Angas v Commissioner of Police [2017] QDC 78

DISTRICT COURT OF QUEENSLAND CITATION: Angas v Commissioner of Police [2017] QDC 78 PARTIES: ROSETTA NANCY ANGAS (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D10/16 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Gympie District Court DELIVERED ON: 3 March 2017 (reasons 7 April 2017) DELIVERED AT: Maroochydore District Court HEARING DATE: 3 March 2017 JUDGE: Robertson DCJ ORDER: Appeal allowed. Set aside decision on 17.06.2016. Order the Respondent to pay the Appellant’s costs of the Appeal fixed at $1,800. CATCHWORDS: APPEAL: where appellant charged with dishonestly causing a financial detriment; where prosecution particularised as her dishonesty alleged untruthful statements made to a witness; where the defence version was not put to the witness, but where the appellant had given that version to police soon after the event, whether his Honour impermissibly used the “rule” in Brown v Dunne in decisive findings as to credit, whether on a proper construction of a Local Law, the appellant had acted lawfully; whether his Honour had reversed the onus of proof. Legislation Criminal Code 1899 (Qld) ss 24, 408C(1)(e) & (3) Gympie Regional Council Local Law No. 2 (Animal Management) 2011 Cases Browne v Dunn (1893) 6 R. 67 Devries v Australian National Railways Commission (1993) 177 CLR 472 MWJ v The Queen (2005) 80 ALJR 329 -- 1 of 16 -- 2 R v MAP [2006] QCA 220 R v Dillon ex-parte Attorney General (Qld) [2015] QCA 155 COUNSEL: Stephen Kissick for the Appellant Alex Stark for the Respondent SOLICITORS: Mary Valley Law for the Appellant Commissioner of Police for the Respondent [1] The appellant was convicted on 17 June 2016 of a breach of s 408C(1)(e) of the Criminal Code, namely: “That between the 11th day of April 2015 and the 14th day of April 2015 at Gympie (she) dishonestly caused a financial detriment to Jesse Cedrick Zischke.” [2] A trial was held on 29 April 2016 before an acting Magistrate. The appellant was represented by Counsel. His Honour reserved his decision and gave a written judgment convicting the appellant on 17 June 2016. The date alleged in the original offence was 12 April 2015 and his Honour amended the charge to reflect his factual findings and no complaint is made about that. The appeal [3] A Notice of Appeal was filed on 19 July 2016. Only the conviction was challenged, and three grounds are pleaded: 1. The learned Magistrate erred in law by failing to apply the appropriate legal tests for dishonesty. 2. The learned Magistrate’s finding that the defendant’s mistaken belief was not reasonably held was not supported by the evidence. 3. The finding of guilt was unreasonable and cannot be supported having regard to the evidence. [4] The outline filed on 23 January 2017 was prepared by trial counsel and addressed these three grounds. A further outline was filed on 23 January 2017 by different counsel, Mr Kissick, in which leave was sought to include two other further grounds namely: (a) The Magistrate erred in law in his application of s 408C(3) of the Criminal Code; (b) The Magistrate erred in law in his application of the Gympie Regional Council Local Law No. 2 (Animal Management) 2011. The hearing below -- 2 of 16 -- 3 [5] The Magistrate first dealt with a challenge to the admissibility of a recorded telephone conversation between the defendant and Detective Jones of the Stock Squad on 19 April 2015. It is difficult to work out what Exhibit number the disc containing the conversation is, as it is marked both 2 and 5, and a transcript is also marked Exhibit 2. Nothing turns on it on appeal, but his Honour appears to have highlighted sections of the entire transcript including some sections that he excluded. The police officer was questioned on the voir dire and then the trial proceeded with him as the first witness.1 He received a complaint on 12 April 2015 from the complainant that a number of his cattle had been taken to the Gympie pound by his neighbour, the appellant, and the cattle had been impounded. He attended the next day and took a number of photographs which were tendered. By then the cattle had been returned to the complainant from the pound. [6] The police officer took a number of photographs, seven of which became Exhibit 1. Photograph 1 shows the scene from the complainant’s property into the appellant’s farm with vehicle marks going up a hill. Photo 2 is again from the complainant’s property showing the yards and shed on the appellant’s property. The police officer also pointed at vehicle tracks leading down to the common boundary with the appellant’s property. Photo 3 is of the boundary fence, and the police officer said that although it cannot be seen in this photograph the fence was broken to the left of the large tree that can be seen to the left of that photograph. He told his Honour that photograph 4 showed the piece of fence “with the top two wires that are broken from that fence.” Photo 6 and 7 are of the wire gates showing the strainer post that the gate is tied onto, and the police officer suggested that feed supplement can be seen on the appellant’s side of the property. [7] In his evidence in chief the police officer impermissibly, but without objection, expounded his theory based on these photos which was to the effect that the fence had been cut (but only the top two wires) and/or the gate had been opened and the cattle encouraged through onto the appellant’s land by her and/or her agent by putting feed on the ground. [8] So much is clear from his interview with the appellant on 19 April 2015. Exhibit 2, the transcript of that interview, has been marked by his Honour and apparently only 1 Transcript 1-38, L 16. -- 3 of 16 -- 4 that portion marked from p 9 has been admitted into evidence. This was when the police officer first told the appellant that he was recording their telephone conversation. She made it very clear to him that she had spoken to the complainant and that he had said that they were not his cattle, but it is apparent that she was talking about an incident that occurred a year previously when another mob of cattle got onto her property, from what she believed was the forestry area which can be seen in the photographs. She also made it clear that she thought the cattle in April 2015 were the same or similar cattle. She freely admitted that she opened the gate, but not to encourage the cattle to come into her property but rather to encourage them to leave. Her opinion was, if indeed they were the complainant’s cattle she thought they would go back onto their paddock. [9] She said (at p 11) “he… told me emphatically they were not his cattle last year in my garden and they were the same cattle that were in my front paddock that came in, I thought, through my back gate from the forest like the last lot came, and that was my assumption.” She agreed she made the tracks down to the gate when she drove down to open the gate to let the cattle out. At her request, and after he had disclosed to her that he was investigating her for dishonestly causing a detriment, he said to her the main issues are “the fence and conversations that you held with the pound people about contacting neighbours and all of the neighbours saying no, the cattle weren’t theirs….” [10] The complainant, Mr Zischke gave evidence. He leases a number of adjoining properties aggregating approximately 1200 acres upon which he agists up to 700 head of cattle. He identified a paddock known as Butler’s Knob, which is contiguous in part with the appellant’s farm as being the paddock where the 12 cows and calves impounded had been grazing prior to 12 April 2015. [11] He gave unchallenged evidence of meeting the appellant as a neighbour in 2011. He described his cattle as distinctive Zebu type Brahmans with ear tags and branding and in good condition, with long horns. He said that he and the appellant had each other’s telephone numbers, and there had been contact between them prior to 12 April over the years although not as much in the last year. [12] He received a call from a stock and station agent on Sunday 12 April alerting him to the fact that a small mob of his Brahmans appeared to be in the Gympie pound. He -- 4 of 16 -- 5 said when he returned to his property on the Monday, he identified that there was a fence down between his property and the defendant’s property and there was a gate that appeared to have been opened and closed. He gave evidence that he had recovered his cattle from the pound that day and paid the Council $884.35 as the impoundment fee. [13] He recalled his last contact with the defendant was in 2014, when he provided her with a list of contacts while he was away, in case there were any natural disasters such as had occurred in 2011 with Cyclone Oswald. [14] He was asked in cross-examination about a telephone conversation with the appellant on 26 March 2014, in which she advised him that some cattle had strayed onto her property through the back gate which leads into the forestry reserve. He conceded that he and/or his partner may have had that conversation, and that the appellant may have been told that those cattle were not his. [15] Mr Fletcher gave evidence. He was living in an old farmhouse in April 2015 which he leased from the appellant. He gave evidence of being asked on the telephone by the appellant to cut the fence between her property and the complainant’s “to have the cattle on her side of the property.” He refused. [16] The next day he noticed cattle in the paddock on her property which he recognised as the complainant’s cattle. He said he rang her to tell her and she told him to leave the cattle and “hopefully they’ll jump back into their property.” The next day the cattle were still there and she directed him to put them in yards behind his house on her land, which he did. [17] He gave potentially damming evidence to the effect that the appellant told him she knew the cattle belonged to the complainant; that she had some grudge because one of the complainants’ bulls got into her paddock and at her cows and interfered with a long bloodline; that she had in effect promised him that he could stay in the house provided he did not give a statement to the police i.e. attempting to pervert the course of justice. [18] In cross-examination however it came out that she had taken him to QCAT to evict him from the house for objectionable behaviour and that he “hated her guts.” It seems to be common ground that he would not give a statement to the police at first but did -- 5 of 16 -- 6 in December 2015 when the relationship between them had soured and she was moving to have him evicted. [19] Mr Nathan Johnson then gave evidence. He was also a tenant of the appellant in April 2015 and resided in the same house with the Fletchers, and was in a relationship with one of Mr Fletcher’s daughters. He told the court that he was present when Mr Fletcher took the call from the appellant about cutting the fence and he overheard it. Fletcher had told the court that when he took the call he had his phone on speaker and Mr Johnson said he overheard “her say something about wrecking or cutting the neighbour’s fence and enticing them over with molasses or pellets”. He says later, at sunset, he and Fletcher inspected the fence and gate and it was closed and the fence intact. He did not see any cattle, on the boundary fence with the complainant’s property. [20] He recalls coming home from work after this and seeing cattle on the appellant’s property. [21] He and Fletcher rounded up the cattle and put them in a yard and he was there when a truck came to collect them on the Sunday, making two or three trips. [22] In cross-examination he agreed that Rodney’s partner and his daughters, one of whom he was dating, were all present watching TV when he overheard the telephone conversation. [23] The pound supervisor, Mr Billiau gave evidence. He recalled a call from the appellant on Sunday 12 April, which was his day off, in which she said she had cattle that she wished to impound. He asked her if they were her neighbour’s cattle. She told him the cattle were in poor condition, and “they had been in and out of her place from forestry” and that she had already bought a load into the pound. [24] He then went to the pound and looked at the cattle. He asked the appellant again whether the cattle belonged to neighbours and she assured him they did not. He inspected the cattle and noted they were in good condition with tags and brands. She again assured him that she did not know who the cattle belonged to. [25] He was then advised by a stock and station agent who was present at the pound that the cattle belonged to the complainant, and he then called the complainant. Later, on his way home, he rang the appellant again, and “she assured me that she had rung the -- 6 of 16 -- 7 neighbours and they weren’t the neighbour’s cattle, but they had come out of forestry. I rang her at least three times to assure that they weren’t.” [26] In cross-examination, there was some confusion. He appears to have impounded the cattle in the morning at the appellant’s request, but all the cattle were not there until the afternoon. It was clear that he had only a rudimentary knowledge of his employer’s Local Law. For example, he told counsel that a person who found cattle on his land could not have them impounded if “it’s going to cause a neighbourly argument.” [27] The appellant gave evidence in her own defence. She told his Honour that she was a retired nurse, aged 64 and had run a traditional British Red Poll Stud Herd on her property for 20 years. She gave evidence that Fletcher rang her on the Thursday before 12 April to say that there were “a whole heap of strange cattle in our garden.” As can be seen from Exhibit 7, a photograph taken from the appellant’s house looking over her property with some of the complainant’s land in the background, Fletcher’s house was some distance away from the appellant’s house. She looked with binoculars and saw the cattle in the garden, and noticed that all the gates to the farmhouse were open. She instructed him to put the cattle out, which he did, and they stayed on the top of the ridge all the next day. She thought they looked “a bit like the ones that were here the year before.” [28] She said that a year before, she woke up one morning to find cattle roaming around her house. There were about 12 cows and they were not in good condition. She says she rang her neighbour, Ian Campbell, who is her closest neighbour whose house can be seen in the middle background of Exhibit 7. She also said she tried to ring the complainant twice and his partner once. He later rang back to say the cattle were not his. She drove the cattle out of her house paddock and into the forestry with the help of her kelpie dog. [29] She thought the cattle in 2015 were the same although they were in good condition. The next day she instructed Fletcher to drive down to the boundary fence with the complainant’s property and open the gate to see if they would go through. She later instructed him to open the gates to the yards near his house so that the cattle could access water. On the Saturday, before the cattle moved into her yard, she instructed Fletcher to drive along the boundary to see if the cattle would follow the ute, as she -- 7 of 16 -- 8 had seen the complainant moving cattle on the far ridges by feeding them from the back of a ute which was very similar to hers. [30] All of this she observed from a distance, from her house. She then considered impounding the cattle, and made enquiries on the internet and with some friends. She was concerned about something she called a “four day rule”; which she understood to mean that if the cattle stayed on her land longer than four days she was responsible for them. She was determined to get the cattle off her property on the Sunday. That is when she had Fletcher lead the cattle into the yards and water and shut the gate. [31] She said she first spoke to Mr Billiau on the Saturday night. This was not put to Mr Billiau. She said she did not tell him that she had rung the neighbours, but did tell him that she had rung the neighbours the previous year about “the same cattle.” She said she had no doubt that they were the same cattle. It was never suggested to Mr Billiau that the appellant had spoken to him about contacting the neighbours in 2014. [32] The next day she arranged for the cattle to be taken to the pound, but all she could arrange was a small horse truck and it took four trips to get the cattle to the pound. The first time she saw the cattle “close up” was when the horse truck arrived late in the morning of 12 April. She noticed the brand, but said she had never seen it before. She accompanied every load to the pound. She said she met Mr Billiau on the first trip and that he was very grumpy because it was his day off. She told his Honour that the pound keeper was “impatient and rude” and “very intimidating and yelled at me and wouldn’t let me finish my sentences.” Nothing like this was put to Mr Billiau in cross-examination. She denied ever telling Fletcher to cut fences. [33] In cross-examination she was extensively questioned about why she believed the cattle she saw through the binoculars in 2015 were the same cattle that she had seen in 2014. She said repeatedly that there was no point in ringing the complainant, as he had told her in 2014 that the cattle were not his. Discussion [34] Each party provided written submissions. In a case such as this where there were significant conflicts in the evidence, the findings as to credit and reliability are of particular importance. That is because: “More than once in recent years, this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is -- 8 of 16 -- 9 not to be set aside because an appellate Court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial Judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge ‘has failed to use or has palpably misused his [of her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable.’”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. [35] The only issue in dispute was whether or not the prosecution had proved beyond a reasonable doubt that the actions of the appellant were dishonest. It was not in issue that she had caused the complainant a financial detriment. [36] The prosecutor’s submissions made it clear that the dishonesty was constituted by her answers to the pound keeper on 12 April 2015. The prosecutor urged his Honour to accept the evidence of Mr Billiau and to reject the evidence of the appellant to the effect that she was referring to contact with the neighbours the year before. The prosecutor submitted that as that was never put to Billiau during cross-examination, “his evidence … is the only credible evidence … that he had asked the defendant multiple times if she had contacted neighbours to which she assured (him) that (she) had”. [37] The prosecutor also urged his Honour to accept the evidence of Fletcher and Johnson as credible and reliable. [38] The prosecutor’s submissions were in response to written submissions delivered by the defence. At paragraphs 62-68 those submissions deal with the so-called rule in Browne v Dunn and submit that, in the circumstances of the case, no adverse inference should be drawn against the appellant to the extent to which her counsel had not put her alternative version of the conversations with Mr Billiau to that witness. His Honour’s reasons [39] In this case, issues of credibility and reliability were important. It is therefore surprising that his Honour commenced his reasons by stating: “[2] The facts in relation to this charge are largely not in dispute. On the evidence, I find that the relevant facts are as follows: ‘On or about Thursday 9 April 2015 the cattle the subject of the charge (12 Brahman cows and calves) strayed onto the property of the defendant at 407 Goldberg Road, North Deep Creek. On Friday 10 -- 9 of 16 -- 10 April 2015 the cattle were still on the defendant’s property. Under instructions from the defendant, the witnesses Fletcher and Johnson, who were residing in a house on the defendant’s property at the time, rounded the cattle into stockyards on the defendant’s property. They then remained in the stockyards until Sunday 12 April 2015 when the defendant arranged for the cattle to be transported to the Gympie pound located at the Gympie Sale Yards and operated by the Gympie Regional Council. The pound supervisor said that the defendant told him she’d contacted the neighbours and that the cattle did not belong to them. He said that he asked her this question at least three times and each time she said she had contacted the neighbours before bringing the cattle to the pound. However, the defendant said that any statement she may have made that she had contacted the neighbours was in the context that she had contacted the neighbours a year before in relation to what she believed were the same cattle and was told by her neighbours at the time, including the complainant who had cattle on the adjoining property, that the cattle did not belong to them. Thus, the reason why she did not contact them again on this occasion.’” [40] His Honour clearly formed an unfavourable impression of the witnesses Fletcher and Johnson. He was clearly cognisant of the central factual issue relevant to dishonesty when he wrote this: “[10] The only acceptable direct evidence that the defendant’s actions were dishonest was the evidence of the pound supervisor that she told him that she had contacted the neighbours before bringing the cattle to the pound and that the cattle did not belong to them. There was evidence from the witnesses Fletcher and Johnson that the defendant requested them to cut the boundary fence between her property and the complainants, insinuating that the defendant played a part in how the cattle came to be on her property. However, in the abscence of further evidence to prove that she either cut or arranged for the wire fence to be cut, I cannot be satisfied beyond reasonable doubt that she played a part in how the cattle came to be on her property. She did not gain anything from taking the cattle to the pound, on the contrary, she incurred the costs of transporting the cattle to the pound. However, the offence is one of causing a detriment, not obtaining a benefit.” [41] Of course, his Honour was not required to accept their evidence “beyond reasonable doubt” but he clearly did not accept their potentially damning evidence that the appellant instructed Johnson to cut the boundary fence. Unfortunately his Honour did not provide any other reasons but it can be inferred on the rehearing that neither -- 10 of 16 -- 11 made a good impression on him; that Johnson in particular behaved in a way that suggested real animus towards the appellant which must have flavoured his decision finally to provide a statement to police. Fletcher’s evidence was tarnished because of his close association with Johnson. His Honour could also have said that their evidence did not accord with common sense. Although the evidence established some sort of unspecified falling out between the appellant and the complainant over the previous year, a suggestion that a 64 year old woman with a bad leg would deliberately cut a fence and steal the cattle simply does not make sense, particularly when she then had to foot the bill to transport the cattle to the pound. Certainly the complainant did not suggest any animus in his evidence. The only evidence of that, as unspecific as it was, came from the appellant. Again, in the absence of direct evidence of motive from prosecution witnesses (setting aside the evidence of Fletcher which his Honour did not accept), it offends common sense that she would then give some evidence to establish motive unless she was actually telling the truth about her understanding of the phone calls with the pound keeper. [42] As can be seen from his reasons, his Honour appeared to proceed on the basis that he accepted her evidence that the only enquiry she made about ownership were those she made the year before. His Honour regarded it as important that she said in her interview with the police, and in her evidence, that despite saying she did not try to contact any neighbours, nevertheless she thought the cattle could belong to the complainant. That she gave as her reason for opening the gate in the hope that if they were the complainant’s cattle they would return to their own paddock. [43] The way in which his Honour resolved the critical issue concerning the conversations between the appellant and the pound keeper is set out in paragraphs 24 to 27: “[24] The question then remains, in the absence of any legal entitlement to do so, were the actions of the defendant of having the cattle taken to the pound and the particular circumstances of this case, dishonest by the standards of ordinary honest people? Each case must be decided on its own facts and circumstances. The facts and circumstances of this case have been sufficiently outlined above. However, some uncertainty still exists between the slightly differing accounts given by the pound supervisor and the defendant about what the defendant told him about contacting the neighbours before the cattle were impounded. [25] In this regard, it is noted that the defendant’s version, initially given in evidence-in-chief at page 150 of the transcript, that she never told the pound supervisor that she had called the neighbours, and that she said she had called all the neighbours over the same cattle last year, -- 11 of 16 -- 12 but had not called the neighbours this year because there was no point going through the same routine again, was not put to him during cross- examination, and accordingly the rule in Browne v Dunn has not been complied with by the defence. I accept that this is the case and as a result the credibility of her evidence on this point is questionable. That said, her version of what she told the pound supervisor is consistent with what she told Detective Senior Constable Jones in a telephone conversation on 19 April 2015 (Exhibit 2), which was recorded one week after the alleged offence. Accordingly, the evidence in the phone conversation acts to diminish or reduce any adverse inferences which would otherwise be drawn from non-compliance with the rule in Browne v Dunn. However, if I had to choose whose version I would accept, I would choose that of the pound supervisor because the defendant’s version was not put to him. [26] In any event, regardless of any adverse inferences to be drawn from non-compliance with the rule in Browne v Dunn, and whether or not the defendant’s statement to the pound supervisor that she had contacted her neighbours was false or dishonest, or was taken out of context by the pound supervisor who may not have been in the best mood at the time to listen to what she had to say about this point, the question still remains, was [sic] her actions in taking the cattle to the pound in the circumstances of this case, dishonest by the standards of ordinary honest people? [27] Applying this test to the facts of this case, I find that the actions of the defendant were not honest by those standards for the following reasons: The actions of the defendant in having the cattle impounded without first taking reasonable or proper steps to discover their owner was dishonest by the standards of ordinary honest people, for the reasons already given. I find that a reasonable person would have at least contacted her closest neighbours, especially the complainant, or taken other appropriate steps to find the owner of the brand on the cattle before taking them to the pound. In the particular circumstances of this matter, I find that an honest and reasonable person would have at least made these enquiries before taking the cattle to the pound. Any belief that she could only keep the cattle on her property for four days is of no consequence because that is a mistake of law, not fact. As already stated, each case must be decided on its own facts, and the conclusion may be different in another case, for example where the closest neighbours are some distance away, or when none of the neighbours have cattle, just other livestock like sheep and goats. However that is not the case here.” [44] It can therefore be seen that ultimately he proceeded not on the basis of what was particularised as her dishonesty, namely what the prosecution say she said to the pound keeper, but for the reasons set out in [27]. [45] In my view there is a significant legal error evident in this line of reasoning. -- 12 of 16 -- 13 Browne v Dunn [46] It is clear from the last sentence of [25], that his Honour regarded the failure of the appellant’s counsel to put her version of the conversation to the pound supervisor as decisive, and decisive on the critical factual issue particularised by the prosecution as central to the element of “dishonesty”. As this issue is not articulated as a specific ground of appeal, and in the course of preparing these reasons I caused the following e-mail to be sent to the parties “In preparing his reasons, his Honour has considered the Magistrates approach to determining what was the critical issue of fact, namely the content of conversations between the appellant and the pound keeper on the 11/12th April 2015. It appears to his Honour that in this regard (see paras [24] – [27]) of his reasons, and, in particular the last sentence in [25], the Magistrate has misapplied the principle in Browne v Dunn. As this was not pleaded as a ground of appeal, his Honour invites submissions from you both on this point if possible within the next (7) days.” Mr Kissick provided a short supplementary submission to the effect that his Honour’s finding of “non-compliance” with the rule, was not open. Mr Stark chose not to make any further submission. [47] Counsel for the appellant told me that Browne v Dunn is frequently cited by police prosecutors in the Magistrates Court. His experience of those courts is much greater than mine, but certainly this is the first time that I can recall it being raised as a part of a ground of appeal. [48] The alternate directions in the Queensland’s Court benchbook2, indicate the very limited circumstances in which an adverse inference can be drawn against an accused person, and, as can be seen the only inference that can be drawn is “that (the defendant) did not give that account of events to counsel”. In other words, to use ancient terminology, the evidence given by the defendant was a “recent fabrication”. [49] In this case it was obvious that the version given by the appellant in her evidence was the same version she gave in the recorded conversation with the police officer on 19 April 2015 i.e. very soon after the event. If the prosecution had wished to use counsel’s failure to put the version in such a decisive manner, it should have notified the defence before the trial ended so that Mr Billiau could have been recalled and the questions could have been put to him. 2 No. 32. -- 13 of 16 -- 14 [50] In MWJ v The Queen (2005) 80 ALJR 329, the High Court emphasised the need for care on the part of a trial judge in directing a jury to attribute significance to the failure of counsel to put an aspect of his client’s case to a witness on the other side, especially where it is otherwise apparent that the proposition which is not put, is in issue. [51] The purpose of the rule in civil trials is to prevent surprise or ambush. In a criminal trial, where the prosecution has the onus, it would only in a truly exceptional case that the trier of fact would be able, as a matter of fairness, to draw an adverse inference against a defendant. [52] As the High Court said in MJW at [41]: “The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in a civil proceeding. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkle (1959) 101 CLR 298.” [53] The danger of applying the rule against defendants in criminal trials was emphasised by Keane JA (as his Honour then was) in R v MAP [2006] QCA 220 by reference to MJW. [54] In relation to these paragraphs, his Honour (apart from the misapplication of the rule in Browne v Dunn) did not make findings adverse to the credit of the appellant. In misapplying the rule on such a decisive issue going to credit, his Honour erred and the appeal should succeed for that reason alone. [55] It was not for her to prove that what she did i.e. contact the neighbours the year before in relation to what she thought were the same cattle, open the gate etc. were reasonable by the standards of ordinary honest people. Although on other occasions his Honour clearly stated it was for the prosecution to prove that her actions were dishonest by the standards of ordinary reasonable people, in this passage he seems to have reversed the onus of proof. However because of the previous statements, I would not conclude that he erred in this regard. The Gympie Local Law [56] In the defence submission the proposition was advanced that in determining whether or not the defendant had acted dishonestly, the Gympie Regional Council Local Law No. 2 (Animal Management) 2011 (The Local Law) was the starting point. His -- 14 of 16 -- 15 Honour was not favoured with a complete copy of the Local Law. He deals with this issue at paragraphs [20]-[22]: “[21] Relevantly, s 21(3)(b) and (4) of the Local Law provides as follows: (3) The authorised person may seize an animal under subsection (1)(a) where – (b) an occupier of private land has found the animal wandering at large on the land, taken it under effective control and requested the authorised person to enter the land to seize it. (4) However, an authorised person is not obliged to accept the custody of an animal under this section. Section 24 provides that an authorised person who seizes an animal under this local law may impound the animal. The term “wandering at large” is defined in the Dictionary of the local law as meaning - (a) the animal is not under the effective control of someone; and (b) the animal is in either- (i) a public place; or (ii) a private place without the consent of the occupier” [22] The provisions of s 21(3)(b) of the local law would appear to lend some support to the defendant’s submission that she had a right to impound the cattle, in that she is an occupier of private land who has found the cattle wandering at large on her land and taken them under her effectual control by placing them in her cattle yard. However, the rest of that subsection is of no assistance because she’s not requested the authorised person to enter her land to seize the animal. Rather, she’s taken it upon herself to have the cattle taken to the pound. Other than that, she would have had an entitlement to request that the cattle be seized by the authorised person from the Council, who may impound them. She had no absolute right to have the cattle impounded. That was up to an authorised person who attended her property at her request for that purpose. The defendant only had the right to request that they be seized and impounded, not that they be impounded.” (his Honour’s emphasis) [57] In addition to the provisions set out above is the following (3)(a): “Another person has found the animal … wandering at large and delivered it to an authorised person; or …” [58] There was no issue that the cattle were found “wandering at large”. As his Honour notes the definition of “wandering at large” refers to either a public place; or a private place without the consent of the owner. I agree with Mr Kissick that the clear purpose -- 15 of 16 -- 16 of the section is to protect both authorised persons, occupiers of private lands, and others who find animals wandering at large. Although I was originally attracted to his argument based on s 21(3)(a), when one has regard to the definition of “wandering at large”, and the use of a word “or” in that subsection, and upon proper construction of the section read as a whole, on the facts of this case his Honour correctly applied s 21(3)(b) in concluding that the section did not authorise the appellant to deliver the cattle to the pound. It is a curious result however that if she had not mistakenly believed that there was some “four day rule”, and kept the cattle in her yard and then requested the pound keeper to enter her land and seize the cattle, she would have been acting lawfully. [59] There is no merit to the grounds relating to the legal test for “dishonesty”. His Honour clearly understood the effect of R v Dillon ex-parte Attorney General (Qld) [2015] QCA 155, and nor did he err in applying s 408C(3) of the Criminal Code or s 24 of the Criminal Code. If it is necessary (given the wide ambit of ground 3) I would give leave to add a ground: “His Honour erred in drawing an adverse inference as to the credit of the appellant by application of the rule in Browne v Dunn.” [60] Ordinarily there would be a retrial but the respondent does not seek that which is sensible. These are my reasons for making the order I made on 3 March 2017 that the appeal be allowed and the respondent pay the appellant’s costs and the appeal fixed at $1,800. -- 16 of 16 --