Riley v Hunter

[2000] WASCA 371

RILEY -v- HUNTER [2000] WASCA 371

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 371
Case No:	SJA:1187/1999	Heard:	13 NOVEMBER 2000
Coram:	MILLER J	Delivered:	1/12/00
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed Convictions quashed Matter remitted to Court of Petty Sessions for rehearing
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Parties:	SPENCER KEITH RILEY ROBYN MOSTYN HUNTER
Catchwords:	Criminal law Defrauding the Commonwealth Obligations to refund unused travel allowance Whether a defence that appellant forgot about refunds Onus of proof Whether delegation of responsibility to refund a defence
Legislation:	Crimes Act 1914 (Cth), s 29D Criminal Code, s 24 Electricity Act Regulations 1947, reg 171
Case References:	Benter v Corkhill (1996) 106 A Crim R 75 Brimblecombe v Duncan [1958] Qd R 8 Cervantes Pty Ltd v State Energy Commission of Western Australia [1991] 5 WAR 355 G J Coles Coy Ltd v Goldsworthy [1985] WAR 183 Garrett v Nicholson (1999) 21 WAR 226 Harling v Hall (1997) 94 A Crim R 437 Liberato v R (1985) 159 CLR 507 McPherson v Cairn [1977] WAR 28 Peters v R (1998) 192 CLR 493 Proudman v Dayman (1943) 67 CLR 536 Farrell v R (1998) 194 CLR 286 Fleming v R [1998] HCA 68, 197 CLR 250 Glennon v R (1994) 179 CLR 1 R v Hildebrandt (1963) 81 WN (NSW) 143 KBT v R (1997) 191 CLR 417 Spies v R [2000] 173 ALR 529 Wilde v R (1988) 164 CLR 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RILEY -v- HUNTER [2000] WASCA 371 CORAM : MILLER J HEARD : 13 NOVEMBER 2000 DELIVERED : 1 DECEMBER 2000 FILE NO/S : SJA 1187 of 1999 BETWEEN : SPENCER KEITH RILEY

Appellant

AND

ROBYN MOSTYN HUNTER
Respondent

Catchwords:

Criminal law - Defrauding the Commonwealth - Obligations to refund unused travel allowance - Whether a defence that appellant forgot about refunds - Onus of proof - Whether delegation of responsibility to refund a defence

Legislation:

Crimes Act 1914 (Cth), s 29D

Criminal Code, s 24
Electricity Act Regulations 1947, reg 171

Result:

Appeal allowed

Convictions quashed
Matter remitted to Court of Petty Sessions for rehearing


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Representation:

Counsel:

Appellant : Mr A R Beech
Respondent : Mr G T J Farley

Solicitors:

Appellant : Monaghan & Associates
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Benter v Corkhill (1996) 106 A Crim R 75
Brimblecombe v Duncan [1958] Qd R 8
Cervantes Pty Ltd v State Energy Commission of Western Australia [1991] 5 WAR 355
G J Coles Coy Ltd v Goldsworthy [1985] WAR 183
Garrett v Nicholson (1999) 21 WAR 226
Harling v Hall (1997) 94 A Crim R 437
Liberato v R (1985) 159 CLR 507
McPherson v Cairn [1977] WAR 28
Peters v R (1998) 192 CLR 493
Proudman v Dayman (1943) 67 CLR 536

Case(s) also cited:

Farrell v R (1998) 194 CLR 286
Fleming v R [1998] HCA 68, 197 CLR 250
Glennon v R (1994) 179 CLR 1
R v Hildebrandt (1963) 81 WN (NSW) 143
KBT v R (1997) 191 CLR 417
Spies v R [2000] 173 ALR 529
Wilde v R (1988) 164 CLR 365

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1 MILLER J: The appellant was charged in the Court of Petty Sessions, Perth, with 11 offences. Each offence alleged a breach of the provisions of s 29D of the Crimes Act 1914 (Cth) it being contended that on various dates between 17 November 1995 and 4 July 1997 at Perth, the appellant defrauded the Commonwealth by failing to notify of a variation in his travel, thereby dishonestly retaining travel allowances of certain sums paid to him by the Aboriginal and Torres Straight Islander Commission which he knew were not payable contrary to s 29D of the Crimes Act. The sums of money varied in amount from $165 to a maximum of $465. In total they amounted to $2805.

2 The appellant pleaded not guilty to each of the charges and they were heard before Mr W G Tarr SM between 31 August and 3 September 1999. Judgment was reserved and delivered on 5 October 1999 when the appellant was convicted of each charge and fined a total of $4000. Additional orders for reparation ($2805) and costs ($2706) were made.

3 Leave to appeal the convictions was granted by Scott J on 5 November 1999 on a number of grounds, some of which were abandoned at the hearing of the appeal, leaving four grounds of appeal which contended that the learned Magistrate had erred in law in convicting the appellant by reason of: (1) effectively reversing the onus of proof under s 29D of the Crimes Act; (2) failing to indicate the standard of proof or the onus of proof used by him to determine the charges; (3) finding that the defendant was (i) not permitted to delegate his administrative responsibilities as an ATSIC Commissioner; and (ii) that any delegation of his administrative responsibilities was in some way proof of his guilt in respect of the charges in question; (4) in holding that it was not a defence to the charges that the defendant forgot to make refunds, when in fact his Worship should have held that in order to prove that the appellant had defrauded the Commonwealth, it was necessary for the prosecution to exclude beyond reasonable doubt the possibility that the appellant had forgotten to make the refunds.

4 In his reasons, the learned Magistrate conveniently summarised the facts. The appellant was at all relevant times an ATSIC Commissioner for the South-west Zone in Western Australia, a position which he had held since 1993. As a Commissioner, he was required to travel regularly within the South-west Zone which extended from Jurien Bay in the north to Albany in the south and to Southern Cross in the east. On occasions, the appellant travelled outside of that zone on official business. To be compensated for expenses incurred whilst travelling, the appellant was entitled to claim an allowance which, when an overnight stay was

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involved, amounted to $155 per day at the time of the offences alleged in the first two charges and thereafter $165 per day. This travel allowance was typically claimed before the intended period of travel by way an ATSIC travel proposal form which was forwarded to the State office of ATSIC for approval by the State Manager. The appellant's personal assistant was in the practice of completing the forms which had been signed in blank by the appellant and following submission of those forms, the finance officer of ATSIC delivered to the office of the appellant a cheque which was acknowledged either by the appellant himself or his personal assistant.

5 It is unnecessary to detail the individual transactions which led to the appellant receiving ATSIC cheques for the 11 trips which were in question, but it appears that in each case the cheque so received was cashed and the proceeds in cash made available to the appellant. If for any reason a planned trip was shorter than that which had originally been proposed, it was the obligation of the appellant to refund either by cash or cheque or by way of deduction from future claims for travelling allowances the relevant amount. This was done by the creation of a document known as a debit advice note. It was common ground at the hearing that any person who had been overpaid for a trip had the responsibility of ensuring that the appropriate refund was made to ATSIC.

6 The prosecution case was that the appellant had on eleven instances been away for lesser periods than those for which the travelling allowance had been claimed. This was admitted at the hearing by way of formal admission on behalf of the appellant. Whilst acknowledging that he had not been entitled to the payments received in respect of the 11 proposed trips, the appellant nevertheless contended that he was unaware of any overpayments having been made to him. He testified in his defence stating that he relied upon his wife to look after his financial affairs and his personal assistant to take care of office administration including claims for travel allowance and refunds to ATSIC in respect thereof. The basic thrust of his defence was that in relation to no trip did he ever intend to take any money to which he was not entitled. The following quotes from the transcript indicate how this was put by the appellant:

"What do you say to the proposition you deliberately kept moneys that were overpaid to you in relation to that trip?---I did not intend to keep any money that was not owing to me and if I did I'm sorry.

…

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You see, it's suggested that you became aware that you were overpaid and you decided to keep the overpayment. What do you say about that?---I say that I never intended to keep any moneys that wasn't owing to me.

…

Are you able to tell the court on your oath that you actually did intend to - - you did tell her to make a variation?---On oath I probably did and then - - no, I probably forgot to tell her too.

…

Again it's suggest that you returned early. You knew you'd been overpaid and you made a decision to keep it. What do you say about that?---I never intended to keep any money that was not belonging to me.

Didn't intend to. What was the first time you became aware that there'd been such an overpayment?---When I was first charged. What I was charged.

…

You see, the allegation is that you simply failed to instruct her to make any claim because you wanted to keep the money. What do you say about that?---I say I did not intend to keep any money that was not owing to me.

…

Did you ever ask her to make a travel variation for you in relation to this matter?---This matter may have talked to her and then being busy I may have forgot to tell her.

…

Do you know whether you asked Krone to make any adjustment in relation to that trip?---As I said, I may have spoken to her but because of the - - being busy I may have forgot to tell her."

7 In the course of his cross-examination, the appellant was pressed on the question of what instructions were given to his personal assistant:

(Page 6)

"Now, you were asked those sorts of questions in respect of the number of the claims whether you may have told Shirley that the trip was - - you'd gone a bit late or you'd come back a bit earlier and you said from time to time that you may have but you're not sure. Is that the case?---That's the case.

So you're saying that you knew you should have told her something but that you might not have - - ---Probably forgot to tell her.

- - because you may have forgotten on occasion?---That's correct.

Okay. You also said that on occasion - - you were asked whether you had gone into the office and you said you don't know but you could have. Do you have any record of going into the office on any of the occasions that are the subject of these charges?---Is there any record? I've got no record.

Do you have any memory of being in the office on any of those dates?---I can't remember.

…

But isn't it the case you should really give her some instructions about that?---If - - I may have. I probably might've forgot. I don't know.

So - - ?---As I say, I'm not too sure.

…

You don't recall giving her any instructions in respect of any of these - - the 10 claims that she processed? You don't recall giving her any instructions to make changes?---I may have. I'm - - and I may have forgotten to tell her.

Okay. So you don't recall doing it?---I don't recall anything like that."

8 In the course of his reasons for judgment, the learned Magistrate correctly identified the elements of the offence charged in the complaints. His Worship first detailed the provisions of s 29D of the Crimes Act which are to the effect that a person who defrauds the Commonwealth or a

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public authority under the Commonwealth is guilty of an indictable offence. His Worship then said:

"For the defendant to be guilty of these charges it would firstly [sic] necessary for me to find he had knowledge of the overpayments and then that it was his intention to keep those amounts overpaid knowing he was not entitled to them.

A court can not look into the defendant's mind to determine his intentions but must consider the evidence overall."

9 Although the learned Magistrate did not say so specifically, it is clear that he understood that before the appellant could be convicted of any of the charges he faced, it was necessary that the Court should be satisfied beyond reasonable doubt on all the evidence that the knowledge and intention of the appellant was established and that to the extent that the case relied upon the drawing of an inference as to guilty intention, that was the only inference which could reasonable be drawn.

10 The learned Magistrate made a number of statements to the effect that "he found it difficult to accept the defendant's evidence" in relation to certain aspects of his testimony, particularly in relation to the appellant's statements that he was unaware of the exact amount of the daily rate of travelling allowance; he took little interest in that aspect of his income; and he relied on his wife and personal assistant to look after his finances. The learned Magistrate specifically rejected the evidence of the appellant to the effect that he had little knowledge of the amounts received and paid into his bank account by way of travel allowance and did not know he had been overpaid. The final paragraph of the reasons concludes:

"While the defendant may be of otherwise good character and well thought of, in relation to the charges before me I do not accept his evidence that he did not know he had been overpaid and by his actions I can only conclude that he intended to keep those amounts overpaid and converted them to his own use."

In relation to the appellant's defence, the learned Magistrate held:

"In cross-examination the defendant admitted he was aware of the system and may at times have turned his mind to the need to refund an overpayment. However, because of his busy schedule he may have forgotten to take the necessary steps to arrange a refund. It is not a defence to these charges to say the refunds may not have been made because the defendant forgot.

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A defence pursuant to Section 24 of the Criminal Code has been raised, but in line with my reasons so far I do not accept that the defendant had an honest belief in relation to the non refund of overpayments, nor do I believe any belief he had was in the circumstances reasonable."

11 The reference to s 24 of the Criminal Code was inappropriate, as the charges were Commonwealth charges which did not arise under the provisions of the Criminal Code of Western Australia. The test was whether the prosecution had negatived honest and reasonable mistake as that defence as formulated at common law. In Proudman v Dayman (1943) 67 CLR 536 (at 540 - 541) Dixon J put it this way:

"There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.

Doubtless over a wide description of legislation the presumption in favour of its application is but a weak one: See Maher v Musson (1); Thomas v The King (2), and three papers referred to in that report (3). But it still remains a presumption, and in relation to s. 30 there appears to be no sufficient reason for treating it as rebutted.

The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt."

12 It will be observed that at the time of the decision in Proudman v Dayman the formulation of onus of proof in relation to the defence of honest and reasonable mistake was not put as highly as it is today. In McPherson v Cairn [1977] WAR 28, Burt J (at 31) pointed out that once a foundation for mistake (in the sense of s 24 of the Code) has been laid in

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the evidence, the onus being on the prosecution to prove guilt beyond reasonable doubt "it follows that even if the explanation is not affirmatively established, nevertheless if the tribunal of fact thinks that it might reasonably be true, the defendant must be acquitted: Brimblecombe v Duncan [1958] Qd R 8 at 1222 - 23. See also G J Coles Coy Ltd v Goldsworthy [1985] WAR 183 per Burt CJ at 187. The reference by the learned Magistrate to the question of honest and reasonable mistake was really unnecessary, as no defence of honest and reasonable but mistaken belief was really raised by the appellant in the circumstances of the case. A very live issue does, however, arise in relation to the learned Magistrate's conclusion that "it is not a defence to these charges to say that the refunds may not have been made because the defendant forgot". The conclusion to this effect by the learned Magistrate is the fourth of the appellant's grounds of appeal but really the primary ground. What the appellant says is that the learned Magistrate made an error of law of fundamental importance in reaching this conclusion. The submission is that as dishonesty was an element of each of the charges, it was of the essence of the prosecution case that the retention of funds by the appellant was done dishonestly, in circumstances in which he knew that he was not entitled to retain the funds. Because the appellant testified that he may in some cases have forgotten to raise with his personal assistant the question of refund, the learned Magistrate had to be satisfied beyond reasonable doubt that he could not have forgotten to raise the matter.

13 It was pointed out by counsel for the appellant that his defence was really threefold; (a) he may have told his relevant personal assistant about the change that had been made in travel plans; (b) he may have assumed from the fact that he returned to the office that his personal assistant would have dealt with any issue of over-payment of travel allowances; (c) he may in some cases simply have forgotten to raise the matter with his personal assistant because he was so busy. Counsel for the appellant points out that the learned Magistrate dealt only with the last of the possibilities raised by the appellant. In doing so, his Worship concluded that forgetting about the matter "would be no defence". Counsel for the appellant argues, however, that if by oversight the appellant had omitted to say anything to his personal assistant or take any other step in relation to the refund of travel allowance, he could not be guilty of defrauding the Commonwealth.

14 I accept that in relation to the 11 charges faced by the appellant, it was necessary for the prosecution to prove that he had acted dishonestly. The word "dishonest" is not included within the formulation of the

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offence, and is not therefore used in any special sense in the legislation. It was, however, central to the prosecution case against the appellant that he had acted dishonestly. This being so, the test was that set out in Peters v R (1998) 192 CLR 493 per Toohey and Gaudron JJ at 504:

"In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if 'dishonest' is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest."

15 Counsel for the respondent argued that the learned Magistrate was correct in concluding that the prosecution was not obliged to prove beyond reasonable doubt that the appellant had not forgotten about "a matter which he is proven to have known or has admitted was known to him". Reliance was placed upon the decision in Cervantes Pty Ltd v State Energy Commission of Western Australia [1991] 5 WAR 355 where Murray J held that forgetfulness was no excuse within the meaning of s 23 of the Criminal Code. However, that case was quite different from the present. It was concerned with a prosecution pursuant to the provisions of reg 171 of the Electricity Act Regulations 1947 which alleged that the appellant being an electrical contractor had carried out electrical work without supplying certain forms to the State Energy Commission of Western Australia. As a fact, those forms were not submitted. The defence of the appellant was that reliance had been placed upon a staff member to lodge the necessary forms and that staff member had forgotten to do so. The case was concerned with issues which are not present here, and raise consideration of the provisions of s 23 of the Criminal Code.

(Page 11)

Murray J (at 364) said that the learned Magistrate's conclusion that s 23 of the Code was not open was correct and "the statutory scheme would be rendered substantially ineffectual if mere forgetfulness as to the forms provided an excuse under s 23. To that extent at least I agree with the learned Magistrate, that liability under reg 171 is strict."

16 Because the case involved issues of strict liability and the application of the s 23 of the Criminal Code, it is not in point here. The question here is whether the prosecution had proven beyond reasonable doubt that the appellant had acted dishonestly in the sense of knowingly and intentionally retaining travel allowance moneys which were, to his knowledge, to be refunded to ATSIC. This is how the learned Magistrate saw the question and how he formulated it at the outset of his reasons. The conclusion that it would not be a defence to the charge to say "the refunds may not have been because the defendant forgot" was, in my view, erroneous. It was a fundamental error of law, because once raised as an issue by the appellant, the prosecution bore the onus of proving beyond reasonable doubt that the appellant could not have forgotten about the obligation to make the repayments and had therefore defrauded the Commonwealth. For these reasons I would uphold the fourth ground of appeal.

17 The third ground of appeal contests the learned Magistrate's conclusion that the appellant could not avoid his responsibility by claiming that he relied upon others. The passage in the learned Magistrate's reasons is as follows:

"As I have mentioned there is a personal responsibility that goes with the receipt of travelling allowances and an obligation on recipients of funds, particularly public funds to personally take the appropriate steps and precautions to avoid being paid more than them [sic] are entitled.

It is my view that the defendant cannot avoid his responsibility in that regard by claiming he relied on others and he had little knowledge of the amounts received and paid into his bank amount [sic]. I do not accept his evidence in that regard."

18 Counsel for the appellant argues that whilst it may be the case at civil law that it would be no answer to a claim made by ATSIC against the appellant that the responsibility for making the appropriate refunds had been delegated by him, this is an erroneous basis upon which to approach the question of guilt of the offences of defrauding the Commonwealth

(Page 12)

with which the appellant was charged. With this submission I agree. The appellant was effectively saying (inter alia) that he had assumed, rightly or wrongly, that upon his return to his office, his personal assistant would have dealt with any question of refunds of travel allowance over-payments. This was not a question of delegation of authority, but a question of what, if any, guilty knowledge the appellant had in relation to the over-payments received. That is, did he know that he had received over-payment and deliberately, intentionally and therefore dishonestly retain the moneys when he well knew they should have been refunded to ATSIC? The appellant was, in my view, entitled to raise in his defence the proposition that he had a competent personal assistant upon whom he placed the responsibility for attending to these matters, with the result that he had no knowledge himself that he was wrongfully retaining overpaid travel allowances. To the extent that the learned Magistrate found that the appellant could not raise this line of defence, he was, in my view, wrong in law.

19 The first two grounds of appeal deal with the question of the learned Magistrate's approach to onus and standard of proof. It is complained that nowhere in the reasons is there any statement as to either. Whilst accepting that Magistrates in busy Courts of Petty Sessions are not expected to deal in their reasons "with every nuance of legal principle", it is complained that absence of reference to these fundamental matters is suggestive of error.

20 It is, of course, true that it is inappropriate to dissect reasons for judgment of a Magistrate line by line and word by word. In Garrett v Nicholson (1999) 21 WAR 226, Owen J (at 248):

"The tribunal of fact in that case was the District Court. However, I believe the principles are equally applicable to the Court of Petty Sessions. To the authorities mentioned in that extract I would add Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 277-281; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 539-40, 548 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, 647. I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the

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context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained."

21 Pidgeon J (at 237) said:

"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. n 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."

22 Accepting these principles, it is nevertheless a matter of concern that nowhere in his reasons did the learned Magistrate stress where the onus lay and what the standard was. True it is counsel for the appellant made extensive submissions on the issue, but judgment was reserved for over a month, and one would have expected some reference to onus and standard of proof somewhere within the reasons. Further, it is not just the absence of reference to onus and standard of proof that creates the concern. As counsel for the appellant pointed out, the learned Magistrate dwelt at length upon the appellant's answer to the charges and his evidence, concluding on at least four occasions that he did not accept his evidence. What remained, however, was a requirement that the learned Magistrate appreciate that even if the appellant was not positively believed, the question was whether in the light of the evidence of the appellant the prosecution had still proven beyond reasonable doubt its case. What has come to be termed the Liberato direction makes this very clear. It was put in Liberato v R (1985) 159 CLR 507 by Brennan J (at 515) this way:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to

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the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'."

23 Liberato v The Queen was, of course, a case of "oath versus oath" and the observations of Brennan J are particularly directed to that situation. However, the formulation was adopted by Anderson J in Harling v Hall (1997) 94 A Crim R 437 where at 443 his Honour said:

"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/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."

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24 His Honour pointed out, it is a question of looking at the reasons " in their entirety" to be sure that the learned Magistrate appreciated the need to approach the case in this way.

25 In Benter v Corkhill (1996) 106 A Crim R 75, I adopted and followed the formulation of Anderson J and added (at 78-79):

"It seems to me that the learned magistrate in this case did exactly what Anderson J said he should not do; that is, he did not approach the case on the basis that the defendant, having given exculpatory evidence, the question remained whether in the light of that evidence the prosecution had proved its case. Nor did he appreciate that even if not positively believing the appellant's evidence the question which remained was whether on the whole of the evidence the guilt of the accused had been proven beyond reasonable doubt. To the contrary, the learned magistrate appears to have found the case proven because he did not believe the testimony of the appellant and in addition gave no credence to the testimony of the witness whom the appellant had called."

26 Having read the learned Magistrate's reasons as a whole, I am afraid that it is unclear whether the learned Magistrate appreciated at the end of the case that whatever view he may have held about the evidence of the appellant, the requirement remained that he be satisfied beyond reasonable doubt on the totality of the case that the prosecution had established the appellant's guilt. That is, was it the only inference which was open, the inference (as to which he was satisfied beyond reasonable doubt) that the appellant well knew that he was withholding moneys due for refund to ATSIC and thus acting dishonestly? The reasons do not give any clear indication that the learned Magistrate approached the case in this way and it is the absence of any statement in this respect which leads me to the view that the first and second grounds of appeal should be upheld. As Anderson J summarised it in Harling (supra) at 443:

"Justices are not required to give extensive or elaborate reasons. However, it is well established that when he or she decides to convict a defendant of a criminal offence, with the serious and perhaps lifelong consequences that entails, the Magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision: Donovan v Edwards [1922] VLR 87 at 88: Ex parte Powter; Re Powter (1946) 46 SR

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(NSW) 1; De Iacovo v Lacanale [1957] VR 533 AT 557-558; Ladlow v Hayes (1983) 8 A Crim R especially at 388."

27 For these reasons I would allow the appeal of the appellant, quash the convictions recorded on the 11 counts he faced and direct that the charges be retried before a different Magistrate in the Court of Petty Sessions at Perth.