Skye Bianca Joyce v Craig Anthony Baird
[2013] ACTSC 79
•3 May 2013
SKYE BIANCA JOYCE v CRAIG ANTHONY BAIRD & ANOR
[2013] ACTSC 79 (3 May 2013)
APPEAL AND NEW TRIAL – appeal against conviction – failure to appear – Bench Sheets admissible under s 157 Evidence Act2011 (ACT) – appeal dismissed
APPEAL AND NEW TRIAL – appeal against conviction – failure to appear – fault element under s 49(3) Bail Act1992 (ACT) – overlooking obligation to appear does not satisfy the element of ‘reasonable excuse’ – appeal dismissed
APPEAL AND NEW TRIAL – appeal against conviction – minor theft – temporary unavailability of witness – witness deemed available – statement by witness tendered in her absence inadmissible – appeal dismissed
Bail Act1992 (ACT)
Evidence Act2011 (ACT)
Criminal Code 2002 (ACT)
McCall v Werry (unrep, 2 April 1982, NSWSC)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 74 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 3 May 2013
IN THE SUPREME COURT OF THE )
) No. SCA 74 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SKYE BIANCA JOYCE
Appellant
AND:CRAIG ANTHONY BAIRD
First Respondent
AND:PAUL LAWRENCE REYNOLDS
Second Respondent
ORDER
Judge: Higgins CJ
Date: 3 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeals be dismissed.
The matter be remitted to the learned Magistrate to impose sentence.
The appellant, Skye Bianca Joyce, has appealed from convictions for, firstly, an offence against s 49 of the Bail Act1992 (ACT) (‘Bail Act’) that provides:
(1) A person commits an offence if the person –
(a) gives an undertaking to appear before a court; and
(b) fails to carry out the undertaking.
Maximum Penalty: 200 penalty units, imprisonment for 2 years or both.
(2)The court may issue a warrant to arrest the person and to bring the person before the court.
(3)Subsection (l) does not apply if the person has a reasonable excuse for failing to carry out the undertaking.
She was also charged, under s 321 of the Criminal Code 2002 (ACT) (‘the Code’) with the theft of a three piece pot set, to the value of $539.95, belonging to David Jones Ltd at Phillip in the Australian Capital Territory on 21 February 2011.
She was granted bailed to answer that latter charge when she first appeared on 23 August 2011.
Magistrate Walker released the appellant on her own recognisance to appear on 13 September 2011. She failed to appear on that date and Magistrate Doogan “forfeited bail” and directed a warrant to issue. Under s 8 of the Bail Act, the appellant was entitled to bail. Under s 28 of the Bail Act, an undertaking to appear is and was required of the appellant. Sub-section (4) provides:
A court must accept an undertaking given under this section as proof of the matters stated in it if there is no evidence to the contrary.
Section 49 of the Bail Act, referring to failure to answer bail, as noted, creates an offence and empowers the court to issue a warrant for the arrest of the person who has failed to carry out the undertaking to appear. It does not confer any power to “forfeit bail”.
Under s 33 of the Bail Act, a court may “continue bail” whether or not the person is before the court. It may make some other order on the occasion of any adjournment, postponement or deferment of the proceedings or of committal for trial in this court.
However, and this no doubt was his Honour’s intent, under s 33 (3) of the Bail Act:
If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking –
(a) the court is taken to have continued bail; and
(b)the undertaking to appear and any bail conditions continue to apply.
The entry made by the learned Magistrate indicated an intention to revoke or suspend the bail order.
On 22 September 2011 the appellant was apprehended and charged before the court with failure to carry out her undertaking to appear.
She was granted bail in the sum of $500 to appear on 30 September 2011.
Thereafter she appeared as required.
The matters were ultimately listed before Special Magistrate Chenoweth. Pleas of not guilty were maintained in respect of each of the matters referred to above.
The case began on 7 August 2012 with Mr O’Keefe, for the appellant, raising two issues, first was the admissibility of the Bench Sheets the prosecution tendered to prove matters relevant to the grant of bail and the failure to comply with the bail undertaking. Second was whether a witness who had failed to attend to give evidence concerning the second charge (minor theft), was “unavailable” within the meaning of s 65 of the Evidence Act2011 (ACT) (‘Evidence Act’) so that a police statement she had given might be tendered to prove the truth of its contents.
His Honour admitted the Bench Sheet, and the bail undertaking to be signed by the appellant dated 23 August 2011, purportedly pursuant to s 69 of the Evidence Act.
It follows that the findings of guilt should stand. The appeal is dismissed and the matter referred back to the learned magistrate to impose sentence.
Admissibility of Bench Sheets
The Bench Sheets in the Magistrates Court are part of the normal records of the court. Section 317 of the Magistrates Court Act 1930 (ACT) makes a transcript or other recording of proceedings evidence in any proceedings to which it or they are relevant. Section 69 of the Evidence Act allows records of “a business” as exceptions to the hearsay rule. These records would comply with s 69 (2) of the Evidence Act insofar as they were made by a person with direct knowledge of the asserted facts. The only reservation is whether s 69 (3) of the Evidence Act applied if the record is to be regarded as having been made or obtained “in connection with an Australian proceeding”.
That means a proceeding in an Australian Court (See Dictionary). This was clearly enough such a proceeding. It follows that s 69 of the Evidence Act did not permit the admission into evidence of a bench sheet recording appearances and other details.
However, s 157 of the Evidence Act renders admissible a public document that “...purports to be signed by a magistrate”.
That would, in my view, extend to an entry signed by a magistrate on a bench sheet. Thus although the incorrect section was referred to by the learned Magistrate, the finding of admissibility is the same.
The Bench Sheets clearly indicate the grant of bail to the appellant and the condition that she appear on an undertaking to do so. These documents were signed in accordance with s 157 and thus were admissible to establish these facts as well as the subsequent non-appearance of the appellant.
Constable Reynolds was called. He had executed a warrant issued in relation to the apparent failure of the appellant to appear on 13 September 2011. That occurred on 22 September 2011. He said that the appellant when confronted “seemed surprised that the warrant was in existence”. She said that she wasn’t aware that she had any matters before the court.
The appellant was then called. She deposed that she did not recall signing the bail undertaking. She did not dispute doing so but asserted “I didn’t deliberately not attend court. I generally ring the courthouse up or I get a doctor’s certificate and let them know if I’m going to be late”.
She explained she had a number of such documents, was pregnant and trying to keep Care and Protection happy doing courses as well as weekend detention. Under cross-examination she added that the other matters she had were all adjourned to a common date but the minor theft matter appeared to have become separated. The other date she had diarised and, it appears, she duly attended court in respect of them.
In submissions Mr O’Keefe conceded that the evidence warranted a finding that the appellant had not exercised due care in noting and then attending on the date in question, but he submitted, the fault element for the offence was intention. That is, knowing she was subject to an undertaking to attend and not doing so. The evidence, he asserted, permitted no higher conclusion than that she had been negligent.
Ms Knibbs for the informant, contended that ‘reasonable excuse’ was the standard for non-compliance not s 49 (3) of the Bail Act. Not to remember or to take sufficient steps and note the date was not, she submitted, a ‘reasonable excuse’.
His Honour accepted that contention. I note he did not ask Mr O’Keefe to reply to it but there is no complaint about that. Indeed, there was nothing in Ms Knibbs submissions that raised any new matter or issue. His Honour seemed to accept the appellant had simply forgotten about her obligation to attend. He said:
I am satisfied that overlooking the date and failing to take steps to record it to ensure that the defendant did appear on the date does not constitute reasonable excuse.
I note Mr O’Keefe’s contention that s 22 of the Code imports an element of intention as the fault element for the offence under s 49 of the Bail Act. Section 22 states:
(1)If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
(2)If the law creating an offence does not provide a fault element for a physical element consists of a circumstance or result, recklessness is the fault element for the physical element.
The physical element of the offence created by s 49 of the Bail Act is a failure to attend court pursuant to an undertaking so to do. However, contrary to Mr O’Keefe’s submissions s 49(3) of the Bail Act does provide a fault element for the physical element. Thus whether 22(1) or (2) of the Code applies, the fault element is as per s 49(3) of the Bail Act. That specifies there is an offence if, and only if, there is no reasonable excuse for the conduct in the failure to attend as undertaken. Thus, the prosecution must prove, to the criminal standard, not only that the appellant signed a bail undertaking and failed to appear as to undertaken but also that there was no reasonable excuse for that failure. The fact of non-appearance might or might not, in the absence of other evidence, establish a lack of reasonable excuse it is very likely that it would. It is a lesser fault element than intention not to appear or recklessness as to the honouring of the obligation to appear.
Where, as here, the appellant has offered an excuse, it is for the court to determine if it amounts to a reasonable excuse.
The only issue left to be established, beyond reasonable doubt, given the records of the court were unchallenged as to their content, was the absence of a reasonable excuse.
Simply overlooking the obligation, his Honour found, was not a reasonable excuse. The fundamental principle is that upon all the evidence presented, the tribunal of fact must be able to conclude, beyond reasonable doubt, that there was no reasonable excuse for the failure to appear.
It is convenient to note the decision of McCall v Werry (unrep, 2 April 1982, NSWSC) per Roden J at 8–9. A magistrate had opined that “reasonable excuse means sick or detained somewhere without prior knowledge of that being detained and he was unable to attend due to circumstances that prevailed”.
That, Roden J accepted, represented a view that only circumstances which made it impossible for the plaintiff to attend could operate as a reasonable excuse for the purposes of the section.
Roden J rejected that view stating at 8–9:
I do not agree with that interpretation, nor do I agree that it is appropriate to make an exhaustive list of circumstances that might operate as a reasonable excuse, such as sickness or detention, as the Magistrate suggests. It is appropriate in every case to hear any explanation advanced by a person charged with this offence and then to determine whether it constitutes reasonable excuse.
In this case, the appellant agreed that she had received a document recording the court date in question. She did not know what happened to it. The inference was that she had lost it. She agreed it was a “bit careless” of her. She further agreed that she was aware she could ring the court to check the date she was to appear. She also referred to various other obligations to appear at court amongst other commitments such as Care and Protection proceedings in relation to her children.
Certainly, it would have been open to a magistrate to have concluded that her personal circumstances of the relevant time could have afforded a ‘reasonable excuse’. Whether there was, in fact, a ‘reasonable excuse’ was something for his Honour to determine.
That exercise was not assisted by two errors. First, Ms Knibbs submitted, incorrectly, that Mr O’Keefe go first in making a closing submission. His Honour allowed that. Mr O’Keefe did not request a right of reply to Ms Knibbs’ address, which appropriately, focused on whether the appellant’s excuse for non-attendance was ‘reasonable’. Mr O’Keefe had focused only on whether her non-attendance was “deliberate”. This reflected his submission, which I have rejected as erroneous in law, that intention not to appear was an element of the offence. Indeed, Mr O’Keefe appeared to concede that the appellant’s excuse was that she had been negligent.
As a result, it seems to me, whilst his Honour did not reject the appellant’s preferred excuse for non-appearance as untruthful, he did not expressly address as a factual issue whether, in all the circumstances, it was ‘reasonable’. That was undoubtedly, a consequence of the failure of her counsel to address the relevant issue. Merely forgetting or overlooking or failing to provide or access a reminder would, in my view, be capable of satisfying the test of negligence being the requisite mental element for the offence. It obviously is a lesser level of culpability as his Honour noted. To find the offence proved in those circumstances was clearly justifiable. Indeed, I would agree with it absent any other factors which might render such a lapse on the part of the appellant not unreasonable.
I now turn to the challenge to the conviction of the appellant for minor theft contrary to s 321 of the Code:
Minor theft
(1) A person commits an offence (also theft) if—
(a)the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and
(b)the property has a replacement value of $2 000 or less when it is appropriated.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) Absolute liability applies to subsection (1) (b).
(3)This section does not prevent a person being charged with an offence against section 308 (Theft) if the replacement value of the property appropriated is $2 000 or less.
Although the penalty for minor theft is much less than under s 308 of the Code (6 months/50 penalty units as opposed to 10 years/1000 penalty units) the elements of the offence and the onus and burden of proof are the same.
The evidence to support the theft charge came, in the first instance, from Mr Jason Grieve, a Loss Prevention Officer with David Jones Ltd. He deposed that on 21 February 2011 he had been on duty from 9:00am. He was monitoring the surveillance cameras. He said:
I was in the Loss Prevention Office watching the live cameras when I noticed a person I know as Skye Joyce, who’s just over there, up in the home-ware section with another female.
Mr O’Keefe objected to this in court identification. Ms Knibbs further examined the witness on this issue. In a jury trial this would be done in the absence of the jury on the voir dire. In a summary hearing it is received on a similar basis albeit that the trial judge is also the jury.
He revealed the process of his identification as follows: “she was identified to me by Westfield Security Officers, and we have a person of interest photograph book which has two photos of her in it as well”. It was however the first time he had seen a person he identified with those photos. He had no knowledge of the “other lady” she was with. This was about 2:30pm. It might be added that such evidence would tend to suggest the appellant was a known offender. It would be prejudicial if put before a jury. However, a magistrate can be assumed to have used such evidence only for the admissibility of the identification evidence.
Mr Grieve stated that “Skye” picked up a box in the homeware area. The women then took the escalator to the ground floor. They were then on the 3rd level. As they were seen to approach the store exit, Mr Grieve exited his office and approached where the women then were. He asked to look at a receipt for the item. The woman referred to as “Skye” said to the other woman, “We’ve paid for it, haven’t we?”. Then, apparently receiving no appropriate answer she pushed the box at Mr Grieve, saying, “Fine, have it then”. Mr Grieve noted that there was no security label on the box. It was similar to David Jones stock and was valued at $539.95.
In cross examination, he conceded to Mr O’Keefe, counsel for the appellant, that it was possible that the box had not had a security sticker on it to begin with. The appellant was, he said, about 10 metres beyond the door of the store when spoken to. The box did, however, have a David Jones price label on it.
Constable Baird, the informant, spoke to the appellant following a complaint from Mr Grieve. She responded to the accusation by saying, referring to the woman who had been with her, “Yes, I thought she’d paid for it, eh?”. The appellant then declined to answer further questions. That, of course, was her right and no adverse inference can or should be drawn therefrom.
The person with the appellant was identified by the informant as Ms Jamie Lee Gudgeon. Constable Baird attended upon Ms Gudgeon on 5 August 2011 and took a statement from her which he recorded in his field book and had her sign it.
Ms Gudgeon was, clearly, a significant witness. The statement recorded and then signed by Ms Gudgeon was produced by him and marked for identification. Ms Gudgeon had acknowledged and signed a photograph of herself as well. Constable Baird further deposed that he spoke to Ms Gudgeon who had attended court that day albeit without a subpoena having been served upon her. He further deposed that Ms Gudgeon had indicated to him that she would not adhere to that statement.
That evidence, at that point, could only have been in anticipation of an application to treat Ms Gudgeon, when called, as an unfavourable witness pursuant to s 38 of the Evidence Act.
In cross examination, Constable Baird denied that he had offered any inducement to Ms Gudgeon to make or sign the statement. He did confirm that the statement was “a documented version of what evidence [she was] prepared to give”.
Ms Gudgeon was then called. She agreed that she was a friend of the appellant and that she had made a statement to Constable Baird who wrote something down. She claimed to have been unable to read and write properly though she did, she deposed, read “a bit of it”, referring to the statement in question. She also claimed to have no recollection of the incident referred to in her statement. Leave was granted for her to refresh her recollection, firstly, by reference to the video footage. She did, eventually, identify herself on that footage but claimed not to recognise the appellant as the other person saying “I can’t remember, to be honest, I could have been on drugs that day, mate”.
Understandably, the prosecution sought that the witness be treated as ‘unfavourable’ under s 38 of the Evidence Act. The witness was excused from attendance subject to being back in court when directed whilst argument was heard in respect of that application.
Before the application could be ruled upon, the prosecutor advised the court that the witness was planning on leaving the court, though she had not been formally excused. Mr O’Keefe advised of his understanding the witness needed to attend the methadone clinic to avoid withdrawal symptoms. The prosecution supported the matter standing down till 3:30pm. Ms Knibbs further advised that she understood that the witness had transport arranged to return her to court. The matter was stood down accordingly.
At 3:30pm the matter was called. The witness was not present. The prosecutor asked that the witness be ‘deemed as unavailable’.
Ms Knibbs submitted that the witness’s statement taken by Constable Baird should be accepted as evidence of the truth of its contents. She relied on s 65(2) of the Evidence Act in consequence of that finding:
65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was—
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
It was, certainly, open to his Honour to conclude that the statement of Ms Gudgeon was sufficiently reliable to satisfy s 65(2).
Mr O’Keefe objected to that course. He pointed out that the witness had not accepted the truth of the contents of her statement and contended that insufficient steps had been taken to secure her attendance.
Although Mr O’Keefe did not refer to it, it was apparent that the notice required under s 67 of the Evidence Act had not been given.
Further, it was apparent that s 66(4) of the Evidence Act applied to the statement.
66 Exception—criminal proceedings if maker available
(4) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence presented by the prosecutor of the representation unless there presentation is about the identity of a person, place or thing.
So far as the availability of Ms Gudgeon was concerned, she had attended and had been sworn/affirmed to give evidence. If she had absconded in the course of it, she could have been arrested and brought back to court. In fact, just after 3.47pm, the witness did return to the court. She was then recalled to the witness stand. The prosecutor declined to ask her any questions, leaving it to Mr O’Keefe to do so. He did. She claimed that Constable Baird had told her the appellant had “done a statement on me” and so she “did one on her”. That she wrongly described as “bribery”. I think she meant trickery. She made an assertion that the statement was not true. The prosecutor then cross-examined Ms Gudgeon. She maintained a denial of the truth of the statement, but the suggestion that the appellant had asserted to her a doubt as to whether the goods had been paid for was not put to her by either counsel.
The prosecution case was otherwise very strong.
It seems to me that, save insofar as the statement that had been tendered identified the appellant, it was inadmissible. The witness was ‘available’ and the statement was clearly inadmissible having being taken expressly for the purpose of indicating the evidence the witness would give if called.
Notwithstanding that, Ms Gudgeon in fact gave evidence and was, unsurprisingly, disbelieved. The only substantive error caused by that error was the reversal of the usual order of examination-in-chief and cross-examination. However, that caused no injustice to the appellant.
The appeals are dismissed accordingly and the matters remitted back to his Honour to consider sentence.
I certify that the preceding sixty three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 3 May 2013
Counsel for the Appellant: Mr J O’Keefe
Solicitor for the Appellant: John O’Keefe
Counsel for the Respondents: Mr J Lipsius
Solicitor for the Respondents: Director of Public Prosecutions
Date of hearing: 8 March 2013
Date of judgment: 3 May 2013
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