Bernard v Queensland Police Service [2016] QDC 283

DISTRICT COURT OF QUEENSLAND CITATION: Bernard v Queensland Police Service [2016] QDC 283 PARTIES: WILKINSON BYRON BERNARD (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: APPEAL NO: 132 of 2016 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Kowanyama DELIVERED ON: 14 November 2016 DELIVERED AT: Cairns HEARING DATE: 7 November 2016 JUDGE: Morzone QC DCJ ORDER: 1. Appeal against conviction allowed. 2. The verdict of guilty and orders made 15 July 2016 are set aside and substituted with a verdict of not guilty of attempt to take liquor into a restricted area. 3. The appellant is discharged. CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – attempt to take liquor into a restricted area – mode of hearing of appeal – error of law – principles of circumstantial evidence – whether search lawful – whether “attempt” as defined in the Criminal Code 1899 (Qld) applies to the offence under Liquor Act 1992 (Qld) – inconsistent verdict with that of the co- accused – whether verdict supported by the evidence. Legislation Criminal Code 1899 (Qld), s 4 Justices Act 1886 (Qld), ss 222 & 223 Liquor Act 1992 (Qld), ss 173G, 168B & 168B -- 1 of 17 -- 2 Liquor Regulation 2002 (Qld), Sch. 1G Police Powers and Responsibilities Act 2000 (Qld), ss 60 & 64 Cases White v Commissioner of Police [2014] QCA 121 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 R v Barbeler [1977] Qd R 80 O'Neill v R [1996] 2 Qd R 326 R v Leavitt [1985] 1 Qd R 343 Bank of England v. Vagliano Bros. [1891] A.C. 107 Brennan v. The King (1936) 55 CLR 253 Anderson v. Nystrom [1941] StRQd 56 Hope v Brown [1954] 1 WLR 250 Warren v Coombes (1979) 142 CLR 531 Doney v The Queen (1990) 171 CLR 207 R v Hillier (2007) 228 CLR 618 Burke v The Queen (1997) 96 A Crim R 334 R v Baden-Clay [2016] HCA 35 Peacock v The King (1911) 13 CLR 619 Barca v The Queen (1975) 133 CLR 82 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Nudd v The Queen (2006) 225 ALR 161 Edwards (1993) 178 CLR 193 at 211, 363 Zoneff (2000) 200 CLR 234 Ratten v The Queen (1974) 131 CLR 510 Doggett v The Queen (2001) 208 CLR 343 Meko v R (2004) 146 A Crim R 131 R v Mitchell [2007] QCA 267 Holland v Jones (1917) 23 CLR 149 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 Whitehorn v R (1983) 152 CLR 657 Chidiac v R (1991) 171 CLR 432 Morris v R (1987) 163 CLR 454 SOLICITORS: K. Goodwin for the appellant R. Scholl of the Queensland Police Service for the respondent -- 2 of 17 -- 3 [1] On 15 July 2016 the appellant was convicted after a summary trial in the Magistrates Court in Kowanyama of attempt to take liquor into a restricted area under s 168C of the Liquor Act 1992 (Qld) (“the Liquor Act”). His co-accused was acquitted of the same charge. [2] The appellant now appeals his convictions. [3] Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered. Mode of Appeal [4] Pursuant to s 223 of the Justices Act 1886 (Qld), an appeal under s 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider, as if presented for the first time, the arguments advanced. It is a review of the record of the proceedings below, rather than a completely fresh hearing.1 [5] This court is required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.2 [6] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.3 Background [7] Kowanyama is a town on the Gulf of Carpentaria side of Cape York Peninsula in Far North Queensland. The township and surrounding shire is a restricted area under the Liquor Act.4 No alcohol or homebrew and homebrew equipment is allowed in Kowanyama Aboriginal Shire including all public and private places. The area includes the Errk Oykangand National Park (formerly known as the Mitchell-Alice Rivers National Park) and the Mitchell River and the northern sides of Topsy Creek and the northern and southern sides of Colman River. [8] The route from Chillagoe to Kowanyama via State Route 27 is about 401 km, and comprises: the Burke Development Road for about 299 km, Dunbar Kowanyama Road for 98 km, Kowanyama Road for about 2 km and Chellikee Street for about 800 m into Kowanyama. The boundary of the restricted area intersects the Dunbar Kowanyama Road at about 10 km from the Kowanyama township. [9] On 28 April 2016 the appellant and his co-offender, with a number of other people, were en route by four-wheel-drive wagon between Chillagoe and Kowanyama. The travelling party started their trip in a car that broke down. A second car was sent from Kowanyama to enable them to continue their trip. The appellant was the driver of both cars. At about 120 km from the township of Kowanyama the appellant stopped the replacement car on the side of the Bourke Development Road. At that time two patrolling police officers came upon the group and spoke with the appellant and other occupants. The police officers recorded the conversation on an audio device and a chest camera. 1 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 2 White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed). 3 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 4 Section 173G of the Liquor Act 1992 and Schedule 1G Kowanyama of the Liquor Regulation 2002. -- 3 of 17 -- 4 [10] A police officer asked where they were going and the appellant replied that they were returning to Kowanyama. No further details regarding times, routes, or other possible activities were discussed. He denied carrying any alcohol in the car. [11] The police officers then located 150 litres of cask wine in the rear of the vehicle. They seized the wine and proceeded to transfer it into the police car. During this time, the appellant explained that the wine would be consumed and buried (before reaching the restricted area). The occupants of the car protested the seizure because they were outside the restricted area. After the police loaded the wine into the police car they returned to Kowanyama. The appellant and his passengers later completed their journey to Kowanyama. [12] The following day the appellant and the co-accused were charged with an offence of attempted possession of liquor in a restricted area pursuant to s 168C of the Liquor Act. The maximum penalty for the offence is 375 penalty units. [13] The appellant and co-accused pleaded not guilty to the offence. The trial was heard on 24 June 2016 in the Kowanyama Magistrates Court some 14 months after the incident. The prosecution case relied upon the testimony of Senior Constable Patchett and Rachael Bernard, who was a passenger of the car, the recorded conversations with police, photographs and certified documents. The appellant and co-accused elected not to give or call evidence. [14] The magistrate delivered his decision on 15 July 2016 in Cairns. The appellant was convicted and fined $500 and his co-accused was acquitted. In determining guilt of the appellant, His Honour applied the definition of “attempt” in the Criminal Code 1899 (Qld) (“the Code”) to the Liquor Act offence. He also considered that the appellant’s asserted intent to drink the alcohol or bury it outside the boundary was a “convenient invention” only proffered after the seizure of the wine. Grounds of Appeal [15] The appellant appeals against his conviction in reliance on the grounds of appeal in the notice of appeal, which can be distilled as follows: (a) the magistrate erred by finding the search of the vehicle to be lawful; (b) the magistrate erred in law by failing to consider all the elements of the offence by incorrectly applying the principles of an attempt; (c) the magistrate erred in law when applying the principles of circumstantial evidence; (d) the magistrate erred by bringing an inconsistent verdict and not supported by the evidence. [16] The ground of returning inconsistent verdicts was not pressed on appeal and consideration of the ground is unnecessary in the disposition of the appeal. Search, entry of vehicle and seizure of liquor [17] The appellant contends that the magistrate mistook the facts and erred in finding that the search of the vehicle was lawful. The respondent argues that the magistrate’s findings were open on the evidence, and he correctly concluded that the conduct was lawful. -- 4 of 17 -- 5 [18] Section 60 of the Police Powers and Responsibilities Act 2000 (Qld) provides for the power to stop vehicles for prescribed purposes. One of the prescribed purposes stipulated in the section is for the “monitoring or enforcing a liquor provision”.5 A liquor provision is then defined as an offence against s 168B or 168C of the Liquor Act.6 Section 60(4) imposes reasonable suspicion as a prerequisite to the exercise of the power, as follows: “For monitoring or enforcing a liquor provision, the police officer may exercise any of the following powers if the officer reasonably suspects the exercise of the power may be effective for the purpose— (a) enter the vehicle and remain in it for the time reasonably necessary for the purpose; (b) search the vehicle and anything in it; (c) inspect, measure, test, photograph or film the vehicle or anything in it; (d) take samples of anything in or on the vehicle; (e) seize anything the officer reasonably suspects is evidence of the commission of an offence against a liquor provision; (f) copy a document in the vehicle; (g) move the vehicle’s load.” [19] The magistrate considered these provisions and relevant authority. However, he found that the car was not stopped or searched for any of the prescribed purposes, nor was there any evidence of “reasonable suspicion” by the police officers. 7 Instead, he simply preferred Senior Constable Patchett’s evidence that he saw the alcohol through the window and therefore a search was not required to discover the alcohol. [20] Senior Constable Patchett testified that he could see a significant amount of alcohol in the rear of the car which was wrapped in clear plastic packs and not concealed under a tarp. The evidence of Ms Bernard was that she was asked to lend the car to assist in the appellant’s return to Kowanyama, not to bring the alcohol back to the community. She testified that officer Patchett lifted the tarp to see the wine in the rear of the vehicle.8 The magistrate preferred the evidence of officer Patchett but said: “I draw no adverse conclusions as to Ms Bernard merely that she is not as an impressive witness as was Constable Patchett”.9 [21] In relation to the recorded evidence His Honour said: “I have reviewed both the audio and visual components of exhibits 1 and 2. I indicate that I’m always reluctant to view these types of exhibits in the sanctity of my chambers. There is a significant potential of my becoming a witness in my own Court. It is entirely possible that I may see or hear something not averted to by the witness. And that may 5 Liquor Act 1992, s 60(3)(c). 6 Liquor Act 1992, s 60(6). 7 Decision T4/30. 8 Decision T3/2. 9 Decision T5/25. -- 5 of 17 -- 6 impact upon my assessment of the exhibit and the credibility of witnesses. I cannot be examined or cross-examined as to my impressions. In my view, such exhibits can only be utilised to excess – to access the credibility of a witness, to compare the oral testimony with the images and sounds to determine whether there’s any inconsistencies that would justify drawing an inference of incredulity.” [22] The magistrate remarked that after listening to the audio recording he heard the appellant and Senior Constable Patchett talking and that he then heard a rustle followed by the officer’s exclamation of surprise at the discovery of the wine.10 His Honour remarked that the rustling sound heard on the audio was “confusing” and posited “Was it in fact the tarp being removed? As – and is that corroborated by Ms Bernard?” [23] His Honour concluded that Senior Constable Patchett’s evidence was credible, reliable and preferable over Ms Bernard’s evidence. In doing so, His Honour accepted Patchett’s evidence that he could see the liquor through the window whilst he was talking to the appellant and did not need to search the vehicle by lifting a tarp in order to locate the alcohol.11 His Honour did specifically reject Senior Constable Patchett’s evidence that the rustling sound was caused by his uniform vest where the recorder sits in a pouch.12 Having made that factual finding, the magistrate concluded there was no unlawful search and the alcohol was “lawfully” revealed. [24] It seems to me that His Honour’s limited use of the recordings, as only going to credibility, was too narrow and erroneous. The recordings constituted direct evidence of the sounds and vision that they contained. Indeed, it was the primary and best evidence of these matters and less fallible than the human frailties of a witness’s recollection. [25] In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:13 “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 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 advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’” [26] Similarly, in Fox v Percy,14 Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,15 as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way: “[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular 10 Decision T5/15. 11 T1-15/18–26. 12 T1-15/13–16. 13 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 14 Fox v Percy (2003) 214 CLR 118 at [26]-[30]. 15 Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. -- 6 of 17 -- 7 cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted.) [27] This is not an exhaustive formula. The Court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said: “[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. [30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (References omitted.) [28] I have not had the advantage of seeing or hearing the witnesses testify. However, like the trial magistrate, I have listened to the recorded evidence. The recording is compromised by background noise and “rustling” sounds (perhaps due to wind or clothing) throughout. I am unable to discern any distinction between those sounds and the “rustling” sound proximate to the discovery of the cask wine by the officer. I am unable to conclude that His Honour’s findings are inconsistent with uncontested facts or facts incontrovertibly established by the evidence or which are ‘glaringly improbable’. [29] Once the wine was identified as the magistrate found, the police officers were then empowered by s 60(4)(e) & (g) of the Police Powers and Responsibilities Act to seize the wine reasonably suspected as evidence of the commission of the liquor offence and move it back to Kowanyama. [30] It must follow that the appellant fails on this appeal ground. Attempt to take liquor into restricted area [31] The appellant contends that the magistrate erred by failing to consider all the elements of the offence by incorrectly applying the principles of an attempt. [32] The appellant was charged under s 168C of the Liquor Act, which makes an attempt an element of the offence. Section 168C provides: (1) A person must not attempt to enter a relevant restricted area if the person has in possession more than the prescribed quantity of a type of liquor for the area. -- 7 of 17 -- 8 Maximum penalty – 375 penalty units. (2) Subsection (1) does not apply to – (a) a carrier, licensee or permittee who, in the ordinary course of lawful business, has collected the liquor from licensed premises outside the area and is delivering it to licensed premises in the area; or (b) a carrier who, in the ordinary course of lawful business has collected the liquor from a person outside the area and is delivering it, via the area, by means of a vehicle to another person at premises outside the area; or (c) a licensee or permittee who, in the ordinary course of lawful business, has collected the liquor from licensed premises outside the area and is delivering it, via the area, by means of a vehicle to a person at premises outside the area; or (d) a person, other than a carrier, licensee or permittee in possession of the liquor in the ordinary course of lawful business, who has collected it from a place outside the area and is travelling with it, via the area, to a destination outside the area; or (e) a person who is a permittee under a restricted area permit that authorises the permittee to possess in the area more than the prescribed quantity of the type of liquor for the area if the quantity of that type of liquor possessed by the person is not more than that allowed under the permit. (3) In a proceeding for a contravention of subsection (1), for subsection (2)(d), the burden of proving that the liquor was collected from a place outside the area and the person is travelling with it, via the area, to a destination outside the area is on the person alleged to have contravened subsection (1). (4) For subsection (3), the burden of proof is on the balance of probabilities. (5) In this section — carrier see section 168B(6). [33] Both parties contend, as they did below, that in the absence of any definition of attempt in the Liquor Act, s 4 of the Code applies.16 Section 4 of the Code provides: (1) When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender's part for completing the commission of the offence, or whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender's intention. 16 Cf. R v Barbeler [1977] Qd R 80. -- 8 of 17 -- 9 (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. (4) The same facts may constitute one offence and an attempt to commit another offence. [34] The magistrate apparently accepted the parties’ submission and said:17 “… the law with respect to attempt to commit offence is set out in section 4 of the Criminal Code, and that says, in effect, where a person intending to commit an offence begins to put his intention into execution by means adapted to its fulfilment and manifests that intention by some overt act but does not fulfil the intention to such an extent as to commit the offence, he is said to commit the offence. It goes on to say that it’s immaterial whether the defendant does all that is necessary to complete the commission of the offence or whether the completion is prevented from circumstances independent of the exercise of the offender’s will.” [35] I respectfully disagree. [36] The definition of attempt in s 4 identifies the “offence” as the subject of the attempt. It applies to attempts to commit any offence provided in chapter 55 of the Code and other statutory offences. It also applies to various offences constituted by an attempt to commit another specific offence, for example, attempted murder in s 306,18 attempt to have unlawful carnal knowledge in s 215, and attempt to commit arson in s 462(a) of the Code. [37] However, in my view, the same approach is unwarranted for s 168C. Section 168C does not concern an attempt to commit a principal offence. Whilst s 168C is related to the offence of possession under s 168B, it is a different and distinct provision. Further the terms of s 168C, do not involve an attempt to commit another specific offence. Instead, in s 168C “attempt” is made an element of liability for the offence. That requires proof of an attempt to produce the particular result of “entry” into a restricted area possessed with prohibited liquor. [38] In R v Leavitt,19 the Court considered s 317 of the Code, unlawfully attempting to strike a person with a projectile with intent to resist arrest. It was held that the term “attempt” should be given its ordinary English meaning rather than the meaning as defined by s 4. [39] Similarly, for s 168C, I opine that “attempt” should be given its meaning in ordinary usage.20 [40] The ordinary meaning of “attempt” was considered in Leavitt. Andrews SPJ (with whom McPherson agreed) said at page 345, lines 5 – 18: “It seems to me hardly necessary but by way of emphasis I point out that “attempt” in the Shorter Oxford English Dictionary reprinted with corrections in 1972 means “to make an effort or endeavour to do or accomplish some action”. This is consistent with meaning by action to achieve a particular result rather than simply to contemplate the possibility 17 Decision T4/1-11. 18 O'Neill v R [1996] 2 Qd R 326 at 556. 19 R v Leavitt [1985] 1 Qd R 343. 20 Bank of England v. Vagliano Bros. [1891] A.C. 107 at 144, 145; Brennan v. The King (1936) 55 CLR 253 at 263; Anderson v. Nystrom [1941] St R Qd 56 at 69. -- 9 of 17 -- 10 or even the likelihood of such a result by such action. The seeking to achieve a result involved in an attempt simply must involve an intention to achieve it. I can think of no practical use of the word which does not involve an intent. To inform the jury that it was not necessary for them to find that the appellant had an intent to strike a police officer with one of the bullets is to ascribe a meaning to the word which it simply has not.” [41] Williams J in Leavitt at 347 at lines 30 – 45 said: “Before a jury could find that an accused person “attempted to strike a person with a projectile namely a bullet”, they would have to be satisfied that at the time he fired the gun his object or aim was that a person should be so struck. Whether one defines “attempt” by using the words “try” or “endeavour” as the learned trial judge did, or by saying it involves a desire to bring about a particular object (or aim or result) it is clear that there is a mental element involved. One cannot “attempt” to do something unless one contemplates a particular result and intends to bring that about. Parker J. (with full concurrence of Lord Goddard C.J. and Slade J.) in dealing with an offence created by a Regulation and which had “attempt” as an element said: “So far as an attempt is concerned, there again knowledge and intent are clearly necessary …” (Gardner v. Akeroyd [1952] 2 Q.B. 743, at p. 747). Whilst “attempt” could be defined or explained to the jury without using the word “intent” it would be wrong in my opinion to say positively that no element of “intent” is involved in an “attempt” to bring about a particular result.” [42] It seems to me that the application of the term “attempt” in ordinary usage to s 168C requires the prosecution to prove beyond reasonable doubt that: 1. The accused contemplated and intended to enter the restricted area whilst in possession of prohibited liquor; and 2. He manifested that intention by overt conduct, trying, or making an effort, or endeavouring to do or accomplish that result (but did not achieve it). [43] The accused’s intention may be inferred or deduced from the circumstances, his conduct, and his admission (if any) as to his intention. But mere intention to bring about the result will be insufficient to constitute an attempt for the purposes of s 168C.21 It must be manifested by overt conduct to that end. The conduct must, in my view, be sufficiently proximate to the resultant entry into the restricted area. That is, the conduct must be immediately, not remotely, connected with the contemplated entry into the restricted area. It must go beyond mere preparation and must amount to a real commitment to enter the restricted area with the prohibited alcohol. But it is not necessary that the accused should have tried his best or taken the last step to enter the restricted area. [44] Having come to that view, I must conclude that the magistrate erred by applying the Code definition of “attempt”. Further, in doing so, the magistrate misdirected himself by mainly confining his reasons to the discernment of the element of intention on the basis of lies and recent invention, and failed to consider the appellant’s overt conduct to support the requisite intention. Circumstantial Case 21 Cf. Hope v Brown [1954] 1 WLR 250. -- 10 of 17 -- 11 [45] The appellant also asserts that the magistrate erred in law when he applied the principles of circumstantial evidence. He submits that there are other reasonable hypotheses (not excluded by the evidence) which explain the appellant’s possession of the alcohol outside the restricted alcohol area that do not support a finding of guilt, such as drinking or burying the alcohol before reaching Kowanyama. [46] The respondent argued that these matters were properly considered and rejected by the magistrate on the basis of lies and recent invention.22 [47] In his decision, the magistrate said:23 “The Prosecution’s case in this regard is somewhat – perhaps quite – circumstantial. The vehicle was located perhaps some 120 kilometres from the township. There were, it seems, some rural properties between the local was located and Kowanyama. Upon the wine being discovered, there was a discussion about either consuming the alcohol there or at – or hiding it in the bush. A prosecution based on circumstantial evidence may only be successful if there can be no other reasonable hypotheses other than of guilt. It is a question of links in the chain, strands in the rope. Where there are two or more possible explanations, if one explanation is capable of acceptance, it must lead to the judicial officer not being satisfied as to guilt beyond reasonable doubt. I am mindful of the reply elicited when the unidentified speaker was asked if the vehicle carried alcohol. The answer was, “No.” I was also concerned to hear that it was the speaker’s intention to return directly to Kowanyama. The party knew that the location was beyond the prescribed boundary. What would have been more reasonable than disclose the presence of the wine and the intention to drink or store it outside the boundary. That version did not evolve until the alcohol was being seized. [I] view this also in the context of the borrowed vehicle going out to meet the disabled one and the wine being transferred to the former. Ample opportunity would’ve been had to’ve consumed the alcohol earlier, although I do acknowledge that it might’ve been intended to store the wine closer to the community.” [48] It is undisputed in this appeal that the appellant was the speaker who denied the carriage of alcohol before recanting after its discovery. However, it is submitted that the magistrate erred in saying that the voice on the tape said he was returning “directly” to Kowanyama. Having listened to the recording I respectfully conclude that “directly” cannot be heard on the tape. [49] The trial magistrate’s findings of fact based on inference, including lies, ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,24 the majority of the High Court reiterated the rule that: “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been 22 T/6/20. 23 Decision T5/43-23. 24 Warren v Coombes (1979) 142 CLR 531 at 551, affirmed in Fox v Percy (2003) 214 CLR 118 at 127, [25] per Gleeson CJ, Gummow J and Kirby J. -- 11 of 17 -- 12 disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” [50] In order for circumstantial evidence to satisfy a court to the requisite criminal standard of proof of guilt all other reasonable hypotheses must be excluded and there must be no other circumstances which would weaken or destroy the inferred ‘fact’. In Doney v The Queen,25 it was held that: “Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded.” [51] In R v Hillier,26 it was stated: “It has often been said that a jury cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.” [52] When considering alternative inferences that would give rise to a verdict of “not guilty” the court must be satisfied that the alternatives are logical and reasonable. A “reasonable” hypothesis is not only one that is logically possible but also reasonable, not fanciful, whimsical or chimerical.27 [53] The settled principles concerning cases that turn upon circumstantial evidence were most recently summarised by the High Court in R v Baden-Clay28 as follows: 46. … In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King.29 To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen;30 see also Thomas v The Queen."31 25 Doney v The Queen (1990) 171 CLR 207 at 211 per Deane, Dawson, Gaudron and McHugh JJ. 26 R v Hillier (2007) 228 CLR 618 at 637 per Gummow, Hayne, and Crennan JJ. 27 Burke v The Queen (1997) 96 A Crim R 334 at 353 per Walsh J. 28 R v Baden-Clay [2016] HCA 35 at [46]-[47]. 29 (1911) 13 CLR 619 at 634. 30 (1963) 110 CLR 234 at 252. 31 (1960) 102 CLR 584 at 605-606. -- 12 of 17 -- 13 47. For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" 32 (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence"33 (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.34 48. Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."35 [54] Effectively, the only hypotheses that are open to a court sitting in an appellate jurisdiction are those in evidence.36 In this appeal, the appellant contends that the evidence of the parties’ intent to drink and bury the alcohol is an alternative inference or hypothesis that is logically possible and reasonable in the circumstances. On the contrary, the respondent contends that the appellant’s initial lie is evidence of guilt. [55] Consideration of the issue involves whether the appellant lied because he knew that the truth would implicate him in the commission of the charged offence.37 Before evidence of lies can be used against a defendant, the court must be satisfied of a number of matters: 1. The court must be satisfied that the appellant has told a deliberate untruth. 2. The court must be satisfied that the lie is concerned with some circumstance or event connected with the offence. The lie can only be used against the appellant if the court is satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it. 3. The court must be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate him in the commission of the offence and not of some lesser offence.38 [56] It is uncontroverted that the appellant initially denied carrying alcohol and later recanted from that position. The recorded conversation accepted by Senior Constable Patchett included this exchange: Officer: We’ve come out looking for you guys … Where are you going? 32 Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104. 33 R v Hillier (2007) 228 CLR 618 at 637 at [46]. 34 R v Hillier (2007) 228 CLR 618 at 638 at [48]; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535; 35 Nudd v The Queen (2006) 225 ALR 161 at 164 at [9]; Ratten v The Queen (1974) 131 CLR 510 at 517; Doggett v The Queen (2001) 208 CLR 343 at 346 [1]. 36 The Queen v Baden-Clay [2016] HCA 35 at [77]. 37 Cf. Edwards (1993) 178 CLR 193 at 211 & 363, explained in Zoneff (2000) 200 CLR 234 at [17]. 38 Cf. Meko v R (2004) 146 A Crim R 131; R v Mitchell [2007] QCA 267 per Keane JA at [48], [50] and Williams JA at [31]. -- 13 of 17 -- 14 Appellant: We’ve just come from Chillagoe. Officer: You haven’t – you haven’t brought back any grog? Appellant: No. Officer: That’s good. Appellant: No. We’re just heading back from a funeral. Officer: How many people are in there? Oh, heaps … Oh, nah. You do! [57] When asked what they intended to do with the alcohol, the appellant and co-accused explained they were going to drink it and they were going to bury it. [58] Unlike R v Baden-Clay39 the body of evidence in the current appeal included the appellant and the co-offender explaining that the party would drink or bury the wine (before entry into the restricted area). Whilst the appellant’s initial denial was a deliberate untruth, it is less clear whether the further explanation can be so treated. Indeed, His Honour acknowledged that “it might’ve been intended to store the wine closer to the community”, but he sought to negative that hypothesis in reliance upon the appellant’s initial denial and lie about carrying the liquor. His Honour considered it was “something of a convenient invention” and apparently proceeded on the basis that that explanation also constituted a lie. It is not clear to me how His Honour reached this view in circumstances where the recorded evidence demonstrates that the assertion was spontaneously made shortly after the wine was discovered. [59] The next consideration is whether the lie is concerned with some circumstance or event connected with the offence. It is not clear to me, having regard to the circumstances and events, that the appellant’s utterances reveal knowledge of the offence or some aspect of it. The appellant and others are recorded as acknowledging the offence of being in possession of alcohol in the restricted area (not the offence charged), but they stridently protested the seizure and exclaimed their entitlement to have liquor outside the area. The appellant’s utterances did concern possession of the alcohol, which is connected with the offence. However they were 120 km outside the township of Kowanyama and 110 km outside the restricted area. [60] Finally, it is even more uncertain on the evidence that the appellant must be lying because he was conscious that the truth could convict him of the offence charged. There may be many reasons for the appellant’s lie apart from a realisation of guilt of the charged offence. Here, His Honour found that: “The version of concealment outside the boundary seems to me to be something of a convenient invention, recently disclosed for the purpose of avoiding the seizure of the alcohol. All liability could have been avoided, excluded, by a frank disclosure earlier in the piece.” [61] In my view, this finding, and the evidence of the appellant’s utterances, are not indicative of his consciousness that the truth could convict him of the offence charged. Instead, it is consistent with an initial attempt to escape an unjust accusation and seizure, or to avoid the consequence of seizure associated with offences relating to public liquor consumption, 39 R v Baden-Clay [2016] HCA 35. -- 14 of 17 -- 15 excessive drinking or littering. It could not be isolated to the offence charged. Once approached in this way, it was not open to the magistrate to use the conduct against the appellant in the way he did. It could only be used against the appellant if the magistrate was satisfied that he had lied out of a realisation that the truth would implicate him in the offence charged. In my view the evidence falls well short of that prerequisite. [62] If His Honour approached the utterances as lies going only to credit then different considerations apply. Once a court concludes that the accused told deliberate lies, it must then consider whether those lies affect his credibility,40 including considerations of other reasons and explanations.41 Here the magistrate seemed to have followed a process of reasoning to the effect that because the appellant was shown to have initially lied, followed by a belated recently invented explanation, then this evinced his guilt. His reasoning does not disclose consideration of credibility or other innocent explanations, and thereby bespeaks an error. [63] The respondent also relies upon other matters to exclude the alternative hypothesis enlivened by the evidence, because there was a dearth of evidence about drinking times, routes, camping areas, the place and method of burial, absence of any digging implements or other possible activities. It is submitted that in the absence of these matters, the court would engage in speculation rather than evidence. [64] The force of this submission is weakened by the concessions made by Senior Constable Patchett during cross-examination as follows:42 And at no time did they give you a timeframe in which they were actually going to return back to Kowanyama, did they?---That’s correct. So it is conceivable that they could have camped for one or two nights on the way back to Kowanyama. Do you agree with that?---That’s correct. It is also conceivable that they could have buried the alcohol before returning to the restricted area. Do you agree with that?---That’s correct. And you didn’t seek to clarify any of those plausible explanations that both Henrietta and Wilkinson gave you, did you?---That’s correct. [65] Courts do not approach matters in an artificial vacuum. The route between Chillagoe and Kowanyama is travelled by public road surrounded by vast bushland and intersected by unformed roads, tracks and watercourses. So much is notorious, easily proved by satellite imagery, and known by every ordinary person in the district.43 There were obviously plenty of opportunities to stop, drink and bury the wine between the point of interception and boundary of the restricted area. It was clear the travelling party had stopped off the road at the time of detection. However, the prosecution adduced no evidence to positively demonstrate the 40 Edwards (1993) 178 CLR 193; R v Sheppard [2010] QCA 342; cf R v Lacey & Lacey [2011] QCA 386 at [81], [83] and [153] and Zoneff (2000) 200 CLR 234 at [23]. 41 Chevathen & Dorrick (2001) 122 A Crim R 441 at [28]-[32]. 42 T1-12/40 – T1-13/3. 43 Holland v Jones (1917) 23 CLR 149 at 153 per Issacs J for the "every ordinary person" test. See also Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196 where Dixon J spoke of "educated men"; and in Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 806 per Evatt J referring to "every well-informed person in Australia". -- 15 of 17 -- 16 absence of any further stopping, drinking and burial sites, the impossibility of those activities or even the absence of digging implements. [66] It is necessary to consider and weigh up all the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence. Having done so, it seems to me that the inference of the travelling party drinking and burying the wine somewhere before entering the Kowanyama restricted area was reasonably open on the evidence and more than mere conjecture. It is consistent with innocence. It is a hypothesis which is reasonable and logically possible, and not fanciful, whimsical or chimerical.44 It was not effectively excluded, or otherwise weakened or destroyed by other evidence. [67] In my respectful view, the trial magistrate erred by acting upon a wrong principle, and allowing erroneous or irrelevant matters to guide or affect him. Unreasonable and Unsupported [68] A verdict may be disturbed, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.45 This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,46 to make my own assessment of both the sufficiency and quality of the evidence.47 [69] There is no doubt that the appellant was the designated driver and had control of 150 litres of wine in the car. There is also no doubt that the quantity and type of alcohol exceeded the restriction of zero alcohol in the Kowanyama area. [70] The determinative issue was whether the appellant attempted to enter the restricted area of Kowanyama whilst in possession of the prohibited alcohol. [71] In this regard the appellant contends that the prosecution failed to exclude the hypothesis posited by the appellant in the recorded evidence. On the contrary, the respondent relies upon: the road being the only means of driving into the restricted area; the appellant being the driver of the car; the appellant’s admission to returning to Kowanyama; the appellant’s lie; and that the appellant had travelled three quarters of the way from Chillagoe to Kowanyama. [72] It seems to me that the prosecution evidence of the requisite intention, taken at its highest, is very limited. It mainly comprises the appellant’s admission that he intended to return to Kowanyama for a funeral coupled with his control of the car, which was carrying 150 litres of alcohol and was stopped alongside the road 120 km from Kowanyama. There were no other circumstances or conduct upon which the court could properly act to infer the requisite intention. There is a dearth of evidence showing the defendant manifested his intention by overt conduct sufficiently proximate to the destined entry into the restricted area. 44 Burke v The Queen (1997) 96 A Crim R 334 at 353 per Walsh J. 45 Whitehorn v R (1983) 152 CLR 657 at 687. 46 Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ. 47 Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J. -- 16 of 17 -- 17 [73] On the contrary, the recorded evidence enlivened the hypotheses that the traveling party would drink or bury the wine before entry into the restricted area. As I discussed above, these were not effectively excluded or otherwise weakened or destroyed by other evidence. [74] For these reasons, it seems to me that the verdict is unreasonable or cannot be supported, or there was a wrong decision of law or a miscarriage of justice, and I am bound to allow the appeal against the conviction. Orders [75] I will allow the appeal against conviction. [76] I set aside the verdict of ‘guilty’ and the orders made by the Magistrates Court on 15 July 2016. [77] I substitute a verdict of ‘not guilty’ of attempt to take liquor into a restricted area. The appellant is therefore discharged. Judge Dean P. Morzone QC -- 17 of 17 --