bennet where there was any inconsistency. The Trial Magistrate found that the cheque for $5,000 which Ms Bennet had drawn in favour of the defendant was not produced nor shown to Ms Maglieri and was not required for the purposes of that transaction.[3]
[3] Police v Mak (Unreported, Magistrates Court of South Australia, Magistrate Harris, 19 June 2008) [26].
Grounds of appeal
It is convenient to deal with the particulars of the ground of appeal before returning to the ground itself, which, as I have observed above, is that the conviction is unsafe and unsatisfactory and against the weight of the evidence.
1. The Trial Magistrate gave no or insufficient weight to the good character of the appellant
The appellant contends that he put forward evidence of his good character by testifying that he had no previous convictions, and that the Trial Magistrate failed to give any or sufficient weight to that evidence.
Whether evidence that a defendant has no prior convictions is strictly “good character” evidence requiring a direction was considered by the High Court in Melbourne v The Queen.[4] Both McHugh and Kirby JJ considered the conflicting authorities from the United Kingdom,[5] which require a good character direction whenever evidence is adduced that the accused has no previous convictions, and New Zealand,[6] where the Court of Appeal has held that the absence of prior convictions is not “good character” evidence requiring a direction. McHugh J did not decide whether the absence of prior convictions is good character evidence, but instead held that a judge has a wide discretion on how to direct the jury about the accused’s character.[7] However, Kirby J (although in dissent) concluded that:
The foregoing is reason enough to reject the notion, found in many English decisions, that “good character” is synonymous with the absence of prior criminal convictions. The latter may be an indication of the former; but it is not necessarily so. I agree with Henry J’s remark in R v Falealili that “there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character. It may be a factor in assessing good character, but standing on its own it is generally neutral.”[8]
[4] (1999) 198 CLR 1.
[5]    R v Berrada (1989) 91 Cr App Rep 131; R v Vye [1993] 3 All ER 241; R v Aziz [1995] NLJR 921.
[6]    R v Falealili [1996] 3 NZLR 664.
[7]    Melbourne v The Queen (1999) 198 CLR 1 at 14.
[8]    Melbourne v The Queen (1999) 198 CLR 1 at 42.
I too doubt that evidence of the absence of prior convictions is evidence of good character. It is important, as Wigmore explains, to be clear about the distinction between the probative value of the fact of good (or bad) character and the evidence from which it can be inferred.[9] It is not possible to draw a direct inference that someone has or has not committed a criminal act from evidence that they have performed another act or conduct in the past. Rather, an “intermediate inference” must be drawn to link those acts together. Wigmore explains that the intermediate inference arises in the following way: because a person has done a good and generous deed, that person is of a benevolent character, and is less likely than others to have committed the theft.[10] The “intermediate inference” is that the person is of a particular type of character. I would add that the intermediate inference of good character can also be drawn from the fact, if proved, that the person has earnt that reputation amongst the members of his or her community. However, no such inference can be drawn, as a matter of human experience, from evidence that a person has never been convicted or even suspected of a crime. Nonetheless, it is not necessary to decide the issue in the present case because, for the reasons that I am about to give, I find that the Trial Magistrate properly directed himself as to the good character of the appellant.
[9] 1A Wigmore, Evidence § 55.1.
[10] Ibid, § 55.1.
The Trial Magistrate’s direction about the use of good character evidence conformed to the judgment of this Court in R v Trimboli.[11] The Trial Magistrate did not err in reminding himself that people do commit crimes for the first time. It is true that in Trimboli, King CJ observed that that consideration may apply with particular force to some crimes which do not attract universal and unequivocal moral condemnation, like the cultivation of cannabis which was the offence under consideration in Trimboli. Nonetheless, the consideration remains of general application, although its strength may well vary. There is no indication that the Trial Magistrate gave that consideration more weight than it deserved in the circumstances of this case. It is obvious from the reasons of the Trial Magistrate as a whole that he found the improbability of the defendant’s account was sufficient to satisfy him beyond reasonable doubt of the appellant’s guilt notwithstanding the evidence of “good character”.
2. The Trial Magistrate gave no or insufficient weight to the evidence of bad character of Ms Sage
[11] (1979) 21 SASR 577.
In his reasons, the Trial Magistrate referred to Ms Sage’s fraudulent conduct in understating the value of the car to avoid some stamp duty on the transaction.[12] Again, the reasons of the Trial Magistrate as a whole show that he was persuaded that Ms Sage had truthfully denied that she had purchased watches from Mr Mak notwithstanding her admission of bad character, due to the inherent improbability of the appellant’s account.
[12] Police v Mak (Unreported, Magistrates Court of South Australia, Magistrate Harris, 19 June 2008) [18].
In those circumstances it is just not possible to make good the complaint that the Trial Magistrate had not given sufficient weight to those matters.
3. The Trial Magistrate gave weight to irrelevant and extraneous matters
The appellant contends that the Trial Magistrate wrongly gave weight to matters that were irrelevant. Those matters were the fact that Ms Sage did not have the watches examined before purchasing them with her grandmother’s cheque and the fact that she drove Ms Bennet to the police station to make the complaint. In my opinion, neither fact was irrelevant, as both supported the inherent improbability of the appellant’s case. Firstly, it was inherently improbable that Ms Sage would purchase the watches for $5,000 without examining them. It was also unlikely that Ms Bennet would have agreed to her cheque being used to pay for the watches, or that Ms Sage would want the watches so much that she would decide to dishonestly pay for them with the cheque without her grandmother’s knowledge or consent. Secondly, if Ms Sage had defrauded her own grandmother, it would be at least a little surprising that she drove her to the police station to make the complaint. If Ms Sage had committed the fraud, then one would expect her to feel very uncomfortable about going to the police station with her grandmother to report the fraud, knowing all the time that she had in fact purchased Mr Mak’s watches with the money. I accept that the strength of this evidence is limited but it does in a small way support the conclusion of guilt.
4. The Trial Magistrate gave no or insufficient weight to important and relevant considerations supporting the innocence of the appellant

The appellant complains that the Trial Magistrate gave insufficient weight to relevant considerations which supported his defence and which were advanced on his behalf at trial. The submission on this ground is that the learned Trial Magistrate had no regard to the fact that the appellant deposited Ms Bennet’s cheque into his own account. It was submitted that the appellant understood enough about banking to appreciate that, inevitably, he would be discovered if his dealing with the cheque was truly unlawful. It was said that the inevitability of discovery made it unlikely that he took the cheque unlawfully, especially given that if such discovery of unlawful behaviour did occur, it would compromise his residency status in Australia. It was contended that a finding could not be made beyond reasonable doubt that Mr Mak did not obtain the cheque in exchange for the watches if proper account were taken of those matters.
The Trial Magistrate did not refer to the fact that the appellant’s offending would inevitably have been discovered in the course of his reasons. He referred to the deposit of the cheque in the appellant’s bank account but did not expressly refer to the inference in the appellant’s favour that arose from that fact. That inference was that the appellant had obtained the cheque lawfully and for that reason had made use of it in a way that could easily be traced.
There is no doubt that that fact is an important matter to be weighed in an assessment of the competing probabilities in this matter, especially considering that it was the strongest, if not the only, objective consideration in the appellant’s favour. However I am not satisfied that the failure of the Trial Magistrate to refer to the matter in his reasons shows that he did not have regard to it. It was the major point pressed by the defendant’s counsel. It is unlikely to have been overlooked. The structure of the Trial Magistrate’s reasons satisfies me that he must have concluded that that consideration was overwhelmed by the weight of the incriminating circumstances to which he referred.
Did the Trial Magistrate fail to provide sufficient reasons?
The duty to give reasons for decision is well established.[13]
[13] Papps v Police (2000) 77 SASR 210 at 218, [33]; Harwood v Police (1998) 71 SASR 300 at 304-06; R v Keyte (2000) 78 SASR 68 at 79, [51].
In Soulemezis v Dudley (Holdings) Pty Ltd[14] Kirby P explained that the obligation to give reasons does not require of Trial Judges “a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process”.[15] However a judge must state:
… generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.[16]
[14] (1987) 10 NSWLR 247.
[15] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
[16] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
Similarly, McHugh JA held that the obligation did not require “lengthy or elaborate reasons”.[17] He held that the:
… essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.[18]
[17] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 290.
[18] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280.
In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd[19] Mahoney JA explained:
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.[20]
[19] [1983] 3 NSWLR 378.
[20] Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.
The test of adequacy of reasons has been considered in a number of more recent South Australian cases. In Papps v Police,[21] Gray J approved the following statement from Sun Alliance Insurance Ltd v Massoud:[22]
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.[23]
[21] (2000) 77 SASR 210.
[22] [1989] VR 8.
[23] Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18.
It will not always be necessary to provide a detailed explanation for the decision to prefer the evidence of one witness over another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.[24]
[24] R v Keyte (2000) 78 SASR 68 at 80-1, [56].
In this case, the process of reasoning adopted by the Trial Magistrate was to first consider the probabilities and improbabilities inherent in the conflicting accounts he had been given, before finally determining whose evidence he would accept and whether he was prepared to act on the evidence of any witness beyond reasonable doubt. This approach was perfectly orthodox and sensible. The Trial Magistrate comprehensively referred to the facts and circumstances that strongly suggested that the appellant’s account of selling the watches to Ms Sage was false.
Nonetheless, rejection of any reasonable possibility of the truth of the defendant’s version logically demanded some consideration of the likelihood that the appellant would deposit the cheque in his own bank account if it had been unlawfully taken or retained by him. The appellant was entitled to have the significance of that fact expressly considered and the reason for convicting him, notwithstanding that fact, explained. As a result of the Trial Magistrate’s failure to do so in this case, I conclude that the Trial Magistrate erred in law in that he failed to give adequate reasons for his conclusion that he was satisfied of the appellant’s guilt beyond reasonable doubt despite the fact that the cheque had been deposited in the appellant’s own bank account.
Disposition of the appeal
The appellant having established an error of law, an issue arises as to whether there is nonetheless good reason to confirm the conviction, or whether the conviction should be quashed and the information dismissed, or alternatively whether the information should be remitted to the Magistrates Court for rehearing.
The ultimate disposition of this case must depend on an assessment of the strength of the prosecution case and a consideration of the extent to which all of the evidence should be acted upon on this appeal, even though the Court has not had the advantage of hearing the evidence given.
The Trial Magistrate was certainly correct to describe the defendant’s account of the transaction on Pulteney Street as inherently improbable. The appellant’s account depended on the coincidence of the following facts and circumstances. First, on the appellant’s case, although he still had a residence in Adelaide and had his belongings packed and ready to go, he had decided to carry all of his valuable property in his waist vest and for that reason had the watches with him when he was in the city to sell the car. Secondly, he, for some unexplained reason, attempted for the first time to sell the watches to Ms Sage as he was saying goodbye to her and her grandmother after the cash had been obtained from the Pulteney Street branch. Thirdly, Ms Sage agreed to buy the appellant’s Hong Kong watches without having them independently examined or valued. Fourthly, the watches happened to have a similar value to the car and Mr Mak and Ms Sage ultimately agreed on a purchase price which was exactly the same as the price paid for the car and the amount for which the cheque had been drawn. Fifthly, Ms Sage was apparently happy to purchase both watches and did not attempt to negotiate the sale of just one of them.
Sixthly, and perhaps most importantly, Mr Mak’s account depended on the extremely unlikely possibilities that either Ms Bennet gave Ms Sage the cheque so that she could buy the watches or alternatively that Ms Sage had managed to take possession of the cheque and used it to purchase the watches without her grandmother’s consent. It is extremely unlikely that Ms Bennet would have agreed to purchase the watches for her granddaughter after just buying her a car. She would undoubtedly have remembered it if her granddaughter had asked for a loan of the amount of $5,000. It was never put to Ms Bennet that she had handed over the cheque to Ms Sage for the purpose of purchasing the watches. That possibility is therefore extremely remote. As to the alternative possibility that Ms Sage had somehow come into possession of the cheque, that too is equally remote. Ms Bennet unequivocally denied handing the cheque over to Ms Sage. It would have been completely inconsistent with her recollection that the cheque was cashed for her to have done so. On the evidence of both Ms Bennet and Mr Mak, Ms Sage had almost no opportunity to surreptitiously take possession of the cheque. Even if in some way Ms Sage had managed to take possession of the cheque, it seems very improbable that she would have unlawfully converted it to her own use by purchasing the watches with it, without informing her grandmother who had just bought her a car. If Ms Sage had used the cheque unlawfully in that way it would have been much more likely that she would have arranged for the cheque to have been cancelled so that Mr Mak would be left out of pocket instead of her grandmother. Moreover, Mr Mak would have found it very difficult to have his account believed if Ms Sage had taken that course. On the other hand, if the cheque remained valid it was inevitable that Ms Bennet would come to discover the fact that it had been given to Mr Mak as soon as he deposited it. Nor would one expect Ms Sage to volunteer to accompany Ms Bennet to the police station if she had stolen the cheque. In short, Ms Sage’s conduct in making no attempt to have the cheque cancelled and in accompanying her grandmother to the police station is much more consistent with her account that she did not purchase the watches, than with the account of Mr Mak.
It must be said that the combined force of the abovementioned circumstances overwhelmingly supports the conclusion that the appellant’s account was false and that no watches were sold. What then should be made of the countervailing circumstance that the cheque was deposited in Mr Mak’s own account? I accept that the act of depositing the cheque in his account meant that it was inevitable that the cheque would be traced back to him. He must have known that. However, the experience of courts in their criminal jurisdiction is that offences are very often committed in circumstances where the offender is aware both that the offence would be detected and that he or she is likely to be apprehended. True it is that more often than not those circumstances arise where the offending is a result of the desperate predicament of the offender. There was nothing in the evidence to suggest that the appellant was in such a situation. However, the appellant may well have appreciated that his identification as the person who banked the cheque need not inevitably lead to his conviction. The appellant may well have calculated that an account, like the account of the sale of the watches, may be believed. True it is that it is a large risk for a person in the appellant’s position to take. However, it may be that the appellant was finally tempted to see what would happen if he deposited the cheque after he had carried it around with him for some weeks. It would not be the first time that an offender’s greed had got the better of his or her good judgement.
If this matter was one that had to be determined simply on the transcript, I would have no hesitation in agreeing with the conclusion of the Trial Magistrate that the appellant’s account was so inherently improbable as to be incredible. However I have not heard the appellant give his evidence. The question then arises as to whether I should remit the matter to a Magistrate to be re-heard so that the appellant can have an opportunity to have his evidence assessed in light of the countervailing consideration to which I have referred.
Where the appeal is by way of re-hearing it is open to the Appeal Court to reach a different factual conclusion to the tribunal below. This is so even on a question of fact turning on the credibility of witnesses whom the Court has not seen, where circumstances apart from manner and demeanour of giving testimony warrant that conclusion.[25]
[25] Coghlan v Cumberland [1898] 1 Ch 704; Dearman v Dearman (1908) 7 CLR 549; Taylor v Hayes (1990) 53 SASR 282.
Counsel for the appellant has submitted that this case is similar to that of Papps,[26] and should therefore be remitted to the Magistrates Court for retrial in the same way as was ordered in that case. In my opinion the present case can be distinguished from Papps. In Papps the Court held that the Magistrate failed to consider important and relevant evidence going to credit. In that case, the Magistrate’s error in failing to consider such evidence was compounded by his failure to give any reasons for his rejection of the defendant’s evidence. Gray J held that:
The magistrate made no assessment of the defence evidence. He did not consider criticisms of that evidence, either as put in cross-examination or by way of submission, and gave no reasons for his rejection of the defence evidence… the failure of the magistrate to assess the defence evidence or to give reasons for its rejection leaves the appellate court in a position where it is unable to properly consider the appeal.[27]
[26] (2000) 77 SASR 210.
[27] Papps v Police (2000) 77 SASR 210 at 214 per Gray J.
Firstly, this case can be distinguished from Papps because I have found that the Trial Magistrate here did consider the evidence that was consistent with the innocence of the accused even though he did not expressly refer to it.
Furthermore, while I have held that the inadequacy of the reasons of the Trial Magistrate amounted to an error of law, the failure to refer to the banking of the cheque has not compromised the proper hearing of the appeal. It is obvious to me that the overwhelming objective improbability of the appellant’s account left the Trial Magistrate in no doubt that the elements of the offence were established notwithstanding the banking of the cheque in the appellant’s own account. The error of law has been made out only on the second ground identified in Sun Alliance Insurance Ltd v Massoud[28] and approved by Gray J in Papps, namely that justice is not seen to have been done.
[28] [1989] VR 8 at 18.
Because the Trial Magistrate’s reasons offend the second, rather than the first, criteria of inadequacy, it is not necessary for me to remit this matter to the Magistrates Court for retrial, because I am satisfied that, even though he did not refer to it, the Trial Magistrate must have understood and was well aware of the defence case based on the cashing of the cheque. For that reason I can proceed on the basis that the Trial Magistrate’s finding that the evidence of Ms Sage was truthful and reliable is not compromised by a failure to have regard to the defence case. Indeed in my view this is a case where although the Trial Magistrate did not expressly refer to the demeanour either of Ms Sage or Mr Mak, his assessment of their oral testimony is likely to have influenced his conclusion.[29] Therefore I can, in this case, take the conclusion of the Trial Magistrate as an indication that the way in which the appellant and Ms Sage gave evidence supported the conclusion demanded by the combined circumstances to which I have referred.
[29] Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179.
Even had I concluded that the Trial Magistrate had not considered the defence case on the banking of the cheque, I would have been satisfied beyond reasonable doubt of the appellant’s guilt even though the appeal has proceeded on the transcript and I have not had the opportunity to assess the demeanour of the witnesses.
In Fox v Percy[30] the Trial Judge accepted the sworn evidence of the plaintiff in a personal injury claim that she had been riding a horse on the correct side of the road when the defendant, who was driving a car, collided with her. The problem for the plaintiff was that the skid marks left by the defendant’s car were entirely within the correct carriageway for the defendant’s direction of travel. Moreover, the plaintiff was intoxicated at the time. The High Court confirmed the decision of the Court of Appeal of New South Wales to substitute a verdict for the defendant. The High Court rejected the plaintiff’s submission that there should be a retrial. Gleeson CJ, Gummow and Kirby JJ said:
To conclude that the Court of Appeal was not warranted in substituting a judgment for the respondent is, in our view, inconsistent with the right and duty of that Court to discharge the appellate function in accordance with the legislation governing it. A principal purpose of providing for an appeal by way of "rehearing" is to ensure, within the appellate process, finality of litigation, correctly decided. It is unlikely that, in a second trial, the present parties would alter significantly the testimony that they have severally given or that the other witnesses would change theirs. As the primary judge correctly observed during the cross-examination of Constable Volf (by the time of the trial a sergeant of police), the possibility of his having any independent recollection of events that took place seven years earlier, was negligible. His evidence was, and would remain, that recorded in the notebook entry made immediately after the collision and in particular his sketch of the accident scene. In a new trial, that record, and the features of the skid mark, would be unchanged.[31]
The Court of Appeal felt able to conclude the matter for itself. In doing so, in an unremarkable case, it did what is very commonly done, and properly done, in discharging the duty of deciding an appeal by way of rehearing. In our view, it was correct to do so within the powers that it enjoyed. We see no reason for this Court to substitute an order for a new trial. We would regard such an order as futile in the state of the evidence. The retrial of this matter, more than ten years after the collision, could involve no improvement in the memory of any witness. In the end, the same factual analysis would be required. The self-interested recollections of the appellant, and those of her friend Mr Murdoch, could not overcome the objective evidence that so strongly favoured the respondent's version of events. At the least, it was open to the Court of Appeal to reach that conclusion. There being no error, this Court should not interfere.[32]
[30] (2003) 214 CLR 118.
[31] Fox v Percy (2003) 214 CLR 118 at 132-3, [44].
[32] Fox v Percy (2003) 214 CLR 118 at 133, [46].
McHugh J also rejected the plaintiff’s request for a retrial. McHugh J distinguished Percy from the State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq)[33] on which the appellant relies before me. This case too can be distinguished on the same basis.
[33] (1999) 73 ALJR 306.
The approach of the High Court in Percy was confirmed in CSR Ltd v Della Maddalena.[34] In particular the duty of an appellate court to rehear a case brought on appeal must not be frustrated by giving excessive deference to fact finding by the Trial Judge.[35] A retrial was ordered in CSR because of the particular difficulty in the circumstances of that case in “untangling” the precise injury suffered and assessing the appropriate award of damages on the basis of the transcript alone.
[34] (2006) 80 ALJR 458.
[35] CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [19]-[24] per Kirby J, Gleeson CJ agreeing at [1]. Cf [101]-[102] per Hayne J and [180] per Callinan and Heydon JJ.

I accept that the difference between the criminal and civil onus of proof means that there will be few cases in which an appeal court will be justified in substituting or confirming a conviction where the assessment of the evidence by the Trial Court is flawed. Very strong circumstantial cases relying on the inferences that can be drawn from undisputed facts are more likely to be disposed of in that way than cases which turn on conflicting direct testimony alone.
Conclusion
The appellant was charged pursuant to s 134(1) of the Criminal Law Consolidation Act 1935. That section provides that:
(1) A person is guilty of theft if the person deals with property –
(a) dishonestly; and
(b) without the owner’s consent; and
(c) intending –
(i) to deprive the owner permanently of the property; or
(ii) to make a serious encroachment on the owner’s proprietary rights.
Maximum penalty: Imprisonment for 10 years.
The only element of the offence which is in issue in this case is the element of dishonesty. Such is the strength of the circumstantial case against the defendant that I have concluded, on the criminal onus of proof, that he committed the theft of the cheque contrary to the above section even though I have not heard his testimony. The account given in his evidence before the Trial Magistrate of selling Ms Sage the watches is so implausible that it is fanciful. The appellant’s account is so inconsistent with the objective facts that it can safely be concluded that it is not only improbable but that it is simply not possible.
I dismiss the appeal.