Whitehouse v Horrocks - [2017] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WHITEHOUSE -v- HORROCKS [2017] WASC 92

CORAM: MARTINO J

HEARD: 30 MARCH 2017

DELIVERED : 30 MARCH 2017

FILE NO/S: SJA 1083 of 2016

BETWEEN: DAVID CHARLES WHITEHOUSE
Appellant
AND
KIRSTEEN SAMANTHA HORROCKS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B C GLUESTEIN
File No  :PE 13352 of 2015

Catchwords:

Criminal law - Stealing a motor vehicle - Whether prosecution must prove that the dealing with the vehicle was without the owner's consent

Legislation:

Criminal Code (WA), s 371A, s 378

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr R Wilson
Respondent: No appearance

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: No appearance

Case(s) referred to in judgment(s):

BPZ v Giles, unreported; SCt of WA (Anderson J) Lib 970292, delivered 10 June 1997
Macpherson v The Queen (1981) 147 CLR 512
Palmer v Lacco [2013] WASC 236
Robinson v Hart [2005] WASC 268

MARTINO J: This is an appeal by the prosecution against the acquittal of the respondent on a charge of stealing a motor vehicle.
The appeal notice was filed on 25 October 2016. On 2 November 2016 the appellant filed a service certificate certifying that the respondent had been served with a copy of the appeal notice on 1 November 2016 at an address specified in that certificate. That address is the same address as the respondent's address specified in the prosecution notice by which the respondent was charged with stealing the motor vehicle.
The respondent filed a notice of respondent's intention on 18 November 2016. It provided her details for service as the address of a solicitor at Legal Aid WA (the Legal Aid solicitor) and included the Legal Aid solicitor's email address.
On 17 January 2017 my Associate sent an email to the Legal Aid solicitor informing her that the appeal was listed for hearing on 15 March 2017 at 10.00 am. The Legal Aid solicitor acknowledged receipt of the email by email dated 23 January 2017 and said that she had diarised the date of the hearing.
On 14 February 2017 the Legal Aid solicitor filed notice of ceasing to act. She filed the notice with a letter dated 14 February 2017 to my Associate saying that the respondent had not attended any appointment nor provided her with instructions and had declined to do so upon the Legal Aid solicitor's invitation. In the letter the Legal Aid solicitor also said that she had informed the respondent that the respondent would not be represented by the Legal Aid solicitor at the hearing scheduled in the Supreme Court on 15 March 2017. On the same day the Legal Aid solicitor sent an email to my Associate attaching the letter and the notice of ceasing to act and saying that she was unable to provide my Associate with the respondent's address for service as she had no instructions to release it.
On 9 March 2017 my Associate sent an email to the Legal Aid solicitor enquiring whether the respondent was aware that the Legal Aid solicitor was no longer acting for her. The Legal Aid solicitor replied on the same day saying that she had written to the respondent informing her that she no longer acted for the respondent and that whether the respondent received the letter was another question. The Legal Aid solicitor said that she could endeavour to contact the respondent.
On the morning of 15 March 2017 the Legal Aid solicitor sent an email to my Associate informing her that she had telephoned the respondent's telephone number and received no answer. The Legal Aid solicitor also said that she wrote to the respondent in the previous week and asked the respondent to contact my Associate immediately. The Legal Aid solicitor said that the respondent would have received that letter by 13 March 2017.
The respondent did not attend court on 15 March 2017. She did not contact my Associate.
The respondent provided details for service in her notice of respondent's intention filed on 18 November 2016. Part 3 of the Criminal Procedure Rules2005 applies, with any necessary changes, to a lawyer who is instructed to act or who ceases to be instructed to act for an accused who is a party to a criminal appeal – rule 13(2). Rule 12, which is in pt 3, provides:
12. Presumptions as to who is acting for accused
A lawyer who has lodged a Form 3 is to be taken to be acting for the accused in the capacity shown in the notice until ‑
(a)the lawyer lodges another notice under rule 10 or a notice under rule 11; or
(b)another lawyer, who acts in the same capacity, lodges a notice under rule 10; or
(c)the court gives leave under rule 11(3).
Form 3 is a notice of acting to be lodged by a lawyer acting for an accused in a prosecution in the Supreme or District Court. It follows from r 12, read with r 13(2), that from the time of the respondent’s notice of intention filed on 18 November 2016 until 14 February 2017 when the Legal Aid solicitor filed notice of ceasing to act the Legal Aid solicitor was to be taken to be acting for the respondent. The Legal Aid solicitor was taken to be acting for the respondent on 17 January 2017 when my Associate sent an email to the Legal Aid solicitor informing her of the listing today.
Rule 61 of the Criminal Procedure Rules provides:
61. Non attendance by party, consequences of
(1)If a hearing before a judge is adjourned because a party who has been notified of it does not attend, the judge may order the party or the party’s lawyer to pay the costs of any party who attended.
(2)If a party who has been notified of a hearing does not attend the hearing before a judge, the judge may proceed in the party's absence.
The respondent was given notice of the hearing on 15 March 2017 by the notice given to her lawyer on 17 January 2017. On 15 March 2017 I could have either adjourned the hearing of the appeal or proceeded with it in the respondent's absence. I adjourned the hearing to today at 2.15 pm.
On 24 March 2017 a police officer served the respondent with the transcript of the hearing on 15 March 2017 and a letter from the Office of the Director of Public Prosecutions dated 17 March 2017 informing her that the appeal had been re-listed for final hearing today at 2.15 pm. That service was effected by handing those documents to the respondent at the same address that is shown on the prosecution notice and the appeal notice.
The respondent has not attended this hearing. She has not contacted my Associate. In the circumstances I am satisfied that the respondent has received adequate notice of the hearing of the appeal and that the hearing should proceed in her absence.

The prosecution

By a prosecution notice dated 13 March 2015 the respondent was charged that in the period 11 December 2014 to 12 December 2014 at Dianella she stole a Nissan Navara motor vehicle within the meaning of s 371A of the Criminal Code 1913 (WA).

The trial

The trial took place on 29 September 2016. Constable Eastman prosecuted. The respondent appeared in person and without representation.
The learned Magistrate enquired of the respondent whether she maintained her plea of not guilty. The respondent confirmed that she maintained that plea. The prosecutor then opened the prosecution case, in the following terms:
On the evening of 11 December, the victim's vehicle, a Nissan Navara, registered number RO11 833, was stolen from the car park of Mount Lawley District Cricket Club in Dianella. The victim was inside the clubhouse during that time. On 15 December, the stolen Navara was located at 14 Railway Parade in Bassendean. A forensic examination was conducted on the vehicle and the accused's DNA was located on the steering wheel, gearstick, park brake, a towel and a pair of underwear inside the vehicle. The accused was subsequently arrested at her home address and provided no explanation (ts 2).
The Magistrate enquired of the respondent what issue she had if her DNA or fingerprints were found inside the motor vehicle. The respondent informed his Honour:
Because Shane – the guy that stole the car has come and dropped all my clothes off. So my fingerprints – because I got in the car to get all my stuff. So that's how my DNA would have got (ts 3)
His Honour enquired whether the respondent had come to court ready to defend the charge. She said that she had. He enquired whether she had any witnesses, in particular the person Shane. She said that she did not, that she did not talk to Shane anymore and that she did not know how to call a witness.
The Magistrate then informed the respondent that the prosecution had the responsibility of proving the charge, that it would call witnesses, that the respondent would have the opportunity to question each prosecution witness and that at the end of the prosecution case she would be able to give evidence if she wished to do so, but that she had no obligation to do so.
The first witness called for the prosecution was Shane Richard Bettinson. Mr Bettinson gave evidence that on 11 December 2014 he went to cricket training at Breckler Park in Dianella and then attended to some administrative cricket club duties. When he went to leave he looked for his cricket bag, which was not where he had left it. When he found the cricket bag his car keys were missing from it. He then saw that his vehicle was missing from the car park. The vehicle was owned by his employer and he was in charge of it. He telephoned police and reported that the vehicle had been stolen.
The following Monday he received a phone call informing him that the vehicle had been found. He went to the location, saw the vehicle and spoke to police officers. The vehicle's battery was flat. Apart from a towel the personal property that Mr Bettinson had left in the vehicle was missing from it. The vehicle was towed to his employer's premises in Kwinana. The next day Mr Bettinson went through the vehicle and found female underwear underneath the passenger's mat.
Mr Bettinson gave evidence that on 11 December 2014 he was the only person authorised to drive the vehicle and that he did not know the respondent.
The respondent did not wish to ask Mr Bettinson any questions.
The prosecution then called Constable Chad Lynch. Constable Lynch gave evidence that on 15 December 2014 he was given the task of attending Railway Parade, Success Hill. At that location he saw the Nissan Navara which had been reported stolen.
The respondent did not wish to ask Constable Lynch any questions.
The prosecution then called Senior Constable Andrew Evans. Senior Constable Evans conducted a forensic examination of the vehicle on 16 December 2014. He took a swab from the steering wheel, the gearstick and the handbrake. He also took possession of a towel that was inside the vehicle. The next morning Senior Constable Evans returned to the vehicle and took possession of some ladies' underwear that was in the passenger foot‑well of the vehicle.
The respondent did not wish to ask Senior Constable Evans any questions.
The prosecution then called Detective Senior Constable David Whitehouse. On 26 February 2015 he spoke to the respondent. The respondent made no admissions in relation to the stealing of the vehicle 'or any reasonable excuse of her DNA and all that being in the … vehicle' (ts 12). Detective Whitehouse charged the respondent with stealing the motor vehicle.
The prosecutor tendered in evidence a forensic exhibit matrix which showed that the respondent was a contributor to DNA on the towel found inside the vehicle, on the swab taken from the steering wheel, the gearstick and the handbrake and on the female underwear found in the front passenger foot‑well. Before accepting that matrix in evidence the Magistrate asked the respondent if she disputed that her DNA was located inside the vehicle. The respondent said:
No, I'm not disputing that, because I would have sat in the car to get all my clothes out of it(ts 13).
The learned Magistrate then accepted the forensic evidence matrix as an exhibit, saying that it was allowed in evidence by consent.
The respondent did not wish to ask Detective Whitehouse any questions.
The prosecutor then closed the prosecution case. The respondent elected not to give evidence.
After a short adjournment the prosecutor delivered a closing address. The learned Magistrate then invited the respondent to address him.
The respondent said that she did not know that the car was stolen, because it had keys in it. She said that someone dropped all her clothes off. She said that she must have gone through the driver's side and touched the steering wheel to get her clothes out of it, that she was not joyriding in the car and that she was only in the car to get her property out of it.
The learned Magistrate then gave his decision. His Honour's reasons can be quoted in full:
HIS HONOUR: I will give some reasons. The prosecution case is against Ms Kirsteen Horrocks that within the meaning of section 371A of the Criminal Code, she stole – and I will go into the word "steal" in a moment – the motor vehicle in question, which is a Nissan Navara, registration RO11833, owned by a company, ICL Equipment Holdings Proprietary Limited. The elements of the offence, bar one, are established. The vehicle, quite clearly, was stolen, and there's no denying that. The vehicle had in it the DNA of Ms Horrocks, and she doesn't take issue with that or doesn't deny that.
What needs to be established is knowledge or intent, and I’m invited by the prosecution to infer and conclude from the very clear evidence that at some point in time Ms Horrocks was in the vehicle that therefore what follows is that she unlawfully, within the meaning of 371A, used the vehicle, or took the vehicle, or drove or otherwise assumed control of the vehicle. The prosecution has the onus of proof. The standard of proof is beyond reasonable doubt, and this is a case where it's not for the accused, that being Ms Horrocks, to have to prove anything. The prosecution bears the onus of proof. I, as I said, can on the uncontested prosecution evidence find that Ms Horrocks was, at some point in time following the vehicle going missing, she was in that vehicle, and she doesn't deny that.
I can be satisfied, as I've said, the vehicle was stolen; however, for the prosecution, in my view, to succeed, there has to be some additional evidence by way of knowledge or intent, and by this I mean the prosecution needed to establish Ms Horrocks knew, when in the Nissan, it was stolen, or that the only reasonable inference this court can take is that she must have known, when in the vehicle, that it was stolen and being unlawfully used, and in particular, Ms Horrocks would say used by her then-boyfriend. In my view, there is no such evidence that allows me to draw that conclusion.
It might have been put, for example, in the video record of interview, which I haven't seen, that Ms Horrocks was in the vehicle and an explanation would no doubt have been invited from her as to why was in the vehicle, and some further questioning along those lines had she chosen to answer could have bridged the gap that is in this prosecution case, but my view is that, there being no evidence whatsoever of Ms Horrocks' knowledge as to the unlawful use of the Nissan, the charge cannot be sustained, and accordingly, I must acquit. Thank you. You're free to go (ts 17 ‑ 18)

The ground of appeal

There is one ground of appeal:
The learned Magistrate made an error of law in his interpretation of section 371A of the Criminal Code 1913 (WA) in concluding that the prosecution was required to establish, as an element of the offence of stealing a motor vehicle pursuant to section 371A, knowledge on the respondent’s part that the motor vehicle was stolen and being unlawfully used.

The elements of the offence with which the respondent was charged

Section 378 of the Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime. Section 371A provides:
371A. Using etc. motor vehicle without consent is stealing
(1)A person who unlawfully ‑
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
(2)This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.
On a charge of stealing a motor vehicle the prosecution is required by s 378 of the Code, read with s 371A, to prove the following matters:
(a)the accused -
(i)used a motor vehicle; or
(ii)took the vehicle for the purpose of using it; or
(iii)drove the vehicle; or
(iv)assumed control of the vehicle; and
(b)the accused used or took or drove or assumed control of the vehicle without the consent of the owner or the person in charge of the vehicle:
Palmer v Lacco [2013] WASC 236 (Corboy J) [8].
The prosecution is not required to prove that the accused had knowledge that the relevant dealing with the motor vehicle was without the owner's consent: Palmer v Lacco [9] ‑ [11], [62]; Robinson v Hart [2005] WASC 268 (Simmonds J) [21] ‑ [34].
However, in an appropriate case provisions of the Criminal Code dealing with criminal responsibility, such as honest claim of right (s 22), mistake of fact (s 24), emergency (s 25) and duress (s 32) may apply to the facts of the case: Palmer v Lacco [12].

Whether the learned Magistrate made the error contended for by the appellant

The learned Magistrate said in his reasons that the elements of the offence, bar one, were established and that the vehicle was clearly stolen. His Honour said that what needed to be established was knowledge or intent.
His Honour said that in his view, to succeed, there had to be some evidence by way of knowledge or intent, by which he meant the prosecution needed to establish that the respondent knew, when in the vehicle that it was stolen, or that the only reasonable inference the court could draw was that she must have known, when in the vehicle, that it was stolen and being unlawfully used.
It is clear from his reasons that the learned Magistrate decided that to prove that the respondent was guilty of the charge the prosecution had to prove that the respondent knew that the vehicle was stolen and that the decision to acquit was based on the absence of proof of that knowledge. In so deciding the learned Magistrate made an error of law. On the evidence before him the prosecution did not have to prove that the respondent knew that the vehicle was stolen. The ground of appeal has been made out.

The issues raised by the respondent at the trial

During the course of the trial the respondent raised two issues when addressing the learned Magistrate:
1.That her use of the car had been limited to getting her clothes out of it; and
2.That she did not know that the car was stolen because the car keys were with it.
However there was no evidence of these matters.
The word 'uses' in the phrase 'uses a motor vehicle' in s 371A is not to be given a narrow interpretation: BPZ v Giles, unreported; SCt of WA (Anderson J) Lib 970292, delivered 10 June 1997.
In the absence of any evidence that the use of the car was limited to retrieving her clothes out of it the only inference reasonably available from the presence of the respondent's DNA in the vehicle was that she had used it. However if there had been evidence that the respondent had been in the car solely to retrieve her clothes from it then it would have been necessary for the learned Magistrate to make findings as to the extent of the respondent's dealings with the vehicle and then to decide whether those dealings constituted using the vehicle.

Further, if there had been evidence that the respondent believed that the car had not been stolen then it would have been necessary for the learned Magistrate to consider whether the prosecution had proved that the respondent did not have an honest claim of right to use the vehicle or did not have an honest and reasonable mistaken belief that the vehicle was not stolen.
Although the respondent raised the two issues with the learned Magistrate he did not inform her that to raise those issues there would need to be evidence before him. A judicial officer presiding over a trial is bound to ensure that an accused person has a fair trial. To that end the judicial officer is under a duty to give the accused such information and advice as is necessary to ensure that the accused has a fair trial: Macpherson v The Queen (1981) 147 CLR 512 (Mason J), 534.
Once the respondent raised the two issues with the learned Magistrate his duty to ensure that the respondent had a fair trial required him to inform the respondent that if she wished him to consider those issues it would be necessary for there to be evidence of them before him. His Honour had informed the respondent that she was not required to give evidence, however in failing to inform her that for him to consider the issues raised by the respondent it would be necessary for there to be evidence of them before him the learned Magistrate did not ensure that the respondent had a fair trial. If she had been so informed it may be that the respondent would have given evidence.
Further, the respondent had informed his Honour that a person named Shane had stolen the car and dropped her clothes off, that Shane was not present in court on the day of the trial and that she did not know how to call a witness. In those circumstances to ensure a fair trial his Honour was required to consider explaining to the respondent how a witness could be required to attend court by the service of a witness summons and consider giving the respondent the opportunity to serve a witness summons on Shane if she wished to do so.
Although, on the evidence before the learned Magistrate, the only decision available was to convict the respondent, that may not have been the position if the respondent had given evidence or called evidence. It is necessary to remit the prosecution to the Magistrates Court for retrial.