Shells v Needham - [2010] WASC 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SHELLS -v- NEEDHAM [2010] WASC 302

CORAM: EM HEENAN J

HEARD: 8 OCTOBER 2010

DELIVERED : 8 OCTOBER 2010

PUBLISHED : 27 OCTOBER 2010

FILE NO/S: SJA 1050 of 2010

BETWEEN: MELANIE ROSE SHELLS
Appellant
AND
DEBBIE NEEDHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R K BLACK
File No  :JO 10497 of 2009, JO 10496 of 2009

Catchwords:

Appeal - Breach of violence restraining order - Use of telephone - Denial of allegation - Oath versus oath - No reversal of onus of proof - No breach of principle of Liberato v The Queen [1985] HCA 66

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Ms K L Pope

Solicitors:

Appellant: Fiocco's Lawyers
Respondent: State Solicitor for Western Australia

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

Cooper v The State of Western Australia [2010] WASCA 190
Harling v Hall (1997) 94 A Crim R 437
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

EM HEENAN J: On 23 March 2010 the appellant, Melanie Rose Shells, was tried before the learned magistrate in the Magistrates Court at Perth on two charges for offences alleging breaches of a violence restraining order. The first charge was that on 18 March 2009 at North Perth, having been personally served with a violence restraining order number 2008/00722, she breached that order by communicating or attempting to communicate with the protected person. The second charge was that on 19 March 2009, the next day and again at North Perth, having been personally served with a violence restraining order number 2008/00722 (the same VRO) she breached that order by communicating or attempting to communicate with the protected person.
After the trial the learned magistrate found the appellant guilty of both charges and, after hearing further submissions, on 21 April 2010 imposed a global fine of $500 for both convictions, ordered her to pay costs of $60 and made an order that in relation to each conviction there should be a spent conviction order.
From those two convictions Ms Shells now has made application for leave to appeal to this court on grounds specified in a proposed notice of appeal dated 19 May 2010. By orders made on 28 July 2010, her Honour, Jenkins J, granted leave to appeal upon those grounds. Those grounds were that:
(1)the learned magistrate erred in law by misapplying the principles relating to the onus and standard of proof with the following particulars:
(a)the learned magistrate, in finding the charges proven, stated that he preferred the evidence of the complainant to the accused; and
(b)the learned magistrate failed to direct himself in accordance with the principles enunciated in Liberato v The Queen (1985) 159 CLR 507.
Since then the appellant has applied for leave to amend the notice of appeal and the grounds of appeal to include a second ground of appeal as follows:
(2)the learned magistrate erred in reversing the onus of proof by inferring that because James Clarke did not give evidence that he made the specific telephone calls, the subject of the charges, the prosecution case could be proven beyond reasonable doubt.
That application for leave to amend the grounds of appeal itself necessitated a grant of leave to appeal on the proposed new ground. It was raised at the beginning of the hearing. I directed that the application for leave to amend and leave to appeal on those grounds should be heard as part of the appeal generally and the hearing has proceeded on this footing.
The background of the circumstances reveals a sad family relationship. The protected person is the mother of the young man with whom the appellant has been living, and the appellant is the mother of a young child of the protected person's son, but it is evident that the relationship both between the appellant and the protected person's son, on the one hand, and the mother, on the other hand, has been very poor and that there have been arguments, allegations of assault and a history of recrimination reaching back a number of years. This is so much so that there are suggestions that it is unusual for the son or the appellant to be in touch with the protected person, whether by telephone or otherwise.
This past history has led to the making of the violence restraining order in question which prohibited the appellant from communicating with or attempting to communicate with her partner's mother, the protected person. That VRO has been served upon the appellant and was in force at the time of these alleged offences.
It was also established and, in fact, not contested at the hearing that on the dates of the alleged offences there were two telephone calls made from the appellant's mobile telephone to the protected person's number. The issue at the trial was who made those calls because if they had been made by the appellant or, more strictly, if it had been proved to the requisite degree that they had been made by the appellant, that would have constituted breaches of the VRO.
The evidence of the protected person before the learned magistrate was that on the first occasion, a telephone rang in the evening. She answered the phone. The person making the call said, 'Mel here.' The protected person recognised the voice as being that of the appellant and took no further part in the conversation.
In relation to the second conversation, that occurred early the following morning. Again the protected person's telephone rang. She picked up the receiver. The caller made remarks which might be regarded as threatening but, more importantly, the protected person specifically said that it was the appellant whose voice she recognised on that occasion. Essentially, that was the evidence for the prosecution at the trial.
In the course of the examination of the protected person at the trial there was no specific allegation put in cross‑examination that the caller on the first call did not say the words 'Mel here', although it must be acknowledged that the tenor of the cross‑examination was that it was not the accused who made that call. It was suggested to the protected person that it may have been her son, but she denied that.
When offered the opportunity to give evidence in defence of the two charges, the appellant, without being obliged to do so, decided to give evidence on oath that she did not make either of the telephone calls, so there was a direct denial of the allegations that she had made the phone calls. Also, as part of the defence, the appellant called her partner, the protected person's son, and in the course of his evidence, he was asked whether or not it was customary for him to telephone his mother. His initial evidence was to the effect that he rarely did so and only did so on occasions when his mother had tried to contact him or contact persons in an effort to get in touch with him, and that it was necessary for him to respond, either to deal with the matter of the inquiry, or to protest about what, by implication, was resented apparent interference in his affairs.
As the protected person's son's evidence proceeded it became apparent that the telephone contact with his mother may have been more frequent than his initial answers suggested and that in making this contact it was not at all unusual, in fact, it was common, for him to use the appellant's telephone from their home. He would ring on that mobile because the credit on his own phone was low or exhausted and it was, therefore, possible by implication that on the days in question he may have made the two phone calls. His evidence did not expressly go that far and he had no recollection of details of when he had rung his mother and did not say specifically that he rang on 18 or 19 March 2009, being the dates in question.
In those circumstances, his Honour was left to decide the case and it was, as has been put on behalf of the appellant, essentially a case of oath against oath. These cases can often be difficult and in the situation where there is hostility or animosity between the parties giving the opposing versions it is obvious to any experienced judicial officer that such evidence must be regarded with considerable caution and that the process of rationalisation or making a finding of fact must be undertaken with a clear understanding of the onus of proof and the burden of proof.
In this particular instance, his Honour gave oral reasons on 23 March 2010 before reaching his conclusion to convict the appellant.
In the course of those reasons at page 19 the learned magistrate said:
What is said is that it was not Ms Shells who made those telephone calls. There has been evidence put before me of the relationship between the parties and another restraining order but, with respect, that is really irrelevant to these proceedings. What is relevant is the evidence of Ms Shells that she did not make those two particular telephone calls.
His Honour then goes on to describe the calls before proceeding by saying:
Now, clearly during the course of Ms Clarke's cross examination it was put to her that it was not Ms Shells who made that telephone call or spoke, but it was Ms Clarke's son James, with whom Ms Shells was in a relationship at the time. Ms Clarke said that simply wasn't the case. She recognised the voice as being that of Ms Shells. It was not put to Ms Clarke during the course of cross‑examination that the words 'Mel here,' were not words that were spoken. If it was Ms Clarke's son James who made the telephone call, it seems to me highly unlikely that her uncontradicted evidence was incorrect and that her son James said, 'Mel here.'
His Honour goes on and says:
In relation to the telephone call of 19 March which she said occurred around 7.30 in the morning, her evidence was the words spoken on that occasion were the words, 'Don't make me get rid of or dispose of you.' There was not evidence of the voice on the telephone identifying herself or himself in any way, but Ms Clarke's evidence is again that given her previous conversations with Ms Shells on the telephone, given that she had known her for some four or five years, that she clearly recognised the voice that spoke those words as being that of Ms Shells.
His Honour went on to identify in more detail areas of conflict between the evidence and then referred to the evidence of the son, James Clarke, before going on to say:
He [meaning the son] did give evidence about a specific date recently but that was the only date that he was able to say that he used Ms Shells' phone for the purpose outlined. Clearly, as indicated, he did not say that on either 18 or 19 March 2009, it was he who used Ms Shells' mobile phone for the purpose of contacting his mother. So in that regard, his evidence really takes us nowhere. While the suggestion has been made during cross‑examination that it was James, his evidence is not to that effect.
Then before proceeding to consider what findings should be made his Honour says expressly:
Now, of course Ms Shells, by way of her own evidence or other evidence that she calls, is not required to prove anything. The onus of course is on the prosecution to establish a charge and each element of the charge to the necessary degree beyond reasonable doubt. If there is reasonable doubt, the benefit of that doubt must be given to an accused person.
That observation suggests that his Honour was clearly aware of the relevant onus of proof and the burden of proof and correctly identified it in relation to this case. This observation is relevant to the proposed second ground of appeal that the learned magistrate erred in reversing the onus of proof by inferring that because James Clarke did not give evidence that he made the specific calls the subject of the charges, the prosecution case could be proven beyond reasonable doubt.
It is, of course, possible that, notwithstanding his correct identification and allocation of the onus of proof and the burden of proof generally, in this case, his Honour may have unconsciously departed from it, but there is nothing to suggest that his Honour did. In relation to the observation about James' evidence not amounting to a statement that on 18 or 19 March 2009 he telephoned his mother, his Honour was correct to observe that there was no direct confirmation by the son that he had phoned his mother on the particular occasions. Nevertheless, the submission is that there has been an unconscious departure from the observance of the proper burden of proof and onus of proof and that is apparent from the paragraph from his Honour's reasons which I now read. It is this:
In this instance, however, notwithstanding the blanket denial of Ms Shells, given Ms Clarke's evidence in relation to the first phone call, Ms Shells identifying herself to her, saying, 'Mel here,' and not being cross‑examined in relation to that, and the fact that she, Ms Clarke, says that she clearly recognised the voice on both occasions, both the 18th and the 19th, as that of Ms Shells, in respect of whom she has had other prior telephone conversations, and her denial that the denial was that of her son James - one would think normally that where there is that relationship, mother and son, that Ms Clarke would easily recognise the voice of her son on the telephone, having spoken to him numerous times on the telephone, as even James her son has indicated. In those circumstances, in my view, the evidence of Ms Clarke as to the person on the telephone is to be preferred. (emphasis added)
It is the use of the phrase that the evidence of Ms Clarke 'is to be preferred' which is seized on for the submission that the learned magistrate has failed to apply the proper onus of proof and standard of proof. Before dealing with that I should conclude by quoting another paragraph from his Honour's reasons which follows immediately. His Honour said:
As a result, I find as facts that approximately at 10.18 on 18 March, that Ms Shells did telephone Ms Clarke and that at approximately 7.30 the following morning, 19 March, she again telephoned Ms Clarke. To do so clearly is a breach of the violence restraining order that it is agreed was in position at that time. For those reasons, I find the prosecution has proved each of the two charges to the necessary degree.
The point raised by the appellant is that by using language that the evidence of Ms Clarke as to the person on the telephone was to be preferred does not amount to a finding that the evidence of Ms Clarke satisfies the tribunal of fact beyond reasonable doubt that the charge is proved. Implicit in the submission is the well-known possibility that preferring one version of events to another does not mean that the rejected version of events has been shown beyond reasonable doubt not to have occurred or, perhaps more properly, does not show beyond reasonable doubt that the accepted version of events has been established beyond reasonable doubt.
Hence, there are many passages in the authorities dealing with the need in jury cases to remind the jury that where an issue in the case depends upon two diametrically different versions of events, whether one of them should be accepted, the rejection of one does not necessarily lead to the acceptance of the other and that the other version cannot be accepted to sustain a verdict or part of a verdict unless the tribunal of fact is satisfied beyond reasonable doubt that it should be so accepted. There are many instances of this principle both in jury cases and in cases before a judge or magistrate sitting alone. It underlines the need for the so‑called Liberato direction, stemming from the decision in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 and other cases, including Cooper v The State of Western Australia [2010] WASCA 190 and Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531.
An example of the principle at work and the insidious dangers that can arise if there is no more than a finding that evidence of one witness against another on a crucial issue is preferred can be found in the judgment of Anderson J in a case in this court of Harling v Hall (1997) 94 A Crim R 437. This was a case concerning the possession of cannabis and there were a number of issues, one of which was the finding by the learned magistrate that he preferred the evidence of one witness on a critical issue against that of another. His Honour described why that was not an acceptable discharge of a proper burden of proof, saying at (443):
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.
His Honour continued:
I have considered the possibility that when his Worship used the introductory words to which I have referred, he really meant that 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 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'.
In this present case the language used by his Honour that the evidence of Ms Clarke as to the person on the telephone is to be preferred is capable of arousing the kind of concerns which I have spoken of and which Anderson J so eloquently identified and described. However, no such conclusion should be reached, in my opinion, because it is quite evident that his Honour immediately before embarking on this exercise addressed himself directly and properly as to the onus of proof and the degree of proof and acknowledged that the appellant as an accused, was not required to prove anything. As I have already quoted, his Honour correctly said that the onus, of course, is on the prosecution to establish the charge and each element of the charge to the necessary degree beyond reasonable doubt and it is with that test in mind that his Honour has reached the conclusion that the evidence of Ms Clarke as to the person on the telephone is to be preferred in the sense, I am satisfied, that his Honour meant it should be accepted. This is reinforced by several aspects of the case: first, his Honour's earlier analysis of what was said in the course of the evidence in cross‑examination involving an analysis of the plausibility of the evidence on both sides; and second, the inconclusive nature of the evidence by the son and, implicitly, by his Honour's obvious acceptance that the protected person was a witness of credit.

His Honour then went on to find specifically as a fact that it was the appellant who made both the telephone calls. Therefore, this is an instance where, despite the potentially ambiguous use of the phrase that the evidence of Ms Clarke was to be preferred, his Honour was obviously cognisant of the need to be satisfied that the evidence for the prosecution demonstrated beyond reasonable doubt the guilt of the defendant. I do not consider that any error has been demonstrated by the approach taken by the learned magistrate in this respect.
As to the proposed second ground of appeal that there was a reversal of the onus of proof, I do not think that that should be accepted. Again his Honour expressly identified for himself correctly the location and onus of proof in the case before him but mentioned no more than the fact that the evidence of the son did not amount to a direct denial or rejection of the evidence of the mother.
For these reasons, while I would give leave to amend the grounds of appeal to introduce the second ground and I have addressed that ground in the reasons which I have been expressing, I will dismiss the appeal.