Thow v Lowe

[1988] TASSC 37

Serial No 26/1988
List “A”

CITATION:              Thow v Lowe [1988] TASSC 37; A26/1988

PARTIES:  THOW, L H
  v
  LOWE R J

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 50/1986
DELIVERED ON:  25 July 1988
JUDGMENT OF:  Green CJ

Judgment Number:  A26/1988
Number of paragraphs:  15

Serial No 26/1988
List "A"
File No LCA 50/1988

L H THOW v R J LOWE

REASONS FOR JUDGMENT  GREEN CJ

25 July 1988

1. The applicant was charged with 6 counts of burglary and 4 associated counts of stealing in respect of premises occupied by the Berriedale Bowls Club and 9 counts of burglary and 6 associated counts of stealing in respect of premises occupied by the Glenorchy City Tennis Club. No evidence was offered in respect of one of the counts of burglary involving the Bowls Club and that charge was dismissed. The applicant pleaded guilty to one of the counts of burglary involving the Tennis Club and not guilty to the remaining 23 counts. After a hearing a magistrate found all the charges to be proved. This is a motion to review that finding.

1. At the time when this motion to review was filed the learned magistrate had embarked upon, but had not completed the sentencing process. In particular, he had neither proceeded to conviction nor had he made orders without proceeding to conviction under the Probation of Offenders Act 1973. The respondent objects that this notice to review is incompetent on the ground that the magistrate's finding was not an order within the meaning of s107 of the Justices Act 1959. Section 107 provides that:–

"A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order."

Section 116 of that Act provides that:–

"In this Part, unless the contrary intention appears, 'order' includes conviction, dismissal of a complaint, determination, and adjudication."

Section 107 is in the Part to which s116 refers.

1. On the face of it, a finding that a complaint has been proved is both an adjudication and a determination. It is the end result of a judicial proceeding and determines the rights and liabilities of the parties in the sense that, without more, the mere making of such a finding is sufficient to give a magistrate jurisdiction to convict or to make orders under the Probation of Offenders Act 1973.

1. In this State the view has long been held and acted upon that interlocutory orders are capable of being the subject of a notice to review and I see no reason for departing from that view: Wilson v McCormack [1968] Tas SR 55; Canning v Smith [1969] Tas SR 8; Norton v Loring [1976] Tas SR 40. Section 107 does not extend to all interlocutory orders, but if it is capable of extending to any such orders then it would surely extend to the instant determination which was both the penultimate step and one of the most significant steps in the proceedings.

1. I agree with respect, with the conclusion reached by Muirhead J in Fry v Jennings (1983) 25 NTR 19, that a finding that charges in a complaint had been proved amounted to an "adjudication" for the purposes of a similar statutory provision. The decision of the Supreme Court of South Australia (In Banco) in Peters v Lawson (1980) 23 SASR 418 was to the opposite effect, but as the court in that case appeared to base its decision upon the meaning of "conviction" I think it is distinguishable.

1. For the foregoing reasons I hold that the magistrate's finding that the complaint was proved was an adjudication and a determination for the purposes of s116 and was therefore an order for the purposes of s107. I hold that the notice to review is competent.

1. The evidence was capable of supporting findings that someone had committed the crimes with which the applicant was charged. The only direct evidence tending to show that it was the applicant who committed those crimes consisted of evidence of admissions made to the police including admissions to the effect that during the period of approximately two months during which the crimes had been committed, the applicant had broken into the Tennis Club and the Bowls Club "quite a few (times)" and evidence given by the applicant during the trial that he had broken into the Tennis Club on three occasions in addition to the occasion which was the subject of the count to which he pleaded guilty. However, the evidence was not such as to implicate the applicant in the commission of any particular crime.

1. It is not necessary for present purposes to review the whole of the evidence or the learned magistrate's reasons for judgment. It is sufficient to say that the magistrate rejected some of the applicant's evidence, including, in particular, his evidence that he had not broken into the Tennis Club on more than four occasions and that he had not broken into the Bowls Club at all and that he was satisfied that the applicant was guilty of all counts on the basis of the evidence to which I have already referred, some circumstantial evidence and the inference he drew from the fact that "what the evidence suggests overall, is this was a course of conduct, a modus operandi, that is suggestive of the same person at all times". The direct evidence was not capable of supporting a finding that the applicant was guilty of all the counts or of any particular count and thus, as counsel for the respondent properly conceded, that inference which the learned magistrate drew from the way in which the crimes were committed was crucial to his determination.

1. The evidence as to the manner in which each crime was committed was, of course, admissible for the purposes of determining whether the applicant was guilty of the particular crime to which it related. However, the learned magistrate also had regard to the evidence as to the manner in which each particular crime was committed when he was determining whether he was satisfied that the applicant committed the other crimes. Whether evidence which is admissible in relation to a particular count may be used in that way to determine whether the accused is guilty of other counts is a question of law which is to be determined by the same principles which are applicable to the determination of the question of the admissibility of similar fact evidence: DPP v Boardman [1975] AC 421 at 453; Vaitos (1981) 4 A Crim R. 238 at 253 and Sutton v The Queen (1984) 152 C.L.R. 528. In Sutton's case at p535 Gibbs CJ summarised the relevant test as follows:–

"The issue being identity, the question is whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes. In Scarrott (1977) 65 Cr App R 125 at p129, Scarman LJ (as his Lordship then was) pointed out that the phrase 'strikingly similar' is no more than a label and like any other label can mislead. However, the expression has been widely used, not only in England and Australia, but also in New Zealand (see Reg v McLean [1978] 2 NZLR 358, at p361, and Reg v Anderson [1978] 2 NZLR 363, at pp364–365, 370), and I respectfully consider that it conveniently indicates the sort of evidence required. As Mr Tapper has said in the Modern Law Review, vol 38 (1975) 206, at p208: 'The similarity must after all be capable of identifying the actor in the other incidents with the accused. This is best achieved by showing a shared and significant deviation from the common norm for criminal acts of that type.' It will not be sufficient if the similar acts alleged 'are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration' (Scarrott (1977) 65 Cr App R, at p130), or if, although not commonplace, they are 'the stock in trade' of persons who commit crimes of that particular kind: see, eg Inder (1977) 67 Cr App R 143, at p149."

1. The burglary which was the subject of the count to which the applicant pleaded guilty consisted of the accused breaking a window of the Tennis Club with an object of some kind and, according to evidence given by a police officer, climbing through the hole. He was then arrested by a police officer who had been keeping watch inside and was found to be in possession of two screw drivers, a chisel and a tyre lever. Counsel for the respondent submitted that the following similarities between the manner in which the crimes were committed entitled the magistrate to rely upon the evidence in respect of each count when considering the case against the accused in respect of the other counts.

1Evidence of marks found at the scene suggested that in two of the burglaries involving the Tennis Club and two involving the Bowls Club an implement like a jemmy was used.

2The two Clubs were situated "a short distance" from the motor bus in which the applicant was living.

3In all but one case – in which it appears that a glass cutter was used – entry was gained by breaking a window with an object.

4Property of a similar nature, viz. money, food and liquor were stolen each time.

5On some occasions money was obtained by forcing a container in a pay 'phone on the premises.

1. I make the following observations about the above features:

ASave for 2., none of the above features was present in all cases and in the case of 1 above, it was present in only four of the thirteen burglaries.

BIt would be hard to imagine a more commonplace or less striking method of committing a burglary than by breaking a window with an object and using a jemmy.

CFeature 2. was shared by all persons who lived the same distance from the Clubs as did the applicant and can hardly be regarded as a point of similarity at all.

DThe property referred to in 4. is the sort of property one would expect to find in clubs and in the absence of evidence showing that other portable property was consistently neglected in favour of food, money and liquor thus suggesting a degree of specialisation, the fact that property of this kind was taken each time, could not be regarded as remarkable.

EThe taking of money is commonplace and as a pay 'phone is known to be likely to contain money, forcing open a pay 'phone could not be regarded as unusual or remarkable.

1. Although for the purposes of judicial analysis it is necessary to have regard to each of the individual features which are said to be significant, ultimately it is the combination of the features which characterised the commission of each crime which has to be considered: features of the way in which a crime was committed which might be regarded as commonplace and unremarkable when viewed in isolation might be regarded quite differently when looked at in conjunction with each other. However, that is not to say that the observations I have made in respect of the individual features relied upon are irrelevant.

1. I have come to the conclusion that the combination of features relied upon in this case falls well short of satisfying the criterion laid down by the authorities. Even if it could be said that these crimes were committed in a similar way, the method which was employed in each case was commonplace and is the sort of method which one would expect any thief or thieves to employ in similar circumstances. In my view, any similarity between the way in which the crimes were committed could not possibly be regarded as so striking as to lead to the conclusion that they were all committed by the same person.

1. I hold that the learned magistrate fell into error when he relied upon the evidence relating to each count when he was considering each of the other counts.

1. The motion to review is allowed. The determination that the complaint was proved and any consequential orders are set aside. I order that the complaint be reheard by a magistrate.