McLeod v Greer - [2005] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MCLEOD -v- GREER [2005] WASCA 36

CORAM: ROBERTS-SMITH JA
MCLURE JA

HEARD: 23 FEBRUARY 2005

DELIVERED : 23 FEBRUARY 2005

FILE NO/S: SJA 1015 of 2003

BETWEEN: STEPHEN WILLIAM MCLEOD
Applicant
AND
ALAN JAMES GREER
Respondent

Catchwords:

Appeal - Practice and procedure - Application for leave to appeal against decision of single Judge upholding prosecution appeal against decision of Magistrate dismissing complaint - 12 charges of stealing as a servant - Application to strike out appeal for want of prosecution - Delay

Legislation:

Nil

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr J W M Foulsham
Respondent: In Person

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: In person

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

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
McLeod v Greer [2003] WASCA 199
Shepherd v The Queen (No 5) (1990) 170 CLR 573

Case(s) also cited:

Lewandowski v Lovell (1994) 11 WAR 124

ROBERTS-SMITH JA: There are two applications presently before the Court. The first is an application on behalf of the respondent, Stephen William McLeod, by way of motion, to dismiss the appeal for want of prosecution. That notice of motion was filed on 15 February 2005. There is also before the Court an application for leave to appeal, that being filed on behalf of the applicant on 18 September 2003.
The appeal is sought to be against the judgment of Pullin J (as his Honour then was) which was delivered on 29 August 2003 in relation to a decision made by his Worship Mr Burton SM in the Court of Petty Sessions on 28 January 2003 when he found the applicant not guilty of 12 charges of stealing as a servant. In his judgment Pullin J upheld an appeal by the complainant, set aside the verdict and remitted the matter for rehearing in the Court of Petty Sessions to be retried before another Magistrate.
I propose to deal with the application for leave to appeal first because it seems to me if there is merit in that in the sense of an arguable ground or grounds of appeal, then subject to the explanation for the delay given by the applicant, it is likely that the application to dismiss for want of prosecution would be dismissed. On the other hand, if the application for leave is not successful, then the motion to dismiss for want of prosecution would fall away.
The applicant's application for leave to appeal was set down for hearing on 7 October 2003 but was brought before Pullin J, who of course was the Judge from whom the appeal was sought to be made. It was apparently then relisted before Wheeler J on 16 October 2003 and, as I understand it, her Honour referred the matter for hearing both as to the application for leave and any appeal which might be pursued as a result of leave being granted for hearing in the Court of Appeal.
Nothing further was done on the part of the applicant until he received a letter dated 28 September 2004 from the office of the Director of Public Prosecutions requesting the applicant to contact that office to discuss his intentions in regard to progressing his appeal and advising that if he did not do so within 10 days, an application would be made to have the appeal struck out for want of prosecution. It was after that that the applicant sought to have the matter listed.
So far as the application for leave to appeal is concerned, the applicant sets out a number of grounds of appeal upon which he wishes to rely. Ground 2(a) reads:
"The learned Judge erred in law in failing to consider the finding of fact by Mr R H Burton SM that the applicant did not carry out the reconciliation of the main bank account over the period that the twelve transactions occurred."
Ground 2(b) claims:
"The learned Judge erred in making various findings of fact which were unsupported by any evidence or against the weight of the evidence …"
and then a number of those are set out. Ground 2(c) states:
"The learned Judge erred in failing to consider the Defense [sic] case from the original trial and in only considering the Prosecution case."
Ground 2(d) claims that his Honour erred in law by not dealing with the points raised in ground 2(c) of the appeal in detail. Ground 2(e) complains that he erred in law and fact in failing to consider a number of pieces of circumstantial evidence together to reach his decision, those then being adumbrated.
All of that clearly proceeds on the understanding that what Pullin J did in his reasons for decision was to make a number of findings of fact. However, that is a misapprehension. It is clear from the decision of his Honour (McLeod v Greer [2003] WASCA 199), that what his Honour did do was to deal first with the prosecution ground of appeal which was to the effect that the Magistrate erred in law in failing to consider all of the circumstantial evidence together in reaching his decision. That was one of a number of grounds of appeal but it was the main ground upon which his Honour's decision turned.
Having adverted to that ground, his Honour then first dealt with the prosecution case based on circumstantial evidence and outlined what the prosecution case in that respect was. Then under the heading "Prosecution Case Generally" he recounted what was being alleged on behalf of the prosecution both in terms of the evidence which needed to be examined and considered and the issues which arose.
Having done that, at [21] his Honour then observed that the learned Magistrate should have approached his task by examining the evidence in relation to each charge and making relevant findings of fact. His Honour then again gave some examples of findings which it was necessary to make. I emphasise that his Honour referred to findings it was necessary to make, and I repeat that what his Honour was not doing was making any findings himself as to those matters.
At the end of [21] his Honour concluded that a reading of the learned Magistrate's reasons for decision revealed that separate consideration was not given to each charge and relevant findings of fact were not made, although those points were not made the subject of any ground of appeal. His Honour then went on to deal with the main grounds of appeal, primarily ground 2(c) which complained that the Magistrate erred in failing to consider all the pieces of circumstantial evidence listed in the ground.
His Honour then referred to Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 in which Gibbs CJ and Mason J spoke about the need to consider all of the circumstances together in a case of circumstantial evidence, and made the observation that a jury, or in other words a fact-finding tribunal, should decide whether they accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they could draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. At [24] his Honour said:
"It is therefore clear that all of the relevant circumstantial evidence should have been identified by his Worship in relation to each charge. When that task had been completed, his Worship should then have decided, in relation to each charge, whether guilt was the only rational inference that could be drawn from the circumstances. See Shepherd v The Queen (No 5) (1990) 170 CLR 573 at 578."
His Honour concluded that it was quite clear that his Worship had not proceeded as directed in Chamberlain and Shepherd v The Queen (No 5) (1990) 170 CLR 573. That conclusion was reiterated at [27] and his Honour pointed out that the learned Magistrate had not made necessary findings of fact and had not identified all of the circumstances which he had to consider in deciding whether they pointed to the guilt of the respondent or whether they left open a reasonable inference consistent with innocence.
The failure to identify and consider the whole of the relevant circumstances, which included those listed in ground 2(c), was an error which, in his Honour's conclusion, had to result in the quashing of the Magistrate's decision to acquit the applicant of all charges.
His Honour then referred to ground 2(a), which required no further consideration because that complained that the Magistrate had erred by exercising summary jurisdiction in failing to commit the respondent for trial in the District Court. His Honour noted that the then respondent (the applicant) had elected to be tried summarily. His Honour referred to ground 2(b), which complained about erroneous findings of fact, but quite properly concluded it was unnecessary to consider that ground because the case was to be retried before another Magistrate.
Against the background of that analysis of his Honour's reasons it does become clear that the substance and content of each of the proposed grounds of appeal are really founded on the misapprehension that his Honour was actually making findings of fact, whereas in reality he was reciting in substance the prosecution case so as to indicate what issues of fact and evidence arose in the course of the trial before the Magistrate and which it was therefore incumbent upon the Magistrate to make findings about, which, as his Honour found, the Magistrate had not done.
That was the error in the Court of Petty Sessions. It was one of process or procedure and did not involve findings of fact at all on the part of Pullin J. To that extent and for that reason the grounds of appeal are misconceived.
The applicant points in particular to a statement by Pullin J that:
"The respondent was responsible for reconciling the bank statements to the cash payments book."
in his contention that was an error by his Honour in failing, as it was put, to consider the finding of fact by the Magistrate that the applicant did not carry out the reconciliation of the main bank account over the period that the 12 transactions occurred. That may have been the result of some misapprehension by Pullin J of what the Magistrate did find on some matters. It may have been, but given the way they were expressed that is perhaps not surprising.
In any event, it does not detract from the general proposition because it is not suggested that the Magistrate made no findings at all; what his Honour's conclusion was, was that the Magistrate had not made all of

the findings in respect of both the evidence and the issues which it was necessary for him to make, and that clearly was so.

In those circumstances I am of the view that the proposed grounds of appeal are not reasonably arguable and I would accordingly refuse leave to appeal. That being so, the application to dismiss for want of prosecution would fall away.
MCLURE JA: I agree with the orders proposed by Roberts‑Smith JA for the reasons he gives.