Strachan v Massie

[1990] TASSC 121

Serial No B44/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Strachan v Massie [1990] TASSC 121; B44/1990

PARTIES:  STRACHAN
  v
  MASSIE

FILE NO/S:  LCA 20/1989
DELIVERED ON:  2 August 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B44/1990
Number of paragraphs:  20

Serial No B44/1990
List "B"
File No LCA 20/1989

STRACHAN v MASSIE

REASONS FOR JUDGMENT  ZEEMAN J

2 August 1990

1. The applicant seeks a review of his conviction by a Magistrate at Launceston of each of three breaches of the Sea Fisheries Regulations 1962.

1. The grounds upon which the review is sought are expressed as follows:

1The learned Magistrate erred in law in holding that the failure of the Applicant to give evidence was capable of underpinning the prosecution evidence.

2The learned Magistrate erred in law in drawing an inference adverse to the Applicant as a result of the Applicant having failed to contradict or to explain the evidence of the prosecution witnesses.

1. The complaint alleged that the applicant, and another person are charged jointly with him, committed the following offences:—

"1        That on or about the 14th day of February 1987, in State Fishing Waters in the area of Hogan Island in the State of Tasmania, did take abalone whilst not being the holder of a subsisting commercial abalone licence or a subsisting non–commercial diving licence. Contrary to Regulation 17A(1)(a) and (b) of the Sea Fisheries Regulations 1962.

2         That on or about the 14th day of February 1987, in State Fishing Waters in the area of Hogan Island in the State of Tasmania, did use in fishing for the purposes of sale or business, a boat, namely a fibreglass mono hull, bearing the mark B123 in respect of which no fishing boat licence under Division 1A of Part 2 of the Sea Fisheries Regulations 1962 was at that time in force. Contrary to Regulation 4(2) of the Sea Fisheries Regulations 1962.

3         That on or about the 14th day of February 1987, in State Fishing Waters in the area of Hogan Island in the State of Tasmania, did use a fishing boat, namely a fibreglass monohull, bearing the mark B123 for, or in connection with, the taking of fish, at a time when he was not the holder of a subsisting fisherman's licence. Contrary to Regulation 8(1)(a) of the Sea Fisheries Regulations 1962."

1. The evidence given before the learned Magistrate suggested that the respondent relied upon a number of separate episodes, each having distinct factual characteristics and each amounting to a taking within the meaning of Regulation 17A(1). Each of those episodes was relied upon as being part of the "taking" alleged in the first count of the complaint. Each of those separate episodes of taking was also relied upon by the respondent as constituting one of the ingredients necessary to establish the commission of the offences charged in counts 2 and 3 of the complaint.

1. No objection was taken before the learned Magistrate that any of the counts contained in the complaint were bad for duplicity, but he partially upheld a submission that the applicant had no case to answer as to each count. He determined that the applicant had no case to answer as to the alleged taking of some abalone of which evidence had been given but that there was a case to answer as to other of the abalone. The evidence of the taking as to which it was held that the applicant had a case to answer might be considered to constitute one distinct episode properly the subject of one charge.

1. Upon the learned Magistrate having ruled that the applicant had a case to answer to this limited extent, the applicant elected neither to give or call evidence.

1. In due course the learned Magistrate found all matters of complaint proved. He gave oral reasons for coming to that conclusion although it appeared that that decision was read by him from a prepared document. It is appropriate that I observe that it became obvious during argument that the transcript of the reasons for his decision given by the learned Magistrate did not accurately record what he had said. With the consent of the parties I amended the transcript in several significant respects so as to accord with the Magistrate's note of his reasons. It would be appropriate if those responsible for transmitting a Magistrate's reasons for decision to this Court were to refer the transcript to the Magistrate so that he might have an opportunity of checking its accuracy. It appears that such a course was not adopted in this case as a result of which significant time was wasted in examining reasons recorded in the transcript as having been expressed by the learned Magistrate, when he had not expressed those reasons.

1. In his reasons the learned Magistrate recorded the charges against the applicant and his co–defendant, recorded the course of the proceedings, correctly stated that the respondent carried the burden of proving each element of each charge beyond reasonable doubt and correctly stated his task as resolving whether that burden had been so discharged. He said that it had been and proceeded to state his reasons.

1. The learned Magistrate accepted the witnesses for the complainant, other than one Stephen Mark Cantlay, as reliable witnesses. He said that their evidence was capable of being safely acted upon.

1. He then specifically dealt with the witness Cantlay, correctly characterized him as being an accomplice and correctly directed himself as to the dangers of acting upon his uncorroborated evidence. The learned Magistrate expressed the view that a consideration of Cantlay's evidence and his demeanour led him to the view that he had heard a plausible version of events from a credible witness. He then correctly found corroboration for Cantlay's evidence.

1. The learned Magistrate then proceeded to deal with another matter. That matter is the subject of both the grounds set forth in the notice to review. It is appropriate that I set forth in full what the learned Magistrate said as to this matter:—

"However, there is another matter. Neither defendant has chosen to give evidence in his defence. Of course, neither defendant is under the slightest obligation to do so and an assumption of guilt cannot be made as a consequence of the making of that choice. R v Bathurst [1968] 2 QB 99 at 107–108. Similarly, in the absence of statutory provisions to the contrary, the complainant carries the onus of proof throughout. Of course, silence is not confirmatory of guilt and the onus of proof does not shift and silence may not be used to assist in the erection of a prima facie case. That is to fill in the gaps. However, the decision of each defendant not to give evidence in circumstances where he could be reasonably expected to have knowledge of relevant matters and where no good reason for not giving evidence appears, may underpin prosecution evidence against that defendant for the simple reason that the prosecution evidence is uncontradicted. One may feel rather more confident in proceeding to a conclusion along a path signposted by uncontradicted evidence than that to a conclusion to be reached only along a tortuous path of direct qualified or purportedly explained testimony. See for example, Jones v Dunkel (1959) 101 CLR 298; R v Guiren (1962) 79 WN (NSW) 811 and VJS & KML v Strickland, B12/1987 at p9. In the present case the fact that a defendant who has chosen not to contradict, qualify or seek to explain the evidence led by the prosecution against him, means that that evidence remains uncontradicted. That emboldens me to reach a conclusion adverse to that defendant."

1. Counsel for the applicant complained of the reference by the learned Magistrate to a decision of a defendant not to give evidence in the circumstances referred to by him as being capable of underpinning prosecution evidence against that defendant. He stated that that reference by the learned Magistrate formed the basis of the first ground upon which the review is sought.

1. The choice of the word "underpin", suggesting, as it does, the concept of supporting or strengthening from beneath is perhaps unfortunate. Standing alone, it is suggestive of the Magistrate having fallen into the very error warned against in so many authorities – ie of treating a failure to give evidence as being evidence in itself.

1. In using the word "underpin", it may be that the learned Magistrate had in mind what Nettlefold J. said in VJS & KML v Strickland (supra) and in particular the following statement of principle appearing at p9 (to which the learned Magistrate appears to have made specific reference):—

"The onus of proof is on the prosecution from first to last and never shifts, subject only to statutory provisions to the contrary. Raising a prima facie case does not throw upon the defendant the onus of making an answer or giving an explanation for facts which he may be presumed to know. If the defence elects to call no evidence, that has no effect whatever on the onus of proof and the question is whether on the whole of the evidence (and silence is not evidence) guilt is established to the requisite degree. The significance of the silence is not that it is evidence but that it is not; the prosecution evidence is not contradicted. It being uncontradicted, any conclusion it may be able to underpin may be less unsafe than it might otherwise possibly appear ...".

1. That passage from his Honour's judgment does not suggest that a failure to give evidence may underpin prosecution evidence. His Honour was speaking of actual evidence underpinning a particular conclusion because such actual evidence was not contradicted.

1. Before I proceed with a further consideration of ground 1, it is appropriate that I turn to ground 2. Counsel for the applicant has submitted that the error of law thereby asserted is to be found in the last sentence of the passage from the learned Magistrate's reasons which I have set out in full. I enquired from counsel as to what inference the learned Magistrate drew which was adverse to the applicant. Counsel submitted that the learned Magistrate drew a general inference of guilt and not any specific inference of fact. Counsel's submission might be summarized as being one that, in the passage complained of, the learned Magistrate inferred that the applicant was guilty because he had not contradicted or explained the evidence of prosecution witnesses. In my view, the learned Magistrate's reasons for his decision do not disclose that he drew any such inference. At the same time, it should be noted that the transcript of those reasons as transmitted to this Court, before that transcript was corrected in the manner I have indicated, was suggestive of the learned Magistrate having expressed himself in a way which arguably indicated that he had drawn such an inference of guilt. Ground 2 cannot be sustained.

1. I return to ground 1. As I have said, the passage in the learned Magistrate's reasons complained of is open to criticism. However, that passage does not stand alone and ought not to be viewed in isolation.

1. Reading the whole of the passage which I have set out above, I conclude that the learned Magistrate correctly directed himself as to the significance of the failure of the applicant to give evidence. Whilst the use of the word "underpin" was inappropriate in the context in which it appeared, it was no more than being misdescriptive of the use to which the absence of evidence from the applicant might be put. That use was correctly stated by the learned Magistrate in that he reminded himself of the following matters:—

(a)The respondent carried the onus of proof throughout;

(b)Silence was not confirmatory of guilt;

(c)The onus of proof did not shift because of silence on the part of the applicant;

(d)Silence might not be used to assist in the erection of a prima facie case by way of filling in the gaps;

(e)That one might feel rather more confident in proceeding to a particular conclusion where the relevant evidence is uncontradicted.

1. Whilst the learned Magistrate employed the word "underpin", a reading of the whole of the relevant portions of his reasons makes it plain that he was not directing himself in a way other than strictly in accordance with correct legal principle. Ground 1 of the notice to review is really an assertion that the Magistrate held that the failure of the applicant to give evidence had positive evidentiary value. A fair reading of his reasons leads me to the conclusion that he did not so hold. It follows that ground 1 is not made out.

1. In those circumstances the appeal is dismissed.