Wells v Lusted

[2008] TASSC 11

[2008] TASSC 11

CITATION:                 Wells v Lusted [2008] TASSC 11

PARTIES:  WELLS, Eleonore
  v

LUSTED, Gary

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 763/2007
DELIVERED ON:  14 March 2008
DELIVERED AT:  Launceston
HEARING DATE:  7 March 2008
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matter relating to decision – Whether sufficient reasons for decision given.

Australian Securities Commission v Schreuder A79/1994; James v Eyles [2007] TASSC 55, applied.

Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
             Applicant:  B H Crawford
             Respondent:  J P Ransom
Solicitors:
             Applicant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 11
Number of paragraphs:  13

Serial No 11/2008

File No LCA 763/2007

ELEONORE WELLS v GARY LUSTED

REASONS FOR JUDGMENT  CRAWFORD J
  14 March 2008

1. Following a defended hearing at which she was not represented by a legal practitioner, the applicant was found guilty by a magistrate of trespass and unlawfully injuring a chain and was fined $500 and ordered to pay costs of $270.75.  She has moved the Court to review the conviction for unlawfully injuring the chain on the ground that the learned magistrate gave insufficient reasons for finding her guilty.  Particulars of the ground assert that the learned magistrate failed to make any reference in his reasons for his decision to the evidence of the applicant denying that she injured the chain and denying that the chain had been locked onto a bin.  Better expressed, the last matter should refer to her evidence that the chain locked two lids of the bin together, but did not prevent entry into the bin.

1. At about 1am the applicant, in the company of a male, was found to be scavenging from a disposal bin belonging to the Kmart.  The case that she injured a chain was a circumstantial one.  The prosecutor called three witnesses who were employees of the Kmart.  The first, Mr Rosier, said that he went to the skip bin to lock it with a chain and padlock, and did so.  He went back inside.  Within a couple of minutes he heard noises outside.  On going there he saw the applicant in the bin.  He returned inside and immediately informed the night manager, Mr Rae, of what had occurred.  In cross-examination it was put to him by the applicant that he had not locked the bin and he asserted that he went outside to lock it and he did so.  He was not questioned about the manner in which he secured the chain on the bin. 

1. Another employee, Mr MacCrosty, gave evidence that at around 1am Mr Rosier alerted him to the fact that there was someone outside going through the bin.  Mr MacCrosty went outside and found the applicant putting stuff in a nearby van.  A male was also present.  As soon as he saw them he returned inside and spoke to Mr Rae, who went outside and spoke to the applicant in Mr MacCrosty's presence.  It was Mr MacCrosty's evidence that the bin was locked at night with a padlock, but at the relevant time the lid was open.  Asked whether he observed the padlock, he answered:  "The padlock was on the ground, yes, I think, I'm pretty sure the police observed that as well."  In cross-examination he confirmed that the padlock was on the ground.  He also confirmed that he had not seen that the bin had been locked prior to the incident.  In neither examination-in-chief or cross-examination was he asked about the position of the chain. 

1. Mr Rae's evidence was that upon Mr MacCrosty telling him that someone was outside in the bin, he went out, saw the applicant loading stuff into her vehicle and spoke to her.  He said that for some two or three months, it had been the practice to lock the bin every night, and that it was Mr Rosier's job to do so.  He said that it was "locked with a padlock and a chain that runs through it and locked together, so it couldn't be opened."  After the applicant left the scene, he observed:  "The padlock hadn't been cut but a link of the chain had been removed, therefore rendering the chain itself useless and not locking the bin.  ...  The padlock was attached to the chain on the bin."  In cross-examination he was asked whether he assumed that the applicant and her male companion must have damaged something, and he answered:  "Well yes because the bin was locked and after you left the bin was not locked, so."  He confirmed that he had not seen Mr Rosier lock the bin.

1. Constable Castle gave evidence that she spoke to the applicant later that evening.  The following questions and answers resulted:

"Q       Did you go into the Hippo bin at the back?
A        Yeah.

Q        Was the bin already open?

A        Yeah.

Q        Did you cut a chain to get into the bin?

ANo, there was a chain holding both lids together, there was no chain holding the bin shut."

1. The applicant gave evidence.  She did not call the male who was with her that night, saying that she could not get hold of him.  Her evidence included:  "Luke and I went to the back of the Kmart just to salvage as I have been doing for about 20 years and we just lifted the lid on the dumpster, which was chained together, two chains, one on each lid, locked together with a padlock around the two of them, and it's heavier to lift two lids together like that, but you can still do it, so you know we just lifted the lid, and we were just having a look in there ...".  She had looked inside and removed some items from the bin.  She spoke of Kmart staff speaking to them and said:  "They started saying things like 'Oh you've broke the padlock' and I'm saying, 'What are you talking about the thing wasn't locked at all, we just lifted the lid'."  In cross-examination she repeated that the two lids were chained together with a padlock around them, but they were not chained to the rest of the bin.

1. At the close of the applicant's evidence, the learned magistrate announced the following reasons for finding both charges proved:

"Tim Rossier, he was a night storeman with the Kmart, gave evidence of being employed there at the relevant time in December last year.  On the 28^th December he was working from 6pm, his duties are to break down stock from the stockroom for the night staff to fill the shelves with.  After that he says, 'I lock up'.  The skip bin he said is outside, back down the driveway.  He said, 'I also lock the skip bin with a chain and a padlock which I did around a quarter to 1 this night.  Then I went back inside.  Then I heard noises outside after a couple of minutes a rustling noise', he described it as, and it was only a couple of minutes after he went back inside after locking the skip bin with a padlock and a chain.  He said, 'I looked out the keyhole window and went outside, I saw a lady in the bin, she was actually down in the bin, I did not see anyone else around'.  He went back inside and told the night manager, David Rae, about his observations.  When cross-examined he only saw the defendant in the bin, no-one else was standing next to the bin.  It was put to him that he did not lock the dumpster as the defendant calls it, he denied that and said, 'I did lock the dumpster'. 

Simon MacCrosty gave evidence of being a retail assistant at the Kmart on the 28^th December.  He was about to finish work around 1pm I think he said.  'Tim Rossier alerted me that there was somebody outside going through the bin.  I went out and found a female I recognised as the bin lady from previous occasions'.  He then went back in and alerted his boss, David Rae.  He said 'she was not in the bin when I went out.  She was over at a walkway putting stuff into a blue van'.  He said, 'David then came out'.  He said there was also a male at the van wearing sunglasses with one lens missing.  They tried to recover the bags from the van unsuccessfully and were told in no uncertain terms by the man with the sunglasses to leave.  After she left the skip bin the lid was open and the padlock was on the ground.  When cross-examined he said he did not see the defendant do any damage to the bin.  There was a padlock on the ground, 'I imagine' he said, 'it was just a brass padlock'.  He assumed that the bin had been locked that night.  The lock is attached to a chain.  It was not left on the ground. 

David Rae, the night supervisor at the Kmart, gave evidence of seeing the defendant putting stuff in a van.  He told her that she wasn't allowed to do that and she was trespassing.  He said she said she'd been given permission and continued to load her vehicle up with stuff from the bin.  There was a young man with her with sunglasses with one lens missing.  'We'd been locking the bin every night', he said, 'with a padlock and chain'.  After she left a link of the chain had been removed, rendering the padlock useless.  So that was the most specific description to date of what had happened to the padlock.  She had no permission, he said, to take items from the bin or to be in that area.  When cross-examined he said that the defendant claimed that she was allowed to do what she was doing, that she had permission to go through the bins.  He did not see her damage anything.  The bin had only been locked 10 or 15 minutes earlier.  There was no-one else around. 

And Const Castle then gave evidence of locating the van, of the defendant saying that she had been looking for salvageable property in the bins, which is basically what she says here in court today.  Notes were taken of that conversation. 

So the defendant is charged with two offences, firstly, destroying property, that is, destroying a small length of chain the property of the Kmart, Launceston, and with trespass being on the Kmart property without permission. The only evidence of destroying a length of chain that is at all firm is the evidence of David Rae. He said that after she left a link of the chain had been removed rendering the padlock useless. So she's not charged with destroying the padlock, but with destroying the chain. The evidence does not support the destruction of the chain, it supports the injury to that property, regarding one link of chain, and I accordingly amend the complaint to one of injuring property under the provisions of the Police Offences Act and I find that and the remaining charge of trespass against the defendant proved, taking into account also her evidence that she was there salvaging and that I accept the proposition that no-one else is around at the time and the amount of time that passed between the chain being secured with the padlock and the defendant being seen there is only a couple of minutes."

1. In those reasons, the learned magistrate stated much of the substance of the evidence of each of the prosecution witnesses, but stated nothing of the applicant's evidence or her case, except that she had said that she was there salvaging.  No reason was given for accepting the evidence of Mr Rosier, that he had locked the bin, and the evidence of Mr Rae that a link in the chain was missing, in preference to the evidence of the applicant that although the two lids were locked together, the chain did not prevent entry into the bin and she had not damaged the chain.  On the face of the reasons, the applicant's case was ignored by the learned magistrate.  The reasons appear to be based on whether there was sufficient prosecution evidence, without regard to the applicant's evidence, to justify a conviction. 

1. It was submitted by counsel for the respondent that it may properly be inferred that the learned magistrate preferred the evidence of the prosecution witnesses and rejected the evidence of the applicant.  Perhaps that is so, but that does not satisfy the requirement that the magistrate had to give reasons for his decision.  Without any explanation for rejecting her evidence about the question in issue, she is entitled to think that justice was not done in accordance with the law. 

1. In Australian Securities Commission v Schreuder A79/1994 at 5 – 6, Underwood J stated that a magistrate has a judicial duty to:

1         make findings with respect to the essential facts;

2where the evidence with respect to those facts was in dispute or unclear, state a basis for making such findings;

3where appropriate, state what inferences the magistrate drew from the facts found and where necessary, the basis for drawing such inferences; and

4expose the reasoning process which resulted in the orders to the scrutiny of the parties and any reviewing court.

1. In Zaronias v Papaiani [2002] NSWCA 207 at par7, Meagher JA said: "A judge is certainly not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision." However, as I observed in James v Eyles [2007] TASSC 55 at par28, that case should be understood in the context of the evidence presented in it and not as an authority for that proposition in all cases, regardless of the evidence. I also referred to the statement of McHugh J in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, "where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believes one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour'; Connell v Auckland City Council [1977] 1 NSWLR 630 at 632 – 633 per Chilwell J." As I pointed out, that statement, and the statement of Meagher JA in Zaronias, were made in the context of civil proceedings in which the standard of proof was the balance of probabilities.  I continued at par29:  "Believing one witness in preference to another may well be all that is necessary for the determination of facts on the balance of probabilities, but when the standard is proof beyond reasonable doubt the mere preferring of one witness against another is insufficient to satisfy that standard.  There must be something stronger than mere preference." 

1. With respect to the learned magistrate, I have concluded that he failed to fulfil his duty to provide reasons for his decision and in particular, reasons for rejecting the applicant's evidence, if that is what in fact the learned magistrate did. 

1. For these reasons, I will uphold the motion to review and quash the conviction for unlawful injury to property.  As the fine of $500 was imposed for both offences, it will also be quashed.  I will hear from counsel concerning whether the order for costs should be allowed to stand.  I will also hear from counsel as to who should resentence the applicant for the trespass.  There will be an order that the charge of unlawfully injuring property on complaint 31513/07 is remitted to the Magistrate's Court for a fresh hearing before a different magistrate.