Skinner v Wild[1996] QDC 330

BETWEEN:

AND:

REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.

Delivered the 15th day of October 1996

Catchwords:

Appeal - Justices Act s. 222 - Powers of Court on appeal under s. 225 - whether ‘proviso’ allowing dismissal of appeal if there is no miscarriage of justice, notwithstanding that the appellant shows errors below, applies, or may be applied by analogy - appeal dismissed notwithstanding wrongful reception of evidence by magistrate and wrongful ruling that a non-hostile prosecution witness could be cross-examined by the prosecutor - Crimes (Confiscation) Act 1989 ss. 13, 92(1), 92(2).

Evidence - admissibility of documents called for or used by cross-examiner against his client - R v McGregor (1984) 1 Qd. R. 256 applied.

Evidence - impermissibility of cross-examination by prosecutor of prosecution witness who is not hostile, but consults with and gives certain evidence favourable to the defence.

BETWEEN:

AND:

REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.

Delivered the 15th day of October 1996

Mr Skinner appeals under s. 222 of the Justices Act against an order made by a Stipendiary Magistrate at Beenleigh on 26th June 1996 which held him guilty of possessing property namely a Ford utility motor vehicle reasonably suspected of being tainted property on 13th February 1995 at Kingston, the charge being brought under s. 92 of the Crimes (Confiscation) Act 1989, formerly numbered s. 65; the magistrate recorded no conviction, presumably in deference to the appellant's unblemished record and his acknowledgment that in some respects, at least, there could be a conviction on “less evidence than is otherwise required for a substantive offence” (page 10 of transcript of the sentence proceedings). Reference was made for what was said by the Court of Appeal in McKeever v McGee, ex parte McGee (1995) 1 Qd.R. 623, 630, which indicates that a certain latitude is allowed the prosecution in the sense that an offence can be made out under s. 92 notwithstanding that there is neither particularized nor proved the indictable offence needed to constitute a “serious offence” (defined in s. 4) the commission of which may make property tainted, within the definition in s. 13(1):

Nothing in the judgment limits the requirement, accepted by the magistrate, that all of the elements of the offence provided for in s. 92(1) must be proved beyond reasonable doubt before there can be a conviction. The section provides:

Mr Skinner was fined $500 and ordered to pay $49.25 costs of court, with default imprisonment provided. There is an appeal against the amount of the fine, as well as against the determination that the offence charged had been committed.

In respect of penalty, the appeal was based on an alleged lack of parity with a fine of $300 imposed on one McCormack, one of the prosecution witnesses, when he pleaded guilty to what was described as being an offence of possession of property stolen or suspected stolen under the Criminal Code. McCormack had a serious drug conviction, for which he had been sentenced to a substantial term of imprisonment. I will say at the outset that the disparity Mr Skinner complains of is not, in my experience or opinion, greatly out of line with allowance to McCormack of the customary discount for an early guilty plea. The penalty cannot be regarded as manifestly excessive; the appeal against penalty fails.

The appeal against conviction is a much closer thing, but in the end fails too. The magistrate succumbed to a couple of basic errors, which I take it do not reflect the general practice in Magistrates Courts deciding questions of guilt or innocence summarily. If they do, it is important that the practices stop.

The case was one in which there was no issue regarding identity of the putative offender, or the date and fact of his possession of a Ford utility. The only question was whether the prosecution showed the vehicle was one “that may reasonably be suspected of being tainted property”.

I reserved giving judgment in this matter in order to review the entire transcript, and as much of the material before the magistrate in Exhibit 4 as was available to me. This was necessary because at the hearing of the appeal, counsel, sensitive of the pressures on the court's time given the heaviness of the list, presented rather attenuated arguments; those showed the errors that were made, but left it uncertain what merit, if any, there was in Mr Fuller's argument, for the respondent, that, in the end, those errors led nowhere. I have decided that Mr Fuller is correct. The exhibits tendered during examination in chief of the prosecution witnesses were not available to me. It seems clear they would only have gone to strengthen the prosecution case. The appellant gave no evidence, but called one Charrington to give evidence for him. The magistrate clearly did not accept Charrington as a credible witness; his account of the provenance of the vehicle cannot be reconciled with that which the appellant had given police (to the extent that it is set out in the magistrate's reasons).

The evidence in chief of the prosecution witnesses enabled the magistrate to be comfortably satisfied beyond reasonable doubt that the witness McCormack left his Ford utility with a man known as Buddha to have some work done on it. What he was given back in exchange was a superior vehicle which had not long before been stolen from Mr Joseph Jerard Tully (in fact one supplied to him by his employer). McCormack's vehicle was the one found in the appellant's possession on 13th February 1995. It had been “re-identified” to use the terminology adopted at the trial. It was now red, formerly having been white, and its registration number was 158 CLR.

The magistrate could also comfortably find beyond reasonable doubt that when Tully's vehicle (a later model with considerably fewer kilometres up) was handed over to McCormack it had been “re-identified” by having attached to it the Victorian number plate EKI 088 and the “compliance plate” which had been attached to the vehicle McCormack left “for work to be done on it”. When the Victorian registration expired, McCormack registered the vehicle in Queensland as 484 CSL.

The “re-identification” of the vehicle found in the appellant's possession included two items from another Ford utility, which had been owned by Mathew Anthony Williams, and was sold to Logan City Wreckers when the insurer deemed it not worth repairing after a collision. Those two items were the compliance plate (which Williams had not retrieved when he took his registration plates to the Department of Main Roads for cancellation of registration and a refund) and the chassis number, which had been cut out in a rectangular block and welded into the allegedly “tainted” vehicle the appellant had. Logan City Wreckers (whose correct name may be Logan City Auto Parts Recyclers) which bought Mr Williams' utility from him sold it, or at least the front half and the left hand rear quarter panel, to Queens Road Smash Repair, which is the firm of the appellant, Mr Skinner.

It seems to me unnecessary to go into any detail here in respect of other issues covered in evidence at the trial such as that of the police officer Alan Francis Neil, who gave his opinion that, contrary to what Mr Skinner had told police, 158 CLR was an intact vehicle, not one created by welding together parts of disparate vehicles in a “cut and shunt” exercise. Neil's evidence was challenged by the defence, which would appear to have shown that Mr Neil could not distinguish between welds which might have been done in the Ford factory, and welds done to join panels in a local workshop. In my opinion, the facts referred to above, which the evidence amply showed, would justify a court in finding beyond reasonable doubt that 158 CLR might reasonably be suspected of being tainted property. Not only had it been “re-identified”; it was the price given by McCormack in exchange for a superior and more valuable vehicle which he admits he knew to have been stolen. I would say that each of the paragraphs of s. 13(1) defining “tainted property” applies. The Ford utility which is truly McCormack's (for present purposes, at any rate) was used by him (and perhaps by Buddha too) in connection with the serious offence of which McCormack was convicted. Buddha, for purposes of (c), derived McCormack's vehicle from the commission of McCormack's offence. For purposes of (b) it may also be that Buddha (or someone else) “derived” what became 158 CLR from McCormack's property, in the sense that some identifying parts of McCormack's property went back to him, to be replaced in due course by some other component(s).

Section 92(2) of the Crimes (Confiscation) Act imposes an onus of proof on Mr Skinner if he had wished to rely on the defence it describes. In the circumstances, the evidence presented by or otherwise emanating from him was considered worthless by the magistrate, an approach he was entitled to take. In practical terms, Mr Skinner made things worse for himself by presenting inconsistent accounts.

The magistrate erred in permitting the prosecutor to cross-examine her witness Collins. There was a rational basis for the magistrate's determination that Collins, effectively representing Logan City Auto Parts Recyclers, became a defence witness, for the purpose of casting doubt on the reliability of Neil's evidence. He had plainly co-operated with the defence, to the extent of providing offcuts from vehicles which were used in experiments in which it is a reasonable inference Collins was complicit. The point was that Neil could not distinguish Ford factory welds from local workshop welds.

There could have been no suggestion that Mr Collins was a prosecution witness who proved hostile, in the sense of departing from a statement of the evidence he intended to give. He performed his expected task of recounting what happened to Williams' Ford utility. If it were demonstrated he had become a hostile witness, the prosecutor could have been permitted to cross-examine. He did not become hostile merely because he gave evidence which assisted the defence. One of the purposes of cross-examination of a prosecution witness is to bring out things which the prosecution witness may usefully be able to say in aid of the defence. There is no property in any witness; Mr Collins did not become hostile or indeed do anything improper by co-operating with the defence to the extent he did. The idea that Collins became a defence witness, amenable to being cross-examined by the prosecution, has a logical appeal; logic, and perhaps fairness, would seem to dictate that the prosecution be allowed to cross-examine, at least on the evidence which was given “for” the defence (assuming that a more neutral characterization, such as “relevant evidence which the court might find useful” is not more correct). However, the life of the law has not been logic (Justice Oliver Wendel Holmes being the best known proponent of that truth), and, in my view, a prosecution witness retains that character, whatever may follow his evidence-in-chief (unless of course, he is called in the defence case), and ought not to be permitted to be cross-examined by the prosecutor except on some established basis. There is none here.

The prosecutor did not apply for leave to cross-examine. Following on his cross-examination by defence counsel, in “re-examination” Mr Collins had identified Mr Skinner as a tradesman “able to do work that is undetectable.” Just to rub it in, there came a further question:

This attracted an affirmative answer, an objection from Mr Wilkin to the leading and the assertion that this was cross-examination of a prosecution witness. The magistrate then said in a ruling which he persisted in, after considerable argument:

When Mr Wilkin protested that the prosecution could not permitted to cross-examine their own witness, the magistrate disagreed.

Those who would like the courts to adopt procedures calculated to elucidate the truth would agree with the magistrate. However, his ruling breaches the time-hallowed rules of evidence traditionally adjudged applicable in our adversary system.

In fact, no further cross-examination followed. Anything that Mr Collins did say in re-examination could have been got out by re-framing questions. Mr Collins showed no disposition to conceal anything or be difficult. I can see no prejudice whatever flowing to Mr Skinner from the magistrate's rather bold ruling. It may be accepted that Mr Neil's evidence that 158 CLR was an intact original vehicle was an opinion he was not qualified to give. Setting it aside entirely, McCormack's evidence, if credible, and the magistrate thought it was, notwithstanding his criminal history, showed the vehicle was his, with reference to a considerable number of particular features all over the vehicle.

Turning to the next points, which relate to the magistrate's admission into evidence of the whole of the statements of McCormack and the investigating police officer Wild (on “the basis that the entirety of that document is now admissible and that the contents of it form part of the evidence in relation to this trial” - page 30), Mr Fuller conceded (page 21 of the transcript of the hearing of the appeal) that there was no basis for the tendering of the statements into evidence. Mr Fuller referred to the power the magistrate had under s. 19(2) of the Evidence Act 1977 to direct that the statement go into evidence; he conceded that the normal grounds for that were to enable matters cross-examined upon to be put into context by examination of the whole or relevant parts of the statement. I inferred Mr Fuller conceded that nothing in Mr Wilkin's cross-examination below necessitated admission of the statements. Mr Fuller's submission, with which I agree, was that there is no reason to think that the magistrate allowed himself to be influenced by any inadmissible material in those statements. This would seem particularly the case where he had specifically refused to accept evidence in chief on certain aspects, including the supposedly widespread criminal activity of stealing motor vehicles, “re-identifying” them, even reconstructing them by “cut and shunt” operations, and the like.

Although I do not have the exhibits, the Magistrates Court file transmitted to the District Court includes what appear to be police statements of Detective Senior Constable Stephen Roy Wild (6th March 1996) and Stephen John McCormack (18th November 1995). Having considered each statement in full, I agree with Mr Fuller that the major factual issues covered in each of them were already before the Court by way of examination in chief and cross-examination. I suppose that the magistrate might have derived some comfort, if he actually read those statements before handing down his decision, from the consistency the witnesses demonstrated in what they had to say over a few months on the essentials.

The rules regarding when a document cross-examined upon becomes admissible are complex. There is little helpful authority. Magistrates could find much guidance in McPherson J's judgment in R v McGregor (1984) 1 Qd.R. 256, 264-65. See also Cross on Evidence (Australian Edition) 17240, 17570 and 3 Wigmore on Evidence 762 and 2125.

The final point argued by Mr Wilkin seems, on the face of it, more serious. The magistrate admitted in his evidence in chief as Exhibit 5 (I have not seen it) a list prepared by McCormack in advance of his being asked to look at 158 CLR of features of his Ford utility which would enable it to be identified, such as certain damage, repairs and alterations. It could have been admitted in civil proceedings under s. 92 of the Evidence Act 1977, but not being a business record, was not admissible under s. 93 in these criminal proceedings. This was a self-serving statement, and its tender perhaps an example of the “practice of anticipation of ... challenge and the premature attempted rebuttal of ... challenge” to a prosecution witness' evidence which the Court of Criminal Appeal condemned in R v Connolly (1991) 2 Qd.R. 171, at 173-4. In the actual circumstances of the trial, requiring McCormack to try to recall as many of the points of identification as he could as he sat in the witness box would have been rather silly. At no point was his identification of 158 CLR as his utility challenged. It would have been entirely proper for McCormack to be permitted to use the document to refresh his memory, as a contemporaneous (one might say pre-contemporaneous) note of what happened when he examined 158 CLR. The end result would have been much the same. The document ought not to have been admitted as part of the prosecution case in the way it was.

Mr Wilkin has demonstrated errors by the magistrate, in the reception of evidence and the determination that the prosecutor could cross-examine Collins. It does not seem to me there is any real likelihood that any of those errors led anywhere, in the sense of prejudicing Mr Skinner. This court's powers in this appeal appear from s. 225 of the Justices Act:

My understanding is that the appeal to the District Court under s. 222 and following sections has been assimilated with that to the Court of Appeal or a Supreme Court Judge under the Order to Review procedure set out in s. 209 ff. The powers available to the Court on return of an Order to Review under s. 213 are set out more extensively than is the case in s. 225. One consequence, revealed by R v His Honour Judge Dodds and the Stipendiary Magistrate at Emerald; ex parte Smith and Graham (1990) 2 Qd.R. 80 is that a District Court Judge under s. 225 has no jurisdiction to remit a matter to the Magistrate: compare s. 213(1)(d) and (e).

The feature of present concern to me is the absence from s. 225 of anything resembling the familiar proviso in s. 213 which is presently sub-s. 1(A):

The considerations in respect of that proviso are similar to those applicable to the proviso in s. 668E of the Criminal Code: Dunn v Elberg, ex parte Elberg (1979) Qd.R. 571.

In my opinion, though no “proviso” specifically applies in a s. 222 appeal, a District Court Judge may decline to interfere with a Magistrate's order or orders if of opinion that they produce a “just” outcome, or that no other order would be “just”. Dunn v Elberg at 576 offers some useful propositions, supported by authority; the first (obvious) one is that the prosecution bears the onus of showing there is no substantial miscarriage of justice for purposes of the “proviso” or any analogy, further, “the fact that inadmissible evidence has been admitted does not prevent the proviso being applied.” In Maloney v Welch, ex parte Welch, (1933) St.R. Qd. 217, the Full Court held that a conviction should not be quashed merely because evidence which was confirmatory was wrongly admitted as evidence in rebuttal. Of course, there are cases decided the other way, and probably more of them, as the list in Kennedy Allen, The Justices Act (Queensland) (3rd) 505 amply demonstrates. Of particular assistance, perhaps, is Armat v Little, ex parte Little (1909) St.R. Qd. 83, in which four judges sat in the Full Court. They thought it reasonably probable that the magistrate's decision was influenced by evidence of a medical practitioner inadmissible because it was not expert evidence on a matter of medical science, but an expression of opinion upon a matter of legal and moral duty. At p. 87 in the judgment of Cooper CJ is a useful statement of principle, adopting other authority:

In a case such as the present, where multiple errors appear, it is of course the cumulative effect of the irregularities which must be considered, and which may make a trial unsatisfactory, notwithstanding that, considered separately, each irregularity might not have the same vitiating effect. See R v Bathgate (1946) 46 S.R. N.S.W. 281 : 63 W.N. 173. Even so, the only conclusion I can come to in this case is that the deficiencies in what happened before the magistrate did not affect the ultimate decision, and that no other order(s) than what was ordered below would be more “just”. The appeal is dismissed. (I ought to mention Mr Wilkin's submission, in his well organized and presented argument, that the magistrate also erred when he rejected a submission of no case to answer. There is authority that no appeal lies from such a ruling: Schneider v Curtis (1967) Qd.R. 300.)