Watson v Director of Public Prosecutions
[2017] VSC 757
•13 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01423
| BENJAMIN WATSON | Appellant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Detective Senior Constable Philip Wilkinson) | Respondent |
JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August 2017 |
DATE OF JUDGMENT: | 13 December 2017 |
CASE MAY BE CITED AS: | Watson v DPP |
MEDIUM NEUTRAL CITATION: | [2017] VSC 757 |
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CRIMINAL LAW ― Theft ― Proof of dishonesty ― Presence as passenger in stolen motor car ― No direct evidence of knowledge that car was stolen ― Circumstantial evidence ― Evidence of driving escapade involving fleeing from scene of collision and dangerous driving and trespass and ultimate abandonment of car ― Whether sufficient evidence to found an inference of passenger’s knowledge that car was stolen
EVIDENCE ― Proof of knowledge ― Dependence on proof by circumstantial evidence ― Inferences of knowledge to be drawn from established facts ― Necessity for inference to be the most probable deduction to be reasonably drawn to find a basis for a positive inference of knowledge from established facts ― Necessity to exclude alternative hypothesis consistent with innocence and not rationally excludable
APPEAL ― Appeal from Magistrates’ Court on a question of law ― Findings made on inference from established facts ― Challenge to sufficiency of evidence to make finding ― No error of law unless inference or finding not open ― Criminal Procedure Act 2009 (Vic), s 272
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis QC with Mr M Allen | James Dowsley & Associates |
| For the Respondent | Mr C Carr | Office of Public Prosecutions Victoria |
HIS HONOUR:
The appellant Benjamin Watson was charged with stealing a Mercedes Benz sedan being property belonging to another, valued at $8,000. The date of the alleged crime was Sunday, 6 September 2015 in daytime. The appellant was then 26 years of age. He was a passenger in that car with another female passenger. The car was being driven by a male person. The car had been stolen from an address in Hawthorn by unknown thieves on 21 June 2015.
On a journey by the three of them on that Sunday, the car collided with the rear of a stationary car on the Nepean Highway in Cheltenham, which was being driven by a policewoman who was off duty. It was not a serious collision. The driver of the Mercedes car immediately fled the scene; that is, without stopping as is required by the law to render any assistance or exchange his name and address with the driver of the other vehicle. There followed over about 10 minutes an escapade involving some dangerous driving and then a commotion and trespass at private premises in Beaumaris, after which the car was abandoned by all three occupants not far away in a carport of a house in Cheltenham.
In separate trials, the two other occupants of the stolen vehicle pleaded guilty to theft of the car (that is, theft by being in the stolen car that day), and other related offences. The appellant pleaded not guilty to the charge. The prosecution carried the onus of proving, beyond reasonable doubt, that whilst a passenger in the car the appellant knew the car was stolen. There was no direct evidence that the appellant knew the car was stolen. The prosecution case was based wholly on circumstantial evidence. A conviction depended on inferences of guilty knowledge to be drawn from the accumulation of activities that occurred after the collision and culminating in the abandonment of the car in a damaged state.
After a trial in the Magistrates’ Court at Moorabbin on 23 March 2017, and having earlier rejected a submission at the close of the prosecution case that there was no case to answer, and there being no evidence called by the accused, the Magistrate found it beyond reasonable doubt that ‘… the accused was aware or made aware by the co‑accused that the vehicle he was a passenger in was stolen immediately or shortly after the collision’.[1] He was convicted and fined $1,000. His driver’s licence was cancelled as was mandatory under the Sentencing Act, and he was disqualified from driving in Victoria for six months.[2] The circumstantial facts, as I shall expose them, were not in dispute and enabled the Magistrate to view the appellant’s culpability to be at the lower end of the scale because of the rather short duration of his presence in the car when, so the Magistrate found, the appellant knew the car to be stolen.
[1]Transcript at page 74, line 25.
[2]See s 89(4)(a).
The appellant now appeals his conviction to this Court under s 272 of the Criminal Procedure Act. The right of appeal is confined to a question of law. The role of the Court on this type of appeal is supervisory in nature. It is not to remake the decision as if acting at first instance, but to examine the evidence and Magistrate’s findings to see if there was any non-conformity with an applicable legal requirement or standard.
In a rather bizarre case, this appeal is about proof of a knowledge or a mental state by circumstantial or indirect evidence, and the drawing of inferences. A case based on direct evidence will usually depend on the truth or reliability of witnesses and their observations and accounts. Indirect or circumstantial is evidence which proves, or tends to prove, a fact or set of facts from which the ultimate fact to be proved may then be inferred. The potential weakness of a case based on circumstantial evidence is that it depends on the drawing of inferences, and in some cases the trier of fact may draw the wrong inferences from a set of entirely true circumstantial facts. That is why, on principle, a finding of guilt based on inferences from established facts can only be made if all other reasonable hypotheses consistent with innocence are rationally excluded.[3]
[3]See Doney v R (1990) 171 CLR 217, 211 and Chamberlain v The Queen (1983) 153 CLR 506, 535-6 (per Gibbs CJ and Mason J).
Here, there are three grounds of appeal in which the domineering legal issue concerns the legal principles to be observed when drawing inferences of guilt from established facts. In essence, the appellant contends the Magistrate erred in law in finding that the appellant’s guilt was the only inference that was reasonably open on the evidence. The appellant says that the Magistrate’s inference of guilt was conjectural and there were competing inferences of innocence that were reasonably open, and by legal principle, should have led to an acquittal. The Director’s case, based no less on legal principle, emphasized that the Magistrates duty was to consider all of the circumstances ― in combination and not piecemeal ― and the circumstances here supported so strongly an inference of guilt as to exclude any inferences of innocence.
The appeal involved a dissection of the facts, and a reference to many legal authorities. In brief, I see the circumstantial setting of the case in this ordinary way. If a person obtains a situation where he may come to be exposed as being in possession of stolen goods, then to avoid detection he may have to dissociate himself from the goods or disown them. He may do that by making himself not identifiable personally as being in possession of the goods. Or, to achieve the same object, he may abandon the goods. If a person such as the appellant is involved or engaged in the riddance, the circumstances will come to inform whether he knew or came to realise the goods were stolen.
I have come to the view, for the reasons that follow, that the appeal ought to be dismissed. An error of law has not been made out. The appellant may criticise the Magistrates’ process of reasoning, but it has not been established that an inference of guilt was not open or that there was an alternative finding consistent with innocence which was not only open on the evidence, but was not rationally excludable.
I think the appellant’s view of the evidence that was before the Magistrate, or fastening on the language of the Magistrate’s reasoning, understates the potency of the incriminating evidence. Considering all the evidence, its ‘united force’ ― a recurring and useful phrase in the authorities[4] ― justified the inference that the appellant was engaged in the exercise of getting rid of the car, and that was consistent with him knowing or coming to know shortly after the collision that he was in a stolen car. There was a spontaneous and then a very dangerous and hyperactive degree of desperation by the driver to scamper from an unremarkable road collision and abandon the car, an act which by its nature is done to avoid any identification of the car with its occupants. The conduct after the collision exceeded any correlation with, or as the Director put it, was wholly disproportionate to an everyday minor road collision in suburban traffic. It was, I think, rational to exclude the hypothesis that what occurred could be reasonably attributed to the driver taking fright or experiencing shock after the collision (akin to a psychic reaction to a serious ‘hit and run’ which this certainly was not) or that the abandonment was out of desperate fear for being identified for wrongful conduct such as not stopping after the collision and the driving offences in the getaway or possession of contraband.
[4]See Chamberlain v R (1983) 153 CLR 514, 535 (per Gibbs CJ and Mason J).
The appeal requires a detailed recitation of the evidence.
The charge and the evidence
Under the basic definition of theft in s 72(1) of the Crimes Act ‘a person steals if he dishonesty appropriates property belonging to another with the intention of permanently depriving the other of it.’ The further statutory explanation of theft in s 73(4) of the Act states that –
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, whether he has come by the property (innocently or not) without stealing it, in the assumption of a right to it by keeping or dealing with it as owner.
On the question of permanent deprivation, s 73(14)(a) states that in any proceedings for stealing a motor vehicle:
proof that the person charged took or in any manner used the motor vehicle … without the consent of the owner or person in lawful possession thereof shall be conclusive evidence that the person charged intended to permanently deprive the owner of it.
The facts of the case were established by evidence from witnesses without dispute. The fact is the appellant was in a stolen car ― although not stolen by him or with his involvement. But he accepted at trial that as a result of being a passenger in the car and by operation of those statutory provisions, the first and second elements of the crime of theft were made out against him. The only issue was proof of dishonesty. That is, the prosecution had the onus of proving beyond reasonable doubt that he knew, whilst being a passenger in the car, that the car was stolen property. As I have said, the case of guilty knowledge was based wholly on indirect or circumstantial evidence in which proof of guilt is based on the drawing of inferences, using proof of one fact as evidence of another.
The commencement fact is that on 21 June 2015 the car was stolen from an address in Hawthorn by unknown thieves. On 6 September 2015 at about 1.37pm, the car was being driven along the Nepean Highway in Cheltenham in a northerly direction. There were three occupants in the car: Kurt Wagner who was driving and seated in the driver’s seat; (Ms) Jodi Chamoun who was seated in a back seat; and the appellant who was in the front passenger seat. Wagner had a learner permit to drive, but there is no suggestion he was under instruction. There were false front and rear registration plates on the car.
The car was being driven over the intersection of Nepean Highway and Centre Dandenong Road in Cheltenham. In the right hand lane on the Nepean Highway was a Toyota Landcruiser that had stopped in congested traffic. That car was being driven by Detective Susana Hughes who was off duty. She gave this evidence at the trial:[5]
I felt a crash, and I knew that a car ran into the back of me; it pushed me forward about ten metres. … Um, I looked in my rear vision mirror, saw that there was two males in the car. Um, they pulled over, they pulled – immediately pulled over into the left, driving down the left service lane. Initially I thought they were going to stop and exchange names and addresses, so I pulled in behind them. And they accelerated off. I realised then that they weren’t going to stop.
… When I realised it wasn’t going to stop, I put my hand on the horn and was beeping at them to let them know I was there. I thought that might make them pull over.
[5]Transcript (‘TS’) 3.
Detective Hughes said ‘I was in the service lane on Nepean Highway and I followed the car’. She said the car turned left into Charman Road and she still had her hand on the horn. She gave this evidence:
I turned left as well and then it accelerated up and went through … a red light up at Park Road or Park Street, and it went through the red light and that’s when I thought it was really dangerous, so I thought I’ll pull over to the left. But I still watched the car. And the car it was going up Charman Road, it went onto the wrong side of the road and I could see the pedestrian lights were red, went through the red pedestrian lights, ah then I lost sight of it.
Detective Hughes said the impact of the collision was quite forceful, although there was no visible damage to her car. No one in her car was hurt or injured. Her Toyota Landcruiser had a rear towbar fitted which seemed to have absorbed the impact as she could see it was covered in fluid which could be taken to be either transmission fluid or radiator coolant from the other car. She said that when she went to the nearby Cheltenham Police Station she could see the same fluid ‘all over the road as well’.
Detective Hughes was not cross‑examined.
The next witness for the prosecution was Miles Goddard, a 46 year old man. He is a retired police officer. On the Sunday in question, he was present at a residential building site at 22 Kirkwood Street in nearby Beaumaris doing some work upstairs at the premises. He says he heard a ‘commotion’ in the street. His evidence was[6]—
I heard a commotion so I moved into the living area and had a look outside the widow and uh basically saw the C-Class Merc reversing up the road and then actually turning horizontal in the road. There was a young lady who was back in to open the security fences around the property.
[6]TS 9.
He told the Court that the car was ‘reversing and turning around, so yes, it was erratic. I mean, it was on the wrong side of the road…’ As I follow the evidence, the car had gone past the building site; then stopped and reversed back to the building site on the wrong side of the road. Mr Goddard then observed the ‘young lady’, who was out of the car, trying to open the security fence around the building site. Then[7]—
a gentleman then jumped out and helped her to open the fence. At that point I made my way back down into the living area. … And I had clear visibility as the car was coming in. Basically the car stopped. The gentleman and the lady were then talking to the driver. You know there was a lot of commotion, action and excitement and that going on. … It was like adrenaline pumped, you know like that sort of thing.
[7]TS 10.
That gentleman was the appellant. The witness explained that the security fence was made of wire, on concrete supports, covered with a shade cloth and effective to prevent vision through the fence from a distance. He explained that there was no gate to the premises but there was a bolt and interlock on top of a security fence. He said the appellant and the female had ‘jarred’ the interlock and opened it as if it were a gate.[8] He said that the car reversed into the property, with only the driver in the car. After they were inside the property, the appellant and the young lady closed the gate.[9]
[8]TS 11.
[9]TS 18.
Mr Goddard then described events as follows (and initially, at least, he was still inside the building on the site):[10]
I saw the young lady then get in to unload … items from the back of the car, the back of the car seemed quite full; it looked like clothing and what have you. So she gathered, a bunch of that and was moving to the patio of the property and I assumed she was going to go and I assumed dump that in the corner. And the site supervisor had informed us previously that people had dumped, you know, goods on the property, so I stepped out onto the patio then and … said ‘Can I help you?’ and the lady got a, hell of a fright and … she jumped and had the stuff and ran around to the car and threw it back in the car.
[10]TS 11, 12.
He said he yelled out those words from the open patio, and the car was about 2 or 3 metres away.[11] When asked what he meant by the lady’s ‘stuff’, he said ‘… it was loose … It looked like blankets and clothing and you know that sort of thing. I didn’t see any hard, any hard stuff.’[12] As she was taking this stuff out, his evidence was that the appellant who was standing outside the car was still talking to the driver. He said the female only tried to offload the stuff on the one occasion when Mr Goddard stepped out. Then this evidence:[13]
Well, like I said she got a hell of a fright and rushed back to the car and threw stuff in the car, the other gentleman [i.e., the appellant] that was talking to the driver then came round to the front of the car. As he came round the front of the car I noticed then that the car had been damaged. Steam coming out from the car and …
Ah, it looked like radiator steam; um I could smell the car as well. It had been heavily used, you know, you know from my years of experience it wouldn’t have been driven there in a … nice manner. Um, the gentleman [i.e., the appellant] came round the car said ‘sorry mate’, you know and … basically then proceeded to open the door and then jump into the car. The driver of the car then yelled out ‘let’s go!’ and … basically moved forward. The lady of the car had already moved and was then opening up the security fence again that they had just come through. And um basically they drove onto the street. … The neighbour across the road you know, saw what was going on yelled ‘we’ll call the police and you call the police’. And umm the car basically just carried on going, the lady actually had to run after the car. And um was battling to get in, all the way up the street. Again I suspect based on my experience as a police officer. I took pictures and yeah reported the matter.
[11]TS 21.
[12]TS 12.
[13]TS 13, 14.
Mr Goddard then added some details to his evidence concerning the initial entry.[14] When the car first reversed into the building site, and after the appellant and the female had got out, the driver never got out of the car. When asked by the prosecutor whether ‘the male’ (as distinct from ‘the driver’) looked at him after Goddard yelled out, the evidence was ‘He [the male] looked at me briefly but then he as things were happening he didn’t make any more eye contact, he just looked straight ahead … I found that very strange.’[15] He said the appellant then assisted the female to open up the security fencing because she was ‘battling’ to do so.[16]
[14]TS 19.
[15]TS 19.
[16]TS 22.
Mr Goddard said that throughout the encounter, the car’s engine was running and the sun roof was open. He said the whole incident at the building site lasted two to three minutes.[17] He had been in an elevated position inside the home and from there took some photographs. From the stampings on the photographs, he was able to pinpoint the exact time when the vehicle backed into the building site as 1.44 pm. The evidence from Detective Hughes was that the earlier collision occurred at 1.37 pm.
[17]TS 23.
Mr Goddard said he had noticed an extensive oil slick on the ground which he identified as radiator and transmission fluid. He said about 15 to 20 minutes later he followed the oil slick to discover the car had been abandoned not far from the building site. He saw a police car was already there. The place of abandonment was approximately 500 metres away.
Mr Goddard was not cross‑examined.
The informant, Detective Phillip Wilkinson, then gave evidence. He had the task on the following day, 7 September 2015, to conduct the investigation. After the incident at the building site, the car was later found abandoned at the end of a nearby street at 10 Fairway Avenue in Cheltenham; more precisely, under a car port at that address.[18] The address at Fairway Avenue had no connection to the accused or Wagner or Chamoun. That location was approximately 500 metres from the building site.
[18]TS 26.
There was extensive damage to the front of the car. The whole front grill had been smashed in. There were no items discovered in the abandoned car from the burglary that had occurred two months earlier when the car was stolen in Hawthorn. The evidence is not very clear whether there was contraband found in the car at the place of abandonment. The informant said that when examining the vehicle at the towing premises, there was no clothing or bags or anything else contained in the vehicle. But it seems to have been accepted at the trial that although the car was empty by the time it got to a towing premises where it was forensically examined, there were drugs and counterfeit currency that were dumped out of the car at the place of abandonment. That was also a finding made by the Magistrate.[19]
[19]TS 56 and TS 61, 73.
The stolen car was forensically examined as a result of which Kurt Wagner and Jodi Chamoun were identified. The informant also said that forensic evidence enabled the police to identify the appellant, and he was subsequently arrested and interviewed. He gave ‘no comment’ answers to all police questions. Wilkinson confirmed that he was the informant for charges brought against Wagner for driving in a manner dangerous, theft of number plates, possessing proceeds of crime and failing to stop and render assistance at an accident. Wagner pleaded guilty to those offences and the theft of the motor vehicle. Chamoun was charged with theft of a motor vehicle, possession of proceeds of crime, possession of a drug of dependence and possession of counterfeit currency. She pleaded guilty.
That was the evidence for the prosecution. At the close of the prosecution case, counsel for the accused submitted there was no case to answer, which the Magistrate rejected. I shall recount the content of the unsuccessful no case submission as its very same elements came to be re-asserted in closing submissions at trial, and again on this appeal.
On principle, for a no case submission to succeed, it must appear that the evidence is not capable in law of supporting a conviction. In a case based on circumstantial evidence, that means even if the Magistrate was to draw all inferences reasonably open as showing guilt, before reaching a conclusion of guilt beyond reasonable doubt, he would have to exclude, as not reasonably open on the evidence, all reasonable hypotheses consistent with innocence.[20]
[20]See DPP v Iliopolous [2016] VSC 132, [5]–[10].
The no case submission went along these lines. There was no direct evidence of the appellant’s state of knowledge, and the prosecution were inviting the Court to draw an inference that the accused knew the car was stolen, beyond reasonable doubt. There was said to be a two-step reasoning process required at law. The first step was to ask whether the evidence as adduced could rationally support the inference of guilty knowledge sought to be drawn. The second step was to posit whether there was no other reasonable hypothesis consistent with innocence. It was submitted to the Magistrate that the prosecution did not get past the first step of the analytical process. The elements of the submission can be adumbrated as follows:
(a) the collision occurred at 1.37pm and the car arrived at the building site at 1.40pm where it remained for two to three minutes after which it was found at a nearby property;
(b) the period of time to which a finding of knowledge is to be derived is about 10 minutes at the most;
(c) there was no evidence that any property found in the car belonged to Mr Watson;
(d) there was no evidence of any association between Watson and the co‑accused;
(e) the car itself was stolen about two and a half months earlier in Hawthorn which is not proximate to the vicinity of that area and there is no suggestion of Watson’s involvement in that theft;
(f) the only evidence from which the Court was to make its inference was based upon a very small time period in which Watson was a passenger in the car;
(g) whilst it is possible that knowledge of a theft can be gained over a very brief period of time, there was no basis for an inference on the evidence that he knew the car was stolen and there would have to be at least some evidence of some relationship with the co‑accused or him being involved with the car soon after its theft from Hawthorn to provide a basis for an inference, or a connection with the car;
(h) although the conduct of Watson was questionable it could be accounted for by reason of other forms of criminality that were disclosed on the facts or motivated by protecting or assisting the driver after the offence of leaving the scene of a collision;
(i) the whole incident commenced when the car was involved in the accident and what occurred thereafter with the abandonment of the car is consistent with concealing the identities of those who were in the car when it fled the scene of a collision, and whilst that might be examined for its wrongfulness, it is not proof of dishonesty for the crime of theft; and
(j) the conduct was consistent with innocence as it could be explicable by crimes or criminality relating to the crash and leaving the crash; the presence of contraband in the car; the stolen plates on the car; and assisting in the concealment of evidence.
In response, the police prosecutor submitted the only inference to be drawn was that the accused knew the car was stolen. He submitted there was an obvious association between the three occupants of the car, and that once they fled the scene of the collision, it was obvious to the accused that something ‘was amiss’. Then, at the building site, the appellant assisted Chamoun to open the gate and allowed Wagner to reverse the vehicle inside the premises. He then assisted by closing the gate. From the physical conditions at the premises that meant the car could not be seen from the outside. That act was of itself, the prosecutor submitted, consistent with the accused having knowledge that the vehicle was stolen, otherwise, he asked, why seek to conceal the car? The Magistrate was asked to draw the inference that the intention was to abandon the vehicle at the building site, as was evident by the fact it was abandoned only 500 metres away after Goddard surprised them with his presence at the site. The prosecutor also submitted that the fact that the car was ultimately dumped in another location permits only of the inference that each of the occupants had no right to be in possession of the car; that is, ‘If the vehicle was theirs and they were acting on the basis that it was simply involved in an accident, they wouldn’t leave it in someone’s driveway’.[21]
[21] TS 54.
On the no case submission, the Magistrate confined himself to saying there was evidence to support an inference of knowledge by the accused that the car was stolen. His Honour also said he could, on the evidence as adduced to that juncture of the trial, exclude all hypotheses consistent with innocence.
The trial proceeded. The accused did not give evidence, and no other evidence was adduced on his behalf. Final submissions proceeded along the same lines as the no case submission, although the burden of proof of guilt was now positively on the prosecution to discharge. The Magistrate’s ultimate determination was based on the same evidence on which the no case submission had been rejected, and which is now before this Court on appeal. As put by defence counsel at trial below, the question was: does the accused’s conduct on the evidence lead necessarily to the conclusion or inference that he had the requisite knowledge, or could his conduct disclose of another state of mind other than knowledge of the car being stolen?[22]
[22] TS 62.
On this appeal, much attention was given by the appellant’s counsel to the process of reasoning as expressed by the Magistrate in finding the charge proved. His Honour restated the facts in narrative form based on the evidence as I have recited it. I need to repeat his Honour’s version, for the facts are not in dispute. His Honour recounted that there was no direct evidence that the accused knew that the vehicle was stolen, and that the case depended on proving knowledge by inferences to be drawn from the actions of the accused and the co‑accused in his presence over a period of approximately ten minutes. His Honour then made the following findings:[23]
[23] TS 73-75.
Firstly, a significant range of criminal activity occurred within the brief 10-15 minute period that the accused was in and around the car. Namely, dangerous driving, hit and run, possession of drugs, possession of counterfeit money, false number plates and the stolen car itself.
That is in a global sense in terms of those offences were being committed at that time. I’m not saying by the accused but they were being committed in and around him by others.
Further, it is inconceivable that there were no discussions between all three co‑accused as to what to do next whilst they were all inside the car. Firstly, following the car crash on the Nepean Highway, secondly, following their hurried departure from the worksite. After being disturbed by Mr Goddard. It is unknown what the exact scope of these discussions were but the discussions must have occurred in my view.
Further, it is inconceivable that a person with a legitimate proprietary interest in a motor vehicle would abandon it immediately after an accident with another car in a nearby location where the car would be readily discovered and therefore later linked to him or her afterwards. Unless of course it was in fact stolen or broken down or undriveable.
Further, the vehicle in this case was still able to be driven after it left the work site when the accused resumed as a voluntary passenger inside it.
Given the proximity in which the car was abandoned from that work site, in my view the accused must have been aware it was abandoned there at that time and indeed he himself departed the scene of that location. That is the only available inference on the evidence in my view.
In these circumstances, it is beyond reasonable doubt that the accused was aware or made aware by the co‑accused that the vehicle he was a passenger in was stolen immediately or shortly after the collision.
Some things need be said about his Honour’s findings.
First, when his Honour stated in the findings ‘… in my view the accused must have been aware it was abandoned there at that time and indeed, he himself departed the scene of that location …’ I construe ‘there’ to be necessarily a reference to the building site in Beaumaris, and not to the place of ultimate abandonment 500 metres away, as was questioned by the appellant’s counsel. That was clarified when his Honour addressed the accused before imposing the penalty and said (with my underlining and one correction of an obvious error):
I therefore find the charge of theft of a motor vehicle against you as proven. I note it was only for a very short period of time, essentially a matter of minutes in the facts of this case. It is difficult to imagine a briefer theft of motor vehicle, certainly in my experience I’ve never come across it.
…
I’ve given my decisions but I’ve also made it clear that my finding of guilt is for an extremely narrow period of time. It is a serious charge. But it is quite possibly at the absolute lowest end of that charge. I have never seen a theft for a briefer period; it’s hard to imagine a briefer theft. Your involvement is at the absolute lowest end.
Essentially, getting back into a car knowing it was stolen for a period of 3 or 4 minutes. I am not saying you were aware it was stolen at the point of collision. I am saying you were aware after that. I certainly didn’t expect you to jump into a car [correction: ‘jump out of a car’] while it was being driven in a dangerous manner. Once you get back into the car, at the work site that’s where your culpability arises, and it’s essentially for a period of 500 metres. So it’s a very brief theft.
Secondly, his Honour had made a finding that it was ‘beyond a reasonable doubt that the accused was aware or made aware by the co‑accused that the vehicle was stolen immediately or shortly after the collision.‘ His Honour did not make finding about the precise means by which awareness was gained. The corollary statement ‘Once you get back into the car, at the work site that’s where your culpability arises…’ enables me to assimilate the findings of the Magistrate in this way:
(a) The Magistrate was looking at the evidence to see if and when knowledge was gained by, or instilled in, the accused that the car was stolen.
(b) There was no evidence that the knowledge was gained or instilled before, or at, the point of collision.
(c) Conversations must have occurred inside the car in the getaway immediately after the collision (but there was no evidence about the dialogue).
(d) After the collision, the appellant had no choice but to stay to stay inside the car especially as it was being driven so dangerously. But he was able to get out of the car at the building site. And he did. But then he got back into it as a ‘voluntary passenger’ after assisting actively in the getaway from the building site.
(f) Thus, for the Magistrate to say ‘Once you get back into the car, at the work site that’s where your culpability arises’ can only mean a finding that he knew by the time they entered the building site or decided to leave from it, that the car was stolen.
(f) All this explains the Magistrate’s remark that the ‘very brief’ theft was ‘for a period of 500 metres.’ That is, getting back into the car at the building site after being confronted by Goddard and travelling to the place of ultimate abandonment. The proximity of the place of ultimate abandonment is indicative of the pre-existing intention of abandoning the car at the building site in Beaumaris, where they had closed the gate and taken possessions out of the car until they were disturbed by Goddard and then fled.
Thirdly, the Magistrates’ process of reasoning does not, in terms, give expression to postulating alternative hypotheses about the appellant’s state of mind other than knowledge of the car being stolen, and to then excluding the hypotheses as not open or as excludable. His Honour found compendiously that the only available inference was that the appellant knew the car was to be abandoned at the building site, and in the circumstances since the collision, he must have known the car was stolen because of the frenzied way the abandonment occurred to self-evidently dissociate themselves from possession of the car. The findings attracted scrutiny by the appellant not for their adequacy (for that is no part of the appeal) but to see if in the process of reasoning they reveal an error in not adhering to the legal principles on which an inference may be drawn in a case based on circumstantial evidence.
On this third point, an appellate Court should not apply a fine tooth comb to the composition of reasons given by a very busy Court that has the burden of dealing usually ex tempore with many and variable civil and criminal cases summarily under pressure of despatch, and without the luxury of ample time to give replete expression and precision to reasons for a decision. But, of course, there is the disgrace of criminality at stake. That is why on an appeal on a question of law, this Court looks to the evidence and asks if it was open on the evidence for the Magistrate to make that finding according to that evidence and on an application of the relevant legal principles. Those principles were affirmed recently and unanimously by the High Court of Australia in R v Baden‑Clay,[24] where it was said (omitting citations and footnotes):
The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’…
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
[24](2016) 258 CLR 308, 323 [46].
Before analysing the three questions of law on the notice of appeal, there is a gist common to each ground. The appellant’s case is that there were competing inferences or hypotheses of innocence concerning the appellant’s involvement in the activities between the collision and the ultimate abandonment. That is, it was open to conclude on the evidence, and not rationally excludable, that what happened was explicable by the fear of being caught for the criminality associated with the carelessness of the crash itself, or fleeing the scene of the collision and driving on in a manner dangerous, disobeying two sets of traffic lights, driving on the wrong side of the road, and being in possession of contraband. Thus, so the hypothesis goes, the appellant got back in the car at the building site because they wanted to flee from the place of trespass and to avoid being caught for the driving offences; and he was joined in the ultimate abandonment so as to not be associated with the driving criminality and possession of contraband. Or, it was all explicable to shock:[25]
the experience of the law – especially in cases involving dangerous, culpable or negligent driving – is that persons with legitimate propriety (sic) interests often abandon their motor vehicle following a collision with another car. People often feel frightened, behave irrationally, or betray their shock following a collision. All too often they conduct themselves in ways which are unexpected or out of character. To have ‘reasoned’ – as his Honour seemingly did – that the abandonment of the car necessarily bespoke knowledge on the part of the Appellant that the car was stolen was not only speculative, but at odds with common sense.
[25]Appellant’s submissions para 26.
As against that, the Director’s submission overall was that:[26]
The unifying theme in fleeing the scene of the collision, hiding the car in a building site, commencing to remove the occupant’s articles from the car therein, fleeing the building site when observed, and then finally abandoning the car, all displayed an ongoing desire by the occupants of the car to distance themselves from being identified and investigated as occupants of the car. That conduct compelled the conclusion that the Appellant knew that the car was stolen.
[26]Respondent’s submission para 13.
As for the competing hypotheses of innocence, the Director submitted that:[27]
The dangerous driving following the collision was entirely disproportionate to the perceived seriousness of the collision. The panicked flight from the building site was similarly disproportionate to the perceived seriousness of trespassing on the building site. The flight from the car is not explained by the presence in the car of prohibited objects, which might as easily have been removed and placed somewhere discreet (ie not on a building site). The supposed possibility that the Appellant was in shock throughout the incident can be dismissed, because he was engaged in deliberate and concerted actions during the incident, and in any case was not supported by the evidence. It is prohibited to engage in speculation and conjecture in favour of the defence, as well as the prosecution, in appellate review of a circumstantial case.
[27]Respondent’s submission para 15.
The contradiction in those contentions portrays I think the essence of the issues on this appeal.
The notice of appeal
The Notice of Appeal states three questions of law:
1.Did the learned Magistrate err in finding that there was evidence sufficient in law to found the inference that the Appellant knew that the car in question (and in which he had been a passenger) was stolen?
2.Alternatively, was it open to the learned Magistrate to hold that the hypothesis he identified as consistent with guilt was the only reasonable hypothesis open on the evidence?
2A.In finding the Appellant guilty of the offence charged, did the learned Magistrate err by finding – in the absence of admissible (or any) evidence – that “… it is beyond a reasonable doubt that the accused was aware or made aware by the co-accused that the vehicle in which he was a passenger was stolen immediately or shortly after the collision”?
There are three grounds of appeal:
1.The learned Magistrate erred in law by finding that there had been adduced evidence during the contested hearing sufficient in law to found the inference that the Appellant knew that the car in question (and in which he had been a passenger) was stolen.
2.Alternatively, the learned Magistrate erred by holding that the hypothesis he identified as consistent with guilt was the only reasonable hypothesis open on the evidence.
2A.In finding the Appellant guilty of the offence charged, the learned Magistrate erred when – in the absence of admissible (or any) evidence – he found that “… it is beyond reasonable doubt that the accused was aware or made aware by the co‑accused that the vehicle in which he was a passenger was stolen immediately or shortly after the collision”.
Ground 1
This ground is said to turn on the distinction between lawful inference and mere conjecture. On the appellant’s two step analytical approach, this ground is directed to the first stage of the process of inferential reasoning which requires evidence from which a rational inference consistent with guilt may be drawn.
The Director agitated an issue whether this first ground raised a question of law. This ground is concerned with the sufficiency of evidence on which the Magistrate inferred guilty knowledge, rather than contending the inference was not open. The Director was content to treat this ground as involving a question of law so long as it was taken to pose the relevant question as being whether it was open for the Magistrate to infer guilty knowledge. It is noticeable that the question whether a finding was open is how the second ground of appeal is expressed. It asks: ‘Was it open to the Magistrate to hold that the hypothesis consistent with guilt was the only reasonable hypothesis open on the evidence?’
This raises a point of substance going to the nature of this appeal and the sustainability of this first ground.
In appeals on a question of law, it is established that although findings of fact must be based on the evidence, there is no error of law unless it can be shown that there was no evidence to support the finding. Put another way: there is no error of law in making a finding of fact unless the finding was not open: see especially S v Crimes Compensation Tribunal[28] and Myers v Medical Practitioners’ Board of Victoria.[29] The usual reference point of principle is Australian Broadcasting Tribunal v Bond.[30] That was a civil case concerning the Administrative Decisions (Judicial Review) Act and its statutory ground of review that ‘there was no evidence or other material to justify the making of the decision’. In considering the concept of ‘error of law’ at common law, Mason CJ said:
The question whether there is any evidence of a particular fact is a question of law … Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law … This is because, before the inference is drawn, there is a preliminary question whether the evidence reasonably admits of different conclusions. … so, in the context of judicial review, it has been accepted that the making of findings and the drawings of inferences in the absence of evidence is an error of law …
…
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
[28][1998] 1 VR 83, 89-91.
[29](2007) 18 VR 48.
[30](1990) 170 CLR 321, 355-6 (per Mason CJ).
In S v Crimes Compensation Tribunal, the issue was pursued by Phillips JA in this way:[31]
In what I have said I have spoken of whether a particular finding (including an inference) was open to the fact-finding tribunal. Sometimes the question is posed as whether there was any evidence to support the finding which is under challenge, but that expression is perhaps ambiguous when it comes to inferences. It may question whether there were the primary facts from which an inference might be drawn or, there being no doubt about the primary facts, it may question whether the inference could be drawn from those facts. In this area the relevant question in relation to a fact is always whether the finding (including an inference) was open, and so I think that that is the better formulation.
In this connection, the word “reasonably” sometimes intrudes. It is used not infrequently in order to describe an inference of fact, not simply as “not open”, but as “not reasonably open” [citations omitted]. … But, if I may say so, the word “reasonably” seems to be a distraction. Whether centred on a finding of fact based upon the acceptance of direct evidence or on an inference of fact based upon other facts of which there is direct evidence, the question is whether that finding or that inference was open to the tribunal.
[31][1998] 1 VR 83, 90.
After that passage, Phillips JA then adopted what was said by Mildren J in Tracy Village Sports and Social Club v Walker:[32]
If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. It is not sufficient that this Court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. … In the context of this discussion, if an inference cannot reasonably be drawn it will be because the inference cannot be drawn from the primary facts. However, if the inference is one about which minds might differ, it being a question of judgment or degree, the inference not only can be drawn but it would not be unreasonable to draw it.
[32](1992) 111 FLR 32, 37-8.
Senior Counsel for the appellant sought to disregard these authorities on the ground that they concerned civil cases or judicial review cases, not criminal cases. But I see no basis in principle to distinguish between what constitutes a question of law depending on whether it is a criminal appeal or a civil appeal. To do so would depart from the conduct of Magistrates Court criminal appeals in this court: see Berlyn v Brouskos[33] and Rugulino v Howard.[34] In the first of those cases, Nettle J was dealing with a criminal appeal on a question of law under the previous ‘question of law’ appeal provisions as then existed under the Magistrates’ Court Act, and said (omitting citations and footnotes):
The question of whether there is any evidence of facts and the question of whether a particular inference can be drawn from facts are both questions of law: Australian Broadcasting Tribunal v Bond. To make a finding of fact or to draw an inference in the absence of evidence is equally an error of law. There is, however, no error of law in making a wrong finding of fact or drawing an illogical inference, if the finding or inference is reasonably open: Bond. And reasonably in this context means no more than a rational tribunal of fact acting according to law as opposed to an irrational tribunal acting arbitrarily: S v Crimes Compensation Tribunal.
To those observations, however, there must be added the consideration that whereas when satisfaction on the civil standard of proof depends on inference, it is enough that there is something more than mere conjecture, guesswork, or surmise to prefer one competing inference over another, under the criminal standard of proof the facts must be such as to exclude any reasonable hypothesis consistent with innocence … That is why it is that a jury may be directed to acquit if the circumstances in their view are susceptible of a reasonably possible explanation consistent with innocence.
[33](2002) 134 A Crim R 111, [30].
[34][2010] VSC 590, [10].
Thus, I will proceed on the basis that this first ground of appeal, to be competent legally, must establish that the Magistrate’s inference, on the first step in the inferential process, was not open.
It is of critical importance to recognise that all of the circumstances established by the evidence have to be considered and weighed. That means not examining separately each item of evidence in a piecemeal way, as if in a legal laboratory, but looking at the accumulation of the evidence.[35] In a circumstantial case there may be particular evidence which looked at in isolation from other evidence would yield an inference compatible with the innocence of the accused, but it may come to inform a view of the other evidence or take on a different colour when considered with the other evidence.[36] It also means all of the circumstances may permit an inference of guilt from a combination of facts none of which would, when viewed alone, support that inference. That is what is meant by the ‘united force’ of the evidence. As said by Brennan J in Chamberlain v The Queen:[37]
An inference of guilt may properly be drawn although any particular primary fact, or any concatenation of primary facts falling short of the whole, would be insufficient to exclude other inferences. It follows that the insufficiency of a piece of evidence to support an inference of guilt does not by itself warrant the setting aside of a verdict of guilty if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference.
[35]Chamberlain v The Queen (1953) 153 CLR 521 at 535 (per Gibbs CJ and Mason J).
[36]See R v Hellier (2007) 228 CLR 618, [46] – [48].
[37](1983) 153 CLR 514, 599.
Under this ground of appeal, the appellant isolates two findings by the Magistrate which, it was submitted, showed that the Magistrate made drew an inference of guilt on conjecture. The first was the finding that ‘It is inconceivable that there were no discussions between all three co-accused as to what to do next whilst they were in the car’.[38] But, in the same finding the Magistrate also said ‘It is unknown what the exact scope of those discussions were…’ The second finding was that:
it is inconceivable that a person with a legitimate proprietary interest in a motor vehicle would abandon it immediately after an accident with another car in a nearby location where that car would be readily discovered and therefore later linked to him or her afterwards. Unless of course it was in fact stolen or broken down or undriveable.[39]
[38]TS 74.
[39]Ibid.
It is certainly reasonable and irresistible to think, as a matter of ordinary human behavioural experience, that the three of them would not have sat silent and quietly in the car after the collision and the aftermath. And it can be accepted that a finding that discussions about ‘what to do next whilst they were inside the car’ does not of itself prove that the appellant had guilty knowledge. What matters, I think, is that whatever was said inside that car had to be referable to what was happening in the frenetic and dangerous getaway and the trespass onto the building site. Thus attention is focussed objectively on those events and ask: without knowing what was said in the car, what do all the circumstances bespeak? They show, as I think the Magistrate was saying, that the appellant was engaged in a concerted act of abandonment of the car; and an involvement to dissociate themselves from the car, which is not consistent with ownership of it, but a knowledge or recognition that it was stolen. I think the second finding has to be seen the same way. The abandonment of the car so close to the collision, and the appellants participation in it, went to the aggregate of showing the appellant knew or came to realise he was in a stolen car.
Thus, I do not accept on this first ground that the Magistrates process of reasoning was based on conjecture. To isolate those two matters ignores all of the other objective evidence, none of which were in doubt, and which in combination support the inference of guilt. In summary the evidence was:
(a) the Mercedes-Benz drove into the back of another car in a collision of a magnitude which could not be called not major or alarming;
(b) instead of stopping to give his name and address, the Wagner drove off in a dangerous manner, went through two red lights and onto the wrong side of the road;
(c) the car went to nearby Beaumaris, drove past the building site (unlikely to be occupied on a Sunday) the frontage of which was covered with a framed mesh screening which would prevent visibility unless close up;
(d) the car suddenly stopped, and then drove backwards on the wrong side of the road towards the site;
(e) the appellant was observed talking to the driver of the car, all this in a ‘a lot of commotion, action and excitement’;
(f) the appellant helped to un-link and open part of the fence to enable car to reverse into the building site, and then replaced the fencing;
(g) as the female passenger was removing possessions from the car, she was unexpectedly disturbed by Goddard, which gave her ‘a hell of a fright’;
(h) the appellant, being outside the car, looked at Goddard briefly but then avoided eye contact;
(i) the driver yelled ‘Let’s go’; the appellant got back into the car; and they fled in such haste that Chamoun who had reopened the fence had to enter the moving car as it drove down the street; and
(f) shortly after that, the car was found abandoned about 500 metres away.
I would say that at ‘the first stage of the process’ as the appellant seeks to divide the process, the inference was reasonable and open on the evidence. If it was open, there is no error of law. Therefore, I would reject the first ground of appeal.
Ground 2
This ground contends in the alternative that ‘the learned Magistrate erred by holding that the hypothesis identified as consistent with guilt was the only reasonable hypothesis open on the evidence’. This goes to the second step in the appellant’s process of inferential reasoning which looks to whether there was open on the evidence an inference consistent with innocence which was not rationally excludable. For that exercise the Court was taken to this explanation of principle by Bell J in Rugolino v Howard[40] (with my underlining):
[14] … Where a finding of guilt is based on inferences of fact drawn from circumstantial evidence, the inference must be the only inference which can reasonably be drawn from the entire body of evidence. A reasonable hypothesis consistent with innocence must not be available on the evidence. If an inference of innocence is reasonably open on that evidence, whether or not the trier of fact would accept that inference, or there is a reasonable hypothesis consistent with innocence on that evidence, whether or not the trier of fact would accept that hypothesis, there can be no finding of guilt beyond reasonable doubt and the accused must be acquitted. The existence of an inference of innocence which is reasonably open, or a reasonable hypothesis which is consistent with innocence, legally demands the conclusion that there is a reasonable doubt about the guilt of the accused. But the trier of fact does not have to accept as reasonably consistent with innocence an inference or hypothesis which is speculative, fanciful, a bare possibility or irrational.
…
[18] As we have seen, the magistrate could infer the defendant’s guilt if this was the only inference which was reasonably open on the evidence. If an inference consistent with innocence was reasonably open on the evidence, the magistrate was bound to acquit the defendant. To repeat, in determining whether to accept or reject competing inferences, the magistrate was not bound to accept an inference consistent with innocence which was speculative, fanciful, a bare possibility or irrational. He was entitled to reject such inferences as not being reasonably open. As Ormiston JA held in R v Cengiz, ‘it is only if the alternative inference can be described as reasonable or rational that the obligation to acquit arises’.
[40](2010) 57 MVR 178, [14] – [20]; [2010] VSC 590.
I have already rejected the appellants primary contention that it was not open for the Magistrate to infer guilt. The onus of showing an alternative inference was open on the evidence which was not rationally excludable is squarely on the appellant. He postulates these inferences as being open and consistent with his innocence (or at worst, consistent with criminal conduct other than associated with knowledge that the car was stolen):
(a) he was not told after the car had crashed and before its arrival at the building site that the car was stolen;
(b) he assisted in opening the security fence at the building site, to make way for the car, whether out of fear that he or the co‑accused would be held responsible for criminal conduct that day or for some reason other than the theft of motor vehicle, such as:
(i) the car crash;
(ii) fleeing the scene of the crash without rendering assistance;
(iii) driving dangerously, including disobeying two sets of red lights and driving on the wrong side of the road; and
(iv)offences in connection with the fact that there were unlawful goods in the car in the possession of the co‑accused including counterfeit money and drugs.
(c) he got back in the car at the building site, not because he knew that the car was stolen, but because he wanted to flee from Mr Goddard and the building site upon which he had just trespassed, and because he hoped to avoid potential liability for the criminality in paragraph (b);
(d) he abandoned the car, or was complicit in its abandonment, because he did not want to be associated with the criminality in paragraph (b); and
(e) he acted in the way he did throughout the episode out of shock following the car crash.
In considering each of these segments, three principles must be kept steadily in mind. First, the postulated competing inferences must be reasonable. Secondly, they must be supported by the evidence. Thirdly, the process of reasoning in a case of circumstantial evidence eschews a piecemeal approach, and entails a consideration of the weight to be given to the united force of all of the circumstances.[41] One segment of the circumstances may in isolation be consistent with innocence, but may come to be adjusted in availability or rationality in the company of other circumstances. The expression ‘all of the circumstances’ is something more than an incantation.
[41]Chamberlain (1983) 153 CLR 521, 535 (per Gibbs CJ and Mason J) and R v Hellier (2007) 228 CLR 618, 637.
I think the first postulated hypothesis of innocence ― that the appellant was not told the car was stolen before they got to the building site ― was open but it was sterile in the inferential process. The Magistrate did not make any finding about the content of any conversation. Nor, did the Magistrate find that the appellant’s knowledge was gained by any particular means. It was a case of the appellant either already knowing it was stolen, or if not, it was a case of the appellant realising it in the blatancy and severity of what occurred after the collision, and his active involvement of enabling the trespass onto the building site with an apparent intention to abandon the car there, until frustrated by the presence of Goddard, leading as part of the res gestae to the abandonment nearby. All that, as the Magistrate found, was so manifestly irreconcilable with lawful ownership or possession that the appellant could only have already known or come to realise after the collision that he was in a stolen car by the time they got to the building site.
The same body of evidence also renders not reasonable or rational the postulated and segmented grounds of innocence in paragraphs (b) to (d) all of which are referable to the collision as the initiating event. There was nothing about the collision itself that could rationally explain the sheer delinquency of the subsequent events. The evidence showed to the Magistrate, from the moment of the collision, a blatant and desperate move by the driver to not be identified with the car, an object in which the appellant was engaged certainly in the entry into the building site and the getaway. I think, on the evidence, the hypotheses of innocence in para (b) to (d) were themselves conjectural and rationally excludable by the united force the other incriminating evidence.
I would say the same for the hypothesis of shock in paragraph (e). I think it to be a bare possibility, but there was no evidence that the driver or the passengers had something to fear, except being identified as being in a stolen car. This was not a case of culpable driving or some other serious driving incident involving death or serious injury which might reasonably be thought to create a flight mentality out of panic. The fear of being caught in possession of contraband (if that was possible after a minor collision) can be excluded because any contraband could have been disposed of without the dramatic abandonment of the vehicle.
In addition to postulating hypotheses consistent with innocence, the appellant’s submissions makes three other attacks under the second ground, although they seem to me to be variations within the ambit of the existing grounds of appeal.
First, he submits that whereas the Magistrates found that ‘it was inconceivable that there were no discussions between all three co-accused as to what to do next whilst they were all inside the car’, there was no evidence about the nature of content of those discussions. The appellant submits a fortiori there was no basis to find, as the Magistrate did, that those discussions led to the appellant’s knowledge that the car had been stolen. I do not accept this. The Magistrate did not make any such finding. As I have said throughout this judgment, the Magistrate looked to the accumulated evidence of events immediately after the collision to conclude that the accused was engaged and active in the attempt to abandon the car at the building site (an act inconsistent with lawful possession) and must have either known or realised at the latest by a short time after the collision that the car was stolen.
Secondly, the appellant submits the Magistrate erred when he found that ‘It [was] inconceivable that a person with a legitimate proprietary interest in a motor vehicle would abandon it immediately after an accident with another car in a nearby location where that car would be readily discovered and therefore later linked to him or her afterwards.’ It is said that such a finding makes it unclear whether it was referable to the appellant directly or to one or both of the co-accused; that it is unclear how that finding was relevant to the question of the appellant’s state of knowledge; and in any event the ‘experience of the law’ is that persons with legitimate proprietary interests often abandon their motor vehicle after a collision as ‘people often feel frightened, behave irrationally, or betray their shock following a collision.’ It was submitted that it was speculative and at odds with common sense for the Magistrate to have reasoned that the abandonment of the car necessarily bespoke knowledge on the part of the appellant that the car was stolen.
I do not accept this submission. I think it misconstrues what the Magistrate was saying. It could have been clearer, but it is clear enough to me his Honour was referring to the appellant’s state of knowledge from what occurred immediately or soon after the collision. That is, the attempt to abandon the car at the building site, an act in which the appellant was engaged, was not an act consistent with legitimate ownership, and the proximity of the building site to the place of collision only goes to show just how quickly they wanted to be rid of it. As for the appellant’s resort to ‘the experience of the law’, I presume to say frightened or irrational behaviour may occur after a very serious road incident usually in blameworthy circumstances involving death or serious injury, and where detection of other crimes may occur incidentally if police are involved. The collision in this case was so far removed from such a situation as to intensify the force of the circumstances that occurred after the collision as the basis for inferring knowledge that the car was stolen. That is how I think the Magistrate’s reasoning is to be fairly understood, and in my view cannot be said to be lacking in common sense or being speculative. Indeed, I think it speculative to attribute what occurred to shock or fright. The evidence does not support it.
Finally, it was submitted that it was unclear how the appellant’s ultimate abandonment of the car, whatever its proximity to the work site, admitted only of one reasonable inference that the car was abandoned at the work site (or attempted to be abandoned there until Goddard’s presence was made known). I think it is clear enough. The nearby ultimate abandonment showed objectively, and tellingly I think, the urgency of the need to be rid of the car so as to not be identified with it, a process in which the appellant had been engaged.
In my view there was no legal error by the Magistrate, and this ground fails.
Ground 2A
Under this ground, the appellant contends that the Magistrate erred by finding, in the absence of any admissible (or any) evidence that ‘it is beyond a reasonable doubt that the accused was aware or made aware by the co-accused that the vehicle in which he was a passenger was stolen immediately or shortly after the collision. The appellant contends that there was no evidence by which it could have been inferred that the appellant was made aware by the co-accused that the car was stolen, moreover being made aware ‘immediately or shortly after the collision’.
This ground seems to assimilate all that has been considered under the first two grounds, which collaterally makes this ground unsustainable. I accept the concise submission of the Director that on the ultimate question of proof of guilty knowledge:
The learned magistrate did not find that the accused became aware by any particular means. Rather, the learned magistrate concluded that the concatenation of circumstances led inexorably to the conclusion that the accused must have known, at the latest by a short time after the collision, that the car was stolen. There was no error in that reasoning. It involved the proper process of drawing an inference from the totality of the unifying behaviour of the three occupants in the time shortly after the collision, in the obvious pursuit of a common objective that involved distancing themselves from the car in a way that was explicable only by all three sharing the common knowledge that the car was stolen.
Conclusion
The appellant has not established an error of law. The Magistrate’s findings were based on undisputed facts. They were not conjectural. The ultimate finding of the appellant’s guilt beyond reasonable doubt was a rational inference and was the only inference reasonably open in all of the circumstances. Those circumstances excluded an inference consistent with innocence.
I will order that the appeal be dismissed. I would ask that the parties to inform soon my Associate in writing if there is to be any consensual order, or a dispute, on the consequential costs order.
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