Glen Andrew Toms and David Matthew Duthie v Thomas Anthony Mcquillen and Geoffrey Edward Lanham [1986] ACTSC 42 (30 May 1986)

SUPREME COURT OF THE ACT

GLEN ANDREW TOMS and DAVID MATTHEW DUTHIE v. THOMAS ANTHONY McQUILLEN and
GEOFFREY EDWARD LANHAM
S.C. No. 1381 of 1985
S.C. No. 1382 of 1985
Courts - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Courts - practice & procedure - nature of appeal to Supreme Court - effect of 1984 amendments to Magistrates Court Ordinance 1930 - effect of findings of magistrate as to credit of witnesses.

Courts - practice & procedure - appeal from Magistrates Court - whether consent to joint hearing of separate informations may be withdrawn at hearing of appeal to Supreme Court - need for evidence against one defendant to be considered separately from evidence against other defendant.

Criminal Law - evidence - circumstantial evidence - requirement that prosecution exclude hypotheses consistent with innocence does not extend to unreasonable hypotheses.

Criminal law - practice & procedure - need for information or indictment to accurately reflect nature of prosecution case.

Studders v. Eaton (1939) StRQd 191

Mackay v. R (1977) 15 ALR 541 at p 547-548

Munay v. Gill [1930] HCA 20; (1930) 44 CLR 38

The State v. Leo Nimo (1980) PNGLR 129

Baker v. Thorpe (1985) 62 ACTR 1

Messel v. Davern (1981) 9 NTR 21

White v. Newton (unreported) Miles C.J. 23 May 1986

Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 ALR 193 at 194

Chamberlain v. The Queen [1984] HCA 7; (1984) 51 ALR 225

HEARING

CANBERRA
30:5:1986

ORDER

The appeals against conviction be dismissed.

DECISION

Each of the appellants was convicted by a magistrate sitting in the Canberra Court of Petty Sessions as it then was on 9 December 1985 on separate informations alleging the lighting of a fire in the open air, contrary to Section 10AB of the Careless Use of Fire Ordinance 1936. The informations were heard together by consent. The appellants appeal from those convictions under Part XI Division 2 of the Magistrates Court Ordinance 1930 as it has since come to be called. At the commencement of the hearing of the appeals, Mr. Byrne of counsel, who appeared for both appellants, took the point that the appeals should proceed separately and I acceded to that application. In support of the application it was submitted that the learned Magistrate was in error in failing to consider the evidence admissible against one appellant separately from the evidence admissible against the other. I took the view that it was not necessary to rely upon any such ground; it seemed to me that although it was arguable that the consent given by the appellants at the original hearing to have the informations heard together continued for the purpose of the appeals, such consent could be withdrawn by leave (see Studders v. Eaton (1939) StRQd 191), and the safer course was to hear the appeals separately. I did not consider at the time that this course would lengthen the hearing of the appeals, but I may have been mistaken in that regard. In any event it is necessary to say something briefly about the power of the magistrate to hear the matters together. Although there were two separate informations, each one laid against each of the persons accused, the nature of the prosecution case was that the offence was committed jointly. Where the Crown alleges the commission of an offence jointly by two or more persons, then the appropriate course is to name the accused in a single count. As Murphy J. pointed out in Mackay v. R. (1977) 15 ALR 541 at p 547-548 (although dissenting on the refusal of special leave to appeal) it is fundamental to the regular administration of justice that a conviction should accurately reflect the offence for which a person is charged and tried, otherwise protection against double jeopardy becomes difficult to invoke and the basis of sentencing and considerations of parole and the like become obscure. Ideally a single joint charge was what should have been brought in the present case, although I fully appreciate that the exigencies of the arrest and charge procedure do not normally admit of the laying of a single information against multiple joint defendants. There is no equivalent in the Magistrates Courts Ordinance 1930 of Section 78A of the Justices Act 1902 of New South Wales, which gives jurisdiction to a court of summary jurisdiction to hear charges against two or more defendants if the parties consent. At common law convictions based on several informations heard together against several defendants are not regarded as null and void, but as merely irregular. The irregularity is capable of being cured by the consent of the defendants: Munday v. Gill [1930] HCA 20; (1930) 44 CLR 38. In the absence of consent, however, there is no power in a magistrate to hear several informations together, no doubt because of the abuses which would be open as a consequence and to which Isaacs C.J. referred in his vigorous dissenting judgment in Munday v. Gill; see also The State v. Leo Nimo (1980) PNGLR 129. As an appeal to this Court from the Magistrates Court is in the nature of a re-hearing, I doubt whether there is power to hear the appeals together in the absence of consent.

2. Something further needs to be said about the nature of the appeal to this Court since the operation of the amendments to the Magistrates Court Act which came into effect on 26 October 1984. I have already had something to say about that subject in Baker v. Thorpe (1985) 62 ACTR 1. There is a full discussion of the principles relating to an appeal from a Court of Summary Jurisdiction in the Northern Territory to the Supreme Court of that Territory by a Full Court of that Court in Messel v. Davern (1981) 9 NTR 21. The statutory provisions in the Northern Territory are almost identical with those in this Territory, although the Full Court was concerned in particular with the situation where the Supreme Court might receive further evidence beyond that which was before the Court of Summary Jurisdiction. The appeal before me has been conducted entirely on the transcript of the evidence in the Court below.

3. Appeals from magistrates to this Court under the provisions now operating in this Territory are to be contrasted from those which preceded the 1984 amendments to the Magistrates Court Ordinance 1930. Previously the appeal was a complete hearing de novo, although, in addition to hearing the witnesses for itself, or in substitution therefor, this Court had power under s.214 as it previously stood to decide the matter on the depositions of the witnesses in the Court below. I expressed the view in a recent decision, White v. Newton (unreported) 23 May 1986, that prior to the 1984 amendments this Court was obliged to decide an appeal without reference to the findings of the magistrate, including his findings as to credibility of witnesses. The cases which establish that principle are collected and discussed in 41 Australian Law Journal 403 where the writer, Mr. Trevor Martin, as he then was, points out that if it were otherwise, counsel for an appellant would be most unwise to ever consent to the deposition of any witness being read unless that witness had been fully believed by the magistrate. All that, however, has now changed, chiefly by the effect of s.214(2) which now provides that the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact.

4. In Messel v. Davern the Full Court of the Supreme Court of the Northern Territory pointed out at p 27 that an appeal of the nature now under consideration was neither an appeal in the strict sense nor a rehearing in its most literal form, but "a rehearing of the matter on the evidence used in the Court below with a statutory power to receive further evidence". After emphasising that the provision that no evidence shall be received on the hearing of the appeal other than what amounts to the record remains as a caveat against retrial, the Court went on to say:

"It is, for instance, well established that an

appellate court which hears an appeal on documents
and not on oral evidence will generally defer to
the conclusion which the lower court has formed
upon the question which of the witnesses, whom it
has seen and heard, are credible (Uranerz (Aust)
Pty. Ltd. v. Hale (1980) 30 ALR 193 at 194). If
an appellant, on the hearing of an appeal sought
to reverse the finding of the lower court on
grounds of credibility of witnesses, he would need
to persuade this court to exercise its discretion
to hear witnesses again and if necessary receive
further evidence. The interests of justice refer
not only to the interests of the appellant in
question. It is important that the processes of
litigation be neither extended nor unnecessarily
delayed. It is not in the interest of justice
that parties dissatisfied with the result of a
hearing in the court below should be able to treat
that hearing as a preliminary skirmish."

5. All of the above is, I believe, in accordance with what I previously said in Baker v. Thorpe and what was said in the High Court in Uranerz (Aust) Pty. Ltd. v. Hale and in particular by Gibbs J., as he then was, at p 197:

"If a hearing is conducted solely on written
material, whether that material be technically
evidence or a record, the appellate Court should
generally defer to the conclusion on a question
of credibility formed by the tribunal from whom
the appeal is brought and whose members saw and
heard the witness."

6. I turn now to the particular issues raised by the present appeals.

7. In the first instance it was submitted on behalf of the appellant that the magistrate fell into error by failing to distinguish the evidence admissible against the appellant Toms from the evidence admissible against the then co-defendant Duthie. However, it is quite clear in my view that any error on the magistrate's part is beside the point in this appeal unless the error affected the magistrate's finding as to credibility: Uranerz (Aust) Pty. Ltd. v. Hale. The error under attack is not of such a nature. However, the point is sufficiently important, I think, for it to be appropriate to emphasise clearly that where charges against multiple defendants are heard jointly, then the magistrate must be careful to consider, when determining the charge against one defendant, only that evidence which is admissible against that defendant.

8. The evidence against the appellant Toms was wholly circumstantial. The events in question took place at about 2.30 a.m. on 11 January 1985 on an area of grassland in Phillip situated south of the Woden College of Technical and Further Education, east and slightly uphill from a creek or stormwater channel which runs alongside the carpark east of the Woden Shopping Square and Callam Street, and west of Easty Street and an old cemetery at the top of the rise. The area is several hectares in extent and contains sparse shrubs and trees. The events took place on a bright moonlit night.

9. Evidence was given by a Mr. and Mrs. Moses and their 15 year old grandson, Mark Ashkanasi, that they had been working until about 2.30 a.m. at their take-away food van situated in the carpark close to a small wooden bridge which crosses the creek or stormwater channel. Each of them noticed two young men walking in Callam Street, behaving in a rowdy fashion. One of the two was taller than the other. The two young men crossed the bridge heading in an easterly direction. No other persons were seen in the vicinity at all, and it was rare for anybody to be seen in the vicinity at that time of night. After driving some distance in Callam Street towards Hindmarsh Drive, less than a kilometre or so away in a southerly direction, Mr. Moses decided to return in order to check the security of the van. He then drove back along Callam Street in a northerly direction. When in the vicinity of Bonner House the occupants of the car saw in an area across the other side of the bridge two male figures similar to those they had previously seen. At the same time they noticed a small fire which was then starting or which had started only seconds at the very most beforehand in the grass a few feet from the two figures. At that stage the two figures ran off in the direction of the cemetery, that is to say, eastwards. Mr. Moses drove on to the police station which was very close by and reported the incident. Constables Turner and Bonthorne were cruising the area and proceeded towards the cemetery along Easty Street from the northern end. In the headlights each of them caught a glimpse of a male figure who ran off. They gave chase and soon after came upon Constable Bailey who had apprehended the two appellants running through the trees in the vicinity of the cemetery. Constables Turner and Bonthorne identified one of the persons apprehended as the person they had previously seen in the headlights. That person was Mr. Duthie. He was found to be in possession of a cigarette lighter.

10. Constable Bailey had in fact been on his way to the Woden Police Station when he saw two young men walking north in Callam Street some short time earlier and he said that he recognized the persons apprehended as those he had seen in the street. He had been called out at 2.50 a.m. by which stage a large grass fire was under way at the rear of the carpark. He arrived at the cemetery in a car with another constable via Justinian Street on the north-eastern side of the cemetery and upon entering the cemetery on foot came upon the two appellants running in an easterly direction. He apprehended Mr. Duthie who called out, "Stop running, Glen, he has got us". Toms then submitted to arrest.

11. I should add that immediately after Mr. & Mrs. Moses saw the fire in its early stages it quickly spread. Firefighters attended and soon brought the fire under control by burning back. The fire was eventually extinguished. A total of about two hectares was burnt out in this way.

12. Each of the appellants gave evidence before the magistrate to the effect that they had been to a discotheque earlier in the night, that they had been ejected and later refused re-entry in order to retrieve Mr. Toms' jacket and cigarettes. They conceded to being noisy in Callam Street, they did not deny being in the vicinity of the van and going off in the direction of the cemetery. They said that they went that way to take a short-cut home. Mr. Duthie in fact lived at Deakin which is in the general direction. Both said that they had a cigarette in the cemetery and when they saw the police vehicles they ran off. They said that they had no knowledge of how the fire started and denied that it had anything to do with either of them. Mr. Toms' explanation for running away was not clear. It had something to do with warrants outstanding against Mr. Duthie.

13. The magistrate in his reserved decision clearly rejected the appellants as witnesses of truth on the central issues as to whether they were the two men seen in the street and in the vicinity of the fire when it was seen to break out and, ultimately, whether they or either of them lit the fire. Although it was submitted that some of the reasons given by the magistrate to support his conclusion were not valid there was nothing in my view in what his Worship said to lead me to reject his assessment of the credibility of the appellants as witnesses.

14. It is therefore necessary to look at the prosecution case in the light of the evidence called in support of it in order to decide whether or not the prosecution has proved the guilt of the appellants beyond reasonable doubt.

15. In the light of all that evidence it is essential to formulate precisely what the nature of the prosecution case was. The prosecution case against Mr. Toms, as I understand it, was essentially as follows:

1. The two figures seen in the immediate vicinity
of the fire when it commenced were the appellant
Toms and his co-defendant Duthie.

2. Either (a) Toms lit the fire,
or (b)(i) Duthie lit the fire in the presence
of Toms, and

(ii) at the time Duthie lit the fire
Toms was either by his presence or otherwise
intending to lend encouragement and actually
lending encouragement to Duthie towards the
commission of the offence.

16. The case being a circumstantial one, the onus lay upon the prosecution to exclude any reasonable hypothesis consistent with innocence: Chamberlain v. The Queen [1984] HCA 7; (1984) 51 ALR 225. It was put on behalf of the appellant that there were several reasonable hypotheses which went to explain the commencement of the fire other than by the appellants Toms or Duthie. Emphasis was placed and rightly placed by counsel for the appellant on the limited nature of the identification evidence. However, this was not a case in which any of the witnesses had claimed to see the offence committed and then at a later stage to identify the appellant or his co-defendant as the person who committed the offence or a person who was present when the offence was committed. Identification was, in my view, merely one of the several items which constituted the totality of the circumstantial evidence. Of course there are all sorts of explanations for the outbreak of the fire which are technically possible and even credible, for instance, the ignition of rubbish by means of spontaneous combustion. However, what the prosecution has to exclude is any reasonable hypothesis consistent with innocence, taking into account the whole of the evidence. Accordingly, I have no hesitation in rejecting spontaneous combustion as a reasonable hypothesis which goes to explain the outbreak of the fire in question. Again, it was suggested by counsel for the appellant that the fire might have been started by accident by either Toms or Duthie who after smoking a cigarette had dropped the unextinguished butt upon the ground. Reliance was indeed placed on what was said to be the common and barely conscious habits of smokers. Again, I have little hesitation in the light of all the evidence in rejecting an accidental act on the part of one or other of Toms or Duthie as being a rational or reasonable explanation of the events in question. There are two considerations only which cause me any real concern. The first is the possibility that there were other persons in the vicinity at the time besides Mr. Toms and Mr. Duthie, that it was these unknown persons who in fact started the fire, and that the presence of Mr. Toms and Mr. Duthie near the cemetery, leading to their unfortunate apprehension by the police, was purely fortuitous.

17. In the end I am constrained to reject the suggestion that the persons observed by Mr. and Mrs. Moses and the police constables were persons other than Mr. Toms and Mr. Duthie, and further to reject the hypothesis that the fire was started by someone other than either Mr. Toms or Mr. Duthie. It is true that the various evidentiary items that go to make up the whole of the case presented against the appellant may be weak when viewed individually or when taken together in any number which falls short of the totality of the evidence but the ultimate question is whether the prosecution has proved beyond reasonable doubt all the essential facts necessary to prove the essential ingredients of the offence charged. There is no contest that somebody lit a fire in the open air contrary to law. The only issue is whether the appellant is fixed with criminal liability for the lighting of that fire. In the context of the evidence presented the prosecution has to prove that the persons observed by Mr. and Mrs. Moses and the police constables were Mr. Toms and Mr. Duthie and that one or other of them lit the fire. In my view, in the circumstances of the night in question the possibility that the persons observed were persons other than Mr. Toms and Mr. Duthie is so remote as not to be a rationally acceptable explanation of the events. Although it is not my task to decide whether the magistrate was right or wrong in his reasons, I do not think I can do better than quote his ultimate finding on the issues in question, with which I would respectfully agree:

"All the evidence as to the identity of the two
persons who were present at the start of the fire
and who by irresistible inference started it,
points to the defendants. Although there are some
minor discrepancies between the prosecution
witnesses as to the precise times and as to the
defendants' clothing there is compelling
continuity in the evidence on this point.
Constable Bailey saw the two defendants walking in
a northerly direction in Callam Street before the
fire started. I accept that the two men
Mr. Ashkanasi and Mr. and Mrs. Moses saw in Callam
Street before the fire started were the
defendants. Those three witnesses were concerned
about the presence of the two men near their
caravan and took particular notice of them on what
was said to be a "bright moonlit night". I accept
that after the fire started the defendants ran off
towards the cemetery where Duthie was shortly
thereafter seen and identified by Constables
Turner and Bonthorne and where both men were
eventually taken into custody by Constable
Bailey."

18. The remaining possible hypothesis that causes me concern (and one which was not considered by the magistrate) is that Mr. Toms was merely a passive spectator to the lighting of the fire by Mr. Duthie. It is trite to say that a witness to an offence is not guilty of that offence. The question is whether I am left with any reasonable doubt whether if it was Mr. Duthie rather than Mr. Toms who started the fire, the appellant Toms was not merely present without any act or conduct on his part which lent support and was intended to lend support to the other man's actions. In the end I am not left with any such doubt. The conduct of the appellant both before and after the lighting of the fire is, I think, decisive. The spectators did not distinguish between the two men in their observations that they were rowdy. Mr. Toms conceded in his own evidence that he could have shouted out "I'll get you" or words to that effect. One of the two was heard to shout "Pack of bastards", which could not have been directed to the other man. Mr. Toms was "not very happy" at having been thrown out of the disco and deprived of his jacket and cigarettes. Both men had been drinking. Putting all the evidence together I conclude that he was in an aggressive anti-social mood. His behaviour in running away upon the return of Mr. and Mrs. Moses, running away from the police and his statement to the police that he did not see the fire at all until arrested (or his conflicting statement that he did not see the fire until he was being taken away in the police car) are all indicative of a consciousness of guilt. His giving himself up to the police at the behest of Mr. Duthie is indicative of some concerted behaviour on the part of both men. I am convinced beyond reasonable doubt that if Mr. Duthie lit the fire Mr. Toms was at the very least by his presence lending support and intending to do so. That makes him liable as a principal in the second degree aiding and abetting the principal in the first degree, Mr. Duthie. If in fact Mr. Duthie did not light the fire I am satisfied beyond reasonable doubt that it was Mr. Toms who did so as principal in the first degree. Either way he must be convicted.

19. The appeal against Mr. Toms against his conviction will be dismissed.

20. I turn now to the appeal by David Matthew Duthie. Virtually all I have said in relation to the appeal by Glen Andrew Toms applies mutatis mutandis in the appeal by Mr. Duthie (except, of course, the evidence which I considered displayed a consciousness of guilt on the part of Mr. Toms). The appeal is liable to be dismissed for those reasons alone. However, there are additional factors in the appeal of Mr. Duthie. There was evidence of a confession made by him in the Woden Police Station at about 12.30 p.m. later in the day after his earlier escape from the police station and eventual re-arrest. There was also the evidence of the observation by Constables Turner and Bonthorne of the figure they saw in the headlights crouching in bushes. I am satisfied that the figure they saw was that of Mr. Duthie and that his behaviour then, like his earlier fleeing from the scene of the outbreak of the fire, is indicative of consciousness of guilt.

21. In relation to the alleged confession, Mr. Duthie gave evidence denying that it had taken place. Counsel for Mr. Duthie submitted in this appeal that there were several features of the facts surrounding the alleged confession and of the alleged confession itself which were peculiar to say the least, and there is substance in that submission. However, the fact is that the magistrate having seen the appellant in the witness box and heard his denial and having contrasted that with the evidence of the police officers as to the making of the confession, rejected the appellant as a witness of truth on that issue. In the light of the principles to which I have referred at the commencement of this judgment, it is not open to me to go beyond the magistrate's findings in relation to credit. There is nothing otherwise on the transcript to lead me to decide that the confession was not in fact made. Accordingly, when one adds that direct evidence to the circumstantial evidence to which I have referred, the prosecution case is strengthened against Mr. Duthie and it is with less hesitation than in the appeal brought by Mr. Toms that I reach the conclusion that the guilt of the appellant Duthie has been established beyond reasonable doubt. In fact I am satisfied that it was Mr. Duthie who actually lit the grass with his cigarette lighter. The appeal by Mr. Duthie against conviction will be dismissed. I shall deal with the question of costs at a later stage. I turn now to the appeals against sentence and will hear counsel.