Waring v Laws
[2020] ACTSC 33
•11 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Waring v Laws |
Citation: | [2020] ACTSC 33 |
Hearing Date: | 11 February 2020 |
DecisionDate: | 11 February 2020 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | APPEAL – CRIMINAL LAW – Review appeal under s 219D Magistrates Court Act 1930 (ACT) – trafficking in a controlled drug other than cannabis – where magistrate relied on evidential burden not legal burden – substantial miscarriage of justice – appeal allowed – remitted back to Magistrates Court |
Legislation Cited: | Criminal Code 2002 (ACT), ss 58, 59, 60, 603(7), 604 Drugs of Dependence Act 1989 (ACT), s 169(1) Magistrates Court Act 1930 (ACT), ss 219B, 219D, 219F |
Cases Cited: | Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307 |
Parties: | Josh Waring (Appellant) Shane Laws (Respondent) |
Representation: | Counsel M Howe (Appellant) M Jones (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) McKenna Taylor (Respondent) | |
File Number: | SCA 62 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Taylor Date of Decision: 26 September 2019 Case Title: R v Laws Court File Numbers: CC 14125 of 2018 CC 4208 of 2018 |
Mossop J:
Introduction
This is a review appeal brought pursuant to Div 3.10.3 of the Magistrates Court Act 1930 (ACT). The ground of appeal is that “there was a prima facie case of error or mistake on the part of the Magistrates Court”. This is a ground of appeal which is permitted by s 219D of the Magistrates Court Act.
The appeal is against two orders:
(a)first, in relation to charge CC18/14125, trafficking in a controlled drug other than cannabis contrary to s 603(7) of the Criminal Code2002 (ACT), the order being the charge is dismissed; and
(b)in relation to charge CC18/4208, possessing a drug of dependence contrary to s 169(1) of the Drugs of Dependence Act1989 (ACT), the charge is found proved.
The error alleged is that the magistrate applied the wrong standard of proof in relation to the trafficking charge. The prosecution relied upon the presumption of trafficking in s 604(1) of the Criminal Code, which imposes a legal burden upon the respondent. However, the magistrate incorrectly applied only an evidential burden.
The case below
The respondent was arrested pursuant to a first instance warrant near the Deakin soccer club. He was carrying a bum bag. It was searched and found to contain about 10 g of methamphetamine and $8,800 in cash, some digital scales and a small amount of heroin.
The charge was of trafficking under s 603(7) which provides that “a person commits an offence if the person traffics in a controlled drug other than cannabis”, the maximum penalty of imprisonment being 10 years. A person traffics in a controlled drug if the person “guards or conceals the drug with the intention of… selling any of it”. The Crown also relied upon s 604 which provides relevantly that if a person:
guarded or concealed a trafficable quantity of a controlled drug… it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
A trafficable quantity of methamphetamine is 6 g.
The critical issue at trial was whether or not the respondent intended to traffic the drugs or possessed them for his personal use.
Section 58 of the Criminal Code is the generally applicable provision which provides that a burden of proof that a law imposes upon a defendant is an evidential burden only. It is, however, subject to the terms of s 59. Section 59 provides that a legal burden of proof is imposed upon a defendant only if, relevantly, the law “expressly… creates a presumption that the matter exists unless the contrary is proved”. The language of s 604 which I have quoted above is clearly apt to meet this description. As a consequence, the burden upon a defendant in a case where the prosecution relies upon s 604 is a legal one and not merely an evidential one. The legal burden had to be discharged upon the balance of probabilities: s 60 of the Criminal Code.
The magistrate dismissed the trafficking offence because she found that:
the defendant had discharged the evidential burden that rests on him in relation to his intention or belief about the sale of the drug.
She made specific reference to s 58 and its imposition of an evidential burden. She made no reference to s 59. The balance of her reasons make it very clear that she considered the issue on the basis that the respondent bore an evidential and not a legal burden.
The respondent concedes that the magistrate erred in law when she applied the evidential burden rather than the legal burden when considering whether the respondent had discharged the onus in relation to his defence to the charge of trafficking. Having regard to the terms of the reasons given by the magistrate, that is a concession which is clearly correct.
The orders sought by the appellant are:
(a)that the order that charge CC18/14125 be dismissed is quashed;
(b)as a consequence of that order, the decision in relation to charge CC18/4208 be quashed;
(c)that both charges be remitted back to the Magistrates Court to be dealt with according to law before a different magistrate; and
(d)any other orders that the court thinks fit.
Charge CC18/4208 was a charge of possessing a drug of dependence under the Drugs of Dependence Act 1989. It was the backup charge in relation to the possession of the methamphetamine. If the offence of trafficking is to be retried it would be appropriate for the backup charge also to be retried.
Contentions of the respondent
Although the respondent concedes that there was an error, he submits that the appeal should nevertheless be dismissed:
(a) because on the evidence before the magistrate the result would have been the same had a legal burden been applied correctly, and as a consequence, no substantial miscarriage of justice has occurred; or
(b) because as a matter of discretion the relief sought by the appellant should not be granted.
These arguments pick up the provisions of s 219F of the Magistrates Court Act which sets out the orders that may be made on an appeal such as this. It provides relevantly:
(1) on a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court –
(a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or
(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.
(2) If, under subsection (1)(b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may –
…
(d) in any other case –
(i) remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or
(ii) make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.
…
(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
…
(8) On an appeal under this division from an order decision, sentence or penalty mentioned in section 219 B(1)(a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant.
(9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.
(Emphasis added.)
The operation of an earlier provision in similar form to s 219F was considered in Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307 (Sims). In that case Besanko J recognised that in addition to the specific power to dismiss an appeal where there is no substantial miscarriage of justice, the general power to grant relief incorporated a discretionary element. His Honour indicated that an example of a circumstance where the discretion to withhold relief may be exercised would be:
…that the prosecution seeks to put its case on a new basis; a basis which the respondent might have successfully challenged had the case been fully presented before the magistrate.
I will address separately the two bases put forward by the respondent for discretionary refusal of relief.
No substantial miscarriage of justice
First, I will deal with the submission that no substantial miscarriage of justice occurred because this court can reach the conclusion that the respondent has discharged his legal burden of proving on the balance of probabilities that guarding or concealing of the drug was not with the intention of selling it.
The submissions of the respondent in support of this proposition rely upon the evidence given by the respondent at the hearing before the magistrate. That was evidence in which he sought to explain his possession of the methamphetamine, the scales and the cash on the basis that they were not possessed with the intention of selling the methamphetamine. Rather, he gave evidence that the cash was obtained because he had that morning sold a motor vehicle. The methamphetamine was possessed because he had a substantial habit himself. The scales were possessed because he used them to measure the weight of drugs that he was purchasing to ensure that he did not get ripped off. The respondent also points to the absence of items found in his possession that would indicate that he was intending to sell the drugs, such as small Ziploc bags. The respondent invites this court to examine the transcript of his evidence and form its own judgment that the respondent had satisfied the legal burden upon him or form the conclusion that a magistrate would inevitably find that that was the case.
I am not satisfied that this is the correct approach. The discharge of an evidential burden is clearly a very different matter than the discharge of a legal burden to prove something on the balance of probabilities. That the magistrate accepted the evidence of the respondent was sufficient to discharge an evidential burden does not indicate whether or not the evidence would be sufficient to discharge the legal burden. In assessing whether or not to accept that evidence it would be critical to observe the manner in which the evidence was given, particularly in a case where the evidence was otherwise uncorroborated. It would not be appropriate for this court, on the basis of a bare transcript, to attempt to make its own assessment of the reliability of the respondent’s evidence for the purposes of attempting to assess whether or not the legal burden had been discharged.
It is true that it is open to appeal courts to interfere with findings influenced by the demeanour of witnesses in a limited range of circumstances. However, the nature of the appeal in this case is such that the court would have to go further than an appeal court in a civil matter would go when reviewing such a finding. That is because in the present case, by reason of the erroneous approach adopted by the magistrate, there has not been any finding made as to whether or not the respondent has proved his intent on the balance of probabilities. It is true that findings favourable to the credibility of the respondent were made by the magistrate but those were made in the context only of an evidentiary burden. In my view, the task that the court is being invited to embark upon goes well beyond that which appeal courts in civil proceedings may engage in. It is not one which should be adopted on an appeal under s 219F.
In Sims, the submission that was made was that there was no substantial miscarriage of justice because “on the evidence it was inevitable that the magistrate would entertain a reasonable doubt” about the issue there in question. I agree that no miscarriage of justice would be demonstrated if the outcome of the case was inevitable. It is not possible to say that is the case. In a case where the evidence upon the critical issue came solely from the respondent, much will depend upon the magistrate’s assessment of the credibility and reliability of the respondent’s evidence and that in turn will be significantly influenced by having seen and heard the respondent give evidence in the witness box.
Discretionary refusal of relief
The respondent also contended that relief should be refused on discretionary grounds as a result of:
(a) the erroneous agreement by counsel for the prosecution during the course of her opening that the burden upon the accused was an evidential one; and
(b) the failure by counsel for the prosecution to identify the magistrate’s error either during the course of the delivery of her reasons or at the conclusion of those reasons.
During the course of her opening the following exchange took place between the prosecutor and the magistrate:
Her Honour: So the presumption applies?
[Prosecutor]: It does, and the prosecution---
Her Honour: And there’s and evidential burden---
[Prosecutor]: ---relies on that presumption.
Her Honour: And there’s an evidential burden on the defendant.
[Prosecutor]: That’s correct. And that is section 604(1)(c) is relied upon.
Similarly, the representative of the respondent failed to disagree with the proposition put to him by the magistrate:
[Lawyer]: And further, the trafficking, again, I accept that there’s that rebuttable presumption, and so he’ll give evidence about his possession of those particular drugs.
Her Honour: No. You accept---
[Lawyer]: It’s not dispute that he possessed the---
Her Honour: Possession’s not an issue?
[Lawyer]: No. No, it’s not.
Her Honour: And you accept that that’s an evidential burden?
[Lawyer]: Indeed.
The impression that these portions of transcript from the early part of the hearing give is that the representatives of both sides too readily agreed with propositions that were put to them by the magistrate and failed to appreciate the significance of what they were agreeing to. That is, they failed to appreciate the significance of the difference between an evidential and legal burden that was within the propositions with which they were asked to agree.
The case was heard on that day (11 April 2019) and on a subsequent day (15 August 2019). On the second day the respondent was represented by a new lawyer. At the conclusion of the hearing the parties were directed to file and serve written submissions and they did so. Both written submissions (dated 5 September and 11 September 2019) expressly identified that s 604 of the Criminal Code cast a legal burden on the defendant to prove on the balance of probabilities that he did not intend to sell the drugs. They correctly identified the relevant sections of the Criminal Code: ss 59(c) and 60. Neither set of submissions identified that the party had earlier agreed to any other proposition about the operation of s 604.
The reasons for decision were given orally on 26 September 2019. The same lawyer who appeared for the prosecution at the hearing was present for the giving of the reasons. A different lawyer to either of the lawyers who appeared at the hearing was present on behalf of the respondent for the delivery of the reasons. As pointed out earlier, the reasons made explicit reference to the evidentiary burden under s 58 and made no reference to the legal burden under s 59.
The respondent submits that because of the manner in which the prosecution conducted the case before the magistrate, it bore sufficient responsibility for the error that would warrant a discretionary refusal of relief.
I agree that in cases where a party has led the court into error or has failed to provide sufficient assistance to the court to avoid it falling into error, a court hearing an appeal under Div 3.10.3 of the Magistrates Court Act may decline to grant relief under s 219F. The issue is whether in the present case the conduct of the prosecution is such as to warrant a refusal of relief.
In my opinion it is not. It is clearly unfortunate that both parties acquiesced in the proposition put to them by the magistrate that the burden was an evidential one. However, the position of both parties was made absolutely clear in their written submissions, both of which expressly stated that the burden was a legal one. So far as the significance of the failure to raise the error on the part of the magistrate at the time that the reasons were given is concerned, I accept that it is desirable in the context of proceedings in the Magistrates Court that if it appears that a magistrate is proceeding on some clear misconception of the law or of the facts then that is drawn to the court’s attention. Notwithstanding that in this appeal the parties have agreed and it is now clear that the magistrate fell into error, in circumstances where the magistrate has reserved her decision it is understandable that a lawyer attending to take the judgment may hesitate to point out what is said to be an error on the part of the magistrate without giving careful consideration to the reasons for decision and being absolutely confident that the error exists or that there is an immediate joint agreement of the parties that such an error has occurred. There is no evidence that there was such agreement at the time. While it is clearly the duty of practitioners (on both sides of the record) to assist the court to avoid falling into error, care must be taken to avoid any suggestion that parties are encouraged to debate the legal merits of a decision with a magistrate at the point at which the decision and reasons are given.
For these reasons:
(a) I am not satisfied that no substantial miscarriage of justice has happened; and
(b) I am not otherwise satisfied that the decision of the magistrate should be confirmed.
Costs
In relation to costs, it is mandatory for the court to order that the appellant pay the costs of and incidental to the appeal. That is a requirement of s 219F(8) which applies as this is an appeal under s 219B(1)(a). Any uncertainty as to how such costs are to be calculated may appropriately be addressed by the court granting liberty to apply if there is any difficulty in resolving the question of costs.
The orders of the Court are:
1.Appeal allowed.
2.The order dismissing charge CC18/14125 is set aside.
3.The order in relation to charge CC18/4208 is set aside.
4.Charges CC18/14125 and CC18/4208 are remitted back to the Magistrates Court to be dealt with according to law before a different magistrate.
5.The appellant is to pay the respondent’s costs of and incidental to the appeal.
6.Liberty to apply is granted in relation to any issue as to the quantification or assessment of costs for the purposes of the previous order.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 19 February 2020 |