Koorey v Cohen[1998] QDC 94

“Distribution of Printed Matter

3. (1)
   lack of satisfactory proof identifying the defendant as the person who handed over the document;

3. (2)
   the insufficiency of the handing out of a single publication as “a distribution”;

3. (3)
   the prosecution's failure to exclude any operation of s. 6(2);

3. (4)
   the failure to define “road” in the definition of “Public Place” was claimed to have revealed s. 6(1) as ultra vires - this point not being pursued at any length by Mr Wensley QC, understandably in the circumstances recounted above which doom it to failure.

“For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch (1955) 91 CLR 512, at pp.519-520.”

“The appellant was charged with carrying out development for a prohibited purpose by a complaint brought under cl. 73(3) of the Schedule to the Order in Council approving the Town Plan for the City of Brisbane. She had allegedly used premises for the purposes of a shop, a purpose prohibited in the Future Urban zone, unless the use was an existing non-conforming use. The complaint averred that the development was not made lawful by Part III of the Town Plan, nor by s. 33 (1A) of the Local Government Act, 1936-1985. Those provisions preserve the legality of existing non-conforming uses.

The appellant called evidence relevant to whether there had been an existing non-conforming use of the premises but was convicted by the learned Stipendiary Magistrate who found that the appellant carried the onus on the balance of probabilities of establishing that there was an existing non-conforming use and had not discharged that onus.

Upon appeal,

Held: (1) That the onus of proof of the complaint beyond a reasonable doubt, including the onus of excluding the possibility that the development was an existing non-conforming use, lay at all times on the prosecution.

(2) The averment in the complaint was an allegation of a matter of law not of fact and did not constitute prima facie evidence of the matters alleged.”

“The words of the offence constituted by cl. 73(1)(e) of the 1978 Town Plan Schedule have already been quoted but they may be repeated here:

“Subject to the provision of Part III, no person shall-

...

It is Part III which contains the references to the legality of non-conforming uses. The first difficulty which the respondent's argument has to meet is that the very words which bring the matter of the offence into being are, in point of expression, introduced by the words “subject to the provisions of Part III”. It is a matter of construction of legislation whether all of the ingredients specified are matters for proof by the prosecution or whether the prosecution has merely to prove some lesser proposition with certain qualifying matter made available for proof by a respondent as an exception by way of defence. Youngberry v. Heatherington [1977] Qd.R. 15 was referred to. In that case the relevant provisions, s. 113(1) of the Meat Industry Act 1886-1975 provided: “Except with the permission of an inspector, a person shall not...” and the majority of the Court held that, under this provision, it was for the prosecution to prove the absence of a relevant licence. In deciding such basic matters of construction, it may be necessary to decide whether the legislation refers to actions as exceptionally removing conduct from the category of unlawfulness which would otherwise attach, or whether there more truly exists a limitation upon the ambit of operation of the basic offence, so that the scope of illegality is itself restricted by the statutory definition of the offence. The contrast may be between the case of there being no offence at all except for one limited and restricted by the totality of the statutory wording, or there being, on the other hand, a broad offence defined with particular actions, or conduct selected as constituting, by way of exception, a possible avenue of removal from the arena of illegality. In Dowling v. Bowie (1952) 86 C.L.R. 126 at 139 Dixon C.J. dealt with the problem as did Williams and Taylor JJ. at 144. The question is not to be answered merely by considering the form but by regarding matters of substance.”

“76. If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant's defence.”

“Subject to the provisions of Part III, no person shall- ...

1. “2
   The objects of this local law are to:

“It is difficult for me to imagine how things could be distributed to one person only. According to Murray's Oxford Dictionary the verb distribute comes from the Latin word distribuere. Dis means in various directions, and tribuere means to assign, grant, deliver. In this case the delivery of the handbill was made to one person only. The word distribute connotes the delivery of something to several persons.

R v McNiven [1944] 1 WWR 127 at 128, per Doiron J”

“The word “distribution” seems to indicate the handing out of more than one article to more than one individual.

R v Fraser, Harris & Fraser Book Bin Ltd (1965) 52 WWR 712 at 717, BCCA, per Maclean J”

“The words “give out” and “distribute” are synonymous; the relevant sense of the word “distribute” is “to deal out or bestow in portions among many” and the expression “give out” in its relevant sense means “to issue; to distribute”: see Shorter Oxford English Dictionary. The composite expression does not signify an act intended to be done in isolation, but the use of the singular, “bystander or passer-by”, shows that an offence will occur although the article is given to one person only.”

1. “2.
   At all times, the respondent bore the onus of proving the guilt of the appellant, beyond a reasonable doubt. This “legal” or “persuasive” burden never shifts: Woolmington v. DPP [1935] AC 462, especially per Lord Sankey at 481. The onus lay on the respondent throughout. It obliged the respondent to prove all elements of the offence and to disprove any defences raised during the hearing: He Kaw Teh v The Queen (1985) 157 CLR 523, especially per Gibbs CJ at 537 and Dawson J at 592.

1. 3.
   In particular, the onus lay on the respondent to prove beyond a reasonable doubt that the appellant, and not some other person, committed the relevant act, this being an essential element of the offence. There was no onus on the appellant to prove that he was not the man in the photo, and the learned magistrate was in error in approaching the matter on the basis that the appellant was obliged to do so: see T18.48 - 19.10; T 19.35; T 20.15; T30.45; T 45.25 - 46.10; Reasons p 1.8 - 2.2.

1. 4.
   The relevant evidence was to the effect that -

1. 5.
   In these circumstances, the defendant discharged the evidential onus, in the sense of raising the question of identity as one calling for resolution, and the learned magistrate erred in approaching the matter of that resolution upon the basis that “there is no evidence before the Court to suggest that the summons was served on someone other than the person identified by the photo Ex 4 and to whom the name and address refers as per his interview and the summons and affidavit of service” and upon the basis that, in effect, it was incumbent for the defendant to call evidence to show that, or tending to suggest that, he was not the man in the photograph: Reasons p 2 and eg T 45.25; T 45.48 et seq; and especially T 30.45 where the magistrate said to Mr King, who acknowledged that he represented the person who had received the summons “the onus would be on you, I would suggest, to substantiate the fact that your - the person that you're representing is not the person who had identified himself and who is the subject of the matter - the complainant and as I repeat if you substantiate that to all intents and purposes under the Justices Act, it's deemed to have been served on the defendant by virtue of the particulars that have been given and the affidavit of service.... ”.

1. 6.
   To paraphrase the remarks of Dawson J in He Kaw Teh (supra), there is no justification for regarding the defence of mistaken identity as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will, in most cases, fall upon the accused. But, during the case for the prosecution, sufficient evidence might be elicited by way of cross-examination or otherwise to establish identity as a question or to cast sufficient doubt on the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove that he is not the man in the photograph upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done by raising the question of identity. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

1. 7.
   That the question or doubt may be raised by argument as well as by evidence is established by the House of Lords' decision in Brown v Rolls Royce Ltd [1960] 1 All ER 577 per Lord Denning at 582.

1. 8.
   Once the question of identity properly was raised, it was the learned magistrate's duty to consider all of the evidence on the point and to determine whether the prosecution had established, on the whole of the evidence, that the man in the photo was the defendant: Gibbs CJ in He Kaw Teh (supra) at 535. If he was not satisfied beyond a reasonable doubt that this was established, he was bound to dismiss the complaint. While there was evidence from which, taken alone, the magistrate might have inferred that the man in the photo was the defendant, (eg because that man gave the defendant's name and part of the defendant's address), he was obliged to weigh that evidence against evidence tending in the other direction - the refusal to produce an ID; the fact that the man in the photo was not known to the prosecution witnesses; the fact that the man did not know the street number of the defendant's unit when, if it had been the defendant volunteering his name and address, he would have been expected to know the full address; the fact that there had been no check with the business proprietors; the conflicting evidence about whether the man volunteered a birth date; the failure to check identity with a licence photo; the failure to check at the defendant's address etc. Had this task been performed, it is unlikely that the magistrate would have concluded that the prosecution had discharged the onus and proved the matter of identity beyond a reasonable doubt. However, that is beside the point; the point is that this task was not performed at all because, contrary to law, the magistrate decided the case on the basis that, some evidence having been adduced from which an inference of identity might be made, a positive onus fell upon the respondent to prove to the contrary. This is the fundamental point to which Viscount Sankey referred in Woolmington v DPP. Failure to follow the law in that regard in this case, as revealed by the magistrate's comments during the hearing and in his reasons, is a fatal flaw in the decision and must mean that the appeal succeeds.

1. 9.
   The learned magistrate's reliance on the affidavit of service, which was not in evidence, further fatally infects the decision with error or law.”

2. “(i)
   The failure of the accused to give evidence is not of itself evidence. When an accused elects to remain silent at trial, silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. But it is not to deny the right; it is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.

2. (ii)
   The trial judge was correct in his view that this was an appropriate case in which to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence. The prosecution case was that the jury should draw from the evidence the inference, not only that Bayerl and Zack were dead, but that they were murdered by the appellant. Clearly those were inferences which were open upon the evidence. The inference was also open to the jury that involvement in the disappearance of Bayerl provided the opportunity for the theft of the Immanuel.

Per Brennan and Toohey JJ:

3. (iii)
   In Queensland and in other jurisdictions where there is no statutory prohibition against judicial comment, a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn. The jury should be told that the onus remains on the prosecution and that the accused is under no obligation to give evidence, but that it is legitimate to have regard to the fact that the accused has given no evidence or explanation or satisfactory explanation of the Crown's case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear.

4. (iv)
   No error appeared in the directions of the trial judge. The onus proof was correctly placed on the prosecution. The facts from which an inference of guilt might be drawn were correctly identified as facts which the prosecution was able to prove. The use to which the appellant's failure to give evidence might be put was correctly restricted to the strengthening of an inference of guilt from the facts proved. And the jury was told not to use the appellant's failure to give evidence unless relevant facts could be easily perceived to be in his knowledge.”

“On the hearing of an information for an offence the defendant who had been served with the summons did not himself appear, but was represented by his solicitor. The only evidence to identify the defendant with the offender was that the offender had at the time of the offence given, as his own, a name and address which corresponded with those of the defendant. The defendant was convicted.

Held, the evidence was admissible, and was in the circumstances sufficient to justify the conviction.”

“This case raises a point of some importance, but I should have regretted very much if I had felt bound to give effect to the point taken by the order nisi. I have come to the conclusion that I am not bound to give effect to that objection. I think there was sufficient evidence in this case that the person served was identical with the driver of the vehicle. I propose to justify that conclusion, not by any process of reasoning of my own, but by referring to the authorities that have been cited by Mr Little, and with a consciousness of the mischief which might follow from not acting in accordance with those authorities.

This last matter of the mischief following from a contrary ruling was referred to in the case of Martin v. White (j); but amongst a number of authorities on the main point which I propose to follow are Wilton v. Edwards (k), Reynolds v. Staines, (1), and to these I may add Hamber v. Roberts (m). In Reynolds v. Staines, the learned Judge, Baron Alderson, said of the person who had committed the offence that he was a person who called himself Staines - just as here the person who committed the offence called himself Thomas Carter, of Learmonth. And that suggests the reflection that, after all, the common way of identifying any person in the ordinary affairs of life is by his or her name. There are no means of ascertaining the name of any person other than by hearsay, with the one exception of the case of parents or other persons present at his christening; and when it is proved that a person goes by a name or passes under a name, that really means no more than that the person says or said his name was so-and-so. Of course, there may be many occasions, or there may be only one occasion, upon which he said so; but the result in practice is much the same whether it is on many occasions or on one only, if he uses the name publicly. Here, as far as the evidence is concerned, he only used the name to one person and on one occasion, that occasion being at the time of the commission of the offence.

I should find great difficulty in deciding as I do without the authorities to which I have referred; but, being much pressed with the trouble likely to follow from a contrary decision, I propose to follow them. Mr Monahan referred to the fact that those are decisions in cases of civil proceedings, while the present case arose upon a prosecution for an offence. As regards the admissibility of this evidence, I can see no difference between civil cases and any other cases.

When once it is determined that the statement as to the name is admissible in evidence, it lies then with the magistrates to decide whether it carries sufficient weight to justify them in recording a conviction; and when once they reach that stage I can see no reason why their minds should not be influenced by the common-sense consideration that is expressed by one of the Barons, namely, that the person served was represented in Court, and that if there had been a wrong inference drawn or attempted to be drawn, he, as the person against whom a conviction was sought, could without difficulty or trouble to himself at once have put matters right. I think the magistrates were entitled to take into account how the ordinary reasonable human being would act in those circumstances. That consideration goes only to the sufficiency of the evidence in the circumstances. The circumstances here could well have made that evidence sufficient which in other circumstances might not have been sufficient.”