Ryan v Dimitrovski
[2000] WASCA 116
•4 MAY 2000
RYAN -v- DIMITROVSKI & ANOR [2000] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 116 | |
| Case No: | SJA:1003/2000 | 18 APRIL 2000 | |
| Coram: | SCOTT J | 4/05/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| PDF Version |
| Parties: | ALEXANDER PATRICK RYAN GEORGE DIMITROVSKI MARGARET MARSHALL DIMITROVSKI |
Catchwords: | Application for leave to appeal Property reasonably suspected of being stolen or unlawfully obtained No case submission Special leave to appeal to High Court refused Remitted to Magistrate Magistrate dismissed charges Justices Act 1902 s 187(1) Magistrate made appropriate findings of fact and adequately set out the evidence Interests of justice not served by further delay No arguable case Respondents facing serious financial difficulties as a result of length and cost of prosecution Application dismissed |
Legislation: | Justices Act 1902, s 187(1) |
Case References: | Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995 Brunskill v Sovereign Marine (1985) 62 ALR 53 Cotton v Walker, unreported; SCt of WA (Scott J); Library No 930628; 19 November 1993 Devries v Australian National Railways Commission (1973) 177 CLR 472 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] NSWLR 378 Jones v Hyde (1989) 85 ALR 23 Motor Vehicle Insurance Trust v Tretjak, unreported; FCt SCt of WA; Library No 7596; 13 April 1989 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 Stojkovski v Fitzgerald [1989] WAR 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
GEORGE DIMITROVSKI
First Respondent
MARGARET MARSHALL DIMITROVSKI
Second Respondent
Catchwords:
Application for leave to appeal - Property reasonably suspected of being stolen or unlawfully obtained - No case submission - Special leave to appeal to High Court refused - Remitted to Magistrate - Magistrate dismissed charges - Justices Act 1902 s 187(1) - Magistrate made appropriate findings of fact and adequately set out the evidence - Interests of justice not served by further delay - No arguable case - Respondents facing serious financial difficulties as a result of length and cost of prosecution - Application dismissed
Legislation:
Justices Act 1902, s 187(1)
(Page 2)
Result:
Application for leave to appeal refused
Representation:
Counsel:
Applicant : Mr J A Thomson
First Respondent : Mr R W Bower
Second Respondent : Mr R W Bower
Solicitors:
Applicant : State Crown Solicitor
First Respondent : Corsers
Second Respondent : Corsers
Case(s) referred to in judgment(s):
Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
Case(s) also cited:
Brunskill v Sovereign Marine (1985) 62 ALR 53
Cotton v Walker, unreported; SCt of WA (Scott J); Library No 930628; 19 November 1993
Devries v Australian National Railways Commission (1973) 177 CLR 472
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] NSWLR 378
Jones v Hyde (1989) 85 ALR 23
Motor Vehicle Insurance Trust v Tretjak, unreported; FCt SCt of WA; Library No 7596; 13 April 1989
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306
Stojkovski v Fitzgerald [1989] WAR 328
(Page 3)
1 SCOTT J: This is an application for leave to appeal against the decision of a Magistrate to dismiss a charge laid against each of the respondents in the Court of Petty Sessions at Karratha.
2 The charge alleged that on 21 December 1995 at Karratha the respondents had in a place, namely, the Australian and New Zealand Bank, Robinson Street, Carnarvon, a 6.6 kg gold nugget, reasonably suspected of being stolen or unlawfully obtained.
3 The case has a long and complex legal history, having already been to the High Court and been returned to the Magistrate.
4 When the case was first heard in the Karratha Court of Petty Sessions, the complaints against each of the respondents was dismissed following a submission of no case to answer. The complainant appealed to the Full Court. Malcolm CJ and Steytler J allowed the appeal but Rowland J in the dissent would have dismissed the appeal. The Full Court remitted the matter to the Magistrate for further hearing and determination according to law. The respondents to this appeal sought special leave to appeal to the High Court from the decision of the Full Court. Special leave to appeal was refused. In the end, the matter was remitted to the Magistrate for further hearing. The hearing resumed on 7 October 1999. On that occasion, further evidence was called before the learned Magistrate and the respondents were each called to give evidence at the hearing.
5 After reserving his decision, the learned Magistrate delivered reasons for decision on 20 December 1999 and dismissed the charges. The applicant now seeks to appeal from that dismissal.
6 The grounds of appeal are:
"A The learned Magistrate erred in dismissing the complaints against the Respondents (Defendants) in that he:
(a) erred in law in failing to provide adequate reasons for his decision.
Particulars
(i) The learned Magistrate's reasons for decision failed to explain how the learned Magistrate resolved the conflicts between the evidence of the Respondents
(Page 4)
- (Defendants) and the evidence of the other witnesses including Alan Thompson, Kimberley Thompson, Frank Welsh, Detectives Michael Riley, Lawrence Miller, Jeffrey Beaman and Alexander Ryan.
- (ii) The learned Magistrate's reasons for decision failed to address:
(A) the Respondents' (Defendants') evidence which contradicted the evidence of police officers when the substance of the Respondents' (Defendants') evidence had not been put to the police officers in cross-examination;
(B) the Respondents' (Defendants') evidence of the other events which allegedly occurred at the time of police interviews when the substance of those events was not put to the police officers in cross-examination; and
(C) the Respondents' (Defendants') evidence which contradicted the evidence of Alan Thompson when the substance of the Respondents' (Defendants') evidence had not been put to Alan Thompson in cross-examination.
(b) Erred in fact in finding that the Respondents (Defendants) had provided a reasonable and honest explanation and a true story as to how they found the gold nugget, and that it was impossible to fault the Respondents' (Defendants') evidence."
7 At this stage the application is for leave to appeal; it is not the hearing of the appeal itself. The test to be applied on an application for leave to appeal is whether the applicant has an arguable case in the sense that the appeal is not either frivolous or vexatious (Justices Act 1902, s 187(1)).
(Page 5)
8 As can be seen from the proposed grounds of appeal, apart from matters of fact, the applicant seeks to appeal against the inadequacy of the reasons of the learned Magistrate.
9 In order to deal with the grounds of appeal, it is necessary to examine the reasons for decision of the learned Magistrate, which were brief and can be set out in full:
"The prosecution case was that a complaint had been made by a Mr Welsh in relation to a nugget found by the defendants. Mr Welsh said that he had not seen the defendants find the nugget but on 26 August 1995 had seen the defendants on the leases of which he is a caretaker, near Marble Bar. The defendants were with two other people one of whom was Mr Bruce Hawarri. Mr Welsh had allowed Mr Hawarri to prospect on the lease with certain conditions attached. He said to the defendants that only Bruce Hawarri had permission to be on the lease. On 26 August 1995 the others must leave. He later learnt that the defendants had found a large nugget. He complained to the police of his suspicions.
At the time of his police interview, George Dimitrovski said he had found the nugget on his own lease. He later said he had found it on Crown land. In evidence and under cross-examination he said only that it came from his lease or from Crown land. Mr Thompson was told on 11 September 1995 by the defendant Margaret Dimitrovski, that they had found the nugget on their own tenement. On 26 September 1995 Margaret Dimitrovski told Mr Thompson that the nugget had been found at the south end of Shark Bay. The prosecution case is that the defendants gave differing versions as to where the nugget was found.
The evidence of the defendants given in Court was that both were long time prospectors. They held tenements and prospecting licences one of which was in the Marble Bar area. The defendant Margaret Dimitrovski said that she had said the nugget was found in a number of different locations because if the right location had been given out, then there would be a stampede by other prospectors to that place. The history of the Kalgoorlie area provides a concrete example of how disclosure of the location of nuggets can be followed by stampedes of prospectors.
(Page 6)
- I have asked myself why the defendants would ring Thompson twice. In my opinion gold prospectors are very suspicious of one another. If the defendants had found the nugget on someone else's land why would they go on national television to discuss their find? Did they think they would be able to convince the public that they had found it on their lease? Would they be that stupid?
The prosecution must establish that:
1 gold was found in the defendant's possession; and
2 that the circumstances in which it was found gave rise to a reasonable suspicion that it could have been unlawfully obtained.
I find that the prosecution has satisfied these elements. The Supreme Court and the High Court had directed me to make this finding. It is now for the defendants to satisfy me that they found it lawfully. (Dunleavy v Dempsy (1916) 18 WALR at 90 and 91). In doing so I take into consideration the statements that the defendants made to the police, the conversations between Margaret Dimitrovski and Mr Thompson and I have tried to look behind the records of interviews made in Carnarvon and Karratha. The accused must prove to the satisfaction of the Magistrate that they lawfully obtained the nugget. They must dispel the suspicions. (Dunleavy v Dempsy at 101 where it cites McDonald v Webster).
It is unclear whether Bruce Hawarri had permission to bring other prospectors on to the lease. I note conflicting statements here between the defendants. The defendants did give different versions of where the gold was found. The only disclosure of where the gold really was found was made by George Dimitrovski and he said it was on Crown land. He later strongly denied this in cross-examination. In the Karratha interview he said it was found on his lease but it may have been found on Crown land. He later denied saying that the nugget was not found on his lease. Margaret Dimitrovski also said that it might have been found on Crown land. (Page 123 of the transcript). The prosecution case was flatly denied by the defendants.
(Page 7)
- The defendants must give a reasonable and probable account as to where the nugget was found. They must provide a reasonable and honest explanation and a true story as to how they found the gold nugget. It must be one that I believe. I have considered that the demeanour of the defendants in examination and cross-examination and consider that I am satisfied beyond reasonable doubt that they have provided a reasonable, honest explanation and true story as to the finding of the nugget. The defendants were credible witnesses who answered the questions without evading them. It's impossible to fault their evidence. They didn't evade the questions especially under heavy cross-examination.
Both charges are dismissed."
10 In examining those reasons, it is quite apparent, in my opinion, that the learned Magistrate accepted the evidence of the respondents. The case involved what was said to be the respondents' finding of the 6.6 kg gold nugget in the north of this State. The prosecution case was that the nugget had either been located on land over which other people had mining leases, (or at least prospecting rights), or else was located on land over which the respondents' had no right to prospect.
11 In their evidence at the trial, the respondents gave part of their evidence in camera because they wished to disclose, in private, the precise whereabouts of the location of the gold nugget. It was not disputed that their evidence in that respect was precise and that they gave considerable detail as to exactly where the nugget was located.
12 So far as the prosecution's case was concerned, counsel for the applicant maintained that the respondents had given conflicting evidence as to where the nugget was located. In that respect there was evidence that the respondents had given conflicting stories to different people as to where the nugget was found. In some respects that was hardly surprising as the nugget was said to be of considerable value.
13 His Worship was conscious of all of these facts, as revealed in his reasons set out earlier. As can be seen from his Worship's reasons, he accepted the evidence of the respondents as, in his view, they had "provided a reasonable, honest explanation and true story as to the finding of the nugget".
14 In my opinion the grounds of appeal are essentially misconceived. It is not for the learned Magistrate to resolve all of the conflicts of evidence
(Page 8)
- so long as he makes appropriate findings of fact and adequately sets out the evidence, which he accepts. In this case, in my opinion, that obligation has been adequately complied with by the learned Magistrate.
15 It is not necessary to descend into further particulars at this stage of the appeal, as the question is whether the grounds of appeal, as advanced, disclose an arguable case.
16 Counsel for the applicant relied upon the decision in Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995 at 16-17:
"However, the major difficulty disclosed in this appeal is the bland statement made by the Magistrate that her findings are based on 'the veracity of the evidence of each witness' without referring to particular conflicts and without explaining why those conflicts have been resolved in a particular way. I think this is unfortunate. The authorities indicate that a judicial officer needs to do more than simply say in general terms which of competing bodies of evidence has been found to be the more compelling. It is an important part of the decision making process. Reasoning of this nature should normally be disclosed: see Stojkovski v Fitzgerald (1989) WAR 328 at 334; Cotton v Walker, unreported; SCt of WA (Scott J); Library No 930628; 19 November 1993 at 10-11. When the credibility of witnesses is involved and key evidence is definitely accepted or rejected it will almost always be advisable to say so: R v Connell (1985) 2 NZLR 231 at 237."
17 In this case the matter needs to be looked at in the light of its entire history. As I have said, the matter was first dealt with following a submission of no case to answer, in circumstances where the Full Court held that it was incumbent upon the respondents to give an explanation as to where the gold nugget was found. They did so at the resumed hearing the subject of this appeal, and, according to the reasons of the learned Magistrate, did so in a way which he found both credible and truthful. In my opinion, in making his findings of fact, his Worship did all that was required of him and it was not necessary for him to go through and explain why he accepted the respondents' evidence and deal with the various conflicting stories that they had given.
18 Whilst it is rare for this Court to dismiss an application for leave to appeal because legal requirements for leave to appeal are usually easily
(Page 9)
- met, this, in my view, is one of those cases where leave should be refused. As I have indicated, the matter already has a very long legal history and it hardly serves the interests of justice to have the matter delayed further in these circumstances. I have examined the grounds of appeal, the transcript of the hearing in the court below, and the reasoning of the learned Magistrate and have come to the conclusion that the applicant does not have an arguable case to take this matter further on appeal.
19 Although it is a factor of little weight, the respondents' depose that they are facing serious financial difficulties as a result of the length and costs of this prosecution. They testify in an affidavit of 21 February 2000 that they have spent approximately $50,000 on legal costs and on the travelling and accommodation expenses involved in these proceedings over the past five years. The affidavit discloses that they are people with limited means and that this protracted course of litigation has placed them under considerable financial stress.
20 It is for these reasons that I have examined this application with care in an endeavour to try and identify the likely strength of the applicant's case on appeal.
21 Having given the matter careful consideration, I am not persuaded that the grounds of appeal are sufficiently arguable to justify granting leave to appeal. In my view it would not serve the interests of justice for this Petty Sessions' prosecution to be taken further.
22 The application will be refused.
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