Middleton v Davies

[1990] TASSC 16

Serial No 10/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Middleton v Davies [1990] TASSC 16; A10/1990

PARTIES:  MIDDLETON
  v
  DAVIES

FILE NO/S:  LCA 77/1989
DELIVERED ON:  12 April 1990
JUDGMENT OF:  Cox J

Judgment Number:  A10/1990
Number of paragraphs:  10

Serial No 10/1990
List "A"
File No LCA 77/1989

MIDDLETON v DAVIES

REASONS FOR JUDGMENT  COX J

12 April 1990

1. Notice to review the ruling of a magistrate that the respondent had no case to answer in respect of three matters of complaint brought against him in a Court of Petty Sessions and the consequent dismissal of each complaint.

1. The respondent was charged with motor vehicle stealing contrary to s37B(1) of the Police Offences Act 1935, unlawful damage to property contrary to s37(1) thereof and attempted stealing contrary to ss299 and 234 of the Criminal Code.

1. Evidence was given by the owner of the car in question (which was described as a van) that he had parked it outside his place of employment, a pizza parlour in Geilston Bay, about 11pm on 2 January 1989. He saw it there again about two hours later, but by 2.30am it had gone, whereupon he reported it to the police as stolen. About ten minutes later, he went to Sugarloaf Road, Risdon Vale and found his car in a dirt road adjacent thereto. Police officers were present with the respondent and another man, who was jointly charged with him. It was conceded that there was evidence that the respondent had driven the car and that the owner had not given his consent to his doing so. The petrol cap was in a damaged condition and had to be replaced at a cost of $15.00.

1. Evidence was also led from one of the police officers who had apprehended the respondent and his companion that the respondent had made a written statement to this effect:

"Yesterday afternoon I went up to Bridgewater to pick up my mate Henry Davis. We then went to Hobart. I had my Torana. We were at the Red Lion and left about 12. o'clock. We decided to go to Risdon Vale to see some people. The car then run out of petrol on Sugarloaf Road near the H.E.C. station. We pushed the car back off the road and then decided to walk home. We were walking back passed (sic) the pizza parlour at Geilston Bay when we saw an orange Escort van unlocked and windows down. The pizza place was shut. Henry then started to walk on passed (sic) up to a phone box. I thought it was my mate Paul Jenkins' car. I thought I would borrow the car to get some fuel for mine. I got in and turned the ignition around. The key was not there. The car started. I then drove along the road and picked up Henry. We then drove up to my car in the Escort. I was going to milk petrol out of the Escort. I have a hose and container in my car. Henry and me then used a wheel brace to get the fuel cap off the Escort. Just as we did this, a police car came up and stopped."

1. The owner of the vehicle confirmed in cross–examination that Mr Jenkins was his employer at the pizza parlour and that Jenkins had a van which he had parked outside the parlour "maybe once or twice in his life". He also said that the two vans were "a lot different", Jenkins' van being an off–white or cream Holden HK panel van with big wide tyres, bubble windows and sunroof, while the owner's vehicle was an orange Escort and a lot smaller. Jenkins was not called as a witness.

1. At the conclusion of the prosecution case, the respondent's counsel submitted that his client had no case to answer in respect of any of the charges. The learned magistrate, in the course of upholding the submission, said:

"I think what we are dealing with here is a situation where the prosecution evidence falls short of what is necessary to establish the charge beyond reasonable doubt. I think it is perhaps very unfortunate that the person who the defendants alleged was the owner of the vehicle, one Jenkins, was not in fact called either to substantiate Mr Davies' allegation that he had permission to use it or to indicate that no such permission had ever been given. As I indicated though, the failure to call a witness only leads to an inference that his evidence would not have assisted the party who has failed to call him. I can't draw an adverse inference to say that it would have harmed their case. They are left in a situation where we have some allegations, some suspicions but no final nexus that would satisfy the court beyond reasonable doubt. I think had this been a civil case where the onus is merely on the balance of probabilities, it may be that the defendants would be in a difficult position, but with the state of the evidence as it is, and with the onus sitting as it is at present beyond reasonable doubt, I must say I have got a reasonable doubt as to whether the necessary elements against the defendants have been proved. I asked counsel specific questions about the third charge, that of damage to property, and I think they have answered that satisfactorily also as far as the mental element goes. I think what was lacking here in all three matters was the mental element. I have not been satisfied beyond reasonable doubt that there was necessarily the intention to steal the vehicle because they believed or because Mr Davies believed he had permission to use it..... The same situation I think applies to the attempted stealing of the petrol. Although at first glance it seems horribly suspicious that they have used a wheel brace to take off a petrol cap, bearing in mind the allegations they have made all along to the police and to the owner of the vehicle, it remains merely as a suspicious circumstance and nothing more. That being the situation, I am satisfied that I should dismiss all three counts against both defendants and accordingly I uphold the submissions of no case to answer put by their counsel."

1. It is clear from such authorities as May v O'Sullivan (1955) 92 CLR 654 and Zanetti v Hill (1962) 108 CLR 433 that in ruling on a submission of no case to answer the magistrate must decide the question of law whether, upon the most favourable view of the prosecution evidence reasonably open to the court, it would be possible if the evidence ended at that point for the onus lying upon the prosecution to be discharged. (See also Harris v Pandava Unreported Serial No 24/1975 per Neasey p7 (1959-1995) 14 Tas R 50)). On the face of it, the learned magistrate did not address this question of law but rather, prematurely, considered what is the ultimate question of fact namely whether or not each element had been established to his satisfaction beyond reasonable doubt. Not being so satisfied, he dismissed the case, but if there was a prima facie case, he thereby denied the prosecution its right to have the ultimate question considered on such further evidence, if any, as might be adduced by the defence.

1. In my view, there was a prima facie case in respect of each charge. Proof of motor vehicle stealing requires proof that the defendant drove or used a motor vehicle without the consent of the owner thereof or of any person with authority to give that consent. Both elements were clearly proved by the evidence adduced. In the same way there was evidence, both direct and inferential, that the elements of unlawful injury to property, namely actual injury to the petrol cap and absence of lawful justification, wilfulness and an absence of any claim of right (see McIntosh v Lowe 8 A Crim R 471). Finally there was evidence of the necessary elements of the composite crime of attempted stealing, namely an act done with intent to commit the crime of stealing and forming part of a series of events which, if it were not interrupted by the arrival of the police, would constitute the actual commission of the crime of stealing, the intent being dishonestly and without the owner's consent to take petrol with intent to permanently deprive the owner of it.

1. It is true that the respondent had made a self–serving claim on his apprehension that he believed the van to belong to Mr Jenkins, who was a friend of his, and the inference invited was that the respondent believed he had the owner's permission to use the car, damage it in a relatively minor way to procure petrol and to remove that petrol to mobilise his own car. However, the prosecution case is to be viewed in its best light on a no case to answer submission, and as the weight of a self–serving statement, though admissible, is entirely a matter for the trier of fact (R v McGregor [1968] 1 QB 371; Higgins v Dorries [1965] QR 389; Moore v Mahoney (1901) 27 VLR 166), on such a submission, the learned magistrate ought to have accorded it no weight at all. In any event, there were a number of factors which would clearly have justified the rejection of any such claim as not constituting a reasonable hypothesis in the circumstances. There was evidence that the vans were significantly different, Mr Jenkins could be expected to be present at the pizza parlour and be capable of being asked permission if his van had been outside and the nature of the acts and damage done could be said to be inconsistent with the respondent's claim.

1. The appeal will be upheld and the order dismissing the complaint set aside. I order that the matter be re–heard by another magistrate.