Court of Appeal (WA)|2002-01-09|Before: Mr P, Smith J

Heathcote v King [2002] WASCA 1 (9 January 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HEATHCOTE -v- KING [2002] WASCA 1

Justices - Appeal - Extension of time - Substantial delay - Whether exceptional circumstances or substantial miscarriage of justice

Justices - Appeal - Reasonable apprehension of bias - Refusal of Magistrate to disqualify himself

Justices - Appeal - Offences under s 41(e) of the Pawnbrokers and Secondhand Dealers Act 1994 (WA) - Liability of employer for offences committed by employee - Whether defence of honest and reasonable mistake of fact by employee available on prosecution of employee - Section 24 of the Criminal Code (WA)

Justices - Appeal - Obligation to give reasons for decision

Justices Act 1902 (WA), s 46, s 184(1), s 190, s 199(b)

Application for extension of time and leave to appeal granted

Application for extension of time within which to apply for leave to appeal refused

CLC Corp v Read [1999] FCA 384

Commonwealth Conciliation & Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546

Esther Investments Pty Ltd v Markalinga Pty Ltd (1987) 2 WAR 196

Gallo v Dawson (1988) 82 ALR 401

Girando v Girando, unreported; FCt SCt of WA; Library No 970525; 14 October 1997

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Wroblewski v Starling [1987] WAR 233

1 ROBERTS-SMITH J: These are two applications for extension of time and leave to appeal against decisions in Courts of Petty Sessions. Both matters have been heard together.

2 By application dated 20 April 2001, the applicant sought an extension of time and leave to appeal against a decision of Mr McIntyre SM, convicting him of nine offences contrary to s 41(e) of the Pawnbrokers and Second-hand Dealers Act 1994 (WA) "the Pawnbrokers Act". The complaints originally charged 11 offences under the Pawnbrokers Act but two were dismissed and the applicant was convicted of nine of them on 3 December 1999 after trial. He was fined $1000.

3 The application is supported by an affidavit of the applicant dated 18 April 2001, a supplementary affidavit dated 3 May 2001 and a second supplementary affidavit of the applicant dated 3 July 2001. There is also an affidavit of his solicitor, Mr Colin Touyz sworn 3 July 2001.

4 The respondent relies upon the affidavits of Christopher King sworn 1 June 2001 and Adrian Jones, sworn 11 June 2001.

5 By O 65A r 2B, an application for leave to appeal under s 184(1) of the Justices Act 1902 (WA) must be made within 21 days of the date of the decision. The applicant is, on this application therefore, some 16 months out of time.

6 In respect of application SJA 1059 of 2001, the application for extension of time and leave to appeal was also filed on 20 April 2001. It seeks leave to appeal against the decision of her Worship Mrs Bennett-Borlase SM on complaint 7025 of 1999 in the Perth Court of Petty Sessions on 25 February 2000 convicting the applicant of one charge contrary to s 41(e) of the Pawnbrokers Act and in respect of which he was fined $300.

7 The affidavits filed on behalf of the applicant and respondent respectively in this matter are essentially repetitive of those filed in respect of SJA 1058 of 2001, except to the extent that they contain material relating to the specific offences. I shall come to that with more particularity later. So far as the applications for extensions of time are concerned, the matters relied on are common to both.

8 The application for leave to appeal in SJA 1059 of 2001 was made some 13 months out of time.

9 As to the extensions of time, the applicant deposes that by a complaint dated 11 June 1999, he was charged with an offence contrary to s 41(e) of the Pawnbrokers Act that on 5 May 1999, he being a licensed second-hand dealer, entered into a contract with another person and failed to correctly describe the goods transacted ("the first charge").

10 By complaint dated 15 September 1999, he was charged with 11 offences contrary to the same statutory provision ("the consolidated complaint").

11 He deposes that on 23 September 1999 he sought advice from a solicitor in respect of the first charge, but she was unable to represent him and in due course he represented himself in the Armadale Court of Petty Sessions on 6 October 1999 but was convicted.

12 By complaint dated 11 November 1999 he was charged that on 26 October 1999 he entered into a contract with other persons and failed to correctly describe the goods transacted contrary to s 41(e) of the Pawnbrokers Act ("the third charge").

13 On 18 November 1999, Wheeler J granted the applicant leave to appeal in respect of his conviction on the first charge.

14 Following a trial before Mr McIntyre SM on 30 October and 3 December 1999, the applicant was convicted on nine of the charges on the consolidated complaint.

15 On 25 February 2000 he appeared before her Worship Mrs Bennett-Borlase SM in the Perth Court of Petty Sessions and on that occasion was convicted of the third charge.

16 The applications to this Court came before Pidgeon J on an ex parte basis on 2 April 2001. His Honour ordered the papers be served on the respondents.

17 On 7 May 2001 McLure J ordered the applications be listed for hearing on a special appointment. That was how they came before me on 17 August 2001.

18 The matters advanced in support of the applications for extension of time are essentially the same and it is therefore convenient to deal with them together.

19 The applicant deposes that he initially sought legal advice from a solicitor on 23 September 1999 regarding the first charge. On 4 October, two days before he was due to appear in the Armadale Court of Petty Sessions in respect of it, he was informed that the solicitor would be unable to represent him due to personal reasons. He was charged $250 for that solicitor's advice. Although the solicitor referred him to another practitioner, the applicant was not satisfied with the legal advice provided to him by that practitioner and he accordingly represented himself at the Armadale Court of Petty Sessions on 6 October 1999.

20 Following his conviction he sought advice from another firm of solicitors who briefed a barrister in relation to the preparation and conduct of an application of a leave to appeal from the applicant's conviction on the first charge. The applicant was charged fees of $4090 in respect of that.

21 According to his affidavits, the applicant was then advised by that firm that they could not act for him in respect of a consolidated complaint because of a possible conflict of interest and so he was referred to another firm. That last firm charged him $1500 for representation at the Armadale Court of Petty Sessions on 30 November 1999 in respect of the consolidated complaint.

22 The applicant deposes that from that point he was financially unable to engage any further legal advice and representation.

23 In his affidavit dated 18 April 2001, the applicant deposes that he had "recently" engaged the services of Mr Colin Touyz of Hammond King Touyz and Mr T Percy QC who had both agreed to act for him on a pro bono basis.

24 In his affidavits Mr Touyz states that he happened to meet the applicant about October 2000. They had attended the same high school in South Africa, but had not seen each other for the past 24 years. The applicant told Mr Touyz about his legal problems in relation to the charges and that he could not afford any more money for legal fees. Mr Touyz deposes that later that month he contacted Percy QC who agreed to look at the papers and give advice if Mr Touyz could prepare them.

25 Mr Touyz wrote to the Crown on 25 October 2000 enquiring whether the Crown would consent to leave being granted. He deposes no response was received. He concedes that it took "a long time" to actually lodge the application for leave to appeal but states that this is no fault of the applicant; it was due rather to Mr Touyz' lack of experience in criminal matters, his existing fee-paying workload and the need to obtain advice on a pro bono basis from senior counsel who was also very busy.

26 In his affidavits the applicant explains that his particular concern in wishing to pursue the appeals is because he and his family are temporary residents of Australia under a business skills visa, one of the conditions of which is that the holder not have a criminal record. Another condition is that he invest $250,000 to establish a business in Australia which employs at least three Australian citizens. Compliance with the visa requirements may allow the applicant and his family to attain permanent resident status and ultimately Australian citizenship.

27 To satisfy the visa requirements he started a pawnbroking business because that was an area in which he had some commercial expertise from South Africa. Should the convictions under the Pawnbrokers Act stand, the applicant will have a criminal record which would jeopardise the chances of him and his family being able to remain in Australia.

28 In his supplementary affidavits, the applicant gives further reasons for the delay. He says these are that he did not know what the time limit was for applying for leave to appeal, that he misunderstood what the implications of summary convictions under the Pawnbrokers Act were, that he had difficulties in engaging legal representation, a lack of financial means and that he did not know that he had viable grounds to appeal. He gives details of his financial circumstances. For present purposes it is sufficient to note that it seems his business income is almost entirely absorbed by expenses and he has minimal financial resources to engage further legal representation.

29 The principles in respect of applications for extension of time are now well established.

30 Where the delay is substantial, as here, an extension of time will only be granted where exceptional circumstances are shown or where there has been a substantial miscarriage of justice which would remain uncorrected if the extension were not granted (Lancaster v The Queen [1989] WAR 83, 85 per Malcolm CJ; Holcroft v The Queen, unreported; CCA SCt of WA; Library No 970550; 28 October 1997). It has not been suggested there are any exceptional circumstances here and I do not consider any have been shown.

31 It is necessary therefore to look at the merits of the proposed appeals.

32 The proposed grounds of appeal were amended by leave at the hearing before me. As amended, the proposed grounds are:

"(1) The learned Magistrate erred in law by failing to disqualify himself from the hearing of the complaints.

Particulars

(a) The same Magistrate heard a similar case against the applicant on 30 October 1999.

(b) The learned Magistrate in that case made adverse findings of fact regarding the credit of the witness, Luke Young, who gave evidence for the defence, and who was to give evidence for the defence in the present case.

(c) There was accordingly reasonable apprehension of bias, being that the Applicant would not receive a fair hearing on the present charges.

(2) The learned Magistrate erred in his application of the defence provided under Section 88(2)(b) of the Pawnbrokers and Second Hand Dealers Act 1994 (WA).

Particulars

(a) Section 88(2)(b) of the Pawnbrokers and Second Hand Dealers Act 1994 (WA) provides that it is an offence not to take reasonable steps to prevent the commission of an offence under the Pawnbrokers and Second Hand Dealers Act 1994 (WA).

(b) His Worship considered the test to be applied in considering that the test was effectively whether the Applicant could have exercised greater care than he in fact did.

(c) The correct test is not whether there were further measures that may have been taken by the applicant to prevent the commission of an offence, but rather whether the measures taken were reasonable.

(3) His Worship erred in law by failing to consider whether the alleged offences said to have been committed by Young, the employee of the Applicant, for which the Applicant was vicariously prosecuted, had occurred as a result of a mistake for the purposes of Section 24 of the Criminal Code and were thereby excused.

Particulars

(a) The offence for which the Applicant was charged was dependent on a breach of the _Pawnbrokers and Second Hand Dealers Act_1994 (WA) having been proved on the part of the employee, Young.

(b) The defence evidence was to the effect that the employee was acting innocently and this was a matter that should have been considered by the learned Magistrate.

(c) The evidence of the employee Young, given before the learned Magistrate expressly raised the likelihood of a defence under Section 24 of the Criminal Code, which the learned Magistrate was obliged to consider before moving to a consideration of the vicarious liability of the Applicant.

(4) His Worship failed to consider whether the action of the Applicant, said to constitute the offences (sic: offence) alleged to have been committed by the Applicant, namely complaint number 6193 of 1999, had occurred as a result of a mistake of fact for the purposes of Section 24 of the Criminal Code.

Particulars

(a) The evidence of the Applicant was to the effect that the Applicant may have mistakenly recorded an incorrect description of the goods.

(b) The evidence of the Applicant accordingly raised the likelihood of a defence under Section 24 of the Criminal Code, which the Learned Magistrate was obliged to consider.

(5) In relation to complaints 6194, 6195, 6198, 6201 and 6202 of 1999 the learned Magistrate erred in law by failing to give any or any adequate reasons for his decision.

(6) His Worship erred in law in ruling that the Applicant would not be permitted to lead evidence as to the particular offences alleged to have been committed by his employee, Young."

33 Before turning to the course of the proceedings and the reasons of the learned Magistrate, it is necessary to set out the relevant statutory provisions.

34 The applicant was charged for breaches of his obligations as a licensed pawnbroker. That is a person conducting the business of lending money on the security of pawned goods or receiving goods under a contract for sale where the seller has a right to buy back the goods (Pawnbrokers Act, s 3).

35 Section 41 requires a pawnbroker to maintain detailed records. It provides that:

"41. Records to be made by pawnbrokers

A pawnbroker must ensure that the following details are recorded in relation to each contract as soon as the information becomes available to the pawnbroker --

(a) a distinguishing number for the contract;

(b) the full name and current residential address of the party pawning the goods;

(c) the form of identification used to verify the identity of the party pawning the goods and the number (if any) of the identification document;

(d) the date and time of the contract;

(e) a description of each of the goods to be pawned including, where applicable to the goods, the type, size, colour, brand, serial number and any distinguishing feature;

(f) the amount lent in respect of each of the pawned goods;

(g) the interest to be paid on the amount lent expressed --

(i) as a percentage rate; and

(ii) as an amount in dollar terms to be paid for each week or month, as the case may be, of the loan;

(h) the types of charges that are, or may become, payable, including those that may become payable in the event of the sale of the goods, and the amount (if known) of the charges;

(i) the redemption period if it is longer than 3 months;

(j) the name of the person accepting the goods in pawn as, or on behalf of, the pawnbroker;

(k) the amount of any repayment made towards satisfaction of the loan;

(l) the premises where the goods will be located during the redemption period, and if the goods are moved, the name and address of the location of the goods;

(m) if the redemption period is extended, the new redemption period and the date of the agreement to extend the period;

(n) if goods are redeemed, the date of redemption;"

36 Section 43 sets out a range of specific details of transactions which must be recorded by second-hand dealers.

37 In this case the prosecution relied on s 88 of the Pawnbrokers Act, the terms of which are:

"88. Licensee's liability for employees, agents

(1) Where a licence is held by a natural person and an employee or agent of the licensee commits an offence against this Act for which the licensee would have been liable had it been committed by him or her, the licensee is to be treated as having committed an offence and is liable to the penalty prescribed for the offence committed by the employee or agent.

(2) Proceedings under this section may be taken against a licensee whether or not proceedings are taken against the employee or agent and whether or not the employee or agent was convicted of the offence.

(3) In proceedings taken under this section --

(a) it is not a defence that the licensee did not know, or could not reasonably have been aware of or have prevented the offence being committed by the employee or agent;

(b) it is a defence, proof of which is on the licensee, that the licensee had taken reasonable steps to prevent the commission of the offence."

38 When the consolidated complaint came before the learned Magistrate for trial on 30 November 1999, counsel for the applicant sought an adjournment. A number of reasons were advanced. They included that the matter was not prepared as fully as it could have been because the firm of solicitors who were acting for both the applicant and a co-accused, Mr Young ("Young"), had only lately realised there would be a potential conflict of interest and advised the applicant and Young to seek independent legal advice. Counsel's first consultation with the applicant had been only a few days earlier. Young had been charged with eight of the 11 offences with which the applicant was charged. As counsel explained it, one question would be whether Young had himself breached the Pawnbrokers Act because if he had not, then the applicant could not be guilty; however even if it were established that Young was in breach of the Act, it would still be open to the applicant to show that he had taken all reasonable steps to prevent the breach occurring. The charges against Young were not to be tried that day. Counsel further added that it had been desired to call Young to give evidence on the applicant's behalf, but he had not made himself available and was not in attendance. In response to questions from his Worship, counsel said Young was still in the employ of the applicant and he was unable to explain why Young was not present.

39 At that point counsel informed the learned Magistrate that both Young and the applicant had appeared before him previously on a similar matter in which the applicant was the defendant and Young was a witness. It was said that on that occasion adverse findings were made as to Young's credibility in that the learned Magistrate did not accept his evidence. The concern was that it was the same kind of charge under the same legislation and the defence made there, of "human error", was one which was to be raised in the present trial. In the circumstances it was counsel's submission that the two accused should be tried together before a different Magistrate.

40 That application was opposed by the police prosecutor. He pointed out the matter had been listed for over two months, the police witnesses were in attendance, the matter was not complicated and it should proceed.

41 His Worship refused the adjournment. As to the perception of bias point, he stated that the only sense in which an adverse finding had been made by him on the previous occasion was that he found the charge against the applicant proved. It was not a situation in which he had found against the applicant on credibility grounds. Although not entirely clear, the effect of his Worship's remarks was that he did not accept the circumstances were capable of giving rise to a reasonable apprehension of bias. His Worship then stood the matter over until the afternoon.

42 When the matter resumed that afternoon, counsel renewed his application for an adjournment. That was on the basis that Young had arrived and so the situation would be one in which there would be a witness for the defence in respect of whom it was said the learned Magistrate had made an adverse finding on a previous occasion only some two months earlier and that did give rise to a perception of bias. The submission was not particularly well expressed: it seems to have been put more on the basis of a renewed application for a joint trial before a different Magistrate than specifically an application that his Worship disqualify himself. As put, the argument was that the potential problem was that the learned Magistrate might find that both Young, as the employee, and the applicant as employer, were in breach of the Act, whereas at a later date a different Magistrate hearing the case in respect of Young, might find the charge against him had not been proved. There was a potential for inconsistent verdicts. And for that reason it was desirable to have both matters tried together.

43 In his further ruling refusing the renewed application for an adjournment, the learned Magistrate also dealt with the issue of bias. There is no ground of appeal going to his refusal to adjourn the proceedings and so I need not deal with that. On the bias point, his Worship said (at t 14):

"It's been suggested that there's a perception of bias based upon the proposition that because I heard an earlier matter I simply shouldn't hear continuing matters. Magistrates are often required to deal with issues where the defendants are known to them. It's just a fact of life. It occurs when magistrates are based in the country and it occurs when magistrates are based in metropolitan courts.

The court should be mindful of the fact that some defendants believe that they're facing a biased hearing or that there's a perception that they may face a biased hearing but, in my view, that is not the case. I made a finding with respect to specific evidence that was put before the court in relation to I think one matter involving Mr Heathcote. It's also suggested that because he's now exercised his right of appeal that's an additional aspect of bias. That's not a proposition which I accept and I don't accept it's a proposition that any reasonable person could accept."

44 The previous proceedings to which counsel had referred had been conducted before his Worship on 6 October 1999. (The date of 30 October 1999 referred to in the ground of appeal is the date upon which the decision was handed down). The transcript is annexure DJH7 to the applicant's affidavit sworn and filed on 3 May 2001. The charge on that occasion was that on 5 May 1999 the applicant, being a licensed second-hand dealer, entered into a contract with another person and failed to correctly describe the goods transacted. He pleaded not guilty. The prosecution case was that a customer had pawned a Mercedes Benz wrist watch, and although the applicant (who had personally handled the transaction) had recorded relevant details, he had not made a note of the serial number. Two police officers inspected the watch the following day. Their evidence was that the number was clearly visible on the back of it. This was disputed by the applicant, who testified that the number was visible only when the watch was held at a certain angle to the light and that he had missed seeing it completely (the watch itself was not in evidence).

45 The witness, Luke Young, the applicant's employee, had testified that when the customer brought the watch in, the applicant, being new to the business, took it to Young who was then dealing with another customer, and asked what price he should give for it. Young said he looked at the watch thoroughly on that occasion but did not think it worth much. In cross-examination he said he looked at the watch carefully. It is apparent he was saying this in the context of making an assessment of the value of the watch. He was not asked, and said nothing about, whether he noted the serial number at that time. Young testified he was present the following day when the police officers came to the store and when they asked the applicant why the serial number had not been recorded. Young said that he himself then looked at the watch and explained the watch was old and worn and that the number was:

"... something that could easily have been missed." (DJH7, p 8)

In re-examination he conceded that he had been able to see the number with his naked eye, although it was necessary to hold the watch in a certain way against the light to do so.

46 The learned Magistrate found the applicant guilty of that offence. In his reasons for decision he said (ibid transcript 23):

"It has been put to the police officers that it was difficult to see, neither of them accept that proposition. I have heard evidence from Mr Young about examining the watch on the day it was received, in circumstances where he was then involved in conducting an interview. I do not accept Mr Young's evidence that he looked at the watch thoroughly on that occasion, because in my view, on the evidence of the police officers, if the watch had been thoroughly inspected the serial number would have been observed and could have been recorded. Mr Heathcote, he simply made a genuine mistake, he did not observe the serial number. If he had observed it, he would have recorded it."

47 He went on the conclude that had the applicant exercised the degree of care required, he would have seen the number and recorded it.

48 I had occasion to examine the principles relating to disqualification on the ground of perception of bias in R v Pinkstone & Ors [2001] WASC 252. I reiterate some of what I said there.

49 It is now well established that the relevant test in respect of a claim of bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question in issue (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-294; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 261-262, 264, 267; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 349, 351, 359, 368, 371; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 575, 584; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 20; Webb & Hay v The Queen [1994] HCA 30; (1993-1994) 181 CLR 41, 47, 50-51, 53, 67-68).

50 In Trustees of Christian Brothers v Cardone [1995] FCA 1309; (1995) 130 ALR 345, Gallop J, although in dissent in the outcome of the appeal before the Full Court of the Federal Court, set out a useful summary of the principles to be derived from the authorities. A reading of the judgment in that case reveals that there was no difference between their Honours on the principles to be applied; it was their application to the circumstances of the particular case upon which they differed.

51 Gallop J summarised the position as follows (at 350-351):

"On the one hand there are the repeated assertions of the courts that:

(a) Judges by their training and experience are able to bring a detached mind to the task in hand: see R v Leckie; Ex parte Felman (1977) 18 ALR 93; 52 ALJR 155 at 160;

(b) Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239;

(c) Judges should resist being driven from their courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 4) (1986) 6 NSWLR 674 at 689;

(d) Judges should not be disqualified because of the vigour with which they conduct proceedings, some degree of judicial intervention being necessary for the fair disclosure of their provisional views: Galea v Galea (1988) 19 NSWLR 263 at 278f; Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd [1990] HCA 27; (1990) 94 ALR 1; 64 ALJR 495; and

(e) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily then fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 9) (unreported).

On the other hand, a series of recent decisions of the High Court have stressed the very high standards of manifest neutrality and impartiality established by that court for observance by every judicial officer in the courts of Australia. The common thread which has run through the High Court's decisions has reflected the high importance attached by the High Court to the manifest observance of judicial impartiality in this country. This can be seen, for example, in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; 9 ALR 551; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; 47 ALR 45; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; 66 ALR 239; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; 87 ALR 633; Grassby v R [1989] HCA 45; (1989) 168 CLR 1; 87 ALR 618; and Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 93 ALR 435; 64 ALJR 412 at 419.

The test as formulated by the High Court in determining whether a judicial officer ('a judge') is disqualified by reason of the appearance of bias as distinct from proved actual bias is whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue. The quoted words in the statement of the test are taken from the judgment of the High Court in Livesey v New South Wales Bar Association, supra, at CLR 293-4."

52 The issue goes to confidence in the integrity and impartiality of the judicial system itself and so is of fundamental importance. The decisions indicate the "very high standards of manifest neutrality in and impartiality to be adhered to by courts in Australia" (Agostinelli & Lewis v R (1995) 82 A Crim R 326 at 337).

53 In Re JRL; Ex parte CJL, supra, at 351, Mason J (as he then was) said:

"The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Watson; Ex parte Armstrong at 258-263; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done."

54 But as Gibbs CJ pointed out in Simpson; Ex parte Morrison [1984] HCA 25; (1984) 154 CLR 101 at 104, the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.

55 As Nyland J expressed it in Agostinelli, supra, at 337:

"The test is thus an objective test of whether in all the circumstances a person might reasonably entertain an apprehension of bias. Expressed in terms of the possibility rather than the probability of bias (might entertain a reasonable apprehension that the judge might not...), this is not a particularly difficult test to satisfy. The question whether such a reasonable apprehension might exist is to be determined by the standard of the reasonable observer. The reasonable observer is presumed to have a degree of knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87, and is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality: Livesey at 299."

56 The point that judicial officers should not too readily accede to applications that they disqualify themselves from sitting on cases to which they have been assigned, and which (absent a proper ground for disqualification) they would have a duty to hear, was explained (pertinently to the present application), by Mason J in Re JRL (supra) at 352:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [1976] HCA 39; (1976) 136 CLR 248 and Livesey [1983] HCA 17; (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14, 32 ALR 47, at pp 50-51. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

57 In Julien v Racing Penalties Appeals Tribunal of WA & Anor [2001] WASCA 345, an application for certiorari to set aside a decision by the Racing Tribunal in not quashing a decision of Racing Stewards finding the applicant guilty of presenting a greyhound to compete with an excess drug level was dismissed. The ground relied upon was that there was a reasonable apprehension of bias on the part of the Stewards. The finding was made on a second inquiry after an earlier appeal to the Tribunal had been upheld. The same Stewards conducted both inquiries and had made adverse findings regarding the applicant and his witness after the first inquiry. Malcolm CJ (with whom Wallwork and Owen JJ agreed) pointed out (at [59] ibid) that the general rule is that a judicial officer who has formed a view on an earlier case on the same facts or on the same witnesses' credibility is disqualified from trying the second case, but added (at [60] ibid) that even if credibility findings were made in the first hearing, the question remains whether in all the circumstances a reasonable person in the position of the applicant would be entitled to have a reasonable apprehension of bias. On a full reading of his reasons it is apparent his Honour was using that expression in the sense that, upon the further hearing, the Stewards could not be persuaded from the views which they had previously expressed. That case is to be distinguished from the present because of the general principle that actual bias must be proved against a consensual tribunal (Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161, 170-171) which the Racing Tribunal was. Nonetheless, whether it be referrable to a perception of bias in respect of a court, or actual bias in respect of a consensual tribunal - in either case the relevant bias is that of prejudgment, namely that the judicial officer or tribunal will not decide the case impartially or without prejudice.

58 It can readily be seen from the decision actually made by the learned Magistrate here that, notwithstanding the assertion in ground (1), he did not in the earlier proceedings make adverse findings as to Young's credibility. The point on which he did not accept Young's evidence was peripheral and in the circumstances involved no implication that he regarded him generally as an unreliable or untruthful witness. Although ground (1) is confined to what is said to be the learned Magistrate's view of the witness Young, nor does the fact that he decided that charge adversely to the applicant give rise to a reasonable apprehension of bias on his part. His finding simply was that the applicant had made a genuine mistake (albeit due to carelessness) in not recording the number of the watch because he did not see it. In these circumstances the applicant has not shown that a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable belief that the learned Magistrate might not bring an impartial and unprejudiced mind to the resolution of the proceedings on the consolidated complaint. Ground (1) must fail.

Ground (2): Test under s 88(2)(b) of the Pawnbrokers Act

59 This ground complains that the test applied by the learned Magistrate was effectively whether the applicant could have exercised greater care than he in fact did, whereas the statutory test is whether he had taken reasonable steps to prevent the commission of the offence.

60 It is necessary to briefly refer to the nature and conduct of the applicant's business so that his Worship's approach to this issue can be seen in context. The following brief outline is drawn from the reasons for decision given on 3 December 1999 (annexure DJH 3 to the applicant's affidavit sworn 18 April 2001).

61 The applicant was an immigrant from South Africa and decided to invest in a pawnbroking business in Western Australia. He had no experience nor understanding of the industry, nor the practice in or obligations imposed by the legislation in respect of it. He accordingly advertised for a staff member and employed Young, who had experience in a competing franchise business. They ran the applicant's pawnbroking business together, with the applicant relying heavily on Young's expertise, and that continued until the involvement of the police.

62 Police officers conducted an audit of the business and found discrepancies or omissions between some goods and the applicant's records in relation to them.

63 Having expressly referred to the relevant terms of the legislation, his Worship dealt with the specific transactions the subjects of the various complaints. He dealt first with those on which the applicant himself had conducted the transactions and in respect of which therefore no question of the application of s 88(2)(b) arose. One concerned alleged misdescription of a bicycle as being black when in fact it was dark green. His Worship considered a photograph of the bicycle taken in sunlight showed it to be of such a dark green that even in the photograph it appeared black in some aspects and it would have been reasonable for the applicant to regard it as black. He dismissed that complaint.

64 The second complaint related to a heater. It was alleged the applicant had failed to record numbers and figures shown on the heater and its box. His Worship found they were clearly distinguishing features and the applicant was obliged to record them. He found that charge proved.

65 The third complaint concerned a telephone recorded by the applicant as being a "Nollia", when in fact it was a Nokia telephone. His Worship regarded that as clearly a genuine mistake viewed in light of the fact that the serial number had been correctly recorded. He considered the complaint should never have been laid and dismissed it.

66 His Worship then turned to the balance of the charges in respect of which the provisions of s 88 were applicable. At p 5 of the transcript (p 87-88 of the applicant's affidavit sworn 18 April 2001) his Worship said:

"The question I've got to ask is 'Has he established on the balance of probabilities that he's taken reasonable steps to prevent the commission of the offences?' I've already referred to the background and the experience of the defendant and Young. It's been established that a warning letter was sent by police and that the incidents now under review occurred after receipt of the same. I've heard evidence from the defendant that following the receipt of that letter from the police he told Young that he'd have to cross his Ts and dot his Is. But what actually was done apart from that advice?

Young said that there was no specific training undertaken. He testified that each - that is, the defendant and himself - were learning as they went and each - that is, the defendant and Young - spoke of information being obtained and tuition being sought from the designer of the software package which Young said was similar to that in use at his previous employer's business. The defendant admits that he did not put Young through any specific training programme and I find that, because of his prior lack of experience in the industry, the defendant in many instances relied on his employee for guidance rather than the other way around.

It may be unfortunate for the defendant but in doing that I believe he's abrogated his responsibilities under the Act. Clearly the defendant could have done earlier what he now relates in evidence. He could, for example, have assumed a greater level of responsibility for his employee's action. He could have undertaken spot checks on a random basis. He could have had a clear system in place which compelled his employee to report to him any transactions requiring a value judgment relating to omission or inclusion of information and in so doing, if he could point to a reasonable step which accommodates the provisions of the governing legislation, he would not find himself in the position he now occupies.

I also should make the point that in some instances clearly some of the matters in the complaints are not simple misdescriptions or matters open to interpretation as they represent a total failure to record what is clearly a distinguishing feature; for example, the branding or engraving of the tools. Clearly branding or engraving of tools is something which is commonly done to enable the owner of the tools to identify an implement otherwise indistinguishable from its mass produced counterparts.

I refer also to the brand name on the gold buggy. Clearly the buggy is branded 'Proline'. If that information had been recorded it may lead to the recovery of stolen goods because if there's a certain number of clubs in a certain type of bag and they're attached to or placed upon a certain type of buggy then the information may well lead, as I say, to its recovery. There's also a failure to properly record the name of a gas bottle. A Champion gas bottle is clearly not a Companion gas bottle as a Holden car is clearly not a Ford car.

I accept that the legislation may well create some difficulties for the defendant. It may be that it requires the defendant to put on extra staff, to train staff more stringently or to slow down, for example, the rate at which transactions are processed, to ensure the accurate recording of information. Those are no doubt matters in relation to which the defendant may well make a decision based on economic grounds, but if implementing change is the price that has to be paid to comply with the legislation then so be it.

As I said, Parliament has made the rules in what seem to be a clear and unequivocal term (sic) and, in my view, in the absence of the type of checks and procedures, examples of which I've cited above, the defendant allowed his employee to proceed unfettered and therefore has not taken reasonable steps to prevent the commission of the offences.

In my view, on the evidence in front of me, in relation to the matters laid under the provisions of section 88, the defendant has not discharged the onus which rests upon him. So as I've indicated, two of the three complains involving transactions in which the defendant was personally involved are dismissed, the third is proven and the eight charges under the section 88 provisions, in my view, have been proven."

67 It is apparent from these passages that his Worship began by correctly stating the statutory test and referred to it again in the penultimate paragraph quoted above. His Worship's comments concerning other measures that could have (and some of which apparently subsequently had) been taken, do not in my view reveal some different test of whether the applicant could have exercised more care than he did, but illustrate his reasons for concluding the applicant had not shown that he had taken reasonable steps to prevent the commission of the offence. There is no substance in this ground.

Ground (3): Honest and reasonable mistake of fact; offences allegedly committed by employee

68 This ground asserts that the applicant's employee, Young, was "acting innocently" and that his evidence expressly raised a defence under s 24 of the Criminal Code (WA), which the learned Magistrate had to consider before any question of the vicarious liability of the applicant could arise.

69 Young was called on behalf of the applicant. Prior to commencing employment with the applicant in April 1999 he had previously worked for three years with Cash Converters. He had experience in buys and loans, had acted in a supervisory role and was familiar with computers. He had been charged with eight offences of failing to record information correctly. (It was common ground these were the eight offences with which the applicant had been charged under the vicarious liability provision, s 88 of the Pawnbrokers Act).

70 Counsel for the applicant then took the witness to one of those charges relating to a Nintendo computer game and asked him to tell the court about it. There was then the following exchange (t 56-57):

"HIS WORSHIP: What aspect of it do you intend to ask him about?

COUNSEL: Just to explain how it came about.

HIS WORSHIP: How what came about?

COUNSEL: How the error came about?

HIS WORSHIP: Well, I don't believe that the witness should be obliged to answer a question of that kind in view of the fact that he's been charged with a similar offence - -

COUNSEL: Well, that means that the problem - -

HIS WORSHIP: - - or an offence.

COUNSEL: - - that I had from the outset, which is that - -

HIS WORSHIP: That's quite right.

COUNSEL: Which is that if - - there's been no explanation given as to the commission of these offences because - -

HIS WORSHIP: Yes.

COUNSEL: - - Mr Young was not - - sorry; Mr Heathcote was not the one who did them. Now, it may be the case that the explanation is a reasonable one that relieves Mr Young of responsibility for breaching the Pawnbrokers Act.

HIS WORSHIP: Well, you could ask - -

COUNSEL: If that was the case - -

HIS WORSHIP: You could ask - -

COUNSEL: - - it would also relieve Mr Heathcote.

HIS WORSHIP: You could ask this witness about whether or not there's any system in place in relation to issues without asking him about specific transactions.

COUNSEL: Yes. But that addresses only one part of the defence. There were two defences for Mr Heathcote. One is under section 88. The other is just that the charges may not amount to a breach of the Act. And if I can't ask him those questions then it brings me back to the very unfairness that I spoke of when applying for the adjournment.

HIS WORSHIP: Yes. Well, my view is you can ask him questions about any system that's in place but with respect to specific transactions the witness shouldn't be required to answer."

71 From that point counsel confined his questions to discussions between the witness and the applicant about the recording of information and the systems and training put in place for that. The evidence-in-chief was brief and was to the effect that having recently come from South Africa the whole system was completely new to him and it was the witness who had knowledge of the system and he was helping the applicant through it. There had been visits from the police, who had first warned them and then laid charges. As a result of those visits the witness and the applicant had discussed the need to "Dot your i's and cross your t's", by which Young said was meant the need to be humanly perfect about every aspect of pawnbroking. There had been no specific training on the computer system; it was a new program which both had been learning as they went.

72 In cross-examination, when the police prosecutor began to ask the witness how he could make "these mistakes" (referring to the subjects of the eight charges) only a week after he had been told to "dot (his) i's and cross (his) t's", the learned Magistrate interrupted (t 59):

"HIS WORSHIP: Well, again - - well, you're intruding onto the issue.

PROSECUTOR: Yes. I'm trying to keep it as broad as I can, sir.

HIS WORSHIP: Yes, I know. Well, yes. It may be broad enough.

WITNESS: Well, I mean, the - -

HIS WORSHIP: Just be aware of the issue.

PROSECUTOR: Yes, sir, I am.

WITNESS: The - - the thing to that is - - I mean, a receptionist who is trained in typing still makes mistakes and is allowed a percentage in mistakes. I mean, her job is to type. Yet she is allowed to make mistakes - -

But you accept that - - ? --- - - because that's a human thing.

Yes. But you accept - -? --- I mean, humans aren't perfect.

But do you accept that - -? --- We're not computers."

73 The cross-examination did not further descend to the details of any of the relevant transactions. On the issue of training the witnesses' evidence was encapsulated in the following exchange (at t 61-62):

"In the time you've been with Mr Heathcote you'd had no specific training, you were learning as you go, and it was sort of similar to the other programme. That would be a fair summing up of what you've said?---I would say I'm expressly experienced within pawnbroking.

But we're talking about since you came there. You've really had nothing - - you've just gone on previous experience and previous - - what you've done, haven't you? That's really what it boils down to. You've had no - -?---What I have learned within 3 years - -

No steps from - -?---What I have learned in 3 years of the industry I took with me to help David set up his business.

But Mr Heathcote has never given you any steps towards improving your performance, has he?---Yeah. He turned around and said make sure I cross my Ts and dot my Is, mate.

PROSECUTOR: Yes. But he just talked to you. He didn't get you trained, didn't get any experts in a training programme, didn't send you to a course?---How do you train someone into dotting your Ts and crossing your Is?"

74 There was no re-examination. There was in fact no evidence of training courses nor any other specific measures other than spot-checking transactions, designed to ensure compliance with the recording requirements of the legislation.

75 In his final submissions to the learned Magistrate in respect of the eight vicarious liability charges, counsel for the applicant put his argument in terms of the applicant having established that he had taken reasonable steps to prevent the commission of the offences, otherwise saying only that (t 67):

"... the other matters, sir, as I say, are put down to human error...."

76 Given the course of the proceedings in accordance with his Worship's ruling on the point, there was, of course, no evidentiary foundation for such a submission.

77 I respectfully agree with Wheeler J in Ferrari v Neenan [2000] WASCA 191, citing Geraldton Fishermen's' Co-op v Munro [1963] WAR 129, that the defence of honest and reasonable mistake of fact under s 24 of the Criminal Code (WA) applies to offences under s 41(e) of the Pawnbrokers Act for the reasons there given by her Honour (at [4] - [16]).

78 Vicarious liability under s 88 of the Pawnbrokers Act is derivative; that is to say if no offence has been committed by the employee then no offence can have been committed by the licensee. This necessarily follows from the express wording of s 88(1) itself. The position is not dissimilar to that in respect of the derivative nature of accessorial liability (as to which see eg Glennan [1970] 2 NSWR 421, 424; Howell v Doyle [1852] VLR 128, 132; Jackson v Horne [1965] HCA 44; (1965) 114 CLR 82, 94; Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409, 417 and Bowern (1915) 34 NZLR 696, 703).

79 The approach sought to be taken by counsel for the applicant in the court below was therefore well-founded in law. If, in respect of any one or more of the eight vicarious liability offences, evidence given by the employee Young was to raise the issue that the alleged non-description or misdescription was the result of an honest and reasonable mistake of fact on his part, the onus of disproving that beyond reasonable doubt would then have fallen on the prosecution (per Dawson J, in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 592-593) and if that onus was not discharged, Young would not have committed an offence under s 41(e) and the applicant could not have been vicariously liable under s 88.

80 The learned Magistrate appears to have taken the view that questions which might elicit from Young answers which could incriminate him in relation to the very offences with which the applicant was charged should not be put. In his earlier ruling refusing an adjournment his Worship had expressly referred (at t 14) to the prospect that if Young were called as a witness a decision might have to be made under s 11 of the Evidence Act 1906 (WA). In the event, when the time came, no mention was made of that provision.

81 Section 11 of the Evidence Act provides that where a witness declines to answer a question on the ground that the answer may tend to incriminate him or her, the Judge or Magistrate may compel them to do so on the issue of a certificate and in such circumstances the answers given would not then be admissible in criminal proceedings against that witness. The procedure afforded by s 11 is equally available to a witness for the defence as to one called by the prosecution (Woods v Smith [1976] WAR 13 (FC)).

82 In his particulars to ground 3 of his proposed grounds of appeal the applicant asserts that:

"... the defence evidence was to the effect that the employee was acting innocently...."

"... the evidence of the employee Young, given before the learned Magistrate, expressly raised the likelihood of a defence under s 24 of the Criminal Code...."

83 These assertions, I think, put it too highly: the applicant was not able to give evidence of the relevant transactions made by Young and because of his Worship's ruling Young was not permitted to be asked about them. But that in itself shut the applicant out from adducing relevant and admissible evidence which, even if the witness had claimed privilege against self-incrimination (which he did not - see Attorney-General v Cockram (1990) 2 WAR 477) could have been adduced had a certificate been granted under s 11 of the Evidence Act. In that way the applicant was prohibited by the learned Magistrate from raising a defence which was open to him as a matter of law and which, if not then disproved by the prosecution, would have resulted in a finding of not guilty. That was clearly an error of law on the part of the learned Magistrate. Ms Thatcher, who appeared for the respondent, did not contend otherwise. She conceded "it would be very difficult to argue that his Worship was entitled to do what he did."

84 The question then is whether the respondent has demonstrated that despite the error, no substantial miscarriage of justice has occurred (s 199(b) of the Justices Act 1902 (WA)). For the respondent it is said that nothing had been put forward even to the time of the application before me to suggest anything could have been put to give rise to a defence under s 24. She said the respondent would not oppose further evidence being advanced on the point even at that stage. Mr Harris, for the applicant, subsequently sought leave to file a further affidavit by Young on that issue. I gave leave to both parties to file further affidavits and written submissions.

85 The applicant subsequently filed a further affidavit of Luke Young sworn 29 August and the parties filed additional submissions each dated 7 September 2001.

86 In that affidavit Young gave details of the eight individual transactions. He was not cross-examined on his affidavit and as it is not challenged, his evidence in that regard must be accepted. The respondent's argument, shortly expressed, is that the explanations put forward by Young do not give rise to a s 24 defence in that they do not suggest he did (or omitted to do) an act under an honest and reasonable but mistaken belief in the existence of a state of things. It is accordingly necessary to consider Young's explanation in respect of each of the eight relevant charges.

87 Charge 6194 of 1999 alleged a failure to record a Nintendo Mario Kart Game cartridge placed on loan. Young deposes that the particular contract included a Nintendo Game console, three game cartridges and other items. He failed to record one of the game cartridges because he recognised the customer, who had pawned the games console and two cartridges on previous occasions. Because the customer told him the same items were being pawned again, he believed her and copied over the computer record of the previous transaction. On behalf of the applicant it is said Young simply did not notice the third game cartridge, was misled by the customer and that given the history of loans in relation to these particular goods his mistaken belief that there were only two cartridges was both honestly and reasonably held. For the respondent it is said that the items having been in front of him it was not reasonable for Young to have failed to note the third cartridge, that is to say, even if he had a positive belief there were only two cartridges, such a belief would not have been reasonable in the circumstances. I accept the respondent's submission.

88 Charge 6195 of 1999 alleged a failure to record a "Lifinia" backpack in relation to contract number L99126. Young deposes that this was an old bag with holes in it and no discernable brand name. It was not a backpack. He states that he still has no idea where the word "Lifinia" comes from. The loan given under this contract was based on a CD player, a Sega megadrive, two CDs and a juicer. All of those items were recorded accurately. He states that the customer requested he keep the items together for her and she provided an old bag for the purpose. He deposes that the bag was not part of the contract but was merely to store the items and he was accordingly correct in not describing it on the contract.

89 In his submission Mr Harris points out the defence in this regard is not so much in reliance upon s 24 of the Criminal Code, but rather that the elements of the offence could not be said to be made out beyond reasonable doubt. The submission is that the goods did not form part of the contract and accordingly a description of the backpack was not required to be recorded because the backpack did not constitute "goods to be pawned" pursuant to s 41(e) of the Pawnbrokers Act. Against this, the respondent submits that the explanation given by Young does not give rise to a s 24 defence, but might give rise to a defence that the backpack was not an item to which s 41(e) applied.

90 Given that this evidence is unchallenged, in light of it, the prosecution could not establish that the backpack was "goods to be pawned" within the meaning of the section and accordingly there was no requirement for its details to be recorded. The refusal of the learned Magistrate to allow this evidence to be given at trial accordingly amounted to a substantial miscarriage of justice.

91 Charge 6916 of 1999 alleged a failure to record a Pro-line golf buggy in relation to loan contract number L99131.

92 According to Young, the loan under this contract was for a Bronson golf bag containing clubs. He described the items as "golf accessories" and the "make" as a "Bronson bag with Pro-Simmons clubs full set." He states that he recorded the items as "golf accessories" based on his experience in the industry, which was that golfing equipment was always described in that way. He further deposes that he honestly thought that the golf buggy which was firmly attached to the bag, was likewise covered by the description "accessories". Different golf bags and buggies come in many variations. Very often the wheels are actually fixed to the golf bag itself; some bags have wheels which can be removed and sometimes they are two separate items. He states his belief was that the descriptions fully identified what the item was. The respondent points to s 41(e) which requires that a description of each of the goods to be pawned must include, where applicable, the type, size, colour, brand, serial number and any distinguishing feature. The golf buggy was of a different brand to the bag and its details were not recorded. It is submitted that a "belief" that the term "golf accessories" is a sufficient description of a different brand golf buggy attached to a bag is not a belief as to a matter of fact. Furthermore, any such belief held by Young would not have been reasonable given he had the items in front of him for inspection at the time. In my view the respondent's submissions must be accepted.

93 Charge 6198 alleged the serial number of a Siemens mobile telephone had been incorrectly recorded. Young deposes that the other items in that contract for a loan were a mixer, an ornament and a plate, all of which he recorded correctly. His mistake in relation to the serial number was to accidentally type in an extra digit (number 7) instead of being 44691961978526 he typed 446919519778526. He states that the serial number was very long and he mistakenly kept his finger on the number 7 on the keyboard too long so that an extra 7 came up. He did not know at the time he had made that mistake; it was a human typographical error, honestly made.

94 The applicant characterises this error as a mistake of fact in that it is evidence that Young had an honest and reasonable, but mistaken, belief that he had typed in the correct serial number. The applicant also points out that the incident involved a far less degree of error than that relating to charge 6197 (the "Nokia" mobile telephone) which the learned Magistrate dismissed. It is argued that given his Worship's dismissal of that charge, had Young been permitted to testify in relation to the Siemens transaction, it is highly likely he would have disposed of that charge in the same way. For the respondent it is submitted that whilst the error may well have been a "human typographical error honestly made" it did not constitute an honest and reasonable mistaken belief as to a state of things and so does not give rise to a defence under s 24 of the Criminal Code. I accept the applicant's submissions in respect of this transaction. Notwithstanding the importance of accurately recording serial numbers for the purposes of this legislation (as to which see the observations of Scott J in McKinnon v Weir, unreported; SCt of WA (Scott J); Library No 970251; 21 May 1997 at 3), the number was a long one and the error was one easily made and not readily apparent. In the circumstances, Young's belief that he had correctly recorded it could not be shown to be an unreasonable belief.

95 By charge 6199 it was alleged that there was a failure to record identification engravings on hand tools in relation to a loan contract. According to Young's affidavit, the items in respect of which this loan was granted, were a speaker and approximately 155 assorted tools. The engravings referred to in the charge are the word "Sheep" which he deposes were engraved "very faintly and in small lettering" on four of the approximately 155 tools. He deposes that he did not see the engraving. He appreciated that his task was to describe the goods. The tools were all contained in a box of mixed tools from which he picked out a number at random to inspect them more closely. That inspection did not cover the four tools which had faint engraving on them. He states that when looking at a box of some 155 items, one would not usually inspect each and every single item. His understanding was that the legislation did not require itemisation of each and every tool, which would be impracticable for large boxes of tools, which are a very commonly loaned item. He deposes that he simply did not see the engraving and if he had seen it, he would have mentioned it in the description on the contract. For the applicant it is submitted that as Young's inspection of the tools at random did not lead to discovery of the engraved word "Sheep" on four of them, he honestly believed that the tools did not contain that distinguishing feature and that such belief was reasonable given the number of tools in the box. On behalf of the respondent it is said simply that there is nothing contained in Young's affidavit which gives rise to a defence that he honestly and reasonably, but mistakenly, believed the tools were not engraved.

96 There is a conflict between Young and the prosecution witness Constable King here. The latter testified before the learned Magistrate that there were probably about 20 hand tools in the box of which at least half a dozen had that identification engraving on them (t 19). He reiterated that in cross-examination, maintaining (t 32-33) that the engraving was clear and relatively apparent. He said he would doubt there were 150 tools in the box.

97 Bearing in mind there is no onus upon a defendant to prove a defence under s 24 of the Criminal Code, it being sufficient for it to be raised on the evidence, I consider Young's evidence here is sufficient to discharge that evidentiary burden. His unchallenged evidence that he examined a number of the tools from the box at random and that none of those bore any distinguishing marks, gives rise to the inference in the circumstances that Young formed the belief that none of the tools had any distinguishing marks. That was a mistake. Given the number of tools in the box, the fact that only four (or even six) of them bore the engraved marks and that the engraving was in any event faint, it has not been shown that Young's belief was not reasonable. The defence has not been negatived in respect of this charge. There was accordingly a substantial miscarriage of justice.

98 By charge 6200 it was asserted that on 11 September 1999 there was a failure to record the correct name of a "Companion" gas bottle in relation to a loan contract. All Young says about this in his affidavit is that the brands "Companion" and "Champion" are both very popular makes of camping equipment and that when he was processing and recording the bottle he misread the name "Companion" as "Champion". The applicant characterises this mistake as a belief on Young's part that the gas bottle was a "Companion" make and that the mistaken belief was reasonable given the similarity between the two brand names. The respondent's contention is that the explanation does not give rise to a defence that he held an honest and reasonable, but mistaken belief, as to a state of things.

99 The merely careless incorrect recording of a brand name would not necessarily amount to a positive belief sufficient to raise a defence under s 24 of the Criminal Code. However, even were that so in this instance, and again having regard to the purposes of the legislation, it seems to me that such a belief could not be said to have been reasonably held. To conclude otherwise would largely negate the purpose of the legislation.

100 By charge 6201 it was alleged that there was failure to record any description of a Technics amplifier and Technics tuner in relation to a loan contract. According to Young's affidavit, he recorded three items, a Technics compact disc player, a Technics tuner and a Technics amplifier as a "Technics stereo system". As I understand his affidavit, his explanation is that he recorded the serial number of the compact disc player, but there was no description of the amplifier and tuner as separate items (nor at all). He states it was his belief that the equipment would be sold as a stereo system and that it was necessary only to record it in that way. In respect of this transaction the applicant's submission goes beyond the application of s 24. It is submitted that on Young's evidence, each of the component parts forms an integral part of the stereo system and that they were designed to operate together and were joined by leads for that purpose. It is said that the components were not separate goods but merely parts of the one system and that accordingly the description recorded was entirely correct. It is submitted in the alternative, that if that is not accepted, then Young's mistake was again one of fact and was reasonable. On the other hand the respondent submits that whether the component parts were sold as a stereo system or as individual items, the obligation under s 41(e) was to record all relevant details including the serial number. If each part had its own serial number (which I take to be the case) that should have been recorded regardless of whether or not the equipment constituted component parts of a system. Finally it is submitted for the respondent, that Young's affidavit does not give rise to a defence that he had an honest and reasonable, but mistaken, belief as to a state of things.

101 Again the purport of the legislation is clear and in my view a proper description of such items bearing individual serial numbers would require the recording of those serial numbers. If Young did have a mistaken belief about this, it seems to me to have been a mistake of law not of fact; but in any event, even if capable of being characterised as an error of fact, it is not one which would have been reasonable in the circumstances.

102 The final relevant charge was 6202 which alleged a failure to record the correct brand name of a Power acoustic car stereo in relation to a loan contract. Young deposes that he accurately recorded the other elements of the transaction, but in his haste misread "Power" as "Pro" and it was the latter which he recorded. As to this he states there are many different makes of acoustic systems, many of which have similar names, and even then the face plates contain a lot of writing and labelling such as "Power" and "Pro" and that sometimes it is difficult to discern between the make or brand of an item and a function performed by it. He gives the example that many contain the word "Power" to signify that the item is switched on, or alternatively, that it is a high-power system. He deposes that his mistake was honest and that in the circumstances the similarity of the word "Power" to the word "Pro" was reasonable.

103 It is apparent that the error here was the result of mere carelessness. In the circumstances, even if it did constitute an honest belief in a state of things, it would not have been a reasonable one.

104 For the reasons given above, ground 3 is made out in respect of charges 6195, 6198 and 6199 but must otherwise fail.

Ground (4): Honest and reasonable mistake by the applicant

105 This ground goes to charge 6193 of 1999, which relates to a failure to record the model number of a Kambrook heater in relation to a loan contract on 31 August 1999.

106 The evidence of Constable King was that the model number TH20 was clearly visible on the front of the box containing it and on the rear of the heater itself, but had not been recorded. In cross-examination he conceded that the template on the back of the heater showed TH20 as "CAT number" and that it could have been the catalogue number. However he said he regarded that as being the same as a model number, particularly where (as here) there was no separate model number shown. He pointed out that if he went into a store and ordered a Kambrook TH20 heater, he would be given this item. That number, he said, was a number or identifying feature which was required by the legislation to be recorded.

107 In his evidence before the learned Magistrate the applicant said that he could have been charged had he inadvertently recorded the wrong number and when asked what his understanding of what a catalogue number is, said (t 40):

"---Well, I remember the article quite clearly because I remember thinking in my head 'Is it a model number or isn't it a model number?' Model numbers normally have an MDL lettering before them. So I was in actually a state of confusion as to what to put down. I knew if I put it down and it wasn't a model number I would've been - - or had a potential charge against me. And as it happened, I left it out because I wasn't 100 per cent sure that it was a model number and that constituted a charge. So I didn't know what to do."

108 In cross-examination he said if it was not a model number he would not record it.

109 The submission made on behalf of the applicant here was simply that the charge was laid on the basis there had been a failure to list the model number when in fact the number being referred to was a catalogue number. The particulars to ground (4) assert the applicant may have mistakenly recorded an incorrect description of the item and that raised "the likelihood of a defence under s 24 of the Criminal Code."

110 I do not accept the applicant's submission. Section 41(e) of the Pawnbrokers Act does not refer to either a "model" or a "catalogue" number. The only number specifically referred to is a "serial number." The charge was put on the basis that the number TH20 was a distinguishing feature as part of the description of the item. The applicant was accordingly obliged to record it irrespective of whether it was a model number or a catalogue number. It is arguable that the point having been raised the learned Magistrate should have amended the charge to accord with the evidence pursuant to s 46 of the Justices Act (Deeble v Flanagan (1910) 12 WALR 164; Mitchell v Myers (1955) 57 WALR 49; Higgon v O'Dea [1962] WAR 140) but be that as it may, it is apparent there was no confusion nor misapprehension about to what number the charge related and there was no prejudice to the applicant caused by its misdescription as a "model" number.

111 In my view the evidence did not give rise to the suggestion of any relevant mistake of fact within the meaning of s 24 of the Criminal Code - if there was any mistake on the part of the applicant it was one of law as to what details s 41(e) of the Pawnbrokers Act required him to record. This ground cannot be sustained.

Ground (5): Failure to give any or adequate reasons

112 The duty of a judicial officer to give reasons which expose his or her process of reasoning sufficiently to enable a party to understand how and why the decision has been arrived at, and to determine whether or not there is a ground of appeal, is well established. Failure to give reasons which are adequate in that sense will itself ordinarily be an error of law (Pettit v Dunkley (1971) 1 NSWLR 376, 382, 287 - 388, 390; Lloyd v Faraone [1989] WAR 154; Lam v Beesley (1992) 7 WAR 88, 93; Webb v The Queen (1995) 13 WAR 257). I respectfully agree with what Anderson J said in Harling (1997) 94 A Crim R 437 at 443-444:

"Justices are not required to give extensive or elaborate reasons. However, it is well established that when he or she decides to convict a defendant of a criminal offence, with the serious and perhaps lifelong consequences that entails, the magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision: Donovan v Edwards [1922] VicLawRp 10; [1922] VLR 87 at 88; Ex parte Powter; Re Powter (1946) 46 SR (NSW) 1; De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-558; Ladlow v Hayes (1983) 8 A Crim R 377 especially at 388."

113 In his reasons for decision the learned Magistrate made some general observations about the nature and purpose of the legislation and the background facts. He then dealt with the charges arising out of transactions conducted by the applicant himself. His Worship then dealt, as a group, with the charges relating to transactions conducted by the employee, Young. He turned his mind to the question whether the applicant had taken reasonable steps to prevent the commission of the offences and referred to the evidence on that issue in coming to the conclusion that statutory defence had not been made out. He then made specific reference to charges 6196 (the golf buggy), 6199 (the tools) and 6200 (the "Companion" gas bottle), but did not specifically mention any of the other vicarious liability charges.

114 In his submissions, Mr Harris contends the learned Magistrate gave no reasons for finding the applicant guilty of the other five vicarious liability offences (being charges 6193, 6194, 6195, 6201 and 6202).

115 On a fair reading of his Worship's reasons, this submission cannot be sustained. It is clear that he found the omissions or misdescriptions alleged, to have been proven beyond reasonable doubt. His express reference to the transactions the subjects of charges 6196, 6199 and 6200 was made by way of example to illustrate the point that in some instances the failure was not merely a matter of misdescription but rather a total failure to record what in his Worship's view was clearly a distinguishing feature. His Worship's findings and process of reasoning are adequately expressed in his reasons for decision. This ground must fail.

116 Ground (6) was abandoned (Applicant's outline of submissions filed 3 May 2001, [59]).

117 By letter dated 21 August 2001 the applicant's solicitors advised that the parties had agreed that in view of the fact that the hearing of this application and that of SJA 1059 of 2001 was not ex parte and involved full consideration of the merits of the proposed grounds, I should treat the applications for extension of time and leave to appeal as the hearing of the appeal in each instance.

118 Having regard to the way the hearing was conducted I consider it to be in the interests of justice for these matters to be dealt with in that way and accordingly propose to do so pursuant to s 190 of the Justices Act.

119 For the reasons given above, the application for extension of time and for leave to appeal will be granted. The appeal will be allowed on ground (3) in respect of complaints 6195 (the backpack), 6198 (the Siemens mobile telephone) and 6199 (the tools). Those convictions will be quashed.

120 Notwithstanding the error of the learned Magistrate in refusing to allow Young to give evidence of the individual transactions so as to enable the applicant to put forward a defence under s 24 of the Criminal Code, that did not occasion a substantial miscarriage of justice in the end result in respect of the remaining vicarious liability charges because Young's evidence would not have given rise to such a defence.

122 By complaint no 7025 of 1999 dated 2 November 1999 the applicant was charged with an offence that being the licensed pawnbroker of Kwik Cash Buy and Sell he failed to record the full description of seven MDD golf clubs, one Dunlop putter, one Daiwa golf bag and one pair of Eutonic golf shoes in relation to contract number L99J188.

123 There were initially nine proposed grounds of appeal but on the hearing of the application the last four were abandoned. The proposed grounds ("grounds") as argued were that:

(1) the learned Magistrate erred in law in failing to give any or adequate reasons for the decision;

(2) the learned Magistrate erred in fact and in law in holding that the items the subject of the charge had been incorrectly or inadequately described;

(3) the learned Magistrate erred in holding that the applicant had made a mistake of law rather than of fact;

(4) the learned Magistrate erred in law in failing to articulate or specify the burden and standard of proof that she had applied in the resolution of the charge;

(5) the learned Magistrate failed to consider whether the offence committed by the applicant had occurred as a result of a mistake for the purposes of s 24 of the Criminal Code.

124 The evidence established that the details of this transaction as recorded by the applicant were:

"Golf accessories;

Quantity: One

Make: Taurus

Model/Title: True Temper

Colour: Blue

Serial No: N/A

Description: Golf Clubs, shoes, balls."

125 Constable King gave evidence that he and Constable Newington attended the applicant's premises on 1 November 1999 and examined the items the subject of this transaction. He found them to be as described in the charge. When he queried with the applicant why the items had not been recorded "correctly as they should have been" (t 12) the applicant said that was the way he had been told to do it by police in the past. Constable King testified that he then reminded the applicant of a conversation he and other officers had with him in the course of a police audit of the business in August. He explained (t 12):

"We checked various items over a 14 day period, loans and buys, to make sure they were recorded correctly pursuant to the Act and whilst doing that there was a set of golf clubs on that particular audit which had been incorrectly recorded and - -

How had they been incorrectly recorded?---The - - by memory, that golf set had a golf buggy attached to it. The golf buggy is a different brand to the golf bag because they're separate items and I pointed that out to the defendant, explained to him in detail with golf clubs that when a set came in the bag - - the bag had to be listed as a separate item, the clubs had to be listed separately, as in if they are different makes. If you had two clubs of the same make, they would go down as two clubs of that various make, 'quantity, two'. If you had another 6 irons that were the same make but different to the clubs they would go down as 'quantity, six' and whatever brand that was. If the bag is a different brand, that would be listed. If there's accessories like - - any accessories that came with them, if they were a different brand, they had to be listed separately on the contract...."

126 In cross-examination by the applicant this witness was asked what had alerted the officers to ask to see the golf items on 1 November. His response was (t 14):

"---I believe Constable Newington was conducting an inquiry into some stolen golf clubs and due to the inadequate description on the pawn docket in this case we had actually attended the store to have a look at them because there wasn't enough description on there for us to ascertain if the clubs that you had taken that day were the clubs in fact that we were looking at. Had they been correctly described, we wouldn't have had to attend the store. We would have looked at it at the office and said 'Well, no. That's not the ones we're looking for'."

127 The applicant put to Constable King that although in August there had been discussion about the recording of a golf bag and buggy the officers had not warned him about entering golf clubs as "golf accessories". The Constable maintained his earlier evidence that the applicant had been warned about that "in detail". This evidence was confirmed by Constable Newington.

128 The applicant called the owner of the items, Mr Brad Davis, and gave evidence on his own behalf. Davis confirmed that he had pawned the items with the applicant. He testified that they both looked at the clubs and when the applicant asked him what make they were he told the applicant they were "Taurus". He said the letters "MDD" on the clubs indicates the "velocity" of the club, not its make.

129 In cross-examination he confirmed the golf bag was "Daiwa" brand, there were 8 irons, a number 5 wood club ("Taurus" brand), a putter, golf shoes, balls and tees. He agreed the loan contract signed by him did not show the brand name of the putter, the number of individual irons, the number 5 wood nor the brand name of the shoes.

130 In his evidence the applicant denied that the police officers had said anything to him in August about the proper recording of golf clubs.

131 Cross-examined by the police prosecutor the applicant acknowledged that the golf bag was a blue "Daiwa" brand bag and those details had not been recorded on the loan contract. He said there were nine irons, one driver (or wood) and a putter. He agreed the irons were of different types - they included a 3 iron, a 4-iron, a 5-iron and a 6-iron. He agreed that to describe all the items as "one set of golf accessories" was not factually correct, but said that he did not know that at the time - he had thought then that it was factually correct. He said the irons and the wood were silver and agreed that was not mentioned on the contract. The shoes were white "Eutonic" golf shoes but he had not recorded either of those details. He agreed the putter was a different brand and he had not recorded that fact.

132 The applicant having indicated that he was calling no further witnesses, there was then the following exchange (t 32):

"HER WORSHIP: Thank you. Would you like to stand then and tell me why I should find you not guilty of this charge?

MR HEATHCOTE: Sorry, your Honour . . . (indistinct) . . .

HER WORSHIP: Would you like to tell me why I should find you not guilty of this charge on all of the evidence before the court?

MR HEATHCOTE: If I'm to be found guilty of this charge, your Honour, I find it - -

HER WORSHIP: Mr Heathcote - -

MR HEATHCOTE: Yeah.

HER WORSHIP: I invite you to go over the evidence to tell me why I should find you not guilty."

133 This is relied upon in support of ground (4), to which I shall return below.

Heathcote v King [2002] WASCA 1

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (223 paragraphs)

Heathcote v King [2002] WASCA 1 (9 January 2002)

Parties

Legislation Cited (2)

Cases Cited (27)