Yilmaz v Berecz
[2016] WASC 192
•28 JUNE 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: YILMAZ -v- BERECZ [2016] WASC 192
CORAM: LE MIERE J
HEARD: 24 FEBRUARY 2016
DELIVERED : 28 JUNE 2016
FILE NO/S: SJA 1068 of 2015
BETWEEN: IHSAN YILMAZ
Appellant
AND
LESLEY MICHELLE BERECZ
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D P SCADDAN
File No :PPH 2204 of 2012, PPH 2205 of 2012, PPH 2206 of 2012, PPH 2207 of 2012, PPH 2208 of 2012, PPH 2209 of 2012, PPH 2210 of 2012, PPH 2211 of 2012, PPH 2212 of 2012, PPH 2213 of 2012, PPH 2214 of 2012, PPH 2215 of 2012, PPH 2216 of 2012, PPH 2217 of 2012, PPH 2218 of 2012, PPH 2219 of 2012, PPH 2220 of 2012, PPH 2221 of 2012
Catchwords:
Appeal against conviction - Gaining benefit with intent to defraud - Whether magistrate relied on failure to present evidence in support of defence - Whether magistrate based findings on other evidence and implausibility of defence - Ground of appeal dismissed
Appeal against conviction - Gaining benefit with intent to defraud - Propensity evidence - Whether adequate reasons given in decision to permit evidence - Whether error to permit evidence of previous convictions - Whether magistrate failed to properly direct herself - Grounds of appeal dismissed - Turns on own facts
Legislation:
Criminal Code (WA), s 409
Evidence Act 1906 (WA), s 31A
Magistrates Courts Act 2004 (WA), s 31
Result:
Leave to appeal granted on each ground
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A L Troy
Respondent: Ms K C Cook
Solicitors:
Appellant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Kalmar v Ballantyne [2006] SASC 160; (2006) 95 SASR 42
Onekawa v The State of Western Australia [2012] WASCA 105
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Vo [2015] WASC 389
WS v Gardin [2015] WASC 97
LE MIERE J:
Summary
The appellant, Ihsan Yilmaz, was convicted in the Magistrates Court of 18 counts of gaining benefits with intent to defraud, contrary to s 409(1)(c) of the Criminal Code (WA). The appellant was sentenced to 16 months' immediate imprisonment on the first charge and 12 months' imprisonment on each of the other charges to be served concurrently with the term of 16 months. The appellant was made eligible for parole. The court ordered the appellant to pay $30,000 in compensation. The appellant now seeks leave to appeal against his convictions on four grounds. For the reasons which follow, leave to appeal will in respect of each ground of appeal be granted and the appeal will be dismissed.
The prosecution case
At trial, the prosecution case was as follows. Between 6 September 2011 and 1 November 2011, the appellant defrauded Bendigo and Adelaide Bank Ltd by using Abdurrahman Tekin's account without his permission or authority. The appellant and Mr Tekin shared a house together. On 29 August 2011, Mr Tekin departed Australia for Turkey and returned on 29 November 2011. Upon his return to Australia, Mr Tekin discovered that in excess of $30,000 was missing from his bank account. He reported this to the Bendigo Bank and the police and it was revealed that the money had been transferred from Mr Tekin's account at the Bendigo Bank to an account in the appellant's name at the Bank of Queensland. The appellant set up an internet account on Mr Tekin's Bendigo Bank account and fraudulently used the internet account to transfer money on 18 occasions from Mr Tekin's Bendigo Bank account to the appellant's Bank of Queensland account without Mr Tekin's permission or authority.
Propensity evidence
At a preliminary hearing before Magistrate Bromfield prior to the trial of the appellant, the prosecution applied to lead propensity evidence against the appellant at his trial, pursuant to s 31A of the Evidence Act 1906 (WA). In support of its application, the prosecution gave the following summary of the proposed propensity evidence. On 24 April 2007, the appellant was arrested and charged with 13 counts of gaining benefit by fraud. He was sentenced on 18 December 2007 to 15 months' imprisonment. The prosecution's case was that, during November 2005, the victim, Mr Hakti Baltali, called upon the assistance of the appellant to complete an application form for a credit card with the ANZ Bank. Whilst assisting Mr Baltali, the appellant retained his personal particulars such as date of birth and nominated password. The appellant created an internet banking facility for Mr Baltali's account with his knowledge. The appellant later contacted the ANZ Bank and purported to be the account holder, Mr Baltali. On 28 November 2005, the appellant fraudulently accessed the ANZ Bank internet banking facilities to access the account of Mr Baltali and, once access had been gained, the appellant transferred money to a bank account controlled by the appellant. The appellant then continued to access the victim's account a further four times between 28 November 2005 and 20 April 2007. The State proposed to have the statement of material facts, certified copies of the prosecution notice and the court transcripts in respect of the offences brought before the court. This application was opposed by the appellant. On 18 September 2013 Magistrate Bromfield granted the application.
Evidence at trial
The trial took place before a different magistrate, Magistrate Scaddan. The prosecution adduced evidence from Mr Tekin, Mr Joel Shrimpton, a Bendigo Bank officer and from four police officers. The prosecution adduced a number of documents into evidence. The prosecution adduced in evidence the propensity evidence concerning the appellant's previous conduct and convictions for which leave had been granted on 18 September 2013.
Magistrate convicts appellant
Magistrate Scaddan reviewed in detail the evidence given by each witness and the documentary evidence. Her Honour found that Mr Tekin was a truthful witness and gave credible evidence about the events that occurred surrounding the transfer of money from his Bendigo Bank account to the appellant's Bank of Queensland bank account. Her Honour rejected the appellant's evidence about the manner and purpose of the transfers from Mr Tekin's account. Her Honour rejected the appellant's evidence that he had Mr Tekin's permission or authority to make the transfers from his Bendigo Bank account to his Bank of Queensland account. Her Honour found the appellant's evidence to be both incredible and implausible.
Based on the evidence which the magistrate accepted as credible and reliable, her Honour found, beyond reasonable doubt, the following facts:
On 29 August 2011 at about 6.00am, Mr Tekin left Australia to travel to Turkey. Eighteen days earlier he received approximately $58,000.00 by cheque for a compensation payment and on 26 August 2011 he withdrew $10,000.00 in cash to take with him to Turkey.
On 29 August 2011 at 15.23 EST, the Accused telephoned the Bendigo Bank and spoke with a staff member requesting the addition of an internet banking service on Mr Tekin's account. At the very least he provided the staff member with the account number of Mr Tekin's Bendigo Bank account and a password.
I am unable to find exactly when the password to Mr Tekin's Bendigo Bank account was set, although according to the Accused he did so when he assisted Mr Tekin to set up the Bendigo Bank account. However, as I have noted the Bendigo Bank records do not wholly support the Accused's evidence, given that on 21 June 2007 the telephone and internet banking access log and comment log for 'pay anyone' indicates that personal identification details were used to verify the account. However, this does not alter my view and finding that Mr Tekin did not know or use any password on his Bendigo Bank account. To the contrary, it supports Mr Tekin's evidence.
On 29 August 2011, the Accused also ordered a security token for the internet banking and 'pay anyone' facility and $20.00 was deducted from Mr Tekin's Bendigo Bank account on the same day. The security token was sent to the address where the Accused and Mr Tekin resided. It reasonable to infer that the security token was sent to Mr Tekin at this address, given it was ordered from his Bendigo Bank account.
On 6 September 2011, the Accused requested the addition of the 'pay anyone' facility and an increase of the limit from $1,000.00 to $5,000.00 on Mr Tekin's Bendigo Bank account.
Mr Tekin was not aware of, nor did he request, the Accuse to add either of these facilities to his Bendigo Bank account.
Thereafter, between the 6 September 2011 to 1 November 2011, the Accused used the 'pay anyone' facility he set up on Mr Tekin's Bendigo Bank account to transfer money on 18 occasions from Mr Tekin's Bendigo Bank account to an account in his name at the Bank of Queensland.
The Accused used the 'pay anyone' internet facility and transferred the money without Mr Tekin's knowledge or authority.
On 12 September 2011, the Accused deposited $2,000.00 in cash into Mr Tekin's Bendigo Bank account. On 11 October 2011, the Accused deposited $9,000.00 in cash into Mr Tekin's Bendigo Bank account and on 15 October 2011, the Accused deposited $18,000.00 ($9,000.00 x 2) in cash into Mr Tekin's Bendigo Bank.
Between 6 September 2011 and 10 October 2011, $32,000.00 was transferred by the Accused. Between 14 October 2011 and 1 November 2011, $27,000.00 was transferred by the Accused. The net effect on Mr Tekin's Bendigo Bank account was a loss of $30,000.00 with the balance at 1 November 2011 being $196.30.
Between 6 September 2011 and 1 November 2011 at various times during the day and night, the Accused made 15 withdrawals from an ATM located at the Burswood Hotel Casino. The total amount withdrawn from an ATM at the Casino was $15,000.00.
The purpose of the transfers and withdrawals made by the Accused was for gambling. The money may have been used for other purchases, but it was not, nor was never, used for the purpose of any business opportunity on behalf of Mr Tekin.
Prior to Mr Tekin's return from Turkey on 27 November 2011, the Accused without notice to Mr Tekin left unit 519, 32 Dumond Street, Bentley.
On 27 November 2011, Mr Tekin returned to Australia and attempted to withdraw $200.00 from his Bendigo Back account from an ATM using the only debit card issued by the bank, which was in his possession.
Mr Tekin was unable to withdraw this amount and had some difficulties explaining to a staff member at the bank the problem. He returned on 28 November 2011 and, assisted by another person to explain his concern, the Bendigo Bank placed a 'Fraud Alert' on the account. A staff member at the Bendigo Bank showed him a document with the name 'Ihsan Yilmaz' and he identified this name as 'his friend'.
Thereafter, Mr Tekin telephoned the Accused, who did not answer his calls, and they met briefly at a later date, but no explanation was proffered by the Accused for why he transferred the money from Mr Tekin's Bendigo Bank account.
On or around 6 August 2012, the Bendigo Bank finalised its investigation and reimbursed Mr Tekin $30,000.00 for the unauthorised transfers made on the account [191] – [207]
The Magistrate found that the appellant's actions induced the Bendigo Bank to set up an internet banking and 'pay anyone' facility on an account when the appellant knew that he had no permission or authority to do so. The appellant did this using information, being a password and security token. At each step, the appellant acted as if he was permitted or authorised to act in relation to Mr Tekin's bank account when he well knew he was not. The Magistrate found, beyond reasonable doubt, that the only reasonable inference that can be drawn from the proven facts is that the appellant intended to defraud the Bendigo Bank by setting up an internet banking facility on Mr Tekin's bank account the same day Mr Tekin left to go to Turkey, knowing that he had no permission or authority to do so and thereafter proceeded to transfer money from the Bendigo Bank account to the Bank of Queensland account without Mr Tekin's knowledge or permission. The appellant used the deceit or fraudulent means against Mr Tekin or the Bendigo Bank and the Bendigo Bank reimbursed Mr Tekin the money from the unauthorised transactions. A consequence of the appellant's actions was that he gained a benefit by obtaining cash that he was not otherwise entitled to. The Magistrate found, beyond reasonable doubt, that the consequence of the appellant's actions was that he was able to transfer, on 18 occasions, money from Mr Tekin's Bendigo Bank account to a Bank of Queensland account in his name and withdrew this money in circumstances where he was not otherwise able to do so. The Magistrate found that the prosecution has proven, beyond reasonable doubt, each element of the offence in relation to each of the 18 charges and found the appellant guilty of each charge.
Grounds of appeal
There are four grounds of appeal:
(1)Her Honour Magistrate Scaddan erred in law in impermissibly relying on the failure by the appellant to present certain evidence supporting his defence to support a finding that the complainant's evidence should be accepted.
(2)There was a miscarriage of justice when His Honour Magistrate Bromfield failed to give adequate reasons for his decision to permit the prosecution to adduce evidence of previous convictions of the appellant under s 31A of the Evidence Act. The appellant gives the following particulars:
(a)His Honour failed to assess the degree of risk of unfairness at trial that would be occasioned by the admission of the evidence in question.
(b)As a consequence, his Honour was not able to properly consider, as required by s 31A(2)(b), the conclusion that fair‑minded people would draw from the comparison of the issue of the probative value of the evidence in question and the degree of risk of an unfair trial.
(c)His Honour failed to consider the ability of the magistrate presiding at trial to attempt to overcome the prejudice necessarily occasioned by the admission of this evidence by a suitable direction to him/herself.
(3)His Honour Magistrate Bromfield erred in law in admitting evidence of previous convictions of the appellant under s 31A of the Evidence Act.
(4)There was a miscarriage of justice when her Honour Magistrate Scaddan failed to direct herself properly or at all concerning the proper treatment of the propensity evidence. The appellant gives the following particulars:
(a)Her Honour did not have regard to the principle that the propensity evidence could not, by itself, prove the case against the appellant;
(b)Her Honour failed to warn herself against reasoning that the appellant must have committed the offences charged simply because he had committed other similar offences at an earlier time.
Ground 1
Ground 1 is that Magistrate Scaddan erred in law in impermissibly relying on a failure by the appellant to present certain evidence supporting his defence to support a finding that Mr Tekin's evidence should be accepted. This ground of appeal is based on [181] of her Honour's reasons.
Before setting out [181] of her Honour's reasons it is convenient to put it in context. A central issue at the trial was whether the appellant had permission or authority of Mr Tekin to set up an internet banking facility on Mr Tekin's bank account and to transfer money from Mr Tekin's account and to withdraw money from his account for the purpose of looking for a business for Mr Tekin and the appellant. The appellant said that when he took Mr Tekin to the airport Mr Tekin said 'you know what to do'. The appellant understood this to mean that he was to go and look for a business and that he should take the money from Mr Tekin's account for that purpose.
The impugned paragraph, [181], follows her Honour's review of the evidence of Mr Tekin and the appellant. At [125] her Honour refers to the appellant's evidence that when he took Mr Tekin to the airport Mr Tekin told him 'you know what to do'. At [169] her Honour said that she rejected the appellant's evidence of his alleged conversation with Mr Tekin on route to the airport. At [170] her Honour said that the explanation given by the appellant for the reason Mr Tekin gave him permission to set up the internet facility on Mr Tekin's Bendigo Bank account stretches the balance of rationality. Her Honour then referred to the appellant's previous convictions in 2007 and 2009. At [173] her Honour said that the appellant stated that the purpose of the transfer of money from Mr Tekin's account and the subsequent withdrawals was for business reasons and to send large amounts of money to Turkey via Western Union should Mr Tekin require it. However, no money was ever sent to Mr Tekin and the businesses apparently scoped by the appellant included non‑specific caravan kabab opportunities between Armadale, Port Hedland and Queensland. The appellant stated that he went to Queensland in December 2011 yet the money had largely been transferred and withdrawn by 1 November 2011 and no other transactions were conducted on the appellant's Bank of Queensland account from 2 November 2011 to 27 December 2011 or Mr Tekin's Bendigo Bank account from 1 November 2011 to 27 November 2011. At [177] her Honour said that the appellant's denials that he used the money transferred from Mr Tekin's account for gambling stretched credulity in the context of the use of the casino ATM at all hours of the day. At [178] her Honour said that she rejected the appellant's evidence about the purpose of the transfers from Mr Tekin's account and subsequent withdrawals from the Bank of Queensland and accordingly 'for this reason' her Honour also rejected the content of any purported conversation on the way to the airport if such conversation ever occurred which her Honour doubted. At [179] her Honour rejected the appellant's claim that he discussed starting a business with Mr Tekin in 2011.
At [181] her Honour said:
In addition, and given the Accused elected to give evidence, it was reasonable to expect at least one record corroborating his account of searching for businesses, making an offer for a business or demonstrating the existence of a business, bearing in mind his comments to the investigating police officers that he had bought a business or at the very least $10,000.00 was used to attempt to purchase a business, and in re-examination the Accused stated that he bought a caravan in Port Hedland. No records of any nature were produced and this also undermined my assessment of the credibility of his evidence about the purpose of the transfer of the monies and the subsequent withdrawals. Again simply put, the Accused’s evidence in this regard stretched the bounds of rationality in the face of more compelling evidence.
The appellant submits that the magistrate impermissibly drew an adverse inference from the appellant's failure to lead evidence. The appellant says that, contrary to principle, the magistrate drew an adverse inference from the appellant's failure to produce documents to support an inference of guilt: see Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Kalmar v Ballantyne [2006] SASC 160; (2006) 95 SASR 42.
In her reasons for judgment, before making the impugned statements at [181], the magistrate had analysed the appellant's evidence. Her Honour set out her reasons for rejecting the appellant's evidence that he had had a conversation with Mr Tekin about starting a business together. Her Honour rejected the appellant's assertion that there was any discussion or agreement between the appellant and Mr Tekin about starting a business in 2011: [169]. The magistrate continued her analysis of the evidence of the appellant, including the impugned statements at [181]. The respondent submits, and I accept, that the intellectual process exposed by [181] reflects her Honour's assessment of the appellant's evidence and the implausibility of the explanation which he put forward. In rejecting the evidence of the appellant, the magistrate did not impermissibly place an onus on him to explain his conduct or undermine his right of silence. Her Honour's statement at [181] of her reasons was an expression that the appellant's evidence was not credible. Her Honour did not use the failure of the appellant to lead evidence or produce documents to draw an adverse inference against him or to fill in gaps in the prosecution case. The magistrate did not engage in an impermissible reasoning process. Her findings were based on her acceptance of Mr Tekin's evidence and the implausibility of the appellant's.
The Magistrate did not impermissibly rely on a failure by the appellant to present certain evidence supporting his defence to support a finding that Mr Tekin's evidence should be accepted. There was no miscarriage of justice on that account. Leave to appeal should be granted on ground 1 but ground 1 of the appeal is not made out.
Appeal ground 2
Appeal ground 2 is that Magistrate Bromfield failed to give adequate reasons for his decision to permit the prosecution to adduce evidence of previous convictions of the appellant under s 31A of the Evidence Act.
Section 31A(2) of the Evidence Act is:
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Counsel for the appellant conceded to the magistrate that the evidence the prosecution wished to adduce had substantial probative value. Therefore, the appellant says the matter turned on the application of s 31A(2)(b) of the Evidence Act. The appellant says that the magistrate dealt with that aspect peremptorily:
Given the nature of the manner in which the accused committed offences which are not so remote in time from the allegations contained in this prosecution notice, and balancing against the degree of risk of an unfair trial, in my view, a fair‑minded person would think that it was in the public interest that that available evidence be before the tribunal.
The appellant says that, apart from restating the statutory test, the magistrate said nothing about the degree of risk of an unfair trial. His Honour confined his assessment of the probative value of this evidence to its temporal proximity and 'nature of the manner' of the commission of the offences.
A magistrate must give adequate reasons for his decision. Both parties submitted that s 31 of the Magistrate Courts Act 2004 (WA) elucidates the content of the magistrate's obligation to give reasons for ruling the propensity evidence admissible pursuant to s 31A of the Evidence Act. Section 31 of the Magistrate Courts Act is:
31. Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In Strahan v Brennan [2014] WASC 190, Martin CJ, in relation to s 31(1) of the Magistrate Courts Act, observed:
Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] ‑ [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).
Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced - Francis v Todd [2011] WASC 185 [18] (Edelman J) [170].
The magistrate did not reserve his decision; he delivered his reasons straight away after hearing argument. His Honour's reasons must be seen in the context of the materials before him and the argument that preceded his reasons. The materials before the magistrate included detailed written submissions from the prosecution which included reference to the test to be applied by the court under s 31A(2) of the Evidence Act and relevant authorities, including Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 (Donaldson) and Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 (Dair). Counsel for the prosecution made oral submissions in which he identified the similarities between the conduct of the appellant disclosed in the propensity evidence and the conduct of the appellant alleged to constitute the offences with which he was charged.
Counsel for the appellant conceded that the propensity evidence would have significant probative value. Counsel conceded that the propensity evidence was evidence of conduct by the appellant similar to that with which he was charged in that it involved accessing another person's bank accounts by the internet and transferring money from one account to an account the appellant had control of. Counsel's submission was, in effect, that the previous conduct of the appellant was so similar to that with which he was charged that he would not receive a fair trial. Counsel for the appellant referred to Onekawa v The State of Western Australia [2012] WASCA 105 in the context of submitting that it must be assumed that the magistrate would assess the risk of an unfair trial resulting from an over‑strong tendency to believe the accused was guilty merely because of the propensity evidence, it must be assumed that the magistrate would be aware of that matter and give herself relevant directions.
The magistrate's brief reasons must be seen in that context. In giving his reasons, the magistrate recited the provisions of s 31A(2) of the Evidence Act and then stated that it is conceded by counsel for the appellant that the material proposed to be presented would have significant probative value. The magistrate then addressed the second issue arising out of s 31A(2)(b) of the Act, which the magistrate recited. The magistrate then stated:
But when I look at the balancing act that's required to be taken for the purpose of section 31(2)(b) of the Evidence Act, given the nature of the manner in which the accused committed offences which are not so remote in time from the allegation contained in this prosecution notice, and balancing against the degree of risk of an unfair trial, in my view, a fair minded person would think that it is in the public interest that that available evidence be before the tribunal.
A fact at the hearing as, in my view, that issue outweighs any risk of an unfair trial. And, for those reasons, I grant this application (ts 11).
It is common ground that the words, 'A fact at the hearing', have been incorrectly transcribed. That transcription error makes it difficult to assess the whole of what the magistrate said. Nevertheless, I am not satisfied that any error has been demonstrated. His Honour referred to s 31A in its entirety in his reasons. On reaching his decision, the magistrate had the benefit of comprehensive submissions which immediately preceded his reasons. It is unnecessary for the magistrate to repeat the principles expounded by counsel immediately before his Honour delivered his reasons. His Honour's reasons demonstrate that he appreciated the applicable legal principles and facts of the case. It is clear that the magistrate considered the similarity of the appellant's conduct disclosed by the propensity evidence and the conduct with which he was charged which gave rise to the propensity evidence having a substantial probative value. In view of the written submissions before his Honour and the oral submissions which immediately preceded the delivery of his reasons, it cannot be found that his Honour failed to advert to the degree of risk of an unfair trial. The effect of the appellant's submissions to the Magistrate were in effect that the risk of an unfair trial arose from the high degree of similarity between evidence of the appellant disclosed by the propensity evidence and the conduct of the appellant with which he was charged. The Magistrate could not have failed to advert to that matter. His Honour's reasons show that his Honour concluded that the probative value of the evidence compared to that degree of risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing the propensity evidence must have priority over the risk of an unfair trial. I am not satisfied that the magistrate made any error in failing to give adequate reasons.
In any event, not every failure to give reasons will ground an appeal – it is necessary to show that the failure to give reasons gives rise to a miscarriage of justice. In this case, for the reasons which follow I have concluded that the evidence was properly admitted. No miscarriage of justice arose by reason of the failure by the magistrate to expand on why he thought the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing propensity evidence must have priority over the risk of an unfair trial. Leave to appeal should be granted on ground 2 but ground 2 of the appeal is not made out.
Ground 3
The appellant says that Magistrate Bromfield erred in law in admitting the evidence of previous convictions of the appellant under s 31A of the Evidence Act. The appellant submits that Magistrate Bromfield should have assessed the degree of risk of an offence, should have held that the prejudicial effect could not be effectively neutralised by directions and should have held, for the reasons enunciated by Steytler P in Dair, that fair‑minded people would not think that the evidence should be admitted, given the high risk that the trial would be unfair. The appellant says that his Honour erred in law in permitting the prosecution to adduce this evidence.
In Dair, Steytler P said:
Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199, identify a threefold prejudice (only part of which is present in this case) involved in the introduction of similar fact evidence, as follows:
1.The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts' (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: 'it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing')). This comes down to the belief that the jury will over-estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:
research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (Ibid at 322).
2.The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences' (Wigmore … p 650). Thus, 'there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged' (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: 'sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest' (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
3.The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts' (Ibid; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512) [63].
Often, the risk of prejudice will consist of the risk that a jury will give more weight to propensity evidence than is logically justified by the evidence. The risk was described in the following terms by Roberts‑Smith JA, with whom Wheeler JA and Miller AJA relevantly agreed, in Donaldson:
The risk of an unfair trial here referred to must be that which comes from the introduction of evidence which has little or no probative value, or at least not such as to outweigh the possible prejudice that it might be misused by the jury [166].
In WS v Gardin [2015] WASC 97, Mitchell J said:
That risk of misuse does not arise, at least to the same degree, where the trial is conducted by a trained judicial officer sitting alone. It may be assumed that a judicial officer will give the evidence only such weight as it deserves [111].
In this case, the risk of an unfair trial centres upon a consideration of whether the magistrate would make inappropriate use of the propensity evidence when arriving at a verdict. This is not a case where the propensity evidence only just crosses the threshold of having significant probative value. Indeed, the appellant's submissions to the Magistrate were based on the realisation that the evidence had very strong probative value. The appellant did not, and has not, identified anything about the probative value of the evidence compared to the degree of risk of an unfair trial such that a fair‑minded person would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The appellant has not established that Magistrate Bromfield made any error in determining that the propensity evidence should be admitted pursuant to s 31A(2) of the Evidence Act.
Leave to appeal on ground 3 will be granted but the ground of appeal is not made out.
Ground 4
Ground 4 is that there was a miscarriage of justice when Magistrate Scaddan failed to direct herself properly, or at all, concerning the proper treatment of the propensity evidence. The appellant gives two particulars:
(1)Her Honour did not have regard to the principle that the propensity evidence could not, by itself, prove the case against the appellant; and
(2)Her Honour failed to warn herself against reasoning that the appellant must have committed the offences charged simply because he had committed other similar offences at an earlier time.
In Dair at [63], Steytler P referred to a threefold prejudice involved in the introduction of similar fact evidence. The second element, the tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences, does not apply in this case. The third element, that the jury might become confused or distracted as it concentrates on resolving whether the accused actually committed the similar acts, does not apply in this case and the appellant did not suggest that it does. The primary prejudice referred to by Steytler P is the over‑strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts, the belief that the jury will overestimate the cogency of the similar fact evidence, that the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, Kirby J said:
The research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (322).
In The State of Western Australia v Vo [2015] WASC 389, Fiannaca J gave detailed reasons for his decision to admit evidence of the accused's prior convictions pursuant to s 31A(2) of the Evidence Act. In the course of his reasons for admitting the evidence, Fiannaca J said:
In assessing the degree of risk of an unfair trial, I must have regard to any directions that might be given to a jury. Appropriate directions in this case would identify the potential relevance of the evidence and the very specific way in which it was being relied upon. The jury would be instructed of the need to critically analyse the forensic evidence presented by the State. It would be directed that propensity evidence could not, by itself, prove the case against the accused. The jury would also be warned against reasoning that the accused must have committed the offences charged simply because he or she has committed other offences. In my opinion, such directions would guard against the prospect that a jury might uncritically overvalue the probative effect of the evidence, or engage in improper prejudicial reasoning. In the circumstances of this case, I do not consider the risk of an unfair trial to be high if the evidence is admitted and appropriate directions are given. A jury, properly instructed, would consider the differences between the offences of which the accused has been convicted and those in the indictment, as identified in the accused's argument on this application. It may consider the fact that none of the other offences involved arson. It would, of course, take into account any alibi evidence that may be led.
Section 31A(2)(b) does not require me to be satisfied that the risk of an unfair trial will be entirely eliminated. It recognises that there may remain a risk of an unfair trial, even after appropriate directions, but that fair-minded people would consider that the public interest in adducing the evidence must have priority [90] – [91].
There are at least two relevant differences between a decision by a jury and a decision by a magistrate. First, a magistrate is legally trained and familiar with the relevant principles at law, whilst members of a jury are neither legally trained nor familiar with relevant principles of the law. Secondly, unlike a jury, a magistrate gives written reasons for decision which expose her reasoning process. In this case, it is not sufficient for the appellant to show that the magistrate did not expressly direct herself about the proper use of the propensity evidence. The court must scrutinise the magistrate's reasons and decide whether it appears from her Honour's reasons that she may have made improper use of the propensity evidence.
At [4] and [6.6], her Honour noted that the application pursuant to s 31A had been granted and that the prosecution relied upon the appellant's previous convictions of fraud and sentencing remarks in the Magistrates Court and District Court to demonstrate a similar course of conduct to the present allegations with respect to other bank accounts. Her Honour referred to the previous offending conduct in detail at [103] – [109], and noted the appellant's gambling problem as referred to by the sentencing judge at [109] and [171], and also noted the fact that, because of his excellent English skills, the accused was often called upon by the Turkish community to assist with such matters as completing application forms [104]. In rejecting the evidence of the appellant, her Honour noted that it was inconsistent with previous remarkably similar behaviour [163]. Her Honour found that the appellant's denials that he used the money transferred from the complainant's account for gambling stretched credulity [177]. Her Honour rejected the idea suggested by the appellant that Mr Tekin was the instigator of the earlier offences for which the appellant was convicted [184]. Her Honour noted that amongst the matters relied on by the prosecution to establish the intention to defraud attributed to the appellant, was the use of similar methods to transfer money from unsuspecting complainants for which he was convicted in 2007: [217].
The respondent submits, and I accept, that it is apparent from the magistrate's reasons that she found that the evidence, other than the propensity evidence, was overwhelming as to the appellant's guilt. Her Honour analysed the evidence, expressly stated her findings of fact and the reasoning which led to her finding. A fair reading of her Honour's reasons shows that she did not uncritically overvalue or adopt improper prejudicial reasoning in arriving at her conclusion. The appellant has not established any error in the determination of the magistrate in her reasons for decision.
Leave to appeal will be granted in respect of ground 4 of the appeal but the ground is not made out.
Conclusion
Leave should be granted in respect of each ground of appeal, but the appeal should be dismissed.
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