Mapham v Bannerman - [2013] ACTSC 157

VINCENT KRUW MAPHAM v STEVEN DONALD BANNERMAN;
HEATHER MYRLE MAPHAM v STEVEN DONALD BANNERMAN
[2013] ACTSC 157 (13 August 2013)

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – availability of appeal on ground that verdict unsafe and unsatisfactory – applicability of “proviso” in such appeals – whether error by Magistrate had resulted in substantial miscarriage of justice.

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – Magistrate should not have applied Jones v Dunkel reasoning against appellant – no miscarriage of justice – appeal dismissed.

APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal on ground of Magistrate’s failure to uphold no case submission – error in rejecting no case submission – no miscarriage of justice if defence evidence incriminated appellant – defence evidence did not incriminate appellant – appeal allowed.

EVIDENCE – Admissibility and Relevancy – appellant in company of informant in relation to existing proceedings against appellant – without caution, appellant gave informant receipt relevant to existing proceedings – appellant charged with using false evidence, arising out of provision of receipt to informant – whether failure to caution meant that evidence of provision of receipt improperly obtained for purposes of use false evidence charge – whether person in company of investigating officer should be cautioned in order to avoid impropriety in obtaining evidence of any offence subsequently committed – evidence of subsequent offence not improperly obtained – no error by Magistrate in admitting evidence.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Relating to the Administration of Justice – use false evidence – offence alleged involved giving police officer false receipt in connection with charge of unlawful possession of stolen property – police officer spoke to offender in connection with unlawful possession offence – whether evidence of using false evidence offence obtained improperly because defendant not cautioned before providing receipt – no requirement for caution in circumstances of case – evidence not improperly obtained – no error by Magistrate in admitting evidence.

Evidence Act 1995 (Cth) ss 138, 139

Criminal Code 2002 (ACT) ss 324, 700, 705

Anderson v Davis [2009] WASC 38
Bullman v Debnam [2010] ACTSC 97
Durovic v The Queen (1994) 71 A Crim R 33
Dyers v The Queen (2002) 210 CLR 285
Ibrahim v Police [2012] SASC 231
Jones v Dunkel (1959) 101 CLR 298
Lane v Laneand Anor [2011] ACTSC 53
Massey v The Queen [2001] FCA 1558
R v Naa (2009) 76 NSWLR 271
R vPatsalis[No 3] [1999] NSWSC 718
Rasoolifard v Nicol [2001] WASCA 180
Ross v Munns [1998] NTCA 33
Upton v Cowling [2001] ACTSC 116
Upton v Cowling [2002] FCAFC 134
Yassir v Bone [2010] QDC 11

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 59 & 63 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 13 August 2013

IN THE SUPREME COURT OF THE )
) No. SCA 59 & 63 of 2011
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
VINCENT KRUW MAPHAM First Appellant (SCA 63 of 2011)
HEATHER MYRLE MAPHAM Second Appellant (SCA 59 of 2011)
AND:
STEVEN DONALD BANNERMAN
Respondent

ORDER

Judge:  Penfold J
Date:  13 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal by Vincent Mapham is dismissed, and the Magistrate’s orders are confirmed.

The appeal by Heather Mapham is upheld, her conviction and sentence are set aside, and a verdict of not guilty is entered.

Introduction

On 12 April 2011, Heather Mapham was convicted on one charge of “make false evidence” and sentenced to six months imprisonment, fully suspended on the offender entering into a good behaviour order for two years. On 8 June 2011, Mrs Mapham’s son Vincent Mapham was convicted on one charge of “use false evidence”, and sentenced to nine months imprisonment. Both charges had been found proved beyond reasonable doubt on 28 February 2011.

Ms Mapham and Mr Mapham have appealed to this Court from the Magistrate’s orders.

Background

In 2009, Mr Mapham was charged under s 324(1) of the Criminal Code 2002 (ACT) with unlawful possession of a car alleged to have been stolen. The car was found on 13 February 2009 by police executing a search warrant at premises apparently linked to Mr Mapham. Mr Mapham was overseas at the time, but after his return he was charged and the matter was listed in the Magistrates Court for a case management hearing on 18 February 2010. On at least one occasion before this, Mr Mapham had volunteered to the investigating officer, Detective Senior Constable Steven Bannerman, that he had documents relating to his possession of the stolen car, and in a telephone conversation with him, DSC Bannerman had suggested he should get legal advice before handing over any documents.

After the case management hearing, and in the Magistrates Court building, DSC Bannerman approached Mr Mapham intending to ask him to provide fingerprints. Before this request was made, Mr Mapham showed DSC Bannerman a document that he said was a receipt for the purchase of the car concerned. It showed a date of 17 June 2008. DSC Bannerman looked at the document, and said to Mr Mapham that he “didn’t think the date looked right”. DSC Bannerman did not take possession of the document at that point because he didn’t want to handle it, and instead asked Mr Mapham to come to the City Police Station to hand over the document.

Mr Mapham’s mother Ms Mapham was with him when he showed the receipt to DSC Bannerman. When DSC Bannerman expressed a doubt about the date, Mrs Mapham told him that she had been with Mr Mapham when he bought the car. DSC Bannerman asked her to come to the City Police Station to make a statement.

In the foyer of the City Police Station, DSC Bannerman produced a plastic sleeve and asked Mr Mapham to put the receipt in it, which he did.

Ms Mapham made a statement to DSC Bannerman about the circumstances in which Mr Mapham had taken possession of the car, and about what she had seen at the time. That statement included the words sometimes (albeit perhaps inaccurately) referred to as the “jurat”, as follows:

This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

DSC Bannerman gave evidence about Ms Mapham signing the statement:

Now you said that you asked the witness – well asked Mrs Mapham to read the statement prior to signing it?---Yes.
Is that something that’s done on the computer screen or do you print it off?---I – whatever the witness requests I let them read from the screen or I print off a copy. In this particular case I just don’t remember.
Okay. At what point is there the discussion about the jurat?---I indicate – that’s the – when I’ve asked them to read the statement I always indicate to read the jurat. In Mrs Mapham’s case I requested that she read it twice.
Why did you do that?---I felt that her recollection in the witness statement was not free flowing like an eye witness is free flowing.

By the time Ms Mapham had finished making her statement Mr Mapham had left the police station. DSC Bannerman asked Ms Mapham to bring Mr Mapham back to the station so that he could be given a property seizure record for the receipt he had given DSC Bannerman. Police including DSC Bannerman waited by the kerb near the City Police Station, and in due course a car drew up and Mr Mapham got out. He was given the property seizure record, and was asked several further questions about the details of his acquisition of the car.

At no point during the dealings with the alleged receipt, or during the questioning on the kerb, was Mr Mapham cautioned.

Subsequent investigations revealed that the alleged receipt given to police by Mr Mapham had not been created or signed by the owner of the car, that the car had been reported stolen on 21 August 2008, and that police records relating to an incident in mid-July 2008 in which the car was driven away from a petrol station without payment being made indicated that the owner did not consider that the car had been stolen at that point. Police sought to interview Mr Mapham about these matters, but he declined to participate, and about two weeks after producing the receipt, on 4 March 2010, he pleaded guilty to the charge of unlawful possession of the car.

Mr Mapham was subsequently charged under s 705(2) of the Criminal Code that, on 18 February 2010, he used false evidence, knowing that the evidence was false and being reckless about whether the use of the evidence could influence the outcome of a legal proceeding. Mr Mapham’s handing over of the receipt was relied on as the physical element of the offence of using false evidence under s 705(2). He was found guilty by the Magistrate.

Ms Mapham was charged under s 705(1) that, on 18 February 2010, she made false evidence with the intention of influencing the outcome of a legal proceeding. She was also found guilty by the Magistrate.

Having regard to the complexities of the case and the nature of the challenge to Mr Mapham’s convictions, it is appropriate to set out the entire ruling of the Magistrate.

The allegations: Vincent Kruw Mapham is charged with one count of using false evidence contrary to section 705(2) of the ACT Criminal Code 2002. The allegation is that he used a receipt for a vehicle which he knew to be false. He is alleged to have shown it to a police officer as evidence of purchase of a vehicle he was charged as having unlawfully in his possession, being reckless as to whether the use of the receipt could influence the outcome of the pending legal proceeding.
Heather Myrle Mapham, Vincent Mapham’s mother, is charged with one count of making false evidence contrary to section 705(1) of the code. The allegation against her is that she provided a statement on 18 February 2010 which was false in all material particulars. In short, as the receipt relied upon by her son was false, her evidence as to its genesis was false also. It is said that this false statement was made with the intention of influencing the outcome of a legal proceeding, namely proceedings relating to the possession charge against her son.
Jurisdiction: Both of these offences carry penalties of fines of up to 700 penalty units and up to seven years’ imprisonment or both. Consent was given to having the matters dealt with summarily.
Onus of proof: The prosecution carries the legal and evidential onus of proof to the standard of beyond reasonable doubt in both matters.
The evidence: Emanuel Okafor became the registered owner of Mitsubishi Magna registration number YAU 93W, the vehicle, in the first half of 2008. Mr Okafor lived at Flat 34, 1/11 Howie Court in Belconnen. He allowed David and Moses Ekanem to use the vehicle regularly. They lived in Kambah.
On 11 July 2008 Mr Okafor was in Adelaide when he was contacted by the police regarding an incident at Kaleen petrol station on 10 July 2008 in which the driver of that vehicle had driven off without paying for petrol. The vehicle had been left with David Ekanem. Mr Okafor returned to Canberra and paid for the petrol. No further action was taken about this incident.
Petrol station staff withdrew the complaint by facsimile on 17 July 2008. Some time after this incident Moses Ekanem damaged the front of the vehicle. Whilst David Ekanem was returning the vehicle to Mr Okafor he stopped on the Tuggeranong Parkway because the bonnet latch was damaged and the bonnet came up.
He arranged for it to be towed back to Mr Okafor’s home the next day. Mr Ekanem drove to the vehicle from where it was unloaded by the tow truck into the carport parking space. Mr Okafor stated that the vehicle was not moved after that time whilst still in his possession. It was left locked and secure. The only remaining key to the vehicle was later provided to police by David Ekanem, it having remained in his possession after return of the vehicle. The significance of these events is that they provide a chronology regarding possession of the vehicle and its condition when stolen.
On 21 August 2008 at about 10:10 am Mr Okafor left home to go to university. He returned at 12:30 pm to find the vehicle gone. He reported this to the police about an hour later. On 13 February 2009 a warrant was executed by officers of the AFP at Vincent Mapham’s home at 11 Allman Circuit Macquarie. The defendant was not present at the time. The vehicle was recovered from the back garden. One of its number plates from the house and the two matched by the vehicle identification number on the vehicle. Vincent Mapham told Detective Senior Constable Bannerman on the telephone that he had a receipt regarding purchase of the vehicle. There were several contacts between Bannerman and Mapham and two aborted interview appointments.
One 26 August 2009, an information for unlawful possession was sworn by Detective Senior Constable Bannerman. On 18 February 2010 a case management hearing was held regarding the possession charge, the defendant having earlier entered a plea of not guilty to that charge. On or before that date Mr Mapham had received a prosecution brief of evidence. He was offered time to read it by the magistrate before the matter proceeded. Detective Senior Constable Bannerman was present as informant. He also wished to speak to Mr Mapham about a proposed forensic procedure.
At the conclusion of the case management hearing Detective Senior Constable Bannerman approached Mr Mapham who was accompanied by his mother Heather. Mr Mapham immediately proffered a receipt bearing the date 17 June 2008. Detective Senior Constable Bannerman would not take possession of the receipt at court, and asked Mr Mapham and his mother to accompany him to the City Police Station, the former to hand over the receipt without contamination, the latter to provide a statement.
At the City Police Station with Detective Senior Constable Bannerman, Vincent Mapham handed the receipt to DSC Bannerman by placing it into a clear envelope at the latter’s request. Heather Mapham went to a room where she completed a statement on computer with DSC Bannerman’s assistance.
At the time of writing the statement the receipt was, according to DSC Bannerman, between he [sic] and Mrs Mapham. She was close enough to him to see the screen on which the statement was being typed. In oral evidence Mrs Mapham denied been able to, or allowed, to see the receipt during drafting of the statement.
Whilst broadly consistent, there were some material differences between Mr Mapham and his mother’s evidence. Firstly, Mrs Mapham stated that she was handed paperwork by Vincent the day they attended to collect the car, including signed registration papers.
Mr Mapham’s evidence was to the effect that he did not receive registration papers for this car and was not concerned about that, being satisfied with the details provided at his request on the receipt. There is at least one difference by omission. Mrs Mapham did not state that she had provided a pencil for preparation of the receipt.
Significantly though, Mrs Mapham identified the handwriting on the receipt as Vincent Mapham’s. Mr Mapham stated in oral evidence that the man who sold him the car wrote the receipt. Mrs Mapham was not challenged as to her observation. She, as his mother, might reasonably be expected to recognise her son’s handwriting.
The prosecution sought to make something of the fact that part way through the process of drafting the statement, Mrs Mapham asked to be allowed to go out to put money in the parking meter, according to DSC Bannerman. In her evidence Mrs Mapham said she requested to go out to go to the toilet and in doing so did not leave the police station. The evidence was adduced in relation to whether Mrs Mapham had the opportunity to confirm the contents of a concocted story with her son prior to finalising the statement. However, the prosecution failed to establish at what point in the making of the statement that break took place, where Mrs Mapham went during that break, and whether she had in fact any contact with her son during the break.
After the statement was complete, DSC Bannerman noticed that Vincent Mapham was no longer in the foyer when he accompanied Mrs Mapham there. He asked Mrs Mapham to ask Vincent to come back to collect a property seizure receipt. Vincent was asked then how he knew the vehicle had been for sale. He replied that he would get back to the officer about that. He did not do so until giving evidence at hearing. His reply then was that he knew the seller as a friend of a friend.
No explanation was provided as to why Mr Mapham could not have provided that information to DSC Bannerman when asked. Of course there was no obligation to do so, but it begs the question why such a simple answer required the response that Mr Mapham would get back to the officer about it.
When Mrs Mapham gave oral evidence she stated that the date detailed in her statement, being the date from the receipt, was not in fact the date that she attended with her son when he purchased the vehicle. She said that she just took the date from the receipt whilst it was being towed off. She did not know it was inaccurate. However she now knew the date to be between 17 and 21 or 23 August. No explanation was provided as to how she now knew this to be the correct timeframe. However, in cross-examination Mrs Mapham stated that in fact she could not see the receipt when making the statement. DSC Bannerman would not allow her to see the receipt, and that she could not in fact see it while the statement was being prepared. She did state that she knew about the date from the receipt but not when she had checked the receipt.
One can only surmise that this new recollection related to the evidence given at hearing as to the date when the vehicle was stolen. However, that does not provide an adequate explanation for the change of recollection, and none other is proffered.
Mrs Mapham also gave oral evidence that she had prepared a statement of own volition prior to attending court on 18 February 2010, that she had offered to DSC Bannerman and that he had not accepted it, although he read it.
She said that she had told DSC Bannerman she and her son were going to get legal advice about the issue. She went so far as to say that she thought she had a copy of her statement at court.
That statement was not tendered in her case, nor was it called for by the prosecution. DSC Bannerman was not cross-examined about the statement. Somewhat inconsistently, and in response to questioning about whether or not she had approached prosecutors about the evidence she could provide, she later said that she had only wanted to make a statement when she had seen a lawyer.
By way of explanation as to why the receipt had not been produced earlier, Mrs Mapham stated that during the period when her son and his partner were separated, all his documents had been moved into his father’s garage. This was consistent with Mr Mapham’s evidence, but there was no evidence as to how Mrs Mapham knew this to be the case.
Why the document was not discovered during this process or why the documents were not searched for at the garage when the receipt was required was not explained by either defendant. The fate of the registration papers which Mrs Mapham said had been handed to her when the vehicle was purchased was not touched upon by any advocate.
Mrs Mapham stated in evidence that DSC Bannerman would not give the receipt back to them, a claim not put to DSC Bannerman in cross-examination. Mrs Mapham claimed that when she left the room in which the statement was being prepared it was to go to the toilet not to pay for parking, and she did not leave the police station. This was not put to DSC Bannerman in cross-examination.

Mrs Mapham claimed that the vehicle was initially stored at her home. This was consistent with Mr Mapham’s evidence. Neither was challenged as to this proposition. However, neither was any explanation given as to why the vehicle would be taken there when it was allegedly not driveable. Such an arrangement would necessarily have incurred two tow truck fees for Mr Mapham who said he could not afford to pay one, having asked his mother to attend with him to do just that.
Mrs Mapham, as a mother, clearly had a motive to assist her son. She claimed that as a Jehovah’s Witness she did not lie. However, there is no rational basis to accept the word of a person of any particular religious denomination over any other, or indeed over a person professing no particular religious affiliation at all. To do so would imply that a person who gave evidence on affirmation is inherently less credible than a person who gives evidence on oath, which is patently unacceptable.
Mr Mapham stated in evidence that he attended Illawarra Court in Belconnen to buy the vehicle from a man who was a friend of a person he knew and visited at the flats. Whilst it is a fairly obvious reason as to why the seller may not wish to give evidence, given Mr Mapham’s conviction for possession, no explanation was proffered as to why the mutual friend was not called.
I can, and do infer, that his evidence would have been of no assistance to Mr Mapham, that is that it would not corroborate the story I am asked to accept. The seller had told him that the vehicle was not driveable and needed repairs. Mr Mapham said that he had seen the vehicle and that the whole front end and a window was smashed. He did not say whether he had seen the vehicle on some earlier occasion other than that on which he attended to buy it.
He did not say whether he had been told of the nature and extent of the damage before he attended to buy the vehicle. He said he did not drive so he asked his mother to give him a lift to buy the vehicle. He said that he paid $1,200 for it, despite saying that “Personally I wouldn’t have paid much more than $800 for a smashed vehicle” in his submission to Magistrate Campbell at sentencing.
It was suggested that this higher price reflected the vehicle was fitted with valuable tyre rims. He said that he organised a tow truck, but gave no details of the company used, the price paid, and when the arrangement was made. He said that getting the vehicle on the tow truck took a good 35 to 45 minutes, and he said that the person who sold the vehicle called himself Emanuel.
It appears highly coincidental that the pre-arranged tow truck would have arrived within the very two hours and 20 minutes that Mr Okafor was away, including being there for at least 35 to 45 minutes just in loading time as well as the time spent paying for the truck’s attendance.
As to the date on the receipt, Mr Mapham stated that he did not check the date, even though it appears twice on the receipt in large numbers at the top and immediately after Mr Mapham’s name. He claimed not to have been aware of the date on the receipt until after showing it to DSC Bannerman.
In clarification of the date issue, Mr Mapham stated that he now recalled that the purchase had been on a Sunday and he was sure of that because the tow truck was therefore more expensive. He also now recalled that the purchase took place on the last or second last weekend of that August. Mr Okafor was not challenged as to the date his vehicle went missing, no explanation for Mr Mapham’s new found recollection was provided.
21 August 2008 was in fact a Thursday. This is consistent with Mr Okafor’s evidence that he was attending university to sit an examination, an event most unlikely to have occurred on a Sunday. Interestingly, a statement from Dominic Barbaro, tow truck driver, refers to towing a Mitsubishi Magna sedan on a Sunday afternoon on a year unknown from State Circle to Allman Circuit Macquarie for a Vince Mapham.
I note that State Circle is south of Macquarie, whilst Belconnen is to its north. It will be a very indirect route to travel to Macquarie from Belconnen via State Circle. Mr Barbaro noted that Mr Mapham had had other Magna motor vehicles and confirmed that he knew Mr Mapham. However, he had no recollection of a tow consistent with the evidence of Mr Mapham about this vehicle. Mr Mapham was not asked if he used Mr Barbaro’s services for this vehicle, or indeed if he only ever used Mr Barbaro’s services for towing. I’m left unable to draw any conclusion from this evidence.
Mr Mapham also stated that on 17 June, the date on the receipt, was his father’s birthday. He spent that day with him every year, yet he did not notice that that was the date on the receipt he requested from the seller, and searched out in defence of a criminal charge until the fact was brought to his attention by DSC Bannerman.
Mr Mapham gave oral evidence that he and his mother intended to go to a lawyer immediately after court on 18 February 2010. In the transcript of proceedings for that day he indicates that he intended to see a lawyer next week.
Damage to the vehicle at the time of assessment by AFP Forensics included damage to the right driver’s seat window, the steering wheel housing and the ignition. No such damage was described by Mr Okafor or Mr Ekanem. Such damage was not consistent with the state of the vehicle described by those witnesses after it was damaged by Moses Ekanem. Such damage may be consistent with the vehicle having been started other than with a key, although I’m unable to conclude this in light of the absence of evidence to that effect.
Mr Okafor denies having produced that receipt or signing it. Mr Okafor denies having given, sold or arranged to sell the vehicle to anyone else, although he did state that he had some discussion with David Ekanem about possibly selling it to him in the future.
The prosecution case: The prosecution case is that Mr Mapham used false evidence, being the receipt, to influence the outcome of the pending possession charge. That influence may have been as to continuation of the matter or the outcome on sentence.
The case was that the receipt was false. The prosecution could not establish who had made the receipt, but that Mr Mapham clearly knew it was false and proceeded to use it. The suggestion was made that when Mr Mapham received the brief of evidence in the possession matter, he then had sufficient information to concoct the receipt. However, the prosecution failed to establish the contents of the brief of evidence that was provided to Mr Mapham.
As to Mrs Mapham’s alleged false evidence, namely her statement, the prosecution case was that it was concocted to protect her son in the context of her knowing of and relying on the false receipt. It was suggested that some collusion took place during a break in making the statement at the police station.
Mr Mapham’s case: The case for Mr Mapham is that he was sold the vehicle by some rogue purporting to be the lawful owner, and that I could not be satisfied beyond reasonable doubt that this was not a possibility. As to the receipt, it was submitted that although it is incorrect in some particulars, namely the date and the fact that it was signed by Mr Okafor, that having been denied by Mr Okafor and not challenged by Mr Mapham, this was not evidence that Mr Mapham was using it knowing its contents to be false.
In support of that submission it was urged upon me that I could not be satisfied that Mr Mapham completed the date next to his signature. It might have been added later, and therefore I could presume that it was less likely that he was aware of that incorrect date on the document.
It was also submitted that because the prosecution did not quibble with the facts relied upon at sentencing in the possession charge, namely that the vehicle was purchased for $1,200, I was in some way stopped from denying that this was the truth, and insofar as the receipt referred to a figure of $1,200 that should therefore be accepted as true.
Mrs Mapham’s case: Mrs Mapham submitted that it had simply not been established that anything in her statement was false. Although the date was conceded to be wrong, it was readily explained as a simple mistake arising from following the receipt in front of her, even though that was inconsistent with her oral evidence. It was submitted that I had nothing to compare her statement to in order to conclude that it was false, and therefore could not draw this conclusion.
Elements of the offences: Section 705(1) the provision under which Mrs Mapham is charged, is in the following terms. (1) A person commits an offence if the person makes false evidence with the intention of (a) Influencing a decision about starting a legal proceeding, or (b) Influencing the outcome of the legal proceeding.
Only the second limb has potential application in this case, given that the possession charge had been laid, and indeed proceedings were well progressed when the evidence, namely her statement, was made. Authoring, or signing a statement, falls within the concept of makes.
In order for evidence to be false it must be something more than merely incorrect. The use of the word “false” in this context imports a notion of intention or wilfulness. It is not consistent with the criminal law that an innocent error would satisfy the definition as to that which is made falsely.
To meet the requirement of the section it must be done with the intention of influencing the outcome of a legal proceeding. This section does not allow scope for the fault element of recklessness. A legal proceeding includes sentencing, as it is a proceeding in which evidence may be taken on oath or affirmation, and in which judicial power is exercised, as to which see section 701 of the Criminal Code. Thus false evidence made with the intention of influencing either conviction or sentencing, if otherwise meeting the requirements of the provision, is a breach of the section.
Section 705(2), the provision under which Mr Mapham is charged, is in the following terms. (2) A person commits an offence if (a) The person uses false evidence and (b) The person knows (i) the evidence is false or (ii) believes the evidence is false, and (c) The person is reckless about whether the use of the evidence could (i) influence a decision about starting a legal proceeding or (ii) influence the outcome of a legal proceeding.
The word “use” is very broad. Evidence is used if it is provided to someone by another. The observations as to falsity, above, apply equally to this provision. There is some difference between subsections 705(1) and 705(2) in that the offence can be made out by a person knowing or believing the evidence to be false in the latter case. This is written in broader terms in section 705(1) presumably on the basis that a person making evidence is in a better position to assess its falsity than a person using evidence.
The fault element in section 705(2) is also broader than section 705(1) in that a person need not intend that the evidence used will influence a legal proceeding, rather it is sufficient that a person is reckless as to that potential influence. It is not a requirement of either offence that the prosecution must prove that legal proceedings were in fact influenced.
Findings. I am positively satisfied beyond reasonable doubt that Mrs Mapham made false evidence when she prepared and signed her statement on 18 February 2010. I am positively satisfied that in making false evidence Mrs Mapham intended to influence the outcome of legal proceedings against her son.
I am positively satisfied beyond reasonable doubt that Mr Mapham used false evidence when he produced the receipt to DSC Bannerman on 18 February 2010. I am positively satisfied that in using false evidence Mr Mapham intended to influence or was reckless as to influencing the outcome of legal proceedings against himself.
In summary, my reason for these conclusions are (a) The internal inconsistencies in the evidence of each as detailed above. (b) The inconsistencies between each of the defendant’s evidence and the other, and (c) The inherent implausibility of the scenario described by each of the defendants.
It is not in dispute that the date on the receipt was incorrect, and I so find. I am satisfied beyond reasonable doubt that Mr Mapham did not purchase the vehicle as described by he [sic] and his mother. It was not conceded that the receipt was not authored by Mr Okafor, but I am persuaded that it was not. It is not charged, nor conceded, that Mr Mapham wrote the receipt. However, based on his mother’s evidence, I find that he did. Her statement to this effect was akin to an admission against her interest, that of protecting her son, and I am satisfied that it is reliable. Whilst proof of this fact is not essential to either of these cases, it is relevant on the questions of knowledge and belief for each defendant.
I am satisfied that Mr Mapham was aware of the date on the receipt, primarily because I’ve concluded that he wrote it. Even if he did not, and he merely saw the receipt which was requested from the seller as he claims, I consider it implausible that he would not have been aware of the date, writ large as it was.
If he did not complete the date it was either there when he signed the document, which would be strange given the position of its second appearance on it, or it was added after he signed, which would have meant that for the some reason he handed the document back to its author and then took it back again. If that occurred, one would reasonably expect that he would note what had occurred while the document was handed back, either whilst it was in the author’s possession or when it was handed back to him, given that he had requested the receipt to protect his own interests. The incorrect date, I conclude, is indicative of the falsity of the receipt which I find was made in an attempt to misrepresent when and how the car came into Mr Mapham’s possession. I am satisfied that he then used that receipt knowing or believing it to be false.
I am satisfied that Mrs Mapham made her statement knowing it to be false. I do not accept that the sale occurred as described. I do not accept that she knew or believed the receipt she relied upon to make her statement to be true. The change of evidence by both as to the actual date the vehicle was obtained without any or any plausible explanation, undermines their story regarding the alleged purchase. It beggars belief that at the time the receipt was handed to DSC Bannerman Mr Mapham had not formed a view that the receipt was false in at least that material particular of the date, and probably therefore in its entirety.
Had he handed the receipt over stating that he knew the date to be incorrect, and if there was any vaguely plausible reason as to why a date two months before the date the vehicle was acquired appeared on the receipt, his explanation may have engendered some reasonable doubt in my mind. As the matter stands, it does not.
Despite saying that she had no access to the receipt when making her statement, Mrs Mapham inconsistently then stated that she relied on the incorrect date in it to make her statement. She provides no explanation as to how she later concluded that the date was wrong.
I am also influenced by the conflicting evidence about the registration papers. It would have been in Mr Mapham’s interest to have received the registration papers of the car as evidence of a bona fide sale. His mother claims that he did, and he states that he did not, presumably because he could not produce them. This is supportive of my conclusion that his mother made false evidence.
The implausibility of the circumstances of the purchase attested to by both through what I find to be false evidence, is increased due to the state of the vehicle at the time Mr Mapham took possession of it. It was not merely damaged as if by accident, clearly some further damage occurred to the vehicle between when it was returned by Mr Ekanem, having been started by key and driven into the carport, and when it was received by Mr Mapham absent the ignition and with a damaged steering column.
In R v Clearihan 2002 ACT Supreme Court report at 60, Higgins J as he then was, stated at paragraph 20:
I also bear in mind that even if I am satisfied that the accused has given false evidence in some respect or other, I cannot draw any inference from the falsity of the evidence that he is or is more likely to be guilty of the offence charged unless I am also satisfied that the inaccuracy was deliberate and betrays a consciousness of guilt.

I am satisfied beyond reasonable doubt that the evidence given in each case is deliberately intended to misrepresent the truth. I reject the evidence of both defendants, other than where indicated. I need not make findings as to what the whole truth was in order to conclude that false evidence has been made and used. It is sufficient that I am satisfied beyond reasonable doubt that what has been made or used is in some part false and made or used with the requisite false element.
Decision: I find the charges against Vincent Kruw Mapham and Heather Myrle Mapham proved beyond reasonable doubt.

The offences

As noted, both appellants were charged with offences under s 705 of the Criminal Code, which is as follows:

705   Making or using false evidence
(1)A person commits an offence if the person makes false evidence with the intention of—
(a)   influencing a decision about starting a legal proceeding; or
(b)   influencing the outcome of a legal proceeding.
Maximum penalty: 700 penalty units, imprisonment for 7 years or both.

(2)     A person commits an offence if—
(a)   the person uses false evidence; and
(b)   the person—
(i)    knows the evidence is false; or
(ii)   believes the evidence is false; and
(c)   the person is reckless about whether the use of the evidence could—
(i)    influence a decision about starting a legal proceeding; or
(ii)   influence the outcome of a legal proceeding.
Maximum penalty: 700 penalty units, imprisonment for 7 years or both.

(3)     Subsection (2) does not apply to—
(a)   a lawyer or person assisting a lawyer who uses the evidence on instructions from a client and does not know that the evidence is false; or
(b)   a person who—
(i)is, or may be, involved in a legal proceeding as a law enforcement officer, lawyer, or party (or as a person assisting any of them); and
(ii)uses the evidence for a legitimate forensic purpose in the proceeding.

(4)Subsection (2) (b) (i) does not apply to a person who discloses, when or before using the evidence, that the evidence is false.
(5)Subsection (2) (b) (ii) does not apply to a person who discloses, when or before using the evidence, that the person believes the evidence is false.

(6) In this section:
legitimate forensic purpose includes the purpose of demonstrating that evidence is false or misleading.
make evidence includes change evidence, but does not include commit perjury or aggravated perjury.

In s 700 of the Criminal Code, “evidence” is defined as follows:

evidence includes anything that may be used as evidence.

Appeal grounds

Vincent Mapham

The grounds of Mr Mapham’s appeal were:

(a)That the finding of guilt was “unsafe and unsatisfactory”.
(b)That evidence of Mr Mapham’s handing over of the receipt should have been excluded under s 138 of the Evidence Act 1995 (Cth) in his prosecution for using false evidence.

Mr Mapham appealed against “the whole of the orders”, but there is no appeal ground relating to his sentence and no submissions were made about the sentence.

Heather Mapham

The grounds of Ms Mapham’s appeal were as follows:

4.The grounds of the appeal are:
a. Her Honour did not accede to the defence arguments that the receipt for the purchase of a motor vehicle should be excluded.
b. The charge should have been dismissed at the conclusion of the Prosecution case, in that there was no case to answer.

c. Her Honour rejected the appellants [sic] and the co defendants [sic] version of events, leaving no likely scenario of what did happen.
d. Her Honour’s sentence was overly harsh, given the nature of the allegations, and her antecedents and background.

The arguments

Vincent Mapham

It is convenient to deal with Mr Mapham’s grounds of appeal in reverse order.

Inappropriate admission of evidence

Counsel for Mr Mapham said that the evidence of Mr Mapham’s provision of the false receipt to DSC Bannerman should have been excluded from the Magistrates Court proceedings under s 138 of the Evidence Act, with the inevitable consequence that the charge of using false evidence would have failed. An application to exclude the evidence was made in the Magistrates Court and refused.

Counsel argued that evidence of Mr Mapham giving DSC Bannerman the false receipt was evidence that had been obtained improperly for the purposes of s 138(1)(a) of the Evidence Act. The impropriety was said to arise under s 139(1) of that Act because, at the time Mr Mapham handed over the receipt, he:

(a)was either under arrest as mentioned in s 139(1)(a), or to be treated as having been under arrest under s 139(5); and
(b)was being questioned by an officer who by virtue of his office had power to arrest him; and
(c)had not been cautioned.

Section 139(5)(a) is as follows:

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a)   the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b)   the official would not allow the person to leave if the person wished to do so; or
(c)   the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

In these circumstances, counsel said, the Magistrate should not have exercised her discretion under s 138 to admit the improperly obtained evidence in the proceeding against Mr Mapham.

First, there was no basis on which the Magistrate could have found that Mr Mapham was under arrest in the normal meaning of that expression.

Secondly, I am satisfied that when Mr Mapham offered and then handed over the receipt to DSC Bannerman (described at [3] and [4] above), he was not “in the company of an investigating official for the purpose of being questioned” as mentioned in s 139(5) of the Evidence Act.

In R v Naa (2009) 76 NSWLR 271, Howie J was considering the admissibility of statements made by an accused, without having been cautioned, during a police siege following the killing of the accused’s former partner. As to the relevance of s 139 of the Evidence Act 1995 (NSW), his Honour said:

98 The first question is whether the section applies to the situation in which the police were involved. It depends upon whether the police were engaged in “questioning” the accused. The word is not defined in the Evidence Act. In general parlance it means “asking questions of someone” or “interrogating”. I do not believe that the word means “a conversation during which questions are asked”. Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.
99 Of course the section is aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it does not achieve the purpose for which it was enacted. But neither should it be construed to apply to a situation to which the words used in the section are not appropriate. The section could easily have defined the word “questioning” to give it a meaning that it does not naturally convey. The section broadens the concept of “arrest” to cover situations not normally falling within that term.

Both DSC Bannerman and Mr Mapham gave evidence in the Magistrates Court to the effect that DSC Bannerman had approached Mr Mapham after the case management hearing. DSC Bannerman said that he had asked if he could speak to Mr Mapham before Mr Mapham had produced the receipt, but the evidence was consistent that when Mr Mapham produced the receipt, DSC Bannerman had not got to the point of asking Mr Mapham about providing fingerprints. After the receipt was produced, he had asked Mr Mapham to come to the police station to hand over the receipt, and in the police station he had asked Mr Mapham and his mother to wait in the foyer while he got a plastic sleeve for the receipt. Returning with the plastic sleeve, DSC Bannerman said, he had asked Mr Mapham to put the receipt into it, and Mr Mapham did so.

What DSC Bannerman actually said to Mr Mapham at each point might, depending on the exact words, have been appropriately recorded with a question mark at the end of each set of words. However, none of them in my view was a request for information such as might be involved in a “formal or informal interrogation of a suspect”, and none of them amounted to “questioning” within the meaning of s 139 of the Evidence Act. When Mr Mapham put the receipt into the plastic sleeve held by DSC Bannerman, he was in the company of DSC Bannerman for the purpose of doing exactly that, and on the evidence given in the Magistrates Court, neither before nor after performing that action had DSC Bannerman given any indication that he wished to ask Mr Mapham any questions about the proceeding against Mr Mapham.

Counsel referred me to the case of R vPatsalis[No 3] [1999] NSWSC 718 (Patsalis), although for what purpose became increasingly unclear in the course of argument. Mr Patsalis had voluntarily attended a police station to talk to police about a murder he said he had witnessed the previous evening, and handed a set of notes about the murder to police officers at a point when police still considered him only a witness rather than a suspect.

Kirby J rejected a submission that there was an impropriety in the circumstances in which police had obtained the notes from Mr Patsalis without having cautioned him. At [13] his Honour said:

The absence of a warning may amount to an impropriety in four circumstances:
·     First, if Mr Patsalis had already been arrested (s 139(1)(a)).
·     Secondly, if, before the notes were handed over, either Const Kelly or Det Snr Const McGillicuddy believed that there was sufficient evidence to establish that Mr Patsalis had committed an offence which was the subject of questioning (s 139(5)(a)).
·     Thirdly, if, before the notes were handed over, such officers would not have allowed Mr Patsalis to leave the police station had he wished to do so (s 139(5)(b)).
·     Fourthly, if, before the notes were handed over, either Const Kelly or Det Snr Const McGillicuddy had given Mr Patsalis reasonable grounds for believing that he would not be allowed to leave if he wished to do so (s 139(5)(c)).

Counsel for Mr Mapham then in written submissions said:

In Patsalis the note was found not to have been acquired during questioning because at the time that Patsalis handed the note over to the police they did not view him as a suspect to the murder but as a witness. The current situation in respect of Mr Mapham can be distinguished from that in R v Patsalis (No 3) (1999) NSWSC 718.

Counsel then attempted to distinguish Patsalis by referring to the fact that when Mr Mapham gave the receipt to DSC Bannerman, DSC Bannerman already believed there was sufficient evidence to establish that Mr Mapham had committed the offence of unlawful possession of stolen property – an uncontroversial proposition of fact given that Mr Mapham had already been charged with that offence and DSC Bannerman was the informant in relation to it. In Patsalis the accused’s note was held not to have been obtained through an impropriety because, when he gave it to police without having been cautioned, he was being treated as a witness rather than a suspect, whereas, counsel said, in Mr Mapham’s case he gave the note to police without being cautioned at a time when he was not only a suspect but in fact a defendant.

This distinction might have been useful to Mr Mapham if he had been disputing the admissibility of the receipt in his prosecution for the matter with which he had already been charged and which was possibly still being investigated (although not through direct questioning of Mr Mapham) at the time he gave the receipt to DSC Bannerman.

However, in my view, counsel’s argument contains a fundamental flaw. In Patsalis, the offence being investigated, and the offence with which Mr Patsalis was eventually charged, were the same murder. In this case, the offence being investigated, assuming DSC Bannerman’s actions in dealing with Mr Mapham when Mr Mapham offered the receipt amounted to investigation at all, was the offence of unlawful possession of stolen property. If Mr Mapham had been, when he handed over the receipt, in the company of an investigating official for the purposes of being questioned, then in the absence of a caution there might ultimately have been an issue about the admission of the receipt, should it have been relevant, as evidence in the prosecution of Mr Mapham for the unlawful possession offence. Such an issue might also have arisen in relation to a prosecution for a similar offence that might at some point later have appeared to investigating police to be a more appropriate offence to be charged in the particular facts of Mr Mapham’s association with the stolen car. However, because Mr Mapham pleaded guilty to the unlawful possession charge before the court began a hearing of the prosecution concerned, the admissibility of that evidence in relation to that charge did not arise.

The challenge here, however, is to the admissibility of the evidence in a proceeding for the offence said to be constituted by Mr Mapham’s action in handing over the receipt, being the offence of using false evidence. That offence, if committed, was committed at the earliest when Mr Mapham claimed to have the receipt and probably not before he actually handed the receipt to DSC Bannerman. Counsel’s argument is, in effect, that the s 139 requirement to caution a person not only applies before a person provides evidence of an offence that is or might be the subject of investigation, but also, for a person who is under investigation for any particular offence, applies before a person actually commits any further offence.

The basic proposition implicit in counsel’s argument, that offences committed in certain circumstances cannot effectively be prosecuted unless the offender is cautioned before he commits them, seems bizarre. Counsel conceded in argument that the asserted need for a caution would not apply to evidence of, say, an assault on an investigating officer committed while a person was being questioned about an earlier offence. However, he sought to distinguish Mr Mapham’s case from the case of an assault on an investigating officer by reference to the overlap, or connection, between the receipt as potential evidence in the unlawful possession prosecution and the handing over of the receipt as the physical element of the use false evidence offence.

Counsel’s implicit proposition is that where there is such an overlap or connection between two offences, and the second offence is committed in the presence of an investigating police officer in relation to the first offence, then in order for evidence of the commission of the second offence to be admissible (or at least to be accepted as properly obtained) in proceedings in respect of that second offence, the putative offender must have been cautioned before the second offence is committed.

A connection of the kind arising here between the receipt as potential evidence in a prosecution for one offence and the provision of the receipt as an element of a different and later offence may be uncommon, but rarity of itself is not a characteristic of such connections that would seem to justify the proposition identified above. Nor was any other substantive characteristic of the connection, beyond its mere existence, identified in argument.

I can see no basis for accepting the general proposition that evidence of an offence committed in the course of an investigation of another offence may have been improperly obtained in relation to the firstmentioned offence if the accused was not cautioned before he or she committed that offence. I emphasise that this analysis does not relate to the admissibility of the evidence concerned in relation to the offence that was being investigated at the time of the conduct said to constitute the later offence.

Accordingly, I reject the argument that s 139 of the Evidence Act applied to render evidence of Mr Mapham’s provision of the receipt improperly obtained, and therefore find that s 138 of that Act was not engaged in relation to the admissibility of the evidence of Mr Mapham giving the receipt to DSC Bannerman. The Magistrate did not err in admitting the challenged evidence.

Verdict unsafe and unsatisfactory?

Counsel conceded that if I found no error in the admission of evidence of Mr Mapham’s provision of the receipt to DSC Bannerman, then the “unsafe and unsatisfactory” ground of appeal would be significantly weakened. However, in support of this ground he relied also on the following other aspects of the hearing in the Magistrates Court:

(a)That there were “insufficient grounds” for the Magistrate to draw a Jones v Dunkel ((1959) 101 CLR 298) inference against Mr Mapham because of his failure to call a particular witness and that this inference should not have been used as a make‑weight in her Honour’s assessment of the evidence.
(b)That on the evidence, the Magistrate could not have been satisfied beyond reasonable doubt about when Mr Mapham came into possession of the car, because there were other possibilities.
(c)That there was no basis for her Honour to conclude that Mr Mapham had authored the receipt, especially since that proposition was not put to Mr Mapham in cross-examination.

The Jones v Dunkel inference

In the course of her reasons the Magistrate said:

Mr Mapham stated in evidence that he attended Illawarra Court in Belconnen to buy the vehicle from a man who was a friend of a person he knew and visited at the flats. Whilst it is a fairly obvious reason as to why the seller may not wish to give evidence, given Mr Mapham’s conviction for possession, no explanation was proffered as to why the mutual friend was not called.
I can, and do infer, that his evidence would have been of no assistance to Mr Mapham, that is that it would not corroborate the story I am asked to accept.

Counsel referred me to the comments of Gaudron and Hayne JJ in Dyers v The Queen (2002) 210 CLR 285 (Dyers) at 292 (with whom Kirby J at 305 and Callinan J at 328 agreed), as follows:

9.As was pointed out in RPS, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdettfn_LAWREP-AUS-210-CLR-0285-FN.25 and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled.
10 The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.
11 The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one” (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.
12 If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, for example, on the basis that the evidence which would be given by that witness would be “unreliable, untrustworthy or otherwise incapable of belief”) it would be quite wrong to invite the jury to conclude that the accused could be expected to have called that person. Yet if the jury are to be invited to draw some conclusion adverse to the accused from the fact that a witness has not been called, it can only be on the basis that it would be expected that the accused would call that person unless the evidence that would be given would not assist the accused. But if the evidence was important and credible, why was it not adduced by the prosecution? (citations omitted)

I note first that the question raised by Gaudron and Hayne JJ at the end of the extract quoted above, “if the evidence was important and credible, why was it not adduced by the prosecution?” is easily answered in this case. The witness named in the receipt (Emmanuel Okafor, a Nigerian) was called as a witness by the prosecution; he denied having sold the car to Mr Mapham or having written the receipt, and was not cross-examined about these denials. Mr Mapham did not claim that Mr Okafor was the man who gave him the receipt, but said that the man who did was called Emmanuel. Ms Mapham said in her police statement that the man from whom Mr Mapham had bought the car appeared to be Portuguese. After seeing Mr Okafor give evidence, she gave evidence explaining her earlier statement, saying:

Now when you were providing your statement to Detective Senior Constable Bannerman, you’ve identified the driver as someone as being Portuguese?---Well I come from South Africa and Portuguese are tanned, very dark and to me Portuguese or Spanish they’re all dark people.
The name, Emanuel ---?---They’re the same as – in South Africa people are dark.

The name, Emanuel, does that sound Spanish to you?---Yes, my father is very Spanish and he was very dark and his name was Emanuel Anthony.
Is he Portuguese too?---Yes, he was half Portuguese half Spanish.
The name, Emanuel, sort of made you think that that person might be Portuguese?---He could’ve been anything. I have Nigerians called Emanuel.
The reason you’ve described the person in your statement as being Portuguese – this person that I say you never saw is because you knew the name was Emanuel and you assumed that therefore he must be Mediterranean?---Emanuel is a Portuguese or Mediterranean/Spanish name and where I grew up they’re all dark or black, dark tanned people and that’s what I know and that’s the only closest way I could have described him on the day.

It is hard to see what the prosecution could have done about calling a witness on the basis of a description that he was a Portuguese or Spanish man called Emmanuel who was tanned or dark, “the same as – in South Africa people are dark”; the description certainly seems to narrow the class of possible witnesses, but does not provide a basis on which such a person might be located, readily or at all.

However, despite the obvious difficulties for the prosecution in calling the relevant witness, I accept that their Honours’ comments in Dyers support counsel’s submission that the Magistrate should not have applied the Jones v Dunkel “mode of reasoning” against Mr Mapham, at least not without articulating a reason for doing so (whether based on the difficulty of anyone other than Mr Mapham identifying the witness, or otherwise).

However, I do not interpret her Honour’s remarks to indicate that the drawing of this inference was a necessary step in her reasoning, or even that it was a make-weight in her assessment of the evidence, especially since her Honour also reminded herself that there might have been good reasons why a person playing the role asserted by Mr Mapham (that is, as the seller of the stolen car) would not have been available to give evidence at Mr Mapham’s request.

When Mr Mapham came into possession of the car

Counsel in written submissions said:

Further there was no basis on the evidence to conclude that the purchase and towing of the car referred to by Mr and Mrs Mapham had to occur at a time Mr Okafor (the owner was absent). [AB 249:L14-17]. There was no proper basis to conclude beyond reasonable doubt that persons unknown did not steal the car at the time Mr Okafor was absent and then subsequently sold it to Mr Mapham in the manner he described.

The part of her Honour’s ruling referred to in this submission is as follows:

It appears highly coincidental that the pre-arranged tow truck would have arrived within the very two hours and 20 minutes that Mr Okafor was away, including being there for at least 35 to 45 minutes just in loading time as well as the time spent paying for the truck’s attendance.

I can make no sense of counsel’s submission. As far as I understand the evidence:

(a)it seems undisputed that the car was removed from where its owner Mr Okafor had parked it, apparently in Illawarra Court, Belconnen, during a period of less than three hours while Mr Okafor was at university on 21 August 2008; and
(b)Ms Mapham said that she and Mr Mapham had gone to Illawarra Court, Mr Mapham having arranged the attendance of a tow-truck there, and that in that location Mr Mapham had bought the car, and received the receipt, from a man she describe as having “complexion similar to Portugese”.

Mrs Mapham also gave evidence that, despite the date on the receipt, she now knew that the car had been bought between 17 and 21 or 23 August.

Counsel’s submission might be intended to suggest that her Honour should have considered the possibility that the car was stolen on 21 August 2008 but only moved to another part of the same car park, and subsequently (on the basis of Ms Mapham’s evidence, during the next 48 hours or so) sold to Mr Mapham from that other part of the car park. I cannot see that her Honour was obliged to consider such a possibility as raising a reasonable doubt about the circumstances in which Mr Mapham had obtained the car. Counsel made no submission to this effect in the Magistrates Court.

Whether Mr Mapham created the receipt

Finally, counsel submitted that:

there was no basis to conclude that Mr Mapham had authored the receipt, particularly in circumstances where the proposition was not put to Mr Mapham in cross-examination.

This submission has little merit. First, as her Honour specified, she relied on the positive evidence of his mother to find that Mr Mapham had authored the receipt. Secondly, as her Honour also noted, since the charge against Mr Mapham was using the receipt, whether Mr Mapham actually wrote the receipt was not essential to the case against him (or that against his mother), although it was relevant to “the knowledge and belief for each defendant”.

Availability of “unsafe and unsatisfactory” as appeal ground

Miles CJ in Upton v Cowling [2001] ACTSC 116 rejected the availability of “unsafe and unsatisfactory” as a ground of appeal against a finding by a Magistrate as follows:

5 The first ground of appeal is that the finding that the offence was proved is against the weight of evidence and is unsafe and unsatisfactory. However, those grounds are not available in appeals from Magistrates. It is more than well established that an appeal to which s 214 of the Magistrates Court Act applies is a re-hearing on the evidence before the Magistrate, subject to the reception of further evidence in accordance with the tests laid down by that section and subject to this Court according proper weight to the findings of the Magistrate which depend upon the advantage of seeing and hearing witnesses. An appeal on the ground that the decision is “against the weight of evidence” lay against the verdict of a jury in a civil case at nisi prius for the purpose of ordering a new trial: Hocking v Bell (1945) 71 CLR 430. There has never been such an appeal in this Territory. An appeal on the ground that a conviction is “unsafe and unsatisfactory” developed from the statutory power of a court of criminal appeal to set aside a conviction based on a jury’s verdict of guilty where there has been a miscarriage of justice. It is doubtful whether it applies to a conviction following a trial by judge alone; see Massey v The Queen [2001] FCA 1558. It is inappropriate to an appeal from a Magistrate by way of re-hearing.

In Massey v The Queen [2001] FCA 1558, the Full Federal Court (Miles, O’Loughlin and Madgwick JJ) had said:

27 The judgment of the majority in M’s case also formulated a view as to the assessment of the evidence by an appellate court in the following terms at 494-5:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inaccuracies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgements of the members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

28 There has also been recent comment by the Full Court of the Federal Court in Tran at [69] in which Black CJ, Kenny and Weinberg JJ said of an appeal which relies upon the ground that the verdict was “unsafe and unsatisfactory”:
“...it requires an intermediate appellate court to conduct an independent assessment of the strength of the prosecution case, and to consider whether or not it would be `dangerous’ to allow a conviction to stand.”

29 This Court, then, must approach the question of whether the verdict was unsafe or unsatisfactory by assessing the whole of the evidence. It must undertake that assessment so that it can determine whether it was open to the trial judge to be satisfied, beyond reasonable doubt, that the appellant was guilty. In undertaking that exercise the appellate court must have full regard to the fact that the judge was able to see and hear the witnesses give their evidence: this the appellate court cannot do.
...
“unsafe and unsatisfactory” as an available ground of appeal
34 It remains to mention the question whether the “unsafe and unsatisfactory” ground applies to a finding of guilt by a judge sitting without a jury. In some courts of criminal appeal in the States it appears to have been assumed that the ground is available.
35 In R v Dowd, an unreported decision of the Supreme Court of New South Wales Court of Criminal Appeal (BC 9606758, 20 December 1996), a District Court judge, sitting without a jury had found the appellant guilty of a charge of unlawful sexual intercourse. On appeal Hulme J, with whom McInerney J agreed, concluded that the appeal should be dismissed. Grove J dissented saying:
“In the whole of the circumstances I am of the opinion that the conviction is unsafe, not in the sense that the tribunal of fact ought to have had a doubt about the guilt of the accused, but in the sense that the exposed process by which the evidence of the complainant was preferred and exclusively accepted to prove the prosecution case was flawed.”

Nothing was said by any member of the Court that would suggest that a ground of appeal that the verdict was unsafe or unsatisfactory was not available in an appeal from the decision of a judge sitting without a jury.
36 In R v Hayden [2001] SASC 125 the appellant was tried by a judge alone on two counts of assault occasioning actual bodily harm. He was duly convicted and subsequently appealed to the South Australian Court of Criminal Appeal. The complaint that the verdict was unsafe or unsatisfactory was peremptorily dismissed; Debelle J, the presiding judge said:
“Finally the appellant complains that the verdict was unsafe or unsatisfactory for three reasons, namely, there was no motive proved for the appellant’s involvement in these assaults, Wiese’s description of his assailants did not fit the appellant, and there was considerable doubt as to the alleged confession. Neither of these three grounds, viewed individually or as a whole, warrant interfering with this verdict.”

The remaining members of the Court, although disagreeing on some aspects of the appeal, supported the general remarks of Debelle J.
37 In R v Keyte [2000] SASC 382, the South Australian Court of Criminal Appeal was concerned, primarily, with the alleged inadequacy of the reasons that were given by the trial judge in the course of his decision to convict the accused. No comment, adverse or otherwise, was made about the claim that the verdict was unsafe or unsatisfactory, save that Williams J said:
“My decision to treat the guilty verdicts as unsatisfactory is based upon the peculiar issues arising upon the evidence in this case, the way in which the case was conducted at trial, and the lack of explanation from the Trial Judge.”

38 In Havord v Chief of Navy [2001] ADFDAT 3, the appellant had been found guilty by a Defence Force Magistrate of one count of committing an act of indecency. He appealed to the Defence Force Discipline Appeal Tribunal on several grounds, one of which was that “in all the circumstances of the case, the conviction ... is unsafe or unsatisfactory”. The Tribunal consisting of Heery J (President), Underwood J (Deputy President) and Mildren J (Member) rejected this ground of appeal without addressing whether it was a ground that was available in respect of a conviction by a judicial officer as distinct from a jury.
39 The jurisdiction of this Court to entertain appeals from judgments of the Supreme Court of a Territory, including the Australian Capital Territory, is to be found in the general terms of s 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).
40 It is well established that this jurisdiction includes the power to hear an appeal against a judgment which is entered upon a verdict in a criminal trial: Duff v R (1980) 28 ALR 663; 39 FLR 315. It extends to the power to set aside a verdict of a jury in circumstances where the verdict is unsafe: Chamberlain v R (No. 2) (1984) 153 CLR 521. It has also been held that s 24 imports some of the provisions common to the legislation creating courts of criminal appeal in the States, for instance the proviso that an appeal may not be allowed if there has been no substantial miscarriage of justice: R v Tait (1979) 24 ALR 473. The power imports the duty to set aside a conviction where a miscarriage of justice has occurred in circumstances where it would be unsafe and unsatisfactory to allow the verdict to stand: Tran.
41 The “unsafe and unsatisfactory” ground is concerned with the soundness of a verdict which, of its nature, in the case of a jury trial, cannot be scrutinised for its validity in terms of reason and logic. The inscrutable verdict of a jury contrasts with a finding of guilt made by a trial judge which must be supported by reasons exposed in a judgment. In civil cases, where an appeal court is in as good a position to draw inferences from primary facts found by the trial judge, the appeal court will substitute its own findings based on those inferences for the findings of the trial judge: Warren v Coombes (1979) 142 CLR 531.
42 It appears to us, for the purpose of the present appeal, that it is unnecessary to decide whether s 24 of the Federal Court Act requires this Court to choose between an “unsafe and unsatisfactory” approach, or a Warren v Combes approach, in an appeal against conviction by a judge sitting without a jury. If the latter approach were taken, we would not decide that the trial judge fell into any error of law or fact, for the reasons already given.

Miles CJ’s decision in Upton v Cowling to dismiss the appeal was appealed to the Full Court of the Federal Court. That Court also dismissed Mr Upton’s appeal (Upton v Cowling [2002] FCAFC 134), but after a substantive consideration of his claims of error on the part of the Magistrate. No comment was made on Miles CJ’s rejection of “unsafe and unsatisfactory” as a possible ground of appeal from a Magistrate’s decision.

I have found very few decisions on appeals from the ACT Magistrates Court raising “unsafe and unsatisfactory” as an appeal ground either before or since Massey v The Queen and Upton v Cowling were decided (although I have dealt with one such appeal myself, Bullman v Debnam [2010] ACTSC 97, where the ground was relied on by the appellant, albeit unsuccessfully, without opposition from the respondent). On the other hand, it seems that the availability of an “unsafe and unsatisfactory” ground of appeal from a decision of a Magistrate has been regularly assumed in various other Australian jurisdictions; (Ross v Munns [1998] NTCA 33, per Thomas J, Priestley J; Rasoolifard v Nicol [2001] WASCA 180 at [24] and [25]; Anderson v Davis [2009] WASC 38 at [78] to [80]; Yassir v Bone [2010] QDC 11 at [154]; Ibrahim v Police [2012] SASC 231 at [142]).

In the absence of any statutory exclusion of such a ground in the ACT, it is hard to see why a common law ground of appeal apparently accepted in a number of other Australian jurisdictions should not also be available in this jurisdiction. This is especially so given that the comments of the Full Federal Court in Massey v The Queen about the availability of the appeal ground in relation to a decision of a judge alone (at [42], quoted at [57] above) were by no means as definitive as Miles CJ suggested in Upton v Cowling (at [56] above).

Application of “unsafe and unsatisfactory” test

The Full Court’s remarks in Massey v The Queen at [29] about the need for an appellate court to assess the whole of the evidence and to “have full regard to the fact that the judge was able to see and hear the witnesses give their evidence”, and about the fact that the appellate court cannot observe the witnesses giving evidence, are particularly relevant in this case.

In Lane v Laneand Anor [2011] ACTSC 53, Refshauge J discussed more recent authorities in relation to an appellate court’s role in examining a decision reached in a proceeding in which the credibility of witnesses was significant, saying:

15. The obligation of appellate courts, especially where there are issues as to the credibility of witnesses is concerned, has been the subject of recent consideration by the High Court in cases such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 and, more recently, in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458.
16. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ repeated (at 127; [25]) what had been said in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, where the majority repeated (at 551) the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

17. Their Honours then referred to the “trilogy” of cases which reiterated the need for appellable respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom, of course, the trial judge sees, but the appellate court does not. Those cases were Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 (at 351-2); Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 (at 179) and Devries v AustralianNational Railways Commission (1993) 177 CLR 472 (at 472, 482-3). Their Honours continued (at 127 - 8; [27] to [29]):
27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.
(Footnotes omitted).

18. The approach was restated by Kirby J (with whom Gleeson CJ agreed) in CSR Ltd v Della Maddalena where his Honour said (at 466; [21] to [22]:
[21] Even in the case of expressed credibility findings, the statutory duty to conduct a real ‘rehearing’ remains. It may sometimes justify reversal of a decision by a primary judge who has ‘failed to use or has palpably misused his advantage’ or where ‘incontrovertible facts or uncontested testimony’ demonstrates the findings to be erroneous; or where they are ‘glaringly improbable’ and ‘contrary to compelling inferences’.
[22] However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It ‘will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it’.

The challenges to her Honour’s reasoning relate to aspects of her ruling that were largely peripheral to her ultimate conclusions, and counsel has not identified any error in her Honour’s approach that in my view undermines those conclusions.

Furthermore, this is a case in which the credibility of witnesses, in particular the prosecution witness Emmanuel Okafor and the accused Mr Mapham, would have been central in her Honour’s assessment of the evidence.

The significance of her Honour’s opportunity to assess the various witnesses is in no way reduced in this case by any failure on her Honour’s part to use, or palpable misuse of, that opportunity, by any indication in the evidence that her Honour’s findings were erroneous, by any glaring improbabilities in those findings, or by any compelling inferences to which those findings are contrary. There is no basis that I can see for any re-determination of the findings her Honour made and the conclusions she drew about Mr Mapham. On the whole of the evidence before the Magistrate, it was open to her Honour to be satisfied beyond reasonable doubt that Mr Mapham was guilty.

I note in particular that the offence of which Mr Mapham was found guilty by the Magistrate did not require either that Mr Mapham had in fact stolen the car, or that he had created the receipt. It would have been sufficient if, when he gave the receipt to DSC Bannerman, he knew or believed that the receipt did not reflect a transaction genuinely entered into by him in good faith.

Her Honour’s finding that Mr Mapham was guilty was not in my view unsafe or unsatisfactory.

Alternatively, if the test to be applied is whether her Honour made errors of law or fact in reaching her verdict, I am satisfied that the only error in her Honour’s findings or reasoning that has been made out was the drawing of the Jones v Dunkel inference against Mr Mapham.

Whether the appropriate test for determining a challenge to the Magistrate’s verdict is whether it is “unsafe and unsatisfactory” or is a more explicitly error-based test, it seems to me that the scope for upholding an appeal on such a ground must also be confined by what is in some jurisdictions referred to as “the proviso”, being the principle that an appeal is not to be allowed if there has been no substantial miscarriage of justice (Massey v The Queen at [40], quoted at [57] above).

Having regard to the whole of the evidence before the Magistrate, I am satisfied that despite her Honour’s approach to the Jones v Dunkel issue, the finding that Mr Mapham was guilty did not involve any miscarriage of justice, substantial or otherwise.

Mr Mapham’s appeal will be dismissed, and the conviction and sentence confirmed.

Heather Mapham

Ground 4.a of Ms Mapham’s conviction appeal is addressed by my conclusions at [41] above. The remaining grounds of the conviction appeal are as follows:
b. The charge should have been dismissed at the conclusion of the Prosecution case, in that there was no case to answer.
c. Her Honour rejected the appellants [sic] and the co defendants [sic] version of events, leaving no likely scenario of what did happen.

Rejection of no case submission

Ms Mapham’s statement, omitting formal parts, was as follows:

On 18 February, 2010 I was at the Canberra Magistrates Court with my son, Vincent MAPHAM in relation to a matter at Court involving a Mitsubishi Magna vehicle. I am aware that Police raided Vince's house at Macquarie, ACT and the vehicle was towed away.
About 1.00 pm 18 February, 2010 I attended at the Canberra City Police Station with, Vincent and Detective Senior Constable BANNERMAN (BANNERMAN). BANNERMAN had asked me to come to the Station to provide a statement about the Magna as I was with Vincent when he bought the car.
In the front office area of the Police Station Vincent gave BANNERMAN a piece of paper dated 17.6.2008 that is a handwritten receipt for Mitsubishi Magna sedan ACT YAU93W.
On 17 June 2008 I went with Vincent to the car park area of Illawarra Court, Belconnen ACT. We travelled to the car park in my vehicle, a Mitsubishi Lancer sedan. I cannot remember the time of day but we were to meet a tow truck somewhere near the car parking area.
I had never been to the car park area of Illawarra Court in relation to this vehicle and I had never seen the vehicle before that day. I went with Vincent to give him a lift as he is not allowed to drive and to pay the money for the tow truck. I think the tow truck cost was about $60.00. I don't know the identity of the tow truck driver or the tow truck company.
When we arrived at the car park, during day time hours, there were about two or three male persons within the car park. I would describe one of the male persons as tall, lean build, dressed in a cut off top, and complexion similar to Portuguese with tanned skin, possibly Mediterranean looking.
I cannot describe any of the other people in the car park.
The Magna car was parked in a car parking space under one of the block of units.
I did not get out of my car and I was watching what was happening from the street. I did not see any person provide Vincent with any papers but Vincent walked over from the car parking area and handed me a bundle of papers. One of the papers looked like registration papers and this paperwork was signed, I cannot recall the name of the signature, car repair paperwork and this hand written receipt.
I don't know when Vincent had paid for the car. I don't know if Vincent had the $1200.00 with him on that day.
I don't know where Vincent had got the money to pay for the car.
I have looked at the receipt and I recognise the writing on the receipt as Vincent's hand writing. I also looked at the signature "Vince Mapham" and I recognise that signature as belonging to Vincent MAPHAM.
I was in my car and I could not see anyone signing the receipt.
The tow truck was having problems getting into the car park to load the car. There was no key for the car and steering was locked. I could tell this because I was watching Vincent, the tow truck operator and the other male persons trying to move the car around.
The car was eventually loaded onto the truck, Vincent and I accompanied the truck to my address in Florey. The car was unloaded into my backyard. The car was in my backyard for some time, I don't recall how long it was there.
I don't recall when the car was moved from my backyard, another tow truck came to my house and the car was towed away. I don't know the company that this tow truck came from. On this occasion it was a different company than when the car was picked up from Illawarra court.

At the hearing in the Magistrates Court, the prosecution called as witnesses the owner of the stolen car, Emmanuel Okafor, and the informant in relation to the original unlawful possession charge, DSC Bannerman. A number of statements were also received in evidence without objection.

At the close of the prosecution case, counsel for Ms Mapham made a no case submission, on the ground that there was evidence before the Magistrate to the effect that the statement by Ms Mapham was incorrect as to the date on which, she said, she had observed the car being removed from Illawarra Court, but there was no evidence on which to base a finding:

(a)that her assertion about the date was false rather than simply mistaken; or
(b)that any of the other claims in her statement were even incorrect.

In establishing the offence of making false evidence, the prosecution would need to exclude the possibility that the “falsity”, or inaccuracy, of the evidence was not the result of a simple mistake. In some cases mistake will be easily excluded by the nature of the evidence and the nature of the falsity. In this case, at the close of the prosecution case, there was evidence that the date specified in Ms Mapham’s statement as the day on which she went with her son to collect the car was incorrect, and there was evidence leaving open the possibility that when Ms Mapham made her statement, she had relied on the date stated in the receipt (whether she saw it in DSC Bannerman’s possession while she made her statement or had seen it earlier) rather than on her memory. Given that the date she specified was 20 months before the day she made her statement, and the date around which the car had been stolen was about 18 months before the day she made her statement, a mere incorrect specification of a date, especially unaccompanied by any apparently or possibly concocted attempt to support the particular date specified, could not by itself have established the falsity of Ms Mapham’s statement as required for the offence with which she had been charged.

Her Honour’s reasons for dismissing the no case submission made on behalf of Ms Mapham were as follows:

In respect to Ms Mapham, the question at issue in his [sic] application is whether she knew or believed the receipt to be false and if the statement made in reliance upon that is, therefore, also infected.
The prosecution case is that Ms Mapham attended court for a case management hearing regarding a charge of possessing stolen property relating the Magna on 18 February 2010. She had not previously provided any statement in support of her son's claim that the car was purchased by him, despite the fact that the search warrant which led to the investigation was executed over a year before and her son had been contacted by police regarding the matter and charged and appeared in court in the meantime.
She said in her statement that she was handed the receipt by her son on the day he allegedly purchased the car, being 17 June 2008. She provided no explanation as to what happened to the receipt thereafter. She said that the car was towed to her home, with no explanation as to why this was so, nor did she recollect when the car was removed from her home.
It seems prima facie that the aim in providing that statement to the police was to influence the outcome of proceedings against her son. The prosecution submits that, on the face of it, it can be inferred that Ms Mapham knew the receipt was false and made a false statement, the subject of the charge in her case, in that knowledge. The falsity of her statement is an inference reasonably open in the circumstances.
It may be influenced by an assessment of the credibility of the defendant, but it is a conclusion that one can properly reach in the circumstances. On that basis, the application in respect to Ms Mapham is dismissed.

It is not absolutely clear to me that her Honour properly formulated the question in issue in relation to whether Ms Mapham had a case to answer. Ms Mapham in her statement referred to receiving the receipt, together with other papers, from her son, but makes no assertions about the “truth” of the receipt. In particular, she says that it is in her son’s handwriting, but does not claim to have seen anyone sign it. At the close of the prosecution case, it was possible that Ms Mapham’s statement contained an entirely accurate account of her (possibly unwitting) observation of the theft of the car, with the one exception that the date she had specified, reflecting the date on the receipt, was not accurate.

Noting this possibility, it is significant that her Honour, in dismissing the no case submission, did not point to evidence in the prosecution case on which she could have relied to draw an inference against Ms Mapham that the date specified in the statement, or any other assertion contained in it, was false rather than simply inaccurate. Instead, she referred to matters which, as counsel for Ms Mapham pointed out, could not be relied on as a basis for such inferences, being that Ms Mapham had not provided any statement supportive of her son to investigating police earlier than February 2010, that she did not explain what had happened to the receipt after it had been handed to her, that she did not explain why the car was towed to her home, and that she could not remember when the car had been removed from her home.

Her Honour’s conclusion, that the drawing of the necessary inferences against Ms Mapham “may be influenced by an assessment of the credibility of the defendant”, does not necessarily indicate a recognition that the prosecution case at its highest could not make out all the elements of the offence charged. However, in the circumstances as noted above, and especially her Honour’s focus on matters that could not of themselves establish the falsity of the contents of Ms Mapham’s statement, it does seem to reflect the weakness in the prosecution case as it stood at the end of the prosecution evidence.

At the end of the prosecution case, there was no evidence sufficient to establish beyond reasonable doubt that Ms Mapham made her statement knowing it was false. Accordingly, her Honour erred in rejecting counsel’s no case submission on behalf of Ms Mapham.

However, although the question was not canvassed in any submissions, it seems that this is not the end of the matter.

In Durovic v The Queen (1994) 71 A Crim R 33, the Court of Criminal Appeal, Tasmania, considered an appeal ground to the effect that failing to uphold a no case submission was an error of law. The Court (in obiter dicta, because they rejected the appeal ground for other reasons) said at 52:

...there is much to be said for the view that, as a matter of logic, the proposition stated in Halsbury’s is to be preferred and thus an appellate court considering the sufficiency of the evidence should conclude that there has been an appealable error if a no case submission is wrongly rejected at the trial. But we are also of the provisional view that if the appellate court then upholds the relevant ground of appeal, it is entitled to, and should, examine the whole of the evidence given at the trial, including the defence evidence, for the purpose of deciding whether or not the proviso should be applied and the appeal dismissed. Normally, we would think, the provision of incriminating evidence by the accused or his witnesses would justify the appellate court in dismissing the appeal if no other substantial grounds of appeal could be sustained.

After the no case submission was refused, Ms Mapham gave evidence. There was nothing in the content of her evidence that incriminated her by establishing that she knew that some or all of her statement was false, although she did concede that since making the statement she had become aware that the date specified in it was incorrect.

Nor was there anything in Mr Mapham’s evidence that could have been relied on for a finding that Ms Mapham’s statement was to her knowledge false, as distinct from inaccurate as to the date. The only identifiable difference between Mr Mapham’s description of events when he picked up the car and that given by his mother in the police statement was, as noted by the Magistrate, that Ms Mapham did not mention giving her son a pencil to use in getting a receipt. This may mean that her statement was incomplete but it does not make the statement or any part of it false.

It is possible that the Magistrate formed a negative view of Ms Mapham’s credibility as a result of the evidence she and her son gave after the no case submissions were rejected. A negative assessment of the credibility of a witness might be relevant in considering whether to accept the conflicting evidence of another witness, and might therefore enable the judicial officer to conclude that relevant facts have been established beyond reasonable doubt by the evidence of that other witness. However, a negative assessment of an accused’s credibility cannot be relied on, as such, to establish a missing element of the prosecution case. Even if, having seen Ms Mapham give evidence, her Honour concluded that she was not a witness of truth, that of itself would not have permitted the Magistrate to infer that, beyond reasonable doubt, the contents of her police statement were false.

There was nothing else in the defence evidence that could have established the prosecution case against Ms Mapham beyond reasonable doubt.

Thus, her Honour’s error in refusing the no case submission cannot be dismissed on the basis that no substantial miscarriage of justice has occurred.

No likely scenario found

Ms Mapham’s final ground of appeal against her conviction was that:
c. Her Honour rejected the appellants and the co defendants [sic] version of events, leaving no likely scenario of what did happen.
There is no substance to this submission. Given the nature of the charges, it was not necessary for the prosecution to prove, or for the Magistrate to find, how Mr Mapham really acquired the stolen car. All that was necessary was to establish, in relation to Ms Mapham, whether she had made a false statement with the necessary intention. The prosecution needed to be able to prove that the material in the police statement was false, but proving the true circumstances was only one of the ways in which the prosecution would have been able to do that. For instance, the prosecution might have produced evidence that Ms Mapham could not have been with Mr Mapham when he came into possession of the car (because during the entire period within which the car could have been obtained, Ms Mapham had been, say, overseas, in a coma or in prison); such evidence would have established the falsity of a significant part of the material in her police statement, without providing any indication of the circumstances in which the car had in fact been obtained by Mr Mapham.

Prosecution revision of case against Ms Mapham

There is one other aspect of Ms Mapham’s appeal that needs to be mentioned. In argument during the appeal hearing, questions were raised about whether making a police statement could in fact amount to making false evidence. In response to these questions, counsel for the respondent sought to identify, as the making of false evidence, Ms Mapham’s oral advice to police officers of what she was willing to put into a police statement, on the argument that what she said to police (as distinct from the statement) could have been used as evidence.

In supplementary submissions after this point was raised in argument, counsel for the respondent re-affirmed the proposition that the “evidence” that was “made” by Ms Mapham was the information given by her to police to the effect that her son had acquired the car in circumstances that did not apparently involve the commission of any offence. No argument was offered about the basis on which Ms Mapham’s comments to police, separately from the witness statement she had signed, could have been used as evidence in the proceedings against Mr Mapham.

The only police statement of facts provided in the appeal book is headed only with Mr Mapham’s name, but it also refers to Ms Mapham’s actions, including describing her giving of the witness statement and paraphrasing the contents of that statement.

Furthermore, it is clear from the transcript of proceedings in the Magistrates Court that the charge against Ms Mapham relied on the witness statement she provided and signed at the police station, not on any prior unrecorded conversations between Ms Mapham and any police officer. DSC Bannerman gave no evidence in chief about what Ms Mapham told him, only about the process by which what she told him was turned into a statement. In cross-examination, he agreed that certain matters were dealt with in Ms Mapham’s statement, but did not give evidence of what Ms Mapham had told him as distinct from what was recorded in her statement. That is, there was no evidence before her Honour of what Ms Mapham had told DSC Bannerman except the contents of the witness statement. Accordingly, I reject the respondent’s submission that Ms Mapham’s offence was charged, or could have been established, by reference to her discussions with police about what she was prepared to put in a witness statement.

Conclusion

For the reasons set out at [73] to [88] above, Ms Mapham’s appeal must be upheld and her conviction for making false evidence must be set aside. That conclusion also disposes of her sentence appeal.

Orders

The orders will be that:

(a) the appeal by Vincent Mapham is dismissed, and the Magistrate’s orders are confirmed; and

(b) the appeal by Heather Mapham is upheld, her conviction and sentence are set aside, and a verdict of not guilty is entered.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Acting Associate: Kerri-Anne Duval-Stewart
Date: 13 August 2013

Counsel for the first appellant:	Mr M Kukulies-Smith
Solicitor for the first appellant:	Kamy Saeedi Lawyers
Counsel for the second appellant:	Mr T Crispin
Solicitor for the second appellant:	Darryl Perkins Solicitor
Counsel for the respondent:	Mr T Jackson
Solicitor for the respondent:	ACT Director of Public Prosecutions
Date of hearing:	9 December 2011, 3 February 2012
Date of last written submissions:	25 July 2012
Date of judgment:	13 August 2013