VJS and KML v Strickland
[1987] TASSC 82
•9 April 1987
Serial No B12/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: VJS and KML v Strickland [1987] TASSC 82; B12/1987
PARTIES: VJS
KML
v
STRICKLAND
FILE NO/S: LCA 29/1986
DELIVERED ON: 9 April 1987
JUDGMENT OF: Nettlefold J
Judgment Number: B12/1987
Number of paragraphs: 32
Serial No B12/1987
File No LCA 29/1986
VJS & KML v STRICKLAND
REASONS FOR JUDGMENT NETTLEFOLD J
9 April 1987
Appeal from Children's Court, Burnie
These two children who were aged 16 years at the time of the commission of the acts alleged against them were convicted on 14 October last. They were both convicted of one charge of "motor vehicle stealing" contrary to s37B(1) of the Police Offences Act 1935 after maintaining pleas of "not guilty". "KML" (hereafter referred to as "Kym") was convicted on a further charge of stealing monies to the value of $100, the property of Maurice Leon Buckby, after maintaining a plea of "not guilty" to that charge. The first child "VJS" (hereafter referred to as "Vanessa") changed her plea to that charge to one of "guilty" in the course of the hearing.
Each child attacks her conviction on the first charge on a number of grounds and Kym also raises a number of grounds of complaint about her conviction on the stealing charge.
It should be noted at the outset that the notice to review is drafted in such a way as to ignore the applicable law stated in the following passage from the well known case of Richardson v Shipp [1970] Tas SR 105 at 117 (and compare Brennan v Coghlan [1967] ALR 345 at 346):
"This is not an appeal by way of rehearing and it is not for this court to weigh the evidence and reach its own conclusion. The court is only concerned with the question of law whether there was evidence before the learned stipendiary magistrate upon which he was entitled to hold that the offence was not proved. The appeal is essentially an appeal against a finding of fact. The decision of a court of petty sessions upon questions of fact is to be treated upon a motion to review in the same way as an appeal from the verdict of a jury. In Taylor v Armour & Co Pty Ltd [1962] VR 346, at p351, in the joint judgment of the Full Court, the Court said:
'We have come to the conclusion that we should adopt the view that the Supreme Court on an appeal from petty sessions by way of order to review should, with regard to any question of fact, act according to long–established practice, and treat the matter in the same way as an appeal from the verdict of a jury. This was the view clearly stated by Hood J, in Aldom v Dunn [1917] VLR 70, 23 ALR 3, and by Herring CJ, in Young v Paddle Bros Pty Ltd [1956] VLR 38, [1956] ALR 301. It is a very long established practice, and appears to have been adopted by the Full Court in the early days of the colony, by analogy to the practice followed in England, under earlier procedures whereby decisions of magistrates were called in question – see R v Reason (1795) 6 TR 375; R v Smith (1800) 8 TR 588, at p 590; and see in Victoria R v Mollison;Ex parte Crichton (1876) 2 VLR (L) 144; R v Grover; Ex parte Parsons (1881) 7 VLR (L) 334; Quick and Berriman, The Victorian Magistrate (1924), at p473, and Paul on Justices (1936), at p479. The rule which prevails with respect to appeals from the county court, or from a single judge of the Supreme Court to the Full Court, or from this Court to the High Court, and which is stated in Dearman v Dearman (1908) 7 CLR 549, therefore does not apply. Accordingly, it is not for this Court to make up its own mind upon the evidence, though giving weight if necessary to the fact that the tribunal below has seen the witnesses. This Court has merely to see whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come'."
The motor vehicle stealing charges
The essential facts which the learned magistrate was entitled to find proved were the following:–
The complainant, Maurice Leon Buckby, was a young person himself, 18 years. He was employed at the relevant time as a saw sharpener at a sawmill. On Sunday 16 February 1986 at about 1pm in the Main Street of Smithton Maurice met the defendant Vanessa who was alone. He was friendly with Vanessa who asked him if she could borrow his vehicle to go to her parents' place at Edith Creek. He asked Vanessa how long she would be "and when she stated she would be only a short time I lent it to her". No suggestion was made that the car would be taken on any other journey.
Vanessa did not keep her word. She did not return the vehicle. Maurice next saw his vehicle two days later at a wrecker's yard in Wynyard when he noticed it had "been stripped, rolled, the windows broken out of it, no wheels, interior torn apart, stereo taken, radio taken, console was missing and totally devastated".
Maurice had lent Vanessa his vehicle on one or two previous occasions.
At the hearing of these charges Vanessa pleaded "guilty" to a charge "of being an unlicensed driver" and Kym pleaded "guilty" to a charge "of being a driver without a licensed driver seated beside her". Those two charges arose out of the use of the vehicle which was the subject of the motor vehicle stealing charges.
At about 4pm on Sunday 16 February the vehicle was at the Waratah Road House. These two girls were travelling in it.
The vehicle was seen in Savage River during the morning of 17 February 1986. Vanessa and Kym were travelling in the vehicle at that time.
The vehicle was damaged in an accident near Parawee at a time when these two girls were travelling in it. But they were not responsible for the stripping of the vehicle.
At the conclusion of the case for the prosecution it was submitted that neither defendant had a case to answer on the charge of motor vehicle stealing. It was submitted that Maurice Buckby gave Vanessa permission to drive the vehicle. Vanessa became bailee of the vehicle. She exceeded her authority by taking the vehicle to Savage River. It was submitted that an unauthorised extension of the permitted use did not constitute an illegal use for the purposes of s37 (1) of the Police Offences Act. Reliance was placed on the decision in Wray v Robertson [1970] Tas SR 253. Although Vanessa knew it was wrong to go to Savage River in the car without the owner's permission this made her civilly but not criminally liable.
It was further submitted that if this submission in relation to Vanessa was upheld then the charge of motor vehicle stealing against Kym should also be dismissed. It was submitted that there was no evidence that Kym knew at the time that she used the car that Vanessa was not in lawful charge of the vehicle. It was submitted that the only evidence suggested that Vanessa had borrowed the car on previous occasions and that in her record of interview Kym stated she got Vanessa's permission to drive the car on Monday 17 February. It was submitted that there was no evidence that Kym knew that Vanessa was not in lawful charge of the vehicle and to be convicted it must be proved that she knew that she was driving without the consent of the owner or of some person who was lawfully in charge of the vehicle and had authority to give consent. As Kym did not see Maurice Buckby she would not have known whether he had given consent or not. Knowledge is a prerequisite to conviction, reliance being placed on R v Murphy [1957] VLR 545 for that proposition. It was submitted that to convict the learned magistrate must be satisfied to the requisite degree that at the time Kym used the car she did so with the knowledge that the owner or person in lawful possession had not given consent to such use.
The lay prosecutor answered these submissions by submitting that the defendants did not have authority to use the vehicle on 17 February. He submitted that it would be wrong to say that, because a person was given permission to use the vehicle on one day and in one place, he should be treated as having permission to use it on another day and in another place. The permission was for a very short journey only, to go to Edith Creek and back.
The learned magistrate reserved his decision on these submissions for some considerable time.
At the resumed hearing the learned magistrate held that Vanessa had a case to answer on a basis which had not been mentioned previously. That basis was that Kym had a case to answer and Vanessa was liable on the basis of aiding and abetting Kym.
The learned magistrate said that he must have regard to the realities of the situation. The vehicle was taken to Savage River, detained overnight and a tribunal was entitled to infer that Kym knew that she did not have the owner's consent and knew that Vanessa was not authorised to give consent. A tribunal could infer that she very well knew that the vehicle was being illegally used. The record of interview dated 18 February 1986 indicated that the decision to travel to Savage River appeared to have been a spontaneous one acted upon after an unfruitful search for Mr Buckby.
A tribunal could come to the conclusion that Mr Buckby did not give his consent, that no reasonable person in this situation could have inferred that he had and Kym was likely to have known that she did not have consent. A reasonable and properly directed tribunal of fact could infer from the totality of the evidence that Kym knew that she did not have Mr Buckby's consent and further she knew that Vanessa was not authorised to give her consent to use the vehicle.
The evidence could establish that Vanessa knew that she was not entitled to delegate the task of driving. A tribunal could find that, in delegating the driving of the vehicle, she aided and abetted Kym in the commission of the offence.
The defendants elected not to give evidence following the ruling that there was a case to answer. It was then submitted that the learned magistrate could not be satisfied of their guilt beyond reasonable doubt. The learned magistrate rejected this submission and found the charge proved against each defendant. In addition to the reasons given in support of the proposition that there was a case to answer he added:–
"I can now rely upon their failure to give evidence. These are matters which are certainly within the knowledge of the defendants, that is to say their state of mind as to what they knew or didn't know, where the money came from or didn't come from, yet they have chosen not to give evidence and that being so I am entitled to rely upon their silence and to place it, along with the other evidence, to determine whether I am satisfied beyond reasonable doubt of their guilt."
The learned magistrate cited Insurance Commissioner v Joyce (1948) 77 CLR 39 and Jones v Dunkel (1959) 101 CLR 298 and added "having regard to these principles of law, and having regard to the other matters to which I have adverted, I am satisfied beyond reasonable doubt of all ingredients of the three outstanding charges".
On the evidence, the learned magistrate could, as a reasonable man, reasonably come to the conclusion to which he did come. Kym was a 16 year old child who did not have a licence to drive the vehicle. At the time Maurice gave consent for Vanessa to have the car for a very short journey, which was to be completed in a short period of time, Kym was not, and could not have been, in Maurice's contemplation at all. She was a stranger to any transaction he had in mind. Maurice was cross–examined and it was not suggested that he had Kym in mind at any stage. His Worship was entitled to find that Maurice did not consent to Kym driving at the time and place which came into question in the case. Further, he was entitled to find that Kym knew that, at the critical time, she was driving without Maurice's consent. If Maurice had permitted Kym to drive at the relevant time and place he would have been taking an unjustifiable risk with his property and, unless she had a licensed driver seated beside her at all times while she was driving on a public road, an offence would have been committed by her by driving in these circumstances and he would have been at risk of being charged as a party to her offence. The learned magistrate was entitled to find that Kym understood these things and understood that she and Vanessa were on a "joyride" and committing the offence of motor vehicle stealing. He was entitled to find that Kym knew that Vanessa did not have authority to give her consent to drive at the time in question. Kym would understand that Vanessa had a purely personal permission to drive for a very short period on a previous day (compare Chitty on Contracts, 25th ed, vol 2, par2364) and that personal permission did not entitle Vanessa to consent to Kym driving in circumstances which amounted to an offence. The learned magistrate was entitled to infer that the essential facts which show that Kym was committing the offence of motor vehicle stealing, came to the knowledge of Kym before she committed the offence. In short, the learned magistrate was entitled to find that the proscribed act was done and done knowingly.
Further, the learned magistrate was entitled to find that Vanessa was a party to Kym's offence. Vanessa knew that Kym was committing the offence and actively aided and abetted her in committing it.
I have formed the opinion that the learned magistrate reached the right result on this charge and that the convictions are perfectly safe and ought not be disturbed. If I thought there was any doubt about that I would send the charge back to be re–tried by another magistrate because, with respect, I think that there has been a misdirection on the subject of the silence of the defendants. The direction was "I am entitled to rely upon their silence and to place it alone with the other evidence to determine whether I am satisfied beyond reasonable doubt of their guilt".
With great respect the expression "place it along with the other evidence", suggests that silence, or absence of evidence, is evidence, which is a fallacy. The following propositions are fundamental and must be adhered to strictly in criminal and quasi–criminal cases:–
1The 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 (May v O'Sullivan (1955) 92 CLR 654 at 656–659; Brennan v Coghlan (supra) at p350; Tozer Kemsley & Milbourn (A'Asia) Pty Ltd v Collier's Interstate Transport Services Ltd, (1956) 94 CLR 384 at 403; Ex Parte Jones Re Macreadie (1958) 75 WN(NSW) 136 at p139).
2The defendant is not bound to give evidence. He can sit back and see if the prosecution have proved their case and, while the tribunal of fact have been deprived of the opportunity of hearing his story tested in cross–examination, the one thing the tribunal must not do is to assume that he is guilty because he has not gone into the witness box. (R v Bathurst [1968] 2 QB 99 at 107, 108). The fact that an accused person does not give evidence establishes nothing. It adds nothing affirmative to the prosecution case (R v Brockett referred to in R v Davison [1972] 3 All ER 1121 at 1125).
Stealing charge against Kym
At the time Maurice lent the car to Vanessa there was between $100 – $130 in a wallet in the glove box. This money was not in the wallet when it was later recovered.
There was evidence which the learned magistrate accepted that Kym took some money from the glove box and paid for some petrol. In a record of interview Kym asserted that she was unable to open the glove box. The learned magistrate took the view that this denial was a lie and that it was one of those unusual cases where a lie could be treated as positively confirming guilt by showing a consciousness of guilt. He felt that it could ground an inference that she lied because access to the glove box was significant and she realised that. In another record of interview Kym asserted that she did not know there was any money in the glove box. The learned magistrate took the view that this statement was also a lie which tended to confirm a consciousness of guilt.
It was submitted that the learned magistrate ought not to be satisfied of guilt beyond reasonable doubt. It was submitted that there was no evidence that she took money from the wallet.
Clearly there was evidence on which a reasonable tribunal acting reasonably could reach the conclusion which the learned magistrate reached. Apart from the point about failure to give evidence which has been dealt with, the only question which has caused me any difficulty is the question whether the learned Magistrate misdirected himself in law when he treated those lies as capable of amounting to some confirmation of the prosecution case. After careful consideration, I am satisfied that he did not misdirect himself. The evidence was similar to the evidence which was treated as corroboration in R v Vallance [1955] NZLR 811. The principle is that while opportunity alone does not amount to corroboration a proved opportunity may have a sinister complexion put upon it by a statement made by a defendant which is proved to be false; and such a statement may thus amount to corroboration but only if both the opportunity and the falseness of the statement are proved by evidence other than that of the person whose evidence is said to be corroborated, in this case Hutchins, by the false denial. The statement to be corroboration must be deliberate and material, attributable to a sense of guilt and a fear of the truth, pointing affirmatively to guilt and clearly and independently proved to be a lie. Notwithstanding the difficulty which often attends the delicate task of ruling whether lies can constitute corroboration, the learned magistrate was entitled to find that those lies were capable of amounting to corroboration (see Lonergan [1963] Tas SR 158; "Can Lies Corroborate"; J D Heydon (1973) 89 LQR 552 at p561 and cases cited in note 6; R v Lucas [1981] 1 QB 720; R v Collings & Ors [1976] 2 NZLR 104 at 117; R v Toia [1982] 1 NZLR 555 at 559).
General
I do not accept the proposition that it was not open to the learned magistrate to find Vanessa guilty as principal of the offence of motor vehicle stealing. The facts of her case are clearly distinguishable from the facts of Wray v Robertson. In Wray v Robertson the user said to amount to the offence occurred at a time when Wray was entitled to have the vehicle pursuant to his arrangement with the cab company. Here Vanessa was entitled to have the vehicle for a specified short journey which was to take place during a short period on a particular day. The user which constituted the offence here occurred on a later day a considerable distance from the place where the permitted journey was to be made. At the time of the relevant user, she was using the vehicle without the consent of the owner; to say she had consent at the time is to fly in the face of the obvious. If the generalization in Wray v Robertson, "it is directed to the offence that would be stealing if there were an intent permanently to deprive the owner of the vehicle and sounds in larceny" is sound, the facts of this case satisfy the test. A long recognised category of stealing is that enacted by s226 of the Criminal Code "being lawfully in possession thereof .... as a bailee converts to his own use or to the use of any person other than the owner" anything capable of being stolen, the other elements being that the conversion is without the consent of the owner dishonest and with intent permanently to deprive the owner. Here, without the consent of the owner and dishonestly, Vanessa converted the vehicle to her own use temporarily when she went so grossly and patently beyond the scope of the permitted use. At p259 of the report of Wray v Robertson his Honour said:–
"As 'taking' is not a necessary ingredient the section on this view would cover two cases akin to stealing
(1)where the defendant without any authority of the owner takes a car and converts it to his own use by driving it or otherwise using it;
(2)where the defendant is lawfully in possession of the car with the consent of the owner and fraudulently converts it to his own use by driving it or otherwise using it where he has no permission to drive it or use it at all.
Most cases of course come under the first category. Whether a case comes under the second category will depend upon the particular circumstances. An example which springs to mind is the case of a car parking attendant or garage proprietor in whose care a car is placed for safe keeping only making away with it for his own purposes."
This case fits category two in that passage. And, in any event, it plainly fits the words of s37B(1) "drives or uses a motor vehicle without the consent of the owner". If it must "sound in larceny" it does.
Finally, it was contended that the learned magistrate was wrong in finding Vanessa guilty on the basis of aiding and abetting, the prosecution having contended only that she was guilty as principal. And King v R (1986) 67 ALR 379 was referred to as indicating the kind of procedural error which has been made. There is no substance in that contention. When the learned magistrate ruled that there was a case to answer on the basis of aiding and abetting, it was open to counsel to seek an adjournment if any difficulty arose from the ruling which it was felt could not be dealt with immediately. This case is very different to King v R. where the change in the character of the Crown allegation occurred during the summing up by the judge in a murder trial.
For these reasons, the appeals are dismissed.
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