Oakley v Drew
[2019] WASC 120
•16 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: OAKLEY -v- DREW [2019] WASC 120
CORAM: ALLANSON J
HEARD: 9 APRIL 2019
DELIVERED : 16 APRIL 2019
FILE NO/S: SJA 1006 of 2019
BETWEEN: REVEL FABIAN OAKLEY
Appellant
AND
GREGORY DREW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G RANDAZZO
File Number : JO 14535/2017, JO 14536/2017
Catchwords:
Criminal law - Appeal against conviction - Whether presumption of accuracy of scientific instruction applied - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 409
Result:
Extension of time to lodge appeal granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | H Glenister |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Bevan v The State of Western Australia [2010] WASCA 101
R v Magoulias [2003] NSWCCA 143
ALLANSON J:
On 21 November 2018, Mr Oakley was convicted after trial in the Magistrates Court at Joondalup of two charges of obtaining a benefit by fraud, contrary to s 409 of the Criminal Code 1913 (WA). The offences related to the use of a stolen credit card in a BP service station at Karrinyup. Mr Oakley was also charged with stealing property, including the credit card that was used. He was acquitted of stealing but convicted of receiving the property knowing that it was stolen.
Mr Oakley applied for leave to appeal from the two convictions for fraud on a single ground:
The learned magistrate erred by rejecting as unreliable the evidence of the timing of the transactions the subject of the charges … where there was no evidence that either of the electronic clocks that recorded those times was unreliable … This error foreclosed upon a reasonable hypothesis not consistent with the guilt of the appellant and thereby occasioned a substantial miscarriage of justice.
The appeal notice was filed on 24 January 2019, it was due on 1 January 2019. Mr Oakley applied to extend time. The application for an extension and the application for leave to appeal were referred to be heard with the appeal.
The delay is comparatively short and was sufficiently explained. Time will be extended.
The evidence
The witnesses
It was not in dispute that, between 6 December 2017 and 7 December 2017, a Bankwest Debit Mastercard and other items were stolen. On 7 December 2017, the Mastercard was used to perform two transactions:
(1)payment for a taxi ($26.25); and
(2)payment for items (ice cream and a drink) bought at the BP store ($17).
There was no dispute that both transactions were made using the stolen Mastercard. The question at trial was whether it had been proved that it was Mr Oakley who used the card. The defence was that it was his partner, Ms N, who made the two payments.
It was not in dispute that Mr Oakley ordered the taxi.
An employee from the BP service station was called. From photographs, he identified Ms N as the person who made the purchase. His evidence is confusing, as he also testified it was a man.
What happened within the service station was recorded on CCTV, but there was no copy of that recording available at the time of trial. Three police witnesses gave evidence of what they remembered from when they viewed the CCTV footage at about the time of the offences. A series of still photographs had also been taken from the CCTV and were tendered at trial.
The police witnesses were acquainted with Mr Oakley and were able to recognise him on the CCTV footage.
The first of the police witnesses, Sergeant MacCondruin, testified that he saw Mr Oakley purchase and take possession of the items and that Ms N only attended after the items had been purchased.[1] He said that Ms N got to within arm's reach of the counter, but at no stage did he see her 'use a card or attempt to use a card, or act as though she was attempting to purchase anything'.[2]
[1] ts 43.
[2] ts 44.
The second police witness, Senior Constable Woolfe, said that he saw Mr Oakley at the counter with the ice cream and drink, and saw him pay for them with a card. He then saw Ms N come into the store and then leave with Mr Oakley.[3]
[3] ts 50.
In cross-examination, Senior Constable Woolfe repeated that Ms N entered the store after Mr Oakley had made the purchases.[4] He agreed that it was possible Ms N approached the counter. He agreed that he could not be 100% sure that Ms N did not use the credit card, but said, 'Not that I saw'.[5]
[4] ts 54.
[5] ts 55.
The third police witness, Constable Kelly, recalled that he saw the cashier apparently dealing with Mr Oakley. Mr Oakley appeared to pay with a credit card, and then Ms N walked in and they left the store together.[6]
[6] ts 59.
In cross-examination, Constable Kelly agreed that Ms N was close enough to have leaned over and paid for the items, but said that he did not see her do that.[7]
[7] ts 61.
Ms N gave evidence for the defence. She testified that she took the Mastercard and other items from an unlocked car. She and Mr Oakley then called a taxi. Mr Oakley went into the service station while she paid for the taxi with the card. She went in and saw Mr Oakley standing at the counter counting coins to pay for the ice cream and the drink. She paid by tapping the card.
It was not in dispute that Mr Oakley and Ms N left in the taxi.
The documentary evidence
The evidence included:
(1)a witness statement and attached documents from an employee of Swan Taxis;[8] and
(2)the print out of a receipt from the service station which recorded the transaction in which the ice cream and drink were purchased.[9]
[8] Exhibit 2.
[9] Exhibit 5.
Relevantly, the documents from the taxi company showed the following times (all on 7 December 2017):
(1)04:58 the taxi was booked to pick up from an address in Duncraig, with a destination in Innaloo;
(2)05:05:14 meter on;
(3)05:13:41 meter off; and
(4)05:13:41 drop off.[10]
[10] Exhibit 2, appendix 1.
The job was recorded as lasting 8 minutes and 28 seconds from pickup, with 6.15 km travelled. The drop off was recorded as 'wide drop off 2.58 km away'.[11]
[11] Exhibit 2, appendix 1.
The BP receipt recorded the time of the transaction in the store as 05:14.[12]
[12] Exhibit 5.
The prosecution case
The prosecution case was that the same person made both payments with the same card. They submitted that Mr Oakley was the one in possession of the card and who used it in the store.
The defence case
The defence case was that Ms N made both payments. They submitted that the timing on the documents provided by Swan Taxi and the BP receipt showed that the payment to the taxi was made first, at about 05:13:41, and that Mr Oakley was in the store when that payment was made. On the defence case, the timing of the transactions showed that Ms N was in possession of the stolen card and it was her who made the payment to the taxi driver and in the store; or at least the timing raised a reasonable doubt about whether it was Mr Oakley who used the card.
The magistrate's findings
The learned magistrate gave oral reasons for his decision immediately after hearing final submissions. In setting out the facts, his Honour said:
It is also a fact beyond reasonable doubt that the accused entered the BP service station at Karrinyup some time around about 5.13 am on 7 December 2017. I pause here to make it clear why I express myself that way. There are different times, clock times in the documentary evidence before me. There is a lack of reliability in the evidence before me for me to be able to conclude what the accurate time was when, clearly, the accused entered the BP service station at Karrinyup. It is around about 5.13, on the evidence at least based upon the request for the taxi, as evidenced by the records kept by Swan Taxis, and that there was an eight-minute type adjournment - sorry, journey from around about 5.05.[13]
[13] ts 126.
Later, dealing with the transaction in the BP shop, his Honour said:
the evidence to be found in exhibit 5, the receipt that was produced by Mr Patel, if my memory serves me correctly, from the records kept by BP Karrinyup, evidences that at 5.14 am, according to at least the clock for that receipt that there was purchased ice cream for the value of $12 and what's described in that receipt as 'G Berry 600 millilitres' for $5, a total transaction of $17.[14]
[14] ts 128.
The magistrate did not accept Ms N as a reliable witness and rejected her evidence.[15] No complaint is made in this appeal about those findings.
[15] ts 134.
His Honour then said:
Having rejected her evidence, I need to still ask myself has the prosecution case proved beyond reasonable doubt that the accused committed the fraud, the gaining of the benefit initially at the BP service station to the value of $17, and later, on the prosecution case, of paying for the Swan Taxi fare of $26.25. I do not overlook that there is some issue in relation to the timing of the transaction at the BP service station vis-à-vis the transaction recorded in the Swan Taxi records. In my view, there is a lack of evidence here as to the reliability of those timings. I know nothing about how those clock times work for those documents. Of course, Mr Oakley has no onus of proof. He doesn't have to prove anything. It's for the prosecution to prove it, but I now turn to the other aspects of the evidence.[16]
[16] ts 134.
The magistrate accepted the evidence of what each officer saw when they reviewed the CCTV footage. His Honour found:
In my view, there is no doubt that each of those officers have said that they saw the CCTV footage. It was played to them. It was repeatedly played to them and that First Class Constable Woolfe took still photographs which I've seen. In my judgment, what those officers saw was the accused go to the counter. It was he who effected the transaction. It was he that was seen clearly by, particularly from my memory serves me correctly, Constable Woolfe who said, but also the other officer Constable Kelly that he swiped. He used what appeared to be a card, although they did not know which card it was, they could not discern that, to make the payment. I have no doubt that those officers saw that transaction effected before [Ms N], being impatient as it seems that she was, left the taxi to come into the store.[17]
[17] ts 135.
Accepting that evidence, the magistrate was satisfied that Mr Oakley paid for the items in the store.[18]
[18] ts 135.
His Honour made no express finding about when the taxi fare was paid, leaving open whether it was at the Karrinyup BP service station or at the end of the journey.[19]
[19] ts 136.
The appeal
On appeal, the appellant relied on the timing of the transactions, submitting that it was unlikely that Mr Oakley could have effected both transactions with the card within a minute, making it more likely that Ms N performed both transactions.[20]
[20] Appellant's written submissions [20].
In support of the single ground of appeal, the appellant submitted:
The learned Magistrate erred in both fact and law by finding that there was a lack of reliable evidence about the times recorded on the BP receipt and in the Taxi data (the Times).
The Times were the only evidence about the timing of the transactions. They were not controverted by each other or by the evidence of any of the witnesses. Indeed, none of the prosecution witnesses were able to, firstly, state the order the transactions were performed, and, secondly, state the time it took for the Appellant to enter the store and effect the transaction with any precision. There was no evidence to suggest the Times were unreliable.[21]
[21] Appellant's written submissions [52] - [53].
The appellant's written submissions were based on the argument that the clocks that recorded the Times are scientific instruments known to be reliable, and that there is a rebuttable presumption at common law as to their accuracy. The appellant submitted that the magistrate should have found that the times were accurate unless there was evidence which rebutted that presumption.[22]
[22] Citing Bevan v The State of Western Australia [2010] WASCA 101 [29] - [30].
The day before the hearing, counsel for the appellant became aware of, and drew the court's attention to, the decision of the New South Wales Court of Criminal Appeal in R v Magoulias.[23] That decision recognised, as a notorious matter of fact, that reliable clocks or timing devices may show slightly different times and that 'the timing of different clocks needs to be synchronised if pinpoint accuracy is required.'[24]
[23] R v Magoulias [2003] NSWCCA 143.
[24] R v Magoulias [2003] NSWCCA 143 [41].
R vMagoulias draws attention to a central flaw in the appellant's argument. The appellant relied on a presumption that may apply to the measurement of a thing by a scientific or technical instrument, including the measurement of time by a clock or other scientific instrument. But the court cannot, without more, presume that two instruments (in the present case, two instruments on different systems) have been set to the same time. The appellant was not only relying on clocks measuring time correctly, but on two different systems (BP and Swan Taxis) being synchronised.
In my opinion, the appellant's argument fails at another point. Even if the two systems were synchronised, the Swan Taxi records show only when the meter was turned off, not when the fare was paid. Common experience is that the meter is usually turned off just before the fare is paid at the end of the journey. But the evidence in this case is that the taxi remained at the BP station, and later took Mr Oakley and Ms N to another destination. If the meter was turned off at 05:13, the inference that would normally be drawn as to when the fare was paid is displaced by what then happened.
His Honour made no finding about when the taxi fare was paid. And the presumption of accuracy of a scientific instrument would not establish when that transaction occurred.
The appellant has not made out the sole ground on which he brought the appeal. I would grant leave to appeal, but dismiss the appeal.
The orders will be:
1.Time to file the notice of appeal is extended to 24 January 2019.
2.The appellant have leave to appeal, but the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson17 APRIL 2019
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