Court of Appeal (Vic)|2013-12-03|Before: Mr P, Redlich JA, Osborn JA

Ta v Thompson & Anor [2013] VSCA 344 (3 December 2013)

Ta v Thompson & Anor [2012] VSC 446 (Whelan J)

1 On the afternoon of 5 January 2010 officers of Victoria Police attended at the appellant's house in Tarneit with a search warrant. When the house was searched police found a clear ziplock plastic bag containing 0.1 grams of heroin on the top shelf of the walk-in wardrobe of the appellant's bedroom.

2 No other items were found on the top shelf. The top shelf was 'just over six feet' above floor level. The plastic bag was only visible when one of the investigating police officers 176 cm in height stood on a chair. On the other hand, the plastic bag was located close to the front of the shelf so that someone could reach up and take it relatively easily if they knew where it was.

3 During the search the appellant told Detective Senior Constable Hyndman that there had been a New Year's Eve party at his house. The detective observed unopened beer bottles in a bathtub consistent with the bathtub being used as an ice bucket for a party.

4 In a subsequent record of interview the appellant said that he was the only person living in the house at the time and that the heroin was found in his bedroom. He denied that the heroin belonged to him and said he did not know how it came to be there. He referred again to the New Year's Eve party which had taken place. The record of interview set out the following course of questions and answers:

Question: What doesn't belong to you?

Answer: The shit you found, that's it that was in that room.

Question: Where would that have been found?

Answer: I don't know you said you found it didn't you? ...

Question: Yeah it was found in the walk-in robe. Why would that be there?

Answer: I don't know.

Question: Do you use drugs?

Answer: I don't know, sometimes I use ice, sometimes smoke weed, that's about it. ... That doesn't look like ice.

5 No fingerprints or DNA belonging to the appellant were found on the plastic bag.

6 The appellant was charged with a series of offences relating to various items found at the house. The charges included possession of a drug of dependence (namely heroin) in contravention of s 73 of the Drugs, Poisons and Controlled Substances Act 1981 ('the Drugs Act').

7 Section 5 of the Drugs Act relevantly 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.

8 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]

9 The charges came on for hearing at the Sunshine Magistrates' Court on 11 September 2011. The appellant pleaded guilty to some charges and others were withdrawn. He contested the charge of possessing heroin but was found guilty. He was then without conviction fined with respect to a total of four offences by way of an aggregate penalty of $1,200.

10 The appellant then appealed to the County Court against the finding of guilt.[3]

11 The matter came on for hearing before Judge Cotterell on 15 March 2012. After hearing evidence and brief submissions, her Honour dismissed the appeal and upheld the conviction.

12 Mr Ta then instituted judicial review proceedings in this Court challenging the decision of the County Court on three bases:

(a) the County Court judge failed to give weight to relevant considerations;

(b) the County Court judge mistook the evidence/alternatively gave weight to irrelevant considerations; and/or

13 On 28 September 2012 Whelan J (as he then was) dismissed the application for judicial review. The appellant now seeks to appeal the decision of Whelan J on the basis that he should have held the County Court judge failed to demonstrate sufficiently in her reasons why she rejected the appellant's evidence.

14 The appeal was opened in the County Court on the basis that the issue was a confined one, namely whether the appellant could discharge his obligation under s 5 of the Drugs Act.

15 The circumstances in which the drug was found within the appellant's bedroom raised an obvious and significant evidentiary hurdle in this regard.

16 In the County Court the appellant gave evidence that he had no knowledge of the heroin located in his walk-in wardrobe and the heroin did not belong to him.

17 He further said that a New Year's Eve party had been held at his house which lasted two days. Approximately 15 people attended the party of whom he knew about 10. The remnants of 13 slabs of beer which were brought to the house for the party were still in the bathtub when the police arrived. The house was a mess, about half cleaned. In the course of the party his bedroom had been turned 'upside down' by partygoers. Partygoers had freedom to access all parts of the house including his bedroom. During the course of the party he got drunk and slept in the lounge of the house where he 'crashed' on a couch. He saw partygoers using marijuana but he did not see the use of any other drugs. When asked in cross-examination 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 final submissions counsel for the appellant put the case this way:

It's the reverse onus for somebody who is in occupation of the premises. He's certainly in occupation of that bedroom; he's an occupier of it, so the reverse onus applies to him. He's deemed to be in possession unless he satisfies the Court to the contrary; it's on the balance of probabilities. He doesn't have [to] shift the possession of heroin to anybody else; it's a mistake to approach it that way. The question is: has he satisfied Your Honour on a balance of probabilities that he was not in possession? 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 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 It can be seen that her Honour summarised aspects of the appellant's evidence about the use of his home (and in particular his bedroom) for the purpose of the New Year's Eve party and noted that there was no evidence corroborating the proposition that there was a party at which people were sleeping all over the place. In turn, the appellant's case depended upon acceptance of his evidence. In the circumstances of the case, her Honour did not accept that evidence.

21 Error of law on the face of the record constitutes a distinct basis for relief by way of judicial review in the nature of certiorari. As the High Court has recently stated:

Jurisdictional error constitutes one basis on which the Supreme Court can make an order in the nature of certiorari to remove the purported legal consequences of a purported exercise of power under a State statute. That basis for the Supreme Court making an order in the nature of certiorari is entrenched by the Commonwealth Constitution.[4] Error of law on the face of the record constitutes a separate and distinct basis on which the Supreme Court can make an order in the nature of certiorari to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power under a State statute.[5] That basis for the Supreme Court making an order in the nature of certiorari is not entrenched by the Commonwealth Constitution; its application can be excluded by statute.[6] Where it is not excluded, however, it applies independently of jurisdictional error. That is to say, where error of law on the face of the record is not excluded by statute as a basis for making an order in the nature of certiorari, and where an error of law on the face of the record is found, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power irrespective of whether the error of law also constitutes a breach of a condition of the valid exercise of that power.[7]

22 Certiorari will potentially be available in respect of decisions such as that here in issue.[8]

23 Section 10 of the Administrative Law Act 1978 ('the Administrative Law Act') extends the content of the record for the purposes of judicial review of this kind.

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

24 Section 10 does not however make the transcript of the proceedings part of the record. It only goes part of the way contemplated by the High Court when it observed in Craig:[9]

More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for the decision could be scoured and analysed in a search for some internal error.[10]

25 The fundamental question raised by this appeal is thus whether the County Court judge's reasons were so inadequate as to demonstrate an error of law. If the County Court judge's reasons were so inadequate as to demonstrate an error of law that may found an order quashing the decision[11] or alternatively an order in the nature of mandamus compelling the production of further reasons.[12]

26 In the course of the hearing senior counsel put the appellant's case as one in the first instance seeking an order for further reasons. Senior counsel also sought leave to appeal on this basis insofar as that was necessary.

27 In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2),[13] the Court of Appeal[14] recognised the obligation of a judge to provide reasons for judgment as well settled in the following terms:[15]

It is well settled that a judge has an obligation to provide reasons for judgment.[16] The obligation to provide reasons is 'a normal not universal' incident of the judicial process.[17] However, as McHugh JA observed in Soulemezis v Dudley (Holdings) Pty Ltd,[18] 'when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons'.[19]

28 The Court further elaborated four purposes underlying the judicial obligation to give reasons:[20]

First, a Court of Appeal must be in a position to determine whether the decision of the trial judge contains appealable error. As Meagher JA observed in Beale:[21]

Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error.

See also Sun Alliance;[22] Soulemezis.[23] Secondly, an adequate statement of the reasons 'provides the foundation for the acceptability of the decision by the parties and the public'.[24] As Lord MacMillan once said the main object of a reasoned judgment 'is not only to do but to seem to do justice'.[25] Conversely, a failure to provide sufficient reasons or the provision of reasons which are riddled with error is likely to leave the losing party with a sense of injustice. As Megaw J said in Re Poyser and Mills' Arbitration:[26]

The decision might be perfectly right, but the person against whom it was made was left with the real grievance that he was not told why the decision had been made.

Thirdly, it furthers judicial accountability guarding 'against the birth of an unconsidered or impulsive decision'.[27] Next, the provision of adequate reasons has an educative function in that it 'enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future'.[28]

29 The Court went on to recognise that in any case in which reasons are required the necessary content will depend upon the circumstances of the particular matter.[29] As the High Court has put it:

The standard of reasons required even of courts making judicial decisions can vary markedly with the context.[30]

30 In the present case the County Court was deciding by way of hearing de novo a summary prosecution. There was no further right of appeal. Moreover the proceedings were unusual in the sense that the prosecution case was sufficient to place an evidentiary onus upon the appellant to establish on the balance of probabilities that he did not know of the presence of the heroin within his wardrobe. As the written submissions for the appellant put it:

the case against the appellant was confined to whether he could discharge his obligation under s 5 of the Drugs Poisons and Controlled Substances Act 1981.

31 There remains some uncertainty as to the extent of the judicial obligation to give reasons in the absence of a right of appeal.[31]

32 Nevertheless this was a final decision of the type which attracted the obligation to state reasons, and in order to be meaningful the obligation must at least have extended to a requirement that the court state the grounds of its decision. If this were not done the reasons would not be reasons in any real sense and the purposes identified in Fletcher would be unlikely to be fulfilled.

33 Further the statement of the grounds of a decision of this type facilitates effective judicial review and the protection of a party's rights to see whether a decision was made in accordance with law.

34 Conversely, there are good reasons for concluding that the obligation to give reasons did not go as far as that which is imposed where a decision is subject to an appeal by way of rehearing but was limited to that ordinarily imposed when a decision is subject to an appeal on questions of law only.

35 Most obviously, the very fact that there is no right of appeal from the County Court judge's decision supports this limitation. Secondly, the fact that the proceeding constituted a rehearing of a summary prosecution also tends to support this view. Thirdly, there is no authority requiring the imposition of a higher standard.

36 For present purposes it may thus be accepted that the County Court judge's obligation extended to identifying the grounds or basis of her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law.

37 The application of this standard is exemplified by the decision in Soulemezis.[32] In Soulemezis, an appeal on questions of law against a decision of the Compensation Court of New South Wales that the appellant was 'fit for work' was brought on the basis that the judge failed to give any or any sufficient reasons for the finding. It was held that the duty to give reasons for a decision in respect of a finding of fact from which no appeal lay was satisfied when the judge disclosed grounds for findings of fact without detailed reasoning in respect of those findings. McHugh JA said:[33]

While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact.

38 Mahoney JA referred to the decision of Gibbs CJ in Public Service Board of New South Wales v Osmond[34] and to further authority including his own prior decision in Housing Commission of New South Wales and Tatmar Pastoral Company Pty Ltd[35] and said:[36]

But subject to matters such as these, the basis of a decision of a trial judge or an intermediate Court of Appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.

There is I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adopt the formula used in a different part of the law: see R v Associated Northern Collieries[39] - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted. To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process.

41 These principles were affirmed by the New South Wales Court of Appeal in Huntsman Chemical v International Pools.[40]

42 If this approach is adopted in respect of the County Court judge's reasons in the present case then the reasons needed to explain the grounds of her conclusion in sufficient detail to enable this Court to see the grounds upon which it was based but did not require detailed reasoning as to the evidence.

43 Thus Whelan J was correct to hold:[41]

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.[42] This is such a case.

44 For completeness I should add that the failure to advert to relevant considerations in stating reasons of the type I have referred to may give rise to an inference that the decision maker has failed to have regard to that matter. Thus in Yendall v Smith Mitchell & Co Ltd,[43] Sholl J said:

The true principle, I think, must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to the matter not having been considered as it should have been ... the appellate tribunal may properly draw that inference, and the magistrate will have no cause to complain if it does so.[44]

45 The present appeal was not argued on the basis that an inference of substantive error could be drawn but rather that the reasons were simply inadequate.

46 The appellant submits that the County Court judge's reasons were inadequate because they do not indicate whether the judge's decision was based on assessment of the appellant's demeanour when giving evidence, or inconsistency with other evidence or improbability for other reasons. In other words the reasons did not state the grounds or factual basis of the decision.

47 I do not agree. I take the fact that there is no suggestion in the reasons that the decision was based upon the demeanour of the witness or that it was based on direct inconsistency with other evidence to implicitly exclude these possibilities. In my view the reasons demonstrate that her Honour was simply not satisfied of the truth of the appellant's evidence on the balance of probabilities in the circumstances of the case.

48 In another case it might be arguable that the use of the phrase 'in the circumstances' was so opaque or so inherently ambiguous as to be inadequate. In the present case however there was no dispute as to the circumstances favouring the prosecution. Indeed their force was acknowledged in final submissions on behalf of the appellant to the County Court judge. The circumstances directly implicated the appellant both by reason of the deeming provision and the particular situation in which the heroin was found namely on the top shelf of a wardrobe within his bedroom.

49 Insofar as the circumstances favouring the appellant were concerned her Honour addressed these in the initial part of her reasons and reasoned that insofar as use of the room during the party (including use for the purpose of sleeping) was concerned the only evidence came from the appellant. It followed that the critical question was whether the appellant was to be believed. In my view the circumstances to which her Honour was referring were plain to the parties.

50 Even if I am wrong in these conclusions however the converse cannot be demonstrated from the reasons themselves. The record does not demonstrate that the use of the contextual phrase 'in the circumstances' involved some legal deficiency as distinct from some possible error. In order to succeed, the appellant must demonstrate a vitiating error of law on the face of the record.[45] It is not sufficient in the present case to show the mere possibility that the reasons are deficient. The same principle applies as in appeals on a question of law. In Portland Properties v Melbourne & Metropolitan Board of Works,[46] Smith J (with whom Adam J concurred) put that principle as follows:

It would not be enough for the appellant to show that the tribunal's reasons for its decision are so expressed as to suggest the possibility that the tribunal proceeded upon a wrong view of the law. This court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

51 In particular, I do not accept that it must be inferred that her Honour's decision rested upon further grounds which she did not identify. A conclusion that a decision maker is not satisfied to the relevant standard may not bear any or any material elaboration.

52 Where a judge's decision turns upon the acceptance or otherwise of a particular witness the judge's reasons for failing to be persuaded by that witness may be capable of no greater explanation than a summary statement. In Soulemezis Mahoney JA said:[47]

The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.

53 To similar effect for present purposes, McHugh JA in Soulemezis referred to Brittingham v Williams[48] and said:[49]

In that case the trial judge had given no reasons. However, the Full Court held that 'having regard to the only defence raised' the proper conclusion to be drawn from a judgment for the defendant was that the judge had not accepted the plaintiff's evidence. 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 Auckland City Council.[50] The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding.[51]

54 I do not take the decision in Douglass v The Queen[52] to relevantly qualify these observations. Douglass was a case in which the Crown bore the onus of proving the elements of the offence beyond reasonable doubt on the whole of the evidence. The present is a case in which the appellant bore the onus of establishing his defence on the balance of probabilities. In turn the judicial review proceeding before Whelan J was relevantly analogous to an appeal on questions of law as arose in Soulemezis. The High Court in Douglass did not reject the correctness of McHugh JA's observations in Soulemezis insofar as they applied to civil proceedings or by analogy to a case such as the present.

55 The present case turned fundamentally upon an assessment of the credit of the appellant. He could not discharge the onus upon him unless his denial of knowledge of the presence of the drug was accepted as truthful and reliable. The case was put to the judge expressly on this basis.

56 It follows Whelan J was correct to find:[53]

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 [Douglass[54]] 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.
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.
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.

57 It was further submitted on behalf of the appellant that if a judge disbelieves evidence which is uncontradicted and is reasonable and inherently probable, he or she is required to give his or her reasons for disbelieving that evidence.[55]

58 In my view the appellant's evidence was not uncontradicted, reasonable and inherently probable in the relevant sense. It was contradicted by the statutory presumption it sought to displace and as senior counsel for the appellant conceded was not inherently more probable than not. Further, this was not a case of an independent expert opinion expressed on the basis of common assumptions as was Hardy v Gillette.[56] It was a case of evidence as to contested fact in respect of which the appellant had a patent self-interest.

59 In the course of argument in this matter the question was raised whether the appellant had a potential entitlement to reasons pursuant to s 8 of the Administrative Law Act. That entitlement depended upon whether the County Court is a tribunal within the meaning of the Act. 'Tribunal' is relevantly defined as follows:

tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by

express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

60 Although the definition is capable of different readings, reference to authority demonstrates that this definition, read in the context of the Administrative Law Act, is to be regarded as excluding all tribunals which are constituted by courts of law.[57]

61 Accordingly, there is no such entitlement. The appellant's entitlement to relief depends upon the establishment of an error of law.

62 In the present case the decision of the County Court was not subject to a right of further appeal. It was necessary that the reasons be adequate to enable this Court exercising powers of judicial review to see whether the decision involved an error of law but not to provide a basis for an appeal by way of rehearing. Thus the reasons needed to explain the process of reasoning of the County Court judge and to state the grounds of the decision sufficiently to enable the Court to see whether the judge's decision did or did not involve an error of law. Her Honour's judgment met these requirements. She decided the matter by reference to relevant considerations on the evidence and identified the basis of her conclusion. Put simply, it was open to the judge as a matter of law to fail to be persuaded by the appellant's evidence and her reasons made clear that she was not so persuaded.

64 Some nine decades ago, Irvine CJ in Donovan v Edwards[58] lamented:[59]

This case is another instance of the embarrassment which is caused to the Court, by the refusal of justices to give reasons for their decisions. ... I have to repeat again that, in the exercise of their judicial functions, justices are not exempt from the duty which attaches to every judicial officer to state, to the best of his, ability, the facts he finds, and the reasons for his decision. The result here is that the justices have made an order leaving it entirely uncertain on what grounds, and on what findings of fact, that order is based.

65 In my opinion, by recourse to the judge's reasons in this case one cannot discern - except, perhaps, by informed guesswork - the facts she found, or the reasons for her decision.

66 Mine is, however, a minority view. The other members of the Court have concluded (as did the primary judge) that the impugned reasons of the County Court judge sufficiently explained her process of reasoning and stated the grounds of her decision so as 'to enable the Court to see whether the judge's decision did or did not involve an error of law'.[60] As I have indicated, with respect I cannot agree. It is necessary that I state my reasons for that disagreement. In so doing, however, I am largely relieved of recapitulating the facts and circumstances of the case - save so far as necessary to make my own reasons comprehensible - since they are thoroughly rehearsed in the reasons of Osborn JA, to whom I am grateful.

67 Although they were apparently secreted away, illicit drugs, heroin, were found by police on the top shelf of a walk-in wardrobe in the bedroom of the appellant's house, of which he was the sole occupant. He told police that he knew nothing of them. As I follow his account, he suggested that the drugs had perhaps been left by a partygoer who attended a New Year's Eve party at the house. Some support for there having been a party - although, perhaps, weak - could be derived from the fact that there were unopened beer bottles in the bath, consistent with it having been used as an ice bucket. (The police search was, however, conducted some days after New Year's Eve, on 5 January 2010.)

68 A Magistrate found the appellant guilty of possessing the heroin. He appealed to the County Court. Such appeals 'must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court'.[61] Upon the hearing of the appeal, the County Court must set aside the sentence imposed by the Magistrates' Court,[62] and 'may impose any sentence which the County Court considers appropriate and which the Magistrates' Court imposed or could have imposed'.[63] In its appellate jurisdiction the County Court 'may exercise any power which the Magistrates' Court exercised or could have exercised'.[64]

69 For present purposes, the effect of s 5 of the Drugs Act[65] is that if any proscribed substance was 'upon any ... premises occupied' by the appellant - and about that there was no dispute - then it 'shall be deemed ... to be in the possession' of the appellant, unless he 'satisfies the court to the contrary'. Thus the appellant bore the onus of satisfying the County Court judge, on the balance of probabilities, that he did not possess the proscribed substance. In context, that meant that the appellant was required to satisfy the judge that he was unaware that the heroin was in his bedroom.

70 The appellant gave evidence on the appeal, which I need not repeat in detail, that he had no knowledge of the heroin. On his evidence, presumably it had been left by a partygoer.[66]

71 Counsel for the appellant drew the judge's attention to s 5 of the Drugs Act. He observed that the appellant 'is certainly in occupation of that bedroom', that 'the reverse onus applies to him', and that he is 'deemed to be in possession unless he satisfies the Court to the contrary' on 'the balance of probabilities'. As counsel put it, 'The question is: has he satisfied Your Honour on the balance of probabilities that he was not in possession?'. Counsel submitted, 'the way the evidence has come out ... [it] comes down to really a question of knowledge; he says he has no knowledge'. If the judge 'accepts his evidence on that point, then he is entitled to succeed'. Ultimately it was a matter for the judge 'evaluating the evidence'.[67]

72 Immediately after these submissions (counsel for the respondent making no submission of his own), the judge gave the reasons set out in the judgment of Osborn JA.[68], [69] Being conscious of the fact that the reasons were delivered ex tempore, and that they must be read sensibly and contextually as a whole, and not construed as if a deed or a will, the essential 'findings' seem to be:

• There was evidence from the appellant of a party, and 'people coming and going ... and using his room'.

• The appellant said 'it' (presumably the bedroom) was orderly before, but not after, the party.

• Following the party, the appellant's bedroom had not been tidied.

• The appellant's evidence 'is the only evidence' that the judge has.

• The judge did not have 'anyone to say that it was a party and that people were sleeping all over the place'.

• Simply, the judge would have to accept the appellant's word.

• In the circumstances, she did not accept his word.

73 Osborn JA, with whom Beach JA concurs, disagrees with the notion that the use of the expression in the circumstances 'was so opaque or so inherently ambiguous as to be inadequate'.[70] I do not agree.

74 The judge said she did not 'accept' the appellant's 'word'. But about what? That there had been a party? That people had been coming and going? What were the 'circumstances' which led her to reject the appellant's word?

75 Once it was shown that the heroin was in the appellant's bedroom, the appellant was required to prove on the balance of probabilities that he had no knowledge that it was there. Putting to one side that the judge did not anywhere in her reasons explicitly expose for consideration the sole issue that she had to determine, upon the assumption - for the sake of argument - that she correctly directed herself sub silentio, there could only have been three reasons, alone or in combination, for rejecting the appellant's evidence of lack of knowledge. A fair reading of the judge's reasons suggests that she rejected the appellant's evidence that there had been a party with 'people coming and going' and 'using his room' (and thus that it was a realistic possibility that some unidentified person had left the drugs). As I have said, frail though it might have been, there does seem to have been some objective support for there having been a party. The judge may have rejected the appellant's version, first, because it was unsupported by any other witness (the judge observing that the appellant's was the only evidence, and she did not have 'anyone to say that it was a party and that people were sleeping all over the place'); secondly, because it did not accord with the probabilities; or, thirdly, because of the appellant's demeanour.

76 With the qualification that in certain situations reasons need not be given because the foundation for the decision will be indicated as a matter of necessary inference,[71] the oft cited judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd[72] establishes that the giving of reasons for a judicial decision serves at least three purposes. Having observed that without the articulation of reasons a judicial decision could not be distinguished from an arbitrary decision, his Honour said the three purposes were: first, to enable the parties to see the extent to which their arguments have been understood and accepted, together with the basis of a judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

77 This Court has recognised, specifically with respect to the County Court exercising its appellate jurisdiction, that a judge is not relieved of the obligation to give reasons simply because of the absence of a further right of appeal. Phillips JA observed in Arnold:[73]

One would hope that such a failure on the part of an appellate judge to give any reasons whatever when announcing his determination is an occurrence which, if not unique, is very uncommon. It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-9 (where the earlier cases are recounted); Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-2 (where again earlier authorities are recounted); Palmer v Clarke (1989) 19 NSWLR 158 (where the nature of "the common law duty" imposed upon a judge was emphasised); Soulemezis v Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247, especially at 278-81 per McHugh JA, and Sun Alliance Insurance Ltd. v Massoud [1989] VicRp 2; [1989] VR 8 at 19-20 per Gray J. In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637 is a recent example). In Soulemezis at 280, McHugh JA (as he then was) said that "the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons' " (quoting Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). McHugh JA also pointed out (as did Gray J in Massoud) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see Tatmar Pastoral at 386 and Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-7 per Gibbs CJ (although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as "an incident of the judicial process."

78 If the judge's rejection of the appellant's evidence turned on credit, she did not say so explicitly. There is nothing in her reasons to suggest that she based her failure to accept the appellant's word on an assessment of demeanour. And save to say that she probably rejected his evidence based on one or other (or a combination) of the possibilities set out above, the judge's reasons are enigmatic. The appellant was entitled to know 'explicitly' the path of reasoning which led to the order dismissing his appeal.[74] He did not get that.

79 Since the reasons were inadequate, in my opinion error on the face of the record is demonstrated.

80 Given that the County Court judge's reasons probably were based on a finite number of possibilities, and further given that relief in the nature of certiorari is discretionary,[75] I considered whether relief should be refused on discretionary grounds. Having given the matter anxious consideration, however, I do not think it would be proper to do so. Although counsel for the respondent on the appeal submitted that it would be 'futile' to grant relief, no submission was made to the primary judge that he should exercise his discretion adversely to the appellant, nor, as I followed it, was discretionary refusal distinctly relied upon by the respondent in this Court. Moreover, there is in reality no alternative relief available to the appellant.

81 Thus I would allow the appeal, set aside the orders of the primary judge, and in lieu grant the relief in the nature of certiorari sought.

82 I agree with Osborn JA that this appeal should be dismissed, generally for the reasons given by his Honour. I also agree with Whelan J (as his Honour then was)

when his Honour said at first instance that it would perhaps have been better if the judge who heard the appeal from the Magistrates' Court had said more. That said, for the reasons given by Whelan J at first instance and the reasons given by Osborn JA, enough was said.

83 Further, as has been said, the grant of certiorari is discretionary. In my view, the relief sought by the appellant should, in any event, also be refused on discretionary grounds. As the examinations by Whelan J and Osborn JA of the conduct of the appeal to the County Court demonstrates, the appellant affectively acquiesced in his Honour determining the matter by reference to whether her Honour accepted the appellant's evidence. Had there been any doubt about her Honour's path of reasoning at the time of her Honour's ex tempore reasons, it would have been (and was) open to the appellant's counsel (who was counsel of some experience)[76] to seek further reasons or clarification from her Honour. In my view, the appellant's acquiescence in the delivery of short form reasons of the kind delivered in the County Court in this case tells against the granting of certiorari on discretionary grounds.[77]

[3] Section 254 of the Criminal Procedure Act 2009 provides a right of appeal against 'conviction and sentence'. Section 3 of the Criminal Procedure Act 2009 defines 'conviction' as including a finding of guilt by a court. There is no further right of appeal.

[4] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580-581 [98]; [2010] HCA 1.

[5] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-183; [1995] HCA 58.

[6] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [100].

[7] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [26] (citations in original).

[8] Hansford v His Honour Judge Neesham & Ors [1995] VICSC 58; (1995) 2 VR 233; Flynn v Director of Public Prosecutions [1998] 1 VR 322; Thompson v His Honour Judge Byrne (1998) 2 VR 274.

[9] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 181 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[11] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [89]-[90].

The Court may, at any stage of a proceeding, on the application of any party, give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding.

[14] Charles, Buchanan and Chernov JJA.

[15] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, [99] (citations in original).

[16] See Pettitt v Dunkley [1971] 1 NSWLR 376, 382 (Asprey JA) and 387-8 (Moffitt JA); Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18 (Gray J); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 441 (Meagher JA); and Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72, 83-4 (Gaudron, Gummow, Hayne and Callinan JJ) and 85-7 (Kirby J).

[17] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666-7; Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 19; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 441; and R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 182 (Phillips JA). See also Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246.

[19] Cited with approval in R v Arnold [1998] VSCA 34; [1999] 1 VR 179 by Phillips JA at 182.

[20] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 31 [100] (citations in original).

[21] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 441.

[22] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18.

[23] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ('Soulemezis'), 270.

[24] Soulemezis 279 (McHugh JA); Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 ('Fletcher No 1') 35-6, [18] (Chernov JA).

[25] "The Writing of Judgments" (1948) 26 Canadian Bar Review 491.

[29] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, [101].

[30] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[31] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, [55]-[56] (Buchanan JA).

[32] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[36] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271.

[40] (1995) 36 NSWLR 242 (Kirby P, Mahoney JA and Rolfe AJA).

[41] Ta v Thompson [2012] VSC 446, [30] (citations in original).

[42] Perkins v County Court of Victoria [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].

[45] R v Industrial Appeals Court; Ex parte Henry Berry & Co (Australasia) Ltd [1955] VLR 15; Flynn v Director of Public Prosecutions [1998] 1 VR 322.

[47] Soulemezis 273 (citations in original; emphasis added).

[49] Soulemezis 280 (citations in original; emphasis in original).

[50] [1977] 1 NZLR 630, 632-633 per Chilwell J.

[51] Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697, 701, 713.

[53] Ta v Thompson [2012] VSC 446, [41]-[43].

[55] Hardy v Gillette [1974] VR 392, 395-6 and the cases there cited. See further, Llewellyn v Reynolds [1952] VicLawRp 24; [1952] VLR 171.

[56] Hardy v Gillette [1974] VR 392.

[57] Trevor Boiler Engineering Company Pty Ltd v Morley [1983] VicRp 67; (1983) 1 VR 716, 718-21; Redflex Limited v South of the Rif Pty Ltd (Unreported, Beach J, 18 August 1997).

[69] I note that on the hearing of the appeal in this Court, a letter addressed by the appellant's solicitor to the Associate to the County Court judge dated the day the appeal was heard, and a reply to that letter from the Chief Judge of the County Court, were tendered. The solicitor's letter asked her Honour to 'provide a statement of her reasons for her conclusions and decision', since the appellant 'does not understand why or how her Honour did not accept his evidence'. The Chief Judge's reply stated that 'a judge is entitled not to accept evidence led in a proceeding', and the 'credibility of witnesses is a matter for the judge'. Since these letters cannot, however, be considered part of the 'record' for the purposes of s 10 of the Administrative Law Act 1987, they need not be further considered.

[71] See Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 19.

[72] (1987) 10 NSWLR 247, 279-280. See also AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 470 [89] per Heydon J, citing Gleeson, 'Judicial Accountability', (1995) 2 The Judicial Review 117, 122; Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2002] VSCA 189; (2002) 6 VR 1, 31 [100].

[73] R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 181-2 [8]. See also Munro v Brack [2000] VSC 229; (2000) 112 A Crim R 398, 403 [31]-[34] (Beach J); Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 270-1 [55]-[56].

[74] Baini v R (2011) 33 VR 252, 254 [5], Warren CJ, citing Ex parte Powter; Re Powter [1945] NSWStRp 35; (1946) 46 SR (NSW) 1 at 5 ; [1945] NSWStRp 35; 63 WN (NSW) 34 at 36 per Jordan CJ.

[75] See Victoria Legal Aid v County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686, 691-2 [9].

[76] Not counsel who appeared for the appellant before Whelan J or this Court.

[77] See generally, R v Aston University Senate, Ex Parte Roffey & Anor [1969] 2 QB 538, 555 C-D.

Court (General Civil Procedure) Rules 2005

Poisons and Controlled Substances Act 1981

Ta v Thompson & Anor [2013] VSCA 344

At a glance

Court

Decision date

Before

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Judgment (182 paragraphs)

Ta v Thompson & Anor [2013] VSCA 344 (3 December 2013)

Parties

Legislation Cited (6)

Cases Cited (19)