1 MILLER J: This is an appeal from the decision of Mr R H Burton SM given in the Court of Petty Sessions at Perth on 22 August 1999, when he dismissed against the respondent a charge of fraud and a charge of stealing. The charges faced by the respondent were that on 15 April 1998 at Perth he had, with intent to defraud by fraudulent means, obtained property, namely $500, the property of Bank of Western Australia Ltd, trading as BankWest, contrary to the provisions of s 409(1) of the Criminal Code, and on 14 April 1998 at Perth had stolen one cheque, the property of Valley View Holdings Pty Ltd, trading as Simply Get Connected, contrary to the provisions of s 378 of the Criminal Code.

2 On 24 September 1999, McKechnie J granted the appellant leave to appeal against the decision of the learned Magistrate on the ground that his Worship had erred in fact and in law in dismissing the two charges in that

"(i) He failed to properly consider the weight of evidence against the Respondent. There was clear evidence that:

* A blank Bankwest cheque number 579 was stolen from the cheque book of Valley View Holdings Pty Ltd trading as Simply Get Connected Communications.

* The Respondent had the opportunity to steal the blank cheque on 14 April 1998.

* The loss was not detected until 15 April 1998 after the cheque was cashed for $500.00 by Bankwest on that date. The cheque was dated 13 April 1998.

* A handwriting expert had examined the cheque and handwriting samples from the Respondent and concluded the entries of date, amount and payee on the cheque were made by the Respondent.

* The only entries on the cheque which bore impressions were in the area of the two signatures and these could not be explained as arising from indentation from the cheques positioned in the cheque book above the stolen cheque but were consistent with signatures being traced.

* A fingerprint technician attached to the WA Police Service Fingerprint Bureau identified two fingerprints on Cheque Number 579 and compared them to a set of fingerprints taken from the Respondent. He concluded the two fingerprints on the cheque were the prints of the left little finger and left thumb of the Respondent.

* At the time of the alleged offence, the Respondent had been employed on a commission basis for a number of months and was paid by the directors of Valley View Holdings Pty Ltd in cash on a Friday. There was no evidence the Respondent was paid on 13, 14 or 15 April 1998.

The only reasonable inference open to the Magistrate to draw from the evidence was the guilt of the Respondent.

(ii) His decision was inconsistent with the uncontested evidence that the Respondent's fingerprints were found on the stolen cheque."

3 The case against the respondent was relatively straightforward. It was established that in April 1998 he was employed as a sub-dealer for a business known as Simply Get Connected, which dealt in telephones and communications. He was engaged on commission in respect of sales which he was able to achieve out of the city store and in relation to which he brought in the details on a periodic basis. On a day which was given as 15 April by the owner of the business (but which, in fact, appears to have been 14 April) the respondent was in the shop of Simply Get Connected in London Court, Perth, and, according to the evidence of a Ms Wingate, who was an employee of the business, the respondent was there for some hours on the day of 14 April and was left alone in the shop for a short period of approximately five minutes when she left the shop to go to the toilet. The following day, the owner of the business went through the chequebook and found that some cheques were missing. There was testimony from his partner that on 15 April he had also discovered two cheques missing from the business chequebook in relation to which there was no information written on the cheque butts. Inquiries were made of the bank, with directions to stop those cheques, but one had already been presented. That cheque was cheque number 579, drawn on BankWest Innaloo, made payable to cash and in the sum of $500.

4 The prosecution called evidence from John Andrew Spicer, a fingerprint technician with the Forensic Division of police headquarters. He gave evidence that he was a qualified fingerprint technician with over seven years' experience in the development, classification and identification processes of fingerprint science and with various other qualifications. He compared inked fingerprints of the respondent to fingerprints found on the back and on the front of the cheque and testified that a fingerprint of the left little finger on the front of the cheque and of the left thumb on the rear of the cheque were the prints of the respondent. Expert evidence was also called from James Nicholas Hoffstee, a police sergeant attached to the document examination section of the Police Forensic Division. He testified that he was the supervisor of the document examination section and had some 20 years' experience in the examination and comparison of handwriting, signatures and document-related problems. Other qualifications were also detailed. Hoffstee gave evidence that he had various documents in his possession which contained the handwriting of the respondent and he made a comparison of that handwriting with the handwriting on the cheque. His evidence in relation to that comparison was as follows:

" ... I [then] took those samples and I examined them against the - - the handwriting which forms the body of the cheque, which is the word "cash", the words "in 500 only" and also the numerals. I examined those handwriting on the cheque with the samples and I formed the opinion that they had been completed by the same person. I also examined the signatures that were on this particular cheque, of which there are two groupings of writing, and for the benefit of the court, if I may go to my notes, I have some photographs which may assist in understanding this.

HIS WORSHIP: Yes?---One of the examinations which I conducted involved examining the cheque to identify if there were any impressions on the document, and in the area of the two signatures, as they appear on the cheque, on the original of the cheque, I observed numerous impressions in and around the particular two signatures. These photographs here are enlargements of that and it is quite obvious that there are impressions of another series of signatures which represent the same signatures as you can visually see on the cheque.

HIS WORSHIP: Right. I see?---An examination of the cheques which would have existed, or been positioned above the cheque that is in question within the cheque book, were examined, and the cheques that were examined contain signatures which did not correspond to the impressions as seen in it. So there was the cheque in question and the cheques above it within the cheque book were examined. The ones above it, their positioning did not match. So the marks I was seeing was not as a result of the cheque above impressing a signature down. So it leaves a number of hypotheses as to the reasons why these impressions are there, and one of those hypotheses could have been that it came from the cheque above, but I've discounted that particular one. The other hypothesis, it was that these were impressions which were as a result of a signature being placed on the paper as an impression and then another series of marks were then placed with a pen to actually create the signature or the impression that it was a signature naturally executed.

Yes. I'm with you. Yes. I see what you mean?---Yes. Simple terms, possibly a tracing or a false signature, a simulation."

5 As it happened, the learned Magistrate misunderstood the import of Hoffstee's evidence, because, at the conclusion of his examination-in-chief, he informed the respondent in the following terms:

"HIS WORSHIP: What he said is that the - - he puts forward the proposition that somebody at this stage has traced the signature on the cheque from the impressions from the ones above that would cause an indentation, and the second thing he said is that the word 'cash' and the amount correspond with what's in the other documents that he says come from you as a source. You ask him anything you like, but that's what he said."

6 As will be seen, Hoffstee did not say that somebody had traced the signature on the cheque from the impressions from the cheques above, but to the contrary those impressions did not relate to the signatures on the cheques which had been above them.

7 The respondent cross-examined Hoffstee by putting to him that he was unable to be "a hundred per cent certain" that the handwriting was his. Hoffstee answered that by saying that unless he saw a person actually writing on a document, he could never be 100 per cent certain that it was that person's writing, but he explained how he went about his examination and why it was that he was able to reach the conclusion that the handwriting on the cheque was that of the respondent:

" ... And what I do in my examination is that I examine the handwriting in its very fine detail. I macroscopically pull the handwriting apart and the act of writing is a act which is a subconscious act. It's done without thought. When a person is writing something down, they're thinking about the information that they want to put on the paper but they don't think about how they construct a letter, how they start or finish a letter, where the pressure on the ink is done?.

Well, at least usually anyway. Usually?---Well, I - - in my experience I find that - - I have found through all my years that if someone is trying to alter or simulate their writing, they lack the ability to be able to simulate the writing all the way through.

I see?---They have to be able to concentrate 100 per cent, and because people - - even myself in areas when we've tried to practice [sic] forgery, we aren't even able to do it because we lose concentration and that's where the naturalness of the writing comes into it.

Right?---And in examining the handwriting, I also look at the writing that I'm examining to see how natural it is, to see the still level of the writer, and that's not to say whether there are - - they write fluently - - I mean, whether they write eloquently or pictorially nice. It's - - the skill is how well they construct their characters. All of those sorts of things are things that I look for, and it's on that basis that I form an opinion at the end of a comparison as to the authorship of an author, and in this case - - in this case I formed an opinion based on all of that examination process and that methodology and that is the opinion that I have expressed."

8 There was evidence of a video-recorded interview between the investigating police officers and the respondent in which the respondent was asked to account for why his fingerprint might have been on the cheque, in response to which he indicated that he "wouldn't have a clue". He told the police that there was a problem between his employer and himself in that they were refusing to pay him and that as at 14 April his employers were probably refusing to pay him $525 which was owed to him. At no stage did he say that he had received a cheque on that day or the day after.

9 The respondent testified at the hearing and swore that he had not taken the cheques. He contended that there was a motive on the part of his employer to make a complaint against him because of allegations that the respondent had made about some alleged sexual interference by the employer of his partner's daughter. When asked by the learned Magistrate what he had to say about the fingerprints on the cheque, his explanation was that if they were his fingerprints on the cheque "that must have been a cheque that I was paid with from before. That's all I can say." When asked to comment upon the evidence of Hoffstee about the probability of his handwriting on the cheque, the respondent said, "I don't think that's my handwriting at all." When asked to comment upon the assertion that he had the opportunity on 14 April to steal the cheques, the respondent denied that Ms Wingate had left him alone in the shop at any time. When cross-examined by the police prosecutor, the respondent denied in more definitive terms that the handwriting on the cheque was his.

10 The learned Magistrate determined the case immediately. He summarised the evidence which had been given (although again mistakenly taking the view that the evidence was that the signature on the cheque had been copied from an indentation from cheques above) and then recited the evidence of the respondent, concluding that the respondent had "come across as being totally believable about the matter". When the learned Magistrate came to deal with the fingerprints and handwriting on the cheques, he made some unusual and, in my view, totally inappropriate comments. They were:

"I've really got to deal with the two fingerprints and the handwriting on the cheques. The defendant was not represented, as is obvious from the transcript. If he had been, certain other questions would have been asked of the witnesses no doubt. The defendant hotly denies that that writing is his. The fingerprint expert has some experience -and the handwriting expert has some considerable experience, I would have thought. I suppose when these matters are left to a - - you call experts, it's a bit like proving insanity. The prosecution calls six witnesses to say the man's sane and defence calls six witnesses to say he's insane, and then it's left to the lucky old jury to decide which is in fact the truth.

At this point I'm in the situation of a jury. I've closely had a look at what's written on the cheque and I've closely had a look at what was written on the exhibit, which is an invoice that came from - - there's no dispute about that. It was completed by the defendant. I've attempted to compare a lot of those words and numbers, letters and numbers. I find that there is some difference between the letters and numbers in some cases where there are similar numbers on each of the cheque and the other exhibits. I've got to decide at the end of the day whether it's been proved beyond a reasonable doubt that the cheque was completed by the defendant and signed by the defendant, and, also I should take into account that there's no burden on the defendant to establish any proposition.

I suppose there are times when juries give what could be described as perverse verdicts against the expert evidence.

Had I known that the defendant's evidence - - and of course you never know that, not in these sort of prosecutions - - I might well have been able to ask certain additional questions of the expert witnesses, but the bench is never given, and it's probably improper to give, what the defence is before the defence is actually given, and that makes it particularly difficult in a situation where the defendant is unrepresented.

All I'm doing really is like just what a jury does - - decide if there's sufficient to prove beyond reasonable doubt, or if at the end of the day I have a doubt, having taken into account the questions he asked the witnesses plus his evidence. It's an unusual situation where you find one expert and the bench is asked by the defendant to disagree with that expert, and that expert has not been properly tested. At the end of the day I come to the conclusion not guilty."

11 It will be seen that the learned Magistrate really reached no conclusion at all about the existence of the fingerprints on the cheque, and, in relation to the evidence of Hoffstee, relied upon his own observations of the comparative handwriting on the documents written by the respondent and the handwriting on the cheque. His Worship clearly disagreed with the evidence of Hoffstee, but gave no clear reason for doing so, save that he found some differences between letters and numbers in some cases, which led him to disagree (apparently) with that testimony. His Worship added some further curious comments after reaching the conclusion that the respondent was not guilty:

"HIS WORSHIP: Whether I'm right or not is another matter. But I've done the very best I can to decide that. I also say that there's something quite funny in the background somewhere, which hasn't been explained, but I principally decide, for the sake of if it goes anywhere else, on what you said in the witness box and how you said it, and I've taken the liberty to look at both the documents. It's an unusual decision and it may well be tested in another place. All I can say is if you wish to test it, best of luck to both parties.

HIS WORSHIP: But that's what I'd do, and I can assure you that I wasn't sure where I was going to decide when I started giving this decision, but that's the decision I've given and I put dismissed on both, thank you. What you'd have is you'd have an appeal against my decision - - giving the Appeal Court a bit of a help - - you'd have an appeal against my decision that was against the weight of evidence, but that's what I've done. Thank you."

12 The thrust of the appellant's case is that the learned Magistrate failed completely to properly consider the weight of the evidence against the respondent. It is pointed out that he made no finding as to whether the respondent had the opportunity to take the cheque; he apparently concluded that it was not the respondent's handwriting on the cheque, based upon his own observation of the exhibits; and he made no finding at all as to whether the fingerprints identified on the cheque were those of the respondent. In addition, it is complained that he misconstrued the effect of Hoffstee's evidence regarding the impressions surrounding the signatures. In my view, each of those submissions is clearly correct. The case was one in which the prosecution evidence consisted of circumstantial evidence. It was compelling circumstantial evidence which at the end of the hearing remained unanswered. Whilst the respondent had offered the explanation in the course of cross-examination of one of the witnesses that perhaps the cheque had been one he had been given for wages, that did not tally with the evidence at all. It had not actually been put to the respondent's employer that this was the case, but the clear and unequivocal implication from the employer's testimony was that cheques had been found missing from the chequebook and neither of those cheques was a cheque paid to the respondent for wages. Indeed, there was no notation on the cheque butts in relation to the missing cheques at all. The circumstantial evidence consisted of evidence of opportunity, evidence of the expert witness in relation to the respondent's fingerprints on the cheque, and the evidence of another expert in relation to handwriting on the cheque which was identified as being that of the respondent. The nature of circumstantial evidence is well established. It was expressed in Shepherd v The Queen (No 5) [1990] HCA 56; (1990) 170 CLR 573 per Dawson J (at 579) in the following terms:

"Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed."

13 As it was put in Chamberlain v The Queen [1983] HCA 13; (1983) 153 CLR 514 per Gibbs CJ and Mason J at 536:

"When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines (49); and Barca v. The Queen (50))."

14 In the present case, it seems to me that the circumstantial evidence adduced by the prosecution excluded any reasonable hypothesis consistent with the evidence of the respondent. This is a case in which this Court is in as good a position as the Magistrate to decide on the proper inference to be drawn from the facts, as they were largely undisputed. In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J (at 447) put it this way:

"This is an appeal under the Justices Act and is by way of rehearing (O 65A, r 9 read with O 63, r 2 and O 65, r 10). In general this Court is in as good a position as the magistrate to decide on the proper inference to be drawn from facts which are undisputed or which are established by her findings. Respect and weight will be given to the conclusion of the magistrate but this Court, having reached its own conclusion, will not shrink from giving effect to it. Moreover, the question whether the facts found do or do not give rise to the inference that a party failed to exercise a reasonable degree of care and diligence is not one which is to be treated as peculiarly within the province of the magistrate: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

These propositions have in recent years been said repeatedly, and have become almost trite, but in the light of the way the case was argued for the respondent it is necessary that they be said once more."

15 The appellant has, in my view, established that the learned Magistrate erred in concluding that the charges preferred against the respondent had not been proven. In my view, for the reasons which I have given, the respondent's guilt on both charges was established beyond reasonable doubt. He should therefore have been convicted. I need add only that the learned Magistrate's approach to the verdict in the case ran counter to all established authority. By ignoring the expert testimony, challenging some of it on his own initiative, and comparing his verdict with a perverse jury verdict, the learned Magistrate went well beyond the bounds of an appropriate decision-making process.

16 I would set aside the decision of the learned Magistrate dismissing the charges against the respondent and in lieu thereof find him guilty on each of the two charges. The respondent has put before me on the hearing of the appeal that he is employed in a part-time capacity earning approximately $400 per week, and it would appear that he is in a position to pay a fine. That fine will be reduced from what it might ordinarily be by reason of the fact that the respondent has been put in double jeopardy by reason of the appeal proceedings and, as he forcefully put to me at the hearing of the appeal, has undergone a great deal of stress by reason of the fact that the proceedings have taken the course they have. For these reasons, the fines imposed will be $100 in each case.