Pitt v Curchin
[2004] WASCA 17
•2 FEBRUARY 2004
PITT -v- CURCHIN [2004] WASCA 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 17 | |
| Case No: | SJA:1080/2003 | 2 FEBRUARY 2004 | |
| Coram: | ROBERTS-SMITH J | 2/02/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DEBRA LIANE PITT SHANNON LEE CURCHIN |
Catchwords: | Criminal law Appeal Stealing Appellant replacing packaged sheets with more expensive ones Whether Magistrate erred in deciding "whose evidence more likely to be true" Whether appellant "able to give a believable explanation" Mistake of fact Onus and burden of proof |
Legislation: | Nil |
Case References: | Harling (1997) 94 A Crim R 437 Liberato v The Queen (1985) 195 CLR 507 Murray (2002) 131 A Crim R 215 Stack v The Queen [2002] WASCA 338 Woolmington v DPP [1935] AC 462 Dawson v The Queen (1961) 106 CLR 1 He Kaw Teh v The Queen (1985) 157 CLR 523 Proudman v Dayman (1941) 67 CLR 536 Thomas v The Queen (1960) 102 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SHANNON LEE CURCHIN
Respondent
Catchwords:
Criminal law - Appeal - Stealing - Appellant replacing packaged sheets with more expensive ones - Whether Magistrate erred in deciding "whose evidence more likely to be true" - Whether appellant "able to give a believable explanation" - Mistake of fact - Onus and burden of proof
Legislation:
Nil
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr J R Noble
Respondent : Mr S F Rafferty
Solicitors:
Appellant : Jeremy Noble
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Harling (1997) 94 A Crim R 437
Liberato v The Queen (1985) 195 CLR 507
Murray (2002) 131 A Crim R 215
Stack v The Queen [2002] WASCA 338
Woolmington v DPP [1935] AC 462
Case(s) also cited:
Dawson v The Queen (1961) 106 CLR 1
He Kaw Teh v The Queen (1985) 157 CLR 523
Proudman v Dayman (1941) 67 CLR 536
Thomas v The Queen (1960) 102 CLR 584
(Page 3)
1 ROBERTS-SMITH J: Following a hearing before her on 4 December 2002 her Worship Ms Richardson SM found the appellant guilty of one count that on 20 July 2002 at Morley she stole two Nile fitted sheet sets of a total value of $47.98 the property of Kmart Australia Pty Ltd trading as Kmart Morley contrary to s 378 of the Criminal Code. Her Worship fined the appellant $150 but awarded a spent conviction pursuant to s 45A of the Sentencing Act 1995 (WA).
2 On 28 July 2003 the appellant filed an application for leave to appeal and for extension of time. On 18 August 2003 Barker J ordered there be an extension of time and gave leave to appeal. The grounds upon which leave to appeal was granted were that the learned magistrate erred in law in (1) applying the civil standard of proof to a criminal prosecution and (2) erred in reversing the onus onto (sic) the defendant to prove her innocence.
3 The broad outline of the evidence indicated that the appellant entered the manchester department of the Kmart store at the Galleria Shopping Centre in Morley on 20 July 2002 and browsed through bedroom linen items. She selected a queen-sized and a single-sized comforter/quilt pack and placed them into her trolley. The sealed packs, according to the evidence, contained a quilt and cover, a single sheet and pillowcase.
4 While they were in the trolley the appellant tore open the bags and removed the single sheet from each set. She then went to a different aisle and selected two Nile sheet sets and returned to her trolley. These Nile sets contained a fitted sheet, a single sheet and pillowcase. The appellant was seen by a security officer to remove these from the sealed packs and place a set inside each open quilt pack. She then returned the empty packs to the display shelf.
5 She went to the checkout and paid for the comforter quilts without declaring the Nile sheets which were by then within the package. On departing the store she was stopped by the security officer, taken to an office and interviewed. Police were subsequently called and she was eventually charged. Her Worship heard evidence from the security officer, a Ms Carmel Misali, and from the police officer, Constable Shannon Curchin. The appellant herself also gave evidence.
6 At the hearing before me this morning, Mr Noble, counsel for the appellant sought leave to amend the grounds of appeal. There being no objection to that by counsel for the respondent, Mr Rafferty, I gave that leave.
(Page 4)
7 The amended grounds of appeal are that the learned Magistrate erred in law in that she:
(a) applied the civil standard of proof to a criminal prosecution by finding that the evidence given on behalf of prosecution witnesses was the evidence that she believed to be more likely to be correct;
(b) did not give due consideration to the principle that the onus of proof rests on the prosecution to prove the charge and that a defendant need not prove anything; and
(c) did not apply the defence of honest and reasonable mistake which when raised by the evidence must be negatived by the prosecution beyond a reasonable doubt.
8 The reasons given by her Worship appear at AB 62 to 64 of the appeal book. After referring to the relevant statutory provisions of the Criminal Code her Worship briefly mentioned the evidence given by Ms Misali and Constable Curchin and to that given by the appellant herself. Her Worship accepted expressly in her reasons that the issue of mistake had arisen, acknowledging that the evidence of the appellant herself was that she had made a mistake in that she had put sheets into the comforter packets which were not the sheets that were intended to be sold with that particular comforter. The mistake, according to her, was that she wrongly placed the sheets into the particular packets not realising that they were the wrong packets.
9 Her Worship mentioned that initially Ms Misali had said that in her interview with the appellant there was no reference to a mistake, that she had simply been told by the appellant that she believed that customers could swap sheets from one packet to another and that had often been done by other customers. Her Worship noted that later in her evidence Ms Misali did concede that the appellant did tell her that what had happened with the sheet sets was in fact a mistake. The issue of mistake was accordingly a live issue for her Worship to consider.
10 The learned Magistrate then turned to consider the evidence before her and the question of credibility. As she put it, the issue came down essentially to one of credibility and it is appropriate that I set out in terms what her Worship said, given the grounds of appeal. At AB 64 her Worship said:
"The issue comes down essentially to one of credibility and that is that it is a matter that I have to decide in terms of whose evidence I think is more likely to be true, that is, whose
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- evidence I believe here today. And of course I have to be convinced beyond reasonable doubt in terms of the proof of the charge. It is my view, having heard all the evidence here today, that the evidence given on behalf of the prosecution witnesses is the evidence that I believe to be more likely to be correct.
I have a concern that sheets were being taken out of packages which were transparent, that the colours were able to be seen. I also have a concern that it was not only in one of the comforter sets, but in fact in both of the comforter sets that a complete sheet set was found. It seems to me that one might make a mistake at one point, but on both points, equally both sets that were put in there, neither of them had their tags with them and yet I was told that the sheets were put back into the packages.
If, as it seems to me, the sheets were being put back into their packages to be returned to their original state and the package - sorry - the tag was sitting there, that it is likely that that tag would have been placed along with the sheets within the packet, certainly within one, if not both. The defendant was not able to give, in my view, a believable explanation as to exactly why those tags were not put into those packets. As I say, I also have concerns as to the fact that each of the comforter sets had complete sheet sets in them and the reasons for the taking out of the transparent packets of these sheets in the first place.
I have come to the view that the prosecution witness in particular, the security officer, and what she was saying as to what she had seen was correct. I do not believe all of the evidence of the defendant and in particular I do not believe there was not an intention to put the complete sheet sets into the comforter sets, they being the sheet sets that did not belong in that particular comforter set, so my view and my finding is that the charge as alleged is proven." (my underlining)
11 The principles generally applicable are really beyond doubt. In the prosecution of the criminal law it is clear that the burden of proving the guilt of the accused lies on the prosecution. That principle was articulated in and for modern times in Woolmington v DPP [1935] AC 462 at 481.
12 The proposition that a Judge or jury or any tribunal of fact in a criminal case is required to decide whether to accept the version given by the defendant or accused on the one hand or that of the prosecution
(Page 6)
- witnesses on the other, is fundamentally erroneous and has on a number of occasions been held to be so. In Murray (2002) 131 A Crim R 215 the High Court was critical of a proposition being put to a jury in those terms. Their Honours Gummow and Hayne JJ referred at pages 229 and 230 to directions given by a trial Judge on an appeal against conviction for murder. The learned trial Judge had made some reference to the evidence in terms indicating that the jury was going to have to decide which version of the events and conversations they accepted and in deciding that it might help them to reach an ultimate conclusion on the question of intent. As to those directions, their Honours said at 230:
"Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant events of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded not being persuaded beyond reasonable doubt of the guilt of the appellant."
14 At 232 and 233 his Honour pointed to a number of considerations, emphasising the cardinal principle of appellate scrutiny of judicial instructions to a jury, that regard must be had to a number of factors, including the character of the communication and the entirety of it. Particular passages in instructions to juries must be read and understood in the light of the issues actually fought at the trial, the addresses to the jury by trial counsel that immediately preceded the Judge's instructions, any consideration and discussion between the Judge and counsel prior to the instructions as to their content, and the entire content of the instructions taken as a whole. His Honour said:
(Page 7)
- "It is a basic mistake to isolate any judicial or other utterances and to consider them out of context but it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context."
15 These remarks of course were directed to judicial directions to juries and that circumstance is to be distinguished from the giving of reasons which are expected to sufficiently identify the facts and the law upon which the judicial officer relies and the process of reasoning by which he or she arrives at his or her conclusion. Nonetheless, in general terms it seems to me the exhortation that neither directions to juries nor judicial reasons should be scrutinised without regard to the context is apposite to the present exercise upon which I am engaged.
16 Murray was applied in the decision of Stack v The Queen[2002] WASCA 338. Templeman J, with whom McKechnie and McLure JJ agreed, having referred to Murray went on to say at [17]:
"Equally a Judge who invites the jury to consider whether they should accept the accused's evidence or version or who invites the jury to prefer one version of events over another is also likely to confuse the jury, and that may preclude them from considering whether the crown has established each matter that it is required to do. That, in my opinion, is the result of his Honour's directions taken as a whole, and as I have said, despite quite proper direction it is a matter of impression."
17 His Honour went on to quote the following passage from Liberato v The Queen(1985) 195 CLR 507 per Brennan J 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 the 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 a reasonable doubt the issues which it bears the onus of proving. A jury must be told that even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond a 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
(Page 8)
- cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
18 The appellant also relies upon Harling(1997) 94 A Crim R 437, a decision of Anderson J. In that case the appellant had been convicted of being in possession of cannabis and was fined $50. The case against her was based entirely on the oral evidence of two detectives as to her conduct in producing to them a bowl containing a pipe and cannabis and her statements to them admitting the cannabis and the pipe were hers.
19 There were other grounds of appeal but the grounds which are pertinent to the present case are two grounds which went to the onus and burden of proof and in particular a ground which contested the learned Magistrate's conclusion that he would believe the police officer's evidence because their version of what happened was more likely than the complainant's and because his Worship's reasons failed to take into account that even if the complainant's version was less likely it could be correct.
20 I do not propose to set out the detail of the reasons given by the learned Magistrate in that case, suffice to say the particular portions to which exception had been taken on the appeal were the prefatory words:
"Well, in this case the evidence clearly simply does get down to whose evidence is to be believed,"
- and the concluding observations that:
"What the defendant is asking the Court to do is accept that the police have deliberately conspired to fabricate this evidence. I am not prepared to make that finding and I prefer the evidence given on behalf of Detective Hall and Detective Wallace and I find the charges proven."
"Certainly the credibility of the prosecution witnesses was in issue. In considering whether the prosecution had satisfied him of the guilt of the defendant the Magistrate had to decide whether to believe the evidence of at least one of the detectives and belief of that evidence would involve rejection of the defendant's evidence because her version and the detective's
(Page 9)
- version were irreconcilable but to describe the ultimate task of determining guilt as getting down to whose evidence to believe implies that the Magistrate considered it was permissible to move directly to a finding of guilt merely upon the rejection of the defendant's evidence. A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant.
There cannot be a guilty verdict unless the Court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case.
Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely; yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree.
I have considered the possibility that when his Worship used the introductory words to which I have referred, he really meant the case got down to whether or not in the light of the evidence given by and on behalf of the defendant contradicting the detectives' evidence, he was satisfied to the required degree that the detectives told the truth so as to satisfy him beyond a reasonable doubt of the guilt of the defendant. No exception could have been taken to that.
However, looking at the Magistrate's reasons in their entirety, it is impossible to be sure that he did any more before convicting the defendant than decide that the prosecution case was to be preferred. His reasons do not reveal that he made a subjective
(Page 10)
- assessment of the personal worth of the prosecution witnesses on matters of credibility, accuracy and reliability. There is no indication that he made a direct personal assessment of any of the witnesses on either side, on matters such as the honesty of a witness, his or her accuracy of observation and reliability of recall and so on. On the contrary, the basis for his stated preference for the evidence of the detectives was said by his Worship to be that their evidence was 'more consistent with what one would expect to have occurred'."
22 In the present case, the introductory comment of her Worship to which I have referred going to her Worship's assessment of credibility, that being a matter that she had to decide in terms of whose evidence she thought was more likely to be true, and the qualification that she had to be convinced beyond reasonable doubt in terms of the proof of the charge, is significant.
23 The acknowledgment as to the requirement of reasonable doubt was the only reference in her Worship's reasons to that requirement. It was not mentioned again. Nonetheless, I think an analysis of her Worship's reasons does give rise to a distinction between the reasons given by her and those given by the learned Magistrate in Harling.
24 It is true, as Mr Noble points out, that her Worship stated that having heard all the evidence, she had come to the conclusion that that of the prosecution witnesses was "more likely" to be correct. However, that is in the context of her Worship determining the issue of credibility and I would read that as indicating no more than one of the considerations going to the assessment of which evidence was to be accepted. That view is reinforced by the fact that her Worship then went on to talk about various aspects of the evidence, such as the way in which the sheets were packaged, the fact that a complete sheet set was found in both of the comforter sets and that the tags were missing. These are all matters, as I understand what her Worship is saying, which went to her Worship's assessment of the likelihood or otherwise of one or other of the accounts given to her being correct; that is to say, on the assessment of credibility.
25 Having come to the conclusion that as a matter of credibility she disbelieved the appellant but believed the security officer in particular, her Worship concluded that the evidence of the security officer "was correct". Looked at in that way, it seems to me, her Worship has addressed some of the matters which were not addressed by the learned Magistrate in Harling and she has indicated a process of reasoning which
(Page 11)
- does involve an assessment of credibility and then a finding based upon that.
26 I would not be inclined to the view that having expressly adverted to the requirement that she be satisfied beyond reasonable doubt of the proof of the charge, her Worship then fell into the error of not applying that onus and burden. I would not find the first ground made out.
27 The next two grounds, and particularly the third, go to the defence of honest and reasonable mistake and also the question of reversal of the onus of proof in a more general way.
28 As to those matters, initially her Worship stated that the appellant was not able to give, in her view, "a believable explanation" as to why the tags were not put into the packets. That would seem to convey an understanding that the appellant was required to give an explanation to her Worship capable of belief. As a practical reality that may be so but there was no legal onus upon her to do so.
29 In formulating the proposition in that way, it seems to me her Worship did fall into the error of failing, in that respect at least, to acknowledge the requirement that the obligation to nonetheless satisfy her of that matter was upon the prosecution and it was an obligation to so satisfy her beyond reasonable doubt.
30 I turn now to the issue of honest and reasonable mistake. As to that her Worship's comment that she did not believe all of the evidence of the appellant and in particular did not believe there was not an intention to put the complete sheet sets into the comforter sets, it appears to me to suggest in its manner of expression that her Worship was approaching the matter on the basis that the appellant had to satisfy her that there was no intention to put the complete sheet sets into the comforter sets.
31 That is apparent from the way in which her Worship expressed that, as she then immediately went on to say that "so" her view was, and her finding was, that the charge as alleged was proven. But the real question in that regard of course was whether or not her Worship was satisfied beyond reasonable doubt that there was an intention to put the complete sheet sets into the comforter sets, that is to say, that there was not a mistake.
32 The approach of her Worship was one, or may well have been one, it seems to me, that the appellant had failed to satisfy her Worship that she
(Page 12)
- had made a mistake and consequently, that not having been shown, her Worship found the charge was proven.
33 The obligation at that point, however, was for the prosecution to establish beyond reasonable doubt that the appellant did not make the mistake of which she spoke. Her Worship made no reference to s 24 of the Criminal Code nor to the onus and burden of proof in respect of the issue of mistake in that context, although of course she did refer to the issue itself but, in terms which in my view lead to the very real prospect that her Worship failed in that regard to apply the proper onus and burden of proof. It seems to me a realistic possibility that her Worship, in the way she has expressed that, was indicating an approach which required the appellant to establish she had not made a mistake. That would be a fundamental error of law and for those reasons I am satisfied that grounds (b) and (c) have been made out. The appeal will accordingly be allowed.
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