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[2014] TASFC 7
Supreme Court of Tasmania (Full Court)
2014-08-26
Blow CJ, Pearce JJ, Porter J
Original judgment source is linked above.
CITATION: Caccavo v Collins [2014] TASFC 7
APPEALED FROM: Collins v Caccavo [2014] TASSC 1
Appeal and New Trial - Appeal - General principles - Right of appeal - When appeal lies - Error of law - What is - Distinction between question of law and question of fact.
Justices Act 1959 (Tas), s123.
Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12, applied.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, considered.
Appeal and New Trial - Appeal - General principles - Right of appeal - When appeal lies - Error of law - Particular cases involving error of law - Failure to give reasons for decision - Adequacy of reasons
Pettitt v Dunkley [1971] 1 NSWLR 376; Robinson v Chatters [2010] TASSC 66, applied.
Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of court - Other matters - Principles applicable to an appeal against a review by the Supreme Court of the factual findings of a magistrate.
Justices Act 1959 (Tas), s123.
Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12, applied.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, considered.
Judgment Number: [2014] TASFC 7
1 For the reasons stated by Pearce J, I agree that this appeal should be dismissed.
2 I agree with Pearce J. The primary judge determined that on no reasonable view of the evidence could the magistrate have failed to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant has not shown any error of law in that determination.
3 The appellant, Rocco Caccavo, was charged on complaint with receiving stolen property contrary to the Criminal Code, s258. The complaint alleged that, in Hobart on or about 8 April 2011, the appellant received a pallet of smoked salmon sides, valued at approximately $8,080, knowing the property to have been stolen. He elected summary trial: Justices Act 1959, s72, Schedule 3, Part II. The complaint was heard by Magistrate Cooper on 7 May 2013. On 17 May 2013, the learned magistrate dismissed the complaint. His reason for doing so was that the prosecution had not proved to his satisfaction beyond reasonable doubt that at the time the appellant received the property, or had possession of it, he knew it was stolen.
4 The prosecution moved for a review of the learned magistrate's decision under the Justices Act, Part XI. The motion to review was determined by Tennent J. On 30 January 2013, her Honour upheld the motion. She found that on no reasonable view of the evidence could the learned magistrate have failed to have been satisfied as to the mental element of the offence. She found the appellant guilty and remitted the complaint to the magistrate for sentence. This is an appeal against the orders of Tennent J.
5 The amended grounds of appeal assert nine grounds, two of which, grounds 5 and 6, are abandoned.
The proceedings before the magistrate and in the primary appeal
6 The evidence before the magistrate established that the appellant operated a wholesale catering business under the name Caccavo Catering Supplies. He leased frozen and cool room storage space from TasPorts. TasPorts is a Tasmanian Government Business Enterprise which operates a refrigerated warehousing facility on the dock in Hobart. One of TasPorts' other customers was Tassal, a large aquaculture company which produces and sells salmon in various forms, including smoked salmon, some of which was frozen and stored in the TasPorts' cold store before being shipped around Australia. On 8 April 2011, at the TasPorts' warehouse, the appellant purchased a pallet of Tassal frozen smoked salmon from Jeremy Young for $800. Mr Young was an employee of TasPorts. It was not in dispute in the proceedings that Mr Young had stolen the salmon he sold to the appellant from the TasPorts' warehouse and that it belonged to Tassal. What was in issue was whether the appellant knew the salmon was stolen.
7 Before the magistrate, the respondent carried the onus of establishing beyond reasonable doubt that the appellant knew that the property was stolen. The prosecution case as to the appellant's knowledge was circumstantial. There were two grounds of review of the magistrate's decision:
"1 The learned magistrate erred in fact and / or in law in finding the respondent not guilty of the offence where [on] no reasonable view of the evidence could he have failed to be satisfied beyond reasonable doubt of the guilt of the respondent.
2 The learned magistrate erred in fact and / or in law in finding that he was not satisfied beyond reasonable doubt that the necessary mental element had been established in the case."
8 Both grounds raised questions of fact. In determining the motion to review, Tennent J applied the test established by a long line of settled authority; that is, whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did: see for example Wood v Smith (1991) 14 MVR 279; Phillips v Arnold [2009] TASSC 43; (2009) 19 Tas R 21 at [46]; Nilsson v McDonald [2009] TASSC 66; (2009) 19 Tas R 173. In Kent v Gunns Ltd [2009] TASSC 30; (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magistrate of this kind in the following terms:
"The grounds of the motion relate to questions of fact. As such, the decision is to be treated in the same way as an appeal from the verdict of a jury. This is not an appeal by way of rehearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] TASRp 11; [1983] Tas R 78 at 81, I should 'allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent'."
9 Tennent J, after reviewing the evidence, reasoned that the learned magistrate's conclusion that the appellant's knowledge had not been proved could not stand. Her Honour was satisfied that the prosecution had established the appellant's guilt beyond reasonable doubt and that on no reasonable view of the evidence could the magistrate have failed to be satisfied of the same conclusion. In a circumstantial case, her Honour must have been satisfied that the evidence left no room for any reasonable hypothesis consistent with the appellant's innocence. "Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211.
10 Grounds 1, 2, 7, 8 and 9 can conveniently be dealt with together. The grounds assert:
Ground 1 That the verdict of the learned judge was unreasonable and cannot be supported on the evidence. (The ground then specifies four instances of asserted error in drawing or failing to draw inferences).
Ground 2 That the verdict of the learned judge was unsafe and unsatisfactory in the circumstances.
Ground 7 The learned judge erred in law and in fact by inferring that the learned magistrate either ignored or discounted the evidence of Mr Young completely for reasons which were not explained.
Ground 8 The learned judge erred in fact and in law by placing disproportionate weight upon the learned magistrate's dealing with s165 of the Evidence Act 2001.
Ground 9 The learned judge erred in being satisfied beyond a reasonable doubt after considering all of the evidence that the appellant whilst in possession of the stolen salmon had the requisite knowledge and belief that the salmon in the appellant's possession was stolen.
11 This appeal is brought pursuant to the Justices Act, s123(1). That provision permits an appeal to the Full Court, but only "in point of law or upon the admission or rejection of evidence". In Brown v Bryan and Shepherd; Burles v Bryan [1963] TASStRp 2; [1963] Tas SR 1, Crisp J said of an appeal to the Full Court under s123(1) that it:
"... gives a right of appeal upon point of law. Thus, in so far as the notice of appeal raises questions of fact it must be ignored".
12 The terms "in point of law" and "question of law" are the subject of many authorities, analysis of which emphasises the sometimes difficult distinction between questions of fact and questions of law: Hanlon v McKay Investments Pty Ltd [2001] TASSC 37; (2001) 10 Tas R 247. The approach to be adopted by the Full Court when dealing with an appeal from the decision of a single judge under s123(1) was examined in Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12. At [19], Cox CJ pointed out that in such an appeal the Full Court has no warrant to interfere with factual findings by a primary judge on a review of the evidence until the decision is shown to have been vitiated by error of law. His Honour adopted the statement of Glass JA, with whom Samuels JA agreed, in the Supreme Court of New South Wales, Court of Appeal, in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 155 - 156, an appeal confined to questions of law from the Workers' Compensation Commission:
"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney: Ex parte White; [1966] HCA 69; (1966) 116 CLR 644 at 654."
13 In Azzopardi, Kirby P, although he was in the minority for other reasons, relevantly said:
"The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence."
14 In referring to and applying Azzopardi, Wright J commented in Hosken at [33]:
"The majority of the court held that the relevant section did not allow the Court of Appeal to correct errors of fact and any argument that a finding of fact was perverse, contrary to the overwhelming weight of the evidence, was against the evidence or the weight of the evidence, or that it ignored the probative force of the evidence, which is all one way, or that no reasonable person could have made that finding, or that the reasoning by which the court arrived at the finding was demonstrably unsound, did not disclose a valid ground of appeal because such contentions did not disclose any error of law."
15 Whether there is any evidence of a particular fact is a question of law. The court in Azzopardi referred with approval to the following passage in the decision of Jordan CJ, with whom Davidson and Stephen JJ concurred, in McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9:
"The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd ([1931] 1 KB 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 KB 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact."
16 As was pointed out by Wright J in Hosken at [38], the "findings are final unless some legal error, such as a complete absence of evidence to support such findings, can be demonstrated". In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, Mason CJ, with whom Brennan and Toohey JJ agreed, said at 355 - 356:
"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 the 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 drawing of inferences in the absence of evidence is an error of law." [Citations removed.]
17 The proposition that an error of law is made when a tribunal decides a question of fact when there is "no evidence" in support of the finding was recently confirmed by the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at 402 [33] and at 418 [91].
18 In Australian Broadcasting Tribunal v Bond (above), Mason CJ noted at 356 that "want of logic is not synonymous with error of law" and continued that "[S]o 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". Mason CJ made reference to but did not endorse English cases which supported a "no sufficient evidence" test in the context of judicial review of findings of fact and other statements in English cases that findings and inferences are reviewable for error on the ground that they could not reasonably be made on the evidence or reasonably be drawn from the primary facts.
19 The distinction between the "no evidence" test and the "no sufficient evidence" test was adverted to by Batt J of the Supreme Court of Victoria in Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508, at 517:
"Although one can, I think, discern some variation in the approach taken over the last two decades by Australian Courts having jurisdiction to hear appeals on questions of law to whether a particular error is one of law or one of fact ... those courts have on the whole set their face against allowing questions of fact to be dressed up as questions of law, and have thus rejected appeals on such questions as whether a particular decision was against the evidence or against the weight of the evidence ... It is, however, authoritatively established that the question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can (as opposed to whether it should) be drawn from the facts found." [Emphasis in original.]
After referring to the comments of Mason CJ in Australian Broadcasting Tribunal v Bond, Batt J continued at 520:
"... I think that I should proceed on the basis that a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts."
20 In S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90, Phillips JA said that making a finding of fact would ordinarily give rise to an error of law only if "it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it". His Honour emphasised that the question was not whether the finding was "reasonably open", for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all. In Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 the Supreme Court of Victoria Court of Appeal endorsed the approach of Phillips JA. At 59 [44] Warren CJ, with whom Chernov JA and Bell AJA agreed, also approved the statement of Kirby P in Azzopardi v Tasman UEB Industries (above) to which I have already referred. These and other Victorian authorities were reviewed by Cavanough J in State of Victoria v Subramanian [2007] VSC 468; (2007) 19 VR 312 who applied the reasoning of Phillips JA in S v Crimes Compensation Tribunal, as did Forrest J in Stone v McIntyre [2007] VSC 406; (2007) 17 VR 280 who said, at 287 [33] that "it seems that in this State the test, regardless of where the burden of proof lies, in establishing an error of law is whether it was open to the court to reach the finding which is impugned".
21 However, a line of authority in New South Wales raises another issue. The mention in Stone v McIntyre of where the burden of proof lies in an appeal is a reference to that issue, examination of which commences with the decision of the New South Wales Court of Appeal in Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697; [2000] NSWCA 116. In that case, Hodgson CJ in Eq, with whom Sheller JA and Beazley JA agreed, pointed to the distinction drawn in Azzopardi between the position of an appellant attacking an adverse finding on a matter as to which the appellant bore no onus of proof and the position of an appellant attacking a failure to make a finding in the appellant's favour on a matter as to which the appellant bore the onus. As was pointed out by Evans J in Hanlon v McKay Investments Pty Ltd (above) at [15], the Full Court in Hosken did not advert to any such distinction. Unlike this appeal, which is an appeal by a party bearing no onus of proof, Hosken was an appeal by a party bearing the onus of proof. In Ambulance Service of New South Wales v Daniel Hodgson CJ in Eq concluded that in an appeal against a finding of fact in favour of the party bearing the onus, the question is not whether there is any evidence at all, but whether the evidence is sufficient. That is because, in such a case, the question for an appeal court is whether, assuming evidence is accepted, it is capable of supporting the finding under challenge. At [56] - [57], Hodgson CJ referred to and explained Azzopardi in the following terms:
"In the main judgment in that case, that of Glass, JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass, JA at p156:
'To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence.'
That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi."
22 The distinction was taken up again by the New South Wales Court of Appeal in So v So [2004] NSWCA 67. The principal judgment was written by Santow JA with whom Meagher JA and McColl JA agreed. At [31] his Honour said:
"Even in sufficiency of evidence cases, where the party with the onus of proof can demonstrate that 'a judge's reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding ... they will disclose an error of law'; Hodgson CJ in Eq in Ambulance Service of New South Wales (supra) at 718 [81]. The proposition that a finding contrary to the weight of evidence, even a perverse finding, is not an error of law, is subject to exception. As Glass JA explains in Azzopardi, an error of law may occur after the facts are found at the second stage, following fact-finding, should the tribunal misdirect itself as to the law. It can also occur at the third and final stage when applying the law to facts found, if the tribunal fails to reach the only conclusion reasonably open:
At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test ... will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open ... Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of the law to the facts found. [at 157]"
23 Ambulance Service of New South Wales v Daniel (above) was applied again by the majority of the Court of Appeal in Crown Glass & Aluminium Pty Ltd v Ibrahim [2005] NSWCA 195. At [40] Tobias JA said:
"The present case is one where what is challenged is a finding of fact made in favour of a person bearing the onus of proof, namely, the respondent. Accordingly, the only question of law which can arise is whether the evidence accepted by the primary judge was evidence that could properly base the finding of fact. In other words, given the primary finding of fact that the respondent had a substantial amount of cash on him at the time he was robbed, was there evidence which, if fully accepted, could properly base that finding?"
24 If the question before this Court is whether it was "open" to the learned primary judge to reach the conclusion that she did, or whether there was "any evidence" on which she could make her finding, then it can immediately be seen that none of grounds 1, 2, 7, 8 or 9 can succeed. The appellant faces the full force of all the authorities to the effect that questions of fact are not to be dressed up as questions of law and appeals on the ground that findings are "against the weight of evidence" or "against the evidence" or "unreasonable" are to be rejected. To those terms I would add, because it is used in ground 2, the phrase "unsafe and unsatisfactory". Although that term has no precise meaning, the submissions in support of the ground make it clear that it is intended to mean, in the present context, a finding that is unreasonable having regard to the evidence: see M v R [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 492. On that basis the grounds of appeal, resorting as they do to such terms as I have described, do not reveal an error of law even if the impugned finding is wrong or unsound or illogical: Australian Broadcasting Tribunal v Bond (above). See also the decision of Kirby P, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 that "an error of fact-finding would not be elevated to an error of law, if based on evidence open to the trial judge, even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable". It is pointless to contend that the evidence should not have been accepted because that raises no point of law. The appeal can succeed only if it is established that, assuming acceptance of the prosecution evidence, there was no evidence capable of supporting the conviction. None of the grounds assert that there was no evidence on which the appellant could have been convicted, or, put another way, assuming acceptance of the evidence, that it was incapable of supporting a finding of guilt. All of the grounds attack her Honour's assessment of the evidence and assert in various ways that her factual findings, including the ultimate finding, are unreasonable or incorrect. The grounds assert, in substance, that her Honour should not have been satisfied, not that she could not have been satisfied.
25 In this case, the appeal is against the learned primary judge's finding in favour of the party bearing the onus of proof - that is, that the prosecution had proved that the appellant knew the goods were stolen. It is, thus, the situation to which the New South Wales Court of Appeal authorities to which I have referred apply. In that case, if those authorities are to be applied, the question becomes whether, assuming acceptance of the prosecution evidence, there is "sufficient evidence" to "properly base the finding of fact".
26 I do not consider it necessary or prudent to attempt to express broad principles of universal application. In Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 the plurality said at 394:
"The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v Federal Commissioner of Taxation, Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said:
'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law'." [Citations omitted.]
27 Much depends on the nature of the appeal and the legislation which applies to it. This appeal does not concern the interpretation of any statutory provisions or the meaning or construction of a term. No question arises of whether facts, fully found, fall within a statutory provision: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J (as he then was); see also Azzopardi per Glass JA at 157. To me, in the context of this case, the distinction referred to in the New South Wales cases as depending on where the onus of proof lies, if it exists, makes no material difference. The question before the learned primary judge was whether a reasonable magistrate could have come to the conclusion other than that the guilt of the appellant had been proved. Her Honour concluded that on no reasonable view of the evidence could the magistrate have not been satisfied beyond reasonable doubt of guilt. In such a case, having correctly directed herself on the law to be applied, the evidence will be insufficient in support of her Honour's impugned finding so as to constitute an error in point of law, only where there is no evidence capable of sustaining it. If there is any evidence which, if accepted, is capable as a matter of law of sustaining the finding, then the evidence will be sufficient in the relevant sense. This is so even if an appellate court may have taken a different view of the facts or a different view about what inferences are to be drawn. I would stop short of adopting the term "perverse" used by Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd in reference to a finding because it suggests a finding unsupported by any evidence. Assuming the existence of such evidence then any challenge to the finding can only be on a question of fact. In this case there was ample prosecution evidence, if accepted, capable of supporting her Honour's factual findings and the inference she drew that the appellant knew the goods were stolen. She specifically referred to some of the evidence, including the evidence of Mr Young about the circumstances of the sale, the evidence that the goods were purchased at a substantial undervalue, that the product was one the appellant did not usually stock, that the appellant paid in cash and no receipt or invoice was produced, and corroborative evidence of phone communications was probative of guilt. I would also make reference to the following evidence, all of which was, if accepted, relevant to, and capable of properly supporting a finding about, the defendant's knowledge:
28 Even if it were correct, and I make no such finding, that her Honour made a factual error or an unreasonable finding in some aspect of her reasoning, it matters not provided there was evidence on which she could reach the ultimate conclusion she did. There was such evidence.
30 This ground asserts that Tennent J "erred in law by failing to apply the appropriate principles relevant to the state of mind to be proved". The law concerning the mental element for a charge of receiving stolen property under s258 of the Code is well settled. The prosecution must prove that the defendant received or had possession of the goods, knowing they were stolen. It is not enough that the defendant suspected they may be stolen, but a real belief, to the exclusion of other possibilities, they were stolen is equivalent to knowledge: R v Quillerat [1962] Tas SR 370 (NC 16) ; R v Martin [1980] Tas R (NC) 12, (1980) 14 Tas R 77; R v Dick (1982) 14 Tas R 105; Grundy v R [1994] TASSC 111, 68/1994. It is open to a court to infer from the circumstances that the defendant had the requisite belief and is entitled to take into account that the defendant wilfully abstained from making enquiries in circumstances which might reasonably suggest a strong probability the goods were stolen.
31 In this appeal, the appellant made no challenge to the correctness of the authorities to which I have referred. However it was submitted on his behalf that Tennent J did not apply the principles in those cases, and in R v Quillerat (above) in particular. A note of the ruling of Burbury CJ in R v Quillerat appears in [1962] Tas SR 370 (NC 16). In the unreported version of the ruling, 84/1962, the relevant passage is set out in full:
"Now our Code requires proof that the accused knew that the goods were stolen. It is not sufficient that the accused ought to have known - he must have known. But for the purposes of this crime of receiving I think the true view is that belief that the goods are stolen is sufficient to constitute knowledge - that is to say it need not be knowledge to the point of certainty. It is sufficient if there is a real belief held by the accused that the goods were stolen.
I think what Bramwell, B said in the case of R v White [1860] EngR 222; (1 F & F 665; 175 ER 898) is good law for the purposes of our Code. In directing the jury that learned judge said -
'The knowledge charged in this indictment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen; it is sufficient if you think the circumstances were such, accompanying the transaction, as to make the prisoner believe that it had been stolen.'
Some support for this view is also found in the case of the Court of Appeal in New Zealand in the case of The King v Nosworthy 26 NZLR 536. That was a case where a man was indicted on a charge of supplying a noxious thing to another person knowing it was intended to procure a miscarriage in a woman and the Court there held that the word 'knowing' in the relevant section should be construed as equivalent to 'believing' - that is to say it need not be knowledge to the point of certainty.
It is clear that carelessness or even recklessness in entering into the transaction is not enough to create this crime, there must be a real belief induced in the accused by the circumstances that the goods were stolen. If the circumstances were such as to suggest to a reasonable man a strong probability that the goods were stolen and the accused nevertheless wilfully abstained from making enquiries I think a jury might properly infer that the accused's real belief was that they were stolen.
I think that the so-called 'Doctrine of Wilful Blindness' is nothing more than an evidentiary principle - it is not a principle of law. Abstention from enquiry may be taken into account by a jury as a circumstance from which they may infer (together with other circumstances) that the real state of mind of the accused was that he believed the goods were stolen. It is important not to substitute some other formula or qualification for the clear words of the Code. If you accept the position that what is meant is belief that the goods were stolen, then in a case where the circumstances were such as to inescapably lead an ordinary person to a state of mind that there was a very strong suspicion that the goods were stolen or a strong probability that the goods were stolen and the accused does nothing about making enquiries the jury may, but of course are not bound to, infer that his real belief was that the goods were stolen." [Original emphasis.]
32 In R v Dick (above), Cosgrove J said at [19]:
"In the case of R v Quillerat Serial No 84/1962, per Burbury CJ and R v Martin 58/1980, ([1980] Tas R (NC) 12, (1980) 14 Tas R 77) per Everett J, their Honours held that the word 'knowing' in s258(1) should be interpreted as 'believed'; and they referred in doing so, to the New Zealand case of R v Nosworthy [1907] NZGazLawRp 61; (1907) 26 NZLR 536. I accept what their Honours say in both those cases, but I think it ought to be pointed out that 'belief' is defined in the Shorter Oxford English Dictionary as 'Mental acceptance of a proposition, statement or fact as true on the ground of authority or evidence'; and 'believe' is defined as 'To have confidence or faith in and consequently rely upon. To believe in the existence or occurrence of something.' It seems to me that the only difference between 'knowing' and 'believing' is this. The jury on being told that the accused must be proved to have known that the property was stolen, might be led to the conclusion that 'know' meant 'believing and being correct in believing'. That is to say, one can only know something if it does in fact exist, or only know a proposition if it is, in fact, true. Because if it is not in fact true, you do not know it, you believe it wrongly. But I would like to emphasise, for the guidance of counsel, that in my opinion the belief required is no less than what would normally be called 'knowing'. That is to say, 'belief' means acceptance to the exclusion of other propositions. Not that he thought they were very likely stolen, or that he was just about convinced they were stolen, but that he believed they were stolen and would not accept anything else. Anything short of faith in the proposition is less than belief. Counsel may wish to address me on that argument before the case is over, but that is as I read it."
33 Cosgrove J's reasoning in Dick was approved by Underwood J (as he then was) as a member of the Court of Criminal Appeal in Grundy v R (above) at [14]:
"Strictly speaking, unless the appellant saw the chainsaws being stolen he could not know that they were stolen. For the purpose of the crime of receiving, guilty knowledge arises if an accused believes that the goods were stolen to the extent that his or her mind will admit to no possibility other than that the goods are stolen. See R v Dick, Cosgrove J 99/1982. Although the relevant section speaks of knowledge, the question is one of belief. See R v Schipanski (1989) 17 NSWLR 618; English v The Queen (1994) 68 A Crim R 96. Suspicion is insufficient."
34 Tennent J concluded that the magistrate erred in failing to be satisfied beyond reasonable doubt that the appellant knew the goods were stolen. I can identify no basis for the suggestion that, in reaching that conclusion, Tennent J did not apply the principles just enunciated. The appellant's submissions did not identify how it is that her Honour erred. In expressing her conclusion her Honour referred particularly to the part of the passage in Quillerat in which Burbury CJ noted that in certain circumstances a jury may infer knowledge from the failure of an accused person to make enquiry. The appellant submits that the failure to make enquiry does not inevitably lead to the inference of "the requisite guilt". Her Honour did not suggest to the contrary. Earlier in her reasons her Honour set out in full the relevant passage from Quillerat which is quoted above. The suggestion that she, in some unidentified way, later failed to apply it has no merit. To the extent that the submission contends that her Honour erred in her application of facts to the law, and should have come to a different conclusion, it is not an error in point of law. This ground of appeal fails.
35 Ground 4 contends that "the learned judge erred in law by failing to give sufficient reasons and/or failing to sufficiently state the basis for making relevant findings". The duty for magistrates and judges to give reasons and the content of the duty has been considered and applied in many cases: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (above); Australian Securities Commission v Schreuder [1994] TASSC 127; (1994) 14 ACSR 614; Phillips v Arnold (above); Robinson v Chatters [2010] TASSC 66; Lusted v Mokomoko [2012] TASSC 72. See also AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 470 [89] per Heydon J, citing Gleeson, "Judicial Accountability", The Judicial Review, vol 2 (1995) 117, at 122. Phillips JA observed in R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 181 - 182, [8]:
"It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-9 (where the earlier cases are recounted); Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-2 (where again earlier authorities are recounted); Palmer v Clarke (1989) 19 NSWLR 158 (where the nature of 'the common law duty' imposed upon a judge was emphasised); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, especially at 278-81 per McHugh JA, and Sun Alliance Insurance Ltd. v Massoud [1989] VicRp 2; [1989] VR 8 at 19-20 per Gray J. In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v Williams [1932] ArgusLawRp 14; [1932] VLR 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637 is a recent example). In Soulemezis at 280, McHugh JA (as he then was) said that 'the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons' (quoting Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). McHugh JA also pointed out (as did Gray J in Massoud) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see Tatmar Pastoral at 386 and Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-7 per Gibbs CJ (although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as 'an incident of the judicial process'."
36 Failure to give adequate reasons when required is an error of law. Her Honour was required to give reasons in this case. The appellant made detailed written submissions alleging inadequacy of reasons and challenging her Honour's findings of fact and her reasoning. The submissions are too lengthy to set out in full and the claims of inadequacy of reasons are intertwined with expressions of disagreement with her Honour's factual findings. However, the substance of the appellant's submission is that her Honour did not give reasons, or sufficient reasons, for rejecting evidence supportive of the appellant's case - that she overlooked or failed to refer to evidence, rejected evidence favourable to the appellant and failed to draw inferences consistent with innocence without giving reasons. As I understand the gravamen of the submission, it is that her Honour failed to adequately explain why the evidence to which the appellant refers did not cause her to have a reasonable doubt about the appellant's guilt. The submissions refer to the "evidence" of the appellant and the obligation in some instances for a judge or magistrate to give reasons for preferring the evidence of one witness over another. However, the appellant did not either give or adduce evidence during the hearing before the magistrate. No occasion arose for resolution of conflict between sworn evidence of the appellant and the evidence of Mr Young. An audio visual recording of the appellant's police interview was part of the prosecution evidence. During the interview he told the police:
37 The appellant submits that her Honour's reasons are inadequate in some specific respects. One example offered is a failure to refer to the evidence in cross-examination of Mr Forrest, the National Business Manager of Tassal, that product discounts are sometimes offered to customers. Another example is her Honour's apparent rejection of the evidence of Ralph Caccavo that some of the salmon he bought from the appellant was "partially thawed" without explaining why.
38 I reject the appellant's contention that her Honour's reasons are inadequate. The basis of the inference she drew is sufficiently clear. Her Honour was entitled to reject the version of events offered by the appellant in his police interview. A fair reading of her reasons makes it clear enough that she regarded the circumstantial evidence against the appellant as compelling, and that she rejected his explanations to the police as implausible. Her Honour was under no obligation to undertake a detailed examination of and make reference to every piece of evidence, and it was not necessary that she make express findings on every fact or disputed piece of evidence relevant to her conclusion. There is no basis for the specific criticisms. She did not reject Ralph Caccavo's evidence that the salmon he bought was partially thawed, but pointed out that the evidence did not assist the appellant. Her Honour did refer to Mr Forrest's evidence in the relevant respect. The criticisms of the inferences her Honour drew and her failure to draw other inferences do not go to the sufficiency of the reasons, but amount only to an expression of disagreement with them.
39 Be that as it may, there is a more fundamental reason why this ground must fail. What amounts to sufficient reasons depends, at least in part, on the context and the nature of any appeal. The extent of the duty to give reasons is related "to the function to be served by the giving of reasons": Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 386. As has already been made clear, no appeal lies in this case against findings of fact and an appeal is confined to a matter "in point of law". As McHugh J said in Soulemezis v Dudley (Holdings) Pty Ltd (above) at 281:
"If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."
40 In this case her Honour correctly identified the law concerning the mental element of the crime the appellant was charged with, she correctly identified the function of a judge determining an appeal from a magistrate, she undertook a careful review of all of the evidence and stated the conclusion she reached. She found as a question of fact that the evidence proved that the appellant knew the goods he came into possession of were stolen. She gave the grounds for her findings. In an appeal of this nature, confined to a matter in point of law, the question is not whether her reasons were correct but whether the reasons sufficiently disclosed the evidence on which she reached that conclusion. Her Honour's reasons were sufficient for that purpose and were sufficient to allow the right of appeal to be exercised. Moreover, even if some factual error emerges (and I make no such finding), the demonstration of an erroneous finding of fact raises no question of law and is not enough in a case where no appeal lies against a finding of fact: McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd at 282.
42 In my view none of the grounds of appeal have been made out. I would order that the appeal be dismissed. In accordance with the order of Tennent J on her finding of guilt, the complaint should be remitted to the learned magistrate for sentence.
Caccavo
Collins [2014] TASFC 7
(1990) 170 CLR 321
(1985) 4 NSWLR 139
(1991) 14 MVR 279
(2009) 19 Tas R 21
(2009) 19 Tas R 173
(2009) 18 Tas R 454
(1990) 171 CLR 207
(2001) 10 Tas R 247
(1966) 116 CLR 644
(2010) 241 CLR 390
(2007) 18 VR 48
(2007) 19 VR 312
(2007) 17 VR 280
(2000) 19 NSWCCR 697
(1994) 181 CLR 487
(1987) 10 NSWLR 247
(1996) 186 CLR 389
(1980) 144 CLR 1
(1980) 14 Tas R 77
(1982) 14 Tas R 105
(1989) 17 NSWLR 618
(2008) 232 CLR 438
(1989) 19 NSWLR 158
(1986) 159 CLR 656