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John William Huey v Alan Houston Tait

 

[1973] FC 47

IN THE FULL COURT OF QUEENSLAND

O.S.C. No. 29 of 1973

BETWEEN:

JOHN WILLIAM HUEY

AND:

ALAN HOUSTON TAIT

Ex parte: ALAN HOUSTON TAIT

Cor: The Chief Justice

Stable J.

D.M. Campbell J.

REASONS FOR JUDGMENT OF THE CHIEF JUSTICE, STABLE J. AND D.M. CAMPBELL J. DELIVERED ON THE 20TH DECEMBER, 1973. D.M. CAMPBELL J. DISSENTING.

“ORDER TO REVIEW DISCHARGED WITH COSTS.”

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 29 of 1973

JOHN WILLIAM HUEY

v.

ALAN HOUSTON TAIT

Ex parte:ALAN HOUSTON TAIT

JUDGMENT - THE CHIEF JUSTICE

This is the return of an order to review the decision of a Stipendiary Magistrate at Brisbane made on a complaint that on 15th March 1973, the defendant (appellant) unlawfully assaulted Catherine Fiona Wallis, and that the assault was of an aggravated nature in that she was a female and the assault was of a sexual nature. The Magistrate convicted the appellant. The grounds set out in the order to review are that the conviction was against the evidence and the weight of evidence, that the Magistrate misdirected himself as to the use that could be made of a view and that he did not appreciate the extent of a conflict between the evidence given by the girl and the receptionist of the appellant who was then practising as a dentist.

The girl gave clear evidence of the assault; two police officers gave clear evidence of an interview with the appellant at his home when he was said to have made admissions clearly establishing his guilt, and that the interview was recorded as question and answer in the official notebook of one of the police officers. The substance of this interview was emphatically denied by the appellant; it was also emphatically denied by his wife who said she was in the kitchen when two men whom she did not know came to the home and asked to speak to the appellant privately; she said she wanted to know who they were and so, of course, she did listen. Evidence was also given in the case of the complainant by the receptionist and her evidence is on a number of points in conflict with that of the girl. She saw nothing of any assault.

The Magistrate had the advantage of a very searching cross-examination of the prosecution witnesses and delivered his reasons for convicting the appellant at the end of the addressee by the representatives of the parties. He left no-one in any doubt that he accepted the evidence of the two police officers as accurate. Unless this conclusion of the Magistrate is open to challenge, the conviction must stand; and it is on this basis that I look at the grounds of appeal.

Before the appellant gave evidence at the beginning of the case for the defence, a request was made that the Magistrate view the home of the appellant to make clear to him the position of the lounge room where the interview took place and of the kitchen in relation to it where the wife was said to be; this was requested to shew the case with which ordinary conversation in the lounge could be overheard by someone listening in the kitchen.

The view took place after Mrs. Tait had completed her evidence.

As to this, the Magistrate formed the conclusion reached by Mr. L.W.H. Butts who gave evidence of certain tests made by him - that “if all is quiet, then you can hear in kitchen what is being said in a normal conversation in the lounge”. His reasons continued: “This doesn't alter or shake in any way my conviction that the two police officers were quite truthful witnesses and, accordingly, the defendant must be convicted”.

But, it was said, the Magistrate had made a wrong use of the view and the passage of his reasons immediately preceding what I have set out is as follows:

“Now this war apparently to demonstrate to be that Mrs. Tait must be telling the truth. Now, I knew that a view is supposed to be so that the tribunal can better understand the evidence. I don't see any reason why if I am to thereby be made a sort of witness and I place it on record that I did hear the voices of the defendant and the his, the person that was with him while they were in the lounge end while I was in the kitchen but, of course, this was only after the lawnmower, which was operating somewhere down the read, had been stopped. I surely aren't supposed to be so blind that I couldn't see the doorway .. that's the third doorway, which wasn't pointed out to me .. which led on to the laundry. At least I assumed it was a laundry because there was what I took to be a washing, machine immediately outside that door of the kitchen. It doesn't make it so compelling. Now, I must say, right, this must have been the conditions when Mrs. Tait war in the kitchen on the evening of the 3rd of April. They must have been exactly as they are now when I can hear those voices in the lounge.”

It does appear quite clear from this passage that the Magistrate - with the concurrence of the appellant - Was placed in the kitchen to see what could be heard there of a normal conversation in the lounge; it appears also that a lawnmower was being operated somewhere not far awry for a portion of the time; and that there was a door Prom the kitchen into a room other than the lounge - which the Magistrate took to be a laundry.

It appears from what the Magistrate said that he was quite satisfied that, if all was quiet elsewhere, a conversation in the lounge could be heard in the kitchen; he was also made aware that outside noises might affect the situation and also that a person who emerged from the kitchen into the lounge might previously have been in this other room thought to be a laundry. That there might be other noises outside the house affecting hearing within does not seem to me to add anything to what commonsense suggests; and I do not think that, having been placed by the parties in the kitchen, his observation of a door to another room off the kitchen was outside the sphere of the legitimate purpose of the “view” in this case.

However, I have spent more words on this point than it is worth because it is quite immaterial. The appellant has established his point that a person in the kitchen was able to hear a conversation in the lounge. The Magistrate accepts this situation. Mrs. Tait gave evidence that she beard a conversation from beginning to end and said what it was. Her evidence of what it was, was in dire conflict with the evidence of the police officers and the Magistrate did not accept it. If she was in the kitchen and able to hear, he rejected her evidence of what she heard; if she was not in the kitchen and perhaps unable to bear, he rejected her evidence. There was no issue in the end that the conversation in the lounge could not be heard in the kitchen. Mrs. Tait's evidence depended not on where she was but, when she swore that she heard and as to what she heard, whether the Magistrate accepted this as credible evidence.

There is another aspect of the matter which is relevant. The evidence of Mrs. Tait is of her being in the kitchen when the men arrived and of her hearing the request to her husband for a private conversation; of her hearing him being told of the subject matter of the inquiry and his answer; and that she then went into the lounge room immediately - not more than five seconds after the men entered it. From that point of time on, her evidence related to what was said or done in the lounge while she was in the lounge. On her evidence, very little was said before she entered the lounge. As to this, the Magistrate clearly preferred the accounts of the police officers. I see no reason why the approach of the Magistrate to what he learned from the view could have had any importance on his assessment of the credibility of the police officers.

The basis of the third ground of appeal is the following passage from the reasons of the Magistrates:

“Parts of the evidence of the girl employed by the defendant, that is girl Gill, employed by the defendant as a receptionist differs from the story of the complainant. That girl, Gill, didn't see anything improper. Likewise, she didn't see the note, Exhibit 4, being written or being handed to the girl “Wallis by the defendant. Two people knew what happened and one of them was the defendant. Now, the defendant knew what he did and his admissions corroborate the complaint of the girl wallis, that twice the defendant squeezed her left breast.”

The admissions referred to are those said to have been made by the appellant to the police officers.

The suggestion is made that this shows an improper appreciation of the importance of the conflict of the complainant and Gill; that the Magistrate has rejected Gill's evidence out of hand because she did not see the note admitted to have been written by the appellant and handed to the complainant.

What the Magistrate is saying in the extract which I have not out is that Gill did not see a happening - the writing of the note - which must have occupied, I would think, about a minute; she therefore did not see everything that happened; there were two occasions when the appellant was in the room alone with the complainant; he preferred to accept the evidence of the complainant corroborated as it was by the admissions made to the police officers, to that of the girl Gill and the appellant.

In any case, I cannot be that this statement by the Magistrate can have any substantial bearing on the question whether there is any reason for doubting the finding that the police officers were telling the truth.

Criticism was also made of the evidence of the police officers and of the complainant. Nothing of what was urged on these points was in itself sufficient to persuade me that the Magistrate was in error in deciding to convict.

This disposes of the grounds in the order to review, in my opinion, it should he discharged with costs.

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 29 of 1973

JOHN WILLIAM HUEY

v.

ALAN HOUSTON TAIT

Ex parte: JOHN WILLIAM HUEY

JUDGMENT - STABLE J.

The appellant, then a practising dentist and now retired, aged 65 gears, was convicted upon summons before a stipendiary magistrate on a charge of as assault of an aggravated nature upon a female on March 15, 1973. It was charged that the assault was of a sexual nature as defined by s. 2A of “The Criminal Law Amendment Act of 1945”. He appeals against the conviction on the grounds—

  1. (i)
    that the conviction was against the evidence and the weight of the evidence;
  1. (ii)
    that the magistrate misdirected himself as to the use that could be made of the view that he took;
  1. (iii)
    that the magistrate failed to appreciate the extent of the conflict of the evidence given by the complainant and a further witness culled for the prosecution who was the appellant's receptionist at the time in question.

An the time of the alleged offence the complainant was 17 years old and the receptionist was 16.

Though they are named in the Order to review I see no reason why they should he named in these reasons.

The matter falls within small bounds. The essence of the charge was that the complainant, a patient of the appellant, had a, reaction after the extraction of a painful tooth by the appellant in his surgery. She was taken to a camp bed or couch in a room part of the surgery premises where she lay down and dosed in the course of recovery, her evidence was to the effect a that while she was there the appellant came and with his hand squeezed her loft breast on two occasions. There was a great deal of surrounding material, but this is the essence of her allegation which founded the charge. There was evidence that the complainant complained to her mother that the appellant had touched her on the left breast, and that the mother questioned her and then contacted the police by telephone. The appellant was on the next day interviewed by detectives Huey and King, and their evidence is that he then made admissions (with a good deal of detail) that he had first accidentally touched her breast and then on two occasions squeezed it with his hand. A note book in which the police officer claimed he made notes of the conversation as it took place was put in evidence. The massiveness of the conflict with which the magistrate was faced is Illustrated by the fact that the detectives swore to detailed admissions which corroborated the complainant and which; were noted down, while the appellant swore that he made no admissions and “indignantly and vehemently denied the accusations at all times”. The defence evidence was that no note book was used and that the only writing done was on a clip-board, being the name of the appellant's solicitor and some telephone numbers. Further, the evidence of the sixteen-year-old receptionist was to the effect that the appellant was not alone with the complainant and would; have had no opportunity to do what he was alleged to have done without being observed by her. All in all, the conflict was of the kind which is not unusual in cases of sexual charges which often have to be resolved and decided by the inscrutable verdict of a jury. No doubt the magistrate who had the inestimable advantage of seeing and hearing the witnesses would also have had regard to the probability or otherwise of two police officers, for no suggested motive, other than to add to their lists of convictions, conspiring with an untruthful complainant and with each other to fabricate evidence to load to the conviction of an innocent man on suck a charge. It was submitted to the magistrate that “the evidence given by Huey and King was a most deplorable piece of perjury”. He may also have had regard (indeed some words he used suggest he did have regard) to the probabilities of the appellant and his wife acting to protect a hitherto blameless reputation of the appellant on the have of his retirement. But this court must not have regard to probabilities, for, as the justices of the High Court said in Kain & Shelton Limited and another v. Virgo (1956) 97 C.L.R. 230 at p. 240:—

“One thing a court of appeal is not entitled to do is to ignore evidence based on credibility and to consider probabilities based on the written material”.

It appears from Paterson v. Paterson (1953) 89 C.L.R. 212 at p. 223 that this observation was adopted by the learned justices from Lord Wright in Powell v. Streatham Manor Nursing Home (1935) A.C. 243. Indeed, reference to this case in the house of Lords, which was concerned with the approach to an appeal by way of rehearing from the decision of a judge (and this appeal is from the decision of a magistrate in summary jurisdiction) illustrates the force of persuasion needed to upset the decision of a judge. Lord Wright said at p. 265:—

“Two principles are beyond controversy. First it is clear that in an appeal of this character, that is from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal ‘must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong’. (The Julia (1860) 14 Moo.P.C. 210, 235 per Lord Kingsdown, cited with approval by Lord Sumner (1927) A.C. 47). And secondly the Court of Appeal has no right to ignore what facts the judge has found on his, impression of the credibility of the witnesses and proceed to try the case on paper on its own view of the probabilities as if there had been no oral hearing”.

The above statements concern appeal by way of rehearing from a judge. As Lord Wright said (p. 264) different considerations apply to set aside the verdict after trial by jury.

In the present case the decision is one of a magistrate in summary jurisdiction. The nature of an appeal from the decision of a magistrate under the Justices Acts is illustrated by the decision of this court in Smith v. Smith (1950) St.R.Qd. 113 at pp. 120-121. The matter was also adverted to in the decision of the court in Grayson v. Crawley ex parte Crawley (1965) Qd.R 315 at pp. 318-319 per Wanstall J. (as he then was) and Lucas J. and myself, where we considered the findings of a magistrate. In that case the court adopted what was said in Hopgood v. Murray, Ex parte Murray (1947) St. R. Qd. 158 at p. 163:—

“The destructive value of contradictions and inconsistencies is, as in the case of trial by jury, for the magistrate to consider in the atmosphere of the trial. Philp J. in Hopgood v. Murray, ex parte Murray (supra) pointed out, at p. 163, that in such an appeal as this the power of the court to review the decision on questions of fact is very limited. However, he said, the court is not powerless to correct injustices if it can see that although there be evidence to support the conviction the decision is unreasonable, or that it was probably affected by inadmissible evidence, or that the magistrate has allowed his mind to be distracted from the real issues by irrelevances or prejudicial matter improperly introduced. He adds that the court must be very chary of upsetting a magistrate on a finding of fact when there is evidence to support it, though there is power to do so under s. 216 of The Justices Acts. He concluded that each case must depend on its own circumstances and that in each case it is the duty of the court to see that justice is done according to law”.

It is noted that Hopgood v. Murray (supra) Was decided in the days of quashing orders under s. 210 of The Justices Acts before the passing of the 1949 amendments introducing the new method of appeal.

The precise nature of an appeal from a magistrate in summary jurisdiction is not, so far as I can find, defined by Act of Regulation. The powers of the appellate court are set out in s. 213 of The Justices Acts, sub-paragraph (1)(vi) of which refers to the power of the court or a judge to rehear a case or matter. This is, in my understanding, a rehearing de novo, in some of which I took part at the Bar. One example of this kind of re-hearing is Clough v. Fergus Ex parte Fergus (1956) Q.W.N. 7. But, again so far as I can see, no such provision as rule 294(3) of The Magistrates Courts Rules relating to appeals under s. 11 of The Magistrates Courts Acts exists with regard to orders to review. That sub-regulation reads, “(3) appeals shall be by way of rehearing”. Section 144 of The District Courts Act, 1891, provided for appeals from the District Court to the Supreme Court in terms substantially the same as those provided in s. 143 of The District Courts Acts 1958-1960 (now repealed and replaced). In neither enactment is there any such provision as that contained in rule 294(3) of the Magistrates Court Rules. Of the 1891 Act Griffith C.J. in Pilmer v. No. 1 South Oriental and Glanmire Gold Mining Co. Limited (1900) 10 Q.L.J. 87 at p. 95 said—

“It makes no difference, so far as regards the functions of this Court on the hearing of appeals from District Courts, whether the case was tried with or without a jury. The findings of a District Court judge stand on the same footing as if they were those of a jury, and the Court will review the findings of a judge on the same principles as those which are applied when it is asked to review the findings of a jury - that is, it will disregard them only if it is shown that they are manifestly wrong. Section 147 may possibly somewhat enlarge their powers in that respect. The case of Murison v. Rankin 6 Q.L.J. 52 is quite consistent with that view. There is great distinction between an appeal of this sort and an appeal from a judge of the Supreme Court sitting alone, which is in the nature of a rehearing, so that in that case fresh evidence may be taken by the Court of Appeal. What I have said is the opinion of the Court”.

The s. 147 to which Griffith C.J. referred is in the same terms as s. 146 of The District Courts Acts 1958-1960. This court, so far as regards The District Courts Acts as they were, in Clark v. Trevilyan (1963) Q.W.N. 11 applied Pilmer's Case to the decisions of a judge of District Courts. As in the case of The Justices Acts as they stand today, there was no provision in The District Courts Acts or rules to the same effect as rule 294(3) of The Magistrates Court Rules. I do not think it is within the province of this court to write any such provision into The Justices Acts where it seems the Legislature and Executive have so far refrained from so doing.

But the judgment in Clark v. Trevilyan (supra) ends with the statement:—

“However, even if the finding of a District Court judge is supported by evidence and is not unreasonable, it may be set aside if it appears that the judge has misdirected himself, and that the misdirection has influenced the result”.

I would apply this to the decision of the magistrate in this case. In the course of giving his spoken and evidently extempore decision he made some remarks which I find difficult to appreciate in their context. He started with the words, “fell it appears to mo that what happened from the time that his wife came into the lounge of the defendant's house on the 3rd April, 1973” (the occasion of the polios visit when the confessional statement was sworn to have be on made) “was predictable. From then the defendant didn't want to make any further statement to the police officers and he decided to consult his solicitor and he now denies having made any admissions and predictably, he was loyally supported in this by his wife.” Exception was taken before us to the use of the word “predictably”, and I must admit that it caused me a little concern. But in the end it must be remembered that when he spoke the magistrate had seen and heard the appellant's wife and had formed his impression of her so that his language must be read in the light of that fact. He was not as it were being wise before the event, but was speaking of his opinion after the event. This statement is tied in with the matter of whether the appellant made a confessional statement at all - a matter which, as I have said, the appellant denied. Though the magistrate might have expressed himself better if he had taken time for preparation I do not see that he is shown to have misdirected himself.

The other main objection to his decision was his statement regarding the view which he had which appears also to have been accompanied by a demonstration to show the ability of a person in the kitchen of the appellant's home to hear ordinary conversation in the lounge. Evidence about this had been given by an independent witness whom, it seems, the magistrate accepted, fortified by the view and demonstration. However, it was submitted that the magistrate had taken into account something which had not been adverted to at all in the course of the evidence - the existence of a door apparently leading to a laundry from the kitchen, and the suggestion was that he may well have misled himself by assuming that Mrs. Tait might have been in the laundry while the claimed confessional conversation was being held in the lounge. I do not propose to go through all the evidence and the submissions, for it seems to me that we are asked to speculate that the magistrate persuaded himself that Mrs. Tait and the appellant should not be believed because she was or could have been in the laundry and not within hearing while conversation in the lounge was taking place. The essence of the matter appears to me to be that the magistrate, out of the conflict, clearly accepted that the police officers were not conniving perjurers as was alleged to him, and accepted that their evidence corroborated that of the complainant thus to lead to a conviction. In this I do not conclude that he was either clearly wrong (as if he were a judge) or manifestly wrong (as if he were a jury).

I would discharge the order to review.

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 29 of 1973

JOHN WILLIAM HUEY

v.

ALAN HOUSTON TAIT

Ex parte: ALAN HOUSTON TAIT

JUDGMENT - D.M. CAMPBELL J.

The appellant is a retired dentist. He was interviewed by the police at his home on April 3 this year, on the eve of his retirement from practice at the age of 65, in connection with a complaint by a 17 year old girl. She alleged that he had sexually assaulted her at his rooms on March 15, after extracting one of her teeth. The allegation was that he squeezed her left breast twice when she was resting on a couch in a small room adjoining the surgery. Following the visit by the police, he was charged before a magistrate in the Magistrates Court at Brisbane constituted under and in accordance with the Justices Act, 1886-1968, with assault of an aggravated nature and convicted of that offence. The appeal by way of order to review under s. 209 of the Act is against his conviction.

Although there was a marked conflict of evidence at the hearing before the magistrate - the conflict was between the complainant and the police officers as to the making of the complaint, between the complainant and the appellant and his dental nurse as to what took place in the recovery room, and between the police officers and the appellant and his wife as to what was said at the house some three weeks later - there was evidence to support the conviction. But the magistrate gave reasons for his decision, as indeed it was proper for him to do in the circumstances. It is these reasons which are assailed. The reasons are so unsatisfactory, to my mind, as to raise the question of the nature of an appeal under s. 209. The Queensland cases do not appear to me to leave the position very clear.

Section 209 in its present form was introduced by the Justices Act Amendment Act of 1949. It replaced a section which gave a person aggrieved by a conviction or order of justices the right to apply to the Full Court for a quashing order. The earlier section was baaed on a s. 12 and 13 of the Act 14 Vic. No. 43 of Now South Wales, which empowered the Supreme Court to issue a writ of prohibition restraining proceedings upon the conviction or order: Irving v. Gagliardi (1895) 6 Q.L.J. 155 at p. 160; Ex parte Lovell; Re Buckley (1938) S.R. (N.S.W.) 153 at pp. 165-173. In this way the Full Court exercised the same supervision over the decisions of justices as it did over the verdicts of juries. In Peck v. Adelaide Steamship Co. Ltd. (1914) 18 C.L.R. 167 at p. 174, Sir Samuel Griffith said: “The settled rule in Now South Wales and in Queensland has been that the Court will interfere the decision of justices is wrong in law, and, if the question is one of fact, will follow the rules applicable to the cane of an application for a new trial after verdict of a jury”.

The amendment of s. 209 was brought about by the repeal of Part IX of the Act and the insertion of a new Part in lieu thereof. It was preceded by the decision of the Full Court in Hopgood v. Murray, Ex parte Murray (1947) St.R. Qd. 158, known as “the Pink Elephant case”. In that case the court unanimously quashed the conviction of the defendant on a charge of using obscene language in a public place, although there was admittedly evidence on which the magistrate could have convicted him. It is difficult to extract any general principle from the judgments. Philp J. prefaced his judgment by saying: “Upon such an appeal our power to review the decision on questions of fact is very limited, and this case to my mind sharply points the necessity for consideration by the legislature to giving an enlarged right of appeal from magisterial decisions on questions of fact such as has existed in England for many years”. He went on to say, “Although we must be very chary of upsetting a magistrate on a finding of fact when there is evidence to support it, nevertheless s. 210 of the Justices Act empowers us to quash the conviction if after enquiry and consideration of the depositions we conclude it should be quashed. Each case must depend upon its own circumstances, and in each case it is our duty to see that justice has been done according to law”.

The change brought about by the legislature, influenced presumably by what was said in the pink elephant case, was to do away with appeals by quashing order (and by special case), and to substitute an appeal by way of order to review on both law and fact. The change introduced was not confined to the mode of appeal; the right to appeal was extended and the powers of the court or judge on the return of the order enlarged. The right of appeal to a single judge (now to a judge of the District Court) was retained, though it also was extended. It was held very early in R. v. Justices at Ravenswood, Ex parte Davis and Griffin (1903) St.R.Qd. 158 at p. 161 that appeals to the District Court are in the nature of a rehearing - “i.e. are a fresh investigation upon the merits of the case, either upon fresh evidence or upon the evidence and proceedings before the justices”.

Section 209 as amended is largely based on s. 150 of the Justices Act 1915 of Victoria. However, there are differences between the Acts. One difference is that, under the Queensland Act, the court or judge has power to rehear the case de novo if necessary (s. 213(1)(vi)). There are Victorian decisions which lay down that appeals from justices on questions of fact are to be treated in the same way as appeals from juries. See e.g. McGillicuddy v. Mann (1916) 22 A.L.R. 142 and Young v. Paddle Bros. Pty. Ltd. (1956) V.L.R. 38. In Smith v. Smith, Ex parte Smith (1950) St.R.Qd. 113 at p. 119, which was the first reported case to come to the Full Court under the new section, Townley J., delivering the judgment of the Court, adverted to the fact that the words “in law or in fact” in s. 209(1) do not appear in s. 150(1) of the Victorian Act. But he said: “As the ‘errors’ or ‘mistakes’ of justices must be either those of law or of fact it does not appear to us that the added words of the Queensland subsection require that it should be given an interpretation different from that accorded to the Victorian subsection”. He made no reference to the power to rehear the case or to the fact (as was later decided) that the complainant is given a right of appeal by way of order to review as a ‘person aggrieved’ Beer v. Toms, Ex parte Beer (1952) St.R.Qd. 116. It is obvious from this that an appeal under s. 209 cannot be equated to a simple appeal from the verdict of a jury.

Nevertheless, the Court was careful in Smith v. Smith not to commit itself by a statement as to the precise nature of an appeal under s. 209. In Victoria in McGillicuddy v. Mann (supra) at p. 144 Madden C.J. had stated emphatically that “where there is evidence each way, the magistrates are the only tribunal which is at liberty to decide”. He continued, “The law commits it to them as a jury to decide on the fact, and on such matters this court is not at liberty to interfere with their finding; and it never does so”. After quoting this passage verbatim, Townley J. spoke for the Full Court as follows: “It appears to us that this court is entrusted with the duty of reviewing the magistrate's findings of fact. If, upon such review, it appears that there is, upon any particular finding, oral evidence both ways, then this court will not normally interfere with the finding of a magistrate who had the advantage of seeing and hearing the witnesses who gave that oral testimony. But there are cases where the oral testimony is supplemented in a material particular by some unexplained and authentic document or by some undisputed or indisputable fact and where the magistrate appears to have disregarded evidence of this latter typo we have the jurisdiction and the duty to interfere”. He added finally: “We do not intend the above remarks as to the cases in which this court will reverse a magistrate's finding of fact should constitute an exhaustive list of such cases. In cases where there is a scintilla of evidence one way we should feel free to interfere. Other cases may arise where we have the duty to substitute our own finding of fact for that of the magistrate”.

A second case came before the Full Court a few months after Smith v. Smith - that was Noonan v. Elson, Ex parte Elson (1950) St.R.Qd. 215. A conviction on a charge under s. 16(1) of The Traffic Act of 1949 of being under the influence of liquor while in charge of a motor car was quashed on the ground that, on the facts, the magistrate should have had a reasonable doubt as to the accused's guilt. Stanley J. said (at p. 225); “The only guide provided by the magistrate as to his findings is in these words: ‘In thin case, where there is a divergence between the evidence for the prosecution and the evidence for the defence, I accept the evidence for the prosecution’. I have accepted and applied this statement as indicating the material from which the necessary inferences mush be drawn if the order is to be upheld. But I do not understand the judgment in Smith v. Smith to mean that the court cannot examine the facts as found by the magistrate to see if they support the Inferences that he must have drawn from them. It is however unnecessary to examine the extent of this court's powers any further in this appeal”. Townley J. in a short judgment said: “Upon the whole of the evidence, giving full weight as to any contested matter of fact, to the implications necessarily arising from the magistrate's decision, I feel unable to arrive at any other conclusion than that he should have had, and could not but have had, a reasonable doubt as to whether the appellant was under the influence of liquor at the time charged”. Mack J. dissented but, in doing so, questioned whether some statements in Smith v. Smith which indicate that the appeal is not by way of rehearing were correct, he mentioned that the difference between the Queensland and the Victorian legislation is in the addition of the words “in law or in fact” in our s. 209, and said: “Our legislature may have intended by adding these words to enlarge the scope of the appeal and perhaps the Victorian decisions are inapplicable”. However, even assuming in favour of the appellant that the appeal was by way of rehearing, he could not come to the conclusion that the magistrate was wrong.

Before referring to the other cases which have been decided since, I pause hero to observe that the only express restriction upon the right of appeal under s. 209 is in the requirement that the person aggrieved show “by affidavit to a Judge.... a prima facie case of error or mistake in law or fact”. There is no appeal as of right - even on a question of law, such as is given by s. 668D of the Criminal Code. The appeal is with the leave of the judge who makes the order. A ground on which the present order was made is that the conviction was against the evidence and the weight of evidence. It in difficult to imagine a complete review of the facts being undertaken which does not involve a rehearing, but, even in such case, as will be seen, the word ‘rehearing’ is not appropriate to describe the nature of the appeal.

A conviction on a charge of assault of an aggravated nature was quashed by the Full Court in Dwyer v. Bridge, Ex parte Bridges (1951) St.R.Qd. 90. It was laid down however that more inconsistencies in the evidence of crown witnesses was not enough for the court to interfere, and this was reiterated in Sutton v. Prenter, Ex parte Prenter (1963) Qd.R. 401.

The appellant in Cronau v. Cahill, Ex parte Cahill (1952) St.R.Qd. 183 had been convicted of having meat in his possession suspected of being stolen. The magistrate, in recording a conviction, said that it was absurd for him not to take notice of the fact that that meat had been continually taken from the meat-works over the period he had presided in the court. Townley J. at p. 192 (with whom Mansfield S.P.J. agreed) took the view that this was sufficient to vitiate the conviction could not be said that no substantial miscarriage of justice had occurred.

Beer v. Toms, Ex parte Beer (supra) was an appeal by a complainant against an order of a magistrate dismissing a complaint charging the respondent with doing a vagrant. The magistrate made no findings of fact. The case was remitted to him with a direction that he should enter a conviction and proceed according to law. The judgment of the Court was again delivered by Townley J. He said, at p. 125: “It was argued that we cannot say whether the magistrate accepted or rejected the whole or any portion, of the evidence. That may be true, but it is equally true that we are entrusted with the duty of reviewing his decision on matters of fact as well as on matters of law and, in a fit case, of substituting our view of the facts for his.”

The case of Coughlin v. Gaynor, Ex parte Gaynor (1961) Qd.R. 351 is authority for the broad proposition that a conviction will be quashed if the reasons given by the magistrate evince the adoption by him of an incorrect process in arriving at his conclusion. The incorrect process in that case was in applying the correct standard of proof. The case was explained by Stable J. in McLeod v. Maynard, Ex parte Maynard (1963) Q.W.N. 54, who was a party to both decisions. In the last-mentioned case the magistrate gave detailed reasons for his decision. Stable J. said at p. 76: “I feel impelled to say that when a magistrate, sitting as a Court of Petty Sessions, chooses to give detailed reasons for his findings and order he should eschew expressions which may bring about misunderstanding... Mention of such things as ‘prima facie conclusions’ or ‘the explaining away of manifestations’ may cause the kind of misunderstanding which is, as I regard this case, dispelled, by viewing the reasons for the decision as a whole as an appellate court examines a summing up to a jury”.

In Grayson v. Crawley, Ex parte Crawley (1965) Qd.R. 315, an attack was made upon the magistrate's decision on the ground that he had not referred himself to discrepancies between the evidence of the two main prosecution witnesses. Stable J. (with whom Wanstall and Lucas JJ. agreed) said in this case at p. 318: “The fact that the magistrate did not mention these matters in his decision does not import that he did not refer himself to them. A judge or magistrate does not have to set out in his decision all the factors which have led to it. As to this form of attack upon a judgment I venture to repeat (without setting it out) what I said, Mansfield C.J. agreeing, in Re, Gear deceased (1964) Qd.R. 528 at 531. Further, a magistrate is in the position of a jury. The approach to his decision by an appellate court is set out in the authorities from which I quoted in Sutton v. Prenter, Ex parte Prenter (1963) Qd.R. 401 at pp. 410-411”. The authorities quoted by him in that case were Smith v. Smith and Noonan v. Elson.

Wide powers are conferred by s. 213(1) upon the appellate court on the return of an order to review. In the terms of the sub-section, the powers are exercisable “upon a consideration of the evidence and materials adduced and brought before the said justices or justice and if the Court or Judge thinks fit of any further evidence either oral or by affidavit”. This clearly empowers the court, in my opinion, to treat the appeal us a rehearing on the depositions, supplemented, in a proper case, by other evidence. There is the additional power - as has been mentioned - to rehear the case anew (or order that it he so heard in the Supreme Court) (s. 213(1)(vi)). Speaking of an appeal by way of rehearing, Barwick C.J. said in Edwards v. Noble (1971) 45 A.L.J.R. 682 at p. 685: “The consequence of that description of the appeal is that the appeal is one on fact as well as on law and that the appellate court in deciding it may apply the law as it may then exist: further where additional evidence has been received it may do so in the light of that evidence along with what had been adduced before the court from which the appeal is brought. A rehearing is not however a retrial of the issues”. It would be completely wrong, in my opinion, to regard the court or judge before when an order to review is returnable as only to a limited extent a Court of Appeal. An appeal by way of order to review against a summary conviction by a magistrate is very different from an appeal/in a civil case. The proviso to s. 213(1) reads: “Provided that notwithstanding that the Court or Judge may be of opinion that any point raised by the order to review might be decided in favour of the appellant the Court or Judge may discharge the order if it or he considers that no substantial miscarriage of justice has occurred”. It is worth mentioning that the position is not the same if the appeal is to a judge of the District Court.

I do not think that there is any decision of the Full Court which compels mo to take a different view, there no reasons are given for a summary conviction, and the circumstances are not such that any need be given, there is a strong presumption in favour of the conviction, just as there is in favour of the verdict of a jury. The tendency to differentiate to a greater degree than, formerly with regard to the treatment accorded on appeals to the findings of fact by juries and by judges respectively, which was commented upon by Cussen J. in MacBean v. The Trustees Executors and Agency Co. Ltd. (1916) V.L.R. 425 and which Dixon and Kitto JJ. referred to in their joint judgment in Patterson v. Patterson (1953) 89 C.L.R. 212 at p. 221, is perhaps expressed by saying that there is merely a “presupposition” that the decision of a judge without a jury on the facts is right: see Da Costa v. Cockburn Salvage & Trading Pty. Ltd. (1970) 44 A.L.J.R. 455, Windeyer J. at p. 462. A jury, as a rule, returns a general verdict and this is where the groat difference lies. In Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p. 377 Lord Somervell of harrow said: “I would respectfully differ from those who have suggested that an appeal on fact from a judge sitting alone is the same as, or should be assimilated to, an appeal from a jury. Apart from the fact that in the former case the appeal is a rehearing, juries do not, and judges in varying degrees do, give reasons for their conclusion”. For a trial judge not to give reasons for his decision in most contested cases, constitutes an error of law, making it impossible for an appellate court to carry out its functions: Pettitt v. Dunkley (1971) 1 N.S.W. L.R. 376. In many cases in the Magistrates Court on the other hand, the giving of detailed reasons is not called for; the issues are simple, and the law is clear. In these cases an appeal court has no alternative but to regard the bald decision of a magistrate on the facts as on a par with the verdict of a jury; but where, as in this case, a magistrate has given reasons for convicting a defendant of unblemished reputation, at the end of his professional life, of an assault upon a female patient, those reasons cannot be ignored by an appellate court anal other reasons substituted for thorn. The reasons he gives must be looked at not only to see what evidence he accepted but also to see how he evaluated the evidence that was given. If it is shown that he went wrong, then it is the duty of this Court, as I see it, to interfere in such a case.

Evidence of the good character and moral disposition of the appellant was given by Mr. L.W.H. Butts, a former president of the Law Council of Australia. He described his general reputation as impeccable, and his professional reputation as that of a practitioner of high ethical principles. The Importance of such evidence in a case of indecent assault was clearly recognised in R. v. Rowton (1865) 10 Cox. C.C. 25 by a bench of twelve judges. In Stirland v. Director of Public Prosecutions (1944) A.C. 315 at p. 325 Viscount Simon L.C. referred in a speech, with which all their Lordships expressed agreement, to the remark of Mr. Erskine, who gave evidence for Arthur O'Connor at his trial for high treason in 1798, that, with the choice before him of defending Mr. O'Connor or of giving evidence as to his good character, he chose the latter. The appellant has a wife, three married daughters and a son. He was 44 years in dental practice in Queensland. For a time he was on the Council of the Queensland Branch of the Australia Dental Association, and was a member of the committee which acted as the disciplinary committee. The complainant was practically unknown to him, having visited his surgery only once before. She was not sexually inexperienced. She had been dismissed from one job because of dishonesty and it had become a police matter. Though she resolutely denied it in the witness box, she would not make a statement when she was interviewed by the police at her home following a complaint by the girl's mother. Her story was unusual in that she said that she was asleep in the recovery room at about 11 o'clock in the morning when the first assault occurred; she loft, so she said, after a second incident, without making any complaint to the nurse in attendance.

None of these matters, relevant as they are, were mentioned by the magistrate. It does not follow that he overlooked them, nevertheless, it makes it all the more necessary to examine the reasons which weighed with him.

In convicting the appellant, the magistrate accepted the evidence of two police officers as to an interview they had with the appellant in his home. He began, however, with a reference to the wife who gave evidence for her husband. The magistrate said: “It appears to me that what happened from the time that his wife came into the lounge of the defendant's house on the 3rd of April, 1973, was predictable. From then the defendant didn't want to make any further statement to the police officers and he decided to consult his solicitor, and he now denies having made any admissions and predictably he was loyally supported in this by his wife.” It is not predictable that a wife, however loyal, will give false evidence. If it were, a wife would be incapacitated as a witness through interest. See the judgment of hanger J. (as he then was) in Finglas v. Cahill, Ex parte Cahill (1961) Qd.R. 323 at p. 325. The evidence of the wife in this case that she was present for most of the interview, that her husband indignantly denied the charge, that no note at all of the conversation was made in a police notebook - evidence which contradicted the police witnesses - cannot be discounted on the ground that it was only to be expected that she would give such evidence.

The assault of which the appellant was convicted was the second assault. At the close of the prosecution's case, the Prosecutor said: “I might outline that early in the piece the defence asked for particulars and I did supply them with particulars, and the particular act we are relying upon to prove the charge ... was that last act ... on the second occasion, after the girl had woken up, and just after the girl said the defendant wrote the note and came to her on the couch”. There was an irreconcilable conflict between the appellant's nurse, Miss Gill, and the complainant as to what happened on that occasion, and it is desirable that the evidence he set out.

The complainant gave the following evidence:—

“Q. What happened then?

A. Then he said he was going to write me a note because I'd been there a while and he turned away to write the note and I Was just - I Was still lying on the bed and I was sort of getting ready to get up and everything. Anyway, I Was scratching my left eye at the time when he came over and he moved my left arm and started squeezing my left breast again.

.........

Q. How long did thin squeeze last for?

A. I'm not sure how long it lasted for but it was very hard. It hurt like anything. It wouldn't have lasted very long because as soon as he sort of grabbed me by this time I just shot off the bed.

Q. When you say you shot off the bed what did you do?

A. I just scrambled up as quickly - trying to get away.”

Miss Gill's evidence was as follows:—

“Q. When you went back into this room what happened then?

A. This is after he (the appellant) fixed up the record cards?

Q. That's right, yes?

A. We both walked into the room and Miss Wallis was still lying there. She wasn't crying as hard as what she was but she was still sobbing and Mr. Tait asked her if she was feeling better and she said, ‘yes, a bit better’. So he asked her if she'd like to go, if she'd so she half picked herself up. She sat up to a sitting position on the couch and Mr. Tait just put his arms around her shoulder for support; and we both walked her to the door and fir. Tait just took her to the steps.

........

Q. Suppose it were suggested to you that Miss Wallis scrambled off that couch, and ran out of the room.

A. No Fear.”

Miss Gill had no recollection of seeing the note mentioned by the complainant. It was quite contrary to her evidence that it was written just before the complainant left. The appellant stated that he wrote the note in the main office and handed it to the complainant when he walked with her to the waiting room.

Referring to the evidence of Miss Gill, the magistrate said: “Parts of the evidence of the girl employed by the defendant as a receptionist differs from the story of the complainant. That girl, Gill, didn't too anything improper. Likewise she didn't see the note, Exhibit 4, being written or being handed to the girl Wallis by the defendant. Two people know what happened and one of then was the defendant.” A third person claims to know what happened, and that is Miss Gill. As Mr. Sturgess put it in his address, she is really written off as a witness because she stated that she did not see the note being written. No one suggested that she was present at the time it was handed to the complainant; and no inference could be drawn from the fact that she was not present. It is impossible to resolve the conflict between Miss Gill and the complainant on the main issue by finding a conflict between them on the issue of the note.

At the request of counsel, the magistrate viewed the appellant's house which was the scene of the interview with the police officers. One purpose of the view was to demonstrate that a conversation conducted in the lounge room was audible in the kitchen, where the appellant's wife was seen to be by the police officers on their arrival. The kitchen adjoins the lounge. The evidence of the wife I was that she entered the lounge on over-hearing the detective say that a girl had made a complaint against her husband; the policemen's evidence was that she did not come into the lounge until the tail end of the conversation.

In reference to the view, the magistrate said: “This was apparently to demonstrate to me that Mrs. Tait must be telling the truth. Now, I know that a view is supposed to be so that the tribunal can I better understand the evidence. I don't see any reason why if I am to thereby be made a sort of witness and I place it on record that I did hear the voices of the defendant and ... one person that was with him while they were in the lounge and while I was in the kitchen but, of course, this was only after the lawnmower, which was operating somewhere down the road, had been stopped. I surely aren't supposed to be blind that I couldn't see the doorway - that's the third doorway which wasn't pointed out to me - which led to the laundry. At least I assumed it was a laundry because there was what I took to be a washing machine immediately outside that door of the kitchen. It doesn't make it so compelling. Now I must say ... this must have been the conditions when Mrs. Tait was in the kitchen on the evening of the 3rd of April. They must have been exactly as they are now when I can hear those voices in the lounge. As to the view, I would say it “did enable no to understand the conclusion readied by Mr. Butts from the tests he conducted. If all is quiet, then you can hear in to kitchen what is being said in a normal conversation in the lounge.”

It is apparent that the magistrate used the view to form is impressions of his own unsupported by evidence. The discovery of the doorway (which was not pointed out to him) seems to me to have led him to wonder or speculate whether Mrs. Tait was in the laundry and whether she had the washing machine on, and whether in either or both of these events she would have been, able to door what was said in to lounge. His reference to a lawnmower in the neighbourhood is in the same vein. The conclusion he comes to, “k doesn't make it go compelling”, means, I presume that those things made it leas certain in his mind that Mrs. Tait over-heard the conversation with her husband. It was stressed by Dixon C.J., Webb, Kitto and Taylor JJ., in, their joint judgment in Scott v. Numurhah Corporation (1954) 91 C.L.R. 300 at p. 313, that it is not permissible for a judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties.

It is not the question whether the evidence of the police officers was worthy of belief. He doubt, if this were the question, the conviction could not be challenged, but a magistrate must consider all the evidence, and as to material evidence in this case the magistrate has misdirected himself and failed to evaluate it properly. Moreover, he misunderstood the use of a view. Looking as the whole esse his decision does not strike me as being at all satisfactory. It could not be held, under the circumstances, that no substantial Injustice was done. I am of the opinion, therefore, that the conviction should be quashed. There is a further question, whether there should be a retrial. Having regard to the disproportionate amount of publicity which the case has attracted, and to the fact that the appellant is no longer in practice, I do not fool that a retrial would be justified if this question were to arise.

Close

Editorial Notes

  • Published Case Name:

    John William Huey v Alan Houston Tait

  • Shortened Case Name:

    John William Huey v Alan Houston Tait

  • MNC:

    [1973] FC 47

  • Court:

    QSC

  • Judge(s):

    Hanger CJ, Stable J, Campbell J

  • Date:

    20 Dec 1973

Litigation History

No Litigation History

Appeal Status

No Status