Tonna v Buik
[2023] ACTSC 143
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Tonna v Buik |
Citation: | [2023] ACTSC 143 |
Hearing Date: | 24 May 2023 |
DecisionDate: | 9 June 2023 |
Before: | Mossop J |
Decision: | See [49] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from finding of guilt - whether finding of guilt unreasonable and cannot be supported having regard to the evidence – whether magistrate erred in applying principles in Edwards v The Queen (1993) 178 CLR 193 and Liberato v The Queen (1985) 159 CLR 507 – whether magistrate took into account evidence not before the court – reasonable hypothesis consistent with innocence available on the prosecution case – factual basis for adverse credibility finding did not exist – magistrate erred in taking into account evidence not before the court – appeal allowed – conviction and sentence set aside |
Legislation Cited: | Criminal Code 2002 (ACT), s 318(2) Magistrates Court Act 1930 (ACT), s 208(1)(b) |
Cases Cited: | Edwards v The Queen (1993) 178 CLR 193 Liberato v The Queen (1985) 159 CLR 507 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 |
Parties: | Ryan Kyle Tonna ( Appellant) Christopher Adam Buik ( Respondent) |
Representation: | Counsel J De Bruin ( Appellant) M Howe ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 49 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 5 December 2022 Case Title: Buik v Tonna Court File Number: CC2022/7780 |
MOSSOP J:
Introduction
This is a conviction appeal from a decision of a magistrate. Ryan Kyle Tonna was found guilty by a magistrate on 5 December 2022 of a charge of dishonestly driving a motor vehicle without consent (CC2022/7780), contrary to s 318(2) of the Criminal Code 2002 (ACT).
The appeal is brought under s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The appeal is by way of rehearing. Error must be established.
Grounds of appeal
The grounds of appeal are as follows:
(a)The finding of guilt is unreasonable and cannot be supported having regard to the evidence.
(b)The magistrate erred by misapplying the principles in Edwards v The Queen (1993) 178 CLR 193.
(c)The magistrate erred by misapplying the principles in Liberato v The Queen (1985) 159 CLR 507.
(d)The magistrate erred by taking into account evidence that was not before the court.
(e)The magistrate erred by rejecting the appellant’s evidence in full.
The evidence
Much of the prosecution case was contained in an Agreed Statement of Facts. Those facts indicated that:
(a)A 2017 red Audi A4 sedan (the 2017 Audi) had been stolen on 29 or 30 July 2022.
(b)Between 3 and 5 August 2022 another red Audi A4 Sedan had its registration plates stolen and the registration plates from the 2017 Audi placed on it.
(c)At 5:25pm on 8 August 2022 the appellant drove the 2017 Audi into the Coles Express service station at Griffith where he refuelled the vehicle and drove off without paying for fuel. CCTV showed that the 2017 Audi was clean and undamaged.
(d)The appellant was arrested on 10 August 2022.
(e)On 21 September 2022 the 2017 Audi was recovered by police at the residence of Kevin Smith. Nothing of forensic value was obtained from a forensic examination.
At the hearing before the magistrate on 5 December 2022, the informant was called and the CCTV from the Coles Express was played. The Agreed Statement of Facts was tendered. There was no cross-examination of the informant.
The appellant gave evidence at the hearing. His evidence was that he had met a man named James at his friend Natalie’s house in Narrabundah. On 8 August 2022, when he was at Natalie’s house, he asked James for a lift to a counselling appointment in Deakin. He had seen James with the vehicle two or three times in the week prior to 8 August 2022. James checked that the appellant was licensed and gave the appellant permission to borrow the vehicle. James asked the appellant to leave his wallet with him to ensure that he would return. The appellant went to the appointment in Deakin. There was a key to the vehicle. It was very clean inside and had no rubbish. It was clean outside and had no damage. There were logbooks in the vehicle which the appellant saw when he was looking for a tissue while inside the vehicle. At some stage during the journey the vehicle was low on fuel. The appellant went to a service station. The appellant realised he did not have a means of payment and did not attempt to pay for the fuel because he was on parole and scared about getting into trouble. The registration plates were screwed on properly and had no damage around them. He did not believe they were stolen because he had seen the vehicle a number of times with the same plates affixed.
During the cross-examination of the appellant it was suggested to him, in relation to making off without payment, that he thought he could not be traced because he was in a stolen vehicle and knew the plates were stolen. He denied that. It was suggested to him that he knew that James did not own the vehicle. He denied that. He agreed with the proposition that the 2017 Audi “is a pretty nice car” and “would hold some value”. He did not know what James did for work or how he came into possession of the vehicle.
Submissions were made and the magistrate gave his reasons orally immediately after they were concluded. Those reasons extend over seven pages of transcript.
The magistrate’s reasons
The magistrate commenced by identifying the charges which had been laid against the appellant. The charge of making off without payment involved a guilty plea. The only charge that needed to be determined was the charge of dishonestly driving a motor vehicle.
The magistrate recited some basic principles in relation to criminal trials. Curiously, he gave himself a Liberato direction as well as a Markuleski direction. The magistrate may have been working from a script or template and made reference to each of these directions even though they were not applicable in the circumstances of the case.
The magistrate then referred to facts derived from the Agreed Statement of Facts.
He then described the elements of the offence of driving a motor vehicle without consent. In summary, he identified that those elements were:
(a)the accused’s drove a motor vehicle;
(b)the accused intended to drive the motor vehicle;
(c)the motor vehicle belonged to someone else;
(d)the accused was reckless as to whether the vehicle belonged to someone else;
(e)the accused did not have consent to drive the vehicle from the person to whom it belongs;
(f)the accused was reckless as to whether the person to whom the vehicle belongs did not give consent (default element of recklessness);
(g)the driving was dishonest according to the standards of ordinary people (physical element of a circumstance) within the definition of “dishonest” in s 300 of the Criminal Code; and
(h)the accused knew that the driving of the vehicle was dishonest according to the standards of ordinary people (specific fault element provided by the s 300 definition of dishonest).
The statement of the elements was drawn from the prosecutor’s aide memoire which had been provided to the magistrate at the commencement of the hearing. The magistrate indicated that the first three elements had been established.
The magistrate then turned to the facts of the case. He referred to the appellant’s version of events and said the following:
The defendant says in relation to the driving that he had gone to Natalie’s house in Narrabundah and that James wasn’t a close friend, but he had met James on two or three occasions, and those two or three occasions occurred within seven days prior to the offence date of 8 August 2022. So some time between 1 August and the offence date or 2 August and the offence date he had met this James person, a friend, on two or three occasions. Didn’t know his last name, however. And what he invites me to do is accept that he had given his wallet – notwithstanding the evidence that he had been requested to refuel the motor vehicle, he gave his wallet over to James because James wanted to make sure he would bring the vehicle back, and that somehow the wallet with credit card then it might somehow equate to an Audi in what appears to be very good condition, to be used by someone who is hardly known to the owner, being James based on the defendant’s evidence, to go to an accountancy appointment in at 4:30 in Deakin, and drive back and get fuel at about 5:30pm on 8 August at the Griffith Shell service Station at Manuka Village.
The magistrate went on to consider, at some length, what he referred to as “an Edwards lie”. This will be returned to in relation to the specific ground of appeal.
The magistrate then referred to the fact that there were no indicia that would indicate that the vehicle was stolen. It was clean, well presented inside and there was nothing which indicated that it had been tampered with in any way. There was a key in the vehicle and there were papers in the glove box.
The magistrate said that the appellant had said that he only became aware that the 2017 Audi was stolen when he was giving evidence in the witness box. The magistrate found this to be a “significant point about the credibility of the witness” because having been arrested and questioned by police and been before the court on 10 August, he “would have been well aware of what he was charged with – that is, having driven a stolen motor vehicle.”
The magistrate then made further reference to an Edwards lie.
The magistrate then returned to summarising the version of events given by the appellant and, during the course of this summary, refers to James having allowed the appellant “to take a very expensive motor car” being the 2017 Audi. The magistrate said:
And so the real issue really comes down to whether or not the version of events which has been put by the defendant the court should accept as being true, an account which says that he goes to Natalie’s house, who he visits, and that on two to three occasions in a seven-day period he sees this person called James but doesn’t know his last name; that on a request for a lift on presumably the third occasion that he sees James, James allows him to take a very expensive motor car, being a red Audi, with otherwise no blemishes or marks on it, which is white leather and clean on the inside, but says if he leaves his wallet behind, that’s a basis for which he can then take the vehicle; as some sort of exchange or equitable exchange ‘I hold my wallet and you can have an expensive motor vehicle in return,’ and that in doing so James requests that he fuel the car up, and yet the defendant says that he handed his wallet over with all his cards and ID in it, two things which he needed driving a motor vehicle: his driver’s licence and, of course, money to pay for the fuel, that he agreed on the basis of taking the car that he would refuel it.
I am not satisfied the defendant is telling me of reasonable events which are true and I reject that version of events. It doesn’t make sense. It’s simply not plausible. In the circumstances what is plausible, of course, is that he may well have had an appointment and an accountant at Deakin. None of that is tested. He says that the appointment was at 4.30, but he goes to the service station at 5.30, but he may well have been doing that on the return leg of the trip. None of that was sought or tested or challenged, so I don’t know.
The magistrate then turned to examine whether, on the prosecution’s case, the elements of the offence were established. The magistrate identified that whether or not the appellant was reckless about whether the vehicle belonged to someone else other than James was “the crux and the critical aspect here.” Having identified the crux, the balance of the reasons of the magistrate (with paragraph numbers inserted for ease of reference) were as follows:
(i)It was put to the defendant that he should have called James to give evidence on his behalf in what is a serious charge, carrying with it a term of five years’ imprisonment ordinarily, but I note a prosecution election form has been filed reducing it to two years. Notwithstanding, the defendant is exposed to a custodial term if he is found guilty and the very thing that could remove any obligation on him that he was guilty of the offence to which he has been charged would have been James, but he doesn’t know his last name was his evidence.
(ii)I reject that in this sense: in that he goes to Natalie’s house and he meets James there on three occasions. There is no evidence that he returned to Natalie’s house at any other time and James was there or not there. It just doesn’t make sense. It’s not plausible, and I reject it. I am satisfied that, having regard to those matters, which I must when looking at intentions set out in section 18 of the Criminal Code and section 20 as to recklessness:
A person is reckless in relation to a result if the person is aware of a substantial risk that the result will happen; and having regard to the circumstances known to the person, it is unjustifiable to take the risk. A person is reckless in relation to a circumstance if the person is aware of a substantial risk that the circumstances exists or will exist; and having regard to the circumstances known to the person, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is a question of fact. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
(iii)Recklessness in the Commissioner of Police v Caldwell 1982, Lord Diplock said:
‘Reckless’ as used in the new statutory definition of the mens rea of these offences is an ordinary English word with a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.
(iv)Badgery-Parker J in the New South Wales Court of Appeal in Williams v R (1990) 50 A Crim R 213 viewed recklessness in this type of allegation as ‘no more than foresight of the possibility of harmful consequence’. That is to say – and he explained in the case before him – ‘not caring whether it did or did not cause harm to Mr French (the victim), physical harm.’ Here the proposition might be changed to not caring whether or not the vehicle was owned by this person called James, in circumstances which make it, in my view, entirely reckless on his own conduct and behaviour in relation to taking the keys and leaving his wallet behind.
(v)Having regard to those circumstances, I am satisfied that the defendant did not have the consent to drive the vehicle of the true owner, that being Mr [name]; the accused was reckless as to whether it belonged to Mr [name] or anyone else; and the driving of the vehicle was dishonest according to the standards of ordinary people as defined by section 300 and that the defendant knew the driving of the motor vehicle would be dishonest according to the standards of ordinary people, hence the driving off after the refuelled motor vehicle at the Shell service Station at Griffith as court on the CCTV footage marked Exhibit 2. On that basis that offence is proved.
Ground (a)
This ground asserts that the finding of guilt was unreasonable and cannot be supported having regard to the evidence. Counsel for the respondent said that if the evidence of the appellant was put to one side, as the magistrate appeared to do, then the question became whether, upon the proven facts, the appellant’s guilt was proved beyond reasonable doubt. That depended whether, when the facts were considered as a whole, there was a reasonable hypothesis consistent with innocence available on the prosecution case.
The respondent identified three matters which, taken together, were said to mean that it was open to the magistrate to reach the conclusion that he did:
(a)the appellant knew the vehicle did not belong to him;
(b)the vehicle was expensive; and
(c)the appellant drove off from the service station without paying for fuel.
Counsel submitted that it was an available and rational inference that the appellant drove off from the service station in the expensive vehicle that was not his because he was aware it was stolen. He identified that the question then became whether there was a reasonable hypothesis consistent with innocence. That was required to be something more than mere conjecture: The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [47].
There appear to be two reasonably available hypotheses consistent with the innocence of the appellant:
(a)he did not want to pay for the fuel; and
(b)he did not have a means of paying for the fuel and, being concerned that he was on parole, did not want to confront the complications that would arise if he confessed to the service station operator that he had no money.
Each of these reasonable hypotheses focus on the admitted conduct. The knowledge that the vehicle did not belong to him and that it was expensive or, at least, of “some value” are not of such cogency as to render these hypotheses unreasonable ones. Rather, they are of limited cogency as factors pointing towards recklessness or dishonesty in relation to the ownership of the vehicle.
The quality of the vehicle and the circumstance of James allowing him to use the vehicle on the basis that he left his wallet with him are not sufficient, when combined with the circumstances relied upon by the prosecution, to prove beyond reasonable doubt that he was reckless as to the vehicle being stolen.
This ground is made out. As a consequence, the conviction and sentence must be set aside.
Ground (b)
This ground of appeal asserts an error in the application of the principles in Edwards v The Queen (1993) 178 CLR 193. As pointed out above, the magistrate made reference to the principles in Edwards. On appeal, neither party could explain the relevance of the reference to Edwards in this portion of the magistrate’s reasons.
The appellant correctly pointed out that although his Honour discussed Edwards lies at some length, he never clearly identified what he considered to be an Edwards lie in the case at hand. The appellant correctly identifies that it appears that his Honour may have considered the relevant Edwards lie to be the appellant’s statement in the witness box that he did not know the vehicle was stolen and until he was giving evidence.
Apart from the fact that his Honour’s reasons were difficult to understand, there was at least one fundamental problem with the approach that the magistrate adopted. If his Honour proceeded on the basis that the statement by the appellant in the witness box as to his lack of knowledge that the vehicle was stolen was, in fact, a lie, this involved a factual error. His Honour said:
The defendant’s version of events in relation to not only having been arrested and questioned by police in relation to the charges which bring him before the court today was that he only became aware that the Audi was stolen in the witness box today. That is the significant point about the credibility of the witness, in my view, and about why I should accept his version of events.
That finding appears to have arisen from an answer given during the course of cross‑examination. The very last question asked of the appellant in cross‑examination and the answer given was: “you agree now that the vehicle was stolen?---No.”
Immediately in re-examination he was asked the following:
[Counsel for the defendant]: Mr Tonna, my friend asked you whether you agree now that the car was stolen. Can I just clarify. Are you aware at this point in time, being in court, that the red Audi was indeed a stolen car or doesn’t belong to---?---Yes. Now, sorry, yes.
Thus, the position was that the erroneous answer given at the end of cross‑examination was immediately clarified and corrected. The evidence did not support any finding that he denied knowledge that the vehicle was stolen until he was in the witness box. It was not reasonably open to ignore the answer given in re-examination and rely upon the initial answer given in cross‑examination. While in some cases concessions or falsehoods in cross‑examination are, implausibly, attempted to be rectified in re‑examination, that was not this case. Rather, the question asked in cross‑examination had the potential to suggest to the witness that he was being asked about whether he now agreed that he knew then that the vehicle was stolen. In circumstances where the cross-examiner failed to nail down the answer given in a way that removed the potential misunderstanding of the question, there is no reason to doubt the appropriateness or accuracy of the answer given immediately thereafter in re-examination.
As a consequence, the factual basis for an adverse credibility finding made by the magistrate did not exist. It would obviously involve the misapplication of the principle in Edwards if the existence of the lie was not in fact proved. In the present circumstances, it is not necessary to consider further whether the statement could be appropriately characterised as an Edwards lie where it was based upon a general conclusion as to credibility as opposed to the lie being separately proved by evidence to be a knowingly false statement arising from a consciousness of guilt.
This ground of appeal is made out.
Ground (c)
This ground of appeal asserts an error in the application of the principles in Liberato v The Queen (1985) 159 CLR 507. The magistrate’s reference to Liberato was unnecessary. It is a direction required in cases involving an accused having given evidence or a version of events consistent with innocence which is contrary to evidence called from prosecution witnesses. Given that the prosecution case was a circumstantial one, it was not a direction required to be given in this case. However, the direction is merely a working out of the fundamental proposition that it is the prosecution which bears the onus of proving each element of the offence beyond reasonable doubt. Notwithstanding that the reference to Liberato was unnecessary in the present case, the magistrate in fact dealt with the evidence of the appellant correctly in that, even after having rejected the appellant’s account, he went on to consider whether, setting that account to one side, the prosecution had proved the case beyond reasonable doubt.
Thus, although the magistrate’s reference to Liberato was inapposite, it did not have any material consequence for his determination of the case. Therefore, this ground is not established.
Ground (d)
This ground asserts that the magistrate relied upon matters which were not in evidence. It relates to two matters. The first is the evidence that the appellant was asked by James to fill up the vehicle with petrol. The second is that the magistrate impliedly made a finding that the Audi was a “very expensive motor car” when the only evidence before the court was that it was of “some value”.
So far as the first aspect of the evidence is concerned, this arose from a rather unsatisfactory exchange during the course of the appellant giving evidence-in-chief:
[Counsel for the defendant]: Why was it that you had to refuel?---Because he would have had no petrol, and James did ask if I could fill it up when borrowing the car.
[Counsel for the prosecution]: Sorry. This is hearsay, your Honour, and the maker is not available to be cross-examined on this.
His Honour: Okay. So the objection is raised.
[Counsel for the defendant]: Thank you, your Honour. It’s a conversation that Mr Tonna can attest to directly. It was a conversation he had with James. It’s not critical evidence in any regard.
His Honour: Yes, it might be – it’s evidence that he’s giving of what he says is an alleged conversation, but the other person is not being called to verify or---
[Counsel for the defendant]: I have no issue with that comment being off the record, your Honour.
His Honour: Okay.
[Counsel for the defendant]: Perhaps if we could – I’ll clarify. Just for the record, Mr Tonna, so why was it that you had to refuel the car?---Because I had no petrol.
So far as the second matter was concerned, the only evidence about the value of the 2017 Audi came in cross‑examination of the appellant when he agreed that “the Audi is a pretty nice car” and “it would hold some value”.
The manner in which both the value of the vehicle and the request to put petrol in it were deployed by the magistrate appears from his reasons, the relevant part of which is set out at [19]. The “very expensive” nature of the vehicle and the request to fill it up with fuel both feature in the critical part of the primary judge’s reasons in which he rejects the evidence given by the appellant.
In relation to the evidence about filling up the vehicle, the objection taken to the evidence was completely misconceived. The relevant evidence was not, relevantly, hearsay. It was a statement as to what was said to the appellant where the making of the statement, not the truth of its content, defined its probative value. Notwithstanding that the objection was misconceived and not ruled on by the magistrate, it was clear that, as a result of the objection, counsel for the appellant at trial did not oppose that evidence being, in effect, struck out. That having occurred, it was not then open for the magistrate to rely upon that evidence as part of his conclusions about the credibility of the appellant’s version of events.
Similarly, although there was evidence of the model of the vehicle and that it was “pretty nice” and of “some value” there was no evidence that it was “very expensive”. The evidence did not say anything about the mechanical quality of the car, the number of kilometres it had driven or any aspect of its resale value. There is a significant difference between characterising the vehicle as one of “some value” and a vehicle which is “very expensive” in the context of assessing the credibility of the appellant’s version of events.
This ground of appeal is made out.
Ground (e)
This ground asserts that the magistrate erred by rejecting the appellant’s evidence in full. This ground arises because there was only very limited challenge to aspects of the defendant’s evidence in cross-examination. Having regard to the appellant’s success on other grounds of appeal including ground (a), it is unnecessary to determine this ground of appeal.
Orders
The appeal will be allowed and the conviction and sentence set aside.
At the hearing before the magistrate there was a backup charge of dealing with the proceeds of crime (CC2022/11792). This charge was withdrawn by the prosecution after the verdict of guilty had been pronounced on CC2022/7780.
The parties will be given an opportunity to consider these reasons and make any submissions as to whether or not a further order should be made remitting the matter to the Magistrates Court to deal with the backup charge.
The orders of the Court are:
1. Appeal allowed.
2. The conviction and sentence on charge CC2022/7780 are set aside.
3. The parties have liberty to apply within 14 days for any further order required as a result of the making of orders 1 and 2.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 9 June 2023 |
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