Walsh v Koenig
[2007] WASC 159
•25 JULY 2007
WALSH -v- KOENIG [2007] WASC 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 159 | |
| Case No: | SJA:1097/2006 | 8 & 15 MARCH 2007 | |
| Coram: | SIMMONDS J | 25/07/07 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM ARTHUR WALSH ALBRECHT ALDOF HEINRICH KOENIG |
Catchwords: | Appeal against conviction under Energy Coordination Act 1994 for failure without reasonable excuse to answer questions of inspector Error of law Whether requirements of procedural fairness applied Whether failure to describe allegations was breach of requirements of procedural fairness Whether it was a reasonable excuse for failure to answer that there had been such a failure Appeal against conviction under Energy Coordination Act 1994 for failure without reasonable excuse to answer questions of inspector Error of fact Whether sufficient foundation for finding that request for information made Whether sufficient foundation for finding that there was a refusal to answer questions |
Legislation: | Electrical (Licensing) Regulations 1991 (WA), reg 19 Energy Coordination Act 1994 (WA), s 14(d), s 20 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Securities and Investments Commission v Plymin (No 3) (2002) 170 FLR 128 Cornall v AB (a solicitor) [1995] 1 VR 372 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Garrett v Nicholson (1999) 21 WAR 226 Hare v Gladwin (1988) 82 ALR 307 Hooper v The Queen (1995) 64 SASR 480 Kioa v West (1985) 159 CLR 550 Lloyd v Faraone [1989] WAR 154 Samuels v State of Western Australia (2005) 30 WAR 473 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ALBRECHT ALDOF HEINRICH KOENIG
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 29840 of 2003, PE 29841 of 2003
(Page 2)
Catchwords:
Appeal against conviction under Energy Coordination Act 1994 for failure without reasonable excuse to answer questions of inspector - Error of law - Whether requirements of procedural fairness applied - Whether failure to describe allegations was breach of requirements of procedural fairness - Whether it was a reasonable excuse for failure to answer that there had been such a failure
Appeal against conviction under Energy Coordination Act 1994 for failure without reasonable excuse to answer questions of inspector - Error of fact - Whether sufficient foundation for finding that request for information made - Whether sufficient foundation for finding that there was a refusal to answer questions
Legislation:
Electrical (Licensing) Regulations 1991 (WA), reg 19
Energy Coordination Act 1994 (WA), s 14(d), s 20
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr C P Stevenson
Respondent : Ms K E McDonald
Solicitors:
Appellant : Cameron Eastwood
Respondent : State Solicitor for Western Australia
(Page 3)
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Securities and Investments Commission v Plymin (No 3) (2002) 170 FLR 128
Cornall v AB (a solicitor) [1995] 1 VR 372
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
Hare v Gladwin (1988) 82 ALR 307
Hooper v The Queen (1995) 64 SASR 480
Kioa v West (1985) 159 CLR 550
Lloyd v Faraone [1989] WAR 154
Samuels v State of Western Australia (2005) 30 WAR 473
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
(Page 4)
- SIMMONDS J:
Introduction
1 This is the hearing of a leave to appeal and the appeal. The appeal is against conviction by a Magistrate of the offence of failing to comply with a request for information made by an inspector under the Energy Co-ordination Act 1994 (WA) ("the EC Act"), without reasonable excuse.
2 The appeal raises issues of what under the EC Act constitutes a failure to comply and of what constitutes a reasonable excuse; and of whether or not certain findings of fact said to be critical to the conviction represented appealable error. In relation to what constitutes a reasonable excuse, the appeal raises the issue of the application under this legislation of the doctrine, forming part of natural justice, of procedural fairness.
3 After setting out the background to the charge on which the appellant was convicted, as well as that charge and its statutory framework, I describe the proceedings before the magistrate, and the grounds of appeal.
4 I then review the principles applicable to the grant of leave to appeal, before turning to consider each of the grounds of appeal.
The background to the charge on which the appellant was convicted
5 This account is drawn principally from the written chronology provided by the respondent dated 14 December 2006 and the document, "Agreed Background Facts", dated 12 March 2007, with which the parties provided me following the initial hearing of the matter before me, on 8 March 2007. I return to what occurred at that initial hearing below.
6 The appellant at all material times was the managing director of a company, Everyday Plumbers Pty Ltd ("Everyday Plumbers"). The appellant was a licensed plumber, and a gasfitter and backflow specialist. He did not have any electrical qualifications. By this I understood he did not have a licence for the purposes of Electrical (Licensing) Regulations 1991 (WA), ("EL Regulations") reg 19. Those regulations were made under the Electricity Act 1945 (WA).
7 EL Regulations, reg 19(1), was at all times material to this offence as follows:
"(1) Subject to this regulation, a person who, on or after the appointed day, carries out any electrical work commits an
- offence unless the carrying out of that work by that person is authorised by a licence or permit."
8 This provision was subject to an exception, in reg 19(2). It is common ground that exception had no application in this case.
9 Over a period of about three days in early February 2001, certain works ("the Saint works") were conducted in respect of an electrical hot water system at a rental property ("the property") owned by John Saint ("Saint"). It is common ground that the Saint works included work which was "electrical work" for the purposes of the EL Regulations, reg 19.
10 The Saint works involved the replacement of an existing electrical hot water system at the property. Saint had been contacted by one of his tenants in the property about a faulty hot water system. He had arranged for the appellant to visit the property to inspect the hot water system on a date in early February. On that visit the appellant had informed Saint that the hot water system needed to be replaced, and agreed to give him a quotation for the replacement. On 5 February 2001 the appellant gave Saint an "all-up" quotation for the installation of a new hot water system, which was accepted by Saint.
11 The prosecution case at the trial was that the appellant came to the property on 5 February 2001. He came with a new hot water system to install it that day. The prosecution case was that the appellant had disconnected the existing system from the power, either when he had inspected it for the purposes of making the quotation, or when he came to install the new hot water system. The appellant at the latter time connected the new system to the power, and told Nicholas Broadbent, the nephew of the tenant, who was present after that work had been done, that the appellant would have an electrician come later to check the appellant’s connection. The nephew took a hot shower after the appellant left, and an electrician, Steven Mark Leppard ("Leppard"), came the following day to check the connection.
12 The defence case at the trial was that the appellant contacted the electrician Leppard to come to the property to do the necessary electrical work. Leppard was unable to come at the same time as the appellant. While the appellant was at the property, Anthony James Lumley ("Lumley"), a plumber with a restricted electrical licence who was a long-time friend of the appellant, arrived. He did so as arranged with the appellant, to borrow from him some pressure testing equipment. While at the property, Lumley offered the appellant to carry the new hot water
(Page 6)
- system into the property for him. The appellant had a bad back. After bringing the new hot water system into the property, and without discussing the matter with the appellant, Lumley disconnected the old hot water system from the power, so as to assist the appellant. Lumley did this while the appellant was organising his welding gear and other tools for the Saint works. The appellant did only the plumbing for the Saint works. After the appellant had left the property Leppard arrived and connected the new hot water system.
13 It is common ground that, on 1 March 2001, Saint made a complaint to the Officer of Energy Safety. That complaint was to the effect Saint suspected the electrical work for the Saint works had been done by the appellant. The complaint was referred to Western Power, on 2 March 2001, because Western Power employed the inspectors authorised, under the legislation I will consider below, to investigate such matters.
14 It is also common ground that, on 9 March 2001, Kim Butt ("Butt"), an inspector authorised under the legislation referred to, commenced his investigation by visiting the property and inspecting the hot water system. He took statements from Saint, Nicholas Broadbent and Leppard.
15 It was the prosecution case that, on 31 May 2001, the appellant contacted Butt by telephone, after Butt had spoken with Leppard about some "inconsistencies" Butt had identified in information he had obtained.
16 It was the defence case that no such telephone call involving the appellant and Butt took place. The first contact between the appellant and Butt was in October 2001.
17 It is common ground that, on or around 12 September 2001, Butt forwarded to the appellant by certified mail a letter from him to the appellant dated 12 September 2001 (Exhibit P4). That letter set out a list of questions for the appellant to answer.
18 In material parts, the letter dated 12 September 2001 said this (emphasis in the original):
"I am an officer of Western Power and a designated Electrical Inspector pursuant to Part 3 of the Energy Coordination Act 1994. A copy of my certificate of designation, classification and powers is attached.
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- Western Power has appointed me to investigate a case of possible unauthorised electrical installing work carried out at 54 Carrick St. Woodlands WA, on or before 5 February 2001.
The investigation requires me to determine if any Act to which my powers (as an Inspector) extend or any requirement made under that Act, is being or has been complied with. In particular I am required to determine if the requirement of the Electricity Act 1945 and The Electricity (Licensing) Regulations 1991, concerning the performance of electrical installing work at the premises have been complied with.
Pursuant to the powers contained in section 14 (d) of the Energy Coordination Act 1994 I now require you to answer the following questions for the purpose of my investigation. You should answer all my questions by completing and signing the enclosed duplicate to this letter and returning it to me by ordinary pre paid post in the enclosed stamped addressed envelope, within 7 working days of the date of this letter.
It is an offence under section 20 of the Energy Coordination Act 1994, to obstruct an Inspector in the performance of his/her functions.
If you object to answering any of the questions on the grounds that the answer may incriminate you, then you must: -
• object to each question in the place indicated for objection, stating the basis for objection; and then
• answer the question fully in any event."
20 Subsequent to the October 2001 conversation, the letter was returned to Western Power, unopened.
(Page 8)
21 It is further common ground that, on 13 December 2001, Butt made an arrangement with the appellant to meet with him at his work premises in Osborne Park, the next day.
22 On 14 December 2001, Butt met with the appellant. It was the prosecution case that Butt gave the appellant the letter sent by certified mail to the appellant on or around 12 September 2001. Butt left shortly after doing this. Later that day, the appellant telephoned Butt and Butt telephoned the appellant.
23 The defence case was that Butt did not provide the appellant with any letter at their meeting on 14 December 2001. Further, the appellant made no telephone calls to Butt that day.
24 It was common ground that, on 14 December 2001, after the meeting of the two men, the appellant sent three faxes to Butt's office. These were of invoices relating to the Saint works. One was from LEP Electrical, the business of Leppard, to which invoice I return below; the other two were invoices from Everyday Plumbers. These faxes were Exhibit P5.
25 At 6.38 pm on that day, the appellant sent a letter, dated "15th December 2001", to Western Power by fax. This was Exhibit P6. In that letter the appellant said, in part:
"Pleased [sic] be advised that I intend sending as agreed a sworn affidavit denying all impropriety and involvement in any illegal activity pertaining to alleged electrical works being carried without the relevant licence.
Prior to my sending the aforementioned document as discussed I require an exact copy of the allegations made about the Company and myself personally. I will not entertain any further correspondence until I receive this."
The charge and its statutory framework
26 There were two charges laid against the appellant arising out of the events just described. The appellant was acquitted on one of the charges, and convicted on the other.
27 The charge on which the appellant was acquitted was the following, with its amended particulars:
"Charge 1 – Between the 2nd day of February 2001 and the 7th day of February 2001 at Woodlands, WILLIAM ARTHUR
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- WALSH ('the defendant'), not being authorised by a licence or permit issued under the Electricity (Licensing) Regulations 1991 made under the Electricity Act 1945, carried out electrical work at 54 Carrick Street, Woodlands, which was not work exempted under regulation 19(2).
1. The 'electrical work' that the defendant carried out was the disconnection and reconnection of a hot water system:
(a) The disconnection involved:
(i) Taking the cover off the hot water system;
(ii) The disconnection of a supply cables [sic] at the terminals; and
(iii) The removal of fixed wiring from the hot water system;
(b) The reconnection involved:
(i) Taking the cover off the hot water system;
(ii) The connection of fixed wiring to the hot water system; and
(iii) The connection of a supply cable at the terminals."
"Charge 2 – Between 11th day of September 2001 and the 15th day of July 2002 at Perth, the defendant failed, without reasonable excuse, to comply with a request of an inspector, namely, Inspector Butt, to answer questions pursuant to section 14(d) of the Energy Coordination Act 1994
2 By letter dated 12 September 2001, a formal request to answer Inspector Butt's questions was mailed to the defendant at his business address via registered mail. The letter was subsequently returned unopened to Western Power.
(Page 10)
- 3 On 14 December 2001 Inspector Butt visited the defendant at his business address and provided the defendant with a copy of the formal request to answer questions which included a copy of the questions.
4 On 14 December 2001 the defendant telephoned Inspector Butt and advised him that he (the defendant) would not answer the questions or any other questions.
5 On 14 December 2001 Inspector Butt telephoned the defendant again and asked him to answer the formal request to answer Inspector Butt's questions or attend the inspection office for an interview. The defendant declined both requests.
6 On 14 December 2001 the defendant sent a facsimile dated 15 December 2001 indicating he would not provide a sworn affidavit until he 'received an exact copy of the allegations.'"
29 I need to describe briefly the statutory framework to the second charge. The provision of the EC Act under which the inspector requested information, s 14(d), as at the period of the offence, read as it does now as follows:
"An inspector may, subject to this Part and the terms of his or her designation as an inspector –
…
(d) make any inspection, examination, sampling, inquiry or test, and request any information (including by way of answers to questions) and production of any records or other documents, that he or she considers necessary or desirable to ascertain –
(i) whether any Act to which his or her powers extend, or any requirement made under that Act, is being or has been complied with;
(ii) whether any order, condition, restriction, or limitation is being or has been observed;
(iii) the cause, results and other aspects of any failure of any system, plant, works, apparatus or
- installation, including damage and other matters arising from or suspected of being related to the failure;
- (iv) the cause of any death, personal injury or damage to property which is or may be attributable to the form of energy to which his or her powers relate."
30 An "inspector" is a person designated as such by the Director of Energy Safety: EC Act, s 12. It is common ground that Mr Butt was an "inspector" at all material times.
31 EC Act, s 14(d), does not itself create the offence of failing to comply with a request for information. The provision which creates the relevant offence is s 20(2), which as at the period of the offence read, as it does now:
"20(2) A person must not without reasonable excuse, and subject to section 15, fail to comply with a request under section 14(d).
Penalty for an individual: $5 000.
…"
32 EC Act, s 15, referred to in s 20(2), at all material times dealt with the making of statements that might tend to incriminate the maker as follows:
"Where a person, before making a statement or answering a question for the purposes of section 14(d), objects to having to make it on the ground that the statement might tend to incriminate him, any statement made after that objection –
(a) is not admissible in evidence in any prosecution against that person for any offence other than an offence against section 20;
(b) if recorded, in writing or otherwise, must set out the fact of the objection having been made."
33 It will be noted that in the letter dated 12 September 2001 quoted from above there are references to all of these provisions.
(Page 12)
The proceedings before the Magistrate
34 On 31 May 2005, and 2, 3 and 14 June 2006, with closing addresses on 15 June 2006, there was a trial before Magistrate Malone in the Perth Magistrates Court.
35 There were eight witnesses called. They were Saint, Nicholas Broadbent, Butt, Walsh, Lumley, Leppard, and Franca Vucemillo ("Vucemillo"), a part-time bookkeeper employed by the appellant's business, as well as Eric Kerry, a Western Power employee who produced records relating to a mobile telephone number of Butt's.
36 There were also a number of exhibits admitted into evidence, to some of which I have already referred.
37 On 10 August 2006 the learned Magistrate delivered judgment with written reasons ("the reasons for decision"), acquitting the appellant on the first charge and convicting him on the second.
The appeal proceedings
38 By notice dated 20 September 2006, the appellant applied for leave to appeal against the conviction just described. The grounds of appeal were the following:
"1. The Learned Magistrate erred in failing to consider properly, or, at all, whether, as a matter of law, a reasonable excuse to answer any questions existed where the Western Power Inspector, one Butt, failed or refused to provide any particular of the actual complaint against the Appellant before making the requirement of the Appellant to answer any questions.
2. The Learned Magistrate's decision that there had been a refusal by the Appellant to answer questions without reasonable excuse was against the weight of the evidence in that: -
(a) there was no proper basis for rejecting the evidence of the Appellant, corroborated by a witness at the scene, one Vucemillo, that no written notice requesting answers to questions, dated 12 September 2001, was handed to the Appellant by Inspector Butt on 14 December 2001, and therefore that at no time had there ever
- been any request to answer questions made of the Appellant;
- (b) the Appellant's letter to Western Power, sent by fax on 14 December 2001, was, in effect, an offer to provide answers to matters the subject of the complaint once the allegations substantiating the complaint were provided to the Appellant and was, therefore, not(as was held by the Learned Magistrate) a refusal or failure to answer questions for the purposes of s.14(d) of the Energy Co-ordination Act 1994;
(c) the only other basis of the case against the Appellant, namely, that the Appellant had made telephone calls to Inspector Butt in which he is alleged to have refused to answer any questions were [sic was] not made out in circumstances where the only reasonable inference to be drawn is that Inspector Butt was not believed in relation to the evidence."
39 By orders dated 10 November 2006, Blaxell J ordered that the application for leave to appeal and the appeal be listed to be heard together.
40 At the initial hearing before me, on 8 March 2007, I noted that I had not been provided with the written reasons of the learned Magistrate. The parties undertook to provide these to me so that I could read them before the adjourned hearing of the matter. I also suggested the parties consider providing me with certain other materials for that hearing, including an agreed statement of background facts. They did so, and I am grateful for that additional material, which has much assisted my deliberations.
Principles applicable to determining whether or not to grant leave to appeal
41 There was no dispute between the parties that the principles that must guide a Court in applying Criminal Appeals Act 2004 (WA), s 9(2) are set out in Samuels v State of Western Australia (2005) 30 WAR 473, per curiam (Steytler, P, Wheeler and Roberts-Smith JJA), at [50], [51], [56], and [60]: the most concise statement of those principles appears to me to be in [56]:
(Page 14)
- "The ordinary meaning of the words [in CA Act, s 27(2), which is the same in all material respects as s 9(2): 'the ground has a reasonable prospect of succeeding'], taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper."
42 As will become apparent from my reasons below, had leave been sought on its own, I would have given it, in respect of all of the grounds of appeal.
Ground 1: What was a reasonable excuse for a failure to comply with a request to answer questions
43 Counsel for the appellant put to me that there was such an excuse, by reference to the application in this case of the principles requiring that persons in the position of the appellant be accorded natural justice, more particularly that they be accorded procedural fairness. By this I understood him to mean that those principles continued to apply under the EC Act, as they had not been abrogated or modified. Alternatively, they were incorporated under the legislation by its use, in s 20(2), of "reasonable excuse", or at least that term should be read to import similar principles.
44 Counsel for the appellant's contention appeared to be that the principles of natural justice, in the sense of procedural fairness, required in the present context that the inspector, Mr Butt, have informed the appellant of the nature of the basis for his conclusion, in the words of EC Act, s 14(d), that it was "necessary or desirable" for any of the statutory purposes to request the information he sought "by way of answers to questions". The statutory purposes, it will be recalled, are those stated in s 14(d)(i) to (iv): the relevant purpose in this case was that stated in s 14(d)(i).
45 Counsel for the appellant put the matter in terms of informing the appellant of the "allegations" made against him, which it will be recalled
(Page 15)
- was what the appellant had asked for from Mr Butt. However, it seems to me that the contention requires to be stated as I have done. There is nothing in s 14 requiring the inspector to act only on allegations. It appears to me to be clear from the section that the inspector can act on his own, unprompted, inquiries.
46 Counsel for the appellant put the application of the principles of natural justice on the well known decision of Kioa v West (1985) 159 CLR 550. In particular I was referred to the judgment of Mason J, Wilson and Deane JJ agreeing, where the following familiar passage is to be found (at 584):
"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."
47 In this case, counsel submitted, there was an administrative decision which affected rights, interests and legitimate expectations, in the decision to ask questions which might result in an offence being committed under EC Act, s 20(2). There was no statutory intention manifest in the EC Act that the common law duty referred to did not apply.
48 For the requirements of procedural fairness in this case, counsel for the appellant referred me to an earlier passage in the judgment of Mason J, in Kioa (supra), at 582:
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Twistv Randwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No 2) [Salemi v MacKellar[No 2] (1977), 137 CLR 396], at p 419; Ratu [Reg v MacKellar; Ex parte Ratu (1977), 137 CLR 461], at p 476; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd v Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945). The reference to 'right or interest' in this
(Page 16)
- formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."
49 Counsel for the appellant put it to me that the requirement the appellant be informed of the allegations against him could be seen to arise out of at least three considerations deriving from the possibility for an inspector's questions to lead to the commission of an offence.
50 One was that the person asked the questions might not, without knowing the allegations (if they were the basis for the inspector's conclusion it was "necessary or desirable" for the relevant statutory purpose or purposes to ask the questions), be in a position to know whether or not the questions related to a matter for which the inspector was authorised to ask the questions he had. Absent such authority, there would be no question of the commission of an offence.
51 The second was that the person asked might not, without knowing the allegations in such a case, be able to determine how to answer the inspector's questions adequately, so as to avoid the commission of an offence.
52 The third was that the person asked might not, without knowing the allegations in such a case, be able to determine whether or not they were entitled to make an objection to answering a question of the inspector in terms of EC Act, s 15. It will be recalled that this provision sets out the protection for answers given following an objection to making a statement or answering a question on the ground the statement might tend to incriminate the person making it.
53 In respect of the first two considerations, I note the authorities that normally procedural fairness does not require a body performing investigative, prosecutorial or disciplinary functions to give the subject the opportunity to make submissions why the function should not be exercised. A useful recent statement of the position and its rationale appears in Australian Securities and Investments Commission v Plymin (No 3) (2002) 170 FLR 128; (2002) 42 ACSR 670; (2002) 20 ACLC 1762; [2002] VSC 358, Mandie J, at [23] - [25], as follows (emphasis in the original):
"Counsel for the second defendant referred to the principles relating to procedural fairness as enunciated, inter alia, in the well known authorities of [Kioa (supra)]; 62 ALR 321; Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 and Ainsworth v
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- Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11. Counsel referred in that regard to the effect upon the reputation of the second defendant of the mere institution of this proceeding.
However in my opinion, although each case must turn on its own context including any applicable statutory provisions, the authorities show that, in general, procedural fairness does not extend to require that a proposed defendant must be afforded an opportunity to put submissions in relation to a decision to institute a prosecution or a like proceeding, such as a disciplinary proceeding: see Medical Board of Queensland v Byrne (1958) 100 CLR 582 at 591, 594; [1958] ALR 806 at 811 Barton v R (1980) 147 CLR 75 at 95; 32 ALR 449 at 464 Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461; 18 ALD 439 at 444; Cornall v AB (a solicitor) [1995] 1 VR 372 at 396–7, 400-1; Maxwell v R (1996) 184 CLR 501 at 512, 534; 135 ALR 1 at 5.
In particular, I would refer to what was said by the Appeal Division of this court (Ormiston, Coldrey and O'Bryan JJ) in Cornall v AB at 396-7:
'It is therefore important to look at the principles which lie behind these authorities. In our opinion they do not stand for any principle that every investigator or investigative body must afford a person under investigation an opportunity to be heard in the sense understood in the law before they recommend a further step of a kind which will result in a judicial or quasi-judicial determination of the correctness or otherwise of the allegation made by the investigator. To do so would be to stifle the necessary functions performed by the police and the other many and varied authorities who for the protection of the public have to investigate alleged breaches of the law. That is not to imply that police and investigative bodies ought not to act fairly, nor, where appropriate, to seek answers (to the extent permitted by law) from those who are under investigation, but ordinarily the investigative process cannot be hedged around with requirements to seek further explanations at each stage of an inquiry. In this kind of investigation it is not the investigator's function to reach conclusions as to guilt or innocence, but to determine whether there is an arguable
- case of sufficient strength to sustain a conviction or which would justify the imposition of monetary penalties or other sanctions by disciplinary or other judicial or quasi-judicial tribunal. Regrettably the reputation of those charged with offences or brought before disciplinary or other tribunals will suffer to an extent in the eyes of those who fail to appreciate the different functions of investigator and decision-maker, whether judicial or quasi-judicial. Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charged a further opportunity to make submissions or reduce facts to an investigator who is not essentially the fact-finding tribunal …
Consideration of the relevant principle may properly begin with a statement by the late SA de Smith in his Judicial Review of Administrative Action (4th ed, Sweet & Maxwell, 1993) cited with approval by the Privy Council in Crane's case … at 845:
"Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this final act, particularly if he is entitled to be heard at a later stage …"
Rightly their Lordships pointed out that in considering the requirements of natural justice, 'the Courts should not be bound by rigid rules' … But it is also clear that their Lordships considered the case on appeal was an exception from the 'many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question'… This normally occurred where the investigation was purely preliminary and where there would be a full opportunity in due course adequately to deal with the complaints …
It may be thought that in Australia authority points more firmly to the conclusion that where an investigation forms
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- part of an entire process leading to a judicial or quasi-judicial hearing there is ordinarily no obligation at the investigative stage to afford procedural fairness except to the extent required by the language of the statute. Thus in Ainsworth's case, Mason CJ, Dawson, Toohey and Gaudron JJ said at 578,
"It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness' … " [Emphasis added]
- (I would refer also to what was said at 400–1 of the judgment in Cornall.)
54 The application of the "general" approach described in Plymin (supra) to a statutory context where the failure "without reasonable excuse" to answer the request of an investigator is an offence is also supported by authority: see Hare v Gladwin (1988) 82 ALR 307, Sheppard J, at 308 – 09.
55 It seems to me that the first two considerations referred to by counsel for the appellant do not require a different conclusion in this case.
56 As to the first, if it were established, for the purposes of EC Act, s 14(d), there was no or an insufficient basis for the inspector to ask the questions that person did, a refusal to answer any such questions would not constitute an offence under s 20(2). The person of whom the questions were asked would in due course have the opportunity to be heard in relation to the matter. There was no suggestion in this case that the inspector Mr Butt had no such basis.
57 It is true that the person might wish the enhanced opportunity to determine whether or not to refuse to answer the questions on that ground that knowing the basis for them would give that person. However, the authorities referred to appear to me to have rejected the provision of such an enhanced opportunity on the practical grounds referred to in the passage from Cornall v AB (a solicitor) [1995] 1 VR 372 at 396–7, quoted in Plymin (supra), at [25], above.
58 It is also true that the better informed the person asked the questions is of the considerations which led the inspector to ask them the better the answers might be. It also seems to me that a failure to answer might be
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- represented by an answer to the question which was not responsive to it. However, it seems to me that the questions asked determine whether or not an answer given was such that the offence in s 20(2) was committed. It is not the considerations that underlie the asking of the questions which determine or even affect that matter.
59 Nor does it appear to me that EC Act, s 15, affects this conclusion. I accept that knowing the matters present to the mind of the inspector that underlay the questions the inspector asked might indeed provide assistance in determining whether or not to make an objection under s 15 before answering. Such an objection would mean the statements made became inadmissible as the section provides. Such matters might include the allegations that led to the inspector asking the questions he did.
60 However, it seems to me the logic of the consideration on this account put to me by counsel for the appellant does not stop with the allegations that had been made against the appellant. That logic would extend to any matter of which the inspector was aware when the questions were asked which would be of assistance to the person of whom the questions were asked in determining whether or not the answers to the questions "might tend to incriminate" that person, in the terms of s 15. That tendency would appear to be one that is to be objectively judged, by reference to whether any danger of prosecution was "real and appreciable" (Cross on Evidence, 7th Aust ed, LexisNexis Butterworths, 2004, at [25100] and [25105]).
61 The task to which this would put an investigator, of determining what information should be provided to the person asked, would seem to me to engage the practical grounds for the approach to the requirements of procedural fairness in relation to investigations which I have previously referred to, in the passage from Cornall (supra) at 396-7, quoted in Plymin (supra), at [25], above. Further, I note that putting an investigator to that task has been seen to count in favour of finding the privilege against self-incrimination was impliedly excluded: see Hooper v The Queen (1995) 64 SASR 480, per Cox J, Olssen and Mullighan JJ agreeing, at 486. The significance of that consideration would seem to me to be no less where the privilege was excluded subject to the inadmissibility of the answers given as EC Act, s 15, provides.
62 I consider then that the consideration so referred to by counsel for the appellant does not argue for the requirements of procedural fairness for which he contended.
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63 I also consider it follows that “reasonable excuse” in s 20(2) should not be read to incorporate the requirements of procedural fairness as contended for by counsel for the appellant, or similar requirements.
64 It follows that I would not uphold the present ground of appeal.
Ground 2: Factual findings – (a) No proper basis for rejecting evidence that no request made of appellant
65 It was evident from the submissions of counsel for the appellant that the reference was to evidence that the letter dated 12 September 2001 had not been delivered by Butt in person to the appellant at the latter's work premises on 14 December 2001. Butt’s evidence was that delivery took place at that meeting. The evidence to the contrary was that of the appellant himself, and Vucemillo.
66 There was no other direct evidence with respect to the delivery. As will shortly be seen, however, counsel for the appellant pressed on me that there was circumstantial evidence relative to whether or not a delivery as testified to by Butt had taken place. Counsel put to me that the learned Magistrate had simply failed to take account of that evidence in arriving at his findings with respect whether or not delivery had taken place, which was the central factual issue with respect to whether or not the appellant had been asked questions for a failure to answer which he had been convicted. It was the central factual issue in the case because (as will be seen) the learned Magistrate found the only request for information contended for by the prosecution, in certain telephone calls after the meeting on 14 December 2001, had not been proven beyond a reasonable doubt.
67 The appellant testified that Butt had indeed met with him in the car park at the appellant's work premises on 14 December 2001, at about 1 pm. The appellant testified he had been walking back from the mail box near the gate to the premises when Butt arrived. The appellant testified that at that point (examination-in-chief, 3 February 2006, TS 162)
"I had to let him into the electrical gates to let him into the car park and that would have been after 12.00, close to 1 o'clock, somewhere there."
68 The appellant testified that after opening the gates Butt came into the car park where the two men stood talking (examination-in-chief, 3 February 2006, TS 164).
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69 The appellant's testimony was (examination-in-chief, 2 February 2006, TS 164 – TS 168) that Butt told him Butt was from Western Power, and said he was investigating some electrical works. Butt needed the appellant to answer some questions. The appellant said he would answer questions, and asked for details of what the matter was about. Butt said he could not supply any details of what the matter was about; it was simply that he required the appellant to answer some questions, to which the appellant replied he was not going to answer questions in relation to something he did not know about. The appellant mentioned the names of two electricians who had done work for him, and Saint's name. However, Butt said he could not say whether or not the matter involved them. The appellant then said he would get receipts and went upstairs to his office while Butt remained in the car park. He obtained the LEP Electrical invoice in respect of the Saint works, went back downstairs, and showed Butt what he obtained, asking if that was what the matter was about. Butt said he could not answer that. Butt repeated that the appellant had to answer some questions, to which the appellant replied he could ask the questions, but the appellant would not answer them unless Butt told him what the matter was about. The appellant then said he would give Butt an affidavit swearing neither the appellant nor his company had engaged in any wrongdoing. But the appellant would not do that until Butt told the appellant what the matter was about. The appellant said there was no point in the appellant trying to answer a question if he did not know what the matter was about. After Butt asked the appellant whether he was not going to answer the questions, and the appellant repeated his position, Butt left the appellant's office premises.
70 The appellant testified (examination-in-chief, 2 February 2006, TS 168 - TS 169) that following that exchange and later that afternoon he sent Butt the three faxes with the invoices I have previously referred to that together form Exhibit P5. The appellant testified he had got Butt's surname and fax number when the appellant contacted the Office of Energy, which referred him to Western Power.
71 Vucemillo's evidence(examination-in-chief, 14 February 2006, TS 39 - TS 50) was that on 14 December 2001 she was working at the appellant's work premises. She remembered a visit that day as the premises did not receive many visitors. She was working in the upstairs office.
72 She remembered a buzzer sounding, and the appellant leaving the upstairs office to go down to the car park. She looked from the window of the upstairs office and could see two men at the gate to the premises,
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- one of whom was the appellant. She could not hear what they said to one another. She testified that the other man did not at any point come in through the gate.
73 After a while, the appellant returned to the upstairs office. It appeared to Vucemillo "he wasn't very happy" (examination-in-chief, 14 June 2006, TS 47). He indicated to her that the other man was from Western Power.
74 The appellant picked up the LEP account and took it downstairs. He appeared to Vucemillo to show the account to the other man, but not to hand it to him.
75 In Vucemillo's examination-in-chief the following exchange occurred (14 June 2006, TS 48):
"But had anything passed from the man--not Mr Walsh?---Yep.
Did anything pass from the man to Mr Walsh? --- No.
Right? --- Not--not that I could see."
76 The exchange between the two men went on for "[n]ot that long" (cross-examination, 14 June 2006, TS 54), and the appellant came back upstairs and gave Vucemillo the LEP invoice back for filing. In her examination-in-chief she was asked whether she noticed what he had with him when he came back upstairs, to which she replied "[j]ust the same account" (14 June 2006, TS 48). She was not cross-examined on this answer.
77 Vucemillo, when asked in cross-examination whether or not she could see both the appellant and the other man "the whole time they were talking" replied "[y]eah" (14 June 2006, TS 53). In that cross-examination she demonstrated where both men were standing relative to her, apparently with the other man facing her and the appellant "more on the side" (14 June 2006, TS 53 – TS 54).
78 The learned Magistrate found that the letter of 12 September 2001 was delivered by Butt to the appellant at their meeting on 14 December 2001. It would appear that the basis for that finding was in his assessment of the evidence of Butt on the point, his assessment of the appellant's evidence in relation to dealings with "officialdom", his view of the appellant's fax of 14 December 2001 after the meeting, and his assessment of the reliability of the evidence of Vucemillo.
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79 With respect to Butt, the learned Magistrate noted the inspector's "lack of diligence" in the investigation, to be seen in his failure until October to follow up the letter of 12 September (reasons for decision, at 23). The learned Magistrate said this, with respect to Butt's evidence as to the delivery of the letter on 14 December 2001 (reasons for decision, at 24, 25):
"Is Mr Butt so lacking in diligence that he didn't even deliver the letter that he took purposely to Mr Walsh on 14 December?
Mr Butt's running sheet records 'asked if he can answer some question. He said he does not have time and it is all crap. Asked for the formal interview letter and questions and I gave them to him. He said he will see me in Court'.
The commentary sounds like Mr Walsh but it seems unlikely that Mr Walsh asked for the letter.
In his evidence Mr Butt said of the meeting; 'I showed him the letter and the questions and again asked if, you know – give him the opportunity to answer those questions. He said he doesn't have time and basically walked away with the questions in his hand.' He didn't mention Mr Walsh asking for the letter.
Be that as it may, I find it impossible to accept, even of Mr Butt, that he did not see that Mr Walsh got the letter. In [sic If] anything the fact that the letter was the same one that had resurfaced from the postal system, was typical of the investigation. To say that further Mr Butt did not give the letter and then fabricated entries in his running sheet and gave false testimony is not something I conclude occurred."
80 With respect to the appellant, the learned Magistrate said this (reasons for decision, at 25, 26):
"Mr Walsh is too wilful to be objective and credible in his dealings with Mr Butt.
There is credible evidence to support Mr Walsh in his accounts of attendances at the Carrick Street property, the disconnection and reconnection of the water heater.
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- However in his dealings with 'officialdom' I conclude that Mr Walsh is so single minded that his credibility comes into question."
81 The learned Magistrate went on (at 25 – 26) to give a number of examples from the evidence of the appellant's strong views about Butt, about Saint as "Complainant", and about "government departments" that took matters to Court "blindly without reason most times". The learned Magistrate concluded as follows, which indicates how he drew for his conclusion on the appellant's faxed letter of 14 December 2001, Exhibit P6 (at 26 – 27):
"In this context the critical question emerges did Mr Walsh receive the letter from Mr Butt on 14 December. I conclude he did.
Mr Walsh agrees that he spoke to Mr Leppard in May 2001 although he could not recall then speaking to Mr Butt. He definitely spoke to Mr Butt in October and then December and agreed to a visit to his premise for the 14 December.
In my view a more responsible person would have reacted more proactively to such matter but do not suggest that Mr Walsh was required to. He prefers I conclude to co-operate as little as possible.
Having guessed what the matter was all about, and that was not difficult, Mr Walsh sends a strident letter to Mr Butt on 14 December [Exhibit P6] having supposedly been given no details of what Mr Butt is investigating and no letter. Up to this point his modus operandi was to ignore everything and he had no reason to do otherwise. He was given nothing supposedly. Mr Walsh however responds by sending the facsimile he did.
In my view the absence of specific mention of Carrick Street and Mr Saint was because, although Mr Walsh had the letter and knew what the allegations were about, he wanted to be as unco-operative as possible and to provide as little information as possible."
82 With respect to Vucemillo, the learned Magistrate said this (reasons for decision, at 27 – 28):
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- "Ms Vucemillo was not a reliable witness. I don't doubt that she could remember Mr Butt coming to Mr Walsh's business premises. I do not accept her evidence however that she was in a position to confirm that Mr Walsh was not handed anything during the visit, in particular the letter Mr Butt was delivering to him.
I conclude Mr Walsh did receive the letter. I find it most unlikely in that small office that Ms Vucemillo was not aware of that fact because it is clear that day Mr Walsh was 'a bit incensed' and then sent the vitriolic facsimile referred to earlier. That was in direct response, in my judgment, to receiving the letter. There is a silly possibility that Ms Vucemillo might not have become of the letter [sic: might not have become aware of the letter?] but I doubt that.
Ms Vucemillo's account differed significantly to that of Mr Walsh's. She purported to remember the visit because of the rarity of visitors. Mr Walsh went down to see who had pressed the buzzer. She then fixates on both men through the window. Mr Butt did not come in the gate.
Mr Walsh said he was at his office near the gate. He had been to the mail box and was walking back when Mr Butt arrived. Mr Butt said he was Kim from Western Power or Office of Energy and Mr Walsh got the remote and opened the gate. Mr Butt came into the car park and they stood there talking.
Under cross examination Mr Butt said he could not recall any difficulty getting into the premises. From memory he thought the gate was open. He could not recall pressing a 'button or something' to attract attention to his presence. When pressed he could not remember whether he was inside or outside the gate but recalled standing towards the rear of a vehicle.
His evidence was perhaps more consistent with Mr Walsh's but certainly did not support Ms Vucemillo's."
83 Counsel for the appellant put to me that the learned Magistrate had erred in making the determination he did that he should prefer the evidence of Butt over that of the appellant, and, to the extent it was "more consistent" with that of the appellant, over the evidence of Vucemillo.
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84 There appears to have been no contest between counsel for the parties that the principles relevant to determining whether or not the learned Magistrate had erred were those in Fox v Percy (2003) 214 CLR 118, per Gleeson CJ, Gummow and Kirby JJ, at [23], [26], [28] and [29]. See also Devries v Australian National Railways Commission (1993) 177 CLR 472, per Brennan, Gaudron and McHugh JJ, at 479.
85 In Fox (supra), Gleeson CJ, Gummow and Kirby JJ said this, at [23], [26], [28] and [29] (footnotes omitted):
"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. …
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each
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- case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."
86 Counsel for the appellant also drew to my attention the principles concerning the significance to appellate review of the extent to which a trial Judge's assessment of a witness' evidence is based on the witness' demeanour. These principles appear from Fox (supra), per McHugh J, at [65], [66] and [90] (see also Abalos v Australian Postal Commission (1990) 171 CLR 167, per McHugh J, at 179; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, per Kirby J, at [68]):
"Whether an appellate court should intervene in a decision of a trial judge who has made findings based on the credibility or demeanour of a witness is governed by the principles stated in [Abalos (supra)]. In that case, I said [Abalos (1990) 171 CLR 167 at 178, 179]:
- '[W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion" [Watt (or Thomas) v Thomas [1947] AC 484 at 488.].
...
[W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.'
- Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479] where Brennan and Gaudron JJ and I said:
'More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact [See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos (1990) 171 CLR 167.]. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" [SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.] or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" [Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.].'
…
It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognize - in accordance with a long line of authority - that it may be done. But there must be
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- something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [(1999) 73 ALJR 306; 160 ALR 588.], for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it."
87 Counsel for the appellant put to me that the learned Magistrate had misdirected himself as to the approach he should have taken to determining whether or not he was left with a reasonable doubt as to the accuracy of Butt's evidence. Counsel said the learned Magistrate's approach was to ask whether or not Butt had fabricated his evidence.
88 I agree that such an approach would have represented an error. The learned Magistrate would have stipulated for a lesser standard of proof with respect to Butt's evidence than that of proof beyond a reasonable doubt, most clearly in ignoring the possibility of poor record keeping by Butt.
89 However, notwithstanding some of the language he used, that was not the approach the learned Magistrate took, in my view. His Honour did in fact approach the matter of the credibility of Butt's evidence both generally and in relation to the issue of the delivery of the 12 September 2001 letter by reference to the possibility I have described.
90 Thus, the learned Magistrate prefaced his assessment of Butt's evidence generally by saying (reasons for decision, at 22):
"Mr Butt was an honest witness. In my view however, he could be criticised for not diligently investigating this matter and that lack of diligence may have been reflected in his evidence."
91 As I will indicate in relation to ground 2(c), the learned Magistrate concluded there was a possibility that Butt's running sheet was inaccurate as to certain telephone calls that sheet showed the appellant having made to him and he had made to the appellant.
92 Further, as I have indicated, the learned Magistrate also concluded that certain detail shown in the running sheet with respect to the delivery of the 12 September 1999 letter to the appellant was "unlikely". That detail was as to the appellant asking Butt for the letter.
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93 While the learned Magistrate used the language of fabrication in relation to the telephone calls (as I will indicate) and the delivery (as I have indicated), it seems to me, by reference to the matters just mentioned, that he did not misdirect himself as counsel submitted he had.
94 Counsel for the appellant also put to me that there were three particular matters which, on the authorities I have set out, meant the learned Magistrate's conclusions represented reversible error. Each of these matters directly contradicted Butt's evidence and was, it was said, incontrovertible. None of these matters, it was said, was addressed or properly addressed in the learned Magistrate's reasons.
95 Further, counsel for the appellant put to me, the learned Magistrate had failed to use or had palpably misused his advantage in seeing and hearing the witnesses. The learned Magistrate had done this in founding his determination as to the credibility of the appellant on his reaction to authority. Counsel submitted this in effect was to require corroboration for the appellant's evidence of his dealings with authority. The learned Magistrate had compounded the error in not properly approaching the evidence of Vucemillo by emphasising matters in it that were not "significantly" different from those in the appellant's evidence as to the meeting between Butt and the appellant on 14 December.
96 The first of the matters not addressed in the learned Magistrate's reasons to which counsel for the appellant drew my attention was that of telephone calls, on 14 December 2001, by the appellant to Butt and Butt to the appellant.
97 Butt gave evidence of the appellant ringing him on 14 December 2001 after the meeting of that day while Butt was on a job, and the two men spoke "at quite some length" (examination-in-chief, 31 October 2001, TS 27). Butt's evidence as to the conversation was as follows (examination-in-chief, 31 October 2001, TS 27 – TS 28):
"Basically I was encouraging Mr Walsh to answer some questions and that I had--all I had was from the witnesses that had seen him do the work. He was strongly denying that he did, and I actively encouraged Mr Walsh to answer some questions basically to hear his side of the story, so--because I hadn't heard that to date.
Do you recall how long that-- you said it was lengthy; do you recall how long that conversation was? --- Probably 20 or 30 minutes in length.
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- MS QUINLAN: And after encouraging Mr Walsh to answer the question did he say that he would? --- No. He said he wouldn't.
Did he say anything else? --- He said he would send me some receipts that would indicate who did what on that day at that address."
98 There was also evidence from Butt of one telephone call on 14 December 2001 by Butt to the appellant, later that same day. This followed the receipt by the former of faxed documents from the latter on 14 December 2001. The faxed documents were the invoices in Exhibit P5.
99 Mr Butt testified that after receiving those faxes he obtained the advice of his principal inspector that Butt should give the appellant two choices. One was "to come in and answer some questions"; the other was "to fill in the questions that he had been handed" (examination-in-chief, 31 October 2005, TS 30). This sequence of events was as set out in Butt's running sheet (Exhibit P7), from which Butt had received permission to refresh his memory as he gave his evidence of events, including it would appear events on 14 December 2001 (examination-in chief, 31 October 2005, TS 26).
100 After that telephone call, Butt received a further fax from the appellant, being the letter dated 15 December 2001, but transmitted on 14 December 2001 (Exhibit P6).
101 The appellant testified there had been no such telephone calls by him to the appellant, or the appellant to him.
102 Telephone records for a mobile telephone number of Butt's that were produced into evidence (Exhibit A1) did not show any call on that service to any number associated with the appellant on 14 December 2001. Telephone records for the appellant, for a mobile and for land lines to his office premises (Exhibits A10, A11 and A12) did not show any calls by the appellant to Butt on that day. Further, counsel for the appellant referred me to the unchallenged evidence of the appellant that he would not have known what mobile number to ring for Butt.
103 However, as I will indicate below, in relation to ground 2(c), the learned Magistrate did indeed in his reasons for decision take account of this body of evidence. As I will indicate there, his Honour concluded, based on his concern as to Butt's lack of diligence, that it was possible the
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- running sheet – from which as I have indicated he had refreshed his memory of these events – was inaccurate.
104 I understood counsel for the appellant to be putting to me that his Honour had failed to consider, or sufficiently consider, the impact of that conclusion on the matter of whether or not he should find beyond a reasonable on the evidence from Butt, informed by his running sheet, that the 12 September 2001 letter had been delivered to the appellant on 14 December 2001, should be believed.
105 However, in view of his Honour's conclusion referred to, I am unable to conclude that there was such a failure. In the context of that conclusion, the fact that the matter was not spelt out in his reasons is not indicative of such a failure. In that regard, I note the approach to reasons of a trial judge in the position of the learned Magistrate in Lloyd v Faraone [1989] WAR 154, per Malcolm CJ, at 163 (referred to with approval in Garrett v Nicholson (1999) 21 WAR 226, per Pidgeon J, Wallwork J agreeing, at 237, and quoted per Owen J, at 248):
"The obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful. … [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts."
106 Further, it does not seem to me that the evidence of the phone records is of such a character as to make a conclusion that the evidence of Butt should be believed in any other material respect, such as the delivery of the letter, "glaringly improbable" or "contrary to compelling inferences".
107 The second of the matters to which counsel for the appellant drew my attention was the evidence of Butt as to his record of his interview with Leppard on 9 May 2001, as well as the evidence of Leppard himself. Counsel put to me that the evidence indicated that Butt had conceded certain answers he had provided were inaccurate and misleading. However, the learned Magistrate did not have regard to the matter when considering whether Butt's records and testimony as to the events on 14 December 2001 were reliable.
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108 The record of the interview (Exhibit P16) was a document with printed and handwritten questions, and handwritten answers. It was signed by both Butt and Leppard, with their initials on each page. Butt had handwritten the answers, as well as those of the questions that were handwritten it would appear, at the interview prior to signature and initialling. There were two answers on which the cross-examination of Butt to which I was directed focussed.
109 On page 2 of the record of the interview, there was a handwritten question, "Did you know who [disconnected the hot water system]?" The handwritten answer was "Yes – Bill Walsh. Everyday Plumme [sic]."
110 Butt was cross-examined as to this answer (31 October 2005, TS 47 - TS 48). He admitted that Leppard had told him the hot water system had been disconnected before he arrived on the scene. He agreed with the cross-examiner that Leppard in his answer was making an "assumption", and that the "answer doesn't quite put the full sense of the actual discussion that you had with Mr Leppard".
111 Leppard in his examination-in-chief (14 February 2006, TS 10 – TS 11) testified "I don't remember saying [in answer to the question] it was Bill Walsh", adding after further questioning, apparently in relation to the present point, "we might well have talked about it, but I don't really remember that question being put to me, at the time of the – ". He was not cross-examined on this answer.
112 Also on page 2 of the record of the interview, there was a printed question, "When was the electrical work carried out?" The handwritten answer was "6/Feb./2001".
113 Butt was also cross-examined on this answer (31 October 2005, TS 47 - TS 51). He admitted that Leppard had been unsure of the date, and indicated he would need to consult his records, to which Butt testified he replied it was not necessary, as Butt had records back at his office which he could consult. After some further exchanges Butt agreed with the cross-examiner that the date was "not something that he told you in his own words" but was rather "something that you put to him; that it was on or about that date, and that he's adopted that statement you made".
114 Leppard in his examination-in-chief (14 February 2006, TS 11) testified the answer as to the date was "definitely not the answer that we gave him, because, at the time when we did it, neither he nor myself knew, exactly, the date", adding that Butt had told him not to "worry
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- about it", as "most likely" he had records back at his office. Again, Leppard was not cross-examined on this testimony.
115 I do not consider this evidence is of matter in respect of which Butt admitted inaccuracy. At most, it seems to me, he has admitted incompleteness. It seems to me the evidence of Leppard might be understood to be that the answers were ones he had not adopted by signing the document, and indeed appears to have been so treated by the learned Magistrate, as I will shortly indicate.
116 In those circumstances, I do not consider the learned Magistrate erred in failing to address the matters in his reasons for decision in relation to his findings as to Butt's credibility. In any event, I am not convinced he did not bear in mind the matter of the answer as to the date, at least. He made specific reference to the matter in his assessment of Leppard as a "credible witness", where he adds (reasons for decision, at 27): "[h]is adoption of 6 February in the record of interview was mistaken and careless".
117 The third of the matters to which counsel for the appellant drew my attention was the evidence of Butt as to the production by the prosecution, as an exhibit (Exhibit P4), of a copy of the letter dated 12 September 2001, showing a signature on it. Counsel put to me that this evidence showed that the original letter dated 12 September 2001 had been retained in Butt's possession or that of his employer. It was an error for the learned Magistrate not to address this evidence in his reasons for decision.
118 I understood the submission to be that, while the evidence did not incontrovertibly establish the retention of the document, it was sufficient (going to the very matter, that of delivery of the letter to the appellant, in issue), that it called for consideration in the learned Magistrate's reasons.
119 I do not consider the evidence was of such a character that it did call for such consideration. I note again Lloyd (supra), per Malcolm CJ, at 163. My reasons are these.
120 Butt was cross-examined at some length about what appear to have been two copies of the letter that was Exhibit P4 that bore no copy of a signature, and were produced to him by counsel for the defence who was also counsel for the appellant (31 October 2005, TS 65 – TS 71). They were a copy made available to the defence by the prosecution, in November 2004 it would seem, and a copy produced by Butt, on the return of a summons to produced documents in June 2005. Butt testified that the file he had would have had "a copy of everything that's sent out",
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- being the "originals", but that he had "probably" produced a print out from the saved electronic document for the purposes of the return of the summons in June 2005. He agreed, however, that the document produced in November 2004 bore indications on its face (in the form of what appeared to be punched hole marks) it had been kept on a file. He agreed that that document was likely one he had forwarded from his file to the prosecution prior to a copy of it being provided to the defence. He agreed he had not produced two signed originals, one for the appellant to sign, and one for the file. He agreed that the copy of the letter produced to the Court and that became Exhibit P4 bore a signature.
121 Counsel put to me, as he had to Butt, that this evidence founded as the only reasonable inference the conclusion that Butt had retained the original in his file, which he had retrieved for the purpose of production to become Exhibit P4. Butt rejected the proposition that he had retained the original, by saying "Mr Walsh had the original" (TS 70). Further, in his re-examination (14 February 2006, TS 96 TS 98) Butt testified that he had sent the "originals" from his file to the "Office of Energy", and that he had not produced the copy that was Exhibit P4.
122 I cannot agree that the only reasonable inference from the circumstantial evidence was that contended for by counsel for the appellant. The retention of a filed unsigned copy after dispatch to the "Office of Energy" of the photocopy of the signed original seems to me at the very least a reasonable competing inference. In determining whether or not he was left with a reasonable doubt as to the delivery of the letter it seems to me that the learned Magistrate was in a position where he had to consider all of the evidence, of which the circumstantial evidence just referred to did not seem to be a compelling part.
123 It seems to me that the learned Magistrate's failure in his reasons for decision to address the body of circumstantial evidence comprising the copies of the letter referred to for its bearing on Butt's credibility was not a failure to use or a palpable misuse of his advantage as the trial Judge, let alone a failure to consider inconsistent matter incontrovertibly established by the evidence, or to consider matter which pointed to delivery of the letter to the appellant as "glaringly improbable" or "contrary to compelling inferences".
124 I note again that the learned Magistrate from his reasons for decision quoted above formulated the issue as to delivery in terms of whether or not Butt "didn't even deliver the letter that he took purposely to Mr Walsh on 14 December" (at page 24; emphasis supplied). However, I do not
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- consider on that passage that he should be seen to have failed to consider the possibility that Butt had not taken the letter with him. The passage came after his recital of the bases for his conclusion, which prefaced his evaluation of Butt as a witness, as I have indicated above, that he was an "honest witness" who could be "criticised for not diligently investigating this matter and that lack of diligence may have been reflected in his evidence" (page 22). It seems to me that he was indicating in the later passage one of the results of the application of his view of Butt's evidence, but subject to the evaluation, which appears later in his reasons for decision, of the other evidence in relation to delivery, from the appellant and Vucemillo.
125 Counsel for the appellant put to me that, in any event, the learned Magistrate had erred in founding his determination as to the credibility of the appellant on his reaction to authority. As I have indicated, counsel submitted this in effect was to require corroboration for the appellant's evidence of his dealings with authority. I further understood this submission to be to the effect that the appellant's wilfulness, even if it was as the learned Magistrate had found it to be, did not of itself indicate that the appellant's evidence as to his dealings with authority should be disbelieved.
126 I begin by noting that it seems to me the learned Magistrate did not in his reasons for decision approach the evidence of the appellant as to his dealings with authority on the basis it should be seen to be false, absent corroboration. Such an approach would indeed have been erroneous. It seems to me that the approach the learned Magistrate in fact took may be seen in the way he dealt with the evidence represented by the letter from the appellant to Butt faxed on 14 December 2001 (Exhibit P6). It seems to me he dealt with it as giving rise to a reasonable inference that the appellant had seen the letter dated 12 September 2001. I so read his reasons for decision (at 27) where he says:
"Up to this point his modus operandi was to ignore everything and he had no reason to do otherwise. He was given nothing supposedly. Mr Walsh however responds by sending the facsimile he did."
127 I particularly note the following paragraphs from the letter which it seems to me would found such an inference, if not as the only reasonable inference to be drawn:
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- "I have not and do not intend to obstruct you or your office in the course of your duties. However I do not intend to assist you to 'fit me up' in the course of those duties. It is obvious to me and Blind Freddy that your 'Complainant is a compulsive liar and some sort of moron with a mental impairment that needs serious attention. I will definitely be looking very closely for scope to sue him personally whether this goes to court or not.
In closing I would hope some modicum of sense will prevail on the part of your good selves and no further action against you will be necessary, failing this of course I think my position is more than clear."
128 It will be recalled that the appellant's evidence was that Butt at their meeting refused to confirm any details as to the job in respect of which Butt wished to ask the appellant questions, and in particular refused to confirm that the job was the Saint works. Of course, on his evidence the appellant had formed the view, based on his business' experience as to any complaints about its work, that they were the subject matter of the investigation. However, it seems to me that the inference I have described was open to the learned Magistrate to consider, as part of the material on which he could assess the credibility of the appellant's evidence.
129 Counsel for the appellant put to me that the learned Magistrate erred in assessing the appellant's credibility by reference to the extent of his strident defence of himself against what he considered to be baseless, and underspecified, allegations against him by Saint. I understood the submission to be that such feelings would not necessarily lead a witness to provide inaccurate evidence, whether wilfully or by reason of distorted recollection. While this might be so, I do not consider that the learned Magistrate in fact so rested his conclusion that the appellant should not be believed as to whether or not the letter of 12 September 2001 was delivered as Butt testified. Rather, as the learned Magistrate's reasons for decision reproduced above indicate, at 26, where he indicated that the "critical question emerges did Mr Walsh receive" the letter, the learned Magistrate considered other evidence together with his finding as to the appellant's reactions to "officialdom" to arrive at the conclusion he did. It seems to me that, in so doing, he was relying on that evidence in connection with the conclusion, open on his impressions of the appellant's evidence as to his dealings with "officialdom", that the appellant's evidence might not be accurate.
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130 Nor do I consider that the learned Magistrate erred in not properly approaching the evidence of Vucemillo by emphasising matters in it that were not "significantly" different from those in the appellant's evidence as to the meeting between Butt and the appellant on 14 December.
131 His principal conclusion with respect to her evidence on the present point is, it seems to me, that he would not accept that she was "in a position" to confirm that the appellant had not been handed anything by Butt. That conclusion seems to me to reflect his Honour's advantage as the trial Judge who saw the demonstration by Vucemillo of her position relative to Butt and the appellant.
132 It further seems to me that his Honour's reference to the respects in which her evidence differed from the appellants was not with a view to showing that the appellant's evidence lacked that form of corroboration. Rather, it seems to me that reference was to show additional reasons why he did not accept her evidence as reliable. I so concluded, in part, because in the respects his Honour emphasised, he noted that Butt's evidence was "perhaps more consistent with [the appellant's] but certainly did not support [Vucemillo's]" (at 28).
133 Therefore I do not uphold the present ground of appeal.
Ground 2: Factual findings – (b) Appellant's letter faxed 14 December 2001 was not a non-compliance with request
134 I understood this ground of appeal to be related closely to ground 1. I have already indicated the terms of the letter faxed 14 December 2001 (Exhibit P6).
135 Counsel for the appellant appeared to be submitting that a conditional refusal to answer questions was not a refusal.
136 However, it seems to me that, at least if the condition for the refusal is not based on a "reasonable excuse", there is a refusal for the purposes of the offence in EC Act, s 20(2). The only condition evident for this purpose, as the text of the present ground stipulates, is that the appellant be supplied with the terms of the allegations against him by Saint. I have already indicated why I consider the failure to provide those terms was not a "reasonable excuse".
137 Thus, I would not uphold the present ground.
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Ground 2: Factual findings – (c) No sufficient basis to find appellant made telephone calls in which he refused to answer questions
138 This ground related to the telephone calls that Butt testified to as having been made on 14 December 2001 after his meeting with the appellant earlier that day. I have already referred to that evidence.
139 This ground as formulated must fail.
140 In part, this is because the learned Magistrate did not in fact find beyond a reasonable doubt that the telephone calls were made.
141 In his reasons for decision, at 24 – 25, his Honour said this:
"The second question is did the disputed telephone calls take place? Mr Walsh presented comprehensive telephone records of both himself and Mr Butt which supported the proposition that the calls were not made.
On the other hand it makes no sense that Mr Butt fabricated the entries in his running sheet to state matters that took the matter no further than what Mr Walsh stated himself in his faxes to Mr Butt.
However such is my concern about Mr Butt's lack of diligence that it remains a possibility that he wrote those running sheet and made a mess of them in terms of accuracy.
Accordingly I place no reliance on those calls or their content."
142 I have already commented on the relevance of this evidence to the credibility finding the learned Magistrate made with respect to Butt. In the present context, I am considering this as a separate ground.
143 Accordingly I do not uphold the present ground of appeal.
Conclusion and orders
144 It follows that, while I would grant the leave to appeal applied for, on all of the grounds laid, I would dismiss the appeal.
145 I will hear from the parties as to the appropriate orders to make in light of these reasons.
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