W, JS v Police - [2005] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
W, JS v POLICE
Judgment of The Honourable Justice Gray
19 May 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - OTHER IRREGULARITIES
Appeal against conviction - appellant convicted in Youth Court of serious criminal trespass in place of residence and theft - appeal on grounds that appellant not afforded procedural fairness as was not permitted to exercise right to make an address and that magistrate failed to meet the obligation to deliver reasons for reaching a conclusion of guilt.
Discussion of entitlement of parties to criminal proceedings to address court on the evidence - consideration of effect of procedural fairness - discussion of adequacy of magistrate's reasons.
Held - appeal allowed - convictions set aside - matter remitted for retrial before a differently constituted Youth Court.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 170(1), s 288B(1); Young Offenders Act 1933 (SA) s 18; Summary Procedure Act 1921 (SA) s 68, referred to.
Stead v State Government Insurance Commission (1986) 161 CLR 141; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Billick v Starke (1984) 36 SASR 321, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Procedural fairness"

W, JS v POLICE
[2005] SASC 180
Magistrates Appeal
Youth Court
GRAY J:

This is an appeal against conviction.
Introduction
The appellant was charged with entering a place of residence as a trespasser with the intention of committing theft of property on 27 July 2004.[1] He was further charged that on the same day and place he committed theft by taking jewellery, a camera, a pair of binoculars and cash, dishonestly and without the owner’s consent, intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.[2]
[1] Section 170(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
[2] Section 134(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)      to deprive the owner permanently of the property; or
(ii)     to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
The charges came on for hearing before a magistrate sitting at the Youth Court at Mount Barker. The defendant contested both charges. The trial proceeded. Statements tendered by the prosecution were admitted by consent. The owner of the premises and of the property alleged to have been stolen entered and gave evidence. His daughter also gave evidence. The prosecutor closed the Crown case.
The defence made a submission of no case to answer. Following the rejection of this submission, the defence elected to call no evidence. The evidentiary stage of the trial concluded.
These events are addressed in the following terms in the prosecutor’s affidavit:
[Defence counsel] advised His Honour that the appellant elected not to give evidence and would rely on the record of interview, previously tendered as P1.
At this time His Honour immediately ruled that he found Counts 3 and 4 proved beyond reasonable doubt and adjourned the matter to 13 April 2005 for sentence. The issue of sentence has been further adjourned pending the outcome of this appeal.
There was no opportunity for either myself or [defence counsel] to make a closing address and I considered it would be futile asking for the opportunity to do so given His Honour had clearly determined the matter and would be therefore unlikely to change his mind.
The transcript records the following:
CASE FOR PROSECUTION
HIS HONOUR FINDS A CASE TO ANSWER
ACCUSED ELECTS NOT TO GIVE EVIDENCE AND [DEFENCE COUNSEL] ASKS HIS HONOUR TO RELY ON THE RECORD OF INTERVIEW
DECISION DELIVERED AT 3.10PM
The magistrate delivered an ex tempore judgment:
Whilst I note the record of interview, I also note the evidence from both prosecution witnesses which quite clearly establishes beyond reasonable doubt that the defendant broke into the premises. The record of interview establishes that as well. The evidence of the witnesses establishes that he stole the property mentioned in Count Four.
I find Counts Three and Four proved beyond reasonable doubt.
Procedural Fairness
On appeal, the appellant complained that he had not been afforded procedural fairness.
Counsel for the appellant drew attention to section 18 of the Young Offenders Act 1993 (SA), which provides:
The procedure to be followed by and the powers of the Court on the trial of an offence are, subject to this Act, to be the same as for the trial of a summary offence in the Magistrates Court.
Counsel for the appellant then drew attention to section 68 of the Summary Procedure Act 1921 (SA):
(1)     If the defendant does not admit the truth of the complaint the court shall proceed to hear—
(a)     the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and
(b)     the defendant and his witnesses and any other evidence which he adduces in his defence; and
(c)     any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.
(2)Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.
(3)The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.
The entitlement of parties in all criminal proceedings to address the court is protected by section 288B(1) of the Criminal Law Consolidation Act 1935 (SA):
At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the court on the evidence.
The practice followed in the Supreme Court upon the trial of an action respects the right of the parties to address the Court.
On appeal, counsel of the appellant accepted that the appellant had admitted that he had removed a wire screen and opened a sliding window and thereby gained entry to the premises. However, counsel for the appellant pointed out that the appellant denied having taken the property alleged to have been stolen. Counsel also claimed that he had entered the premises to pursue a claim of right.
A review of the evidence, including cross-examination, discloses that there was evidentiary material which the appellant’s counsel could have used. Counsel could have advanced a submission that there was at least a reasonable possibility consistent with innocence that the appellant had not taken the property as alleged. For example, at one point in the course of the owner’s evidence, he acknowledged that it was possible that some of the alleged stolen items might have been misplaced.
In Stead v State Government Insurance Commission[3], the High Court observed:[4]
… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties the primary judge, including the power to draw inferences of fact … However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
[3] (1986) 161 CLR 141.
[4] (1986) 161 CLR 141 at 145-146.
These observations have direct relevance to this appeal. The magistrate did not follow the rules of natural justice. The magistrate denied the appellant his statutory right to address the court. The magistrate also did not accord the appellant procedural fairness. The denial of natural justice in the present case affected the entitlement of the appellant to make submissions on issues of fact. The departure from the rules of natural justice entitles the appellant to a new trial.
Adequacy of Reasons
The short ex tempore reasons of the magistrate did not meet the obligation to deliver reasons for reaching a conclusion of guilt in respect of the two charges. The reasons do not include any analysis of the evidence nor any findings of fact. They represent no more than bare conclusions. The magistrate’s duty was to do more. As Kirby P observed in Soulemezis v Dudley (Holdings) Pty Ltd:[5]
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct. To adapt the words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630 at 634 the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only “disappointed” but “disturbed”. Such a result would be unacceptable precisely because of the statutory limitation on appeals to this Court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Court's strict approach is the obligation of the judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amounts to a proper application of the statute. That was not done here.
[5] (1987) 10 NSWLR 247.
In Papps v Police[6], these remarks of Kirby P were adopted and it was further observed:[7]
[6] (2000) 77 SASR 210.
[7] (2000) 77 SASR 210 at [34]-[35] (footnotes omitted).
As was said in Lawson v Lee the reasons must be "coherent, intelligible and comprehensive". But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
On any test, the ex tempore reasons of the magistrate in this case were deficient and materially so. The appellant was on trial for criminal offences. The charges were serious. The magistrate fell short of meeting his judicial obligations.
Conclusion
The magistrate in the present proceedings reached a concluded view about the appellant’s guilt. He reached that view without affording counsel for the appellant the opportunity to exercise the appellant’s right to put submissions. It is possible that the magistrate considered that all that could be said had been said during the submission of no case to answer. However, that did not meet the requirements of natural justice. A court may conclude that there is a case to answer but the test to be met in reaching that conclusion is a different test to that to be satisfied before concluding that guilt beyond reasonable doubt has been established.[8]
[8] King CJ in Billick and Starke (1984) 36 SASR 321 at 337 observed:
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question [is] … On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
An unfortunate consequence of the magistrate’s approach is that a retrial must be ordered. As the magistrate reached final views about the appellant’s guilt without there being a fair trial, the matter must be remitted to a differently constituted Youth Court.
This appeal is allowed. The convictions are set aside. The matter is remitted for retrial before a differently constituted Youth Court.

A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.