West v Creasey & Anor [2000] VSCA 80

9. The appellant appealed to the County Court. On this occasion the appellant appeared, pleaded not guilty and gave evidence. The appellant admitted that a utility driven by him collided with a motor car after he entered Canterbury Road from an abutting service road. He agreed with prosecution witnesses that traffic was heavy. The driver of the car struck by the appellant's utility said in evidence that he stopped further down Canterbury Road. According to the driver himself, he stopped about 150-200 metres from the point of collision, while another prosecution witness said the distance was between 30 and 40 metres. The drivers of two other cars, who saw aspects of the accident, also stopped at the same place. The appellant's utility was seen leaving the scene and did not reappear. The appellant's evidence was that after the accident he drove to an off licence premises just around the corner in Boronia Road. The appellant said he knew the proprietor of the liquor store and told him of the accident. The appellant returned to the scene of the accident. He said that there was no one there. He waited two hours and then left. The appellant's friend said that the appellant told him he had been involved in an accident. From the door of his shop he could see no damaged vehicles nor any persons in the vicinity of the place where the accident apparently occurred.

12. The judge who heard the appeal found the charges proven. According to an affidavit sworn by the appellant, the judge found that the appellant and his friend "had concocted a story between them of sufficient cogency to put a reasonable doubt in the mind of a judge, because they know the penalties for an offence of this nature, from their previous experience with the court ... The appeal was frivolous and vexatious".

15. The judge told counsel for the appellant that one of the matters he should address in the course of his plea was the adequacy of the period for which the appellant's licence was to be suspended. Thereupon the appellant's counsel sought leave to abandon the appeal. The judge refused leave and increased the period of suspension of the appellant's licence from four months to nine months.

18. By an originating motion the appellant sought declarations that the penalties imposed by the judge and the denial of leave to abandon the appeal were invalid and sought relief in the nature of certiorari to quash those orders. The appellant complained of the following findings by the trial judge:

(a) that the appellant and his witness concocted a story;

(b) that they did so to put a reasonable doubt in the mind of the judge;

(c) that they knew such a course was necessary because they knew the penalties for this kind of offence;

(d) that they knew of the penalties because of their previous experience in the courts; and

(e) that the appeal was frivolous and vexatious."

24. The findings were attacked on two bases. The first was that as these matters were not put to the appellant or his witness in cross-examination and not adumbrated by the judge, the appellant did not call rebutting evidence and thus was denied natural justice. The second was that the findings were unreasonable. Finally, the refusal of leave to abandon the appeal was attacked on the basis that the judge failed to take into account relevant considerations.

27. The originating motion was dismissed. The appellant has appealed to this Court from the dismissal of his proceeding.

30. The second-named respondent did not appear at the hearing of the appeal and has indicated that it will abide by the result of the appeal. The first-named respondent did appear and, in addition to contending that the decision of the Supreme Court judge was correct, objected to the competency of the appeal.

33. It was submitted on behalf of the first-named respondent that there was no right of appeal from a decision in the County Court determining an appeal from the Magistrates' Court save under s.91(2) of the Magistrates' Court Act 1989, and that provision did not cover this case.

36. The proceeding in the Supreme Court was commenced by originating motion. The proceeding was commenced in accordance with the provisions of Order 56 of the Supreme Court Rules, and in such a proceeding the jurisdiction of the court to grant relief or a remedy in the nature of certiorari may be exercised. The order does not extend to the making of declarations, but the appellant does not require a declaration. If he has been denied natural justice, he may obtain a remedy in the nature of certiorari.

39. The first-named respondent says that the proceeding is not on its face one brought under Order 56. However, the Order does not impose such a requirement. The first-named respondent further contends that there is no basis for relief by way of certiorari and cites Craig v. State of South Australia.[1] In that case the Full Court of the Supreme Court of South Australia granted relief in the nature of certiorari and quashed an order made by a judge on the ground that he had committed a jurisdictional error. The High Court held that there was no jurisdictional error, nor was there error on the face of the record, and hence there was no ground on which an order in the nature of certiorari could be made.

42. In the present case it is not contended that there was jurisdictional error or error on the face of the record. Rather, it is contended that the appellant was denied procedural fairness. If he was denied procedural fairness, then, subject to the exercise of the Court's discretion, he is entitled to relief in the nature of certiorari.

45. The only substantial issue raised in this appeal was whether the trial judge was correct in holding that the failure of the County Court judge to warn counsel for the appellant that he proposed making particular findings as to the reliability of the testimony of the appellant and his witness did not constitute a breach of the rules of natural justice.

"The principal findings made by His Honour were clearly the finding that the prosecution witnesses were honest and reliable and the finding that the plaintiff and his witness Petruk had concocted a story between them. Having pronounced those findings, and findings of that nature were clearly open to His Honour to make, it is my view that anything His Honour said thereafter concerning the plaintiff and Petruk was quite irrelevant. It is not a requirement of natural justice that a trial judge warn counsel that he does not accept his client's evidence or that he is of the view that his client and a witness have concocted a story, and then give counsel an opportunity to re-open his case and adduce further evidence with a view to bolstering the credibility of his client and the witness."

52. Inscrutability is not a quality to be encouraged in judges, for reacting to submissions and the voicing of concerns and questions from the bench is likely to promote more relevant and helpful submissions from counsel and concentrate attention upon the real issues in the case.[2]

55. In order to succeed in this appeal the appellant must go further than showing that the appeal may have been better conducted if the County Court judge had been less reticent. He must demonstrate that the judge's silence denied him procedural fairness by unfairly inducing him or his counsel to refrain from leading evidence or making submissions on a matter relevant to the judge's decision.

58. Silence on the part of a judge may mislead a party or his counsel if the judge proceeds on a basis which is contrary to an assumption reasonably made by the party or his counsel. Examples of departures from the conventional basis on which a case is conducted, and as to which a warning should be given, are afforded by a judge on appeal by an accused against a non-custodial sentence determining to impose a sentence of imprisonment[3]; a judge in an appeal against a custodial sentence determining to increase the sentence[4]; a judge relying on evidence outside a statement of facts agreed upon by the parties[5]; and a judge acting upon his belief as to a state of affairs in the community such as the prevalence of a particular crime or type of crime as to which no evidence has been led[6]; or an increase in the supply of heroin to the streets known to the judge but not mentioned in the course of the case[7].

61. The present case is not of that ilk. The appellant and his counsel could not have been under any illusion that the evidence of the appellant and his witness was accepted as truthful and accurate. The appellant's account of his return to the scene of the accident and his failure to find the driver of the other car is at odds with the evidence of three prosecution witnesses who said they stopped a short distance from the place of the collision and waited. The appellant's account of turning right into Boronia Road after the accident was contradicted by one of the prosecution witnesses who observed the movements of the utility.

64. The only relevant finding by the judge was that the evidence of the appellant and his witness was not truthful. In the light of the contradictory evidence given by the prosecution witnesses I consider there was no obligation resting on the judge to warn the appellant's counsel of the possibility of such a finding. The findings that the appellant and his witness concocted their story in order to put a reasonable doubt in the mind of the judge and to have done so because they knew the penalty for an offence of this nature as a result of their previous experience with the court were not required to be made in order to determine the issue of guilt or innocence. In my view a judge determining a disputed question of fact is not required to tell counsel that he contemplates the possibility that a witness has given deliberately false testimony rather than has made an honest mistake, for in general counsel is or should be aware of that possibility. To add that the reason for the lie is to influence the tribunal is hardly revelatory, and to add further that the reason for the falsehood is knowledge of the penalty for the offence, while in this case it appears to be no more than gratuitous speculation, did not advance the prosecution case. Even if it could be said that, if the judge did not believe the appellant and his witness because the judge thought they were aware of the punishment provided for the offences, he ought to have warned counsel of his thought processes, in my view that is not the reasoning described by the judge in the present case. Rather, I think that the judge was saying that he determined the evidence was false, and then advanced an explanation for the falsity.

67. In my opinion his Honour was correct in holding that there was no breach of the rules of procedural fairness in the conduct of the appeal in the County Court.

78. The conduct of the learned County Court judge of which complaint is made is summarised in the appellant's affidavit as follows:

"[His Honour] found that Mr West and Mr Petruk had concocted a story between them of sufficient cogency to put a reasonable doubt in the mind of a judge, because they know the penalties for an offence of this nature, from their previous experience with the court."

82. His Honour's conclusion that the appellant and Mr Petruk had concocted a story between them intended to be of sufficient cogency to put a reasonable doubt in the mind of a judge is no more than a statement that his Honour thought they were both lying. He was not obliged, in the circumstances Buchanan, J.A. has described, to warn either of them that that was the impression that their evidence was creating. Nothing that followed was a finding in the sense intended by the authorities. It was, if I may respectfully say so, speculative comment. It may have been ill-advised, but it did not infringe either of the rules of natural justice.[8]

85. For these reasons I, too, would dismiss the appeal.

89. The formal order of the Court is that the appeal is dismissed with costs.

92. I note that, in accordance with the usual custom, there has been no appearance on behalf of the second-named defendant, the County Court of Victoria. A notice from the Government Solicitor notifying the Court of the intention not to appear has been filed with the Court.

[1] [1995] HCA 58; (1995) 184 C.L.R. 163.

[2] See Vakauta v. Kelly [1989] HCA 44; (1989) 167 C.L.R. 568 at 571 per Brennan, Deane and Gaudron, JJ., and R. v. Palmieri [1998] 1 V.R. 486 at 498 per Charles, J.A.

[3] Flynn v. Director of Public Prosecutions [1998] 1 V.R. 322.

[4] Brand v. Parson [1994] VicRp 17; [1994] 1 V.R. 252; Fagioli v. Chee (1996) 85 A.Crim.R.504.

[5] R. v. Tuong [1998] 4 V.R. 68.

[6] R. v. Downie and Dandy [1998] 2 V.R. 523 per Callaway, J.A.

[7] R. v. Li [1998] 1 V.R. 637.

[8] As to which see Masters v. McCubbery [1995] VICSC 209; [1996] 1 V.R. 635 at 653-654.