Ferguson v Heilbronn[1997] QDC 175

CIVIL JURISDICTION

JUDGE BRABAZON QC

and

BRISBANE

DATE 06/06/97

JUDGMENT

HIS HONOUR: This is an appeal against conviction under the Justices Act. Mr Heilbronn was convicted before Mr Hine SM on 29 November last year of one offence against the provisions of section 40(b) of the Fair Trading Act.

Two grounds were mentioned in the original notice of appeal to this Court. A second notice of appeal has been filed on 15 May which now raises four grounds, and that immediately raises the issue of whether or not there is power in this Court to amend such a notice of appeal. The decided authorities go both ways. The narrow view is there is no right to add a new ground of appeal which raises a completely different matter. See Bone v. Steffens 1972 66 QJPR 99 and to the contrary effect, Callender v. Edwards 1972 66 QJPR 102. The more liberal view was followed by Judge Lowenthal in Cowan v. Mergard 1974 2 QLR 292. In that case the Judge was of the opinion that section 228 of the Justices Act should be construed widely to allow the introduction of new grounds of appeal. In my view, the liberal view is the correct one and I follow that line of authority. Therefore, there is no reason not to proceed on the amended notice of appeal to consider the new grounds.

I should say that ground one, which was always in the original notice and relates to the consent of the Commissioner for Corporate Affairs, was not a live issue. Therefore, there are three issues to be considered in this appeal: whether or not there was sufficient evidence to support the finding that the representation was false, in particular with regard to the continuity evidence about the possession and control of the computer; that there was a miscarriage of justice because of some events that happened during the trial and that there was a fatal error in the procedure in that two complaints were heard together contrary to an order of the Magistrates Court.

It is convenient to deal with the last point first. The matter came on before Mr Smith SM on 18 and 19 September 1996. Mr Fisher appeared for the complainant; Mr Heilbronn appeared in person. The matter has been recorded and it appears that on the second day Mr Heilbronn made a submission to the effect that it was improper for the two complaints to be heard together.

It seems clear enough that the Magistrate was persuaded to accept that submission because his handwritten order of 19 September 1996 includes this notation: “The hearing of the matters of complaint as a joint hearing is called to an end. I order that separate hearings commence de novo.”

Looking at the transcript it is apparent that the Magistrate was very annoyed with Mr Heilbronn for a number of reasons, not all of which appear to have been justified. He made a relatively large order for costs against Mr Heilbronn because of the circumstances which led to the trial coming to an end before him. As it has happened, that order for costs was itself the subject of a notice of appeal. That appeal has been allowed by consent, it being conceded that the costs order could not be sustained.

The point to be made here is that the actual order of the Magistrate seems to have been rather obscured, at least from the point of view of those appearing before him because of the other factors which concerned the Magistrate at the time. It seems to be the case that when the hearing commenced again that afternoon on 19 September before Mr Hine SM that neither Mr Fisher nor Mr Heilbronn had any clear understanding about the order for separate trials.

Looking at the transcript before Mr Smith it seems that very little reference was made to his actual order. It is quite possible to understand their lack of appreciation of what had happened.

There then followed a lengthy argument before Mr Hine as to whether or not there should be separate trials. Mr Heilbronn renewed his objections at greater length than he had mentioned to Mr Smith and it is fair to say that Mr Fisher, for the first time, outlined his support for joint trials at length. The Magistrate, in the course of that argument, observed that he was not bound by the ruling of the earlier Magistrate. In due course he went on to consider the submissions and the authorities which he thought applied and then decided that there should be a joint hearing. In the result, both complaints proceeded together and, as appears from the reasons of Mr Hine after about five and a half days of hearing, he dismissed one complaint but entered a conviction with regard to the one that is now before this Court.

Complaint is made about his doing that, it being said that the disregard for Mr Smith's order was, in a procedural sense, a fatal error so that all the proceedings thereafter were vitiated. At least it is said that Mr Heilbronn is entitled to have his conviction set aside on the second complaint because of what happened.

Mr Smith, for Mr Heilbronn, refers to the decision of the High Court in The Queen v. Rogers 181 Commonwealth Law Reports at 251. I have read that case. It is, in substance, an appeal to the High Court about the application of issue estoppel principles to criminal trials. In short, on the facts there, the High Court thought that a ruling of inadmissibility of a confession in a first robbery trial should not allow the Crown to proceed on later robbery trials in which it sought to rely on the admissibility of that very same confession. Those principles have nothing to do with what happened here. There was not a trial, at least a completed trial, before Mr Smith. Rather, his ruling was a procedural order that seems to have been ignored.

My attention was drawn this morning to section 147A of the Justices Act which gives later justices power to reopen proceedings and rectify certain orders. Section 147A(2) says this:

As was pointed out, this was not an error of fact and so on its face section 147A does not justify the course that was taken. (For a discussion of that case see the Full Court of Queensland in Boyd v. Sandercock 1990 2 Queensland Reports 26.) No other authorities were referred to in support of this submission.

In principle, in my view, the answer is this: what happened was an irregularity but both parties by their conduct consented to the course that was adopted. That is, there was further argument about the question and then submission to the new order made by Mr Hine. There is no sign in the transcript, as far as I am aware, in the days that followed that any objection was taken to that course.

I should say that Mr Fisher and Mr Heilbronn on his own behalf were replaced by counsel who appeared for the major part of the trial before Mr Hine when it started again after an adjournment to 25 November 1996. No objection was taken to the course that the Magistrate had adopted.

Secondly, and importantly, counsel for Mr Heilbronn here does not suggest that in substance any injustice was caused to his client because of the course that was adopted. There is no complaint about the reasons in suggesting that something learned from hearing the first complaint was improperly used to support a conviction on the second. Under those circumstances, it seems impossible to complain now about what Mr Hine did.

The next point relates to the miscarriage of justice. To understand the complaint it is necessary to read the affidavits read before me by Mr Heilbronn and Mrs Heilbronn. In substance, the complaint is this: that if counsel for Mr Heilbronn had properly appreciated his client's instructions he would have led from his client evidence of complaints, or, the absence of complaints, about a large series of computers. The complaint records are set out in Mr Heilbronn's affidavit and identified as GRH1.

On her part, Mrs Heilbronn would have wished, she says, to introduce evidence relating to the sale of this computer. The effect of her evidence would have been to say that a mistake was made by the salesman, Mr Cochrane, who ended up giving a different computer to the consumer, Mr Chambers, compared to the computer that he had ordered. Particular computers were made to a customer's order and some time elapsed between the receipt of the order and the delivery of the end product. She says a mistake was made and the wrong machine was handed over.

It must be said that the evidence in this Court and the transcript itself does reveal some irregularities or difficulties in the relationship between counsel and Mr Heilbronn. It may be that counsel misunderstood his duty under the usual rule, that counsel for a client who is being cross-examined is restricted in speaking to the client, immediately at least, about the subject matter of the cross-examination.

The transcript records that Mr Heilbronn felt obliged to attempt to speak to the Magistrate because of his distress. It also seems likely that he consulted an independent solicitor. That is indeed an alarming step for a client to have to make during the course of a hearing.

Cases dealing with counsel's position were mentioned to me. The leading one is The Queen v. Birks 1990 19 New South Wales Law Reports at 277. There, Chief Justice Gleeson, at page 685, set out the relevant principles at length. In substance, the position seems to come down to this - that where a miscarriage of justice is alleged to have taken place because of the actions of counsel, the courts will not lightly accept such a ground of appeal but will do so where there has been a miscarriage of justice. In that case, something described as “flagrant incompetence” was recognised as one of the reasons that would lead to a miscarriage of justice.

Here, the evidence did not include any response from counsel about what happened between him and Mr and Mrs Heilbronn. However, it was not necessary to consider such evidence, in any event.

It is necessary to keep in mind what the trial was about in reaching a view about the importance of the evidence which, it is now said, was not properly before the learned Magistrate and which may have resulted in a different view being taken of a matter that he had to consider.

The charge alleged that Mr Heilbronn's company, of which he was a director, in trade or commerce in connection with the selling of personal computers of the brand name “Blue Star” made a false representation to Mr Chambers' company, that the goods were of a particular composition. Particulars were given to this effect: that Mr Heilbronn's company falsely represented to Mr Chambers' company that the central processing unit contained within its personal computer, the Blue Star Mini-Tower computer, was a 486 DX2-66 central processing unit when a 486 DX2-50 central processing unit was in fact contained in that personal computer.

It appears from the transcript that the issues before the court and between the parties were further illustrated by an exchange of letters asking for particulars. The Crown Solicitor's letter is dated 15 August 1995 and counsel have given me a copy. In a response to a question asking for the actual terms of the false representation the response was this: “That the computer supplied (to Mr Chambers' company) contained a 486 DX2-66 MHz central processing unit.” The letter went on to say that the false representation was made by way of invoice number 0126. That invoice became Exhibit 12 at the trial and describes the subject matter of the sale as one computer being a “486 DX2-66 MHz Blue Star 256K Cache Ultima Series Mini-Tower Computer”.

In addition to those particulars it is worthwhile to make reference to what was said by counsel for Mr Heilbronn at the trial. The reference appears at pages 17 and 18 of the transcript for 26 November. Counsel said this with respect to the admissibility of certain evidence:

I was referred this morning to a decision in the Federal Court with regard to a charge involving the quality of wine. The report is in the case of Trade Practices Commission v. The Vales Wine Company Proprietary Limited, Federal Court of Australia, Number 346 of 1996, Judgment 11 December 1995. At page 22 in a discussion of what the prosecutor had to prove. It was held that it would be sufficient if the prosecution proved beyond reasonable doubt that the wine that was sold either did not match the specific order or in other cases failed to match to one or other of the minimum requirements of the P4 standards. A submission that the Prosecution had to prove the actual composition of the wine was dismissed.

In the present case, it seems clear to me that what the parties were really contesting, or rather, what the Crown was setting out to prove beyond a reasonable doubt, was that Mr Heilbronn's company had supplied a computer with a central processing unit of a different specification, compared to the specification that was ordered. That was really quite a simple issue. It seems to have been established that the specification mentioned in this case, 486 DX2-66, was a familiar one to those in the industry and could be contrasted with a range of other specifications required for different sorts of computers.

It was therefore beside the point to go into a long debate about the actual quality of this computer and its central processing unit. A lot of unnecessary time at the trial was taken up with an irrelevant issue, and that was Mr Heilbronn's defence raised under section 97 of the Fair Trading Act to the effect that “the contravention in respect to which the proceeding was instituted was due to reasonable reliance on information supplied by another person.”

It has become clear that a large part of the trial was taken up with an attempt by Mr Heilbronn to demonstrate that he relied on the information of others, and did so reasonably, to the effect that a Syrex DX2-50 central processing unit would do an adequate job and at least to the standard of one which would be done by a 486 DX2-66. However, in my opinion, all of that defence was beside the point and evidence about it should not have been received. The purpose of the specification required by the contract between the parties was to have a certain piece of equipment installed in the computer. In doing so, the consumer relied on the ability of the manufacturer to supply that piece of equipment, to a specified standard. The consumer did not want to rely on Mr Heilbronn's views about whether or not a piece of equipment of a lower specification would actually do the job ensured by the higher specification. (It is revealing, that Mr Heilbronn's views were never mentioned to the consumer.)

It therefore follows that the complaints about a miscarriage of justice are equally irrelevant. Something strange may have happened at the trial, but it is unimportant because the evidence could not have availed Mr Heilbronn in any way. The trial should have concentrated solely on the question of the specification of the chip supplied. Was it a 2-66 unit or a 2-50 unit? Therefore, in my view, there is no question of miscarriage of justice to be considered here, and there is no need to consider his counsel's recollections of what actually happened.

That leaves the question of “continuity”, as it was put in this case. Mr Chambers picked up his computer from Mr Cochrane, the salesman, and used it for some months and then began to complain of some difficulties. One has to read his evidence to understand fully the sequence of events that happened, but in essence it is this: that his son, Aaron, who is 16 years old and who had an interest in how computers worked, seems probably to have taken the cover off the computer and looked at the parts before informing his father that it was not a 2-66 CPU but a 2-50 CPU. He then took the cover off again, it seems before reporting that fact to his father. Those events led to the present complaint. There is also evidence that the computer may have been taken to some experts under the name of Techmart to check the description of the CPU.

The point of all this is that it is said for Mr Heilbronn that the Crown was not able to demonstrate beyond a reasonable doubt that Mr Chambers, or his company, was actually given a computer with a smaller central processing unit than the one ordered.

Some different pieces of evidence are mentioned which bear on that question. First, it seems to be the case that Mr Heilbronn's companies which assembled the computers had in stock central processing units of different descriptions. At least in a theoretical sense it is possible that one of them actually found its way into this particular computer. I say “possible” because it was the evidence at the trial and accepted by the Magistrate that it was the uniform practice of Mr Heilbronn's company to install central processing units of a 2-50 level in units which were sold as a 2-66 level. The evidence was that if a well informed consumer asked for an Intel 2-66 CPU, that would be actually supplied and that a note would be made on the order form or the bill sheet to that effect. There is no evidence at all in this case that Mr Cochrane or Mr Chambers discussed such a particular requirement. There is no mention in Mr Chambers' evidence that he did so and it was not suggested to him in cross-examination that he may have done so.

It also seems, at least theoretically, possible that a more powerful chip of the Pentium brand could find its way into a computer but there is no suggestion on the facts that that actually happened here and there is no reason why it should have done so.

That leaves the question of the boy's activities. It is certainly true that in criminal cases the Crown must prove every element of the charge beyond a reasonable doubt and that also includes reasonable hypotheses consistent with innocence that the Crown cannot exclude. Such reasonable hypotheses often arise when there is an absence of continuity in the treatment of such things as blood samples and dangerous drugs. It is easy to see that unless a careful and continuous track is kept of such things there is the possibility of mistake or deliberate substitution of a sample that can lead to an inaccuracy in the Crown case and ultimately a miscarriage of justice.

However, to my mind, it is impossible to make that complaint here. The actual computer which was given by Mr Cochrane to Mr Chambers was always the one within Mr Chambers' possession. The most that can be said is that his son had an opportunity to take the cover off and look at the CPU on an earlier occasion. It was not suggested to Mr Chambers that his son Aaron either had the capacity or the money or the opportunity or the inclination to change, of his own volition and saying nothing about it, the central processing unit. That is the possibility which it is suggested may have happened here.

The Magistrate dealt with the question in his reasons by saying this:

The Magistrate was fully entitled to come to that conclusion. Any speculation to the contrary is fanciful and does not fall within the continuity line of cases that insist upon a strict link between every piece of custody into which the questioned material came.

There is nothing in this ground of appeal. It follows that the appeal against conviction is dismissed. It is agreed that there should be no order as to costs.