Patterson v Foord
[2003] WASCA 157
•18 JULY 2003
PATTERSON -v- FOORD [2003] WASCA 157
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 157 | |
| Case No: | SJA:1152/2002 | 18 JULY 2003 | |
| Coram: | MILLER J | 18/07/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision to dismiss charge set aside Matter remitted to Court of Petty Sessions for rehearing according to law | ||
| B | |||
| PDF Version |
| Parties: | ELISSA CLAIRE PATTERSON KATHRYN MARIE FOORD |
Catchwords: | Criminal law Justices Stealing Dismissal of charge Receipt of hearsay evidence Lack of any findings as to credibility of witnesses Adequacy of reasons Whether charge should have been dismissed Turns on own facts |
Legislation: | Criminal Code (WA), s 378 Justices Act 1902 (WA), s 199(1)(b) |
Case References: | Allen v Gittos (1995) 13 WAR 560 Button v The Queen [2002] WASCA 35 Garrett v Nicholson (1999) 21 WAR 226 Wilde v R (1988) 164 CLR 365 Annetts v McCann (1990) 170 CLR 596 Bannon v R (1995) 185 CLR 1 Castlecity Pty Ltd & Anor v Newvintage Nominees Pty Ltd [2003] WASCA 30 Cobbett v Hudson (1850) 15 QB 988 Dietrich v The Queen (1992) 177 CLR 292 Driscoll v R (1977) 137 CLR 517 Furtak v Timmers [2001] WASCA 65 Gilbert v The Queen (2000) 201 CLR 414 Hedge v Thurstun [2001] WASCA 43 Maric v R (1978) 20 ALR 518 Mraz v R (1955) 93 CLR 493 R v Greatorex (1994) 74 A Crim R 496 R v Hall [1971] VR 293 R v Jacquith & Anor [1989] Crim LR 508 R v Ryan (1984) 55 ALR 408 R v Secretary of State for India; Ex parte Ezekiel [1941] 2 KB 169 Rabey v R [1980] WAR 84 Re Van Beelan (1974) 9 SASR 163 Smith v R (1992) 7 WAR 527 Stones v Byron (1846) 4 Dowl & L 393 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KATHRYN MARIE FOORD
Respondent
Catchwords:
Criminal law - Justices - Stealing - Dismissal of charge - Receipt of hearsay evidence - Lack of any findings as to credibility of witnesses - Adequacy of reasons - Whether charge should have been dismissed - Turns on own facts
Legislation:
Criminal Code (WA), s 378
Justices Act 1902 (WA), s 199(1)(b)
Result:
Appeal allowed
Decision to dismiss charge set aside
Matter remitted to Court of Petty Sessions for rehearing according to law
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr C Porter
Respondent : Ms H E Prince
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Helen Prince
Case(s) referred to in judgment(s):
Allen v Gittos (1995) 13 WAR 560
Button v The Queen [2002] WASCA 35
Garrett v Nicholson (1999) 21 WAR 226
Wilde v R (1988) 164 CLR 365
Case(s) also cited:
Annetts v McCann (1990) 170 CLR 596
Bannon v R (1995) 185 CLR 1
Castlecity Pty Ltd & Anor v Newvintage Nominees Pty Ltd [2003] WASCA 30
Cobbett v Hudson (1850) 15 QB 988
Dietrich v The Queen (1992) 177 CLR 292
Driscoll v R (1977) 137 CLR 517
Furtak v Timmers [2001] WASCA 65
Gilbert v The Queen (2000) 201 CLR 414
Hedge v Thurstun [2001] WASCA 43
Maric v R (1978) 20 ALR 518
Mraz v R (1955) 93 CLR 493
R v Greatorex (1994) 74 A Crim R 496
R v Hall [1971] VR 293
R v Jacquith & Anor [1989] Crim LR 508
R v Ryan (1984) 55 ALR 408
(Page 3)
R v Secretary of State for India; Ex parte Ezekiel [1941] 2 KB 169
Rabey v R [1980] WAR 84
Re Van Beelan (1974) 9 SASR 163
Smith v R (1992) 7 WAR 527
Stones v Byron (1846) 4 Dowl & L 393
(Page 4)
1 MILLER J: The respondent was charged in the Court of Petty Sessions, Perth that on 19 March 2002 at Cannington she stole one Stanley Dynagrip chisel set, the property of Kmart Australia Ltd, valued at $49.99, contrary to the provisions of s 378 of the Criminal Code (WA).
2 The respondent pleaded not guilty to the charge and was tried before Mr R H Burton SM in the Court of Petty Sessions on 4 November 2002. She was represented by counsel.
3 At the hearing the prosecuting officer called one witness. That was Janet Vlimic, a security officer from Kmart Carousel. She testified that on that at about 2 pm on 19 March 2002 she was on duty at the Carousel premises of Kmart when she observed a male and female in the hardware section of the store. Her evidence was to the following effect:
"HIS WORSHIP: Yes? --- The male had in his hand a stanley set and as I walked past I noticed it had a security tag on it.
Yes? --- I observed the female to select an item from the fixture, remove this item from the packet and use this item to cut off the security tag.
Right? --- She replaced the item to the fixture. I then observed her to lift up the man's check shirt. Some other customers came into this area.
Right? --- The male and female went down to the end of the aisle and here I observed the male to place the stanley set under his check shirt.
Right? --- In the top of his trousers.
Yes? --- They left this area. Made their way out of the store via the door greeter and didn't declare anything for payment."
4 Ms Vlimic was cross-examined by counsel for the respondent and it was put squarely to her that the respondent would say that she had not at any time selected a cutting tool and had not cut the tag on any item. When asked for her comment on that, the witness said "I have already said what I saw take place". When asked if she disagreed, she said she did. In re-examination Ms Vlimic was asked whether she had any doubt in her mind whatever that the respondent had cut the security tag off the item and she answered that she had not.
(Page 5)
5 The respondent was called to give evidence. She admitted that on the afternoon of 19 March 2002 she was with a friend named Paul Lyndon Bunn at Kmart Carousel. She said that her friend wanted to go to the tool section of the store and that they went there together. Extracts from her evidence are as follows:
"… I was playing around showing him a few items and putting them back.
Paul was interested in tools, is there any reason for that? --- He's a boiler-welder maker and he has a shed full of tools. Whilst unemployed he liked to make things.
I guess the obvious question is did you go there with any intention --? -- No.
-- of stealing something? --- No.
…
Okay. Did you pick up this chisel set? --- Yes, I did. It's among the many items that I did show him.
Okay. It was attached to a security tag was it? --- I believe so.
MR LOVE: I guess the critical issue here where your evidence will differ from the prosecution, is that the evidence that's been given in relation to a cutting tool. Did you pick up a cutting tool? --- I don't believe that I did pick up a cutting tool.
Are you absolutely certain of that? --- I'm certain of that.
…
Okay. Did you cut the security tag on the chisels? --- No, I did not.
Did you lift up Paul's shirt? --- Yes I did.
How did you lift it up? --- I lifted it up at the back because I wanted to see if he had put it down there.
Why did you want to see if he'd put it down there? --- I was pleading with him not to. I --
(Page 6)
- What did he --?-- -- I assumed -- well, he motioned basically what he was going to do, he was going to steal the item and I was pleading with him, 'Please don't'."
- The respondent went on to say that she had left the store with her friend and shortly afterwards they were apprehended and taken to the security office.
6 When cross-examined, the respondent stated that she considered Ms Vlimic to have been mistaken when she gave evidence that the respondent had picked up a pair of pliers.
7 At the close of the respondent's evidence counsel for the respondent indicated that he had intended to call Bunn as a witness but he was unavailable. The matter was adjourned for a month, at which time counsel for the respondent indicated that although Bunn had been the subject of a witness summons, he had not attended the court. Counsel for the respondent then sought to give evidence himself as to a conversation he had had with Bunn in which "Bunn made certain admissions which support the defendant's case".
8 The learned Magistrate rightly questioned whether such hearsay evidence could be taken but counsel submitted that it was not hearsay because he was present when an admission was made. He then said that he accepted it did not prove the truth of what Mr Bunn said but that it was "admissible as an admission". This was a misapprehension of the rules of evidence. There is no exception to the hearsay rule in Australia which renders admissible either against or in favour of an accused hearsay evidence of a confusion by a co-accused or by a third party: Button v The Queen [2002] WASCA 35 at [203] - [222].
9 The learned Magistrate ruled that counsel for the respondent could give evidence. His ruling was in these terms:
"HIS WORSHIP: Yes, I think -- I believe that you can give the evidence. I rule that you can on the basis that you were a party to the conversation and you can be cross-examined by the sergeant since the other witness is not here."
10 What then followed was an illegitimate forensic course. Counsel for the respondent was sworn and testified that on or about 24 April 2002 he had interviewed Bunn. He paraphrased what Bunn had told him in the following terms:
(Page 7)
- "He said that Kathryn was standing right next to him at this time, and that she was telling him he shouldn't be doing what he was doing. But he says that he told her not to worry about it. He then says that he put the chisel set down the front of his jeans in order to conceal them. They then both walked out of the Kmart store together."
11 The learned Magistrate decided at the conclusion of the testimony of counsel for the respondent, that it would be inappropriate for any addresses to be made to him "because counsel has now become involved as a witness and he shouldn't take any further part in it". He then proceeded to give a decision. He pointed out that the prosecution was obliged to prove the allegation against the respondent beyond reasonable doubt and that the defence was not called upon to prove anything. He posed the question whether a jury would find beyond reasonable doubt that the defendant was a party to the offence. This seems to have been a misapprehension of the fact that the learned Magistrate was called upon to determine whether or not the charge had been proven against the respondent, not whether or not there was a prima face case against her in relation to which a jury might or might not have been in a position to reach a conclusion beyond reasonable doubt as to her guilt. Be that as it may, the learned Magistrate then pointed to a conflict in the evidence, that conflict clearly being between Ms Vlimic on the one hand and the respondent on the other. His Worship then concluded:
"What would a properly instructed jury do with that? I come to the conclusion that a properly instructed jury would have a doubt about it, and therefore, I dismiss the charge. Yes, thank you."
12 What is missing from the learned Magistrate's reasons for decision is any conclusion in relation to the credibility of the two witnesses who appeared before him. Leaving aside the illegitimate admission of hearsay evidence, the learned Magistrate had before him the evidence of Ms Vlimic on the one hand and that of the respondent on the other. He reached no conclusion as to whether or not the evidence of either was credible or whether the evidence of Ms Vlimic left him with a reasonable doubt as to its accuracy or truth. He simply reached the conclusion that a properly instructed jury would have a doubt about "the case". No explanation was given as to why.
(Page 8)
13 The necessity for a Magistrate to give proper reasons has been set out in a number of cases. In Garrett v Nicholson (1999) 21 WAR 226 Pidgeon J (at 237) put it this way:
"The question is whether the reasons are sufficient. The law relating to this question is set out by Malcolm CJ in Lloyd v Faraone [1989] WAR 154 at 163. His Honour said that the reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous. In Pallot v Harrison (unreported, Supreme Court, WA, Owen J, Library No 950261, 12 May 1995) Owen J said that each case must depend on its own circumstances but that the reasons must show to the litigant and the appeal court why a decision was made in a particular way. His Honour said that unless it is apparent on the face of the reasons why the decision maker arrived at the conclusion which he or she did the entire process can be called into question."
14 I respectfully agree with this passage. In my view the learned Magistrate's reasons in this case say no more than that because there was conflict in the evidence, there must be a reasonable doubt as to whether or not the respondent was guilty. It cannot be the case that every time there is a conflict in the evidence the prosecution case must be dismissed.
15 On 4 February 2003 Pullin J granted the appellant leave to appeal the decision of the learned Magistrate upon the following grounds:
"(a) The learned Magistrate erred in law in admitting hearsay evidence through the Respondent's counsel who gave evidence as to out of court statements made by the co-offender Paul Lyndon Bunn.
(b) The learned Magistrate erred in law in refusing to allow closing submissions by the prosecutor at the conclusion of the evidence."
16 The second of these grounds cannot be made out, because it does not appear that the prosecuting officer sought to make the closing submissions. In any event, the case was only a petty sessions prosecution and although practice would normally dictate that closing submissions should be allowed, the decision of the learned Magistrate to take no submissions from either counsel for the respondent or the prosecuting officer does not seem to me to have, in itself, caused any injustice. It is unnecessary to consider Allen v Gittos (1995) 13 WAR 560, a case
(Page 9)
- distinguishable by reason of the request there made by counsel to address the court being denied.
17 However, the admission of what was clearly hearsay evidence as to out-of-court statements made by Bunn was, on any view of it, a clear error of law which, in my view, vitiated the proceedings. The learned Magistrate made reference to the fact that Bunn had been summonsed to appear but had not "turned up today" and instead he had received "evidence from the defendant's counsel who took a statement from Mr Bunn".
18 Just what effect this had upon the learned Magistrate is not clear, but in the very brief and inadequate reasons given, the conclusion that a properly instructed jury would have a reasonable doubt about the case may well have been in part due to the learned Magistrate's acceptance of the evidence from counsel for the respondent of what Bunn had said. The admission of the hearsay evidence and the conclusion reached by the learned Magistrate that he had (or at least a reasonably instructed jury would have) a doubt about the case is so unsatisfactory that in my view there is no alternative but to allow the appeal, set aside the decision of the learned Magistrate and remit the case to the Court of Petty Sessions for rehearing according to law. The admission of the evidence was an irregularity which went to the root of the proceedings and denied the prosecution a fair trial: Wilde v R (1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 372 - 4. For this reason it cannot be said that there was no miscarriage of justice occasioned by the learned Magistrate's decision: Justices Act 1902 (WA), s 199(1)(b).
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