Monaghan v Ostrowski
[2001] WASCA 331
•30 OCTOBER 2001
MONAGHAN -v- OSTROWSKI [2001] WASCA 331
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 331 | |
| Case No: | SJA:1015/2001 | 8 AUGUST 2001 | |
| Coram: | WALLWORK J | 30/10/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions set aside Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | ANTHONY PATRICK MONAGHAN GEORGE PETER OSTROWSKI |
Catchwords: | Criminal law Trial by Magistrate Onus of proof Whether evidence evaluated in correct way |
Legislation: | Nil |
Case References: | Rodd v The Queen [2000] WASCA 329 Abalos v Australian Postal Commission (1990) 171 CLR 167 Coghlan v Cumberland (1989) 1 Ch 704 Devries v Australian National Railways Commission (1993) 177 CLR 472 Frichot v Zalmstra, unreported; SCt of WA; Library No 980291; 13 May 1998 Jones v Hyde (1985) 85 ALR 23 Lloyd v Faraone [1989] WAR 154 Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 Paterson v Paterson (1953) 89 CLR 212 Pettit v Dunkley (1971) 1 NSWLR 376 Powell v Streatham Manor Nursing Home [1935] AC 243 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Talbot v Lane [1994] WAR 120 Warren v Coombes (1979) 142 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MONAGHAN -v- OSTROWSKI [2001] WASCA 331 CORAM : WALLWORK J HEARD : 8 AUGUST 2001 DELIVERED : 30 OCTOBER 2001 FILE NO/S : SJA 1015 of 2001 BETWEEN : ANTHONY PATRICK MONAGHAN
- Appellant
AND
GEORGE PETER OSTROWSKI
Respondent
Catchwords:
Criminal law - Trial by Magistrate - Onus of proof - Whether evidence evaluated in correct way
Legislation:
Nil
Result:
Appeal allowed
Convictions set aside
Retrial ordered
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr D L Armstrong
Respondent : Mr B P King
Solicitors:
Appellant : Altorfer & Stow
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Rodd v The Queen [2000] WASCA 329
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Coghlan v Cumberland (1989) 1 Ch 704
Devries v Australian National Railways Commission (1993) 177 CLR 472
Frichot v Zalmstra, unreported; SCt of WA; Library No 980291; 13 May 1998
Jones v Hyde (1985) 85 ALR 23
Lloyd v Faraone [1989] WAR 154
Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Paterson v Paterson (1953) 89 CLR 212
Pettit v Dunkley (1971) 1 NSWLR 376
Powell v Streatham Manor Nursing Home [1935] AC 243
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Talbot v Lane [1994] WAR 120
Warren v Coombes (1979) 142 CLR 531
(Page 3)
1 WALLWORK J: On 16 January of this year the appellant was tried before a Magistrate on two charges of interfering with Mr Davidson's rock lobster pots without his authority, contrary to s 172B of the Fish Resources Management Act 1994. In the first charge the appellant was alleged to have pulled two of Mr Davidson's craypots, put the ropes and floats inside and then ordered the appellant's brother, who was his deckhand, to push the pots over the side, thereby sinking them without trace. The second charge alleged that on a later occasion the appellant had repeated the same actions with respect to another five pots belonging to Mr Davidson. Having heard the evidence the learned Magistrate convicted the appellant on both charges.
2 The appellant now appeals against the convictions on six grounds which assert, amongst other things, that the learned Magistrate convicted the appellant essentially on the evidence of his brother, Mr C J Monaghan, who was his deckhand. It is claimed that some of Mr C J Monaghan's evidence was inconsistent with facts incontrovertibly established by the evidence of Mr Davidson, the owner of the pots. It is further said that the learned Magistrate erred in finding that significant inconsistencies between the evidence of the owner of the pots, Mr Davidson, and Mr C J Monaghan, were due to a long lapse of time.
3 The evidence was that the alleged offences were committed in late March and May 1999. Mr Monaghan reported the matter to the Fisheries Department and gave a written statement on 29 June 1999.
4 It is further complained that the learned Magistrate erred in not saying why he had preferred the evidence of Mr C J Monaghan to that of the appellant.
5 There is no doubt that there were some significant inconsistencies between the evidence of Mr C J Monaghan and the evidence given by the owner of the missing pots, Mr Davidson. The learned Magistrate said that he accepted Mr Davidson's evidence that two pots were missing between 27 and 28 March 1999 and that there were five pots missing at the end of May 1999. He also stated that Mr C J Monaghan was an accomplice if any offence was committed by the appellant and that it was dangerous to convict in those circumstances without corroboration. His Worship said that the law does not say that a person cannot be convicted in those circumstances but that "one just simply has to be aware of the dangers involved and weigh up the evidence accordingly and consider whether the prosecution has made out its case beyond a reasonable doubt."
(Page 4)
6 The learned Magistrate accepted that there were considerable grievances between the appellant and his brother, Mr C J Monaghan. He accepted that Mr C J Monaghan appeared to be ill-willed towards the appellant and that feelings were not good between the appellant and Mr Davidson. However, his Worship said that malice or ill-will may not necessarily mean that a person is not telling the truth. It might inspire someone to go and tell the truth to the police for the purpose of getting someone into trouble.
7 It was common ground in this case that Mr C J Monaghan had attended at the Fisheries Department immediately after having been dismissed from his employment by the appellant. Mr Monaghan had then made various complaints concerning the appellant's conduct. The relevant charges had resulted from one of those complaints. The learned Magistrate accepted that the appellant had consistently denied committing the offences and also that the principal evidence implicating him was from his brother, Mr C J Monaghan.
8 The learned Magistrate said that counsel for the appellant had pointed out to him that there were inconsistencies in Mr C J Monaghan's evidence concerning his description of the relevant pots in that he had not mentioned a tag being on the pots, whereas Mr Davidson had said that his pots were tagged with a red and white tag. Also that Mr Monaghan had said that all the pots had been routed, whereas Mr Davidson had said that there had been no routing.
9 With respect, that discussion of the relevant inconsistencies understates the inconsistencies in Mr Monaghan's evidence with respect to the marking of the pots. Mr Monaghan had said in evidence that he had told the Fisheries that the relevant pots had been numbered G273. He had not told the Fisheries Department that any of the pots had the number G17. The number G273 was not the correct number, according to Mr Davidson who said that the first two pots should have been numbered G17, but there was a possibility that they might have been G273. However, as far as he was concerned the two missing pots in March should have been numbered G17. Also, the five missing pots in May should have been numbered G17. There might have been one with G273, but they weren't all G273. In explanation he said that his deckies might have grabbed one of the pots that had G273 on it from a stack of spare pots. The learned Magistrate said "There is a mention of the number G273 as a number of at least some of the pots by Mr Christopher Monaghan". Mr Monaghan had told the Fisheries Department in his first statement that all the pots had been numbered G273.
(Page 5)
10 It was properly conceded by counsel for the prosecution in his closing address before the learned Magistrate that it was probably the case "that when Mr Christopher Monaghan gives evidence that all of the pots had G273 on them, that he was wrong about that. I think I can safely say, he is probably wrong about that." Counsel made the point, however, that Mr Davidson had said he could not say with certainty that all the pots had G17 on them, because pots get mixed around. It was submitted that the inconsistencies in Mr Monaghan's evidence were understandable and could not be explained other than as being truthful accounts.
11 Another significant inconsistency in the evidence was that Mr Monaghan had said that all the pots that he had pushed over the side had been routed. He had told the Fisheries that as far as the brands on the pots were concerned, they were routed in. Mr Davidson said there had been no routing.
12 Mr Davidson said that his pots had been tagged with a red and white tag. Mr C Monaghan said that there was not a plastic tag and there was not a red and white plastic tag nailed to the pots. He qualified that by saying that he did not remember seeing a tag.
13 Having discussed some of the inconsistencies in the evidence, the learned Magistrate went on to say:
"However, there are some general areas of agreement between the evidence of Mr Davidson and that of Christopher Monaghan".
14 His Worship referred to a general similarity concerning the dates on which the alleged offence had occurred. Again there were differences in the evidence insofar as Mr Davidson had said that the first two pots had gone by 28 March, whereas Mr Monaghan said that he thought it was 29 March when the first two pots were dumped, although he said he could not say he was 100 per cent sure about the date.
15 There are other alleged inconsistencies in the evidence which I do not think are important in the general scheme of this case. But what in my view is important is the way the learned Magistrate approached the evidence, bearing in mind the inconsistencies referred to above.
16 At the commencement of his reasons for judgment the learned Magistrate made the point that the onus of proof was on the prosecution to prove each element of the offence beyond a reasonable doubt. A little further on in his reasons the learned Magistrate said:
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- "As I have indicated to Counsel during the hearing, it would appear to me that essentially this comes down to an issue of credibility between the evidence of the defendant and that of his brother."
17 At the conclusion of his reasons his Worship said:
"I prefer the evidence of Mr Christopher Monaghan notwithstanding the ill-will that he had to his brother. The consistencies in relation to dates between Mr Christopher Monaghan and Mr Davidson are the consistencies that I have referred to earlier; the spontaneous nature of his report, the fact that he was prepared to implicate himself - persuades me that he is a witness of truth and that his evidence is to be preferred. I find both charges proved."
18 It can be seen that the learned Magistrate firstly said that essentially the case came down on an issue of credibility between the evidence of the appellant and that of his brother. He concluded his reasons by saying that certain things persuaded him that Mr Monaghan was a witness of truth and that his evidence was to be preferred.
19 I am aware that reasons for judgment in busy Courts should not be looked at too critically, particularly when they are given at the end of a hearing as there were. However, in all prosecutions the approach of the Judicial Officer to the weighing of the evidence is most important. In this case the convictions have grave consequences for the appellant insofar as he has been given notice that his fishing licence will be suspended for 12 months.
20 In my opinion it is an error to say at the end of any prosecution, that it essentially comes down to an issue of credibility between the evidence of two witnesses; also that a person should be convicted where a witness' evidence "is to be preferred" to his. They are not the correct tests. There are always at least three possibilities - that the charge has been proved beyond a reasonable doubt; that there is a reasonable doubt or that the defendant is positively believed.
21 I realise in this case that the learned Magistrate said more insofar as he said that M C Monaghan's evidence "persuades me that he is a witness of truth and that his evidence is to be preferred" and that his Worship had earlier reminded himself that each element of the offence was to be proved beyond a reasonable doubt. However, in my view there is an additional problem in that it is not clear from all the reasons of the learned
(Page 7)
- Magistrate why it was that Mr Monaghan's evidence should have been preferred to that of the appellant. In some important instances Mr Monaghan's evidence was clearly wrong, in particular, with reference to the numbers and the markings on the pots concerned. That was a vital part of the evidence because they were pots belonging to Mr Davidson which the appellant was alleged to have destroyed.
22 I realise that there are consistencies in Mr Monaghan's evidence and that these consistencies are significant. However, that could be due perhaps to the circumstances in which the pots were lost. The parties were all living on an island off the Western Australian coast. No doubt Mr Davidson may have spread it around that he had lost the seven pots concerned. It is known that he made a written report to the Fisheries Department after the five pots disappeared. Perhaps those facts could have been known to other persons including Mr Monaghan. Also it was common ground that there was much ill-will between Mr Monaghan and his brother, the appellant, particularly after Mr Monaghan had been dismissed from his employment by the appellant.
23 The learned Magistrate said that he was impressed by the fact that Mr Monaghan's report to the Fisheries had seemed to be spontaneous after the argument which had occurred between him and the appellant. However, a counter to that proposition might be there had been ill-will between Mr Monaghan and his brother for some time and that prior to these alleged offences, there had been legal disputes within the family involving Mr C Monaghan. It was a possibility, although I am not attempting to suggest that it is the correct explanation, that Mr Monaghan could have used the disappearance of Mr Davidson's pots to lay a complaint against the appellant. That is one possibility.
24 Where there are alternative possibilities it is vital that the evidence for the prosecution be approached in such a way that a Judicial Officer is persuaded that the charges had been proved beyond a reasonable doubt before a conviction results. That may not be the position where it is not clear that a Judicial Officer has not decided a prosecution on the basis "that essentially this comes down to an issue of credibility between the evidence of the defendant than that of his brother".
25 In Rodd v The Queen [2000] WASCA 329, Ipp and Owen JJ said:
"18 The central issue in the trial was whether the complainant had consented to the sexual activity. That, in turn, required an assessment of the credibility and reliability of
(Page 8)
- the testimony given by the complainant and the appellant. This is what is sometimes referred to as an 'oath against oath' case. The complaint of the appellant is that the trial Judge's summing up may have left the jury with an impression that they should determine the issue simply on the basis of whose evidence they preferred. Counsel for the appellant submitted that this was a case where the trial Judge should have told the jury that even if they positively disbelieved the appellant they would still need to decide whether the complainant's evidence was sufficient to give rise to a reasonable doubt.
- 19 In Liberato Brennan J said, at 515:
'When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues on which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.'
20 It would be trite to say that it is not necessary, in order to comply with this requirement, that the direction must laboriously follow, word for word, the formulation contained in Brennan J's dicta. What is necessary is a direction that will remove any 'significant possibility that … [the] jury has convicted on the basis of a choice between the Crown and defence witnesses, as distinct from being satisfied beyond reasonable doubt of the
(Page 9)
- ingredients of the charge against the accused': Liberato per Deane J at 520."
26 Applying the above principles to this case, it is my view that error has been established. In all the circumstances it is not clear exactly how the learned Magistrate approached the weighing of the evidence in this case. The appeal should therefore be allowed, the convictions set aside and the matter returned to a Court of Petty Sessions to be tried again.
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