Palmer v Lacco
[2013] WASC 236
•19 JUNE 2013
PALMER -v- LACCO [2013] WASC 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 236 | |
| Case No: | SJA:1024/2013 | 21 MAY 2013 | |
| Coram: | CORBOY J | 19/06/13 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed New trial ordered | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANDREW PALMER ALLON MITCHELL LACCO |
Catchwords: | Criminal law Stealing a motor vehicle Appeal against finding that the respondent had no case to answer Whether admissions made for the purpose of s 32 Evidence Act 1906 (WA) Whether magistrate's reasons sufficient |
Legislation: | Criminal Code (WA), s 371A, s 378 Evidence Act 1906 (WA), s 32 |
Case References: | The State of Western Australia v Burke [2011] WASCA 190 Bennett v Carruthers [2010] WASC 5 Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 Director of Public Prosecutions v Ali [2009] VSCA 162; (2009) 23 VR 203 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Heijne v The State of Western Australia [2010] WASCA 86 Hodder v Ball [2012] WASC 350 Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Mountford v Magistrates Court of South Australia [2006] SASC 184; (2006) 95 SASR 103 R v Lennard [1973] 1 WLR 483; [1973] 2 All ER 831 R v Pollard [1962] QWN 13 Robinson v Hart [2005] WASC 268 Smart v Pepper (1987) 26 A Crim R 140 Stubley v The State of Western Australia [2010] WASCA 36 Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 Tey v Lewis [2012] WASCA 174 The State of Western Australia v Wood [2008] WASCA 81 Williams v The Queen [1982] WAR 277 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ALLON MITCHELL LACCO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE CAMPIONE
File No : PE 30758 of 2012
Catchwords:
Criminal law - Stealing a motor vehicle - Appeal against finding that the respondent had no case to answer - Whether admissions made for the purpose of s 32 Evidence Act 1906 (WA) - Whether magistrate's reasons sufficient
(Page 2)
Legislation:
Criminal Code (WA), s 371A, s 378
Evidence Act 1906 (WA), s 32
Result:
Appeal allowed
New trial ordered
Category: B
Representation:
Counsel:
Appellant : Ms S Linton
Respondent : In person
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : In person
Case(s) referred to in judgment(s):
The State of Western Australia v Burke [2011] WASCA 190
Bennett v Carruthers [2010] WASC 5
Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343
Director of Public Prosecutions v Ali [2009] VSCA 162; (2009) 23 VR 203
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Heijne v The State of Western Australia [2010] WASCA 86
Hodder v Ball [2012] WASC 350
Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
(Page 3)
Mountford v Magistrates Court of South Australia [2006] SASC 184; (2006) 95 SASR 103
R v Lennard [1973] 1 WLR 483; [1973] 2 All ER 831
R v Pollard [1962] QWN 13
Robinson v Hart [2005] WASC 268
Smart v Pepper (1987) 26 A Crim R 140
Stubley v The State of Western Australia [2010] WASCA 36
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Tey v Lewis [2012] WASCA 174
The State of Western Australia v Wood [2008] WASCA 81
Williams v The Queen [1982] WAR 277
(Page 4)
- CORBOY J:
The appeal and the result
1 The respondent was charged with an offence under s 378(2)(a) of the Criminal Code: that on 17 June 2012, in Thornlie, he stole a Holden Commodore sedan, registration number BSN-409E, the property of Lisa Marie Featherstone and, on that date, he wilfully drove that vehicle in a manner that constituted reckless driving under s 60 of the Road Traffic Act 1974 (WA).
2 The charge was heard in the Perth Magistrates Court on 23 January 2013 (together with two related charges). The learned magistrate held at the conclusion of the prosecution case that the respondent had no case to answer and dismissed the charge. The appellant appeals from that decision.
3 The appeal notice initially proposed only one ground of appeal:
The learned Magistrate erred in law in finding that the respondent had no case to answer at the close of the prosecution case as, taken at its highest, there was sufficient evidence to establish each of the elements of ss 371A and 378(2)(a) of the Criminal Code to the requisite standard.
4 On 12 April 2013, Hall J directed that the appellant's application for leave to appeal on that ground be heard at the same time as the appeal.
5 The appellant subsequently sought to amend his appeal notice in light of issues that emerged during the hearing of the appeal. He sought to add two grounds:
(a) the failure of the learned trial magistrate to require the respondent to precisely identify the admissions made by him pursuant to s 32 of the Evidence Act 1906 (WA) at the commencement of the trial resulted in a miscarriage of justice;
(b) the reasons given by the learned magistrate for her decision:
(i) that the prosecution had not established a case to answer: and
(ii) to subsequently acquit the respondent in relation to the charge, were so inadequate and insufficient to disclose the reasoning behind her decision as to give rise to a miscarriage of justice.
(Page 5)
6 The respondent did not oppose the appellant's application to amend his appeal notice and leave to amend was granted. I have concluded that:
(a) the appellant should be given leave to appeal in respect of each ground proposed in the notice of appeal;
(b) the appeal should be allowed.
The offence
7 Section 378 of the Criminal Code provides that 'any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years'. Section 378(2)(a) provides for a circumstance aggravating punishment - the offender is liable for imprisonment for 8 years if the thing stolen is a motor vehicle and the offender wilfully drives the vehicle in a manner that constitutes an offence under s 60 of the Road Traffic Act. Section 371A of the Criminal Code further provides that 'a person who unlawfully uses a motor vehicle, or takes a motor vehicle for the purpose of using it, or drives or otherwise assumes control of a motor vehicle without the consent of the owner or the person in charge of that motor vehicle, is said to steal the vehicle'.
8 The prosecution is required by s 378 of the Code, read with s 371A, to prove the following matters:
(a) the accused -
(i) used a motor vehicle; or
(ii) took the vehicle for the purpose of using it; or
(iii) drove the vehicle; or
(iv) assumed control of the vehicle;
(b) the accused used or took or drove or assumed control of the vehicle without the consent of the owner or the person in charge of the vehicle.
9 The meaning of the word 'unlawful', for the purpose of s 371A, was considered by Simmonds J in Robinson v Hart [2005] WASC 268. So far as is relevant, his Honour held that:
(a) Section 371A did not import a mental element; in particular, it did not require the prosecution to prove that the accused had
- 'knowledge of all the other elements of the s 371A offence, including that the relevant dealing with the vehicle was without the owner's consent' [21] - [23].
- (b) Section 371 defines stealing as a fraudulent taking or a fraudulent conversion of anything capable of being stolen. Section 371 and s 371A are parallel provisions. They each define particular conduct by which a person is 'said to steal' something. Consequently, his Honour held that this 'parallelism leads me to conclude that the legislative intention was to confirm the equivalence of the s 371A conduct in the circumstances specified, where criminal responsibility for that conduct was not excused (such as by s 22 or s 24), with the conduct engaged in "fraudulently" in s 371' [28].
(c) That interpretation was supported by observations made by Griffiths CJ in Lyons v Smart [1908] HCA 34; (1908) 6 CLR 143, 147 - 148 concerning the meaning of 'unlawful' when used in statutory provisions creating offences and by the policy underpinning s 371A [29] - [32].
10 As I understand his reasons, Simmonds J was concerned to emphasise that the word 'unlawfully' in s 371A did not add an element to the offence created by s 378 where the thing taken or used was a motor vehicle. His Honour concluded at [32], 'it does not seem to me that it would promote the purpose or object underlying s 371A to construe it to require the prosecution to prove that the relevant conduct in the relevant circumstances was also such as to be contrary to law otherwise' (emphasis added). That is, a person is said to steal a motor vehicle for the purpose of s 378 if, for example, they use the vehicle without the consent of the owner. It is not necessary for the prosecution to prove that the accused also contravened another law in using the vehicle without the owner's consent. This, I think, explains the reference to Lyons v Smart in his Honour's reasons: 'unlawfully' in s 371A simply indicates that the conduct identified in the section - the use etc of a motor vehicle without the consent of the owner - is conduct that is wrongful in itself.
11 The effect of that interpretation is that the elements of the offence created by s 378 where the thing taken or used is a motor vehicle are as set out earlier in this section of the reasons - the word 'unlawful' does not add an element that the prosecution must prove.
(Page 7)
12 Obviously, the provisions of ch V of the Code such honest claim of right (s 22), mistake of fact (s 24), emergency (s 25) and duress (s 32) apply to the offence created by s 378, read with s 371A. An accused might not be criminally responsible for driving a vehicle without the owner's consent because, for example, he or she acted in the exercise of an honest claim (see R v Pollard [1962] QWN 13).
The trial and the issues in the appeal
Ms Featherstone's evidence
13 The charge alleged that the respondent had stolen a vehicle (the Vehicle) that was the property of Lisa Marie Featherstone. The prosecution case was that the Vehicle had been stolen from an address in Busselton a week before the respondent was alleged to have committed the offence. It was not said that the respondent had been involved in the theft of the Vehicle in Busselton. Rather, it was alleged that he had unlawfully driven the Vehicle in Thornlie on the date specified in the charge without Ms Featherstone's consent; that is, that he had stolen the Vehicle, contrary to s 378 of the Code by reason of s 371A.
14 The respondent represented himself at trial. It was proposed Ms Featherstone would give her evidence by video link. However, the prosecutor stated at the commencement of the trial that he had 'spoken to [the respondent] and that [the respondent] is prepared to concede that he didn't have the consent of the owner, Featherstone, to drive that vehicle on the day alleged'. The respondent would have admitted the elements of the offence created by s 378, read with s 371A, by making a concession in the terms stated by the prosecutor except for one matter - that he drove the Vehicle on the day alleged by the charge; that Ms Featherstone was the owner of the Vehicle and that he did not have her consent to drive the Vehicle. The only matter that the prosecution would have been required to prove was that the respondent had driven the Vehicle unlawfully.
15 The learned magistrate sought to clarify whether the respondent was willing to make the concession identified by the prosecutor. She asked the respondent (ts 3):
So, Mr Lacco, Ms Featherstone is allegedly the owner of the vehicle, so she would be called to establish ownership and that you did not have her permission to take or use the vehicle, so if you concede that, then we don't need to call her? Is that right?
16 The respondent replied, '[i]n conceding, in all honesty I didn't know the car was stolen so - - -'.
(Page 8)
17 The learned magistrate indicated that it was a matter for the respondent, but her Honour 'just want[ed] your concessions to be on the record in court' (ts 3). The respondent replied, 'Yeah, but in saying that, I didn't - she didn't consent to me driving the car. Does that coincide with me not knowing it was stolen?' The learned magistrate replied, 'They're two separate issues' (ts 3 - 4).
18 There was a further exchange during which the respondent stated, 'Yeah, well, I'm acting under a false belief,' and the learned magistrate said, 'So you concede she was the owner and you concede that you didn't have her permission to use the car?' The respondent replied to that question, 'Yeah, and further that I didn't steal it'.
19 The respondent then raised a query as to why the police had not questioned Ms Featherstone's boyfriend. The relevance of that query was not immediately apparent and the learned magistrate stated, 'Well, let's just stick with Featherstone, all right.' The following exchange then occurred (ts 5):
LACCO, MR: No, no, no, why wasn't a statement taken in relation to the boyfriend?
HER HONOUR: All right. We will just call Featherstone, all right.
LACCO, MR: I concede, I concede, yeah, she owns the car.
HER HONOUR: All right. Just have a seat for the moment. So Featherstone is now conceded. Yes, sergeant?
20 The prosecutor then clarified that the respondent was not alleged to have stolen the Vehicle in Busselton and Ms Featherstone's evidence would not have suggested that he had been involved in that theft. It was apparent from the charge that the prosecution intended to rely on s 371A of the Code. Accordingly, the prosecutor's clarification was consistent with the charge.
The prosecution evidence
21 The prosecutor first called a relative of the respondent, Michael Tapper. It was anticipated that Mr Tapper would give evidence to the effect that he had been in the Vehicle at the time that it had been driven by the respondent. However, Mr Tapper claimed during his evidence-in-chief that he was unable to recall the relevant events as he had been on 'a lot of drugs' at the time (ts 13). The prosecutor's attempts to elicit further evidence from Mr Tapper resulted in parts of a witness
(Page 9)
- statement being read into evidence in a way that was impermissible. Consequently, the appellant did not seek to rely on any part of Mr Tapper's evidence for the purpose of the appeal. However, it is relevant to note the following exchange that occurred in the course of the cross-examination of Mr Tapper (ts 23):
LACCO, MR: At any time did you see Terrance with a firearm? --- Yeah.
HER HONOUR: How is this relevant though, Mr Lacco?
LACCO, MR: I'm saying I acted under duress. I drove the car, yeah.
HER HONOUR: I see.
LACCO, MR: I drove the car.
HER HONOUR: All right. It's relevant on that basis.
LACCO, MR: Yeah.
HER HONOUR: I didn't understand that.
23 The prosecutor then called the following police officers: Sergeant Fleskens; Senior Constable Fitzgerald; Constable Gravenall; Detective Sergeant Surman; and Constable Mann.
24 Senior Constable Fitzgerald stated that he had observed the Vehicle parked outside a residence in Thornlie as he drove by at about 3.30 pm on 17 June 2012. A check indicated that the Vehicle had been reported as stolen. He made a U-turn in his vehicle. The Vehicle commenced driving towards him at about the same time as he completed the U-turn.
25 Senior Constable Fitzgerald then followed the Vehicle through Thornlie until the Vehicle was involved in an accident. The driver and a passenger left the Vehicle following the accident and ran into the grounds of a TAFE college. The respondent was apprehended within the college grounds.
26 Senior Constable Fitzgerald was cross-examined in a way that made it clear that the respondent accepted that he had driven the Vehicle on the date alleged in the charge. The effect of the cross-examination was to
(Page 10)
- dispute aspects of Senior Constable Fitzgerald's evidence about the manner in which the Vehicle had been driven. Towards the end of cross-examination, Senior Constable Fitzgerald was asked, 'If it's the car perceived as stolen, do you automatically then assume I must have stole it for me to be driving it, for you to make the statement that you're under arrest for stealing a motor vehicle?' Senior Constable Fitzgerald replied, 'Yeah, under suspicion. It's only suspicion at that time. Until you - until you're charged with it, it's just suspicion' (ts 59).
27 Sergeant Fleskens gave evidence that he attended the site of the accident in which the Vehicle had been involved. He arrested the respondent on suspicion of stealing the Vehicle and reckless driving. In cross-examination, he was only asked whether any ammunition had been located in the Vehicle following the respondent's arrest. He could not recall that any ammunition was located in the Vehicle. Senior Constable Fitzgerald was also questioned by the respondent about whether any ammunition had been located in a bag that had also been searched. He stated that he did not think that what had been found was ammunition - 'it's more pellets … like ball bearings' (ts 59). He did not know whether the pellets could be fired from a gun.
28 Constable Gravenall gave evidence that he was on patrol during the afternoon of 17 June 2012. He saw a police vehicle driven by Senior Constable Fitzgerald; the police vehicle was following another vehicle (that is, the Vehicle). He commenced following the two vehicles.
29 Constable Gravenall then gave evidence of where and how the Vehicle was driven. He was cross-examined about aspects of his evidence about the manner in which the Vehicle had been driven.
30 Detective Sergeant Surman stated that he had spoken to the respondent at about 12.30 am on Monday, 18 June 2012 - that is, after the respondent had been arrested. He had asked whether the respondent wished to participate in an audiovisual record of interview. The respondent had declined.
31 Detective Sergeant Surman stated that he had subsequently spoken with the respondent when a meal had been provided. He alleged that the respondent had indicated to him that he was aware that the Vehicle had been stolen but that he had not been responsible for its theft. The learned magistrate then intervened, stating that there was an issue about the admissibility of the evidence. The prosecutor stated he could take the matter no further and asked no further questions.
(Page 11)
32 The respondent then cross-examined Detective Sergeant Surman and, in the course of doing so, asked a question that was intended to contest the evidence that the respondent had stated that he knew that the Vehicle had been stolen. The learned magistrate intervened again, stating, 'You don't need to answer that because I have already excluded that evidence' (ts 73).
33 The prosecutor sought to close the appellant's case after the evidence of Detective Sergeant Surman had been completed. However, the respondent indicated that he wished to cross-examine Constable Mann. After some discussion, the prosecutor called Constable Mann and made her available for cross-examination.
34 Constable Mann gave evidence that she had accompanied Senior Constable Fitzgerald in the police vehicle that followed the Vehicle. She stated that she was 'amazed' by the respondent's driving and identified various reasons for her amazement. Obviously, those matters went to the issue of whether the Vehicle had been driven in a reckless manner.
The learned magistrate's ruling: no case to answer
35 The learned magistrate addressed the prosecutor at the conclusion of Constable Mann's evidence, stating '[s]o sergeant, if the accused was represented by a lawyer, I suspect they would be making a no case submission to me on the charge of stealing a motor vehicle and driving recklessly'. Her Honour then observed that the evidence relating to reckless driving had been 'somewhat limited' until the testimony of Constable Mann. That evidence had satisfied her that there was a case to answer in relation to driving the Vehicle recklessly, but her Honour continued '[s]o do you want to make any submissions in relation to the steal motor vehicle charge in case there's something that I missed' (ts 85).
36 The prosecutor responded by referring to the possible defence of duress, stating '[i]t would probably be our only submission that a rejection of the defence of duress and what comes out of cross-examination should the accused give evidence, may lead to an inference of knowledge' (ts 85). The learned magistrate replied to that submission by observing that the prosecution could not split its case. Her Honour then ruled as follows:
… in fairness I feel the prosecution were relying on the evidence of the detective sergeant in relation to admissions, so charge 30758, I rule that there's no case to answer and accordingly I enter an acquittal (ts 85).
37 The reference to the 'evidence of the detective sergeant in relation to admissions' was obviously a reference to Detective Sergeant Surman and the evidence of his alleged conversation with the respondent that the
(Page 12)
- learned magistrate had ruled was inadmissible. That evidence did not directly concern any possible 'defence' of duress. It did, however, relate to the issue that had been raised by the respondent at the commencement of the trial - whether he had known that the Vehicle had been stolen.
Proposed ground 1
38 The appellant contends by proposed ground 1 of his notice of appeal that the learned magistrate erred as, in summary:
(a) the concessions made by the respondent at the commencement of the trial were 'effectively' taken by the learned magistrate as admissions within the meaning and for the purpose of s 32 of the Evidence Act 1906 (WA);
(b) the learned magistrate did not take into account any 'admission' that may have been made by the respondent at the commencement of the trial in ruling that there was no case for the respondent to answer;
(c) the admissions made by the respondent were admissions to each element of the offence, except for the question of unlawfulness;
(d) the respondent had not raised, in the course of the prosecution case, any matter that raised a reasonable inference that the respondent's conduct was excused by law.
39 It is to be noted that appellant's submissions assumed that the learned magistrate had overlooked the concessions made by the respondent at the commencement of the trial and that those concessions took effect as admissions made under s 32 of the Evidence Act.
40 It is convenient to defer further discussion of this proposed ground until the other proposed grounds of appeal have been considered.
Proposed ground 2
Section 32 Evidence Act
41 Section 32 of the Evidence Act provides that:
An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.
(Page 13)
42 The section does not prescribe any particular procedure to be adopted in making admissions. The absence of a prescribed procedure has been the subject of comment. In The State of Western Australia v Wood [2008] WASCA 81, Steytler P observed that cases on analogous statutory provisions revealed that it was 'desirable that the admission be made in specific terms … and that it be made in such a way that a clear record is made of its terms' [25]. Pullin JA noted that authorities cautioning that admissions should 'appear clearly on the record' were undoubtedly correct [36].
43 In Stubley v The State of Western Australia [2010] WASCA 36; and on further appeal, Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374, counsel for the accused had informed the jury during an opening statement that the accused would make certain admissions. The admissions were identified and counsel continued, 'I hope by making those admissions, I haven't done it in a formal way but certainly that's going to be the issue at this trial'. No reference was made to s 32 of the Evidence Act.
44 The plurality in the High Court (Gummow, Crennan, Kiefel and Bell JJ) drew a distinction between 'formal admissions' that could not be contradicted by evidence and 'informal' admissions made by an accused prior to trial and received by way of an exception to the rule against hearsay [89]. Informal admissions could be contradicted and were not binding; they could be withdrawn. Their Honours continued at [90]:
A legislative provision of this kind, relieving the prosecution of the need to offer proof of a particular fact, is a dramatic inroad on the common law. For that reason, while s 32 does not in terms stipulate any formal requirements, on its true construction the admissions must be specific and clear.
45 Reference was then made to what Grove J considered in Smart v Pepper (1987) 26 A Crim R 140 to be a prudent practice in relation to receiving admissions under a similar provision in the Crimes Act 1900 (NSW). The point of the practice was to ensure that admissions were made with clarity and that they appeared plainly from the court's record. Their Honours noted that a similar concern for precision had been expressed by the English Court of Appeal in R v Lennard [1973] 1 WLR 483; [1973] 2 All ER 831. They cited a passage from the decision in that appeal in which it was said, among other things, that an admission could not be made unless there had been an intent to do so; that is, a formal admission had to be 'formally and deliberately made'.
(Page 14)
46 Heydon J cited in his reasons the following passage from the judgment of Pullin JA in Stubley (at [110]):
As Steytler P (Pullin and Miller JJA agreeing) said in The State of Western Australia v Wood [2008] WASCA 81 [25], s 32 …does not prescribe 'procedure for making statutory admissions but the cases reveal that [it] is desirable that the admissions be made in specific terms' and cited authority that such admissions should not be made 'casually'. It is necessary to say that senior counsel adopted an off-hand and casual approach to making the admissions in this case. There seems to be an unfortunate tendency for some counsel appearing in criminal trials to adopt this cavalier approach … In my opinion, trial judges should demand greater formality, deliberation and precision when admissions are made.
47 His Honour observed that, '[t]he adjectives used by Pullin JA were just' if counsel had intended by his opening statement to make admissions for the purpose of s 32 of the Evidence Act [103]. However, Heydon J concluded that no admission had been made for the purpose of that section. His Honour stated:
That is so substantially for the reasons given by Pullin JA in reliance on Western Australia v Wood. Counsel's statement was too vague. It was not clear enough. It was not formal enough. It did not relate to what Hoffmann called 'uncontroversial and uncomplicated' facts, but to facts integrally tied up with controverted and complicated questions of consent. An admission under s 32 would debar the prosecution from calling any evidence about what actually happened on each occasion apart from evidence going to the consent issues: if counsel's opening address was to have this radical effect, more was required from it. It was totally lacking in the concreteness and verisimilitude which testimony could convey [106].
48 I raised a concern at the hearing of the appeal that the 'admissions' that the appellant contended had been made by the respondent at the commencement of the trial pursuant to s 32 of the Evidence Act may not have been recorded with the clarity required during the exchange that had occurred between the learned magistrate, the prosecutor and the respondent. That exchange had culminated in her Honour's observation that it was not necessary for Ms Featherstone to be called as a witness. The learned magistrate did not refer to s 32, although reference was made to getting the respondent's 'concessions' on the 'court's record'.
49 Viewed from the respondent's perspective, there was no explanation provided about the effect of making 'concessions' if they were received as admissions under s 32. That might have been a ground for complaint by the respondent had he been convicted - he was not represented and the
(Page 15)
- concessions identified by the prosecutor concerned all of the elements of the offence apart from whether he was driving the Vehicle on the day alleged in the charge (and the prosecutor's statement to the learned magistrate implied that the respondent was prepared to make a concession to that effect). Further, it was not clear that the respondent intended to make, with the deliberation required, formal admissions. That was particularly as the exchange with the learned magistrate was in the context of whether the prosecution was required to call Ms Featherstone. Finally, there may have some uncertainty as to the extent of the admissions made and/or intended to be made by the respondent. At one point, the respondent stated that Ms Featherstone did not consent to him driving the Vehicle but the exchange concluded with learned magistrate stating that 'we will just call Featherstone' and the respondent replying 'I concede, I concede, yeah, she owns the car'.
50 On the other hand, the prosecutor had identified at the outset those matters that he had intended to prove by calling Ms Featherstone - that she was the owner of the Vehicle and that the respondent did not have her consent to 'drive the vehicle on the day alleged'. He was, in my view, entitled to assume that the learned magistrate had accepted that the respondent had formally admitted those matters that he had anticipated could be proved by evidence to be given by Ms Featherstone.
Proposed ground 3
51 Proposed ground 3 alleges that a miscarriage of justice occurred as a result of the learned magistrate's failure to provide sufficient reasons to explain her decision to dismiss the charge on the ground that the respondent had no case to answer.
52 In Bennett v Carruthers [2010] WASC 5, Hall J summarised the principles relevant to the obligation of a magistrate to deliver reasons for a decision having regard to s 31 of the Magistrates Court Act 2004 (WA). I gratefully adopt his Honour's summary and note the following principles that are, in my view, relevant to the proposed ground of appeal:
(a) A court is ordinarily required to give reasons for its decisions. This is a normal, though not universal, incident of the judicial process. A failure to give adequate reasons will constitute an error of law where the court is required to give reasons: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273; Director of Public Prosecutions (Vic) v Ali [2009] VSCA 162; (2009) 23 VR 203.
(Page 16)
- (b) What constitutes adequate reasons will depend on the circumstances of the case. However, where there is a right of appeal, the reasons must be sufficient to give effect to that right: Mount Lawley [27]. The reasons must be sufficient to disclose the basis of a decision to the parties (to enable them to exercise their right of appeal) and to the appellate court. Consequently, reasons will generally be regarded as inadequate if they frustrate a right of appeal. They will also be regarded as inadequate if they are such that justice is not seen to be done: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [783] (Owen J).
(c) Nevertheless, a failure to provide adequate reasons will not necessarily result in an appealable error; an appeal court will only intervene when no reasons have been given in circumstances in which they are required or when the inadequacy is such as to give rise to a miscarriage of justice: Mount Lawley [29]. See also the reference to s 14 of the Criminal Appeals Act 2004 (WA) immediately below.
(d) The principles governing the obligation of a judicial officer to give adequate reasons apply to courts exercising summary jurisdiction: Garrett [73].
(e) There is authority that suggests that a trial judge in a jury trial should not give reasons on a no case submission, at least where the submission is rejected: Williams v The Queen [1982] WAR 277, and see the comments of Perry J in Mountford v Magistrates Court of South Australia [2006] SASC 184; (2006) 95 SASR 103 [98]. However, in my view, different considerations apply where:
(i) the submission is upheld - the decision determines the outcome of the charge and puts an end to the prosecution; and
(ii) the complainant is entitled to appeal from the dismissal of the charge.
(f) Reasons do not have to be lengthy or elaborate, but they must disclose the intellectual process that has resulted in the decision: Garrett v Nicholson; Tey v Lewis [2012] WASCA 174 [16]. A judgment given extempore in a busy Magistrates Court should not be 'picked over' and 'appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them': Director of Public Prosecutions
- (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 [15] and see Hodder v Ball [2012] WASC 350 [40] (Hall J) and Bennett v Carruthers [12] - [21] (Hall J). A magistrate is not required to canvass every possibility but the particular pathway that was taken to the decision must be disclosed.
- (g) There may be circumstances in which the reasons for a decision are sufficiently apparent from what was said by the presiding judicial officer in argument. However, the court should give explicit reasons where reasons are required; an unsuccessful party and an appellate court should not be left to glean the reasons from exchanges between the bench and the bar table: Tey v Lewis [16]; Director of Public Prosecutions (NSW) v Elias[2013] NSWSC 28 [19].
53 It was not clear from the exchange between the learned magistrate and the prosecutor and the brief reasons given for dismissing the charge whether:
(a) her Honour had, at the end of a long and undoubtedly difficult day, overlooked the concessions made by the respondent at the commencement of the trial as the appellant contends; or
(b) her Honour had considered that the appellant was required to prove, as an element of the offence, that the respondent had known that the Vehicle was stolen - the matter about which Detective Sergeant Surman had been prevented from giving evidence by the learned magistrate; or
(c) her Honour had concluded that the respondent had raised a 'defence' during the prosecution case that the prosecution was required to negative and which was relevant to determining whether there was a case to answer at the close of the prosecution case.
54 That ambiguity indicates that the reasons given by the learned magistrate did not adequately disclose the basis of her decision to dismiss the charge. The failure constituted an error of law given that the decision finally determined the charge and the appellant has a right of appeal (see s 7 of the Criminal Appeals Act).
55 Section 14(3) of the Criminal Appeals Act does not apply to the error made by her Honour as that section is concerned only with errors of fact.
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- However, s 14(2) of the Act provides that the court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred even though a ground of appeal might be decided in favour of the appellant.
Discussion of proposed ground 1
Evidentiary and persuasive burdens
56 The prosecution carries an evidential burden of proof on all elements of the offence charged. A case will be withdrawn from the jury if the prosecution fails to discharge that burden - if the trial judge is satisfied that the accused has no case to answer, the trial judge may find the accused not guilty of the charge without requiring the jury to give its verdict and if such a finding is made, the trial judge must discharge the jury from giving its verdict on the charge: s 108 of the Criminal Procedure Act 2004 (WA) (s 108 applies to a court of summary jurisdiction - see s 65(4)(d) of the Criminal Procedure Act).
57 The test to be applied in determining whether the prosecution has discharged its evidential burden of proof is whether the evidence adduced by the prosecution, taken at its highest, is capable of establishing beyond a reasonable doubt the guilt of the accused: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489 (Malcolm CJ). The question is not whether, on the evidence as it stands, the accused ought to be convicted but whether, on the evidence as it stands, he or she could be lawfully convicted: The State of Western Australia v Burke [2011] WASCA 190; 42 WAR 124 [12].
58 An accused bears the burden of adducing sufficient evidence to put in issue his or her criminal responsibility for the act or omission constituting the offence charged - that is, sufficient evidence to raise an exculpatory defence such as honest claim of right, mistake of fact or duress as an issue to be decided in the case brought by the prosecution. The prosecution, of course, carries the persuasive onus on all issues that must be decided by the jury. Accordingly, the prosecution carries the onus of proving beyond reasonable doubt that the accused is criminally responsible for the act or omission constituting the offence charged if there is any evidence that raises the possibility that he or she is not criminally responsible. That is, the prosecution carries the onus of proving that an exculpatory defence is excluded if there is any evidence that raises the possibility of such a defence. Further, as Martin CJ explained in Heijne v The State of Western Australia [2010] WASCA 86 [40]:
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- If, on the view of the evidence most favourable to the accused, there is material on which the jury, acting reasonably, might fail to be satisfied beyond reasonable doubt that the defence has been excluded, it is the duty of the trial judge to put the issue to the jury …If in doubt, the trial judge should leave the defence to the jury, although it should not be left to the jury if its application would be purely speculative, in the sense that it would lack foundation in the evidence …
The matters raised by the respondent
59 The respondent raised two matters during the trial, in addition to cross-examining the police witnesses about the manner in which he drove the Vehicle: that he did not know that the Vehicle had been stolen and that he was acting under duress. It was not clear in relation to the first matter whether the respondent thought that he could only be convicted of the charge if the prosecution proved beyond a reasonable doubt that he had known that the Vehicle had been stolen some time prior to when he drove it or whether he was, in effect, foreshadowing a 'defence' under s 22 and/or s 24 of the Criminal Code. In any event, both matters were raised while the respondent was making a submission to the learned magistrate or in answer to a question from her Honour. They were not raised by eliciting evidence from any witness.
60 Accordingly, the respondent had not, by the close of the prosecution case, adduced any evidence that raised possible defences under s 22 and/or s 24 and/or s 32 of the Criminal Code if that was his intention. Further, whether the had adduced evidence that raised any of those 'defences' as an issue to be decided in the trial was not relevant to whether there was a case to answer. That question was to be determined according to whether the prosecution had discharged its evidential burden on each element of the offence to the standard identified in Morrison v Kiwi Electrix and Burke.
Conclusion
61 The matters discussed above regarding the proposed grounds of appeal leave open various possibilities which, in my view, disclose a possible errors of law.
Proposed ground 1
62 There was evidence in the prosecution case on each element of the offence if the concessions made by the respondent at the commencement of the trial were admissions for the purpose of s 32 of the Evidence Act. There was evidence that the respondent drove the Vehicle and admissions
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- that he did so without the consent of the owner of the Vehicle, Ms Featherstone. It was not necessary for the prosecution to adduce evidence on some other matter to prove that the driving of the Vehicle without Ms Featherstone's consent was unlawful.
63 The learned magistrate dismissed the charge on the ground that the respondent had no case to answer. Accordingly, she must have found that the prosecution had failed to adduce evidence which, taken at its highest, was capable of establishing beyond a reasonable doubt the guilt of the respondent. That, in my view, was an error of law if the respondent had made admissions that were effective under s 32 of the Evidence Act.
64 It is not possible to identify from the learned magistrate's reasons precisely how the error was made on that assumption. However, it is not to point whether the error occurred (on the assumption that has been made):
(a) because her Honour had overlooked the admissions made by the respondent at the commencement of the trial; or
(b) as her Honour had recalled the admissions but had mistakenly considered that the prosecution was required to prove a further element of the offence - that the respondent knew that the Vehicle had been stolen at the time that he drove it; or
(c) because her Honour had concluded that the respondent had raised an exculpatory defence that the prosecution was bound to negative; that the prosecution had not negatived the defence and the charge ought to be dismissed as the prosecution could not split its case.
65 Each of those possibilities would entail an error of law if the concessions made by the respondent were admissions for the purpose of s 32 of the Evidence Act.
66 I have concluded, with some hesitation, that the concessions made by the respondent did satisfy the requirements of s 32 notwithstanding the reservations expressed earlier in the reasons. The admissions were, in my view, made with sufficient clarity and specificity. It was apparent from the exchange with the learned magistrate that the respondent did not seek to deny that he drove the Vehicle without the consent of its owner, Ms Featherstone. The concessions that were made concerned facts that were not complicated and which were not controversial according to the respondent's statements to the learned magistrate; they were not 'integrally
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- tied up with controverted and complicated' issues between the appellant and the respondent (see the passage reproduced earlier from the judgment of Heydon J in Stubley). I consider that the concessions were intentionally made in all of the circumstances despite the fact that the learned magistrate did not explain to the respondent the effect of the concessions as admissions made under s 32 of the Evidence Act.
67 Accordingly, I would grant leave to the appellant to appeal on proposed ground 1 and would allow the appeal on that ground. I consider that the error of law made by the learned magistrate resulted in a substantial miscarriage of justice (s 14(2) of the Criminal Appeals Act). The learned magistrate's decision should be set aside and a new trial ordered.
Proposed ground 2
68 Proposed ground 2 assumes that the concessions made by the respondent at the commencement of the trial did not satisfy the requirements of s 32 of the Evidence Act. The ground is directed to the injustice that the appellant contends would be occasioned by a finding that the concessions were not, as a matter of law, effective as admissions under that section. I shall determine the proposed ground in case I am wrong in finding that proposed ground 1 has been made out.
69 The effect of a finding that the concessions made by the respondent did not satisfy the requirements of s 32 would, of course, be that the prosecutor had failed at the trial to discharge the evidential burden of adducing evidence on each element of the offence. Consequently, the learned magistrate's decision to dismiss the charge would, on its face, be correct. It is that result that the appellant contends by proposed ground 2 would constitute a substantial miscarriage of justice.
70 I would grant leave for the appellant to appeal on proposed ground 2 and I would allow the appeal on that ground on the assumption that the finding that the concessions made by the respondent satisfied the requirements of s 32 of the Evidence Act is wrong. In my view, there was a miscarriage of justice within the meaning of s 8 of the Criminal Appeals Act in the manner in which the trial was conducted on that assumption.
71 The learned magistrate conducted the exchange with the respondent that had resulted in the concessions. Her Honour had stated that the effect of the concessions was that it was not necessary for the prosecution to call Ms Featherstone. That was in circumstances where the prosecutor had indicated that she was to be called to prove that she had owned the
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- Vehicle and that she had not given her consent to the Vehicle being driven by the respondent on the day alleged in the charge. The concerns that I expressed at the hearing of this appeal about the effect of the exchange between the learned magistrate and the respondent for the purpose of s 32 of the Evidence Act arose out of the procedure that her Honour had adopted. The question of whether admissions were to be made under s 32 was a matter for the respondent. The trial had proceeded on the basis that it was not necessary for the prosecutor to call Ms Featherstone as the respondent had conceded that she was the owner of the Vehicle and that she had not given her consent to the respondent driving the Vehicle.
72 In my view, a finding that the learned magistrate had correctly dismissed the charge against the respondent because the prosecutor had failed to adduce evidence that Ms Featherstone was the owner of the Vehicle and that she had not given her consent to the Vehicle being driven by the respondent would constitute a miscarriage of justice having regard to all of those matters. I consider that the miscarriage would be substantial so that the proviso in s 14(2) of the Criminal Appeals Act would not apply. I would have set aside the learned magistrate's decision and ordered a new trial if I had not found in the appellant's favour on proposed ground 1.
Proposed ground 3
73 It has already been held that the learned magistrate's reasons did not adequately disclose the basis of her decision to dismiss the charge. That failure constituted an error of law. However, it is unnecessary to determine whether that error constituted a substantial miscarriage of justice having regard to the findings that have been made on proposed grounds 1 and 2. Nevertheless, I would grant leave to the appellant to appeal on proposed ground 3 given the finding that the learned magistrate erred in law by failing to provide reasons that sufficiently explained why she had concluded that the respondent had no case to answer.
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