Robinson v Hart
[2005] WASC 268
ROBINSON -v- HART [2005] WASC 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 268 | |
| Case No: | SJA:1084/2005 | 18 NOVEMBER 2005 | |
| Coram: | SIMMONDS J | 13/12/05 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to the Magistrate | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY WAYNE ROBINSON BURGESS MURRAY HART |
Catchwords: | Criminal law and procedure Appeal against dismissal of complaint Offence of stealing a motor vehicle Whether Magistrate erred in his interpretation of Criminal Code s 371A in finding that it includes an element of fraudulent intent Whether prosecution must establish beyond reasonable doubt that an accused knew that the use of a vehicle was unlawful Accused's DNA found on interior of vehicle Whether Magistrate erred in finding no case to answer on basis of insufficient evidence Proper test to be applied to no case submission |
Legislation: | Criminal Code 1913 (WA), s 371A |
Case References: | BPZ v Giles, unreported; SCt of WA (Anderson J); Library No 970292; 10 June 1997 Houghton v The Queen [2004] WASCA 20 Lyons v Smart (1908) 6 CLR 143 May v O'Sullivan (1955) 92 CLR 654 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Pickett v Fuderer, unreported; CCA SCt of WA; Library No 980475; 27 August 1998 R v Briggs (1987) 24 A Crim R 98 Vallance v The Queen (1961) 108 CLR 56 Waterhouse v Pas, unreported; SCt of WA (Miller J); Library No 980495; 1 September 1998 "A Child" v Coralie Warnes, unreported; SCt of WA (Walsh J); Library No 970486; 25 September 1997 Doney v The Queen (1990) 171 CLR 207 R v Bilick (1984) 36 SASR 321 R v Mappin (1904) 6 WALR 161 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BURGESS MURRAY HART
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P S MICHELIDES
File No : FR 9375 of 2004
Catchwords:
Criminal law and procedure - Appeal against dismissal of complaint - Offence of stealing a motor vehicle - Whether Magistrate erred in his interpretation of Criminal Code s 371A in finding that it includes an element of fraudulent intent - Whether prosecution must establish beyond reasonable doubt that an accused knew that the use of a vehicle was unlawful - Accused's DNA found on interior of vehicle - Whether Magistrate erred in finding no case to answer on basis of insufficient evidence - Proper test to be applied to no case submission
(Page 2)
Legislation:
Criminal Code 1913 (WA), s 371A
Result:
Appeal allowed
Matter remitted to the Magistrate
Category: B
Representation:
Counsel:
Appellant : Mr P D Yovich
Respondent : Mr S A Gabriel
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Aboriginal Legal Service
Case(s) referred to in judgment(s):
BPZ v Giles, unreported; SCt of WA (Anderson J); Library No 970292; 10 June 1997
Houghton v The Queen [2004] WASCA 20
Lyons v Smart (1908) 6 CLR 143
May v O'Sullivan (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Pickett v Fuderer, unreported; CCA SCt of WA; Library No 980475; 27 August 1998
R v Briggs (1987) 24 A Crim R 98
Vallance v The Queen (1961) 108 CLR 56
Waterhouse v Pas, unreported; SCt of WA (Miller J); Library No 980495; 1 September 1998
(Page 3)
Case(s) also cited:
"A Child" v Coralie Warnes, unreported; SCt of WA (Walsh J); Library No 970486; 25 September 1997
Doney v The Queen (1990) 171 CLR 207
R v Bilick (1984) 36 SASR 321
R v Mappin (1904) 6 WALR 161
(Page 4)
- SIMMONDS J:
Introduction
1 This is an appeal by leave against the dismissal of the learned Magistrate of a prosecution on the basis that the accused had no case to answer. The appeal raises questions as to the elements of the offence of that form of stealing represented by unlawfully using, taking for the purposes of using, or driving or otherwise assuming control of, a motor vehicle, without the consent of its owner. This is sometimes called the "joy-riding" offence, or the "joy-riding form of stealing".
2 The appeal also raises the question as to the sufficiency of the evidence before the Magistrate to withstand a no case submission in a prosecution for such an offence.
3 This decision proceeds first by setting out the background to the learned Magistrate's decision, and then deals with the grounds on which leave to appeal was granted.
Background
4 On the complaint of the appellant, a police officer, the respondent was charged that, between 16 and 17 August 2004, he stole a Holden Commodore, a "motor vehicle" within s 371A of the Code, the property of another, contrary to Code, s 378 and s 371A.
5 Code, s 378 is the provision making it an offence to "steal anything capable of being stolen". Code, s 371A describes a form of stealing as follows:
"371A. Special case: Motor vehicles
(1) A person who unlawfully –
(a) uses a motor vehicle; or
(b) takes a motor vehicle for the purposes of using it; or
(c) 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 that motor vehicle.
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- (2) This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles."
6 Code, s 371(1) describes what might be called the general form of stealing, as follows:
"371. 'Stealing', definition of
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property."
8 The evidence against the respondent to which the learned Magistrate referred as being evidence before him for the purposes of the no case submission was as follows:
• evidence capable of supporting a finding the Holden Commodore was a motor vehicle that had been stolen, apparently over the period referred to in the complaint;
• evidence capable of supporting the finding that the vehicle was the property of the person identified for that purpose in the complaint;
• DNA of the accused on the vehicle's steering wheel and driver's door handle;
• the accused's admission he had been in contact with the vehicle, coupled with the denial he had been in control of, or used, the vehicle;
• photographs apparently capable of showing that the vehicle's sound system, and two exterior badges, one at the front and one at the rear, had been removed.
9 The evidence as to the stealing of the vehicle showed that on the evening of 16 August 2004 it was at the home of the owner's father in Maida Vale. At 5.00 am on 17 August 2004, the owner's father noticed
(Page 6)
- that a laundry door was open, and that his wallet was missing. The owner, who was sleeping at his father's house, was awakened, to discover that both his vehicle keys and his vehicle were missing. On the following day, the owner was contacted by police as the vehicle had been discovered in Applecross. In his decision, the learned Magistrate noted that, while there was no evidence as to when the DNA had been deposited, there was a "strong and high inference" the DNA was deposited while the vehicle was stolen.
10 The learned Magistrate concluded that the shortfall in the prosecution's case related to the matter of the "intent" that he determined formed an element of the form of stealing in s 371A. The learned Magistrate put his determination in that respect, and why the accused's DNA evidence did not supply the shortfall, in this way (TS 26 – 27):
"Now, in this case the only element that is missing according to the submissions of Mr Gabriel are [sic] that element that I'll refer to as intent for want of a better term. It's really a generic term. And it needs - - in order to address that issue it needs for me to examine section 371A. My view is that section 371A does not change the character of stealing as defined in section 371. It merely puts beyond any doubt that the unlawful use – driving or borrowing effectively – of a motor vehicle satisfies the element of intent referred to in section 371 subsection (2) in several various forms. And in most cases it would be an intent to permanently deprive.
There still remains the element of fraudulent intent which is set out very clearly in section 371. And in my view section 371A does not in any way abrogate that necessary element of stealing. A person can't be caught under section 371A unless the prosecution first establishes beyond reasonable doubt that he knew that his use of the vehicle was unlawful. In most cases that is that he knew that the vehicle was stolen.
Proof of a person - - a person's, I should say, physical contact, that is touching - - physical contact with, that is touching of, a vehicle by in this case DNA traces on the steering wheel and on the internal - - interior of the driver's door in my view are [sic] not alone capable of establishing that knowledge beyond reasonable doubt. And this because such evidence, the DNA evidence, just does not speak to knowledge. It speaks only to proof of physical contact. A person could touch, sit in or even
(Page 7)
- drive a vehicle without knowledge of its unlawful providence [sic provenance]."
11 The learned Magistrate also considered that the DNA evidence was insufficient to support the application to the case before him of the evidentiary doctrine of "recent possession". I take this to be the doctrine described in Criminal Law in Western Australia at par 371.45 as follows:
"If the accused is found in possession of goods soon after they have been missed, and fails to give a credible explanation of the manner in which they were discovered in his or her possession, the jury is justified in inferring that the accused either stole them or is guilty of receiving stolen property."
12 The learned Magistrate found the doctrine inapplicable as follows (at TS 27):
"The doctrine of recent possession does not in my view assist the considerations of whether there is a case to answer and this is because it is a doctrine which relies upon the clear finding of a stolen item in the possession of the accused. And it is an evidentiary doctrine which comes into play once a matter is left to the fact finder, that is once it's before the jury as it were, even though there may not physically be a jury in a case of a judge or magistrate who is dual or a fact finder.
The evidence of DNA traces in this case cannot in my opinion sufficiently support a finding beyond reasonable doubt that the accused was even in a - - was even in possession of the car. For example, he could easily have merely spoken to the driver through an open window and merely touched or even deposited saliva, for example, coughing or sneezing or even talking, in the internal parts of the vehicle where they were found.
And so in my view I can't use the doctrine of recent possession when considering in this case whether there's a case to answer because one doesn't even get to base one, that is the establishment of possession. There is just no evidence which in my view could lawfully entitle a body of people as described in May and O'Sullivan to arrive at a finding that the vehicle was ever in the accused's possession, much less that he had knowledge that the vehicle was of an unlawful providence."
(Page 8)
13 The reference as transcribed to "May and O'Sullivan" appears to be to May v O'Sullivan (1955) 92 CLR 654.
14 It is evident that important to the learned Magistrate's determination that there was no case to answer was his conclusion that there was a mental element in s 371A that could usefully be compared with the mental element in s 371, and of the inability of the DNA evidence before him to supply evidence of that element in this case.
15 However, I also note that there was, in his discussion of the doctrine of recent possession, some language that tends to indicate his conclusion there was a lack of evidence to show the accused had engaged in any of the conduct ("uses", "takes for the purposes of using", or "drives or otherwise assumes control") forming an element of s 371A(1). I return to this matter at the end of my reasons.
Grounds of Appeal
16 On 2 September 2005 McKechnie J gave leave to appeal on the following grounds:
"1. The learned Magistrate erred in his interpretation of section 371A of the Code and was wrong in law in concluding that the prosecution was required to establish the following as elements of the offence of stealing a motor vehicle pursuant to section 371A, such elements not being required by law:
1.1 a fraudulent intent as set out in section 371 of the Code;
1.2 knowledge on the respondent's part that the motor vehicle was stolen, as opposed to be used without the owner's consent.
2. The learned Magistrate erred in law in finding that the Respondent had no case to answer at the close of the prosecution's case.
PARTICULARS
(a) taken at its highest, there was sufficient evidence to establish each of the elements of section 371A to the requisite standard;
(Page 9)
- (b) the elements that the learned Magistrate was not satisfied that the prosecution had made out, namely knowledge that the vehicle was stolen and a fraudulent intent, were not elements of the offence;
(c) the learned Magistrate drew an adverse inference against the prosecution, namely that the respondent's DNA traces could have been deposited by the Respondent speaking through an open window, touching or depositing saliva through coughing, talking or sneezing, when:
(i) there was no evidence before the learned Magistrate capable of allowing such an inference to be drawn; and
(ii) the DNA evidence was unchallenged by the Respondent;
The only reasonable inference open to the learned magistrate was that the location of the Respondent's DNA was consistent with use of the vehicle."
Ground 1: Error and interpretation of s 371A
18 As I have indicated, the learned Magistrate approached the no case submission on his interpretation of s 371A, in terms of it being subject to a requirement comparable to that in s 371(1) for a "fraudulent intent", and that this required the prosecution to establish "beyond reasonable doubt that [the accused] knew that his use of the vehicle was unlawful". The appellant submitted that there was no mental element in s 371A. Of course, there was applicable to it the Code's general provisions with respect to criminal responsibility, notably the provision on unwilled acts (s 23), on the absence of action in the exercise of a claim of right without an intent to defraud (s 22), and on the absence of a mistake of fact of the requisite sort (s 24).
19 The matter of a mental element in s 371A appears not to be the subject of any discussion in the authorities on that provision. I was directed to "BPZ" v Giles, unreported; SCt of WA (Anderson J); Library
(Page 10)
- No 970292; 10 June 1997, an appeal against a conviction under s 371A. In that case there was evidence from which Anderson J concluded it could be inferred the offender knew the vehicle in that case was stolen. The issue in the case was, however, whether the driving of the vehicle to a place where it was to be stripped of parts was "use" within s 371A(1)(a). Anderson J upheld the conviction on the basis that such driving was such use, and, if it was not the offender who did the driving, he acted "in close concert with those who did, for the purposes of Code, s 7(b) or (c)".
20 I was also directed to Pickett v Fuderer, unreported; CCA SCt of WA; Library No 980475; 27 August 1998, leave to appeal refused (1999) 16 Leg Rep SL 1A. This was another appeal against conviction under s 371A. That case also does not deal with the mental element point, but rather again with the conduct element in s 371A. The evidence was that the vehicle was found in bushland some six hours after the owner discovered it missing from where he had left it locked. The windows were smashed, and the outer panels scratched and damaged. The shroud around the steering column, the ignition and the radio had been removed. The dashboard had been peeled back. The offender's fingerprints, of his index and middle fingers, were found on the outside of the front passenger window. The fingerprints were at the very top in a position indicating the fingers had been pointing downwards towards the ground, with part of the second joint of the middle finger visible at the very top of the window. At the trial the Magistrate had rejected a no case submission. The appeal was argued on the basis that the offence under s 371A would be established "if the Crown proved beyond reasonable doubt that the appellant had been a passenger in the vehicle, without the consent or the owner" (Ipp J, Steytler J agreeing). The issue in the appeal was whether the evidence "established beyond a reasonable doubt that the appellant had 'used' the vehicle within the meaning of s 371A" (per Ipp J, Steytler J agreeing). The Court upheld the conviction by reference to the failure of the appellant to give evidence as to how his fingerprints came to be left on the window. I return to this case in somewhat more detail in relation to the second ground of appeal. For now, I note that the appellant's failure to give evidence was seen to preclude the drawing of the only inference that competed with the inference sustaining the conviction. The latter inference was that the fingerprints were "left by the appellant in the course of stealing the vehicle or while he was a passenger, knowing it to have been stolen – as to which see R v Phipps & MacGill (1970) 54 Cr App R 300" (per Kennedy J).
21 On this state of the authorities counsel for the respondent put to me that the use of "unlawfully" in s 371A imports a mental element.
(Page 11)
- Certainly there is nothing in either authority to preclude such a construction. That mental element is 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. Counsel for the respondent contended that this was what the learned Magistrate had meant by his reference to s 371A's requirement for proof of a "fraudulent intent" or similar. That is, as I understood counsel, there was no other or additional mental element, of intent or otherwise, to which the learned Magistrate meant to refer.
22 I take the last point first. I consider the learned Magistrate's reasons somewhat unclear on why he found it necessary to refer as he did to the "element of fraudulent intent" from s 371. However, I consider that he probably did mean what I understood counsel for the respondent to have contended he meant, because of the next two sentences from his reasons which I have quoted. On the learned Magistrate's view, as expressed in those two sentences, the prosecution would "in most cases" establish the accused's knowledge of the unlawfulness element by establishing he knew the vehicle was stolen.
23 However, I am not convinced that s 371A has a mental element as contended. Counsel for the respondent placed heavy emphasis on Vallance v The Queen (1961) 108 CLR 56, a case on the Tasmanian Criminal Code. In some of the judgments it was said there was a mental element in the Tasmanian Code's offence, in s 172, of "unlawfully" wounding or causing grievous bodily harm. This mental element was to be found in the phrase in s 172 "unlawfully wounds" (Kitto J at 63- 64), assisted by s 8 of the Code (Taylor J at 67) or the common law of unlawful wounding (Windeyer J at 78).
24 That authority, and similar ones, was recently discussed in Houghton v The Queen [2004] WASCA 20, together with other authorities on penal prohibitions of "unlawful" conduct or "unlawfully" causing certain consequences. Houghton was an appeal against a conviction of unlawfully doing grievous bodily harm to a young woman contrary to s 297. The appellant had had consensual unprotected intercourse with the young woman as a result of which the HIV virus was transmitted to her. At the time the accused was aware he carried the virus. The majority of the court (Steytler and Wheeler JJ, Murray J dissenting) concluded that "unlawful" in s 297 should be read as follows (par 121):
"In the end, it seems to us that the word 'unlawful', in its context in s 297, should be given what we take to be its ordinary meaning of 'prohibited by law' or, to put it differently, contrary
(Page 12)
- to law and not excused (being the meaning put upon that word by this Court in Kuczynski (1989) [2 WAR 316]). There is, in our opinion, nothing in the context of s 297 which would require that the word be given anything other than its ordinary meaning. While we recognise, from Murray J's comprehensive survey of the legislation, that there is no consistent approach, in the Code, to the use of the word 'unlawfully', it seems to us to be significant that, in the case of s 277, which provides that any person 'who unlawfully kills another' is guilty of a crime, the legislature has seen fit to include, by way of s 268, a definition of unlawfulness by providing that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. In our opinion, had the legislature intended that the word 'unlawfully' should be similarly understood in s 297, it would have said so. Further, as we have noted, to the extent that the pre-existing law may assist in understanding the Code, R v Clarence [(1888) 22 QBD 23] supports what we would take to be the ordinary meaning of 'unlawfully'.
25 I note that all three members of the court in Houghton concluded the express discussions of "unlawfully wounding" in the three judgments in Valance (supra) were of no assistance in Houghton, in part because none cited R v Clarence (supra), or considered whether it could assist in "giving meaning to the word 'unlawfully'" (Steytler and Wheeler JJ at par 117), or because of Criminal Code Act 1924 (Tas), s 8, providing for the continued operation of the rules and principles of the common law with respect to that State's Code (per Murray J at par 31).
26 Counsel for the respondent drew my attention to other states' statutes creating offences similar to s 371A. The example was given of Crimes Act 1900 (NSW), s 154A, which does not use "unlawfully", but for one form of the offence has an express requirement that the offender knew the vehicle had been taken without the consent of the owner or person in lawful possession. It appears this was another possible construction of "unlawfully" in s 371A for which he was contending. However, mindful of the importance of attending to the Code context in this State, as Houghton (supra) affirms, I do not derive any assistance from this interstate statutory analogy.
27 This leaves the question of what meaning the word "unlawfully" should be taken to have in s 371A. I note the meaning ascribed to "unlawfully" in s 297 as described in Houghton (supra) per Steytler and Wheeler JJ (at par 121). However, I do not consider that this is the
(Page 13)
- meaning that should be given to "unlawfully" in s 371A. As indicated in Houghton (supra) at par 121 per Steytler and Wheeler JJ, it is necessary to take account of the context to the provision in the Code using the word. The context of s 371A is relevantly different from that of s 297, in my view.
28 The contextual difference lies in s 371A's placement in the Code immediately following s 371, and in its paralleling of the syntactical structure of that provision. For s 371(1)'s statement, that a person who "fraudulently" takes anything capable of being stolen, or fraudulently converts to his or another's use any property, is "said to steal", there is s 371A(1)'s statement, that a person who "unlawfully" uses, takes for the purposes of use, or drives or otherwise assumes control of a motor vehicle without its owner's consent or that of a person in charge of it, is "said to steal that motor vehicle". That 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.
29 I derive support for the possibility of such reading from the dictum in Lyons v Smart (1908) 6 CLR 143, at 147 – 148, of Griffiths CJ, quoted from in Houghton (supra), per Steytler and Wheeler JJ at par 108. That dictum, in a case on the meaning of "unlawfully" in s 233 of the Customs Act 1901 (Cth) prohibiting a person "unlawfully" importing goods, is as follows:
"Now, the word 'unlawfully' is a word commonly used in Statutes creating crimes, misdemeanours and minor offences, and in such Acts it is used in two shades of meaning, one when referring to an act which is wrong or wicked in itself – recognized by everybody as wicked – as, for instance, when it is used with reference to certain sexual offences, or with reference to acts which are absolutely prohibited under all circumstances; the other when referring to some prohibition of positive law. The Customs Act 1901 has nothing to do with what is right or wrong or virtuous. It contains certain arbitrary rules which the legislature lays down. What is wrong is wrong because the Act says so, and for no other reason. The word 'unlawfully' must, therefore, there being no other relevant law, be read in that context as meaning 'in contravention of the provisions of this Act'."
(Page 14)
30 As I have said, the provision I must construe, s 371A, appears to me, read in its context, to be concerned to equate the conduct it describes to stealing in its more widely understood, s 371, sense. I derive further support for this construction from legislative history of s 371A. At the hearing before me I asked counsel to provide me with any legislative history that might assist me in interpreting the provision. At the end of the hearing, counsel for the appellant produced the second reading speech, on 14 November 1991, of the leader of the House on the Criminal Law Amendment Bill. This was the bill that produced s 371A. I gave counsel for the respondent the opportunity to provide me with submissions on this material in writing. In the event, I received no such submissions.
31 In the speech referred to, the leader of the House describes the relevant provisions of the Bill and its background as follows:
"Stealing motor vehicles: The offence of stealing is in section 371 of the Code. It is defined as the fraudulent taking or conversion of property. The term 'fraudulent' is defined in section 371(2) in terms of intent. In general, that intent must be to permanently deprive the owner of possession of the property. If a person takes a motor vehicle, drives it and abandons it, and is then charged with stealing, the offender can argue under current provisions that he was merely joyriding and had no intention of permanently depriving the car owner of possession. As a result of this defence to car stealing, an unauthorised use offence was created in 1932. Unlike stealing, the prosecution need only prove use of the car without the permission of the owner or person in charge of the vehicle. A perception is held by some in the community that unlawful use of a motor vehicle or joyriding is less serious than stealing; the amendments are proposed to dispel that view. Part V of the Bill will repeal the offence of unauthorised use of a motor vehicle in section 390A of the Criminal Code, and insert a new offence of stealing a motor vehicle in proposed section 371A. The new offence will cover the same elements as now constitute the offence of unauthorised use or joyriding."
32 This legislative history is material I am able to use to help me identify the purpose of s 371A in relation to the application to this case of Interpretation Act 1984 (WA), s18. That provision requires me to prefer a construction which would promote the purpose or object underlying a statutory provision over one which would not. I can use the legislative history, as well as s 371A's context, to help me identify that purpose: see
(Page 15)
- D C Pearce & R S Geddes, "Statutory Interpretation in Australia", 5th ed (Sydney, Butterworths, 2001) at [2.7], [2.8] and [3.3]. 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. The two most likely forms of criminal responsibility would be that for traffic offences, such as speeding or dangerous driving, or for being a party to the stealing of a motor vehicle, as by being a passenger or driver of a vehicle the passenger or driver knew to be stolen (on the latter form of criminal responsibility, see Phipps and MacGill (supra), referred to in this context by Kennedy J in Pickett (supra)).
33 On my view of s 371A, it was not necessary in Pickett for the prosecution to establish that the accused had left his fingerprints "in the course of stealing the vehicle or while he was a passenger, knowing it to be stolen" (Pickett, per Kennedy J). Given the conclusion conceded by the parties in that case, that the fingerprints had been left while the vehicle was stolen, and given its condition (including that its keys were not also stolen), the additional element, would, it seems to me, also have been established by the conclusion he was a passenger in such a vehicle. In this case, however, the keys to the vehicle were also stolen, and the damage to the vehicle, as counsel for the respondent reminded me, was not similarly established to have been caused as part of the removal of the vehicle and its later abandonment. That matter is not, however, of significance to the case the prosecution had to make here, on the construction of s 371A that I have indicated should be preferred.
34 It follows I would uphold the first ground of appeal. The Magistrate's view of the case the prosecution had to make to withstand a no case submission was in error. It set an element of knowledge of each of the other items in the section, which forms no part of the elements of s 371A.
35 I turn now to the second ground of appeal to determine if, nonetheless, no substantial miscarriage of justice was done because the prosecution on the material before me had failed to make out a case sufficient to withstand a no case submission. That is, was the proviso in Criminal Appeals Act 2004 (WA), s 14(2), applicable in this case?
Ground 2: Error in law in finding no case to answer
36 Counsel for the appellant does not contend that the learned Magistrate enunciated the wrong test in approaching the no case submission. That test, as described for cases involving heavy reliance on
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- circumstantial evidence (such as this one), is in my view conveniently set out in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 484, 489, 490 – 491, per Malcolm CJ, Kennedy and Ipp JJ agreeing. The learned Magistrate for his part relied on May (supra) at 658, Waterhouse v Pas, unreported; SCt of WA (Miller J); Library No 980495; 1 September 1998 and R v Briggs (1987) 24 A Crim R 98. However, it seems to me that those cases together yield the same test as Morrison.
37 In Morrison (supra), at 489 and 490 – 491 per Malcolm CJ his Honour said:
"In my opinion, where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused: The Queen v Bilick and Starke (1984) 36 SASR 321 at 335 per King CJ; and Gebert, Haley & Black v The Queen (1992) 60 SASR 110 at 112-113 per Mullighan J (with whom King CJ and Olsson J agreed). The incorporation of the criminal standard in the test to be applied to no case to answer submissions was doubted by Burt CJ in R v Briggs (1987) 24 A Crim R 98 a104-105 as follows:
'I would, with great respect, doubt whether the question as it arises on a no case to answer submission should be formulated so as to embrace the criminal standard of persuasion. In my opinion, the question at that stage of the trial is simply whether the evidence called by the Crown is capable of sustaining a verdict of guilty and where, as in this case, such a verdict if returned rests upon circumstantial evidence, the question is whether the primary facts are capable by way of inference of sustaining a verdict of guilty, it being: "for the jury, properly directed, and for them alone to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds": Peacock (1911) 13 CLR 619 at 651, per Barton J cited with approval by Menzies J in Plomp (1963) 110 CLR 234 at 246.'
…
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- This decision was followed in Gebert, Haley & Black v The Queen, above, at 112-113 per Mullighan J, with whom King CJ and Olsson J agreed. In that case, as in this, the Court had to determine whether the circumstantial evidence relied upon was sufficient to give rise to a case to answer. The court approved and applied the test stated by King CJ in Bilickat337as follows:
'The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt…Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?'"
39 In this case, although he appears to have referred to and purported to apply the correct tests for no case submission, it is not clear to me that the learned Magistrate in fact evaluated the prosecution's case in these terms.
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- He did appear to consider whether the evidence was capable of establishing that the accused was in possession of the vehicle. This, as I have indicated, was for the purposes of considering whether the doctrine of recent possession was available to support the prosecution's case. As I indicated on the first ground of appeal, to the extent the accused's involvement in and general knowledge of the stealing of the vehicle had no bearing on any part of the s 371A offence in this case, this doctrine had no place in it. It is true that the learned Magistrate indicated his view the accused "could easily have merely spoken to the driver through an open window and merely touched or even deposited saliva, for example, coughing or sneezing or even talking, in the internal parts of the vehicle where they were found". But the learned Magistrate's task was to consider whether (in this case) the prosecution's case, taken at its highest, was capable of producing the requisite level of satisfaction that the accused's conduct with respect to the vehicle was conduct within s 37aA(1)(a),(b) or (c). This would not be the case if (ignoring any other inferences) no reasonable inference of such conduct could be drawn, or (taking account of such other inferences) it was incapable of excluding a reasonable inference that the accused's conduct was not of that sort.
40 That the DNA could "easily" had been deposited, as the learned Magistrate indicated, does not clearly indicate to me that he had asked himself the question, whether the prosecution's case was incapable of excluding it or any other inference inconsistent with conduct by the accused within s 371A(1)(a) – (c). There was at least some evidence the Magistrate considered he had that permitted such an inference to be drawn "easily". But that is not the test as I have described it.
41 Nor do I consider that I am in a position to apply the test I have described. I do not have all of the material before the Magistrate (such as photographs of the vehicle) that might be of assistance in answering the question. Therefore I am unable to conclude that no substantial miscarriage of justice occurred when the no case submission was accepted and the complaint dismissed.
42 It is true that at the point of the no case submission there could be no question of using the lack of evidence from the accused as to how his DNA was deposited to show any inferences consistent with his innocence ceased to be reasonable ones. See Kennedy J in Pickett (supra) on such use after a no case submission has failed; his Honour's approach was the one approved of at the hearing at which special leave to appeal to the High Court was refused, (1999) 16 Leg Rep SL 1a. However, as I have
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- indicated, it is not clear to me that the application of the test I have described would have resulted in the acceptance of a no case submission.
43 Accordingly, I would uphold the second ground of appeal.
Order
44 It follows that I would quash the dismissal of the complaint and remit the matter to the same Magistrate for him to determine it in accordance with these reasons.
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