David Andrew Properjohn v Neil Anthony Gaughan [1998] ACTSC 190 (17 April 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   GALLOP J

  

  

   APPEAL - findings
of guilt for common assault - credibility issue -
reasonable doubt - insufficient weight given to appellant's evidence.

  

   GOOD
CHARACTER - relevance - failure to take into account.

   SENTENCING - discharge of offender without conviction on entering into
a
recognisance - conditions included a penalty of $300.00 - condition not
authorised by s556A of the Crimes Act 1900 .

  

   Crimes Act 1900 (ACT) , s556A

   Evidence Act 1995 (Cth), s144

   Magistrates Court Act 1930 (ACT), Part XI, s214

  

   R v Murphy (1985) 4 NSWLR 42, applied

   Crowley v Willis (1992) 110 FLR 194, applied

   Uranerz v Hale (1980) 30 ALR 193,
referred to

   Devries v Australian National Railways Commission [1992] HCA 41;  (1993) 177 CLR 472,
referred to

   M v R [1994] HCA 63;  (1994) 126 ALR 325, referred to

  

   Pilmore v Anderson (unreported, Supreme Court of the Australian Capital
Territory, Higgins
J, 19 June 1995), applied

  

   Griffiths v The Queen [1977] HCA 44;  (1976-77) 137 CLR 293, applied

   Cobiac v Liddy [1969] HCA 26;  (1969) 119 CLR 257, referred to

   R v Ingrassia (1977) 41 NSWLR 447, referred to, applied

  

  

   CANBERRA, 8 April 1998
(hearing), 17 April 1998 (decision)

   #DATE 17:04:1998

  

   Appearances

   Counsel for the Appellant: Mr C Everson

   Instructing
Solicitors: Graeme C Nettle & Associates

  

   Counsel for the Respondent: Ms E Jones

   Instructing Solicitors: Office of
the Director of Public Prosecution

  

  

  

   Order:

   1. The appeals be allowed.

   2. The orders made by the Magistrate
be set aside.

  

   1. These are two appeals heard together against findings of guilt by a
Magistrate in the Magistrates Court
for two offences of common assault
allegedly committed on 18 April 1997. The charges of assault were heard
together and at the conclusion
thereof the Magistrate dealt with the appellant
in respect of both matters pursuant to s556A of the Crimes Act 1900 (ACT).

  

   2. The exact nature of the orders made is not clearly discernible but it is
clear that the Magistrate purported to
make orders pursuant to s556A. On one
charge he made an order discharging the appellant on entering into a
recognisance in the sum
of $750.00 to be of good behaviour for two years with
a condition that he pay $300.00 by way of penalty within three months. In
respect
of the other charge, he dismissed it under s556A. Those orders were
inadequate and improperly expressed. I shall return to them at
the conclusion
of these reasons.

  

   3. The circumstances giving rise to the alleged offences arose out of an
incident in Streeton
Drive, Rivett at about 5.30pm on Friday, 18 April 1997.
Mr and Mrs Sullivan were travelling north in their motor vehicle. Mr Sullivan
was driving and his wife was in the passenger front seat. The vehicle was a
green coloured Fairmont Ghia. As they were driving along
Streeton Drive at or
about Fremantle Drive, which is an intersection on their right, they
approached the rear of the appellant's
silver coloured Telstar TX5 which was
travelling in the same direction. The Sullivans' vehicle took up a position
behind the appellant's
vehicle, as the Magistrate found. The appellant became
aggravated when the Sullivans' vehicle sat right behind his car. He applied
the breaks of his car to give the Sullivans a message that he was sick of them
being so close to him. He did that twice and the second
time Mr Sullivan
pulled out to overtake the appellant and accelerated. As the vehicle pulled
alongside the appellant's vehicle, the
appellant stuck his arm out of the
window of his vehicle. It is at this point that a critical factual issue arose
on the hearing
before the Magistrate. Both Mr and Mrs Sullivan said in
evidence that the appellant was holding a revolver or what appeared to be
a
handgun in his hand pointed right at them. The appellant denied that he had a
revolver or anything else in his hand at the time.
He said that he merely held
the hand out the window at arms length and, to use his words, "gave him the
finger". Thus there was a
stark conflict of testimony.

  

   4. As the Magistrate correctly observed, if the appellant pointed a
revolver or handgun at the
Sullivans, that clearly constituted an assault upon
both of them. If he merely gave them a finger gesture, it would be offensive
but would not amount to an assault. The Magistrate correctly observed that the
case was about credibility. He found that the Sullivans
were both excellent
witnesses, "about as good as you can get". He also found that the appellant
was a reasonable witness. However,
he said that he had no hesitation in
accepting the Sullivans' version wherever there was conflict and that he had
no doubt that the
appellant pointed a pistol, revolver or handgun or an
imitation firearm at the Sullivans. Accordingly, he rejected the appellant's
evidence on that matter and found the offences proven.

  

   5. By his notice of appeal, the appellant appeals from both findings
of
guilt on the following grounds - "1. The findings of guilt were unsafe and
unsatisfactory.

   2. The learned Magistrate erred
as a matter of law in so far as it is
apparent that he misdirected himself on the onus of proof and the standard of
proof.

   3.
The learned Magistrate erred as a matter of law in failing to give
proper reasons for rejecting the evidence of the defendant.


  4. The learned Magistrate erred as a matter of law in taking judicial
notice of how the "finger" is given.

   5. The learned Magistrate
erred as a matter of law in purporting to accept
evidence of the complainants over that of the defendant without explaining
why."
6. Counsel for the appellant criticised a number of reasons given by the
Magistrate for preferring the evidence of the Sullivans.
Having observed that
he had no doubt that the appellant pointed a pistol, revolver, handgun or an
imitation firearm at the Sullivans,
the Magistrate said - "They are not fools.
They are not, nor were they, mistaken about this, nor making it up ... Part of
what the
defendant would have us accept is that Mr Sullivan, who seemed a
good, honest, careful citizen, drove like a lunatic coming to within
one foot
of the defendant's bumper bar and I refer to question and answer 28 of the
record of interview." The Magistrate was there
referring to a record of
interview between the appellant and the respondent (the police officer
informant) held on 19 April 1997
-

  

  

   "Q28 Right. And when you first saw this motor vehicle how far behind your
car was it?

   A It was very close. We're
talking maybe about a foot behind." 8. It was
submitted on behalf of the appellant that the Magistrate has misquoted the
evidence
in that portion of his judgment because the words "drove like a
lunatic" are not the words of the appellant given in the answer to
question 28
or in any of his other answers to the respondent. Furthermore, the answer that
he did give had some support from the
evidence of Mrs Sullivan to the effect
that Mr Sullivan had driven their car very close behind the appellant's car
and had said in
cross-examination, "I agree that we were fairly close, but I
wouldn't say that we were dangerously close". In my opinion, this criticism
of
the Magistrate's remarks is not well founded. As I read that portion of his
reasons he has not purported to quote what the appellant
had said but was
making an observation that if the Sullivans' car had been driven to within one
foot of the appellant's bumper bar,
that would be driving like a lunatic.

  

   9. The next criticism was in the next reason that the Magistrate gave for
preferring
the evidence of the Sullivans and rejecting the evidence of the
appellant. It was common ground, as the Magistrate found, that the
appellant
had extended his arm out the driver's side window in the direction of the
Sullivans when the two vehicles were abreast.
The Magistrate said - "... the
gesture the defendant says he made bears little resemblance to the traditional
finger gesture which,
as I understand it, involves a finger or fingers moving
in an upward motion. His finger is pointed at Mr Sullivan in a more or less
stationary or horizontal arm." 10. It was submitted that in that passage of
his reasons the Magistrate was comparing what the appellant
had said about
what he had done against the Magistrate's knowledge of what motorists
generally do when giving "the traditional finger
gesture" to another motorist.
It was submitted that the Magistrate was not entitled to take judicial notice
of what amounts to "the
traditional finger gesture" and use it as a guide to
whether the appellant's version of what he did was credible or not.

  

  
11. Furthermore, the Magistrate had not acted in accordance with the
Evidence Act 1995 (Cth), s144, which provides - " (1) Proof is not required
about knowledge that is not reasonably open to question and is:

   (a) common knowledge
in the locality in which the proceeding is being held
or generally; or

   (b) capable of verification by reference to a document
the authority of
which cannot reasonably be questioned.

   (2) The judge may acquire knowledge of that kind in any way the judge
thinks fit.

   (3) The court (including, if there is a jury, the jury) is to take
knowledge of that kind into account.

   (4) The
judge is to give a party such opportunity to make submissions, and
to refer to relevant information, relating to the acquiring or
taking into
account of knowledge of that kind as is necessary to ensure that the party is
not unfairly prejudiced." 12. The submission
was that the Magistrate did not
give the appellant any opportunity to make submissions or to refer to relevant
information pursuant
to s144(4). The Magistrate gave no indication, so it was
submitted, that he was proposing to take judicial notice about that matter. It
appears
that in her address to the Magistrate, counsel for the prosecution had
given evidence from the bar table about the "normal way one
would expect the
finger to be given" and demonstrated, apparently, a gesture with a finger in
an upright position. The Magistrate
apparently accepted that demonstration as
being the normal way for the gesture to be made.

  

   13. In addition to the non-compliance
with s144(4), counsel for the
appellant relied upon the following observation of Isaacs J in Holland v Jones [1917] HCA 26; 
(1917) 23 CLR 149 at 153 - "The only guiding principle - apart from Statute -
as to judicial notice which emerges from the various
recorded cases, appears
to be that wherever a fact is so generally known that every ordinary person
may be reasonably presumed to
be aware of it, the Court "notices" it, either
simpliciter if it is at once satisfied of the fact without more, or after such
information
or investigation as it considers reliable and necessary in order
to eliminate any reasonable doubt.

   The basic essential is that
the fact is to be of a class that is so
generally known as to give rise to the presumption that all persons are aware
of it. This
excludes from the operation of judicial notice what are not
"general" but "particular" facts. As to "particular" facts, even the
Judge's
own personal knowledge is not to be imported into the case: Hurpurshad v Sheo
Dyal LR 3 Ind App, 259 at p286 and Meethun
Bebee v Busheer Khan 11 Moo Ind
App, 213 at p221. To import knowledge of a particular fact in issue would be
to import evidence in
the strict sense regarding a matter as to which the
Court is supposed to have no knowledge whatever of its own.

   But if the fact
is of such "general" character as to give rise to the
presumption mentioned, then a Judge is justified in "noticing" it. He must,
however, be fully satisfied of the fact, and must be cautious to see that no
reasonable doubt exists. To prevent doubt he may seek
information in various
ways, illustrations of which are found in Taylor on Evidence , vol I, pp22-22.
His own knowledge may for this
purpose, and not as evidence in the real sense,
be relied on, as the Magistrate did in the present case. And for this position
authority
is, if necessary, found in the judgement of Wills J in R v Field 64
LJMC 158 at p160. It is evident that no exhaustive list can be
compiled of
things that are open to judicial notice. Illustrations of this truism will
occur to everyone. That communication is possible
by wireless telegraphy is a
recent and conspicuous example. Several instances ancient and modern are to be
found in Professor Thayer's
treatise on Evidence (1898), at pp 305 and 306."
14. It is not necessary to rule upon the appellant's submission based on s144
of the Evidence Act 1995 (Cth).

  

   15. I accept the submission that the Magistrate was in error in relying
upon the demonstration of counsel for the
prosecution in final address of
evidence of what is normal. He should have taken no notice whatever of what
was demonstrated to him.
If he had taken no notice and had not relied upon any
other knowledge on his own part, he would not have fallen into the error of
comparing the appellant's evidence with something that was not common
knowledge.

  

   16. The next attack upon the Magistrate's
reasons for preferring the
evidence of the Sullivans to that of the appellant was in his observation that
the appellant had admitted
that he owned a toy handgun "but did not bring it
to court with him so that it could be identified or rejected as similar to the
firearm as described by the Sullivans". The submission on behalf of the
appellant was that the Magistrate had deliberately cast upon
the appellant the
onus of proving his own innocence. It is necessary to have recourse to the
evidence on this subject. In his record
of interview, to which I have already
referred, the appellant was asked the following questions and gave the
following answers -
"Q77 Do you own a - a replica handgun or anything similar?

   A I have - I'm sure I probably have one at home, um, but it's not
in the
car with me.

   Q78 Right. And how would you describe that one you have at home?

   A It's a cap gun. It's got an - an orange
end on it. It is a black gun. It
would probably be around about a foot long.

   Q79 When you say an orange end, what do you mean
by that?

   A Ah, the end of the barrel is bright orange coloured.

   Q80 And is it - what does it - does it look like a toy or
what's it look
like?

   A It looks like a replica machine gun.

   Q81 Right, so it's - it's more of a machine gun than a ...


  A Than a handgun.

   Q82 What, like an Uzi or something similar to that?

   A It's a - it's an Uzi. Have we got the name of the
- of the weapon?" 17.
The evidence of the respondent in cross-examination was that he had not
conducted a search of any premises
associated with the appellant. Asked why he
had not done so, he said that after he had visited the appellant's father it
became clear
to him that the appellant did not reside at the address in
Chapman and it was therefore irrelevant "to conduct a search warrant at
that
premises". Asked about whether the appellant's car had been searched, he said
that he did not have access to the vehicle at
that time, that he had conveyed
his concerns to the appellant's father in relation to what had occurred and
therefore "believed that
if I conducted a search of any premises or motor
vehicle after that time that any evidence I may have been looking for would
have
been lost".

  

   18. In my opinion, the Magistrate's reliance upon the failure of the
appellant to bring to court a toy handgun
so that it could be identified or
rejected as similar to the firearm described by the Sullivans was totally
unreasonable in all the
circumstances. The respondent wrongly, in my view,
failed to investigate whether the toy gun was available for inspection and
comparison.
The appellant's case was that he was not holding a gun in the
confrontation with the Sullivans. It is hardly surprising therefore
that he
would not bring the gun to court. As far as he was concerned, the gun was of
no relevance because it played no part in the
confrontation. Furthermore, the
Magistrate gave no indication that he was proposing to draw an adverse
inference from the appellant's
failure to bring the gun to court and, indeed,
the appellant had not been cross-examined by the prosecution about why he had
not
brought the gun to court. The Magistrate himself, at the very end of the
appellant's evidence, asked the appellant whether he had
the gun with him.
When he said that he did not have the gun with him, the matter was not
pursued. In my opinion the Magistrate was
in error to attach any significance
in assessing the appellant's credibility to the appellant's failure to bring
the gun to court.

  

   19. I turn next to the failure of the Magistrate to attribute any weight to
the good character of the appellant in assessing
his credibility. It does not
appear from the Magistrate's reasons that he attached any weight to the
appellant's good character on
the question of credibility. In those
circumstances, I raised with counsel for the appellant on the hearing of the
appeal whether
the Magistrate had fallen into error. The law about the use
which a fact finding tribunal can make of evidence of good character
is
authoritatively laid down in the famous case of R v Murphy (1985) 4 NSWLR 42.

  

   That case lays down that evidence of good
character is relevant in two
respects -

  

  

   "First, it has primary significance upon the unlikelihood of guilt. In
other
words, if the accused is a person of good character, that is a relevant
consideration to whether he is likely to have committed the
alleged offence or
not. Secondly, it is relevant to the accused's credibility as a witness, that
is, whether he is a person whose
credibility in denial of the alleged offence
is to be accepted or not.

   The principles have been expressed somewhat differently,
but nevertheless
as forcefully, by King CJ in R v Trimboli (1979) 21 SASR 577 to the effect
that the direction to a jury about the
accused's good character should convey
to the jury that they should bear in mind the accused's previous good
character in considering
whether they are prepared to draw from the evidence
the conclusion of his guilt. They should bear it in mind as a factor affecting
the likelihood of the accused committing the crime charged. The judge may add,
if he thinks it appropriate in the particular case,
that the jury should
consider the accused's previous good character in assessing the credibility of
any explanations given by him
and, when he has given evidence, his credibility
as a witness."

   See also Crowley v Willis (1992) 110 FLR 194. 21. This was, as
the
Magistrate observed, a case about credibility. If the Magistrate did not take
account of the appellant's good character which
had been raised, and in his
reasons he does not say that he did, there was in my opinion, clear error. For
all these reasons I am
of the opinion that the Magistrate's decision to prefer
the evidence of the Sullivans to that of the appellant should be reviewed.

  

   22. However, that does not necessarily mean that errors in the Magistrate's
reasons for preferring the evidence of the Sullivans
to that of the appellant
should result in the appeals being allowed. Appeals to this court from
findings of a Magistrate exercising
summary jurisdiction in criminal matters
are brought pursuant to Part XI of the Magistrates Court Act 1930 (ACT).
Section 214(2) which is contained in Division 2 of that Part, provides - "In
an appeal to which this section applies, 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." 23. Thus,
whether to uphold the
findings of guilt has to be decided on the evidence in the court below. I bear
in mind also the strong admonition
repeatedly given by the High Court about
appellate courts deferring to the conclusion of a lower court upon the
question which of
the witnesses, whom the lower court has seen and heard, are
credible. In Uranerz v Hale (1980) 30 ALR 193 at p199, Gibbs J (as he
then
was) said that the Judge hearing an appeal from the Workers Compensation
Tribunal was not entitled to reverse the finding of
the Tribunal - "... which
was based on its view of the credibility of the witnesses unless it was seen
clearly to be wrong on grounds
which did not depend merely on credibility -
for example, on the ground that the evidence which was accepted was
inconsistent with
established facts, or was so improbable that no reasonable
person could accept it, or that the judgment of the Tribunal disclosed
that
its conclusion was affected by some error of law or fact." Similar
observations were made by Brennan, Gaudron and McHugh JJ
in Devries v
Australian National Railways Commission [1992] HCA 41;  (1993) 177 CLR 472 at p479 -

  

  

   "... a finding of fact by a trial judge, based on the credibility of a
witness, is not
to be set aside because an appellate court thinks that the
probabilities of the case are against - even strongly against - that finding
of fact. If the trial judge's finding depends to any substantial degree on the
credibility of the witness, the finding must stand
unless it can be shown that
the trial judge "has failed to use or has palpably misused his advantage" or
has acted on evidence which
was "inconsistent with facts incontrovertibly
established by the evidence" or which was "glaringly improbable"." Deane and
Dawson
JJ agreed with the majority decision, pointing out however, at p480,
that even where the appellate court has not seen and heard the
witnesses -

  

  

   "the court cannot excuse itself from the task of weighing conflicting
evidence and drawing its own inferences
and conclusions". 26. In criminal
appeals, the prosecution case must be capable of acceptance beyond reasonable
doubt and defence
evidence, if inconsistent with guilt, must be capable of
rejection with similar certainty. See M v R [1994] HCA 63;  (1994) 126 ALR 325 at p329 per
Mason CJ, Deane, Dawson and Toohey JJ - "In most cases a doubt experienced by
an appellate court
will be a doubt which a jury ought also to have
experienced. It is only where a jury's advantage in seeing and hearing the
evidence
is capable of resolving a doubt experienced by a court of criminal
appeal that the court may conclude that no miscarriage of justice
occurred.
That is to say, where the evidence lacks credibility for reasons which are not
explained by the manner in which it was
given, a reasonable doubt experienced
by the court is a doubt which a reasonable jury ought to have experienced. If
the evidence,
upon the record itself, contains discrepancies, displays
inadequacies, is tainted or otherwise lacks probative force in such a way
as
to lead the court of criminal appeal to conclude that, even making allowance
for the advantages enjoyed by the jury, there is
a significant possibility
that an innocent person has been convicted then the court is bound to act and
to set aside a verdict based
upon that evidence." 27. In Pilmore v Anderson, a
decision of this court delivered on 19 June 1995, Higgins J had to apply those
dicta and referred to the duty of a Magistrate, unlike that of a jury, to give
reasons for finding the facts in a particular way
rather than another. His
Honour said that it is particularly important where the matter at issue is the
existence or not of the very
fact essential to guilt or innocence. Insofar as
his Honour was referring to guilt or otherwise, I agree with his observation.
The
very matter at issue in these appeals is whether the appellant had a gun
in some form or another when he extended his hand in the
direction of the
Sullivans.

  

   28. Having regard to the whole of the evidence, I have a doubt and I do not
think that the Magistrate's
advantage in seeing and hearing the evidence is
capable of resolving that doubt. After all, the difference in credibility of
the
Sullivans on the one hand and the appellant on the other must have been
very fine. As the Magistrate approached the assessment of
the respective
credibility of the Sullivans and the appellant in an erroneous way, he has
decided the issue by mistake of law and
fact. In other words, he has failed to
use or has palpably misused his advantage. He has acted on material that was
not in evidence
and has drawn adverse inferences from matters which did not
justify that course. The appellant's denial of possession of a gun should
have
raised a sufficient doubt to warrant an acquittal.

  

   Accordingly, the appeals must be allowed and the orders of the Magistrate
set aside.

  

   It is necessary to make some comments about the orders made by the
Magistrate. As previously stated, the Magistrate
purported to make orders in
both matters pursuant to s556A of the Crimes Act 1900 (ACT). He did so in the
following terms -

  

  

   "I will just pick one of the charges, the assault on Mrs Sullivan will be
the
one. Under s556A he will be discharged on entering into a recognisance in
the sum of $750, to be of good behaviour for two years
with a condition that
he is to pay $300 by way of penalty within ... three months. If he ever does
any stunt like this again he will
spend a fair few weekends down at Quamby.
The other charge will be dismissed under 556A." Section 556A is in the
following terms
-

  

  

   " (1) Where:

   (a) a person is charged before a court of the Territory with an offence
against a law of the Territory;
and

   (b) the court is satisfied that the charge is proved but is of opinion,
having regard to:

   (i) the character, antecedents,
age, health or mental condition of the
person;

   (ii) the extent, if any, to which the offence is of a trivial nature; or

   (iii)
the extent, if any, to which the offence was committed under
extenuating circumstances;

   that it is inexpedient to inflict any
punishment, or to inflict any
punishment other than a nominal punishment, or that it is expedient to release
the person on probation;

   the court may dismiss the charge or, without proceeding to conviction, by
order, direct that the person be discharged upon his
or her giving security,
with or without sureties, by recognisance or otherwise, to the satisfaction of
the court, that:

   (c) he
or she will be of good behaviour for such period, not exceeding 3
years, as the court specifies in the order; and

   (d) he or she
will, during the period so specified, comply with such
conditions (if any) as the court thinks fit to specify in the order, which
conditions may include:

   (i) the condition that the offender will, during the period so specified,
be subject to the supervision
on probation under a person, for the time being,
appointed in accordance with the order;

   (ii) the condition that the offender
will obey all reasonable directions of
a person so appointed; and

   (iii) the condition that the offender will comply with an order
made
pursuant to section 437.

   (2) Where a person has been discharged in pursuance of an order made under
subsection (1) upon the condition that he or she will
be of good behaviour for
a period specified in the order (in this section referred to as "the period of
good behaviour") and information
is laid before a magistrate, whether before
or after the expiration of the period of good behaviour, alleging that the
person has,
during the period of good behaviour:

   (a) failed to be of good behaviour; or

   (b) failed to comply with a condition specified
in the order in accordance
with paragraph (1)(d);

   the magistrate may issue a summons directing the person to appear before
the
court by which the person was discharged at a time specified in the
summons and show cause why the person should not be dealt with
by that court
under this section, or, if the information is laid on oath, may issue a
warrant for the arrest of the person and for
the person to be brought before
that court to be dealt with under this section.

   (3) Where a person who has been discharged by
an order made under
subsection (1) appears before the court by which the person was discharged on
summons or warrant issued under
subsection (2), the court may, if it is
satisfied that the person has, during the period of good behaviour:

   (a) failed to be
of good behaviour; or

   (b) failed to comply with a condition specified in that order in accordance
with paragraph (1)(d);

  
impose on the person any penalty which the court would, if the person had
then and there been convicted of the offence with which
he or she was
originally charged, be empowered to impose or make any order (including an
order under subsection (1) or an order under
subsection 556B(1)) which the
court would, if he or she had then and there been convicted of the offence of
which he or she was originally
charged, be empowered to make.

   (4) Where a recognisance that was entered into in accordance with an order
made under subsection
(1) is varied under section 556D, a corresponding
variation shall be deemed to have been made in the terms of that order, and
subsections
(3) and (4) apply to and in relation to that order:

   (a) in a case where the period specified in the order in accordance with
paragraph (1)(c) is to be deemed to have been varied - as if references in
subsections (3) and (4) to that period were read as references
to that period
as it is to be deemed to have been varied; and

   (b) in a case where the conditions specified in the order in accordance
with paragraph (1)(d) are to be deemed to have been varied (whether by the
alteration of such a condition or the addition of a further
condition) - as if
references in subsections (3) and (4) to a condition so specified were read as
references to a condition included
in those conditions as they are to be
deemed to have been varied.

   (5) Where a person is dealt with under subsection (3) the court
may, in
addition to imposing penalty on the person or making an order against the
person, order that any recognisance given by him
or her or by a surety for him
or her shall be estreated and that any other security given by or in respect
of him or her shall be
enforced." 32. It does not appear from that short
announcement of the court's orders that the Magistrate was of the opinion that
it was inexpedient to inflict any punishment or to inflict any punishment
other than a nominal punishment, or that it was expedient
to release the
appellant on probation. Nor was it apparent that he had regard to the other
matters referred to in s556A(1)(b) as
warranting the appellant being
discharged upon his giving security by recognisance.

  

   33. It is obvious that the Magistrate,
without proceeding to conviction in
either case, by order directed that the appellant be discharged upon his
giving security without
surety by recognisance to the satisfaction of the
court, such recognisance containing a condition in the case of Mrs Sullivan
that
the appellant pay a penalty of $300.00 within three months. In my
opinion, the Magistrate has inadequately expressed his orders pursuant
to
s556A.

  

   34. In Griffiths v The Queen [1977] HCA 44;  (1976-77) 137 CLR 293 at p303, Barwick CJ
stressed the importance of following the terms of the section when a court has
decided
to use s556A. His Honour stressed that a degree of formality in
indicating that no conviction is to be recorded and in making the
appropriate
order would assist to remove any ambiguity from the proceedings consequent
upon verdict or upon a plea of guilty.

 


   The Magistrates of the Australian Capital Territory must proceed in
applying s556A in a formal and deliberate manner, applying
the words of the
section appropriately.

  

   36. The section was originally enacted as part of the Crimes Act 1900 (NSW)
in 1929 but it did not become part of the law of the Australian Capital
Territory until it was added by Act No. 12 of 1942.
In its original form,
s556A was modelled on provisions contained in the Probation of Offenders' Act
1907 (UK). The English legislation
was reworded and replaced in 1948. There is
corresponding legislation in other Australian jurisdictions and in Canada and
New Zealand.
See, for instance, the Crimes Act 1914 (Cth), s20, and the
Criminal Law (Conditional Release of Offenders) 1971 (NT), the application of
which I discussed in Nichols v Hodgins (1978)
21 ALR 235. Provisions
empowering release of offenders on recognisances commonly provide that they
may contain such conditions as
the court thinks fit, but the scope of such
conditions is not unfettered: R v Keur (1973) 7 SASR 13 at p15; Bantick v
Blunden (1981)
58 FLR 414 at p416; 36 ALR 541 at p542. In the latter case, a
Magistrate purporting to act pursuant to s20(1) of the Crimes Act 1914, made
orders which were in the following terms - "... I will order you enter a
recognisance in the sum of $200.00 to be of good behaviour
for 12 months, to
place yourself under supervision for 12 months of a probation officer of this
State, and in addition to perform
10 work orders." Green CJ held that the
imposition of the condition was, in substance, the imposition of a sentence
and therefore
the Magistrates order was not a proper exercise of the
discretion conferred by s20(1).

  

   38. In Griffiths v The Queen (supra), Jacobs J examined the history of the
recognisance or bond. Recognisances are, strictly
speaking, entered into
voluntarily. The offender is content to be bound by certain conditions, the
alternative being judgment. Typically,
upon breach of a condition, the
offender will then be brought up for sentence in respect of the original
offence (see s556A(3)).
The form of probation contemplated by s556A(1)(b) is
an alternative to conviction and punishment.

  

   In Cobiac v Liddy [1969] HCA 26;  (1969) 119 CLR 257 at p275, Windeyer J said, with
reference to the corresponding provisions in the South Australian legislation,
that as a matter of general principle -

  

  

   "One thing is I think quite certain: that is that, if a man be not
convicted,
he is not to be punished." 40. In R v Ingrassia (1977) 41 NSWLR
447, the Court of Criminal Appeal of New South Wales answered a case
stated.
Counsel for the appellant had invited the District Court to deal with the
appellant under s556A but at the same time required
him to pay a fine. The
District Court Judge expressed a doubt as to whether he had the power to do
that and stated a question for
the determination for the Court of Criminal
Appeal. The Court answered the question in the negative.

  

   41. In the course of
his judgment, Gleeson CJ said that it is contrary to
common law principle that a person who has not been convicted of an offence
shall be punished by an order of the court. The conditions which may be
imposed cannot be of such a nature that they involve punishment
for an offence
of which, by hypothesis, the offender has not been convicted. He referred to
the fact that courts both in England
and in Canada have held that the
corresponding legislation in those countries does not permit the combination
of a conditional discharge
and punishment in the form of a fine: R v
McClelland [1951] 1 All ER 557; R v Sanck (1990) 12 Cr App R (S) 155; R v
Leonard (1973)
11 CCC (2d) 527; R v Meldrum (1987) 81 RSR (2d) 435; R v
Carroll (1995) 38 CR (4th) 238. A similar view had been expressed in respect
of s556A by a Court of Criminal Appeal of New South Wales differently
constituted in R v Fing (4 October 1994, unreported).

  

   42. Where a fine is imposed by a Magistrates' Court, s147(2) of the
Magistrates Court Act 1930 provides that the conviction or order shall also
provide that in default of payment of the amount in accordance with the terms
of
the conviction order, the person shall be imprisoned for the period
specified in the conviction or order until the amount is paid.
Accordingly, if
the present appellant failed to pay the amount of $300.00 by way of penalty
contained in the condition of the recognisance,
he might be required to spend
some time in prison.

  

   43. As Gleeson CJ observed in R v Ingrassia (supra), the legislation
regulating
the conduct of prisons does not cater for guests. In that case
there was some argument as to whether the word "fine" was strictly
applicable
to the payment of a sum of money as a condition of a recognisance and that
what was involved was more in the nature of
a donation to the revenue. That
argument was roundly rejected as the payment would represent a triumph of
words over ideas. In any
event, the Chief Justice said s556A is not a
provision to be used for the purpose of soliciting gifts whether to the
revenue, to
charities or to anyone else.

  

   44. I understand that it is not unusual in the Magistrates' Court of the
Australian Capital
Territory for offenders to be required to make a donation
to charity as part of the final decision of a criminal matter. In my opinion
it is unlawful to use s556A to achieve that end.

  

   45. I conclude my remarks about the terms of the orders made by the
Magistrate
in this case by saying that first, they were inadequately
expressed, and secondly, the imposition of a penalty by way of a condition
was
not an appropriate exercise of the discretion conferred by s556A(1).

  

   Both appeals are allowed and the orders made by
the Magistrate are set
aside.I shall hear counsel on the question of costs.

  

  

   47.