Makeham v Sheppard
[2020] VSCA 242
•18 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2019 0129
RICKY MAKEHAM
Applicant
v
NATHAN SHEPPARD
Respondent
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JUDGES:
PRIEST, KYROU and WEINBERG JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
10 September 2020
DATE OF JUDGMENT:
18 September 2020
MEDIUM NEUTRAL CITATION:
[2020] VSCA 242
JUDGMENT APPEALED FROM:
[2019] VSC 749 (John Dixon J)
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ADMINISTRATIVE LAW — Appeal on a question of law from Magistrates’ Court — Applicant convicted of indecent act with a child under 16 — Adequacy of magistrate’s reasons — Magistrate’s failure to deal with character evidence and prior inconsistent statements — Whether primary judge erred in failing to find magistrate’s reasons to be inadequate — Whether conviction unsafe and unsatisfactory — Appeal allowed — Charge remitted for rehearing before another magistrate — Criminal Procedure Act 2009 s 272 — Jury Directions Act 2015 s 4A — Perkins v The County Court of Victoria 2 VR 246; Ta v Thompson (2013) 46 VR 10; Betts v Hardcastle (2001) 23 WAR 559; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr K McDonald
Berwick Legal
For the Respondent
Ms E Ruddle
Ms A Hogan, Solicitor for Public Prosecutions
Priest JA:
Introduction
1 Following a five day summary hearing in the Magistrates’ Court, Magistrate Bazzani convicted the applicant of committing an indecent act with a child under 16, and sentenced him to a community correction order of 18 months’ duration.
2 Unsatisfied with the magistrate’s decision, the applicant appealed to the Supreme Court on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 (‘CPA’).
3 The primary judge heard the appeal on 3 October 2019, and dismissed it on 18 November 2019.
4 The applicant now seeks the leave of this Court to appeal against that decision on two grounds as follows:
1. The learned trial judge erred by holding the absence of an express path of reasoning demonstrating compliance by the magistrate with s 4A of the Jury Directions Act 2015 was not an error of law because the applicant had a right of appeal to the County Court.
2. The learned trial judge erred by holding that the question whether a finding by the tribunal of fact was unreasonable or unable to be supported having regard to the evidence (the ‘unsafe or unsatisfactory’ ground) was a question of fact rather than a question of law.
5 For the reasons that follow, I would uphold the first ground and make orders accordingly.
Factual summary
6 So as to understand the issues raised by this application, it is necessary briefly to summarise the facts.
7 On 10 January 2018, the applicant was charged with committing an indecent act with ‘SB’, a child under 16. SB was a friend of the applicant’s daughter, ‘MA’.
8 The prosecution case was that SB, a 14 year old female, slept over at the applicant’s house on the evening of 4 to 5 March 2017 with her friend MA. The two girls slept in a makeshift bed in a room at the rear of the house. It was alleged that, in the early hours of the morning, the applicant entered the room. Under the pretence of covering the girls, he indecently assaulted SB by placing his hand between her legs and touching her once on the perineum. SB was awake. She sat up and looked the applicant in the eye. He left the room, and his daughter MA woke. SB told MA what had occurred (the first complaint).
9 Later that day, SB also reported to a male friend, ‘KJ’, what had occurred by Facebook Messenger (the second complaint). Later still that day, SB told her mother, ‘DL’, what had occurred (the third complaint). The next day, SB told the applicant’s estranged wife, Paula Makeham, what her husband had done (the fourth complaint).
10 On 30 March 2017, SB participated in a VARE statement with police.
11 Police interviewed the applicant on 21 June 2017. He told police that he had pulled rugs over SB’s and MA’s uncovered feet when they were asleep, but denied any wrongdoing.
12 SB, MA and KJ were under the age of 18. Their evidence-in-chief in the Magistrates’ Court largely consisted of the playing of their VARE statements. They were cross-examined by the applicant’s counsel whilst located at a remote facility.
The submissions to the magistrate and the magistrate’s reasons
13 Apart from SB, MA and KJ, DL, Paula Makeham, Detective Shannon Murray and Detective Nathan Sheppard also gave evidence in the prosecution case.
14 At the close of the prosecution case the applicant’s counsel indicated that he would not call evidence. Counsel then drew the court’s attention to a number of matters of law — the accused’s good character; warnings on potentially unreliable evidence; prior inconsistent statements; prior consistent statements; cases of word against word; differences in a complainant’s account; assessing witnesses; and the burden and standard of proof — as set out in the following exchange:
[DEFENCE COUNSEL]: Your Honour asked us if we could identify to Your Honour any submissions of law that we wished to make at the conclusion of the case and Your Honour quite pointedly told us that you didn’t want to hear from us about the facts.
HER HONOUR: No.
[DEFENCE COUNSEL]: What I have proposed to do, Your Honour, unless it’s unhelpful to the court is really just provide you a skeleton outline of those matters that I’d ask Your Honour to have at the forefront of your mind.
HER HONOUR: Sure.
[DEFENCE COUNSEL]: Bearing in mind now the Jury Directions Act makes it in fact explicit that a Magistrates’ Court must canvass those matters as a trial judge would with a jury.
HER HONOUR: Yes, yes.
[DEFENCE COUNSEL]: So what I would identify for Your Honour is those portions of the charge book on the Judicial College website that relate to these matters and where appropriate, cross references to the Jury Directions Act and I suspect that would be more than enough, Your Honour, to identify what I’m - - -
HER HONOUR: I have had a look at them since Friday.
[DEFENCE COUNSEL]: Yes. And if Your Honour wanted me to expand on them I would. So the first in the charge book, Your Honour, is 4.3.1 under the heading Character Evidence and then there are two discrete subsections under that 4.3.2 which is the charge for general good character evidence and 4.3.3 which is the charge for specific good character evidence and they both relate to 110 in the Evidence Act.
Perhaps one of the most significant features in this case, Your Honour, will be that in respect of previous representations and the charge book relevantly deals with that. At 4.13.1 those are the Bench notes on previous representations and then the following four charges, 4.13.2 dealing with potential unreliability of hearsay evidence which is dealt with in s 32 of the Jury Directions Act.
4.13.3, on prior inconsistent statements, which is Evidence Act s 103 and that will of course be determined by factual findings Your Honour makes in the course of your deliberations. A converse side of that coin, 4.13.4, prior consistent statements, which is Evidence Act s 108. Then 4.13.5, the charge in respect of complaint evidence and Your Honour will see when you go to it the cross reference of the Jury Directions Act s 44B and following.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: So that they’re no longer required as a matter of law but neither are they prohibited and in my submission this is a case where they are appropriate. Then continuing on, at 4.18.1, which is the Bench notes dealing with word against word cases and Your Honour will find expressly there a reference to the Liberato[] direction at paragraphs 73 and 74 under topic 1.7.1.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: Sorry, Your Honour, that’s elsewhere. It’s in charge book 3.6.4 and at those paragraphs there’s a three step process set out in respect of even if they prefer the evidence of prosecution witnesses that does not mean the prosecution has proved its case beyond reasonable doubt. Even if they don’t positively believe the evidence for the accused they can’t find against him on the evidence on which they rely gives rise to a reasonable doubt about the issue. Must not convict the accused unless satisfied the prosecution has proved the elements beyond reasonable doubt.
There is also a cross reference, Your Honour, under the heading of burden of proof which I will return to in a moment on the general directions. On the last of the specific directions, Your Honour, is at 4.19.1 and it’s the Bench notes dealing with differences in a complainant’s account, noting again that there’s a factual determination as to whether as the trier of fact concludes there are differences and if there are, what to make of them and that’s dealt with in Jury Directions Act ss 54A through to 54D.
Then turning to the general directions Your Honour, which tend to be somewhat trite in the Magistrates’ Court but nonetheless - - -
HER HONOUR: Some of them, yes.
[DEFENCE COUNSEL]: And I’ve been heartened to hear Your Honour refer to some of them in the running but I’ll mention them in any event. The first being for the finder of fact to decide solely on the evidence and Your Honour will find references in charge book 1.5 and 3.3. I think from memory they’re both under the introductory directions to a jury and then the closing directions.
Then assessing witnesses and Your Honour will find that in charge book 1.6 and 3.4.
HER HONOUR: Of the charge book, 3.4?
[DEFENCE COUNSEL]: Yes, Your Honour.
HER HONOUR: All right.
[DEFENCE COUNSEL]: 1.6 and 3.4. Then finally, the burden of proof which is dealt with in Jury Directions Act s 63 which provides that ‘Such direction ought ...(reads)... on that topic.’ Given Your Honour’s role and experience here, it’s unlikely you’re going to make that inquiry of yourself but if it arises there is the reference and I’ve also said to Your Honour in respect of the Liberato direction 3.6.4 and there is also a cross reference to that at 1.7.1 in the Bench notes under the heading Onus and Standard of Proof.
Those are the matters of law that I would ask Your Honour to have at the forefront of your mind as you contemplate the matters that Your Honour has heard. Those are the submissions of law.
15 Ultimately, the magistrate found the charge against the applicant proven. Her reasons for doing so were as follows:
Mr Ricky Makeham was charged on 10 January 2018 with indecent assault of [SB] on 5 March, that is, committing an indecent act upon [SB] on 5 March [2017]. At the relevant time [SB] was aged only 14 years. Mr Makeham has consistently denied the allegation and formally entered a plea of not guilty before me on 10 October 2018.
The case proceeded over three days, the 10th, 11th and 16 October, concluding with legal submissions for the prosecution and defence. Section 47(1) of the [Crimes Act 1958] applied at the relevant time. It provided that a person involved in any act in indecent circumstances with or in the presence of a child under 16 would be guilty of a crime.
An indecent act is defined at common law as an act which any right minded person would consider to be contrary to community standards of decency. The test was enunciated in the DPP v Scott,[] a 2014 [sic] decision of the Victorian Supreme Court and has been followed consistently since.
In support of the prosecution case I heard evidence from the complainant [SB] on three occasions, 10th, 11th and 16 October. I heard from [KJ], her friend, [MA], the daughter of the accused and friend of [SB], [DL], the mother of the complainant, [SB], Paula Makeham, the estranged wife of the accused and then the informant Detective Sheppard.
Many of the facts surrounding what occurred are actually not in dispute. It is not in dispute that [SB] was 14 years of age on Saturday, 4 March [2017] when she went to the Knox festival with Mr Makeham’s daughter, [MA]. It is not in dispute that the girls have known one another from infancy because of a connection between their parents.
It is not in dispute that they were driven to the festival by [SB’s] stepdad who picked them up an hour or two later and drove them to [MA’s] home, Mr Makeham’s home, for a sleepover. It is not in dispute that at the relevant time Mr and Mrs Makeham were separated with Mr Makeham living in the family home and enjoying unfettered contact to all three of his children including [MA].
The girls later shared a makeshift double bed, a couch of sorts pushed together in the corner of the back room of the house. The room was semi-renovated, in part exposed to the elements through an unfinished roofline. At around midnight, after posting photos on social media of their time at the festival, the girls were tired and began to lay side by side on the bed.
In her interview with police, the VARE interview which is marked as Exhibit 5 in the proceeding, [SB] describes this at question 26, ‘And it was like two or 3 am and [MA] started to get really sleepy. She was like truly asleep around 3.30. At 4.30 I was nearly asleep and I didn’t see Rick come in.’ Further on at question 27, ‘I opened my eyes slightly and turned my head and I saw him sitting at the bottom of my feet. I was in the foetal position.’
[SB] described feeling something crawling on her skin. The blanket covering her was moving. Question 29 of the VARE, ‘And [MA] and I woke up. She sat up and she was like “What are you doing dad”. He responded, referring to Mr Makeham, “I’m just putting the blanket back on.”
According to his record of interview Mr Makeham was doing exactly that and then left the room. I refer now to question 31 of the VARE from [SB], ‘Anyways, so I was pretending to be asleep and for about 20 minutes this thing, this whole cycle was going on. He would pull the blanket slowly off me and I would pretend to stir and pull them back on and then after about 20 minutes he got a little more impatient and when he pulled it off here, like tucked it under something, I think he was sitting on it and then I was like okay, well, I thought I was going to get raped and that’s when I was thinking in my head all of the things that I could try and do to prevent this and anyways, I was wearing like really shorts [sic] at the time. He slightly pulled them and then he pulled them up all the way to here, the top of my bottom.’
Question 32, ‘And then he got my underwear with two fingers and he slowly pulled that up too.’ Question 33, ‘And then I felt his – one of his fingers. So like there’s your butt.’ Question 35, ‘I felt a finger like go like this and that in that area and that’s when I was like no, I can’t. So I sat up and I looked him in the eyes and I yanked the blanket back later on and he got up and he bolted.’
With her VARE statement [MA] confirmed that she too had seen her father. At question 18 of the VARE of 2 April 2018 [MA] says, ‘I woke up to my father like running out of the room really fast like he was scared.’ At 6.23 am on Sunday, 5 March [SB] sent the first of several messages via Facebook Messenger to her friend [KJ]. Referring now to Exhibit 3. The first message read, ‘My friend’s dad just violated me.’
In the exchange she later told [KJ] that she was scared. [KJ] did not respond until 10.19 am telling this court in his evidence of 10 October that he was probably asleep until then. In those messages [SB’s] description, I am referring now to pp 3 and 4 of Exhibit 3, of what happened is given in terms almost identical to her VARE account given to police some 25 days later.
Later that day, Sunday 5 March, when her mother [DL] collects her, [SB] tells her mother almost immediately that she needs to talk. Finally alone with her in the family home and indeed in her mother’ bedroom with the door closed, she recounted to her mother what she says happened to her.
Paula Makeham, the estranged wife of the accused was visited by [DL] later that day. [DL] told Mrs Makeham about [SB’s] complaint. The following day, Monday, 6 March [SB] was taken by her mother to Mrs Makeham’s home where she recounted what she says happened to her. Finally, on Tuesday, 7 March after breaking down in the presence or [scil, of] her sympathetic piano teacher, Jennifer, [SB] and her mother discussed police involvement and [DL] later contacted the Dandenong SOCIT [Sexual Offences and Child Abuse Investigation Team].
There are several discrepancies between [SB’s] accounts and those of the witnesses referred to. [MA] described to police in question 19 of her VARE that [SB] had been touched by her father and I quote, ‘On the bum and on the breasts.’ Prior to this there had never been any mention of touching of [SB’s] breasts and [SB] denies any such touching.
Paula Makeham described [SB’s], and I quote, ‘backside’ being touched, language once again denied by [SB]. A third party described by the informant as probably an intake child protection worker is noted … within the police notes as saying that Mr Makeham and I quote, ‘Put his hand under the gusset’, of [SB’s] [sic] and, ‘touched her labia.’ During cross-examination of [SB] she denied this language and indeed questioned quite sincerely in my view what the word labia actually meant.
In considering Mr Makeham’s position in relation to the allegations the court has received little relevant evidence. Paula Makeham in her evidence to this court on 11 October described her estranged husband as a good man, an honest man with a good reputation and a man against whom there has been [scil, never been] prior been allegations made.
… The informant, Detective Sheppard, confirmed that Mr Makeham was cooperative at all times with police and that he called the police station within 24 hours of police leaving a calling card at his home. Further, that he attended for a fully recorded record of interview cooperatively on 21 June 2017. It is clear to me that Mr Makeham has no prior criminal history with police and courts.
During the interview Mr Makeham denies categorically any wrongdoing. At question 121 of the record of interview marked as Exhibit 13 he says that he went into the girls to put the covers over them. Answer to question 130 he said, ‘The covers were mostly on [MA] but hanging down on the floor. I picked them up. I reached over to lay them down and I pulled them around their feet at the base and that’s only – that’s it. That’s all I can remember doing. It’s nothing, nothing more than that to me. I don’t recall touching. I don’t mean that. It’s more like the covers were on and that’s it. I didn’t bump the kids to wake them. I didn’t lean on them, et cetera.’
I have considered all of the evidence very carefully in this case and I have taken considerable time too to do it. I am conscious that Mr Makeham who neither gave evidence nor called any on his behalf was under no obligation to do so. The charge is a serious one with very serious repercussions. With all of that in that mind I make the following findings of fact.
(1), [MA] and [SB] were together on the bed in the room described with [SB] facing the wall, chatting and using social media on their phones until approximately 3 am.
(2), [MA] fell asleep first.
(3), [SB] was not quite asleep when Mr Makeham first entered the room, probably with the intention of ensuring the girls were covered up before he went to bed.
(4), Emboldened by the sight of [SB] being partially exposed by virtue of her position on the bed and the light clothing that she was wearing, Mr Makeham began, as was described by [SB], to try to remove any covers from her.
(5), Mr Makeham was indeed sitting at the base of the bed when his daughter [MA] woke momentarily and asked what he was doing. [MA] promptly fell asleep again but Mr Makeham remained in the room.
(6), What followed has been accurately and truthfully described by the complainant [SB]. Mr Makeham attempted to remove the covers from [SB] determinedly and slowly so as not to wake her and for the sole purpose of touching her indecently.
(7), [SB] was a compelling witness. Her immediate disclosures to [KJ], to [MA], later to her mother Mrs Makeham [sic] only served to enhance my view of her truthfulness.
(8), I find it would be impossible for [SB’s] version to have been concocted in all of the circumstances and despite inconsistencies to which I have referred. Those inconsistencies in my view occurred through no fault of [SB], but rather through the careless use of language by the individuals that I have referred to.
(9), [SB] presented to this court as a young and unsophisticated girl even now at the age of 16. I could find no evidence of her lying and I felt that she withstood vigorous well planned and well executed cross-examination and remained consistent throughout.
(10), Whilst I am prepared to find that Mr Makeham acted in an opportunistic fashion, disinhibited possibly by the drinking of alcohol during that night, I consider that he breached young [SB’s] trust and the trust of her family by engaging in this conduct which was profoundly indecent.
The charge is proved beyond reasonable doubt.
16 After the reasons were delivered, counsel for the applicant sought a short break to consider them. He then sought clarification of at least one aspect of the magistrate’s reasons. Remarkably, counsel’s ostensibly reasonable request for clarification provoked an inexcusably belligerent response from the magistrate:
[DEFENCE COUNSEL]: Thank you, Your Honour. Your Honour, I’m grateful for that opportunity. I did have a look at one point in Your Honour’s ruling and there was something I did want to seek some clarification on if I might. That was I think I have it as – it might have been Your Honour’s point 9 or perhaps point 8 where Your Honour made the finding that, ‘Such inconsistencies as there were in the case were not the fault of [SB] but careless use of the language by the witnesses.’
What I wanted to seek, Your Honour, is clarification in light of the submissions that were made to the court about the use of hearsay evidence and particularly complaint evidence.
HER HONOUR: If you don’t like my decision you can appeal it. I’m not clarifying anything. I’m here for a plea of guilty, it’s quite simple. I have given you my decision. Now, do you wish to provide material in mitigation?
[DEFENCE COUNSEL]: I do but before I do that, Your Honour, I do seek reasons for Your Honour’s decision in respect of the rejection of the inconsistencies of the complaint evidence between the witnesses particularly given as I - - -
HER HONOUR: Have I not just said what I’ve just said to you? I don’t want to have an argument with you. If you want to call my decision into question in any respect you have an avenue to do that to take it up. Don’t take it up with me.
[DEFENCE COUNSEL]: I’m not - - -
HER HONOUR: I’ve given you my reasons for decision for the third time. If you wish to put matters to me in mitigation you may do so now. If you don’t, then I’ll proceed to sentence.
[DEFENCE COUNSEL]: I do wish to put matters in mitigation but what I do want to put on the record, I do seek to obtain clarity from Your Honour in respect to further matters.
HER HONOUR: All right. I’ll proceed to sentence. I gave you three opportunities.
[DEFENCE COUNSEL]: I now wish to address Your Honour on those matters with respect to sentence.
HER HONOUR: You can apologise because I gave you three separate opportunities to do this and you persisted despite I think what was a very clear ruling from me on at least three occasions. Now you wish to put matters in mitigation, you may do so but do not test me again like that. I think it was plain rude. You knew exactly what I was saying to you the first time I said it to you.
[DEFENCE COUNSEL]: With respect - -
HER HONOUR: I came back in here to hear matters in mitigation. I want to hear what you want to tell me about this man. This is a serious matter indeed.
[DEFENCE COUNSEL]: I don’t quibble with that, Your Honour, but with respect, as a member of counsel I’m obliged to put those matters on behalf of my client that need to be put and as a matter of law - - -
HER HONOUR: You’ve done that. I was a member of counsel for longer than you’ve been a member of counsel. Do not stand there and tell me what your obligations are. I know too well what they are.
[DEFENCE COUNSEL]: If Your Honour pleases.
HER HONOUR: Do you wish to begin?
[DEFENCE COUNSEL]: I do, Your Honour.
17 There is nothing to suggest that counsel’s request for clarification was other than conscientiously made. Counsel, so it seems to me, was doing no more than what he perceived his duty to be. Indeed, it seems plain that counsel was attempting to do what Beach JA in Ta contemplated should be done in a situation in which clarification of a court’s reasons was thought to be necessary. In such circumstances, the magistrate should patiently and courteously have listened to counsel’s submissions, rather than peremptorily rejecting them with the curt retort: ‘If you don’t like my decision you can appeal it. I’m not clarifying anything’. For counsel to seek clarification was not, as the magistrate characterised it, ‘plain rude’ (although, it might be said, it provoked a somewhat rude response). There was no occasion for the magistrate to berate counsel, let alone seek an apology from him. It was wrong of the magistrate to do so.
The Magistrates’ Court decision on appeal
18 In the appeal before the primary judge, the applicant’s grounds asserted that the magistrate erred in law by: failing to direct herself as required, either adequately or at all (ground one); failing to give adequate reasons for her decision (ground two); and denying the appellant procedural fairness when refusing to allow his counsel to seek adequate reasons for her decision (ground three). It was also contended that the findings of the magistrate were unsafe and unsatisfactory (ground four).
19 In his reasons, the primary judge noted that a person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted as a summary hearing pursuant to s 254 of the CPA may appeal to the County Court against the conviction and sentence imposed, or against sentence alone. Such an appeal must be conducted as a rehearing and an appellant is not bound by the plea entered in the Magistrates’ Court. Alternatively, the convicted person may appeal to the Supreme Court on a question of law under s 272 of the CPA. By virtue of s 273, a convicted person who appeals to the Supreme Court on a question of law abandons finally and conclusively any right to appeal to the County Court in relation to that proceeding.
20 Next, the judge set out various provisions of the Jury Directions Act 2015 (‘JDA’), and the explanatory memorandum and second reading speech relevant to the introduction of s 4A.
21 The judge then set out the submissions of the appellant’s counsel. Relying on Grbic v Pitkethly, counsel had argued that magistrates should direct themselves in a manner similar to how a judge would direct a jury. Further, counsel argued that s 4A of the JDA was introduced to make clear that its provisions applied to summary hearings. Counsel submitted that, where the practitioners have identified issues and have sought a direction, a magistrate has an obligation in his or her reasons to descend to the level of detail that a trial judge would employ in charging a jury. The magistrate had failed to make any reference in her reasons to certain warnings and directions. From her failure to do so, counsel had submitted, it could be concluded that she had failed to have regard to those matters and thereby erred in law.
22 It is convenient at this juncture to pause in order to set out the terms of s 4A, which provides (so far as relevant):
4A Application of Act to criminal proceedings without juries
(1) This section applies to—
(a) a summary hearing or committal proceeding under the Criminal Procedure Act 2009; …
(2) The court’s reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 makes provision—
(a) must be consistent with how a jury would be directed in accordance with this Act; and
(b) must not accept, rely on or adopt—
(i) a statement or suggestion that this Act prohibits a trial judge from making; or
(ii) a direction that this Act prohibits a trial judge from giving.
23 Returning to the primary judge’s reasons, he noted that counsel for the applicant had submitted the level of detail to which the magistrate must descend in the written expression of the reasoning process will be informed primarily by the nature of the proceeding, the seriousness of the charge, the complexity of the factual dispute and the directions that were sought by the parties. A failure to provide adequate reasons, counsel submitted, is an error of law. The magistrate erred in law, it was submitted, because she did no more than set out the evidence and announce her decision. Moreover, counsel submitted that the magistrate erred in law when she refused to provide further reasons or to hear from counsel as to the clarification sought, and then threatened to proceed to sentence the appellant peremptorily if his counsel did not desist and make a plea in mitigation.
24 Finally, the judge also noted that counsel had submitted that the magistrate’s findings were ‘unsafe and unsatisfactory’.
25 Next, the judge turned to the respondent’s submissions. For present purposes it is unnecessary to repeat them.
26 The judge did not accept the appellant’s contention that, by force of s 11 of the JDA, it was incumbent on practitioners to identify the matters in issue, and, in compliance with s 12, request that the magistrate consider (or not consider) particular directions, with the consequence that, in much the same way as occurs in a jury trial, counsel and the magistrate would discuss which directions should or should not be contemplated in the reasoning process. There were two reasons. First, s 4A is limited in its operation to those matters to which Parts 4 to 7 of the JDA make provision. Secondly, the CPA identifies significant procedural differences between a summary criminal hearing and a trial on indictment.
27 Significantly, the primary judge rejected the contention that the absence of an express path of reasoning demonstrating that the magistrate had correctly and consistently reasoned as she was required to do by s 4A was an error of law that enlivened the court’s jurisdiction under s 272 of the CPA. In a passage which is of some importance to the resolution of the application in this Court, when referring to the magistrate’s refusal to provide any clarification of her reasons, the judge observed:
It is in this context that the alternative appeal path, namely a de novo hearing under s 254 of the Criminal Procedure Act assumes significance. The exchange between counsel and the magistrate that is the basis for ground three makes it clear that the magistrate contemplated that it was unnecessary for her to give further or more detailed reasons for her decision because the appellant could pursue a de novo hearing in the County Court under this provision.
In Perkins v County Court of Victoria, the appellant sought judicial review of the decision of a County Court judge on an appeal against a conviction recorded in the Magistrates’ Court. The appellant alleged error of law on the face of the record, in that the judge’s reasons for decision did not disclose an adequate basis for upholding the charges. Judicial review under Order 56 was refused and, on appeal, Buchanan JA observed, pertinently for the question before me:
There is no general principle that a court’s failure to give reasons is an error of law which vitiates the court’s decision. That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons’ rights and liabilities is usually desirable, serving objectives such as candour in decision- making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision.
That reasoning is apposite in the present case. Because the Criminal Procedure Act provides for a de novo appeal, the insufficiency in the reasoning of the magistrate contended for by the appellant, assuming it is deficient for present purposes, cannot have the effect contended for by the appellant. Such deficiencies in reasoning have no effect. I have not been persuaded that the appellant has demonstrated an error of law that vitiates the magistrate’s decision. For these reasons, grounds one, two and three have not been made out.
28 With respect to the contention that the magistrate’s finding was ‘unsafe and unsatisfactory’, on the basis of the submissions made to him, the judge was ‘not persuaded that the state of the evidence was such as to preclude the magistrate, acting reasonably, from being satisfied of the appellant’s guilt to the requisite standard’.
Ground 1: The adequacy of the magistrate’s reasons
29 It will be remembered that the applicant’s counsel in essence submitted that the magistrate should direct herself on the following matters:
• first, the applicant’s good character, bearing both on the credibility of his denials in the police interview, and on the unlikelihood of guilt;
• secondly, complaint and prior consistent statements, including the potential unreliability of hearsay statements;
• thirdly, prior inconsistent statements, including the potential unreliability of hearsay statements;
• fourthly, the proper approach where the case is one of ‘word against word’;
• fifthly, the proper approach to differences in the complainant’s account and credibility;
• sixthly, the burden of proof (and other ‘general directions’).
30 Although, as I will explain, I consider that the magistrate’s reasons were adequate to deal with most of the matters urged on her by counsel, they were not adequate to explain whether — and, if so, how — the magistrate took into account evidence of the applicant’s good character, an aspect which counsel had made the vanguard of his submissions. More importantly, perhaps, the primary judge gave this aspect of the magistrate’s reasons scant (if any) attention. Indeed, as far as I can tell, beyond recapitulating the submissions of counsel both before the magistrate and on the appeal before him, the primary judge did not descend into any analysis of whether the magistrate’s reasons were (or were not) adequate to deal with the character evidence.
31 Turning to the other matters urged upon her by counsel, the magistrate in her reasons referred to the suggestion that there were ‘several discrepancies between [SB’s] accounts and those of the witnesses referred to’. She found, however, that ‘it would be impossible for [SB’s] version to have been concocted in all of the circumstances’ despite the ‘inconsistencies’ to which she had referred. The magistrate apparently considered that the inconsistencies ‘occurred through no fault of [SB], but rather through the careless use of language by the individuals that I have referred to’. It might thus reasonably be inferred that the magistrate did not think that the suggested prior inconsistent statements by SB had any impact on SB’s credit.
32 Of further relevance to SB’s credit, the magistrate also referred to the evidence of the first, second, third and fourth complaint, and observed that SB’s ‘immediate disclosures to [KJ], to [MA], later to her mother Mrs Makeham [sic] only served to enhance my view of her truthfulness’. It might thus be concluded that the magistrate considered that the complaint evidence bolstered SB’s ‘truthfulness’. The reasons are silent, however, as to whether she used the complaint evidence for any hearsay purpose, or gave any consideration to whether it was potentially unreliable, both being matters upon which counsel had addressed.
33 As to the applicant’s denials, the magistrate said that she was ‘conscious’ that the applicant ‘who neither gave evidence nor called any on his behalf was under no obligation to do so’. Somewhat paradoxically, the magistrate also said that in ‘considering [the applicant’s] position in relation to the allegations the court has received little relevant evidence’, whilst in almost the same breath she acknowledged that ‘[d]uring the interview [the applicant] denies categorically any wrongdoing’.
34 Very significantly, however, despite it having been at the forefront of counsel’s submissions, as I have said the magistrate did not articulate how — if at all — she had used the evidence of the applicant’s good character. The magistrate stated that the applicant’s wife had ‘described her estranged husband as a good man, an honest man with a good reputation and a man against whom there has been [scil, never been] prior allegations made’. Additionally, the magistrate said that it was ‘clear’ to her that the applicant ‘has no prior criminal history with police and courts’. Despite a mere recitation of the evidence going to the applicant’s good character, however, the magistrate gave no indication whatsoever as to whether she took it into account when considering the credibility of the applicant’s categorical denials of wrongdoing — somewhat curiously, as I have indicated, despite his lengthy interview, she thought there was ‘little relevant evidence’ of the applicant’s ‘position’ — or as bearing on the unlikelihood of the applicant’s guilt. In my view, the reasons were in that respect inadequate.
35 So far as the guiding principles are concerned — and presently putting to one side s 4A of the JDA — it has long been recognised in this State that officers of courts of summary jurisdiction are not exempt from the duty attaching to every judicial officer to provide adequate reasons for decision. As a matter of judicial duty, and as an ordinary incident of the judicial process, magistrates have an obligation to provide adequate reasons.
36 Of necessity, the content and extent of a magistrate’s reasons will be dictated by the nature of the matter under consideration, and the evidence and the issues raised. In a case such as the present, a magistrate must consider all of the relevant evidence; although, depending upon its importance to the ultimate resolution of the case, it may not be necessary for the magistrate to refer to every piece of it, or to indicate whether it is accepted or rejected. But a magistrate should refer to any evidence that is important or critical to the proper determination of the matter. And where there is conflicting evidence of a significant nature, each set of evidence should be referred to.
37 Plainly, the extent of the duty to set out the findings made from the evidence will depend upon the circumstances of the individual case. Indeed, having regard to the nature of the case and the issues to be determined, a magistrate’s reasons may not need to be elaborate. Quite obviously, the content of the obligation will not be the same for every decision, but will vary according to the circumstances of the particular case.
38 In any disputed case, a magistrate should set out material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found. That is not to say that a magistrate necessarily must make explicit findings on each disputed piece of evidence, or make findings on every argument or submission made — particularly where they are numerous and of varying significance — but those that are important to the ultimate decision must be set out.
39 Although the cases on the adequacy of reasons are legion, Betts v Hardcastle is instructive, since it involved an examination of the adequacy of a magistrate’s reasons in a summary criminal hearing. At issue was whether the magistrate considering a charge of stealing had adequately warned himself of the dangers of acting upon the evidence of an accomplice, and had wrongly treated certain evidence as being corroborative. Roberts-Smith J observed:
It is well accepted that a judicial officer has a duty to deliver reasons to expose his or her process of reasoning sufficiently to enable a litigant to determine whether or not there is any ground of appeal and for an Appeal Court to adequately adjudicate any appeal if instituted: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 382-390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256-259, 268-274, 277-278; Lloyd v Faraone [1989] WAR 154 at 162-164; Stojkovski v Fitzgerald [1989] WAR 328 at 334, 335, 340; Garrett v Nicholson (1999) 21 WAR 226 at 236-238, per Pidgeon J and Owen J at 248-249; Nevermann v The Queen (1989) 43 A Crim R 347.
In Carlson v King (1947) 64 WN (NSW) 65 at 66 Jordan CJ said:
It has long been established that it is the duty of a court of first instance from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.
In Pettitt v Dunkley (at 387-388) Moffitt P (with whom Manning JA agreed) said:
… there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reasons why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial of first instance does not exhaust the rights which parties may have. Just as an expressed statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordan CJ quoted recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.
Roberts-Smith J also observed:
In Lam v Beesley (1992) 7 WAR 88 at 93, Owen J said that the question of depriving a litigant of the opportunity he may have had on appeal extends beyond a complete absence of reasons and includes a situation where there is uncertainty as to the reasons upon which the finding is based. But the realities of pressure of work, particularly in Courts of Petty Sessions must be acknowledged. So too, less detail is to be expected where reasons are delivered ex tempore: see Pallot v Harrison (unreported, Supreme Court, WA, Owen J, Library No 950261, 12 May 1995).
In Fleming v The Queen (1998) 197 CLR 250, the High Court had to consider the obligation on a trial judge sitting without a jury, to give reasons for a verdict. The accused had been indicted on three charges of aggravated indecent assault upon a 15 year old girl and one charge of sexual intercourse with that girl as a person under his authority. The case against the accused depended upon the evidence of the complainant. Had the trial been before a jury, the trial judge would have been required to direct the jury that the evidence of the complainant had to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty returned, in accordance with Longman v The Queen (1989) 168 CLR 79 at 107. The only reference in his Honour’s reasons for decision to this was a statement that (at 264): ‘The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt I must acquit the accused.’
In a joint judgment, their Honours held that statement not to in any way satisfy the relevant requirement (at 265) and that although consciousness of the importance of such a warning would no doubt be of second nature to many judges, the animating principle behind the requirements of the Criminal Appeal Act 1912 (NSW) was that criminal justice not only be done but also be seen to be done. For that reason the judgment must show expressly or by necessary implication that the warning was taken into account. It would be no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account.
40 In Beale, Meagher JA made plain that a failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made. He said that ‘[a]side from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system’. And he added:
The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability.
The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way.
41 Clearly, the content of the duty to give reasons will vary from court to court and case to case. The obligation that rests upon a busy magistrate, hearing dozens of summary matters in a day, will obviously be less onerous than that which rests upon a judge of a higher court, who will not be burdened with the same daily caseload. As Roberts-Smith J observed in Hardcastle, the realities of pressure of work in the Magistrates’ Court must be acknowledged. Thus, it might be expected that in many summary criminal hearings, it will be practical for a magistrate only to give relatively brief reasons.
42 Of some significance, however, the magistrate in the present case had a greater opportunity for mature reflection, and for the formulation of moderately comprehensive reasons, than might often be the case. Hence, the magistrate heard evidence over three days (on 10, 11 and 16 October 2018), and counsel for the applicant (and the police prosecutor) made submissions of law on the third day (16 October 2018). A week then expired before the magistrate delivered the impugned reasons (on 23 October 2018). In the course of delivering her reasons, the magistrate made clear that she had ‘considered all of the evidence very carefully in this case and [had] taken considerable time too to do it’.
43 It will be remembered that the first ground contends that the primary judge erred by holding that, because the applicant had a right of appeal de novo to the County Court, the absence of an express path of reasoning by the magistrate demonstrating compliance with s 4A of the JDA was not an error of law. Hence, in the passage from his reasons earlier set out, the judge: first, observed that ‘the magistrate contemplated that it was unnecessary for her to give further or more detailed reasons for her decision because the appellant could pursue a de novo hearing in the County Court under this provision’; secondly, noted — ‘pertinently for the question before [him]’ — that Buchanan JA in Perkins had said (among other things) that ‘where an appeal is de novo, an absence of reasons for the decision below can have no effect’; thirdly, regarded that reasoning to be ‘apposite’; and, fourthly, held that, ‘[b]ecause the [CPA] provides for a de novo appeal, the insufficiency in the reasoning of the magistrate contended for by the [applicant], assuming it is deficient for present purposes, cannot have the effect contended for by the [applicant]’, since ‘[s]uch deficiencies in reasoning have no effect’.
44 I venture to repeat the view I expressed in Bookless v Smith:
I am not much attracted to the notion that, in some circumstances, the availability of a de novo appeal may to some extent excuse a magistrate’s insufficient reasons. The logic of that view escapes me. To my mind the availability of an appeal to the Supreme Court on a question of law seems to point in the opposite direction. I need to say no more about it, however, since it was not submitted that the availability of a de novo appeal had any relevance to the resolution of the instant case.
45 It appears that the primary judge may have misunderstood the effect of what Buchanan JA endeavoured to convey in Perkins. In that case, the appellant had been convicted in the Magistrates’ Court of two charges of resisting police in the execution of their duty and one of offensive behaviour. On a de novo appeal to the County Court, a judge of that court had dismissed the offensive behaviour charge and found the remaining two charges proven. The appellant sought judicial review, contending that there was error of law on the face of the record, in that the County Court judge’s reasons on the appeal did not disclose an adequate basis for finding the charges proven. (Given that the challenge was to the County Court judge’s reasons considering the matter afresh on appeal, there was, of course, no occasion to consider the reasons for decision of the magistrate.)
46 In essence, the appellant argued in Perkins that he could only have been guilty of resisting police if they were acting in the course of their duty. The appellant’s only resistance was to being handcuffed with his hands behind his back. Police arresting a suspect have no right, it was submitted, to handcuff a person simply because they are making an arrest. There must be some additional circumstance. If there is not, police are not acting in the course of their duty. If the County Court judge was satisfied of the existence of such an additional circumstance, he was obliged to state in his reasons the facts giving rise to that critical additional circumstance. At first instance, Harper J rejected the contention that the County Court judge’s reasons were in relevant respects inadequate.
47 On appeal to this Court, it was contended — based upon the proposition that a judicial tribunal is obliged in law to state reasons for its decisions — that the County Court judge’s reasons did not contain findings of fact which established that it was necessary to handcuff the appellant in order to prevent his escape or the commission or continuation of a criminal offence, or that it was necessary to apprehend the appellant to ensure his appearance at court. Buchanan JA (with whom JD Phillips and Charles JJA agreed) observed that there was no right of appeal from the County Court judge’s decision. It was in that context that his Honour remarked that, ‘where an appeal is de novo, an absence of reasons for the decision below can have no effect’. So much must be true. If a tribunal is conducting a de novo appeal — where the appellate tribunal retries the issues, without being limited to the evidence and submissions before the initial tribunal — the absence of (or inadequacy in) the reasons of the tribunal from which the appeal is brought can be of no relevance. The appellate tribunal decides the matter afresh, unfettered by the process of decision-making in the tribunal appealed from. That being so, the adequacy or otherwise of the reasons of the initial tribunal can have no bearing on whether the appellate tribunal’s decision is vitiated by error.
48 Describing the ‘reasoning’ of Buchanan JA as being ‘apposite’, however, the primary judge in this case expressed the view that, because the CPA provides for a de novo appeal to the County Court, any deficiencies in the magistrate’s reasoning ‘have no effect’. What that observation mistakes, however, is that it is the adequacy of the magistrate’s reasons which are in question, not those of an appellate court dealing with the matter de novo. Thus, rather than having ‘no effect’, the adequacy of the magistrate’s reasons in this case was of central relevance to the appeal before the primary judge. Insofar as the judge determined otherwise, he fell into error.
49 Turning to s 4A of the JDA, the applicant’s counsel in this Court submitted that the section imposes a duty on a magistrate to provide reasons with respect to those issues that counsel identify and seek directions on under ss 11 and 12. For at least two reasons, that submission must be rejected.
50 First, the language of s 4A(2) makes clear that a magistrate’s reasoning in relation to any matter provided for in Parts 4, 5, 6 or 7 of the JDA, ‘must be consistent with how a jury would be directed in accordance with the Act’ (and must not accept, rely or adopt a statement or suggestion that the Act prohibits a trial judge from making, or a direction that the Act prohibits a trial judge from giving). Section 4A does not, however, provide that a magistrate’s reasons necessarily must recite that he or she has directed himself or herself in accordance with the provisions of Parts 4 to 7. The obligation to give adequate reasons continues as an ordinary incident of the judicial process recognised at common law, rather than as a statutory obligation arising under the JDA. Hence, the content and extent of a magistrate’s reasons will continue to be dictated by the nature of the matter under consideration; the evidence in the case; and the important issues raised (some or all of which in a given case may invoke consideration of provisions of the JDA).
51 Secondly, as I have indicated, s 4A(2) is limited to ensuring that a magistrate’s reasoning is consistent with Parts 4 to 7. It does not pick up — expressly or by implication — any of the provisions of Part 3, in which ss 11 and 12 are found. There is therefore no occasion for counsel and magistrate to participate in the kind of exercise that ss 11 and 12 contemplate a judge and counsel should in a criminal trial by jury. Instead, one must look to Part 3.3 of the CPA to find the procedure governing summary criminal hearings, including opening addresses (s 65) and closing addresses (ss 73 to 75).
52 As earlier mentioned, following the delivery of the magistrate’s reasons, counsel for the applicant sought clarification of an aspect (or aspects) of those reasons, apparently relying upon certain observations of Beach JA in Ta. Counsel’s request, as has been discussed, provoked a harsh response. In this Court, as I understood his submissions concerning the magistrate’s refusal to clarify her reasons, counsel for the applicant in substance advanced the proposition that the general duty of a judicial officer to give reasons included a duty to provide clarification of those reasons upon request. In my view, however, stated in such bald and unqualified terms, that proposition cannot be accepted.
53 I consider, that Beach JA in Ta did not intend to promulgate or acknowledge any broad principle dictating that a magistrate or judge has an obligation to provide clarification of (or further) reasons for decision in all circumstances whenever asked for. It must be understood that Ta turned on its own facts. Importantly, the reasons considered in Ta were delivered ex tempore. By their nature, such reasons may on occasion lack the depth and clarity of those which a judge or magistrate has had time to revise and refine. Hence, reasons delivered ‘at the time’ may sometimes have features which are unclear or uncertain, but which may readily be explained or clarified. The observations made by Beach JA must be read in that light.
54 Beach JA was of the view that the appellant’s counsel at first instance had assented to the judge providing limited reasons, restricted to the principal issue in that case. As he said, ‘the appellant effectively acquiesced in [the judge] determining the matter by reference to whether her Honour accepted the appellant’s evidence’. It was against that backdrop that Beach JA considered that, had there been any doubt about the judge’s path of reasoning when she delivered her ex tempore reasons, ‘it would have been (and was) open to the appellant’s counsel … to seek further reasons or clarification’.
55 Since I have concluded in the instant case, however, that the magistrate’s reasons were inadequate, and that it could not be said that the applicant in any way ‘acquiesced’ in such inadequacy, it is unnecessary to consider whether there is a more general right to request clarification of a magistrate’s reasons (and if so, whether that right is subject to qualification), and whether there is a corresponding duty to provide further reasons. It is abundantly clear that counsel in this case was prevented from developing any meaningful submission as to whether (or why) the magistrate should provide any clarification of her reasons. Clearly, the magistrate should have heard counsel. Had she done so, and had she not been persuaded that she needed to provide any further explanation of her reasons, presumably she would simply have let her reasons stand. But she did not hear counsel. Beyond his attempt to introduce the subject, counsel was not permitted to advance any adequate submission. The magistrate’s otherwise inadequate reasons must be viewed in that setting.
56 At the risk of repetition, I consider that the magistrate’s reasons were inadequate to explain whether — and, if so, how — she took into account the applicant’s good character. Good character was central to the resolution of the disputed issues in the case. The prosecution relied on the evidence of SB — the credibility of which was supported by the complaint evidence — to support the charge. Against that, the applicant’s ‘defence’ revolved very significantly (if not solely) around his denials in his record of interview, including his explanation as to how his innocent actions might have been misinterpreted. He was entitled to have the evidence of his good character weighed in the balance by the magistrate when she came to consider his denials. This was, after all, as counsel for the applicant tried to make clear, a case of ‘word against word’. Moreover, the applicant was entitled to expect that the magistrate would take his good character into account when considering the unlikelihood of his guilt. Yet, beyond reciting the evidence establishing that he was a man of good character, the magistrate gave no clue as to how she may have used the evidence (if at all). In that respect, the reasons were wholly inadequate, and the primary judge should have so found.
57 A similar situation arose in Bookless. In that case, the appellant — a retired school teacher of unblemished character — had been found guilty in the Magistrates’ Court of two sexual offences against children. There was evidence before the magistrate of the appellant’s good character. As in this case, the magistrate failed to explain how she was able to discount the evidence of good character. An appeal under s 272 of the CPA was upheld on the basis that the magistrate’s reasons were inadequate.
58 More recently, in Grabski v Beier, Ginnane J held that the reasons of a judge of the County Court on a de novo appeal were inadequate in several respects. The plaintiff in that case had been convicted in the Magistrates’ Court of two charges of sexual offences against children. He appealed to the County Court, and was once more convicted of the two charges (albeit that he received a lesser sentence), despite the plaintiff having given an account denying the conduct underlying the charges, and the judge having before him the evidence of three character witnesses. Thereafter, the plaintiff sought judicial review of the County Court judge’s decision in the Supreme Court, on the basis (among others) that the judge ‘[d]id not articulate how the character evidence had affected his reasoning’. Ginnane J upheld a complaint that the judge’s reasons were inadequate on a number of bases, including that the judge
made no reference to the character evidence that formed part of the plaintiff’s case and was relevant to the plaintiff’s defence of both charges, both as to the unlikelihood of guilt and as to the credibility of the accused who denies his guilt.
59 As I have endeavoured to make clear, the level of detail required for reasons to be adequate in any given case will include the issues in the case and their complexity. In the present case, the credibility of SB’s account was pitched directly against the credibility of the applicant’s denial. The prosecution relied on the complaint evidence to bolster SB’s credit, and the applicant relied on the evidence of good character to tip the scales in favour of the defence case. Failure adequately to deal with that pivotal issue vitiates the magistrate’s decision. The primary judge should have so found.
60 For these reasons, the first ground must succeed.
61 As a result, I would set aside the orders of the primary judge and in their stead order that the appeal under s 272 of the CPA be allowed, and the decision of the Magistrates’ Court be set aside. The charge should be remitted to the Magistrates’ Court for rehearing before another magistrate. I would hear the parties on the question of costs.
62 Finally, I would add this. When the changes to be effected by the Justice Legislation Amendment (Criminal Appeals) Act 2019 soon come into effect — one of the purposes in s 1(c)(i) of the Act being ‘to abolish de novo appeals against convictions recorded in summary proceedings and to provide instead for those appeals to be by way of rehearing’ — it may be expected that, all things being equal, magistrates will of necessity have to provide more detailed reasons for decision than they have generally been required to give in the past. That is because, once it comes into effect, the new s 256(1)(c) of the CPA will require the County Court to ‘determine the appeal by way of rehearing … having regard to the reasons of the Magistrates’ Court in the summary hearing’.
Ground 2: The ‘unsafe and unsatisfactory’ ground
63 When, under s 276(1)(a) of the CPA, it is contended that the verdict of a jury ‘is unreasonable or cannot be supported having regard to the evidence’, the verdict is said to be ‘unsafe and unsatisfactory’. Section 276(1)(a) is limited to jury verdicts. It has no application to findings in summary criminal hearings. Hence, ground 2 was misconceived, and the resort of the applicant’s counsel to cases such as M v The Queen — limited to jury verdicts — was inapt.
64 That said, for a magistrate to make a finding that is not open on the evidence is an error of law amenable to appellate review. Hence, in S v Crimes Compensation Tribunal, Phillips JA observed:
It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it. In so referring to a ‘finding’ I use the term not only to include a finding of a fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference) was not open to the tribunal, that may bespeak a relevant error of law.
65 And in Berlyn v Brouskos, Nettle J said:
The question of whether there is any evidence of facts and the question of whether a particular inference can be drawn from facts are both questions of law: Australian Broadcasting Tribunal v Bond. To make a finding of fact or to draw an inference in the absence of evidence is equally an error of law: Sinclair v Maryborough Mining Warden. There is, however, no error of law in making a wrong finding of fact or drawing an illogical inference, if the finding or inference is reasonably open: Bond. And ‘reasonably’ in this context means no more than a rational tribunal of fact acting according to law as opposed to an irrational tribunal acting arbitrarily: S v Crimes Compensation Tribunal.
66 In written submissions, the applicant’s counsel contended that ‘on the whole of the evidence it was not open’ to the magistrate to be satisfied beyond reasonable doubt of the applicant’s guilt. I reject that submission. In my view, it would be open to a magistrate, acting reasonably and properly directing himself or herself, on the available evidence to conclude that the applicant had committed an indecent act with SB by touching her in the area of her perineum. Thus, in her VARE, SB said (among other things):
Anyways, so I was pretending to be asleep. And for about 20 minutes, this thing, this whole cycle was going on. He [the applicant] would pull the blankets slowly off me. And I would pretend to stir and pull them back on. And then after about 20 minutes, he got a little bit more impatient. And when he pulled it off here, like, tucked it under something. I think he was sitting on it. And then I was like – O.K. Well, I thought I was going to get raped. And that’s when I was thinking in my head all of the things that I could try and do to prevent this. And anyways, he - I was wearing, like, really loose shorts at the time. He slightly pulled them up. And then he pulled them up all the way to here – the top of my bottom. … And then he got my underwear with two fingers and he slowly pulled that up too. … And then I felt his – one of his fingers – so, like, there’s your butt. … And then the – you know, like, where the butt and vagina kind of join? … I felt a finger, like, go, like, this in that – in that area. And then that’s when I was like, no. I can’t. I – so I sat up.And I looked him in the eyes. And I yanked the blanket back. And I just closed my eyes. And then I slightly opened them. And he got up and bolted.
67 Although counsel for the applicant relied on suggested discrepancies infecting SB’s evidence — the nature of which it is unnecessary to discuss — it would be open to a tribunal of fact to accept her evidence as truthful and reliable, and to be satisfied by it (and the other evidence) to the criminal standard. As to that, it might reasonably be concluded that her credibility was supported by recent complaint, and, to some extent by MA’s contemporaneous observations. It would also be open to reject the applicant’s denials in his interview with police.
68 Ground 2 is without substance.
Conclusion
69 Leave to appeal should be granted and the appeal allowed. I would make the orders referred to above.
KYROU JA:
70 I agree with the reasons of Priest JA, and the orders proposed by him, and the further reasons of Weinberg JA.
Weinberg JA:
71 I have had the considerable advantage of reading, in draft, the reasons prepared by Priest JA. I agree with those reasons and with the orders proposed. I wish, however, to add several brief comments of my own.
72 As Priest JA has observed, it has long been recognised that judicial officers are
required, at common law, to give reasons for their decisions. Not only that, but those reasons must be adequate. They must, at least, expose the path of reasoning which led the judge to arrive at his or her conclusion. The obligation is fundamental and integral to the exercise of judicial power. The duty to give reasons rests as well on magistrates exercising summary jurisdiction, who, of course, exercise judicial power.
73 There are a number of justifications for requiring judges to give reasons. Perhaps the best summary of why that requirement exists is to be found in the judgment of McHugh JA (as his Honour then was) in Soulemezis v Dudley (Holdings) Pty Ltd, where his Honour said:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment ‘is not only to do but to seem to do justice’: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
… A requirement that judges give reasons for their decisions — grounds of decision that can be debated, attacked, and defended — serves a vital function in constraining the judiciary's exercise of power.
Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases: Taggart ‘Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases’ (1983) 33 University of Toronto Law Journal 1 at 3–4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.74 Different views have been expressed as to the level of detail that must be provided if a judge’s reasons are to be regarded as adequate.
75 In Soulemezis, Kirby P (who dissented) held that both the grounds which led the judge to a conclusion on disputed factual questions, and the findings on the principal contested issues, had to be set out in full.
76 Justice Mahoney took a more flexible, and perhaps more pragmatic, approach. He concluded that the law did not require a judge to make an express finding in relation to every fact leading to, or relevant to, that judge’s final conclusion of fact. Nor, in his view, did a judge have to reason, and be seen to reason, from one fact to the next, along the chain of inference leading to the ultimate conclusion.
77 What is clear is that a bald statement of an ultimate conclusion, even by reference to the evidence that is said to support that conclusion, is unlikely, by itself, to be sufficient. The process of reasoning which enables the path by which the conclusion has been reached must be able to be clearly discerned.
78 Of course, a judge, though obliged to give reasons, is not required to address every submission advanced during the course of a hearing. Nor are judges expected to deal specifically with every consideration that passes fleetingly through their minds as they proceed to their ultimate determination.
79 If it is not possible to discern from the reasons given how the conclusion was reached then those reasons will ordinarily be inadequate. Reasons should, at least, trace the major steps in the reasoning process so that anyone reading them can understand, at least in broad terms, how the judge arrived at his or her conclusion. Importantly, reasons must demonstrate that findings of fact were based upon logically probative evidence.
80 The content of the duty to give reasons will, of course, vary. The obligation that rests upon a busy magistrate, hearing perhaps dozens of summary matters in a day, will obviously be far less onerous than that which rests upon a judge in the County or Supreme Court. Nonetheless, there must be an irreducible minimum below which no set of reasons given by a judicial officer, in the exercise of judicial power, can fall.
81 It is obvious that magistrates often give only cursory reasons, particularly in summary criminal matters. Ordinarily, and as a matter of practical reality, this may be acceptable. In most cases, even where short reasons are given, the losing party will have sufficient understanding of why the decision has gone against them.
82 Not every case warrants such abbreviated treatment. As Priest JA has explained, the charge facing the applicant in the present matter, though seemingly relatively straightforward, had a number of complex factual and legal issues embedded within it.
83 As the primary judge correctly noted, magistrates often give only the most succinct reasons, in part because, until now, appeals from their decisions to the County Court have been conducted by way of rehearing de novo. County Court judges hearing such appeals often pay no regard to what occurred below because the matter is heard afresh before them.
84 It is much rarer for an appeal to be taken from a magistrate’s decision to the Supreme Court, since appeals of that kind are confined to points of law. While the prerogative writs are theoretically available, the conditions under which they will be granted are even more narrowly circumscribed.
85 Justice Priest has analysed a number of the principal authorities that bear upon the issue of the duty of magistrates to give adequate reasons. I agree, with respect, with his Honour’s discussion of the two leading cases of Perkins v County Court of Victoria, and Ta v Thompson. I also consider his Honour’s dissent in Ta to be persuasive. If a magistrate is to reject the evidence of, for example, a defendant denying the allegations made against him or her, and does so on the basis of findings as to credibility, the magistrate should, at least, say so in sufficiently clear terms. The defendant is entitled to know why his or her evidence has been rejected, and not merely that the magistrate has preferred to accept the evidence of another witness.
86 I understand that this view may not be universally shared. I note, for example, that in Soulemezis, Mahoney JA expressed the view that judges should have greater latitude in dealing with matters of credibility. His Honour said:
The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.
87 With great respect, a finding stated in those terms seems to me to fall short of making clear the pathway of reasoning adopted in arriving at the ultimate conclusion. It also falls short of recognising the limitations that we now have come to recognise as applicable when assessing credibility based primarily upon demeanour.
88 In New South Wales, it has long been recognised that magistrates should give sufficiently detailed reasons to enable their path of reasoning to be exposed. In Carlson v The King, Sir Frederick Jordan observed that reasons given should contain not merely a summary of the evidence, and a statement of the decision reached, but should also disclose the actual process of reasoning adopted in arriving at the decision. It was understood that this statement of principle applied as much to courts exercising summary jurisdiction as it did to the judges in the higher courts.
89 On the other hand, Sir Leo Cussen, who presided as the Acting Chief Justice in Brittingham v Williams, formulated the relevant principle in less stringent terms, as follows:
We must not be taken as laying down a universal rule that a judge is bound upon request to give reasons for his decision. A case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person; or a claim or defence may be presented in so muddled a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable.
90 Self-evidently, the adequacy of a judge’s reasons will depend on the importance of the point involved and its likely effect on the outcome of the case. The reasons should deal with the substantial points raised by the parties and they should, of course, include findings on material questions of fact. They should refer to the key evidence, or other material upon which those findings were based. They should provide an intelligible explanation of the process that has led the judicial officer from the evidence to the findings, and from the findings to the ultimate conclusion.
91 In Franklin v Ubaldi Foods Pty Ltd, Ashley JA, quoting Nettle JA’s judgment in Hunter v Transport Accident Commission, made it clear that the mere recitation of evidence, followed by a statement of findings, without any explanation as to why the evidence was said to lead to those findings, was ‘about as good as useless’.
92 In my opinion, the magistrate’s reasons in the present case fell short of adequately addressing at least two of the principal issues that were before her. These were the manner in which evidence of the defendant’s good character should be weighed, and the issue of the complainant’s prior inconsistent statements.
93 Those issues, among others, had been raised by counsel as matters of fundamental importance to the defence case. In those circumstances, the reasons did not adequately explain why the magistrate had, nonetheless, determined to find the applicant guilty as charged.
94 To the extent that the primary judge considered that if the reasons were inadequate in this regard, the decision of this Court in Perkins meant that this was of little consequence (there being available a remedy by way of appeal de novo), I respectfully disagree. That conclusion does not follow from Perkins, as Priest JA has explained.
95 For the reasons set out above, and for the reasons given by Priest JA, I would grant leave to appeal, and order that the appeal be allowed. The matter should be remitted for rehearing before another magistrate. The question of costs should, if possible, be dealt with by agreement.
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