Tsolacis v Dept of Transport
[2010] VSC 183
•6 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9443 of 2008
| GEORGE TSOLACIS | Appellant |
| v | |
| DEPARTMENT OF TRANSPORT | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2010 | |
DATE OF JUDGMENT: | 6 May 2010 | |
CASE MAY BE CITED AS: | Tsolacis v Dept of Transport | |
JUDGMENT APPEALED FROM: | Magistrates’ Court (Spooner M, 23 September 2008) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 183 | |
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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW – Criminal law – Beyond reasonable doubt – Insufficiency of finding charges substantially proved – Magistrates’ Court Act 1989, s 92 – Criminal Procedure Act 2009, s 272.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms F.L. McKenzie | Department of Transport Legal Division |
HIS HONOUR:
Introduction
On 19 September 2006, Mr George Tsolacis, the appellant, was travelling on a tram as a passenger. Riding on the tram at the same time as Mr Tsolacis were four authorised officers employed by Yarra Trams (Ms Moisi, Mr Gibson, Mr Lord and Ms Everett). In the course of being asked to produce his ticket and concession entitlement, an altercation occurred between Mr Tsolacis and the authorised officers. As a result of this altercation, Mr Tsolacis was charged with the following offences:
(1) In Kew, on 19 September 2006, assault Debra Moisi, an officer in execution of her duty.
(2) In Kew, on 19 September 2006, assault Andrew Lord, an officer in execution of his duty.
(3) In Kew, on 19 September 2006, failing to comply with the requirement of Debra Moisi, an authorised officer, to produce evidence of an entitlement to a concession.
(4) In Kew, on 19 September 2006, resist Andrew Lord, an officer in the execution of his duty.
(5) In Kew, on 19 September 2006, resist Debra Moisi, an officer in the execution of her duty.
(6) In Kew, on 19 September 2006, unlawfully assault Debra Moisi.
(7) In Kew, on 19 September 2006, unlawfully assault Andrew Lord.[1]
[1]Charges 1 to 5 were laid under provisions of the Transport Act 1983 and charges 6 and 7 were laid under s 23 of the Summary Offences Act 1966.
The charges were heard by the Magistrates’ Court at Melbourne, constituted by Spooner M. The matter was heard on 4 and 5 June, 14 July and 23 September 2008. On the first day of the hearing, charge 3 was struck out and the Court proceeded to hear charges 1, 2, 4, 5, 6 and 7. Mr Tsolacis pleaded not guilty to all charges. The prosecution called the four authorised officers and a police officer who attended the scene (Senior Constable Benleigh). Mr Tsolacis gave evidence on his own behalf and called one witness, a Mr McGlasham.
At the conclusion of the hearing, her Honour heard brief submissions and then delivered judgment in favour of the prosecution, imposed an aggregate fine of $500 without conviction and ordered Mr Tsolacis to pay costs of $171.40.
Mr Tsolacis now appeals to this Court against the Magistrate’s decision. He brings the appeal under s 92 of the Magistrates’ Court Act 1989, which provides for an appeal on a question of law only.[2] For the reasons given below, Mr Tsolacis’ appeal must succeed and the matter will be remitted to the Magistrates’ Court for re-hearing and re-determination in accordance with these reasons.
[2]Whilst s 92 of the Magistrates’ Court Act was repealed, by s 427(1)(d) of the Criminal Procedure Act 2009, s 14(2) of the Interpretation of Legislation Act 1984 permits this appeal to be continued as if s 92 had not been repealed: see generally Secretary to the Department of Justice v Fletcher [2010] VSC 170, [15]-[43], per Bongiorno JA. See further s 272(1) of the Criminal Procedure Act 2009.
The grounds of appeal
In his amended notice of appeal,[3] the appellant set out his grounds of appeal as follows:
[3] Filed pursuant to an order of Daly AsJ.
“1. The Respondent deliberately provided false, misleading information, both in document form and in evidence during the hearing. None of the alleged factual information was true or correct, including evidence about medical injuries sustained during the incident or medical treatment received, subsequently. Transport Act 1983 – Sect 224, Evidence Act 1995
2. The Respondent failed to request for the ticket to be surrendered, had no valid reason for holding onto the ticket, and no receipt was issued as required. Proof is the fact, the responsible officer provided constantly a different reason both in her Brief of Evidence and during oral examination and cross examination. Transport (Ticketing) Regulations 2006 – Sec 19. Evidence Act 1995
3. The Transport Act 1983 provides that if a reasonable excuse exists, it is lawful to resist, obstruct or refuse to comply with a lawful request or direction, including assault.
4. No reasonable steps were taken to ascertain the nature of the dispute by two of the arresting officers. Transport Act 1983 stipulates they must query they (sic) nature of the dispute before getting involved.
5. The arresting officers failed to show that they believed on reasonable grounds, that:
A. that the appellant was committing an offence, or
B. that the arrest was necessary.
6. There was insufficient evidence with respect to charges 1, 2, 4, 5 and 6 to make the orders that the Magistrate did.
7. Respondent’s case not proven beyond reasonable doubt.
8. The Magistrate erred in not dismissing the remaining charges because a finding of substantially proven is not permitted by the Evidence Act. It must be beyond reasonable doubt.
9. On the evidence, the balance of probabilities favours the appellant.”
Whilst the grounds of appeal refer to the Evidence Act 1995 (Cth), I should say for the sake of completeness that the proceeding below was governed by the provisions of the Evidence Act 1958 (Vic). However, as will be seen from the reasons which follow, nothing turns on this point in this proceeding.
The Magistrate’s decision
Her Honour’s reasons for accepting the prosecution case in relation to the charges were as follows:
“Having considered the evidence and the submissions, I find the charges substantially proved, despite the defendant’s denials of the assaults alleged against him and his contention that he had a reasonable excuse under the Transport Act to behave as he did. These charges arose out of a fairly innocuous ticketing incident on 19 September 2006. On that particular day, an authorised Yarra Trams officer, Ms Mozee, (sic, Ms Moisi) had boarded a tram, on which the defendant was also travelling, with fellow ticket inspectors. When she approached the defendant to check his ticket, he handed it to her, but declined to show her his concession entitlement until she returned it. This silly standoff was the trigger of a most unfortunate series of events.
The defendant proceeded to get off the tram and, not surprisingly, he was followed by the ticket inspectors. He initially ignored their request to show his entitlement and went to walk off. When he was pursued by Ms Mozee (sic), he grabbed her wrist. She broke his hold and he grabbed her again and held up a fist and ended up striking one of the other officers, Mr Lloyd. A third officer, Mr Gibson, then informed the defendant that he was under arrest for assault. He resisted an attempt to take hold of him and proceeded to push and try and break free. At one stage, three officers were observed to be holding him very tightly against a fence. A very believable defence witness, Mr McGlasham, who gave evidence this morning, told the court of how he observed the officers restraining the defendant. Whilst he felt that the officers’ behaviour was heavy-handed, he had not seen the preceding events and could not disagree that the officers may have been telling the defendant to stop struggling.
Indeed, that is what the officers told the court they had said to the defendant on occasions during the ordeal. Unfortunately the police took some 25 minutes or so to arrive, whereupon calm returned to the situation. Whilst the defendant displayed considerable forensic ability in the conduct of his defence, and whilst he did highlight some inconsistencies in the evidence of the authorised officers, the weight of the evidence was against him. He has made submissions based on his denials of the assault which I have found proved against him. He has also submitted that as charge 3 was struck out, the authorised officers’ actions flowing from that were illegal, and further, that as they behaved contrary to the provisions of the Act the charges should be dismissed, but I disagree.
Although the defendant was his own worst enemy in my view on this particular occasion, I consider that the case does highlight some shortcomings in the management of difficult tram travellers. The delay in the police attendance was unfortunate, but I feel that more could have been done to diffuse a very difficult situation. Now, Mr Mosco, which assaults are you going to be proceeding with? I would be proposing to strike out a couple of them in the alternative.”
After discussion with the prosecutor (Mr Mosco), it would appear that charges 6 and 7 were withdrawn or struck out. Her Honour then inquired whether anything was alleged. Nothing was alleged. Her Honour then concluded that as there was no prior history, she proposed to impose an aggregate fine of $500 without conviction and an order that the appellant pay costs in the sum of $171.40. It would appear from the register that these orders were made in respect of charges 1, 2, 4 and 5.
The resolution of this appeal
It is trite that in order to be convicted of any of the charges he faced, the elements of each charge had to be established against the appellant beyond reasonable doubt. Whatever might be encompassed by the expression “substantially proved”, charges that are only substantially proved are not proved beyond reasonable doubt.
If the Magistrate had found some of the charges proved and some not proved, then it might have been possible to describe the overall result as one where the charges were substantially proved. However, that is not this case. It is clear from her Honour’s reasons for judgment that her Honour found all of the charges proved, and merely struck out (or permitted the prosecutor to withdraw) charges that were alternative.
Further, there may be cases where one could look at the whole of the judgment and say that whilst the Magistrate has referred to charges being “substantially proved”, it is clear that reasons have been given for finding each element of each charge established proven beyond reasonable doubt. Again, that is not this case. The reference to the charges being “substantially proved” is, in my view, exacerbated by the statement in her Honour’s reasons that whilst the appellant highlighted some inconsistencies in the evidence of the authorised officers, “the weight of the evidence was against him”. The use of this language suggests that her Honour may have engaged in a balancing exercise, rather than asking herself whether each element of each charge had been established beyond reasonable doubt. It is regrettable that in giving her reasons her Honour did not identify the elements of each charge she found “substantially proved”.
Counsel for the respondent submitted that a reading of the whole of her Honour’s reasons discloses that her Honour in fact found matters proved beyond reasonable doubt. It was put that the findings of fact made by her Honour disclosed that matters had been proved beyond reasonable doubt. I disagree. The language of the findings made by her Honour was, in my view, equally apposite to a case where the burden of proof was something less than beyond reasonable doubt. It was language of a kind that is often used in the resolution of civil disputes. That is, where the standard of proof is on the balance of probabilities.
The short point is that the language of her Honour’s reasons suggest that the appellant was found guilty on a standard different from, and lower than, beyond reasonable doubt. For this reason alone, the appeal must succeed. Whilst an attempt was made by counsel for the respondent to equate “substantially proved” with “beyond reasonable doubt”, this attempt failed for the reasons given by the High Court in Green v The Queen.[4] As was said by Dixon CJ in Dawson v The Queen,[5] “it is a mistake to depart from the time honoured formula [beyond reasonable doubt]”.[6]
[4] (1971) 126 CLR 28. See further R v Chatzidimitriou (2000) 1 VR 493.
[5] (1961) 106 CLR 1, 18.
[6]Whilst this was said by Dixon CJ in respect of a summing up in a criminal trial, his Honour’s view is equally apposite to a case of the present kind.
During the course of argument, counsel for the respondent referred me to authorities dealing with the supporting of a decision below upon grounds different from those articulated by the Court below. For example, I was referred to Preston Ice and Cool Stores Pty Ltd v Hawkins,[7] where Smith J said:[8]
“The defendant is clearly entitled to support the Magistrate’s order dismissing the complaint upon any ground which was open to him at the stage when the order was made.”
However, this line of authority has no application in this case. Finding a defendant guilty on a standard lower than beyond reasonable doubt is not a matter that is capable of correction if that is what has occurred. Even if it could be said that the case was overwhelming against the appellant (and I take leave to doubt that in this case), the appellant is entitled to a trial where, in order to be found guilty, each element of the relevant charge must be proved beyond reasonable doubt.
[7] (1955) VLR 89.
[8] Ibid at p 92.
Having disposed of the appeal on this ground, it is, strictly speaking, not necessary to consider the appellant’s other grounds. However, I should say for completeness that in his other grounds, the appellant sought to agitate matters that were either irrelevant to the ultimate resolution of the charges against him or matters that were mere questions of fact. It is to be remembered that a question of law is not involved in a decision simply because a conclusion of fact may be demonstrably unsound.[9]
[9] Transport Accident Commission v O’Reilly [1999] 2 VR 436, [58] per Callaway JA.
Specifically, the appellant sought to contend that he could not be convicted of the charges because of inconsistencies and discrepancies in the prosecution case. However, the transcript reveals evidence upon which it would be open to find charges 1, 2, 4 and 5 proved.[10] Whilst this Court might form the view that in the circumstances of the inconsistencies established by the appellant and in circumstances where the material suggests he was a man of previous good character,[11] reasonable doubt might exist in relation to the charges, that is not a matter for this Court.
[10]This was not a case in which it could be said that there was no evidence to support a particular charge so that a finding to the contrary would constitute an error of law: see generally Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473, 481 and 483; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6 and Bruce v Cole (1998) 45 NSWLR 163, 187-8.
[11]Nothing was alleged to the contrary when the issue of penalty arose – although it would appear that the appellant did not put his character in issue at the time her Honour heard the charges.
The appellant made no complaint about the adequacy or otherwise of her Honour’s reasons. However, it is perhaps unfortunate, that more extensive reasons were not given as to why the prosecution case was accepted. This is particularly so having regard to the reference to the unidentified inconsistencies referred to in her Honour’s reasons. It may be that more extensive reasons would have alleviated the concerns of the appellant, as expressed in his grounds of appeal, affidavits and submissions, relating to the acceptance of the evidence of the prosecution witnesses. In any event, it is not necessary to say more about this in the current proceeding.
Conclusion
It follows from what I have said above that the appeal must be allowed. In my view, the matter should be remitted to the Magistrates’ Court at Melbourne for re-hearing and re-determination by a different Magistrate.[12]
[12]See generally Body Corporate Strata Plan (No. 4166) & Ors v Stirling Properties Limited [1984] VR 903, per Ormiston J (as his Honour then was) at 912.
I will hear the parties on the precise form of order and the question of costs.
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