Murray v Maingay [2008] TASSC 18

Judgment Number: [2008] TASSC 18

TIMOTHY ANDREW MURRAY v SERGEANT ANTHEA JANE MAINGAY

1 The applicant appeared before a magistrate charged with two counts of unlawfully possessing more than five abalone contrary to the Fisheries (Abalone) Rules 2000, r17(10(b). One such offence was alleged to have occurred on 28 October 2005 and the other on 4 November 2005. After a defended hearing, the magistrate found both charges proved. On the first, the applicant was fined $1000 and on the second he was fined $2000. In addition, a special penalty of $7700 was imposed on the first and $14,700 on the second.

2 As finally argued, the motion to review attacks the finding that the charges were proved and the calculation of the special penalties. The first of those attacks concerns whether evidence identifying the applicant as the offender was sufficient, whether the magistrate's reasons for his decision were sufficient so far as the issue of identification is concerned and whether it was necessary for the magistrate to expressly declare that he had warned himself of the perils of accepting evidence of identification. To deal with those issues it is necessary to refer to some of the evidence, submissions made by counsel to the magistrate and his Honour's reasons.

3 The prosecution case was that Mr Vincent Liu was a waiter employed by the Me Wah restaurant in Invermay Road, Launceston, near its junction with Dry Street, and that on the dates alleged in the complaint he met up with and purchased from the applicant quantities of abalone, which were delivered by the applicant to him at that time. Subsequently, on 7 February 2006, police searched a freezer at Mr Liu's home and recovered three of the four bags of abalone that were purchased by him on 4 November.

4 The first prosecution witness to give evidence was Constable Conyers. He said that on 4 November 2005, his duty was to carry out surveillance of a person "now known to me as Timothy Andrew Murray, the defendant, seated in the chair there at the blue desk" in the court. He took video footage of the applicant that day. From 10:47 to 10:52am he observed the applicant arrive and use a public telephone on Invermay Road. At 11am he observed the applicant, in the company of a female who was walking a dog, arrive at the Me Wah restaurant and meet a man of Asian appearance, who he described. The three people talked at length outside the restaurant and were videotaped by the constable. At 11:08am the Asian man returned inside the restaurant and the applicant and his female companion walked to the Inveresk Railyards (across the road). At 11:25am a Subaru car with a Victorian registration number parked in nearby Dry Street. The Asian man walked to the car from the vicinity of the restaurant. The applicant exited the car and at 11:26am retrieved a red, blue and white beach-style bag from its boot and handed it to the Asian man. After the two men spoke together for a time, the Asian man walked to the vicinity of the rear of the Me Wah restaurant with the bag. Constable Conyers had videotaped the transaction between the two men. The recording was transferred to a compact disk, which was admitted into evidence and played to the court. Constable Conyers said that he took the footage while sitting in a car.

5 On the hearing of the motion to review, the applicant's counsel attacked the evidence of Constable Conyers that identified the applicant as the person dealing with the Asian man. Counsel submitted that the constable's evidence was inadequate and inherently dangerous. However, it is a significant feature of the case that the evidence in question was not challenged by the applicant's counsel at the hearing before the learned magistrate. In cross-examination it was not put to the officer that his identification was mistaken or wrong. All counsel could point to on the hearing of the motion, was a passage in cross-examination when the constable agreed with counsel that he had not met the applicant personally, had never spoken to him and had never been introduced to him. The questions that elicited those answers did not amount to a challenge to the officer's evidence identifying the applicant. If it was intended to challenge that evidence, the rule in Browne v Dunn (1893) 6 R 67 (HL) required counsel to put to the witness, in one way or another, that his identification was erroneous or mistaken. Unless and until the witness' credit was attacked in cross-examination, the prosecutor was forbidden from asking the witness a question that merely bolstered his credit (see Evidence Act 2001, s102). In the circumstances, the learned magistrate had little choice but to accept the constable's evidence identifying the applicant as the man in question.

6 Mr Liu gave evidence that established without any doubt that he was the Asian man referred to by Constable Conyers. However, he gave no evidence identifying the applicant as the man with whom he dealt. He was not asked anything about that in the course of his evidence. He described a transaction he entered into with the man in late October 2005. By telephone he agreed to purchase 10 kilograms of abalone for $45 a kilogram. To complete the purchase the following day, he met the man near the back of the Me Wah restaurant, where he worked. The man collected the abalone from a bag in the backseat of a car, in which a woman was sitting, and gave it to Mr Liu in return for $450. Mr Liu said that early in November, the same man contacted him by telephone with an offer to sell more abalone. He agreed to purchase 20 kilograms for $35 per kilogram and to meet the man the following day to complete the transaction. The following day he met the man outside the restaurant. The man was in the company of a woman and a dog. About half an hour later they met again at the same place as before, "at the back of Dry Street". The evidence suggested that he was referring to out the back of the restaurant in Dry Street. He said that a woman was in a car with the man. The man gave him four bags of abalone in a blue and red carry bag, in return for $700 in cash. Mr Liu took the abalone home and placed them in his freezer. The compact disk in evidence was played to Mr Liu and he identified the man, who was identified by Constable Conyers as the applicant, as the one who sold him the abalone. He also identified himself.

7 Evidence was given by Constable Roberts that on 7 February 2006 he went to Mr Liu's home and took possession of three bags of abalone from his freezer. Mr Liu's evidence was that he had consumed all of the abalone from one of the bags purchased on the second occasion. The three bags seized by the police were the rest of what he had purchased that day.

8 Following the close of the prosecution case, counsel for the applicant submitted to the learned magistrate that his client had no case to answer because Mr Liu had given no evidence identifying the applicant as the person from whom he purchased the abalone. The learned magistrate rejected the application because of the evidence of Constable Conyers that identified the applicant as the person with whom Mr Liu dealt on 4 November 2005. The applicant then elected not to give or adduce evidence.

9 Next, counsel for the applicant submitted to the learned magistrate that he could not be satisfied beyond reasonable doubt that the charges had been proved. The only basis advanced in support of the submission was that Mr Liu was an unreliable witness for two main reasons. The first reason was based on the principle that as Mr Liu was criminally involved in the commission of offences at the material times, he fell within the category of an unreliable witness and, if the case had been a criminal trial before a jury, it may have been required by the Evidence Act, s165, that the jury be warned that his evidence was unreliable, the reasons for that and the need for caution in determining whether to accept his evidence and the weight to be given to it. The other reason relied on by counsel concerned what he referred to as inconsistencies between Mr Liu's evidence and what he had told police. It was also pointed out that it was only Mr Liu who gave evidence that he received abalone at the two meetings.

10 No argument was addressed by the applicant's counsel to the learned magistrate that the evidence of Constable Conyers identifying the applicant as the man who dealt with the Asian man was unreliable or should not be accepted. No mention was made by counsel of the possible requirement of s165 at a criminal trial for a jury to be warned about the dangers of accepting identification evidence.

11 In his reasons for finding the charges proved, the learned magistrate expressly stated that he cautioned himself regarding Mr Liu's evidence, given the illicit transactions in which he had claimed to be involved. His Honour referred in some detail to the evidence Mr Liu had given and gave reasons for accepting it. His Honour summarised the evidence of Constable Conyers and said that "he'd never met the defendant before but over the course of that day had him in sight or under observation for something like six to eight hours, which gives him a good platform from which to claim that he is therefore able properly to identify Timothy Andrew Murray as the defendant and as the person he saw for so long on that day". Accordingly, the evidence of identification was accepted.

12 Grounds 1 and 6 of the motion to review were abandoned. The grounds that concern the evidence of identification are in these terms:

"2 The learned Magistrate erred in law and in fact in finding the charges proven beyond reasonable doubt when the only identification evidence was that of a Police Officer during surveillance operations who had never met or previously known the Applicant.

3 The learned Magistrate erred in law and in fact in finding, beyond reasonable doubt, that the Applicant had been identified.

4 The learned Magistrate erred in law and in fact in that he so misdirected himself as to the evidence that his finding the charges had been proven beyond reasonable doubt was unsafe and unsatisfactory in all the circumstances."

13 Grounds 2 and 3 are not proper grounds for review. That a finding of fact is wrong is not an error or mistake for the purposes of the Justices Act 1959, s107(4)(a). A motion to review is not an appeal by way of re-hearing. It is not for this Court to weigh the evidence and reach its own conclusions. On a motion to review it is only concerned with the question of law whether there was evidence before the learned magistrate upon which he or she was reasonably entitled to hold that the charges were proved. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117.

14 There was ample evidence justifying the material findings. The learned magistrate treated the evidence of Mr Liu with caution, for reasons advanced by the applicant's counsel. That evidence was materially supported by the evidence of Constable Conyers that identified the applicant and that confirmed that there was a meeting on 4 November 2005 of the nature described by Mr Liu. Once his evidence had been accepted about that meeting, there was no real reason for not accepting it concerning the earlier meeting.

15 The sting of counsel's attack in this Court concerned the acceptance by the learned magistrate of the evidence of identification by Constable Conyers. There was every reason to accept that evidence. As I have pointed out, it was not the subject of serious challenge in cross-examination and it was not the subject of challenge when the applicant's counsel made his arguments to the learned magistrate at the conclusion of the evidence.

16 As to the fourth ground of review, counsel for the applicant did not direct my attention to any alleged misdirection by the learned magistrate. However, unsupported by a ground of review, he argued that the provisions of the Evidence Act, s165(1)(b) and (2), obliged the learned magistrate to expressly declare in his reasons that he had warned himself that Constable Conyers' evidence identifying the applicant was, or may have been, unreliable. There was no merit in the argument. Section 165(2) requires that a warning of that kind be given to a jury by a judge, if a party so requests. In this case there was no jury or a judge and no request was made to the learned magistrate that he take heed of the warning himself. In those circumstances, s165 could have no possible application.

17 A magistrate is not required, as a matter of law, to expressly state in reasons for a decision that the dangers inherent in identification evidence have been taken into account. Casey v Filz B41/1995 at 7. Further, notwithstanding what was said by Zeeman J in Burr v Strickland A67/1995 at 5, the law does not require that the reasons of a magistrate must state those matters which constitute dangers concerning evidence of identification in a situation where the evidence was not seriously challenged and no submissions were made to the learned magistrate about the matter, notwithstanding that there was an opportunity to make them.

18 The fifth and final ground of review is in these terms:

"5 The learned Magistrate erred in law and in fact in finding that the Applicant was in possession of the number of fish particularised in the complaint when it was an estimate only on the best evidence of the Prosecution case."

19 Once again, the point must be made that the ground is not a proper one for a motion to review under the Justices Act. However, I will treat it as if it asserted that such a finding was not reasonably open on the evidence.

20 Notwithstanding that the first charge asserted that the applicant had possession of 60 abalone and the second charge asserted he had possession of 110 abalone, it was not necessary that those precise numbers were established before guilt was proved. All that had to be proved on each charge was that he was in possession of more than five abalone. That point appeared not to be understood by the applicant's counsel in his closing argument to the learned magistrate when he submitted that his Honour could not be satisfied that the applicant had possession of 60 fish on the first occasion and 110 fish on the second occasion. Neither was it understood when the applicant's counsel first addressed this Court about the matter. When his error was pointed out to him, counsel limited his attack to one applying to the special penalties that were imposed. It was submitted that the finding of the learned magistrate that the applicant was in possession of 60 and 110 abalone respectively on the two occasions was not open. The special penalties that were imposed were $140 per fish, in accordance with the relevant legislation, and based respectively on the 55 and 105 fish that were in excess of five. A consideration of the ground requires in turn a consideration of the evidence relevant to the number of fish in the applicant's possession.

21 It was Mr Liu's evidence that on the first occasion, he agreed with the man, with whom he dealt, to take 10 kilograms of abalone for $450, which he paid when he took delivery. The abalone were frozen and in two bags that weighed approximately five kilograms each, although he did not weigh them. Subsequently, he ate them. He said that on average there were about six to 10 pieces for each kilogram. He counted the abalone in one of those bags and found there to be about "40 pieces".

22 Mr Liu said that on the second occasion, he agreed to purchase 20 kilograms for about $35 per kilogram. The abalone were frozen and delivered to him in four plastic bags in return for $700 he paid in cash. He subsequently consumed the abalone that had been in one of those bags. The police took possession of the remaining three bags from his freezer. It was Constable Roberts' evidence that the weight of each of the three plastic bags containing abalone that were seized from Mr Liu's freezer was approximately five kilograms. Subsequently, they were transported to the Tasmanian Aquaculture and Fisheries Institute (TAFI) at Taroona where Constable Roberts, a Constable Crowden and TAFI scientists counted and weighed the abalone from those three bags. In all, there were 70 blacklip abalone. Two of the abalone were retained by TAFI for scientific examination and the remaining 68 were admitted into evidence as an exhibit. In answer to a question from the learned magistrate, counsel for the applicant said that he accepted that there were 68 in the exhibit.

23 If regard is had to Mr Liu's evidence concerning the first delivery only, it was reasonably open to find that he received at least 60 fish, as he said that he counted 40 pieces in one of two bags and that they each weighed about five kilograms each, although he did not weigh them. Further, it was his estimate that there were about six to 10 pieces for each kilogram, on average, and that also justified a finding that there were at least 60 fish.

24 However, the evidence concerning what was delivered on the second occasion could not justify a finding that there were 110 fish. The evidence that there were 70 in the three bags that each weighed approximately five kilograms, suggested an average of 23.33 fish per bag and a total of about 93, but certainly not 110. Although the size of the fish may have been different between bags, and between deliveries, a finding that there were 110 in the second delivery was not reasonably open and must be set aside. In its place, I find beyond reasonable doubt that there were 90, which was 85 in excess of the allowable five. For that reason, the special penalty of $14,700 that was imposed on the second charge will be quashed and in its place, it is ordered that the applicant pay a special penalty of $11,900. The motion to review succeeds to that limited extent.

25 I have not ignored that Mr Liu said in his evidence-in-chief that there were about 40 to 50 pieces of abalone in the bag that he had consumed by the time of the arrival of the police at his home. That evidence suggested that there were 40 or 50 pieces in the one and only bag he consumed from the second delivery and, when added to the 70 counted at TAFI, the amount charged of 110 abalone was reached. However, when being cross-examined, Mr Liu said that he counted 40 abalone in "the first bag" he had purchased and there were about 40 pieces and in re-examination, he said that count applied to abalone in a bag from the first delivery. The evidence was not altogether clear but I have concluded that it was not reasonably open for the learned magistrate to conclude that Mr Liu counted abalone in two separate bags, one from the first delivery and one from the second delivery. I think that by the end of all of his evidence, the only safe conclusion open on his evidence was that he counted 40 abalone in one of the bags delivered to him on the first occasion, and that he may not have counted separately the number in any of the bags delivered on the second occasion.