Plaintiff v Defendants

2 The plaintiff was charged with seven offences. The offence relevant to this proceeding is the offence of possession of a drug of dependence, namely heroin, under s 73 of the Drugs Act. The charges came on for hearing at the Sunshine Magistrates' Court in September 2011. Mr Ta pleaded guilty to some of the charges, and others were withdrawn. He pleaded not guilty to the charge of possessing heroin. He was found guilty of that charge. On the charges to which he pleaded guilty and was found guilty, he was fined an aggregate sum of $1200 without conviction.

3 Mr Ta then appealed to the County Court under Part 6.1 of the Criminal Procedure Act 2009 ('the Criminal Procedure Act'). The appeal came on for hearing before a Judge in the County Court on 15 March 2012. Pursuant to s 256 of the Criminal Procedure Act, the appeal was conducted as a re-hearing and the Judge commenced by formally setting aside the orders made in the Magistrates' Court at Sunshine. After hearing evidence and brief submissions, the appeal was dismissed and the charge was found proven. The same penalty was imposed. In this proceeding Mr Ta seeks to have the decision on his appeal quashed.

4 Under s 73 of the Drugs Act, a person is guilty of an offence if he has in his possession a drug of dependence. Section 5 of the Drugs Act defines possession as follows:

Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

5 In R v Hiep Tan Tran,[1] Redlich JA (with whom Nettle and Neave JJA relevantly agreed) said:

To overcome the effect of the deeming provision in s 5, an occupier of a premises must satisfy the jury, on the balance of probabilities, that he or she was unaware that the drug was on the premises or had no intention to exercise control over the drug or the place where it was kept.[2]

6 The issue on the appeal heard in the County Court was whether the Court was so satisfied.

7 By an originating motion filed 23 April 2012, the plaintiff seeks relief in the nature of certiorari to quash the order made in the County Court whereby the charge was found proven and a fine was imposed on him. The grounds for relief are expressed as follows:

There is error on the face of the record [ie the reasons provided by the Court] in that in deciding to not accept the plaintiff's words the learned presiding judge erroneously:

1. A. failed to give weight to relevant considerations;
2. B. mistook the evidence/alternatively gave weight to irrelevant considerations; and/or -

1. C. failed to provide adequate reasons to explain her decision.

8 Counsel on behalf of the first defendant, who is the informant, appeared to contest the application. As is usual, the second defendant filed an appearance but did not take any part in the proceeding, indicating in a covering letter to its appearance that it would abide the result.[3]

9 Counsel for both parties relied upon the well-known description of the scope of certiorari in Craig v South Australia.[4]

10 Notwithstanding the terms in which the grounds were expressed in the originating motion, in the course of submissions it became clear that the substance of the complaint is that the County Court Judge failed to provide adequate reasons to explain her decision and that that failure was an error of law on the face of the record.

11 For these purposes, the record is constituted by the documentation which initiated the prosecution, the document recording the adjudication, and the reasons given by the Judge.[5]

12 Before me, both counsel referred to the transcript of the County Court hearing. The plaintiff's counsel did so in order to identify evidence said to have been ignored or not properly addressed in the Judge's reasons. The first defendant's counsel did so in order to demonstrate that the reasons given were adequate in the light of the evidence and the submissions made. Neither counsel contended that reference to the transcript was prohibited or precluded.[6]

13 The first witness who gave evidence before the County Court Judge was Detective Senior Constable Hyndman, the police officer who found the zip-lock plastic bag. He described the search and what he found. He agreed that there were unopened beer bottles in the bathtub of the main bathroom of the house. The second prosecution witness was the informant, Senior Constable Thompson, who was present in the house at the time of the search but did not take part in the search. She conducted an interview with Mr Ta that dealt with a number of matters, most of which were not relevant to the matter now in contention. She was taken through what were said to be the relevant matters.

14 In the interview, Mr Ta had referred to a New Year's Eve party which he said had taken place. He had said that he was living in the house alone at the time, although people sometimes stayed over and some months previously he had had a flatmate called "John". When asked about items found in his bedroom, he had said not everything in the bedroom had belonged to him. When asked what did not belong to him, he had said: "... the shit you found". This was a reference to the zip-lock plastic bag. When asked what was his reason for possessing heroin, he replied "That I don't know ... no comment, you can just take it from no comment". He had made reference to the fact that he uses marijuana and ice and "that's about it". He was asked about bongs and cannabis that was found in the house, which he related to the party.

15 In cross-examination, Ms Thompson was asked whether fingerprints of Mr Ta were on the bag and she said she did not believe so. She was asked whether DNA belonging to Mr Ta was on the bag and she said she did not think so.

16 Apart from formal matters, that was the prosecution case.

17 The plaintiff gave evidence that he had no knowledge of the heroin located in his walk-in wardrobe. He said that a party had been held at the house on New Year's Eve which had extended over two nights; that approximately 15 people had been at the party of whom he had known about 10; that the remnants of alcohol from the party had still been in the bath when the police had arrived on 5 January; that his bedroom had been "turned upside down" by party goers who had had access to the whole house; and that the house had only been "about half cleaned" at the time the police arrived. In cross-examination when asked what else there was in his bedroom which was not his, he nominated some ammunition (the subject of another charge), adding that he had known that was there.

18 In his submissions, counsel on behalf of the plaintiff referred the Judge to the "reverse onus" and to the fact that the plaintiff was required to satisfy the Court "to the contrary" on the balance of probabilities. The submission made was as follows:

And the way the evidence has come out, Your Honour, comes down to really a question of knowledge; he says he has no knowledge. If that's the case, Your Honour is satisfied and accepts his evidence on that point, then he is entitled to succeed. It's a matter for Your Honour evaluating the evidence.

19 The County Court Judge gave her decision orally immediately after counsels' submissions. She said:

Right. Now, look, I've heard evidence from the appellant about a party and people coming and going and people using his room. He said it was orderly before he ... before the party, and it was not afterwards. Usually ... he said the house was tidy, the whole house was half tidy before the police attended; his own room had not been done. That his evidence is the only evidence that I have; I have no-one there ... anyone to say that it was a party and that people were sleeping all over the place. Simply that I would have to accept his word and in the circumstances, I don't accept it. And I'm going to find ... I find the charges proved. And I find that he did have knowledge, and therefore I will sentence.

20 In the submissions made to me, there was no controversy as to the proposition that it was the duty of the Judge to provide adequate reasons for her decision. The issue in contention between the parties was whether the reasons were adequate.

21 There has never been any doubt, at least in modern times, that judges are required to give reasons which are sufficiently detailed to enable the proper exercise of applicable rights of appeal.[7]

22 Whilst once it might have been possible to maintain that the scope of the duty to give reasons was confined by what was necessary in order to enable rights of appeal to be properly exercised, it is now clear in the authorities that reasons are a necessary incident of the judicial process and are important not simply as a means of enabling appeals to be properly conducted and determined, but also so as to enable parties to perceive that justice has been done in their case, to enable the public generally to perceive that justice is being done in cases before the Courts, as a means of providing for judicial accountability, and because judgments perform an important educative function.[8]

23 This is not to say, of course, that reasons must be given for every judicial decision of any kind. But reasons, not necessarily elaborate, were required here.[9]

24 A failure to give reasons, or adequate reasons, where there is a duty to do so is an error of law.[10] In Victoria, where the reasons are part of the record, such an error is an error of law on the face of the record.[11]

25 The extent and detail of the reasons required in a particular case will vary depending upon the nature of the case, the complexity of the issues, and the evidence and the submissions made.[12]

26 In Massoud, Gray J (with whom Fullagar and Tadgell JJ agreed), in a passage more recently quoted and approved by the Court of Appeal,[13] said:

The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge's conclusion will sufficiently indicate the basis of a decision.

27 As to what is usually required, Meagher JA's observations in Beale v GIO of New South Wales[14] to the effect that a judge should refer to the relevant evidence, make material findings, and explain the reasons for the findings and the application of the law to the facts as found, is often quoted.[15]

28 Where factual matters are concerned, the reasons ought not to leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed.[16]

29 Reasons in an appropriate case may be adequate, even if they are very short[17] and it is not necessary to state what is obvious.[18]

30 Where there is no right of appeal in relation to factual findings, the requirement for the provision of reasons as to factual findings is less rigorous.[19] This is such a case. [20]

31 In Soulemezis, McHugh JA (as he then was) observed:[21]

Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Ackland City Council [1971] 1 NZLR 630 at 632-633 per Chilwell J.

32 Very recently, in Douglas v R,[22] the High Court has indicated that whilst McHugh JA's observation might be valid in the context in which it was made, being consideration of the reasons given by a judge in a compensation case, it was not applicable to a criminal case where there was a conflict between the complainant's evidence and evidence given by the defendant. Such an approach would, the High Court held, fail to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to another, but rather depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.[23] In a criminal case, even if a judge were not persuaded by a defendant's evidence, and preferred the evidence of the complainant, he or she could not convict unless satisfied that it was not reasonably possible that the defendant's evidence was true.[24]

33 More generally, in Douglas, the High Court recorded that it was common ground in that matter that where a judge is returning a verdict following a criminal trial without a jury the judge is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.[25]

34 If there is evidence which is uncontradicted, reasonable and inherently probable, and which goes to the core of the case, a failure to refer to the evidence by the judge has been held to constitute an error as the evidence has either been rejected without any reason being given, or has not been properly considered.[26]

35 On behalf of the plaintiffs it was submitted that the reasons given by the County Court Judge were inadequate in a number of respects. It was submitted that the plaintiff's own evidence was uncontradicted, reasonable and inherently probable, and that it was an error of law to reject it without stating relevant reasons for doing so. It was also submitted that significant evidence given by the police officers was either rejected or not properly considered because it was not dealt with in the reasons. In particular, it was submitted that there was a failure to accept or consider the evidence that there were no fingerprints or DNA of the plaintiff on the plastic zip-lock bag, that there were unopened bottles of beer in the bath which was consistent with the plaintiff's account of a party, and that the plaintiff had told the police that there had been a party. In this respect, it was submitted that the judge had made a clear error in asserting that the plaintiff's evidence was the only evidence that she had. It was submitted that it could not be sufficient to simply state that the plaintiff's evidence was not accepted without giving reasons why the plaintiff's evidence was not accepted. It was submitted that the Judge had referred to "circumstances", but had not given any indication of what those circumstances were.

36 Particular reliance was placed upon Massoud, Read, Bloomfield, Kerr, Hunter and Douglas.

37 On behalf of the firstnamed defendant it was submitted that this was not a case of a failure to deal with critical evidence or a failure to give reasons for rejecting evidence. It was submitted that the reasons given had to be assessed in the context of the concession that the drugs were in Mr Ta's premises, the uncontroversial description of where they were found, and the frank submission put to the Judge on behalf of Mr Ta that the only issue to be determined was whether his evidence was accepted or not. It was submitted that the reasons given were a "direct response" to the submission made by counsel for the plaintiff, and that in the circumstances of this case they were adequate. It was submitted that her Honour had referred to the relevant evidence, being that concerning the party; that she had set out her finding, that she did not accept Mr Ta's evidence; and that she had set out the reason for the finding "being that she rejected the plaintiff's evidence as being uncorroborated".

38 This is not a case, like Read or Massoud, where uncontradicted, reasonable and inherently probable evidence going to the core of the case was rejected or ignored without proper explanation. Mr Ta's evidence was not the kind of evidence dealt with in Read and Massoud and in my view could not be so described. The aspects of the police evidence upon which the plaintiff relies, while consistent with Mr Ta's evidence, were not inconsistent with the conclusion her Honour reached.

39 I also do not accept the submission that her Honour ignored or rejected the aspects of the police evidence relied upon by the plaintiff. In the circumstances here, she was not obliged to recite evidence she had just heard literally minutes earlier.

40 It was not completely accurate for her Honour to say that Mr Ta's evidence was the only evidence she had, by which I consider that she obviously meant the only evidence relevant to the issue of whether she was satisfied that Mr Ta had been unaware of the presence of the drug. But that was not an inaccurate broad general characterisation of the position. Mr Ta's sworn evidence was supplemented only by his own prior assertions to the police and the aspects of the police evidence which revealed matters consistent with his account, but also not necessarily inconsistent with the rejection of his account. The only issue was, as Mr Ta's own counsel submitted, whether Mr Ta's evidence was to be accepted or not.

41 Her Honour's reasons were a direct response to the submissions made, and the only issue was one of credit. This case is different to Douglas because here the defendant had the burden of proof (on the balance of probability), on the relevant issue. If her Honour was not persuaded by Mr Ta's evidence, a finding of guilt necessarily followed.

42 There were features of this case which in my view were so obvious as to go without saying. The location in which the drug was found was such that a credible explanation for its presence there was necessary. Mr Ta was the only resident of the house at the time. He accepted that he either owned or had knowledge of everything else in his bedroom. He gave an explanation on oath. Her Honour saw and heard him give it. His explanation was consistent with some of the police evidence and with his own prior statements but was otherwise uncorroborated. Even if he was accepted on the issue of whether a party had occurred several days earlier, that fact alone did not constitute an explanation, it merely supplied a possible explanation which may have made more credible his assertion of ignorance.

43 Her Honour did not accept Mr Ta's evidence. In the circumstances here, she did not need to say more. The only issue was, as Mr Ta's counsel submitted, whether she accepted his assertion that he was ignorant of the presence of the heroin. She did not, and she said so. She could have said more, and perhaps it would have been better if she had, but what she said was enough in the context. It is not suggested that Her Honour did not address the relevant legal issue. It is clear that she did.

44 Probably because she gave reasons ex tempore, what her Honour did say mainly seemed to concern the party, and it does seem that she was not prepared to accept Mr Ta's evidence about the party. The issue was whether Mr Ta had satisfied the Court that he was ignorant of the presence of the heroin. The evidence about a party was relevant to that but the lack of clarity in her reasons about the party is not a fatal shortcoming in my view.

45 The reasons are accordingly adequate in the circumstances and no error of law on the face of the record has been established. I will hear the parties on the appropriate orders.

[1] [2007] VSCA 19.

[3] See R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.

[4] [1995] HCA 58; (1995) 184 CLR 163, 175-6 ('Craig').

[5] Ibid 180-183; s 10 of the Administrative Law Act 1978.

[6] The course taken in this respect was in accordance with Tower Australia Ltd v Fillippis [2007] VSC 236, [13] and SE Vineyard Finance Pty Ltd (Receivers and Managers Appointed) v Rose [2011] VSC 403, [71].

[7] Sun Alliance Insurance Limited v Massoud [1989] VicRp 2; [1989] VR 8, 18 ('Massoud'); Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 ('Perkins').

[8] Massoud [1989] VicRp 2; [1989] VR 8, 18-19 and the cases cited, especially Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-280 per McHugh JA ('Soulemezis'); Fletcher Construction v Lines Macfarlane (No 2) [2002] VSCA 189; (2002) 6 VR 1, [99]-[100] ('Fletcher'); Sherlock v Lloyd [2010] VSCA 122, [14]. The fundamental importance of reasons in the undertaking of the judicial function has been emphatically emphasised by the High Court recently in Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181.

[9] R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 182; Munro v Brack [2000] VSC 229, [31]-[34].

[10] Massoud [1989] VicRp 2; [1989] VR 8, 20 citing Pettitt v Dunkley [1971] 1 NSWLR 376; Kerr v Colley [2002] VSC 209, [16]-[18]; Hunter v TAC & Avalanche [2005] VSCA 1, [21] ('Hunter'); Minister for Immigration v Yusuf (2001) 206 CLR 323, 388-9.

[11] Bloomfield v Haralabakos & Anor [2007] VSC 279, [26] ('Bloomfield').

[12] Massoud [1989] VicRp 2; [1989] VR 8; Fletcher [2002] VSCA 189; (2002) 6 VR 1; Bloomfield [2007] VSC 279; Wakool Shire Council v Walters [2005] VSCA 216, [35].

[13] Intertransport v Donaldson [2005] VSCA 303, [19].

[14] (1997) 48 NSWLR 430, 443-4.

[15] See, for example, Fletcher [2002] VSCA 189; (2002) 6 VR 1, [101].

[16] Hunter [2005] VSCA 1, [21].

[17] Bloomfield [2007] VSC 279, [14].

[18] Hunter [2005] VSCA 1, [22].

[19] Perkins [2000] VSCA 171; (2000) 2 VR 246, 273; Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28, [15]; Cyndon Chemicals v Ultrawash Holdings [2007] VSC 506, [9]; BR v Vocat [2009] VSC 152, [26].

[20] The plaintiff appealed to the County Court under Part 6.1 of the Criminal Procedure Act, whereupon the County Court heard and determined the appeal in its appellate jurisdiction, from which there is no further right of appeal. The rights of appeal contained in Part 6.3 of the Criminal Procedure Act apply to matters heard by the County Court in its original jurisdiction (see s 274 of the Criminal Procedure Act). The only avenue of redress from the County Court in its appellate jurisdiction is judicial review.

[21] Soulemezis (1987) 10 NSWLR 247, 280.

[22] [2012] HCA 34.

[26] Read v Nerey Nominees Pty Ltd [1979] VicRp 6; [1979] VR 47, 51-52 ('Read'); Massoud [1989] VicRp 2; [1989] VR 8.