Intention to cause fear or injury - Distinction between intention in using item and ultimate purpose - Effect on intention of failure to cross-examine

Weapons Act 1999 (WA), s 8(1)(b)

1 JOHNSON J: The appellant, James Charles Gaunt, seeks leave to appeal against the acquittal of the respondent, Henry Hooft, on a charge under s 8(1)(b) of the Weapons Act 1999 (WA) of carrying an item, a crescent spanner, with the intention of using it to cause any person to fear injury. The respondent was acquitted of the charge on the basis that the appellant had failed to establish that, at the relevant time, the respondent had the requisite intention. The appellant alleges that the magistrate erred in reaching that conclusion. Whether there was sufficient evidence of the respondent's intention is the sole issue raised by the grounds of appeal.

2 The magistrate provided written reasons for decision. Her findings of fact were not in dispute and the following summary of the relevant evidence and the factual findings made by the magistrate is taken from those reasons.

3 On 30 January 2006, the complainant, John Edward Hay, and his wife were in Busselton. Mr Hay parked his Subaru vehicle in a car park near the Busselton Jetty. There was a history of attempted repossessions in respect of the Subaru being driven that day and, at an earlier time, concerning another Subaru vehicle. An assistant bailiff, Michael Atkinson had seen Mr Hay driving the Subaru in Busselton and provided that information to the respondent, who was a part-time process server and was in possession of documents authorising the seizure of the Subaru as a result of an outstanding debt.

4 Mr Atkinson had followed Mr Hay to the car park and parked his Honda CRV in a marked parking bay and about 18 inches behind that of Mr Hay. Mr Atkinson's wife and young child were in his vehicle at the time. Having received from Mr Atkinson the information concerning the location of the Subaru, the respondent drove his Toyota Landcruiser to the jetty and pulled up in front of Mr Hay's vehicle such that the two vehicles were 'nose to nose'. There was some conflict in the evidence as to whether the respondent's vehicle collided with Mr Hay's Subaru. It was also in dispute as to whether Mr Hay reversed the Subaru into Mr Atkinson's vehicle.

5 The respondent approached Mr Hay on foot and there was an exchange between them. Later, the respondent went to his vehicle returning with a crescent spanner. He said he was prepared to use the spanner to prevent Mr Hay from driving away by smashing a window if necessary. The respondent forced the spanner into a gap between the driver's window of the Subaru and the door frame and held it there. Meanwhile, a tow truck operator, Wayne Norman Flynn, who had been summonsed by the respondent, also arrived at the car park. The police were called and the respondent was later interviewed on video in which he said he did obtain a spanner from his vehicle and placed it between the top of the driver's window and the frame and that he threatened to smash the window.

6 In addition to Mr Flynn, there were three other independent witnesses to the event: Kevin Coombes and his partner Susan Holt and an off-duty police officer, Andrew Broadley.

7 As the respondent is charged with an offence which requires the prosecution to establish, inter alia, that in carrying the spanner his intention was to cause any person to fear injury, it is necessary to consider the evidence of all witnesses who observed the way in which the respondent carried and used the spanner, as well as the respondent's own evidence of his use of the spanner.

8 The respondent stated that he saw Mr Hay lift a stick or a pipe so he picked up a crescent spanner. However, at no stage was it alleged that the respondent was acting in self defence. The respondent said that he picked up the spanner as it was his intention to stop Mr Hay from driving off. He said he was prepared to smash the window should Mr Hay attempt to drive away. He acknowledged that he ran back to the Subaru shouting at Mr Hay to get out of the car or he would smash the window. Mr Hay wound down the window about 2 cm and the respondent then put the spanner into the gap to prevent the window from being wound up again.

9 The magistrate considered the respondent to be a credible witness and observed that his testimony was consistent with what he told the police in his video record of interview.

10 Mr Coombes, who was described by the magistrate as a very convincing witness, said that the respondent was holding the spanner in his hands above his head like a baseball bat. Ms Holt, who was described as an honest and very credible witness, said that she observed less of what was taking place between the respondent and the Hays as her attention was drawn to Mrs Atkinson and her child. However, she did say that the situation was hostile and aggressive and that the respondent was shouting at the occupants of the Subaru to get out of the car. She did not see the respondent with the spanner but observed that he had something between the window and the door frame of the Subaru.

11 Although Mr Atkinson was not an independent witness (being involved in the repossession of the Mr Hay's vehicle), the magistrate considered him to be a credible and reliable witness. Unlike Mr Coombes, Mr Atkinson did not say that the respondent was holding the spanner above his head. However, on this point, the magistrate preferred the evidence of Mr Coombes, as she was entitled to do.

12 Mr Broadley was an independent witness, although the magistrate found him to be relatively unreliable in his evidence because it was not consistent in parts with that of Mr Coombes or Mr Atkinson. Nevertheless, his evidence was consistent with that of Mr Coombes in that he said the respondent was holding the spanner above his head.

13 The witness, Mr Flynn, observed some, but not all of what took place. He also testified that the respondent held the spanner above his head and was yelling something.

14 After correctly identifying the law to be applied, the magistrate made the following findings of fact:

In the present case, I have found that the accused approached Mr Hay's car in an aggressive manner, holding a crescent spanner above his head and yelling at him.

The accused was armed with a large spanner; he was yelling or shouting; he was at the Hays' car wielding the spanner; and then wedging the spanner above the window. From the standpoint of an objective observer, the manner in which the accused approached Mr Hay was such that an objective observer would have reasonable grounds to suspect that the accused did have an intention to cause a person to fear that someone would be injured or disabled by the use of the spanner. Accordingly, the presumption under section 8(2)(a) is enlivened. The burden then falls upon the accused to prove the contrary under section 8(2)(b) of the Act, on the balance of probabilities.

The accused has been consistent in saying that his intention was only to effect the repossession and to prevent Mr Hay from driving away. The accused was not cross examined on his intention. His stated intention is consistent with the background that the Hays had been elusive and uncooperative in the past with regard to other attempted or actual repossessions. The accused was aware of this at the time. His actions in asking Mr Flynn to manoeuvre his truck into a position so that the Hays could not drive away is also consistent with his desire to effect the repossession. It was obvious to the accused that Mr Hay was trying to drive away and it was this action which the accused was trying to prevent. Although he approached the Hays in an aggressive and threatening manner, I am persuaded on the balance of probabilities that the accused's intention at all times was to stop Mr Hay from driving away, rather than to cause the fear prescribed under section 8(1) [116] - [118].

15 The magistrate concluded that, although she considered the actions and behaviour of the respondent, in his position as a repossession agent, were deplorable, she was persuaded on the balance of probabilities that the respondent's intention at all times was to prevent Mr Hay from driving away and thus effect the repossession of the vehicle and not to cause anyone fear of injury or disablement by the use of the spanner.

16 Section 8(1) of the Weapons Act provides:

Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence -

(a) to injure or disable any person; or

(b) to cause any person to fear that someone will be injured or disabled by that use,

commits an offence.

17 Under s 8(2), the person is presumed to have the requisite intention referred to in s 8(1) if:

(a) the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and

(b) the contrary is not proved.

The 'contrary', which is to be proved if the presumption is to be rebutted, is that the person did not have the requisite intention. The intention which is an element of the offence is the subjective intention of the accused person in carrying or possessing the relevant article.

The learned Magistrate erred in acquitting the Respondent of the charge in that, having found that:

(a) the Respondent approached Mr Hay in his vehicle in an aggressive manner holding a large crescent spanner above or near his head and yelling at Mr Hay; and

(b) the Respondent's intention was to prevent Mr Hay from driving away,

she erred in law and in fact in failing to find that the respondent had the requisite intention as outlined in s 8(1) of the Weapons Act.

19 The appellant contended that the learned magistrate applied the correct objective test to the application of the facts to s 8(2)(a), however, erred in her consideration as to whether the contrary had been proven under s 8(2)(b).

20 It was submitted on behalf of the appellant that the learned magistrate concluded that if:

1. the respondent's credibility is accepted;
2. the respondent has stated that he did not have the intention to injure or disable or to cause fear by wielding the crescent spanner as his intention was simply to prevent Mr Hay from driving away,

then the contrary has been proven on the balance of probabilities and the respondent must be acquitted, despite the magistrate's view that the respondent's behaviour was 'deplorable'.

21 For myself, providing the factual circumstances as found by the magistrate are not inconsistent with the respondent's evidence of his intention, or providing the evidence of intention is not inherently implausible, then I consider that acceptance of the respondent's evidence would constitute proof to the contrary. The gravamen of the offence is that the accused person intended to cause a person to fear injury or disablement. Even if witnesses believed from the accused person's actions that he had such an intention, if it is established that he did not, no offence has been committed. Consequently, an accused person's conduct may be deplorable in that he did cause fear of injury to others, but if he does not have that intention he has committed no offence. It may also be the case that, because of a person's occupation, certain conduct may be considered deplorable even if it does not breach the Weapons Act. Consequently, I can see no relevance to the issue of whether the contrary position has been proved that the magistrate considered the respondent's conduct to be deplorable.

22 Counsel for the appellant further contended that the evidence of the respondent that he intended to prevent Mr Hay from driving away by smashing the window if necessary should, on its own, suffice for the finder of fact to consider that the contrary intention had not been proven, as the respondent's actions were clearly derived from an intention to cause fear to achieve that outcome. I have some difficulty with this proposition. First, the fact that, in achieving his intention of preventing Mr Hay from driving away (by smashing the window if necessary), fear of injury was caused to the vehicle's occupants, does not mean that the respondent had the intention to cause fear of injury. Secondly, in my view, it does not automatically follow that the intention of preventing Mr Hay from driving away by smashing the window can only be achieved with the intention of causing fear of injury. For example, smashing the window could enable the respondent to remove the car keys which would prevent Mr Hay from driving away. Neither does it necessarily follow that holding the spanner at shoulder height or above is inconsistent with the aim of smashing the window. It would be for the magistrate to determine the plausibility of the explanation provided

23 In support of the grounds of appeal, the appellant relies on the findings made by the magistrate as to the respondent's behaviour, including the following:

1. He yelled or shouted at Mr Hay;
2. He waved a large crescent spanner holding it above his head and was also moving it like a baseball bat;
3. He threatened to smash the window;
4. He forced the spanner into a gap between the driver's window and the door frame and held it there.

24 This conduct is not necessarily inconsistent with the respondent's stated intention to smash the Subaru's window and prevent Mr Hay from leaving. The respondent's evidence was that he shouted at Mr Hay to get out of the car or he would smash the window. Moving the spanner like a baseball bat may be seen as consistent with the intention of smashing the window. If that evidence is accepted, then Mr Hay would be aware that the respondent's intention was not to cause injury but simply to smash the window. Further, as I have noted, neither is the threat to smash the window necessarily inconsistent with the stated purpose of preventing Mr Hay from leaving in the vehicle. Similarly, forcing the spanner into the gap between the window and the door frame and ensuring that the window is not closed is evidence along the same lines as attempting to ensure some degree of access to the interior of the vehicle or attempting to dissuade Mr Hay from driving off.

25 The position of the respondent was that the ultimate question for the magistrate was the subjective intent of the respondent. Counsel submitted that the respondent told the court what his intention was and the magistrate found him to be a credible witness whose video record of interview was consistent with that evidence. It was submitted that, in those circumstances, it cannot be said that the magistrate was wrong in accepting his evidence.

26 As I have noted, in my view, the only circumstances where the magistrate would not be entitled to accept the evidence of a witness considered to be a credible and reliable witness is where the factual circumstances as found by the magistrate are inconsistent with the respondent's evidence of his intention or the evidence of the witness on the relevant issue is inherently implausible.

27 In my opinion, providing the magistrate has considered those two circumstances, it would have been open to her to accept the respondent's evidence of his intention. Neither is there anything in the material raised on behalf of the appellant which persuades me that that it was not open to the magistrate to do so.

28 However, whilst I am not persuaded that the magistrate has committed the error alleged by the appellant, it is apparent to me that the magistrate has indeed made an error in reaching her conclusion that the respondent should be acquitted. In my view, in making her findings, the magistrate has fallen into error by confusing the respondent's intention in carrying the spanner as he did, with his ultimate purpose of preventing Mr Hay from driving away and thereby effecting the repossession of the Subaru. Even if the magistrate accepted that the ultimate purpose of the respondent's conduct was to effect the repossession and prevent Mr Hay from driving away, she does not address the respondent's intention with respect to the spanner in achieving that purpose. For example, a person could well affect that purpose by intentionally holding the spanner in a manner which would cause any person to fear injury and, as a result, abandon the vehicle and allow it to be repossessed. It may also be the case that the spanner could be carried with an entirely different intention but still for the purpose of repossessing the vehicle.

29 In referring to the defence evidence, the magistrate does note that the respondent said he was prepared to smash the window should Mr Hay attempt to drive away. It was also noted that the respondent said that when he ran back to the Subaru he was shouting at Mr Hay to get out of the car or he would smash the window. There was also evidence that the use to which the respondent put the spanner was to insert it into the gap between the window and the window frame in order to prevent the window from being wound up again.

30 However, in the magistrate's findings she does not state that she accepts that the respondent's intention in using the spanner was to smash the window, although I note that counsel for the appellant appears to accept it. Neither does the magistrate accept that the respondent had shouted to Mr Hay that he would smash the window, or that he inserted the spanner into the gap in the window, although there is a wealth of evidence that this last act did occur. Further, the magistrate does not address the issue of the plausibility of the respondent's evidence on that issue, or how it sits with the witnesses' observations of what he did and said in approaching the car with the spanner as well as her own findings that the respondent approached the vehicle in an aggressive and threatening manner and was holding the spanner above or near his head and yelling or shouting at Mr Hay.

31 The respondent's testimony was that, having picked up the spanner, he ran back to the Subaru and shouted at Mr Hay to get out of the car or he would smash the window. The evidence of Mr Coombes was that the respondent was yelling at Mr Hay to get out of the car. Initially, he made no mention of anything further being said. Mr Coombes also recalled that the respondent made motions with the spanner towards the window, although he did not make contact. He then tried to insert the spanner into the window. In cross-examination Mr Coombes agreed that the respondent said to Mr Hay, 'I wasn't going to assault you. I was just going to smash the window'. However, Mr Coombes' evidence was that this was said after the respondent had been standing at the car for some time with the spanner in the window. It is, however, a statement made close to the specific event which indicates the respondent's intention with respect to the spanner. Ms Holt's evidence was that the respondent was shouting at the occupants of the Subaru and with a raised voice asked them to get out of the car.

32 Mr Atkinson's evidence was that the respondent was telling Mr Hay to get out of the vehicle and to stop doing what he was doing. Mr Atkinson also expressed the belief that the respondent was trying to put the spanner through the driver's window. In cross-examination Mr Atkinson said that he did not know whether the respondent got the spanner through the window but he saw him trying to do so. It appeared to me that Mr Atkinson was talking about putting the spanner through the gap in the window in order to prevent it from being wound up, rather than putting the spanner through the glass in the window.

33 Mr Broadley's evidence was that the respondent was shouting at the people inside the car to open the door. He also said that after he called the local police, the respondent rested the spanner between the window and the top of the beam of the driver's side. Mr Broadley also stated that the respondent said, 'You shouldn't have rammed my car, John'. Mr Broadley rejected the proposition that this had been said by Mr Atkinson, rather than the respondent. However, the magistrate did form the view that Mr Broadley only observed a small part of the events and was a relatively unreliable witness.

34 No specific findings of fact were made with respect to these matters.

35 It may be that, when considering the issues which I have identified and the evidence to which I have referred, the magistrate accepts the respondent's evidence that his intention was to break the window for the purpose of preventing Mr Hay from leaving in the vehicle. She may also decide that this stated intention is consistent with the evidence of the other witnesses as to what they heard and observed. However, as the magistrate considered only the respondent's ultimate purpose, rather than his intention in carrying the spanner towards the Subaru in the way that he did, an error has been established and should be corrected. In my view, the magistrate is in the best position to make the necessary determination and it would, therefore, be appropriate for the matter to be remitted to the magistrate to be dealt with according to law.

36 Counsel for the respondent raised a number of issues, the thrust of which were that, notwithstanding the error identified, the court should consider there has been no substantial miscarriage of justice

37 Section 14(2) of the Criminal Appeals Act 2004 (WA) deals with appeals to a single judge of the Supreme Court from a court of summary jurisdiction. The section provides that, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. This sub-section is commonly referred to as 'the proviso' which reflects the form of drafting used in the legislation which preceded the Criminal Appeals Act.

38 The conclusion that there has been no substantial miscarriage of justice may be drawn if the appellate court considers that the same outcome would result, in this case an acquittal, even if the matter were remitted to the summary court to be dealt with in accordance with the ruling of the appellate court. Although the error made by the magistrate was one of law, a determination of the charge in accordance with the law as identified in these reasons, involves consideration by the magistrate of the issues to which I have referred. In my view, it cannot be said that those matters will necessarily be resolved in favour of the respondent. One can accept the evidence of the respondent that his purpose was to repossess the Subaru, without accepting his evidence that he only intended to use the spanner to break the window of the vehicle. As I have already noted, it is open to the magistrate to conclude that the respondent intended to achieve his purpose by using the spanner to instill fear of injury in the occupants of the Subaru.

39 One issue raised by counsel for the respondent was that, because of the surrounding circumstances, including the fact that the respondent's vehicle had been hit by the Subaru being driven away by Mr Hay who was attempting to prevent the repossession of the vehicle, the respondent's adrenaline would have been running high and it may well be that he had no intention at all when carrying the spanner. In my view, that is also something which is for the magistrate to decide when considering the issue of the respondent's intention in carrying the spanner and, contrary to counsel's allegation, it does not impact on the issue of whether there has been no substantial miscarriage of justice.

40 Another issue raised by counsel for the respondent was that counsel who appeared at trial for the prosecution declined to cross-examine the respondent. It is said that, in accordance with the rule in Browne v Dunn (1893) 6 R 67 (HL), the failure to cross-examine may be a very good reason for accepting the witness' evidence. It was further submitted that an appeal court will be inclined to disregard a point which was not tested by putting it to a relevant party. If that proposition were accepted, then it would be open to the court to conclude that there has been no substantial miscarriage of justice. In support of this proposition, counsel relies on the following extract from Heydon J D, Cross on Evidence (7th Aust ed, 2004):

First, if the witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. This is so even where it is counsel for a co-accused who is in breach. A different rule has been said to apply in magistrate's courts, where a party might not be represented by a highly qualified professional advocate. (Whether the court in fact does accept unchallenged evidence is, of course, a matter for it.)

Secondly, if the witness has not been cross-examined on a particular matter that may be a very good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. But there is no requirement that the court must accept the evidence not the subject of cross-examination; this is so if the evidence is contradicted by other evidence (17,460).

41 It is the second proposition or 'rule' which is of relevance in this matter. It seems from the quoted passage that acceptance by the court of evidence which has not been the subject of cross-examination is not automatic. The author of Cross on Evidence cited the decision of Newton J in Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848, in particular his observation that, if a witness's evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his evidence.

42 In addressing the second proposition, Newton J also made the following statement:

In its second aspect the rule in Browne v Dunn is, in my opinion, as I earlier said, a rule relating to weight or cogency of evidence ... In this aspect the rule says no more than that if a witness is not cross-examined upon a particular matter, upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness's evidence upon that matter. If I may say so, this is little more than common sense. I have used the word 'often' advisedly, because if a witness's evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his evidence (848).

43 In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, 18, Hunt J, referred to the decision in Bulstrode v Trimble and to the statement of the second aspect of the rule in Browne v Dunn, before observing that the status of some of the propositions stated by Newton J must be considered doubtful in the light of the subsequent decision of the High Court in Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 372 (Gibbs J, Stephen & Murphy JJ concurring).

44 Precision Plastics Pty Ltd v Demir was a case concerning an employee who lost the use of her right hand in an accident caused by the negligence of her employer. An appeal concerning the jury's award of damages was made to the Court of Appeal and then to the High Court. An important issue for the jury's consideration was how long the respondent would have been likely to remain in employment if she had not received her injuries. In her evidence-in-chief the respondent had said that she liked to work very much and intended to work until she was 55 years old. The respondent was not cross-examined on her answer. Gibbs J observed that, if it had been intended to suggest that she was not speaking the truth, she should have been cross-examined on this matter so that she might have had an opportunity of explanation (370 - 371). His Honour referred to the rule in Browne v Dunn in support of his conclusion.

45 Gibbs J noted that the respondent's evidence that she intended to work until she reached the age of 55 was not inherently incredible as she had in fact been engaged in employment for most of the time during which she had been in Australia before the accident (371). It was said that she had only given up employment when it was necessary to care for her child. Gibbs J concluded that the jury, acting reasonably, was bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of 55 years. However, his Honour went on to observe that the jury were entitled to think that she might have changed her mind if her circumstances had altered, or that for one of many reasons she might have been unable to remain in employment for the whole of that period.

46 In my view, the decision of Gibbs J is not authority for the proposition that, in all circumstances, the evidence of a witness on a particular matter must be accepted if the witness was not cross-examined on that point. One explicit exception is where the evidence is inherently incredible. Further, his Honour considered that the tribunal of fact was entitled to draw a conclusion contrary to the view expressed by the witness on the basis that the witness may have changed her mind about working until 55 years of age, or her circumstances may have altered. Certainly, these factors do not pertain to the relevant fact in issue in this case, which is the respondent's intention at the time he carried the spanner towards the car. However, it is clear from the decision of Gibbs J in Precision Plastics Pty Ltd v Demir that, ultimately, the question of whether the evidence is to be accepted is for the tribunal of fact and certain factors may allow the tribunal of fact to reach a contrary conclusion, notwithstanding the absence of cross-examination. Gibbs J did not attempt to set out all the circumstances in which a tribunal of fact might be entitled to reject the evidence of a witness who has not been cross-examined on that evidence. Yet if factors in that case entitled the jury to reject the witness's evidence, or at least to decline to act upon it, I can see no reason why circumstances in other cases would not entitle the court to reject the untested evidence of a witness. However, in view of the statement of principle that a jury, acting reasonably, were bound to accept the evidence as it was uncontradicted and unchallenged in cross-examination, the rejection of such evidence would necessarily be uncommon.

47 In my view, in a similar vein to inherent incredibility or improbability, inconsistency with other evidence as to the conduct of the witness would be a circumstance in which it would be open to the court to reject the evidence of a witness as to his intention, notwithstanding that the evidence was not cross-examined upon.

48 Another authority on the issue is the decision of the New South Wales Court of Appeal in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 507. In that case, a witness gave an account of an accident involving a fellow employee and the judge drew a particular inference from that account. Counsel for the appellant submitted that it was not an inference which was drawn, it was a mere matter of conjecture or speculation. Samuels JA, with whom Hutley and Priestley JJA agreed, observed that the learned judge had accepted the witness as an honest and reliable witness and had also noted that there was no attack on his credit (507). Samuels JA added that, not only was there no attack on the witness's credit, he had not been cross-examined in any way upon the account he gave. His Honour found that, while he did not think that it would be right to conclude that the absence of cross-examination entails the acceptance of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case. The appeal in Paric v John Holland Constructions Pty Ltd was heard after the decision in Precision Plastics Pty Ltd v Demir although no reference was made to that authority in the judgment of Samuels JA.

49 Similarly, in Myers v Claudianos (1990) 100 FLR 362, Miles CJ, referring to the second aspect of the rule in Browne v Dunn observed that it related to the consequences of a breach of the rule and held that 'the consequences of a breach of the rule will vary according to the circumstances' (11). His Honour followed and applied the decision in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) but made no reference to the decision in Precision Plastics Pty Ltd v Demir.

50 Counsel for the appellant advised the court that the failure to cross-examine on the issue of intention arose from trial counsel's misunderstanding of the meaning of s 8. Apparently counsel considered, mistakenly, that an accused's subjective view of his intention was not a relevant consideration. Counsel further submitted that, as the rule in Browne v Dunn was based on fairness to the witness, as the issue of intention was clearly put before the court, there was no unfairness in failing to cross-examine on the issue. However, it is the first aspect of the rule in Browne v Dunn which is designed to achieve fairness to witnesses and a fair trial as between the parties. The second part of the rule relates to weight or cogency of evidence: Bulstrode v Trimble (746) (Newton J). As I have noted, it is the second part of the rule which is applicable in this case.

51 Having considered the authorities, in my opinion, it does not automatically follow that the absence of cross-examination will result in acceptance of the appellant's evidence as to his intention. Consequently, it cannot be said that there has been no substantial miscarriage of justice. I consider the issue of whether the untested evidence of intention should be accepted, without more, is one to be determined by the tribunal of fact. Further, it is for the tribunal of fact to determine whether there are circumstances which, consistent with the above analysis of the authorities, conflict with the witness's evidence as to his intention so as to justify a conclusion that there has been no proof to the contrary of the presumption. Therefore, as the matter is to be remitted to the magistrate to address the error of law to which I have referred, the issue of the failure to cross-examine should be addressed by the magistrate in carrying out that exercise.

52 At the hearing I was asked by counsel for the appellant to make an order that, on the matter being remitted to the Magistrates Court, the magistrate hear from both counsel in relation to her decision, in particular the issue of the failure to cross-examine. This request was opposed by counsel for the respondent. I am unaware of any legal basis for making such an order and I do not, in any event, consider it appropriate to do so. In my view, it is entirely a matter for the magistrate to determine whether or not she will allow counsel to make further submissions and the scope of such submissions.

53 The final submission relied upon by counsel for the respondent was that, in applying the proviso, the court can take into account the respondent's personal circumstances and other factors relating to the charge. Counsel for the respondent referred to a number of authorities which deal with the application of the proviso and which address the issues to be taken into account, including matters personal to the accused: Myers v Claudianos; Cox v Salt (1994) 12 WAR 12; and Keene v Carter (1994) 12 WAR 20. Most of these cases deal with appeals from findings that there was no prima facie case. In my view, the circumstances of this case are very different from those dealt with by the courts in these authorities.

54 In Cox v Salt the defendant had been charged under the Road Traffic Code 1975 (WA) with driving under the influence of alcohol, failing to stop after an accident, and failing to stop at a stop sign. He pleaded not guilty to the first charge, and guilty to the second and third charge. On the trial of the first charge, defence counsel raised a 'no case' submission which was upheld by the magistrate. In considering the submission, the magistrate proceeded to assess the credibility of witnesses, reject evidence and weigh up the evidence according to the criminal standard.

55 On appeal, Ipp J held that the magistrate had applied the wrong test in determining the 'no case' submission, having applied the criminal standard of persuasion (17). However, having considered the likelihood that the case would fail were it to be remitted, particularly because of the magistrate's rejection of certain evidence, his Honour concluded that there was no substantial miscarriage of justice and declined to remit the case to the summary court (17).

56 In my opinion, unlike the situation in Cox v Salt, it cannot be said that the respondent is unlikely to be convicted should the matter be remitted. He may not be convicted, but I am unable to conclude that such an outcome is likely. This is not a case, as was the case before Ipp J, where the magistrate has rejected evidence of an element of the offence. Further, for the reasons I have given, the magistrate's view of the respondent's credibility does not determine whether his evidence of his intention in carrying the spanner is implausible or inconsistent with her findings as to the surrounding circumstances. Indeed, because of the error made, the magistrate has not yet addressed these issues.

57 In Keene v Carter, the respondent was charged with receiving 'one gold nugget valued at $286 the property of persons or persons unknown which had lately been stolen as you then well knew'. At the conclusion of the case for the prosecution, the learned magistrate upheld the submission of counsel for the respondent that there was no case to answer. Ipp J found that there was an error on the part of the magistrate in that he had made findings which were not open in regard to certain inferences that could be drawn concerning an element of the offence (7). Ipp J then considered whether there was no substantial miscarriage of justice. His Honour observed that one of the relevant factors in considering whether the appeal should be upheld was the strength of the prosecution case were the matter to be remitted for further hearing (9). Having considered that matter Ipp J drew the following conclusion:

The following factors are relevant in considering whether a substantial miscarriage of justice has occurred. (a) Despite the fact that the case of the prosecution might be described as reasonably strong, the respondent has arguable defences, both in respect of the issue of knowledge as to whether the nugget was stolen, and the issue of ownership (ie whether the nugget was abandoned). (b) If any criminality existed as regards the conduct of the respondent, it was not of a high degree and was in the nature of an omission on his part to apply his mind to the prospect that the owner of the nugget might be found; there does not seem to have been a positive act of dishonesty on the respondent's part. (c) The reinforcement of the absence of any deliberate and conscious criminal intent on the part of the respondent by his conduct in arranging for the details as to the name and address of Miss Cross' adult companion to be recorded. (d) The fact that the respondent was arrested some six months after the incident in question, that he thereafter endured the trial and the appeal with the concomitant financial cost and emotional stress. (e) The double jeopardy in which the respondent would be placed, having been acquitted by a magistrate without absence or excess of jurisdiction: Cox v Salt; Myers v Claudianos (1990) 100 FLR 362 at 372. (f) The relative smallness of the amount involved (14).

Clearly, it was a combination of a number of significant factors which lead the court to determine that there was no substantial miscarriage of justice. One of those factors was the delay between the commission of the offence and the laying of the charge, as well as the financial and emotional impact of the delay.

58 Another one of the relevant factors was the degree of criminality involved in the offence. The conclusion drawn was that the criminality was not of a high degree. In my opinion, no such conclusion can be drawn in relation to the offence before this court. Not only did the magistrate describe the respondent's conduct as 'deplorable', but, in my view, irrespective of the actual intention, there is no doubt that in using the spanner in the way that he did, the respondent caused fear and, at the very least, considerable concern to both the occupants of the Subaru and the various observers of his conduct. The potential for actual injury and for escalation of the incident are other factors which reflect the seriousness of the conduct.

59 Another factor relied upon by Ipp J in Keene v Carter was the absence of any deliberate and conscious criminal intent in the conduct of the respondent. If the magistrate were to find that the respondent's intention was to cause fear of injury, then it simply cannot be said that there was no deliberate or conscious criminal intent on his part. Consequently, this factor would not lead to a conclusion that there was no substantial miscarriage of justice.

60 Ipp J also took into account the rule against double jeopardy. Whilst the principle does not strictly apply to matters dealt with in a court of summary jurisdiction, nevertheless the charge against the respondent was dismissed and he now faces the possibility of a conviction. Consequently, the respondent will be twice placed in the position of facing conviction.

61 I have only referred to four of the factors. As I have noted, it is the combination of these factors which led to the conclusion drawn by his Honour. Ipp J did not assert that any of the factors referred to could individually lead to the application of the proviso.

62 The final case referred to by counsel for the respondent was Myers v Claudianos where the magistrate dismissed charges under the Securities Industry Act 1980 (Cth) of insider trading in company securities on the basis there was no case to answer on any of the charges. On appeal it was held that the magistrate had misdirected himself in not observing the distinction between the decision to be made on a submission of no case to answer and the decision to be made at the end of all the evidence as to whether the prosecution case has been made out beyond a reasonable doubt. In the exercise of his discretion, Miles CJ declined to remit the matter to the magistrate or to the Magistrates Court for rehearing or further hearing (12). In reaching that conclusion Miles CJ made the following observation:

There is a discretion in this court whether, despite error on the part of the magistrate, the case should be remitted to him or to another member of the Magistrates Court. This court should not lightly remit a matter to a Magistrates Court for rehearing or for further hearing when there has been a dismissal of an information, amounting in the context of proceedings without jury, to an acquittal, and when there has been no absence or excess of jurisdiction. I do not doubt that such a step may be taken in appropriate circumstances with the possible eventual result that the setting aside of the acquittal will result in a conviction. The order to review procedure ... clearly authorises that course (11 - 12).

63 Miles J was referred by counsel for the prosecution to a comprehensive list of authorities which show that the order to review procedure has in many instances resulted in the remittal of the case to a Magistrates Court for rehearing. However, his Honour expressed the view that a court should take into account the rule against double jeopardy when exercising a discretion whether or not to remit (12).

64 In support of the submission that, in applying the proviso, the court can take into account the respondent's personal circumstances and other factors relating to the charge, counsel for the respondent referred to what he described as the 'tortured history' of the matter. Counsel referred to the fact that, following the incident on 30 January 2006, Mr Hay was charged with reckless driving, criminal damage and disorderly conduct by threats. The respondent fully co-operated with the police and, in addition to his record of interview, he gave police a witness statement with respect to Mr Hay's conduct. The hearing of the charges against Mr Hay were originally set for 1 May 2007 but were adjourned to 29 October 2007 as Mr Hay claimed that he had not been provided with full disclosure. The trial was again adjourned until 20 December 2007 when the hearing took place and Mr Hay was convicted. As a prosecution witness, the respondent was required to attend on the occasions when the trial was adjourned and also for the hearing. Apparently the purpose of this information was to establish the assistance provided to the police by the respondent as well as the inconvenience to him which resulted by the adjournments to Mr Hay's trial. The fact that the respondent has cooperated with the police and the effect on him of the delays involved in the prosecution of Mr Hay, are matters which would be taken into account in passing sentence, should he be convicted of the offence. However, in my view, they are not matters which should prevent the respondent from being tried, or retried, according to law on the charge brought against him.

65 It was further submitted in support of this proposition that the prosecution notice against the respondent was not signed until 16 April 2007, almost 15 months after the incident. The respondent was required to attend court on 14 May 2007, 22 May 2007 and 16 October 2007. The trial was then set for 20 November 2007 but was adjourned to 6 February 2008. The reserved decision was given on 28 March 2008 and the prosecution appeal lodged on the last day, 28 April 2008. No doubt the respondent has suffered a good deal of anxiety in waiting to find out whether charges would be laid and in waiting for the charge to be finally determined. Unfortunately, these types of delays do occur in the criminal justice system and no doubt create anxiety and uncertainty in an accused person. However, they could not, in my view, be described as excessive or prejudicial to an accused person having a fair trial and do not amount to an abuse of process so as to justify a stay of proceedings.

66 I accept that delay was one of a number of factors relied upon by Ipp J in Keene v Carter in deciding to apply the proviso. However, the relatively minor delay in holding the trial is, in my view, of no significance in the decision of whether there has been a miscarriage of justice. I accept that the considerable delay in bringing charges is unfortunate and is a relevant consideration but, unlike the position in Keene v Carter, there are no other significant matters which, together with the delay, would lead me to conclude that there has been no substantial miscarriage of justice.

67 The other factor raised by counsel for the respondent, that the respondent's conduct should be considered in the context of the outrageous conduct of Mr Hay, is a factor which should more appropriately be dealt with in passing sentence and I consider it to be irrelevant to the issue of whether this matter should be remitted to the magistrate.

68 Having considered the matters raised by counsel for the respondent in support of the submission that there has been no miscarriage of justice, I am of the view that the factors referred to do not individually, or collectively, justify a conclusion that there has been no substantial miscarriage of justice. The charge against the respondent arises from a very serious incident which caused considerable concern to those involved and also to passers-by. The magistrate who heard the evidence described the respondent's conduct as deplorable. I have considered the rule against double jeopardy and the delay in bringing the charge. However, as the charge arises from a very serious incident, I believe the importance of this charge being dealt with according to law outweighs the adverse impact on the respondent of the delay and of again facing the possibility of conviction.

69 For these reasons I would grant leave to appeal, allow the appeal and remit the matter to the magistrate to be dealt with in accordance with the conclusions I have drawn.