MAK v Police

Case [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…

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MAK v Police [2008] SASC 342
Case
[2008] SASC 342
Decision Date

CaseChat Overview and Summary

The case of MAK v Police involves an appeal by the appellant, Kwan Chiu Mak, against his conviction for theft. Mak was found guilty by the Magistrates Court of South Australia of stealing a personal cheque from Cassandra Sage, who had purchased a car from him. Mak pleaded not guilty and the matter proceeded to trial where he was ultimately convicted and fined. Mak appealed on several grounds, arguing that the Magistrate's findings were unsafe and unsatisfactory and against the weight of the evidence, and that the Magistrate failed to consider or gave insufficient weight to certain matters, including Mak's good character and the bad character of the prosecution witness. Mak also argued that the Magistrate gave weight to irrelevant and extraneous matters and failed to take into account that he had banked the cheque into his own account. The appeal was heard by the Supreme Court of South Australia.

The legal issues before the court were whether the Magistrate erred in failing to consider or give insufficient weight to certain factual matters, whether the Magistrate gave weight to irrelevant or extraneous matters, and whether the Magistrate's reasons were adequate. The court had to consider whether any errors found amounted to a failure of justice and whether the matter should be remitted to the Magistrates Court for rehearing or disposed of on appeal.

The Supreme Court found that the Magistrate did not fail to consider the good character evidence of the appellant or the bad character of the prosecution witness. The Magistrate also did not give weight to irrelevant or extraneous matters. However, the Magistrate did err in not mentioning that the appellant banked the cheque into his own account in his reasons. The court found that this failure amounted to an error of law because justice was not seen to be done. However, the court was satisfied that the Magistrate's reasons were sufficient to enable the court to decide the appeal. The court found that the matter did not need to be remitted for rehearing and that the appellant's account was so inherently improbable that it was fanciful. The court found Mak guilty beyond reasonable doubt and dismissed the appeal.

The court did not make any final orders beyond dismissing the appeal and confirming the conviction.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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?