Ground 1 - failure to provide adequate reasons for dismissing the information
44There is an abundance of authority that a judicial officer is obligated to provide adequate reasons for a decision and that the failure to do so will constitute an error of law. As Basten JA observed in Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [136]-[138] this obligation derives from the nature of judicial power and the proper means of its exercise. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449, Santow JA (with whom the other judges of the Court of Appeal, Mason P and Sheller JA agreed) said (at [41]):
It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.
45In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Johnson J cited the paragraph from Stoker extracted above and went on to say:
[18] One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court.
[19] It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986.
46The collected authorities were considered by Schmidt J in Director of Public Prosecutions (DPP) v Abouali [2011] NSWSC 110 from [5] to [8] and the relevant principles and the rationale underlying the requirement for adequate reasons were most recently reviewed by Johnson J in Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 at [54] to [65].
47In summary, the plaintiff submitted that not only did the magistrate's reasons suffer fundamentally from a failure to identify the constituent elements of the offence and the evidence the prosecution relied upon in establishing them, they failed to identify with any clarity the factual and legal issues raised in the proceedings or the legal principles he applied in resolving them. Because of the combined effect of these defects, neither the legal or factual basis of the decision to dismiss the charge was capable of being distilled with sufficient certainty to enable the prosecution to consider whether there was a basis to exercise its statutory right of appeal to challenge the acquittal on substantive legal grounds.
48The critical factual findings that the plaintiff submitted were neither addressed or resolved by the magistrate included:
(a) Whether Tandy's actions were deliberate and whether, in combination with other evidence, this allowed for a finding that it was his intention to set up the "exotic" bet option;
(b) Whether the first defendant had any knowledge that Tandy was intending to manipulate the game at the time he placed the bets, on 19 August 2010;
(c) Whether the unusual spike in betting on the first score penalty goal option which resulted in the NRL market being closed indicated that a group of punters (including the first defendant) had prior knowledge that the game would be manipulated by Tandy;
(d) Why the first defendant placed structured multi bets in the manner that he did given he had rarely used multi leg bets before and had not been a person who placed "exotic" bets in the past;
(e) The significance, if any, of the first defendant placing bets in different locations in different clothes on the afternoon of 19 August 2010;
(f) The significance, if any, of similar (and in most cases) identical bets placed by Jai Ayoub, Brad Murray (on behalf of Sam Ayoub), and the first defendant, in light of the evidence of Mark Phillips (apparently accepted by the magistrate) that the odds of Jai Ayoub, Sam Ayoub,and the defendant all coming to separate conclusions which led them to place these bets were "astronomical"; and
(g) the reasons why Mr Murrihy's evidence to the same effect was apparently rejected.
49Senior counsel for the first defendant did not submit that the reasons for decision were structured so that the constituent elements of an attempt to obtain a financial advantage by deception were obvious or the admissible evidence bearing upon proof of those elements identified. On any reading of the reasons for decision that much is gainsaid. Counsel also accepted that the magistrate did not set out in any structured or logical way the evidence bearing upon proof that the game was in fact manipulated by Tandy, or make clear whether he was satisfied that fact was proved to the criminal standard as an intermediate fact indispensible to reasoning towards an inference of guilt (see Shepherd v R [1990] HCA 56; 170 CLR 573). On my reading of his Honour's reasons, the closest he came to a finding on that issue was a series of qualified comments as follows:
The Prosecutor, when he opened to me on Monday, said that this case was going to be a circumstantial case. That, in effect, it looked like some form of match fixing and that somebody, and we don't know who that somebody was, had organised for a betting spree of some sort would occur in relation to a penalty that was going to be awarded and that the Cowboys would convert or kick a goal and that was the plan, supposedly. (Emphasis added)
He went on to say:
What happened of course is that the penalty was awarded and, contrary to what was supposedly happening, and I use that term "supposedly" in inverted commas, instead of a penalty goal in front of the posts this man Watts, who wasn't located for the course of being presented as a witness but eventually he was found and, by consent, his statement went into evidence, and his coach I think described him as an impulsive player, somebody hard to control but instead of the goal he did a tap and the Cowboys scored a try... (Emphasis added)
50Finally, counsel accepted that the magistrate did not set out in any structured or logical way the evidence relevant to proof of the defendant's knowledge of the fact that the game was "fixed" or whether that element of the offence was proved beyond reasonable doubt.
51In criminal proceedings dealt with summarily a magistrate's failure to identify the elements of an offence; to deal with the issues in dispute and to articulate the legal principles by which disputes about the evidence have been considered and resolved, would ordinarily constitute an error of law undermining the integrity of an order either dismissing the charge or finding it proved. The magistrate's failure in this case to structure the reasons for decision by reference to the elements of the offence and/or the evidence relied upon in proof of them might not, of itself, have rendered the reasons inadequate if the basis upon which he dismissed the information was otherwise adequately revealed by his reasons for decision and if the specific findings critical to that decision were pellucid (see Stoker).
52The question is whether the magistrate's reasons meet that minimum standard.
53Counsel for the first defendant sought to defend the adequacy of the magistrate's reasons on the basis that on a fair reading of them it was clear that although his Honour did not address the question whether the first defendant's placement of bets on 19 August 2010 constituted acts towards the commission of the offence going beyond mere preparation (see the authoritative formulation for an attempt in R v Mai (1992) 26 NSWLR 371 at 381), he apparently accepted the proposition, advanced by defence counsel in final submissions, that there could be no attempt to commit the offence of obtaining a financial advantage by deception unless the first defendant not only won the first leg of the multi-bet but also each of the other four legs. In the result, in reasoning to the conclusion that in the absence of any evidence of the result of the other legs, let alone any evidence that the defendant had inside knowledge of or influence over those results, he was justified in concluding that the prosecution must fail.
54The following passages were relied upon by counsel as reflecting that process of reasoning. After noting that the first leg of the multi bet failed (because of the impulsive play of Watts in tapping the ball and a try resulting, outlined in [9] above). The magistrate said:
...So the first leg of the betting that was put on by Mr Elias, and it was a multiple bet, didn't eventuate. As I am told by the experts who I've heard from and Mr Phillips is the one that I am relying upon, he says that a multiple bet or a multi bet is a bet where more than one selection is nominated, all selections must win for the bet to be a winner.
Here of course the whole of this evidence, the evidence that's before me, has focused wholly and solely on this first incident - on this first leg of the bet. The other four legs of the bet are there as part of the proceedings but no one, absolutely no one, has put before me anything that faintly resembles what the outcome of that was going to be.
55Later in his reasons, after reflecting upon the first defendant's betting activities and offering the comment that the amount wagered on 19 August 2010 was not unusual (but without making any finding as to whether the form and structure of the multi bets were unusual) he said:
...A concern that I have with this particular case is this. There is a good reason why the police proceeded against Mr Elias but the reality is, at the end of the day when you look at the situation, the bet itself was a multiple. There were a number of contingencies that had to be played out. The first leg didn't eventuate and there is no evidence whatsoever to support anything as to what was going to happen with the other legs.
Now in the absence of anything that would suggest that he was on a winner for the rest of those, or did in fact get up on those, that becomes a problem for the prosecution. I have heard of a number of other individuals who were involved in this venture, if I could use that term, Mr Ayoub and Mr Tandy. Ideally, it seems to me, from what I know of this particular case now, the matter would have been run a lot better, a lot easier and probably more successfully had they been charged with conspiracy. All the evidence against the others would have been admissible. At the end of the day, what I have in front of me is evidence that's been put before this Court and notwithstanding there is a link between Ayoub, Tandy, Watts because Ayoub was the manager of both of them, the reality is the first leg didn't eventuate, I know nothing of the other legs. In those circumstances I think Mr Driels is right in putting the argument that he has and going back to where we started with the prosecutor on Monday.
56He then concluded by saying:
As a circumstantial case I have to be certain beyond a reasonable doubt that there is no other reasonable hypothesis. I think the prosecution has to fail in the circumstances.
57In responding to the submission that on this analysis the magistrate's reasons for decision were adequate, the plaintiff's counsel was conscious of the need to resist prosecuting the appeal by reference to flawed reasoning or factual findings unsupported by the evidence (of which he submitted there were many), even if they might amount to errors of law susceptible to review under the Act. That said, he submitted that irrespective of the fact that there was evidence of the composition of the multi bets and the result of each leg, and irrespective of his Honour's suggestion that the actions of the first defendant fell short of an attempt on the grounds that the other four legs of the multi bet were not the subject of manipulation (which the plaintiff submitted was wrong as a matter of law in any event), because the magistrate made no reference to the law of attempt or how it applied in the context of the charge as particularised, it was a matter of speculation as to whether this was the reason the charge was dismissed. Because his decision was ultimately expressed to be on the basis that there was another reasonable hypothesis for the first defendant's activities (although, again, there was no identification of what it was and how it was left unanswered by the evidence) there was an additional source of ambiguity in his Honour's reasons for dismissing the information.
58On either reading, so it was submitted, the reasoning was inadequate amounting to legal error. I accept that submission.
59While that would be sufficient to uphold the first ground of appeal, it is appropriate that I address, albeit in brief, the plaintiff's criticism of the way his Honour dealt with the expert evidence.
60The evidence of the experts was admitted provisionally over the objection of defence counsel early in the proceedings on the expectation that the question of its admissibility would be determined when the prosecution had led all its evidence. The magistrate did not, however, ultimately resolve whether the evidence of either expert would be admitted in whole or in part, still less provide any reasons for the way he dealt with their evidence in his reasons for decision. Although he said he relied expressly upon the evidence of Mr Phillips as to what constituted a multi bet and that all legs had to win before any winnings were paid, it is unclear whether he accepted, and admitted, Mr Phillips' evidence, summarised in [30] and [31] above, on the question whether the game was manipulated and whether the first defendant had knowledge of it. The failure to deal with Mr Phillips' evidence, or deal explicitly with those two issues to which his evidence was material, coupled with his treatment of the evidence of Mr Murrihy, provides an additional basis for upholding the first ground of appeal.
61In dealing with Mr Murrihy's evidence he said:
Now I have heard from a number of experts. Mr Murrihy of course was objected to by Mr Driels, who appears for the defendant and, as part and parcel of his evidence, he paints a picture that is somewhat scathing I think of the game, if I could use that term, because what the allegation is, is that there was a fix of some sort here and at paragraph 16 of Mr Murrihy's statement he says this:
"Traditionally with betting operators the bet option for a first score penalty goal [which is the subject of these proceedings] attracts relatively minimal interest. In the past two seasons the Cowboys fixture only on one occasion has the first score been a penalty goal. Tabcorp the holding per fixture on this bet is quite limited but it's not unknown, it has happened. In my experience ... for a betting sting involving the first score penalty goal to be successful it requires the acquiescence of the player from the side bet against, to give away the penalty close to a goal and ideally the acquiescence of the playmaker of the side wagered on to elect to take the penalty kick. To give absolute certainty to the success of the sting it would also be desirable to have the acquiescence of the captains of both teams to ensure from kick off the ball is at the right end of the ground and in the right position in proximity to the goal for the team to bet upon to score for a penalty kick."
So the way Mr Murrihy sees the state of play, everybody is involved. Now from the evidence that's fallen from the respective witnesses, that hasn't been supported. That really hasn't been supported and even though Mr Murrihy's an expert in thoroughbred racing and the field of betting there, I am not sure that he can help me very much with what is here, but he has an opinion which he can keep to himself as far as I am concerned.
62Despite the magistrate's trenchant criticisms of Mr Murrihy (which the plaintiff submitted were based upon a misunderstanding of his evidence in any event), his Honour did not address the admissibility of Mr Murrihy's evidence either in whole or in part. It is entirely unclear whether in saying that Mr Murrihy "has an opinion which he can keep to himself" (a comment which was wholly inappropriate when an expert's evidence is under consideration or when its admissibility is being ruled upon) he was making a finding concerning Mr Murrihy's credibility, or that his opinion exceeded his expertise or that it lacked probative value or for some other reason.
63In Director of Public Prosecutions v Elskaf [2012] NSWSC 21 at [57] Garling J held that "[t]he mere statement that a witness' evidence was unreliable, without any analysis as to why that was so ... is not sufficient to discharge a magistrate's judicial obligation to give reasons". Although His Honour's observations at [60] as to the possible bases for rejecting a witness' evidence concern the evidence of a lay witness, with some necessary modification, they have equal application where the evidence of an expert is under consideration.