Small v Evans

[2001] WASCA 343

SMALL -v- EVANS [2001] WASCA 343

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 343
Case No:	SJA:1114/2001	Heard:	23 OCTOBER 2001
Coram:	HASLUCK J	Delivered:	6/11/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GREGORY SMALL MICHAEL ALEC EVANS
Catchwords:	Criminal law Appeal against conviction under Justices Act 1902 Issues of credibility Evidence of principal prosecution witness preferred Magistrate held not to be in error Turns on own facts
Legislation:	Justices Act 1902, s 196, s 199 Police Act 1892, s 80
Case References:	"M" v The Queen (1994) 181 CLR 487 Abalos v Australian Postal Commission (1990) 171 CLR 167 Brunskill & Anor v Sovereign Marine and General Insurance Co Ltd & Ors (1985) 62 ALR 53 Chamberlain v R (No 2) (1984) 153 CLR 521 De Vries & Anor v Australian National Railways Commission (1993) 177 CLR 472 Glennon v The Queen (1994) 179 CLR 1 Harling (1997) 94 A Crim R 437 Rosenberg v Percival (2001) 178 ALR 577 State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 Pledge v Davey [2000] WASCA 20 Walsh v Law Society (NSW) (1999) 198 CLR 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SMALL -v- EVANS [2001] WASCA 343 CORAM : HASLUCK J HEARD : 23 OCTOBER 2001 DELIVERED : 6 NOVEMBER 2001 FILE NO/S : SJA 1114 of 2001 BETWEEN : GREGORY SMALL

Appellant

AND

MICHAEL ALEC EVANS
Respondent

Catchwords:

Criminal law - Appeal against conviction under Justices Act 1902 - Issues of credibility - Evidence of principal prosecution witness preferred - Magistrate held not to be in error - Turns on own facts

Legislation:

Justices Act 1902, s 196, s 199

Police Act 1892, s 80

Result:

Appeal dismissed

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Category: B

Representation:

Counsel:

Appellant : Ms J Pinnington
Respondent : Ms M Georgevic

Solicitors:

Appellant : Lawton Gillon
Respondent : State Crown Solicitor

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

"M" v The Queen (1994) 181 CLR 487
Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill & Anor v Sovereign Marine and General Insurance Co Ltd & Ors (1985) 62 ALR 53
Chamberlain v R (No 2) (1984) 153 CLR 521
De Vries & Anor v Australian National Railways Commission (1993) 177 CLR 472
Glennon v The Queen (1994) 179 CLR 1
Harling (1997) 94 A Crim R 437
Rosenberg v Percival (2001) 178 ALR 577
State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588

Case(s) also cited:

Pledge v Davey [2000] WASCA 20
Walsh v Law Society (NSW) (1999) 198 CLR 73

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1 HASLUCK J: This is an appeal against the whole of the decision of his Worship Mr Thobaven SM given in the Court of Petty Sessions at Perth on 6 July 2001. The question is whether the learned Magistrate fell into error in reviewing the evidence and convicting the appellant of the offence charged.

2 The appellant, Gregory Small, was charged that on 13 February 2001 at Wembley he damaged a motor vehicle, namely, Suzuki Swift, registration number 9DZ 052, the property of Margaret Enid Fane, contrary to s 80 of the Police Act 1892.

3 Section 80 of the Police Act 1892 provides that every person who destroys or damages any real or personal property of any kind, whether owned by the Crown or any public authority or local government or by any other person is guilty of an offence. The penalty prescribed for the offence of wilful damage to property is a fine not exceeding $500 or imprisonment for any term not exceeding 6 months, or both.

4 The police prosecutor, Sergeant Lucas, led evidence in support of the complaint. The principal witness for the prosecution was the owner of the subject vehicle, Margaret Enid Fane. She said in evidence that she resides at 15B, 55 Herdsman Parade in Wembley. On Sunday, 11 February 2001, she noticed a scratch along the right rear back of her car. Two days later, on Tuesday morning, 13 February 2001, she noticed the appellant, Gregory Small, who lives in the unit beneath her, standing in the vicinity of her car and some further scratches upon the vehicle.

5 The complainant has a restraining order in force against the appellant and she therefore felt obliged to report the incident to the police by telephone. Later in the day, she observed the appellant standing near her car with a metal object in his hand, which looked like a key, and he was scratching her car. This happened in the car park of the block of units where the complainant and the appellant reside. When she called out, he told her to "Get fucked", continued scratching the car and then walked back to his unit.

6 The complainant submitted to the court a photograph of the damage and a quote for $265.96 in respect of the cost of repair. She was able to fix the exact day of the incident as being 13 February 2001 by reference to a list of phone calls showing that she made a phone call to the appellant shortly after the incident at 1.35 pm on the day in question. This was followed by a call to the police station at 1.36 pm on the same day.

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7 The appellant was unrepresented at the hearing. He was afforded an opportunity to cross-examine the complainant. It became apparent from exchanges between the learned Magistrate and the appellant that the appellant, on his case, was not able to put any questions concerning the events of 13 February because he had no recollection of seeing or communicating with the complainant on that day. He denied that he had scratched her car.

8 The prosecution then called Constable Michael Alec Evans. He said that on Friday, 2 March 2001, he received an offence report for investigation into damage done to the vehicle in question. He went on to say that he went to the appellant's address on a couple of occasions to ask some questions, but without success. He then said that "At about the same time I received another investigation that … that was made by Mr Small in regards to … to some damage also" and Ms Fane was nominated as a suspect in regard to that matter.

9 The tenor of Constable Evans' evidence was that it was against this background that on 7 March 2001, he spoke to the appellant and advised him of a complaint made against him in regard to damage to the Suzuki Swift vehicle owned by Ms Fane. The appellant denied anything to do with the damage and, according to Constable Evans, nothing more was said.

10 Under cross-examination, Constable Evans agreed that when he called the appellant on 7 March he had been talking to Margaret Fane about another matter, that is to say, a report that damage had been done to the appellant's vehicle. The conversation included discussion about her allegation that the appellant had scratched her car.

11 Constable Evans said in evidence that he contacted the appellant by telephone on 7 March to discuss these matters. He denied that he charged the appellant because the appellant had made a complaint against Ms Fane.

12 This completed the evidence presented by the prosecution.

13 The appellant was the only witness called on behalf of the defence. He said that he knew nothing about a scratching incident on 13 February 2001. He said that his car was scratched on three successive days, being Saturday, 4, Sunday, 5 and Monday, 6 March and that he suspected Ms Fane, although he did not see her do it. He agreed that she did not ever say that she had done it. He then gave evidence as follows:

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"Okay?---But because - - like, because of the restraining order I'm not allowed to talk to her. I went to - - and all I wanted to do was get her to stop it. I went to the police and I made a complaint on - - it must have been the 7th of March and I told them that - - about the restraining order and I suspected Margaret Fane had - - had done it, and all - - and all I was hoping was that, you know, they would just say, "Back off." But - - but that day, that same day that I - - the morning I went to the police station, and the same day was this Constable he called me, and the way I understood it that - - he told me that it was like a - - he was talking to her on an unrelated matter and she turned round and said that on the 13th of February I was - - she witnessed me scratching the car and he - - and unless I had an alibi he - - he was - - he'd been told by a higher authority that I was to be charged. Because what I wonder is if - - if she made the allegation, if she - - if it was the way she described it, why didn't the police come round and see me immediately. Why did they wait for 3 weeks?"

14 The appellant was then cross-examined by the prosecutor as to his daily habits and his possible movements on Tuesday, 13 February 2001. During the course of the cross-examination, he denied that he was responsible for the events giving rise to the charge. When the proposition was put to him that he reported his damage for the first time on 4 March 2001, he said: "No. No, I did not say that." He added: "I said on the 6th or the 7th, I can't remember. I said the first day my car was scratched … "

15 When pressed about this aspect of the matter, and as to why he did not report it on the first occasion on which his car was scratched, he said that the Wembley police station was closed. When pressed, he agreed that he did not report the initial damage to his vehicle until the 6th or 7th of March and referred to the fact that it was a long weekend.

16 The appellant said further: "I would have reported it on Monday. I didn't want to make a federal case about it."

17 I note in passing that on the appellant's evidence if the first incident of alleged scratching occurred on 4 March and the weekend in question was a long weekend, being a matter which deterred the appellant from going to the police station because it would have been closed, this strongly suggests that he did not place his allegation before the police until 7 March 2001, which is consistent with the evidence given by Police Constable Evans.

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18 The appellant then called a supporting witness, Peter Ronald Hill. It seems that this witness was to give evidence about certain conversations with the complainant, Ms Fane, and previous exchanges between the parties to the scratching dispute, but the learned Magistrate eventually ruled that evidence of this kind was inadmissible.

19 The learned Magistrate then heard closing addresses on behalf of the parties. In the course of his address, the prosecutor submitted that the appellant was confused about what had been said to him by Constable Evans on 7 March 2001. The prosecution case was that the telephone call in question had a twofold purpose, being first of all to speak to the appellant about the damage complaint made by Ms Fane some weeks prior to the date of the telephone call and also to advise him that his allegation against Ms Fane would not be investigated further because there was no evidence. The prosecutor went on to say that the issue before the court was essentially a credibility issue as to which of the two principal witnesses was to be believed. He submitted that the prosecution case had been proved beyond reasonable doubt.

20 The learned Magistrate then proceeded to his determination. He began by noting that there was an ongoing dispute between the appellant and Ms Fane and that Police Constable Evans was probably the most independent of the various witnesses. He noted that, according to the police officer, the defendant had denied the events giving rise to the charge.

21 The learned Magistrate then went on to say:

"In the course of the events there was a counterclaim by Mr Small against Mrs Fane and he didn't make any complaint about that until the day the police officer confronted him over Ms Fane's complaint. Now, he says it was not reported earlier because he had no faith in the police following the matter up."

22 The learned Magistrate turned his attention to the demeanour of the witnesses. He noted that the presentation of Ms Fane was good and that her version of events flowed reasonably well. He noted that the appellant was forthright about his position, that is to say, that he was not responsible, and he could not remember what he did on the day in question to establish an alibi. He characterised the appellant as an aggressive person in that, according to Ms Fane, he said "Get fucked" at the time he was confronted. This seemed to be in keeping with the presentation of the defendant in the witness box.
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23 The learned Magistrate then said: "Now, in the end I am satisfied beyond reasonable doubt as to what Ms or Mrs Fane had to say and the finding is guilty."

24 The appellant quickly protested. He challenged the learned Magistrate's summary of the relevant events, which seemed to suggest that the appellant had "never made a complaint until the police talked to me". In the course of the debate with the learned Magistrate, this exchange than occurred:

"MR SMALL: Can I say something? You said that I - -I never made a complaint until the police talked to me. That's not true.

HIS WORSHIP: That's what the evidence was.

MR SMALL: Well, it wasn't true. I made a complaint and then that day the police later on, on the day the police called me - - I never - - and then they said to me that she - - that after they talked to me - - after I talked to them they talked to her on an unrelated matter and she said that she made the allegation.

HIS WORSHIP: Well, anyhow, I've given my decision, Mr Small. Any prior record, sergeant?"

25 It was against that background that the learned Magistrate fined the appellant $200 with costs of $76.90 and an order for reparation in the amount of $265.90.

26 The appellant obtained leave to appeal on the grounds that the learned Magistrate made an error in fact in finding that the appellant did not make a complaint to the police relating to his own damaged car before he was charged with the complaint the subject of his conviction before the Court of Petty Sessions.

27 Before attempting to resolve the issues raised by this ground of appeal, it will be useful to look briefly at some of the statutory provisions and legal principles bearing upon an appeal of this kind.

28 By s 196 of the Justices Act 1902, the court shall determine the appeal on the material before the court below. By s 199, the court may dismiss the appeal, or set aside, quash or vary the decision, or remit the case for rehearing.

29 The court is not required to set aside, quash or vary because the Magistrate omitted to make any necessary finding if the facts or evidence

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in substance support the decision or justify the finding. If the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

30 In Harling (1997) 94 A Crim R 437, Anderson J indicated that a Magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision. A finding of guilt was not to be reached simply by rejecting the case put forward by the defendant. There could not be a guilty verdict unless the court accepted, that is, actually and positively believed to the required standard, the evidence presented by the prosecution on matters critical to proof of guilty.

31 The question on appeal will often be not whether the court would have formed a different view, but whether the Magistrate's approach and view of the evidence was defensible. Chamberlain v R (No 2) (1984) 153 CLR 521.

32 It follows that if an error in the reasoning or determination below is exposed on appeal, the court is not necessarily obliged to quash the decision. It seems, however, that unless the court is persuaded that, properly informed, the Magistrate would have inevitably have reached the same verdict, the court of appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility. Glennon v The Queen (1994) 179 CLR 1.

33 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed. "M" v The Queen (1994) 181 CLR 487.

34 However, where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. De Vries & Anor v Australian National Railways Commission (1993) 177 CLR 472 at 479.

35 Nonetheless, this approach does not preclude a Court of Appeal from concluding that, in the light of other evidence, a primary Judge had too fragile a base to support a finding that a witness was unreliable, especially

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where documentary evidence provides significant support for allegations made by a principal witness. State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588.

36 Where a finding of fact is inconsistent with the evidence of a witness, the judicial officer at first instance must be taken to have rejected the evidence of the witness. Brunskill & Anor v Sovereign Marine and General Insurance Co Ltd & Ors (1985) 62 ALR 53 at 56; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.

37 Counsel for the appellant in the present case emphasised that there were no witnesses to the offence apart from the appellant and Ms Fane. The verdict against the appellant turned upon a finding by the learned Magistrate that Ms Fane was a more credible witness than the appellant.

38 Counsel went on to submit that one of the reasons behind the finding of credibility in favour of Ms Fane appeared to be that the appellant had not made a complaint concerning damage to his car until Police Constable Evans spoke to him about the complaint by Ms Fane.

39 Counsel submitted that, upon a proper appreciation of the evidence given at the hearing, it emerged that the appellant had been to the police on 7 March 2001 and reported that he suspected that Ms Fane had damaged his car. On the same day, the police later phoned him and informed him that a complaint had been made against him by Ms Fane.

40 The effect of Police Constable Evans' evidence was that he had phoned the appellant on 7 March 2001 and advised him of the complaint that had been made against him by Ms Fane. The police constable then went on to further state that the phone call had a second purpose, namely, to talk to the appellant about a complaint received from the appellant in relation to damage to the appellant's vehicle.

41 Counsel for the appellant went on to say that the prosecutor in his summing up confirmed the sequence of events contended for by the appellant. The prosecutor stated that the phone call by Police Constable Evans to the appellant had a twofold purpose. The call was to speak to the appellant about the damage to Ms Fane's motor vehicle and also to advise the appellant that his complaint against Ms Fane in relation to scratches to his own motor vehicle would not be investigated any further.

42 According to counsel for the appellant, the learned Magistrate stated that there was a counterclaim by the appellant against Ms Fane and there was no complaint by the appellant until the day that he was confronted

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over Ms Fane's complaint. The nature of the mistake made by the learned Magistrate was further displayed when the appellant pointed out that the statement by his Worship that the appellant had not made a complaint against Ms Fane until the police talked to him about the Fane complaint was not true. In response to this statement, the learned Magistrate said: "That's what the evidence was."

43 Counsel for the appellant submitted forcefully that, in circumstances where it was clear that the matter for decision by the court was to be decided solely on credibility, the error of fact supposedly made by the learned Magistrate was an influential factor in the decision and a factor that operated adversely to the appellant.

44 Counsel for the respondent put up three principal submissions in answer to the appellant's case. These were, first, that the findings of fact by the learned Magistrate were based on an assessment of credibility and, on the general principles to be found in the decided cases concerning the evaluation of credibility, an appellate court should refrain from interfering with those findings. Second, the learned Magistrate did not err in fact as set out in the appellant's sole ground of appeal in that the learned Magistrate did not make a finding that the appellant did not make a complaint to the police relating to his own damaged car before he was charged with damage to Ms Fane's car. Third, even if the learned Magistrate did err in fact in that particular finding, this error would be insufficient to warrant interference with the learned Magistrate's decision.

45 To my mind, it is important to understand the exact nature of the learned Magistrate's reasoning process as revealed by the transcript. It is quite clear from the evidence that the appellant did not make his complaint until 7 March 2001, being the same day that he was spoken to by a police officer investigating a complaint lodged by Ms Fane three weeks earlier. The crucial question is whether the learned Magistrate was simply trying to reconstruct the relevant chronology for the sake of clarity and as a background to the question he had to decide, or whether he was attempting to draw out of the sequence of events some factor that might be thought to have a bearing upon the credibility of the two principal witnesses.

46 The central premise of the appellant's case on appeal was that the prefatory remarks made by the learned Magistrate early on in his reasons for decision formed part of a logical progression to this effect: the appellant did not make any complaint about his car being scratched. When he was confronted by Police Officer Evans with the allegation that

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he had scratched Ms Fane's car, it was only then that he complained or counterclaimed that his car had been scratched. This sequence of events made the appellant's claim unlikely. The indications were that he only complained because he had been confronted with Ms Fane's complaint. If the appellant's claim was unlikely, that must mean that his word could not be relied on. In other words, the sequence of events cast doubt on his credibility as a witness. The true position was, however (being a position the learned Magistrate had got wrong), that the appellant had in fact complained about the scratching to his vehicle before he was confronted with the alleged scratching of Ms Fane's vehicle. This fundamental error by the Magistrate subverted the line of logic the Magistrate had relied on in arriving at a conclusion adverse to the appellant on the issue of credibility, with the result that any decision based upon the credibility of the respective parties was flawed.

47 I remind myself that this central premise of the appellant's case on appeal is based upon a single sentence of the learned Magistrate's ex tempore reasons to this effect: "In the course of events there was a counterclaim by Mr Small against Ms Fane and he didn't make any complaint about that until the day the police officer confronted him over Ms Fane's complaint." I remind myself also that the learned Magistrate was correct in saying that the appellant's complaint was not made "until the day the police confronted him over Ms Fane's complaint", that is to say, 7 March 2001. The appellant seemed to accept in his evidence that his complaint was not made until 7 March 2001 and the evidence of Police Officer Evans was certainly to that effect. Thus, a crucial question, being an issue addressed in the second of the respondent's three principal submissions, is whether the single sentence at the centre of the controversy actually contains the line of logic I described a moment ago.

48 To my mind, the sentence in question does not necessarily reflect a line of logic of the kind contended for by the appellant. The sentence was preceded by a reference to an ongoing dispute between the parties and to the Magistrate's view that the police officer was the most independent of the witnesses. In that context, and in the course of summing up what the police officer had to say in evidence, the learned Magistrate drew attention to several features of the police officer's evidence, including those mentioned in the contentious sentence, namely, that the appellant had denied the scratching, that in the course of events there was a counterclaim by the appellant, that the counterclaim was made on the day the police officer spoke to the appellant.

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49 The learned Magistrate does not, at this point in his reasons, purport to be making findings bearing upon the appellant's credibility and one cannot be sure that this was the purpose of his summary. Indeed, the structure of his judgment is to the contrary in that he turns to the question of the appellant's credibility at a later stage. In discussing that issue, the learned Magistrate did not appear to be making use of any conclusion he might have arrived at concerning the appellant's credibility at an earlier stage of his reasoning. Rather, he concentrated upon the appellant's demeanour in the witness box and what he was alleged to have said at the time of the scratching incident. These were the matters which were thought to weigh against the appellant's credibility.

50 In my view, when the contentious sentence is considered in context, it amounts to no more than a general summary of the police officer's evidence without any particular weight or causative effect being attached to the fact that the appellant's counterclaim was made on the same day as the police officer spoke to the appellant about Ms Fane's complaint. As the learned Magistrate's reasoning proceeded, it became apparent that the Magistrate was impressed by the complainant, Ms Fane, as a truthful witness. He positively believed her account of the relevant events and it was essentially on that basis that the learned Magistrate found the charge proved beyond reasonable doubt.

51 It follows from this analysis that I am not satisfied that the ground of appeal has been made out. I am not persuaded that the learned Magistrate made an error in fact in stating that the appellant did not make a complaint to the police relating to his own damaged car until the day he was confronted with the allegation of scratching Ms Fane's car. The evidence showed clearly that the appellant did not make a complaint until the day the police talked to him. Further, I am not persuaded that the references in the learned Magistrate's reasons to these events in the contentious sentence should be characterised as a finding or can be said to reveal a flaw in the Magistrate's reasoning. Put shortly, I am not persuaded that the line of logic contended for by the appellant can in fact be found in the sentence in question.

52 In any event, even if such a flaw be held to exist, I am not convinced that it gave rise to a miscarriage of justice. The thought expressed in the contentious sentence cannot be regarded as pivotal to the elements of the offence or to the Magistrate's decision. It is quite clear that the learned Magistrate ruled in favour of the prosecution because the complainant, Ms Fane, was found to be a compelling witness. The decided cases indicate that an appeal court will generally refrain from interfering with

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findings of fact which depend upon a view taken as to the credibility of witnesses by a trial Judge unless he has palpably misused the advantage afforded to him of seeing and hearing the witness or he has too fragile a base to support a finding that a witness was unreliable. I do not consider that there are sufficient grounds for intervention by an appeal court in the present case. The learned Magistrate was in a far better position to know what weight should be assigned to the facts bearing upon the ultimate decision: Rosenberg v Percival (2001) 178 ALR 577. I noted earlier that under the relevant provisions of the Justices Act the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

53 In summary, then, I am not persuaded the learned Magistrate fell into error and will therefore dismiss the appeal. I will hear from the parties as to whether any further orders are required.