MITHEO v Jones
[2008] WASC 41
•27 MARCH 2008
MITHEO -v- JONES [2008] WASC 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 41 | |
| Case No: | SJA:1101/2007 | 26 FEBRUARY 2008 | |
| Coram: | McKECHNIE J | 26/03/08 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | JOSEPH MUTEA MITHEO MICHAEL JOHN JONES |
Catchwords: | Criminal law Procedure Standard of proof Wrong onus applied to accused |
Legislation: | Nil |
Case References: | Cecez v The State of Western Australia [2007] WASCA 260 R v Mullen (1938) 59 CLR 124 Woolmington v DPP [1935] AC 462 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL JOHN JONES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 51812 of 2005, PE 51813 of 2005, PE 51814 of 2005
Catchwords:
Criminal law - Procedure - Standard of proof - Wrong onus applied to accused
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms D E Quinlan
Solicitors:
Appellant : Thames Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Cecez v The State of Western Australia [2007] WASCA 260
R v Mullen (1938) 59 CLR 124
Woolmington v DPP [1935] AC 462
(Page 3)
- McKECHNIE J:
Introduction
1 It is a fundamental error to require an accused person to establish a defence on the balance of probabilities unless statute so requires. Yet this is what the magistrate did in the present case, an error the respondent concedes was a serious misdirection; So it is: Woolmington v DPP [1935] AC 462, 481; R v Mullen (1938) 59 CLR 124.
2 The respondent argues that the appeal should nevertheless be dismissed on the basis that there was no substantial miscarriage of justice.
The events in question
3 The appellant was charged with dangerous driving causing bodily harm, failing to render assistance, and driving without an appropriate valid driver's licence whist legally disentitled.
4 There were two main issues fought at trial. Could the prosecution prove that the accused was the driver of the vehicle? Could the prosecution negate accident?
5 The prosecution case was simple. The appellant and his companion went to the Hideaway Club in Wanneroo Road on 16 June 2005. After some interaction with others, the prosecution case was that the appellant drove a vehicle belonging to Hans Jurgen Mache. Before he got in the vehicle, Mache threw a rock or a brick at a man he was arguing with. The appellant drove the vehicle over an island, the man he threw the rock or brick at picked it up and threw it back at the window of the vehicle. The appellant drove his car directly at the man who was hit by it and injured. The appellant gave evidence that he was not present on the night and his mother gave evidence to similar effect.
6 The appellant's counsel cross-examined prosecution witnesses as to the rock said to have been thrown at the car, suggesting that this raised the issue of accident. Whether it raised the issue of accident or, as I prefer, an issue as to causation or the categorisation of the driving as dangerous, is the question but nothing turns on it for present purposes because under whatever formulation it was for the prosecution to negative before it could sustain a conviction.
7 A number of witnesses referred to the throwing of an object. Although the magistrate recounted the evidence of the witnesses in detail, she provided little analysis of the evidence on this issue. She accepted the
(Page 4)
- evidence of five witnesses to the effect that the vehicle drove deliberately at Morris and struck him. She referred to only two witnesses in relation to the rock throwing. She put aside the evidence of Gardiner and found the evidence of Mache unsatisfactory. Yet, in dealing with the question as to who was driving the vehicle she accepted the evidence of Mache and Gardiner 'as being entirely credible and reliable in so far as they stated that they did not know that the driver of the motor vehicle was going to drive at the victim and hit the victim'. In these circumstances, it was necessary for the magistrate to explain why any evidence that Mache and Gardiner gave in relation to the brick throwing incident was, in her words, 'unsatisfactory'.
8 The magistrate accepted the evidence of certain witnesses as to who was the driver and was satisfied beyond reasonable doubt that the appellant was the driver. She could not accept other witnesses as proof to the criminal standard because they were either too intoxicated at the time or did not recall the exact manner of driving. The magistrate was also satisfied that the driving was dangerous and occasioned bodily harm. She then turned to the question of accident.
Accident was raised by the accused as a defence, however in my opinion it has not been raised to the requisite standard, that is, the balance of probabilities because there is no evidence at all before the court to support a finding on the balance of probabilities of the defence of accident. (Section 23 of the Criminal Code). The evidence of Mr Mitheo (the appellant) was that he was not there and therefore he could not given any evidence with respect to the manner of driving. The evidence of Mr Mache and Mr Gardiner who both admitted to being in the motor vehicle at the time that Mr Morris was struck is unsatisfactory. At page 75 of the transcript the following was stated by Mr Gardiner:
Well, we took off and then we hit the bloke. That's all - that's what I can remember. I don't - I don't know whether we turned or anything. I just remember the bloke getting hit - on the driver's side of the front. I remember that's because it was in front of me, kind of thing, as I was sitting behind the driver - or, sort of, laying - - -
Question You were sitting behind the driver. Who were you sitting behind?
Answer Joseph
I find that the accident has been negated by the prosecution beyond reasonable doubt.
(Page 5)
9 Counsel for the respondent points to this last sentence as evidence that there was no miscarriage of justice because the magistrate was satisfied beyond reasonable doubt. While that is one interpretation, another is that the magistrate, not being satisfied that the defence had been established on the balance of probabilities then discounted the defence entirely for that reason. It is difficult to say what is the correct construction. In consequence, I am unable to say that the verdict should be maintained notwithstanding the serious misdirection.
10 There was evidence from a number of witnesses that a brick or rock was thrown, including the witness Mache whose evidence was in part accepted by the magistrate as credible. The magistrate did not expressly reject his evidence as to the throwing of the brick or rock. She did not deal with it. In consequence, it is impossible to know the process of reasoning that led her to the conclusion that accident had been negated beyond reasonable doubt.
11 Moreover, it is not certain what 'unsatisfactory' means in the context of her decision. Unsatisfactory evidence may be sufficient to raise reasonable doubt even if generally not accepted. Because of the magistrate's reference to the balance of probabilities, it is unclear what she means as unsatisfactory in terms of the burden and standard of proof by the prosecution. Therefore, although she found that accident had been negated by the prosecution beyond reasonable doubt, it remains unclear whether it had been negated due to unsatisfactory evidence or because the defence had failed to establish accident on the balance of probabilities.
12 The regrettable result is that the appeal must be allowed and a retrial ordered.
Ground 2: Is an accomplice warning necessary?
13 In light of my decision on ground 1, it is strictly unnecessary to deal with ground 2. However, I can deal with it shortly. The issue on this aspect of the case was: Who was driving the car? It was perfectly clear that other men in the car (Mache and Gardiner) had a possible motive to lie about that to protect themselves or each other. They were not accomplices in any accepted sense in this case and it was misleading for counsel at trial to have framed the issue in this way. The credibility of those two witnesses was very much in issue, not because they were accomplices, but because they may themselves have been either the principal offender or knew the identity of the principal offender. It is clear from her reasons that the magistrate appreciated this fact and approached their evidence accordingly. It was not necessary to give
(Page 6)
- herself an accomplice direction. In some respects the case is similar to that of Cecez v The State of Western Australia [2007] WASCA 260. In respect of this ground of appeal, the magistrate was aware of the issue and approached it correctly. No miscarriage of justice or error of law is demonstrated. I would not uphold this ground of appeal.
Conclusion and orders
14 The appeal is allowed, the conviction set aside and the appellant remanded for retrial in the Magistrates Court.
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