Criminal law and procedure - Adequacy of reasons - Rule in Browne v Dunn - Whether defence evidence considered - Whether proviso applies

Criminal Appeals Act 2004 (WA), s 14

Magistrates Court Act 2004 (WA), s 30, s 31

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Lam v Beesley (1992) 7 WAR 88

Lloyd v Faraone [1989] WAR 154

MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436

Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)

Pettitt v Dunkley [1971] 1 NSWLR 376

Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Stojkovski v Fitzgerald [1989] WAR 328

Tetlow v Evans [2009] WASC 374

1 HALL J: On 23 June 2009 the appellant was convicted in the Perth Magistrates Court of one charge of stealing contrary to s 378 of the Criminal Code (WA). The appellant denied the charge and the matter went to a hearing at which he represented himself. At the conclusion of the hearing the magistrate gave oral reasons and found the charge proven. The appellant now appeals against that conviction and claims that there were errors in the magistrate's reasons.

1. The Learned Magistrate erred in law in failing to give adequate reasons.

(a) it is not enough simply to identify the issues, identify the evidence and then say, 'I am satisfied that the charge has been proven beyond reasonable doubt'.

(b) the critical issue in this case was whether the appellant's state of mind, that is, what his intention was. Accordingly it was of critical importance that there be a careful analysis of the appellant's evidence and that the Magistrate make a finding that his evidence on the issue of intention was rejected or implausible and, even if rejected, did not give rise to a reasonable doubt. The Magistrate failed to make any of these findings.

(c) the Learned Magistrate's reasons failed to reveal or reveal adequately why the Learned Magistrate arrived at the conclusion which she did.

1. The Learned Magistrate erred in law in the way in which she determined the appellant's intention.

'In relation to the intention of Mr Bennett, the court can only rely on making an assessment of his action to determine his intention.'

(b) Her Honour's comments in (a) above are a manifest error of law because intention is not confined to evidence of actions - it is also the subject of the witness's statements regarding his intention while giving evidence on oath.

(c) Nothing in the balance of the Reasons indicates that her Honour had any regard for the appellant's evidence on oath and Her Honour made no finding that she rejected it, and did not give reasons for rejecting it.

2 Much of the evidence was not in dispute. The central issue was whether the appellant had the intention necessary to be guilty of stealing. This depended significantly upon an assessment of an explanation he gave.

3 The undisputed facts were that on 8 January 2009 the appellant had driven to the Bunnings store in Belmont. He went to the tool shop section and there selected three drill bits which he placed into his pocket. He then walked to another part of the store where locks were displayed and selected a twin pack of master locks. He then placed the locks in his pocket. A short time later he was apprehended by a covert security officer near the front doors of the store.

4 The appellant was asked to attend with the officer at the security office. In the office he was asked to produce any items that he had taken from the store without paying for them. He produced the drill bits and locks. He told the security officer that the reason he did not pay for the items was that he was going back to his vehicle for a bed head that he had left in the back of his ute and for which he wanted to purchase bolts. He said he intended to come back and pay for the items in his pockets once he had checked the size of bolts required for the bed head. The security officer asked the appellant if he knew what he had done, to which he answered 'shoplifting'.

5 The police were called, but did not arrive for approximately an hour and a half. The appellant repeated his explanation to the police. The police walked out to the car park with the appellant and found that there was no bed head in his ute. The appellant's explanation at that time was that he must have left the bed head at home.

6 The appellant gave evidence in his defence. He admitted placing the items into his pockets but said that he had done so because he was not carrying a basket or anything to put them in. He said he needed to put them into his pockets so that he could examine a toolbox that he was considering purchasing. He said that he had gone to Bunnings that day in order to obtain items needed to fix a bed. One of the items that was required was bolts for the bed head. In order to ensure that he got the right size bolts he placed the bed head in the back of his ute. He said he got some of the items he needed and then thought that because his car was only 50 yards outside the door he would go and get the bed head and bring it back to the store in order to select the bolts that were required. He said he did not get out of the store before being apprehended by the security officer. There was a dispute as to whether he had been stopped inside or outside the store, but little turned on this as on any view the appellant had passed the registers when stopped.

7 The appellant said that the security officer had used an aggressive manner with him and that when he was questioned as to what he had done he was not intending to confess by referring to shoplifting; rather his intention was to describe what he understood was being alleged. He said that it had been his intention to return to the store with the bed head, obtain the bolts and pay for all of the items.

8 He told both the security officer and the police about the bed head. He said in evidence that he had been sure that the bed head was in the back of the ute when he attended Bunnings. When asked why he had told the police officers that the bed head must have been left at home he said:

Because I didn't - when I looked in there and it wasn't there I thought oh, my God, here's me been saying that I've got this bed head in the back of the ute and I need to get that to match these bolts up, then we go out to the ute and it's not there. I know you feel a bit of a goose.

But the officers did not hear you say anything to the fact that it was stolen? It was taken? It was gone?---Oh well, I didn't know. I thought oh, maybe I've left it back home or - as a matter of fact I'd been to a laundry before that and I picked up - Superclean, that is, and on the other side of the ute there was a stack of laundry that I'd picked up and I thought oh, maybe I took it out to put the laundry in. So I went back there and checked that as well. Then I went home and it wasn't there so I thought well, I must have had it and it's gone (ts 38).

9 After hearing the evidence and brief submissions from the police prosecutor and from the appellant, her Honour delivered her decision. She commenced by referring to the charge and to the necessity for the prosecution to prove all elements of the offence beyond reasonable doubt. Her Honour then noted that the only issue that was in dispute was whether the appellant had an intention to permanently deprive the owner of the property when he left the store without making payment.

10 Her Honour then referred to the need to consider the evidence in determining what inferences could be drawn in regards to intention. She noted that the court could only draw an adverse inference against the appellant if that was the only reasonable inference open on the evidence.

11 Her Honour then spent the balance of her reasons summarising the evidence of the witnesses for both the prosecution and the defence. Her Honour did this comprehensively over four pages of transcript. In the course of doing so she noted some conflicts between the prosecution evidence and that of the appellant. She also referred to inconsistencies and weaknesses in the appellant's evidence.

12 The appellant submits that the magistrate was obliged to provide reasons that set out the principles of law, the findings of fact and that exposed the reasoning process linking them and justifying the verdict. It is submitted that whilst the magistrate correctly identified the issue of intent, she simply recited a summary of the evidence of the witnesses without making any specific findings in relation to that evidence and failed to provide reasons for concluding that the prosecution had proved its case beyond reasonable doubt. It is submitted that it was necessary for the magistrate to state her findings of fact as it was only by this means that it could be determined whether those facts were capable of supporting a conclusion that the only reasonable inference available was one of guilt. The appellant says that because the magistrate failed to express any findings of fact it is impossible for this court to determine the validity of the conclusion and verdict.

13 Section 31 of the Magistrates Court Act 2004 (WA) provides that:

(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;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(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.

14 Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any ground of appeal. Should there be an appeal, adequate reasons enable the appeal court to determine whether any errors of fact or law have occurred: Pettitt v Dunkley [1971] 1 NSWLR 376, 382 - 390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 256 - 259, 268, 274, 277 - 278; Lloyd v Faraone [1989] WAR 154, 162 - 164; Stojkovski v Fitzgerald [1989] WAR 328, 334, 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 - 238 (Pidgeon J), 248 - 249 (Owen J); and Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569.

15 In Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Steytler P said [32]:

While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283.

16 Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA said (443):

Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824.

17 In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 the High Court considered the obligations of a trial judge sitting without a jury to give reasons for a verdict. The trial judge failed to refer expressly to a legal requirement to use great care in respect of evidence of a particular type. A warning in this regard would have been given had there been a jury. The High Court concluded that although consciousness of the importance of such a warning would no doubt be of second nature to many judges, in that case there was a statutory requirement for a judge to include the principles of law that had been applied in reaching a conclusion. The High Court held that this requirement was intended to ensure that criminal justice was not only done but seen to be done. For that reason the court held that the reasons must show expressly or by necessary implication that the relevant warning was taken into account. In a joint judgment the members of the High Court said that the statutory provision in that case was not satisfied by a bare statement of the principles of law and the findings of fact that the judge has made, rather 'there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict' (263).

18 In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 the High Court again considered the adequacy of reasons given by a judge sitting without a jury. In that case the relevant statutory provision was s 120(2) of the Criminal Procedure Act 2004 (WA). The critical issue at trial was the identity of the offender. In giving his reasons for convicting the accused the trial judge stated that he was satisfied on the question of identity but did not set out the findings of fact on which he relied. The Court of Appeal held that this constituted an error but dismissed the appeal applying the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) and holding that no substantial miscarriage of justice had occurred. In the High Court, Gummow, Hayne and Heydon JJ held that because the failure to provide a reasoned decision had been in respect of a central issue, the proviso could not apply.

19 Section 120 of the Criminal Procedure Act is differently worded to s 31 of the Magistrates Court Act, but not so as to reduce the requirement for magistrates to make findings of fact and give the reasons those findings have been made. In this respect the two sections are materially the same. Section 31 does obviate any need for a magistrate to canvass the evidence given in a case or to canvass all the factual and legal arguments or issues arising in the case. These latter dispensations appear to recognise the summary nature of Magistrates Court proceedings. Nonetheless, there remain some essential requirements and they include making findings of fact.

20 The realities of pressure of work and limited time in the Magistrates Courts must be acknowledged. Less detail is to be expected where reasons are delivered ex tempore: Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995). However, reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length, which is important.

21 In Pallot v Harrison Owen J held that unless it is apparent on the face of the reasons why the magistrate arrived at the conclusion she did, the entire process is called into question. In Lam v Beesley (1992) 7 WAR 88, 93 Owen J said a litigant is deprived of the opportunity to bring an appeal not only where there is a complete absence of reasons but also where there is uncertainty as to the reasons upon which the finding is based. A recent example of reasons which, whilst lengthy, were inadequate because of a failure to make necessary findings is Tetlow v Evans [2009] WASC 374. In that case, despite in excess of 30 pages being taken to recount the evidence and relevant statutory provisions, McKechnie J held that the magistrate had failed to expose the intellectual process which led to her acceptance of the prosecution evidence or to explain why she had rejected the defence evidence.

22 In the present case the issue was whether the appellant had an intention to permanently deprive the owner of the items that were taken. This required the magistrate to make an assessment of the explanation given by the appellant both at the time of the incident and in his sworn evidence. There were two critical sub-issues in this regard; was there an innocent reason for the appellant placing the drill bits and locks in his pockets; and was there an innocent reason for leaving the store (or attempting to do so) without paying? Whilst I have referred to 'reasons' there was, of course, no onus on the appellant to prove or disprove anything.

23 The importance of the sub-issues was that if an inference consistent with innocence was open, taking into account the explanation given by the appellant, the magistrate could not convict. The magistrate had to be satisfied beyond reasonable doubt that the only reasonable inference was that the appellant had fraudulently taken the items. In order to reach such a conclusion it was necessary to consider and reject the appellant's evidence in respect of the sub-issues, for if that evidence was accepted or created a reasonable doubt as to intention, the appellant could not be found guilty. If that evidence was rejected it would then be necessary to consider whether all of the other evidence enabled the magistrate to conclude that the only reasonable inference was that the appellant had the relevant intent.

24 Her Honour summarised the evidence of each of the witnesses, including referring to their cross-examination. She did not, however, expressly make findings in regard to the critical conflicts in the evidence. The question that remains is whether the inference as to what the magistrate found is appropriately clear from her reasons: Beale v Government Insurance Office.

25 As to the issue of whether the appellant could have placed the items in his pocket in order to free his hands to examine a toolbox, her Honour did not refer to the appellant's evidence. The only reference to this issue was to the failure of the appellant to put this claim to the security officer in cross-examination. In that regard her Honour said this:

He observed Mr Bennett then to walk to the shade cloth area. He observed him looking around and at that stage he looked like he was making for the exit of the shop with these items in his pocket. [The security officer] did not give any evidence, nor was he cross-examined, about Mr Bennett with a shopping list as he walked through the shop, nor was he cross-examined about Mr Bennett looking at various other items in the shop. He was certainly never asked about whether he stopped to look at a toolbox and whether the other items had to be put in a pocket so that [the] toolbox could be looked at properly in order to open the lid and the like (ts 45).

26 This part of her Honour's reasons appears to be a reference to the rule in Browne v Dunn (1893) 6 R 67 HL which requires a party to put their case to an opposing party's witnesses. There is no doubt that this rule applies in the Magistrates Court: s 30, Magistrates Court Act. The magistrate drew the appellant's attention to the need to put his defence to prosecution witnesses, both at the commencement of the proceedings and during the course of the hearing.

27 The rule has two aspects; it is a rule of practice to achieve fairness to witnesses and a fair trial and, secondly, it can also impact upon the weight or cogency of evidence. It would seem in this case that the magistrate was using the lack of cross-examination by the appellant in regards to the toolbox as undermining his claims in that regard. However, caution must be applied in the application of the rule in criminal cases: MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436. The inference that a party has deliberately refrained from putting their case to opposing witnesses because they wish to avoid a negative answer can be less readily drawn with an unrepresented accused.

28 In any event, the failure to comply with the rule in Browne v Dunn does not in itself lead to a conclusion that the appellant's evidence must be rejected. It was however, a matter that the magistrate could take into account in assessing the evidence as to whether the appellant did or did not place the items in his pockets in order to examine a toolbox. It is not clear from the reasons whether her Honour made a finding that the appellant did not place the items in his pockets because he paused to examine a toolbox and, if so, on what basis it was made. But, if there was a failure in this regard, its significance was negated by other findings that can be inferred from her Honour's reasons.

29 As to the explanation for why the appellant left the store without paying for the items, her Honour, in summarising the evidence of the security officer and his assistant, said:

Mr Bennett passed past the registers without any hesitation. There was no evidence, nor was there any cross-examining, or Mr Bennett stopping anywhere near the registers; stopping to look for a PR person; stopping outside in the foyer area, looking for someone to ask anything of - and the evidence of [the security officer] is that he just simply walked straight past the registers, straight past the exit, through this small foyer area and out the sliding doors (ts 45).

30 Clearly what the magistrate was doing here was suggesting things that it would be expected that an innocent person might have done in the position of the appellant. The inference is that because the appellant did not do those things his explanation lacks credibility.

31 Her Honour then reviewed the evidence of what the appellant said to the security officer:

In relation to [the security officer], he was told that - by Mr Bennett, as were the police who by then had attended, that he - Mr Bennett had come for bolts for the bed head and that he wanted to measure the bed head and it was outside in the ute - and they did all - and the evidence is that they all did go outside to look into the ute.

The ute was empty. There was no bed head, and there was some conflicting explanations given by Mr Bennett at that stage about the existence of the bed head in the motor vehicle. To be noted that his explanation was that he must have left it at home. His immediate reaction was not that he [sic] had been stolen from the vehicle. He did not give any explanation about it being left perhaps at the laundry, and the evidence of Ms Lowicki was that she never saw him load the bed head into the back of the ute, even though she was at work on that day (ts 46 - 47).

32 The reference to Ms Lowicki was to a defence witness who was an employee at the motel at which the appellant worked. She had given evidence confirming that there had been discussions that day regarding a bed that required fixing and that the appellant had gone to Bunnings in order to get the required items. She said, however, that she had not seen the bed head in the ute on that day. In this respect the evidence was of only limited assistance to the appellant.

33 It is clear from this summary of evidence that her Honour thought there was good reason to doubt the veracity of what the appellant had said to the police regarding the bed head. Her Honour found that there was no bed head in the ute as had been claimed to the police and that conflicting explanations had been given for why it was not there. The evident finding is that the appellant was not truthful with the police.

34 Her Honour then made reference to other evidence of the appellant and said:

Mr Bennett gave evidence on his own behalf and in relation to that his explanation is that he certainly had no intention of stealing it; that he went there with the bed head; went there to get the bolts, and he put these things in his pocket. In relation to his evidence he has indicated that the bed head he thought then, when it was not in the back of the ute, must have been left either at home or must have been left at the laundry.

He has indicated today that explanation was not made to anybody other than today - and he went on to explain that his intention was to get the bed head so that he could get the right size bolts, but unfortunately in his possession were the drill bits and the padlock, which in fact he intended to pay. His explanation is that he did not see anyone at the front door - no PR person, no nothing. He did not think that - about it really, it would seem, and proceeded to leave the store/

His evidence is that he was stopped inside the glass doors, but as I have already observed I do not know that that makes much difference having passed the registers and not paid for the items and not taken any steps to notify anybody - or in fact to leave the things in his pockets with anybody inside the store before leaving to get the bolts. There are some inconsistencies in Mr Bennett's explanation and there have been several of those, and there are some inconsistencies in the evidence itself in terms of if he went there for bolts to fix the bed head and he was going to measure the size why he did not in fact take the bolts from the store out to the bed head, which certainly would have been more to the point (ts 48).

35 It should be noted that the appellant was not asserting at the hearing that the bed head must have been left at home or the laundry. These were possibilities that he said that he had thought were open when he went with the police to his ute, but he had checked at these locations subsequently. The relevance of this was to explain why he had not claimed the bed head was stolen at the time.

36 The only reasonable interpretation to be drawn from her Honour's summary of the appellant's evidence is that she was rejecting the explanation given by him at the time and, consequently, the truthfulness of his sworn evidence. Her Honour reached the conclusion that the appellant's evidence was not to be believed because she considered that he had given inconsistent explanations and that the ultimate explanation lacked credibility. She gave reasons for those conclusions which are adequate to convey to the appellant why she did not accept his explanation. Whilst her Honour did not use the words 'I find' her findings are clear:

1. the appellant passed the cash registers with the items in his pockets;
2. he made no attempt to seek permission to take the items whilst he went to his vehicle or to leave them with anyone whilst he did so;
3. he said that his reason for leaving the store was to check on a bed head in his vehicle (that is, he deliberately took the items but claiming that he would return with them);
4. there was no bed head in the vehicle when checked by the police;
5. the appellant has given different (and inconsistent) explanations for why there was no bed head in the vehicle.

37 Having made such findings and rejected the evidence of the appellant, her Honour was left with the plain facts that the appellant had taken the items from the store without paying for them. On the evidence he had done so within a very short period of time of placing them in his pockets. There was no possibility of the taking being inadvertent, indeed the appellant gave evidence that it was deliberate. This was a case where, the appellant's explanation for his taking of the items being rejected, no other reasonable inference but guilt was open. In these circumstances the failure of the magistrate to make a finding in regards to why the appellant had placed the items in his pocket and whether there was an innocent explanation for doing so becomes immaterial.

38 Immediately following her Honour's summary of the appellant's evidence she said:

At the end of the day, as I have indicated, it is for the court to determine to the required standard, that is beyond reasonable doubt, whether there has been a stealing, that is an intent to permanently deprive the owner of this property on the part of Mr Bennett. In relation to that it is my view that the charge has been proven and I intend to enter a conviction (ts 49).

39 Clearly her Honour concluded that the appellant did have an intention to permanently deprive the owner; in my view that conclusion was a necessary consequence of the findings made on the evidence. Accordingly, this ground must fail.

Ground 2 - did the magistrate consider all of the evidence?

40 The passage on which this ground relies reads as follows:

In relation to the intention of Mr Bennett the court can only rely on making an assessment of his actions to ascertain his intention.

This is not something that can be a physical exhibit and the court can only draw an adverse inference against Mr Bennett in relation to coming to that view if that is the only reasonable inference which is open on the facts and the evidence that has been heard.

41 The appellant's submission is that by using the word 'only' in the first sentence her Honour was inappropriately narrowing the evidence available for assessing intention to that which related to the conduct of the appellant at the time. That interpretation would exclude from consideration the evidence of the appellant given at the hearing as to what his intention was.

42 In this case, in my view, it is plain that, when read in context, her Honour was not narrowing the evidence relevant to the central question of intent. It seems to me that all her Honour was doing by using the word 'only' was reflecting the fact that this was not a case where there was contemporaneous direct evidence of intention (though there were some alleged admissions). In any event, the last words of that extract recognise that in drawing inferences her Honour was required to have regard to 'the evidence that has been heard'. There is no reason to think that her Honour was excluding from her consideration the evidence of the appellant given at trial. Indeed, it is apparent from her reasons that she did consider that evidence. For these reasons ground 2 fails.