Supreme Court of Tasmania|2009-06-11|Before: Crawford CJ, Porter JJ, Blow J

Phillips v Arnold [2009] TASSC 43 (11 June 2009)

CITATION: Phillips v Arnold [2009] TASSC 43

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - Whether a preference for one witness over another a sufficient reason for conviction.

James v Eyles [2007] TASSC 55, applied.

Judgment Number: [2009] TASSC 43

DAVID WILLIAM PHILLIPS v ASHLEY WILLIAM ROY ARNOLD

1 The appellant was charged in a magistrates court with driving a motor vehicle on 5 December 2003 on Stewart Street, Devonport, while alcohol was present in his blood in a concentration greater than 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.174 grams, contrary to the Road Safety (Alcohol & Drugs) Act 1970, s6(1).

2 Following a defended hearing at which two police officers gave evidence for the complainant and the appellant gave evidence in his own defence, the learned magistrate found the charge proved. The defence that was rejected was that at no time did the appellant drive the vehicle in question.

3 The appellant moved for a review of the conviction under the Justices Act 1959, PtXI. There were two grounds: that there was insufficient evidence to satisfy the learned magistrate that the appellant had driven the vehicle; and that the learned magistrate gave no reasons for preferring the evidence of Constable Rigby to the evidence of the appellant. The second ground was expanded by written particulars to include an assertion of error by the learned magistrate in giving no reasons for implicitly rejecting the evidence of the appellant beyond reasonable doubt.

4 A judge dismissed the motion to review[*]. Concerning the first ground, it was held that on the evidence it was open to the learned magistrate to be satisfied beyond reasonable doubt that the appellant drove the vehicle. Concerning the second ground, it was held that it was implicit in the reasons given by the learned magistrate that he accepted beyond reasonable doubt the evidence of the prosecution witnesses that the appellant drove the vehicle and rejected beyond reasonable doubt the evidence of the appellant that he did not do so. It was also held that, given those implications, the statement of the learned magistrate that he preferred the evidence of Constable Rigby to the evidence of the appellant amounted to sufficient reasons for finding the charge proved. The learned judge held that it was unnecessary that the learned magistrate do more than identify the evidence that he accepted. It was further held that it was unnecessary that the learned magistrate should set out his explanation for preferring the evidence of Constable Rigby over that of the appellant.

5 The appellant appealed to this Court on two grounds: that the learned judge erred in holding that it was open to the learned magistrate to be properly satisfied beyond reasonable doubt that the appellant drove the vehicle; and that the learned judge erred in finding that the learned magistrate gave adequate reasons for finding the charge proved.

6 The events occurred on 5 December 2003 and the hearing before the learned magistrate was not until almost four years later on 30 October 2007. The considerable delay accounted, at least in part, for the two police officers having difficulty remembering all of the details surrounding the commission of the alleged offence.

7 On the other hand, the appellant gave very detailed evidence of what he claimed took place. In summary it was as follows.

8 He said that he left work and drove his utility by a route he described in some detail, to where he parked it between 6.30 and 7pm outside Westpac bank on the southern side of Stewart Street. That meant that his vehicle was facing west. He walked to the ANZ bank in the Mall and withdrew some money. He then walked to the Workers' Club, where he consumed alcohol until he left at about 11.45pm. He intended to go home in a taxi. Realising that he must have left his mobile phone in his utility, he decided to recover it from the vehicle so that he could call a taxi.

9 My understanding of the evidence is that the club was on the northern side of Stewart Street and that the vehicle was parked on the other side but a short distance further along Stewart Street. The appellant said that he walked down the northern side of the street until he was opposite his vehicle and then crossed the street. As he did so, he saw a white Commodore police car parked outside an old picture theatre, with one "police officer ... talking to someone in the driver's side". His evidence did not explain that further. He was not asked to elaborate.

10 The appellant said that he unlocked his vehicle, left his keys in the door lock and felt around the seat for his phone. Unable to find it, he entered the vehicle (through the driver's door), leaned across the bench seat and felt between the far end of the seat and the passenger door, retrieving the phone from the floor.

11 As he did so, there was a knock on the window. He turned and saw that Constable Mansfield was standing beside the door. She asked him to get out of the vehicle, which he did. She asked him to blow into a hand-held breath tester, which he refused to do, saying that he was not driving and therefore, had no need to blow into the thing. He accepted that he may have used coarse language. At that point he was outside his driver's door, standing on Stewart Street. Constable Rigby was also present.

12 He said that he walked behind his vehicle onto the footpath, to get off the street. As he reached the footpath, he was grabbed from behind, pushed to the ground and handcuffed. He disputed that the police officers were trying to move him towards the police car when he fell to the ground.

13 After he was handcuffed, he was placed in the backseat of the police car and taken by the officers to the Ulverstone police station for a breath analysis. In the course of the journey he was told that if he refused he would be in serious trouble. At the police station he provided a sample of his breath for analysis which he accepted resulted in a reading of .174.

14 The appellant said that the two police officers then drove him to his home unit in Nicholls Street, Devonport, but when he got out there he realised that he did not have his key to the unit and that his keys had been left in the door of his utility in Stewart Street. The police officers then drove him back to Stewart Street. Constable Rigby removed the keys from the door. The appellant asked that he be given them, and he was told that he was not getting them but could pick them up from the Devonport police station the following day.

15 The police officers then drove him to his daughter's home in Churchill Avenue and left him there. He collected his keys from the Devonport police station the following afternoon.

16 The cross-examination of the appellant was extremely brief. He was asked only seven questions. One was whether the telephone at the Workers' Club was not working, to which he replied, "No, it quite often doesn't". It was put to him that when he reached his vehicle he thought that he would drive and would not bother trying to get a taxi, which he denied. It was put to him that his vehicle was not parked outside Westpac bank facing west, but was on the other side of the street, facing east, which he disputed. It was also put to him that he got into the vehicle, executed a "U" turn and stopped outside Westpac bank when the flashing red and blue lights of the police car appeared, which he also disputed.

17 The evidence of Constable Mansfield was most unsatisfactory. In particular, she made many assertions of fact but when pressed about them in cross-examination, she said that she could not remember them.

18 It was her evidence that she and Constable Rigby were on mobile patrol. They received information about a vehicle that was parked in Stewart Street and they saw a vehicle matching its description on the northern side of Stewart Street, facing east, with its head and tail lights on. It is implicit in the evidence of both police officers that the appellant must have been in his vehicle when they arrived at the scene, for they gave no evidence of him entering it. Constable Mansfield said that the vehicle executed a U-turn outside the Westpac bank so that it was then facing west. She explained that as soon as the lights came on, the police vehicle moved from where it was and intercepted the utility with its lights on.

19 Constable Mansfield said that when the vehicle stopped "the driver was seen to lean down in the car, and we kept observations on the vehicle at the time". That was not explained further. The officers then approached the driver, who was the appellant, and asked to see his driver's licence, and he submitted to a roadside breath screening test, which returned a positive reading. Constable Mansfield then "indicated" to the appellant that he was required to return to the station for a breath analysis, to which the appellant said, "no way, I wasn't driving, you can't make me go back". She then informed him that he was in custody for the purposes of a breath analysis and directed him towards the police car, at which the appellant said, "no way, fuck off" and he began to walk away from the officers in a westerly direction. She said, "he's then been given another opportunity to get into the police car, and he said 'fuck off' and has continued to walk off". She then placed him under arrest. There was a scuffle, resulting in him going to the ground. He had his arms under his chest and would not move his arms so that the officers could place handcuffs on him, but eventually they managed to do so.

20 She said that the appellant was placed in the police car and conveyed to the Devonport police station. "Once at Devonport we arranged for a breath analysis operator, and we had to travel to Ulverstone station for the breath test to be conducted", she said.

21 Constable Mansfield's evidence continued: "I completed some questionnaires with the defendant who refused to sign them. Under caution he indicated to me that he had consumed alcohol before driving. I then introduced the defendant to Sergeant Errol Farrelly, the breath analysis operator ... At the end of BAS test, the defendant was charged, processed and bailed and released".

22 I have completed a summary of Constable Mansfield's examination-in-chief. She had given the impression that she clearly remembered the events. That changed as soon as cross-examination commenced.

23 Asked where the appellant was charged, processed, bailed and released, she said that she could not remember. She then added, "We would have transferred him back to Devonport station at the conclusion of the test". It was then put to her that she did not go to the Devonport police station at any time with the appellant that night, to which she answered, "I don't know". Asked again about that, she said, "I can't remember". When it was pointed out that she had given evidence that they took the appellant to the Devonport station and she was asked what was the truth, she said that she would "have to check the notes of the Devonport station", adding that "we would have gone to Devonport station to wait there to see there was a breath analysis operator ... Whether we pulled into the station or not I can't remember. But we would have gone to Devonport first and waited out the front, I guess ... but I'd have to check with Devonport station notes". She then admitted that she had no memory of going to the Devonport station before the breath analysis. She was not prepared to admit that they had driven from Stewart Street direct to Ulverstone, because she could not say one way or the other.

24 Constable Mansfield was shown a "BAS INFORMANTS QUESTIONNAIRE" which had been filled in by her. It purported to record that she interviewed the appellant at the Devonport police station on the day of the offence and that he gave certain answers to questions, including that he had last consumed alcohol at the Workers' Club "half hour ago", and that he refused to sign the form. She volunteered that it was written by her at the Ulverstone station, although she had written "Devonport" on it as the place where the interview was carried out. It was then put to her that after the event she went to the Devonport station and filled in the document and that the appellant was never at the Devonport station. Her answer was that she could not remember. She said she did not know whether she had mistakenly written "Devonport" on the form.

25 Concerning whether police officers took the appellant from the Ulverstone police station, Constable Mansfield variously said that they would have transferred him back to the Devonport station at the completion of the test, she did not know whether that occurred, they would have gone to the Devonport station after the breath analysis to let him go, it could have been the case that they gave him a lift back to Devonport, they would have transferred him to where he needed to go, she had no memory of it, she could not remember taking him home to Nicholls Street, she could not remember him saying that he did not have his keys, she did not remember driving him back to his car in Stewart Street and Constable Rigby removing his keys from the door, but she could remember taking him to Churchill Avenue (his daughter's house) to drop him off.

26 Concerning whether the keys of the car may have been left in the door, Constable Mansfield variously said that she always asked "them" to lock their vehicle and the keys would have been placed in the door then, she remembered him getting out of the car, she remembered saying to him "lock the car", she did that every time, she did not remember saying to him to "lock your car", but she did remember him getting out of the car and locking the door. She was then asked whether she watched him lock the door and she answered, "I would have been arranging other things". She then confessed not to be able to recall watching him lock the door.

27 Constable Mansfield had sworn an affidavit in relation to the events. In it she said that she was on mobile patrol when she observed the appellant's vehicle travelling east. That conflicted with her evidence-in-chief and she dismissed what was said in the affidavit as incorrect terminology. She said that they had been on mobile patrol and stopped facing east, on the same side of the street as the appellant's vehicle. She also agreed that although her affidavit said that when the appellant walked off he was informed that he was under arrest and was placed in handcuffs, it made no reference to the fact that there was a struggle and that he was handcuffed while lying face down on the ground.

28 Constable Mansfield denied being parked outside an old picture theatre, but said that it was possible, although she could not remember, that other police officers were at that position. She said that they had seen the parked vehicle as they drove past in a westerly direction, saw no sign of an occupant and parked about 60 metres behind the vehicle. As it commenced to move off and perform a U-turn, the police car also pulled away from the kerb and came up directly behind the appellant's vehicle, which stopped.

29 She agreed that she tapped on the driver's window of the appellant's vehicle. She could not remember whether the appellant was sitting in the vehicle when the breath test was carried out.

30 I now summarise the evidence of Constable Rigby. He also disputed that the police car was stationary outside an old picture theatre. He said that it was stationary facing east on Stewart Street outside the Workers' Club. The appellant's vehicle moved off and then the police vehicle moved. He made no mention of the execution by the appellant of a U-turn and was not asked about that. He said that the appellant's vehicle was intercepted and stopped, facing west.

31 Constable Rigby said that the two police officers walked up to the appellant's vehicle, Constable Mansfield on the roadway and at the driver's door, and Constable Rigby on the footpath on the passenger's side. The appellant was in the driver's seat, slouched over with his upper torso towards the passenger's seat. Constable Mansfield spoke to him and he underwent a breath test at her request while still sitting in the vehicle. The test was positive. The appellant was then told that he was in custody for the purpose of breath analysis.

32 He agreed that the appellant said words to the effect, "fuck off, I wasn't driving, I shouldn't have to have a breath test" and agreed that the appellant walked from the driver's side, round the rear of the vehicle, to the footpath. He described Constable Mansfield attempting to guide the appellant to the police car, but the appellant refused to move. He did not want to go anywhere. He swore at the officers. They attempted to move him and there was a short struggle, with him not wanting to move, in the course of which they all went to the ground. The appellant was lying on the footpath with his arms underneath him, refusing to move. They managed to put handcuffs on him and he was taken to the police car. I note that the evidence of Constable Rigby that the appellant refused to move was at odds with the evidence of Constable Mansfield that he walked away.

33 Constable Rigby was asked in cross-examination whether there was a time when both officers were at the driver's side door of the appellant's vehicle and he said that he could not recall, nor could he recall that the appellant was arguing with Constable Mansfield at his driver's door about whether or not he should have to undergo a breath test because of his claim that he had not been driving.

34 It was Constable Rigby's evidence that they took the appellant to the Ulverstone police station. He had no memory of going to the Devonport Police Station first, nor of the conversation in the vehicle. He said that once a breath analysis had been completed, the appellant was charged and bailed at Ulverstone and taken to his residence. Constable Rigby said that he could not remember where the residence was, but "I know that I got a lot of abuse when he exited the vehicle". He had no memory of the appellant not having his keys and not being able to gain entry into his residence, nor of taking him to Stewart Street and retrieving his keys from his car door. It was put to him that the appellant was taken to a Churchill Avenue address which the appellant identified as his daughter's home. Constable Rigby agreed and said that he could remember taking the appellant to his daughter's address, but not going to the appellant's own residence first or to his vehicle. He added that he was "really unclear" about those matters and he made the point that the events occurred nearly four years before.

The reasons of the magistrate for finding the charge proved

35 The learned magistrate referred to some of the evidence of the constables which I will not repeat. His Honour said that under cross-examination Constable Mansfield "gave rather unsatisfactory evidence". He was "not impressed by her continual reconstruction" and was "somewhat concerned ... with the obvious gaps in her memory of this incident". Accepting that it was not a criticism of a police officer for having gaps in her memory about events that occurred four years before, the learned magistrate nevertheless made the point that "I would have thought that if she couldn't remember, the simple solution to that would be to do what Constable Rigby said, and say 'honestly, I can't remember'." Making the point that Constable Mansfield did not give evidence in that way, his Honour said, "I think she, on a couple of times, she dug a couple of holes that she had difficulty getting out of". The learned magistrate concluded that he did not place a great deal of reliance on Constable Mansfield's evidence.

36 Turning to Constable Rigby's evidence, the learned magistrate found that he gave his evidence "fairly well", adding that he was a more impressive witness under cross-examination than Constable Mansfield in a number of different ways. After referring to a little of Constable Rigby's evidence, the learned magistrate noted that the officer did not recall a lot of things in cross-examination.

37 A positive finding was made that at no time did the police car go near the Devonport Police Station, and the learned magistrate noted that it was at odds with the questionnaire Constable Mansfield completed in which she said that it was done at Devonport. His Honour said, "it obviously wasn't".

38 Only three references were made to the appellant's evidence. They were made only for the purposes of comparison when summarising Constable Rigby's evidence. They were that he said that he was leaning across his vehicle's seat to look for his mobile phone, that his vehicle did not move and that he did not submit to a breath test at the scene.

39 Critically, the learned magistrate expressed the following conclusions:

"I prefer Mr Rigby's evidence to that of the defendant, as to whether the defendant was in fact - whether this vehicle was moving. Clearly the defendant was the only one in it. If it was moving he had to be driving it. I am satisfied that it was moving when it was intercepted. ... I am satisfied that Constable Rigby saw the defendant in a moving vehicle, that he was driving it, that he therefore became liable to submit to a breath analysis that he subsequently submitted, and it is not disputed that he produced a reading of .174."

40 No explanation was provided for preferring Constable Rigby's evidence and rejecting the appellant's evidence.

Whether it was open to the magistrate to find that the appellant drove the vehicle

41 The first ground of review before the learned judge was that there was insufficient evidence to satisfy the learned magistrate that the appellant had driven the vehicle. In his judgment, the learned judge said that by that ground the appellant asserted that the learned magistrate's finding that the charge was proved was unsafe and unsatisfactory. On the material before this Court, it is not altogether clear why the learned judge said that, but presumably counsel for the appellant argued the ground in that way.

42 The learned judge referred to the decision of this Court in Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446 that a ground that a decision was unsafe and unsatisfactory is a valid ground for review under the Justices Act, PtXI, (although each member of the Court gave a different meaning to the expression in that context). It is to be inferred that the learned judge concluded that in the light of the comments of Hayne J, with whom Crennan J agreed, when refusing special leave to appeal in Hajdu v Brown [2007] HCATrans 245, a ground asserting that a decision was unsafe and unsatisfactory should no longer be regarded as valid. After referring to those comments, the learned judge said that the issue raised by the ground of review in this case was whether the learned magistrate erred because it was not open to him to be satisfied beyond reasonable doubt that the appellant had driven his utility.

43 The learned judge held that such a finding was plainly open because the two prosecution witnesses gave evidence to that effect and because the inadequacies in the evidence of Constable Mansfield, taken together with the appellant's denial that he had driven, provided no basis for concluding that the finding that the learned magistrate made was not open and was erroneous.

44 Before this Court, counsel for the appellant did not seek to argue that the learned judge erred by not accepting that unsafe and unsatisfactory was a valid ground.

45 Therefore, the learned judge should be taken to have decided the first ground against the appellant by applying a long line of authorities. His Honour did not purport to decide the case on any other basis.

46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. 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.

47 In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that "when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it". That comment was based on experience and reflection but, of course, was not a statement of principle.

48 The learned judge was correct in holding that the finding that the vehicle was driven by the appellant was plainly open. Notwithstanding that the learned magistrate determined that he could not place much reliance on Constable Mansfield's evidence, her evidence that the vehicle moved was supported by the evidence of Constable Rigby, whose evidence the learned magistrate did accept. His Honour was entitled to accept the fact asserted by those two witnesses and to reject the appellant's evidence to the contrary. It cannot be said that the finding was one to which a magistrate could not reasonably have come.

49 The appellant would have had a better chance of success if the nature of the case was an appeal by way of rehearing but, as I have said, it was not that.

51 After referring to the evidence of the constables but very little of the evidence of the appellant, and concluding that not a great deal of reliance could be placed on Constable Mansfield's evidence but that Constable Rigby gave evidence fairly well and more impressively under cross-examination than Constable Mansfield in a number of ways, the only reason given for finding that the appellant in fact drove his vehicle was that the learned magistrate preferred Constable Rigby's evidence about the matter to that of the appellant.

52 It was submitted by the appellant's counsel that the reasons given by the learned magistrate for finding that the appellant drove his vehicle were inadequate. Counsel pointed out that the learned magistrate summarised the evidence of the two police officers and remarked upon it to an extent, but he did not summarise the evidence of the appellant, in fact hardly referred to it, and provided no critique of it. The reasons appeared to be based on whether there was sufficient prosecution evidence, without regard to the appellant's evidence, to justify a conviction. It was argued that in a case in which the criminal standard of proof applies and the outcome depends entirely on credit, merely expressing a preference for the evidence of one party's witness to that of the other party's witness should usually be regarded as inadequate in point of law. With regard to the evidence in this case, it was submitted that far greater detail of the events was provided by the appellant in his evidence than the two police officers provided in their evidence and that there was nothing about his evidence that made it unbelievable, and yet the basis for its rejection was a mere preference for another witness's evidence, in circumstances where proof beyond reasonable doubt of the central issue was required.

53 On the review, the learned judge accepted that the reasons of the learned magistrate had to be adequate in accordance with the law. However, his Honour said that where a case turns entirely on credit, it is well established that ordinarily, in both civil and criminal cases, it is sufficient for the adjudicator to say that he or she believes one witness in preference to another, citing for civil cases Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 and Zaronias v Papaiani [2002] NSWCA 207 at par7, and for criminal cases Keyte [2000] SASC 382; (2000) 118 A Crim R 463 at par56 and R v Power [2003] SASC 77; (2003) 141 A Crim R 203 at pars57 - 59.

54 His Honour accepted that there may be circumstances where this approach is not satisfactory and observed that in a criminal case, the mere preferring of the evidence of one or more witnesses over the evidence of a defendant is insufficient to satisfy the burden of proof.

55 Relevant to that last observation, the learned judge came to the following conclusions:

"In this case, the learned magistrate recognised the clear conflict between the evidence of the witnesses for the prosecution and that of the applicant and decided against the applicant. Whilst the learned magistrate did not expressly say that he did so beyond reasonable doubt, I am satisfied that he so found. In the paragraph that followed the finding that resulted in the conviction in question, his Honour acquitted the applicant on another charge, saying: "So I am not satisfied beyond reasonable doubt as to that one, and I'm dismissing [it]." The conflict between the evidence of the applicant and the two police witnesses on the issue of whether the applicant had been driving was such that I am unpersuaded that it was necessary for the learned magistrate to do more than identify the evidence that he accepted. It was not necessary for his Honour to set out his explanation for preferring the evidence of Constable Rigby over that of the applicant."

56 The issue for determination here is whether the learned judge was correct in concluding that it was unnecessary for the learned magistrate to do more than identify the evidence that he accepted and state that he preferred it to the contrary evidence of the appellant.

57 Zaronias v Papaiani should be understood in the context of the evidence presented in it. It is not an authority for all civil cases that all an adjudicator need do is state a preference for one witness over another without explaining any reasons for that preference. In Sutherland Shire Council v Dietz [2004] NSWCA 53, Zaronias was distinguished as a case in which it did not matter which of two conflicting pieces of evidence was accepted.

58 I made the same comments about Zaronias in James v Eyles [2007] TASSC 55 at par28 and I went on to point out that the statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd at 280 that where the resolution of a case depends entirely on credibility it is probably enough that the judge says that one witness was believed in preference to another, was made in the context of civil proceedings in which the standard of proof is the balance of probabilities. I expressed the view that believing one witness in preference to another may be all that is necessary for the determination of facts on the balance of probabilities (without deciding that to be a correct statement of law), but said that when the standard is proof beyond reasonable doubt the mere preferring of one witness against another is insufficient to satisfy that standard and there must be something stronger than mere preference. I still hold those views for most criminal cases in which the outcome depends entirely on credibility.

59 When referring to Keyte, the learned judge quoted the following passage at par56 from the judgment of Doyle CJ, with whom Wicks J agreed:

"I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence."

60 That passage needs to be understood in its context. Immediately before it, Doyle CJ said:

"I do not have to decide whether it was incumbent upon the judge to identify the central evidence upon which he was prepared to act, and the basis upon which he preferred the evidence of Ms C to that of the appellant. I do not have to decide this issue, the extent of the obligation to make findings of fact, because in this respect the judge's reasons are adequate."

61 Keyte concerned a trial before a judge without a jury of six charges alleging that a variety of sexual and non-sexual offences had been committed by the appellant against a woman. Credit was the major determinative issue and the trial judge found that the complainant was to be believed, as well as her two daughters whose evidence supported her on some aspects of her evidence. The trial judge said that having observed the complainant give evidence and being cross-examined over a long period of time, "I have no doubt that she was very genuine and in her simple manner of expression endeavoured to accurately outline the physical and very emotional events in her long relationship with the accused". It was in the context of that explanation, and other reasons given by the trial judge for his decision for finding the appellant in Keyte guilty of five of the six charges, that Doyle CJ concluded that the judge's reasons were adequate and therefore, it was unnecessary to decide the extent of the obligation to make findings of facts. The additional comment of Doyle CJ, that was quoted by the learned judge and which is quoted above, was made in those circumstances, and cannot be regarded as authority for the proposition that where a criminal case turns entirely on credit, it is ordinarily sufficient for the adjudicator to say that one witness is preferred over another.

62 When considering Keyte in Gannon v Police [2005] SASC 502; (2005) 93 SASR 289, White J commented, at 294, that while a "detailed explanation" is not required, some explanation is required for a decision to prefer the evidence of one witness to another.

63 For similar reasons, R v Power, which was referred to by the learned judge, should not be regarded as an authority for the proposition that mere statement of a preference for a witness is sufficient. Admittedly, Perry J, with whom the other members of the Court of Criminal Appeal of South Australia agreed, said at par59 that in the circumstances of the case, there was no requirement that the trial judge should attempt to give a detailed explanation for the decision to prefer the evidence of one witness against that of another, but that comment was made in the context of some reasons having been given by the trial judge. The case concerned charges of four counts of unlawful sexual intercourse with a person under the age of 12 years. In his reasons, the trial judge said that he was most impressed with the complainant as a witness and that he had no doubt that she was telling the truth. He said that he found the accused a most unimpressive witness. He also referred to evidence that a few hours after being charged and placed in custody, the accused's de facto wife asked him did he do "this", to which the accused replied that he did, and when asked, "Why?" he said, "I don't know, but I need help". His evidence was that all he was admitting to was that he had touched the girl but nothing else. The learned judge said that he rejected that explanation, and also his explanation for a letter of apology to the complainant for what he had done to her, and noted that his denials to police of doing anything improper, in the light of those admissions, did not give his Honour confidence as to the truth of the evidence he had given in court. The circumstances of that case bear no comparison with the circumstances of this case, where no reasons for preferring one witness to the evidence of another were given.

64 The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately.

65 There is a significant danger if, in a case such as this, the Court accepts the expression of a preference for one witness over another witness as a sufficient expression of reasons for a finding that a charge has been proved beyond a reasonable doubt. It will encourage judicial officers at first instance to make preference a ritual incantation and an unassailable one.

66 If a judicial officer is unable to explain why a particular witness is preferred to the extent that the witness's evidence has proved a charge beyond reasonable doubt, it may amount to good reason for dismissing the charge.

67 Before concluding, I comment that there may well be cases where reasons are not required or where very brief reasons are all that are needed. However, in this case I would hold that the reasons of the learned magistrate were inadequate. It follows that it is my view that the learned judge erred in finding that the learned magistrate gave adequate reasons for finding the charge proved.

68 I would set aside the finding of the learned magistrate that the charge was proved and quash the conviction. It is likely that the Court should order that the charge should be remitted for rehearing by another magistrate, but the parties should have the opportunity to be heard about that, and about any other orders, before concluding the appeal.

DAVID WILLIAM PHILLIPS v ASHLEY WILLIAM ROY ARNOLD

69 I agree with the orders proposed by the learned Chief Justice, and with his reasons.

DAVID WILLIAM PHILLIPS v ASHLEY WILLIAM ROY ARNOLD

70 I have read the reasons for judgment of Crawford CJ. Subject to one matter on which I will comment, I agree with those reasons. I would allow the appeal and join in the making of the orders the learned Chief Justice has proposed, subject to hearing from the parties as to the final disposition of the matter.

71 For my part, and certainly in relation to criminal matters, I would have thought that cases in which reasons are not required would be very much a rarity. It is axiomatic that what are adequate reasons will depend upon the circumstances of each case. It is also true that appeal courts should not be over zealous in scrutinising an ex tempore judgment, and recognition must be afforded to the heavy workload which falls on lower courts; Gannon v Police (2005) 93 SASR per White J at 294 [22]; Pollard v R R R Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at [56]. However, in cases where the resolution of the ultimate issue turns on issues of credit, and where a finding of guilt is necessarily implicit in the expression of a preference for the prosecution witnesses, I think that the absence of reasons would be, except in a most unusual case, an error of law.

72 In Papps v Police [2000] SASC 143; (2000) 77 SASR 310, the South Australian Court of Criminal Appeal was dealing with the adequacy of reasons given by a magistrate. The court's decision in Papps was handed down some five months before the decision of the same (but differently constituted) court in Keyte [2000] SASC 382; (2000) 118 A Crim 463, which has been considered by the learned Chief Justice in his reasons. In Papps v Police, the magistrate dealt with the police evidence and gave reasons for the acceptance of that evidence, but did not expressly state reasons for rejecting the relevant evidence given by the defendant and a witness. At 217, Gray J (with whom Olsson and Wicks JJ agreed) endorsed the proposition (by reference to earlier authority) that two things, amongst others, which made it exceedingly difficult, if not impossible, for an appeal court to come to terms with the issues, were the failure to make adequate findings of narrative fact and to the deal with the issues of credibility in a definitive fashion.

"[36] The issue that then arises is whether the magistrate's reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.

...

[38] This Court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate's reasons were inadequate.

[39] Justice was not seen to be done in this case. The approach taken by the magistrate does not appear even handed. His manner of dealing with the police case and the defence case is markedly different and could lead to a sense of unfairness and injustice. As was said in Connell v Auckland City Council [1977] 1 NZLR 630 at 634, the failure to afford reasons may result in a litigant who is not only disappointed but is also disturbed."

Similar comments can be made as to the magistrate's approach in this case.

74 In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186, Ipp JA at 189 - 191 examined at some length the subject matter of the "Need for care in making demeanour findings", and continued:

"Giving adequate reasons for demeanour findings

28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates ...

29 Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent."

75 In Pollard v R R R Corporation Pty Ltd (above), in the course of a comprehensive review of the applicable principles, McColl JA said at [64] - [65] (referring to Goodrich Aerospace) "Bald conclusionary statements should be eschewed", and that "...where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's". In my view these comments should be, at the least, applied to criminal cases where the determination of credit issues between the parties effectively determines the ultimate issue.

[*]Phillips v Arnold [2008] TASSC 6

Phillips v Arnold [2009] TASSC 43

At a glance

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Judgment (95 paragraphs)

Phillips v Arnold [2009] TASSC 43 (11 June 2009)

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Cases Cited (6)