Category: Appeals

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Adequacy of reasons in a criminal case

By Dr William Higgs, Barrister

The general principles in relation to the evaluation of the adequacy of reasons are well established (Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (Quinlan CJ, Murphy & Beech JJA). Necessarily the content and detail of reasons will vary according to the nature of the jurisdiction being exercised and the subject matter of the case ( DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 (DL v The Queen) [32] (Kiefel CJ, Keane & Edelman JJ). In the context of a criminal trial heard by judge alone, the High Court most recently described the failure to resolve a particular dispute in the following terms:( DL v The Queen [33] (Kiefel CJ, Keane & Edelman JJ) )


At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

‘Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.’

In the case of S v The State of Western Australia [2021] WASCA 154, the following commentary is of practical assistance.

“In the present case, the challenge to the adequacy of the learned trial judge’s reasons, which we accept to have been made out, rested principally on the way in which her Honour dealt with the evidence of the appellant.
First, while the learned trial judge stated that she rejected the appellant’s evidence (including his denials of offending), her Honour did not provide any reasons for having rejected that evidence. In the context of her Honour’s rejection of his evidence the only two matters referred to by the learned trial judge were:

(a) that the appellant’s evidence as to the opportunity to have committed the offence was consistent with that of Z; and

(b) that there was no motive or reason for the appellant to have committed the offence.


Neither of these matters was a reason for rejecting the appellant’s evidence. The first (opportunity) was, at best, neutral as to the credibility and reliability of his evidence and the second (lack of motive) was in the appellant’s favour.
Of course, it may be accepted that, in a case of ‘word against word’ (as her Honour recognised this case to be), the advantages of the trial judge having seen and heard the witnesses may be such that demeanour and the impression formed by the trial judge as to the credibility and reliability of the witnesses may assume particular importance. In that case, the legitimate use of such impressions and demeanour may be difficult for the trier of fact to articulate. A trial judge is not required, in that regard, to embark on an infinite regression of reasons for reasons.” (Child and Adolescent Health Service v Mabior by next friend Kelei [2019] WASCA 151; (2019) 55 WAR 208 (Mabior) [100] (Quinlan CJ, Murphy & Pritchard JJA).)

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Novel duty of care

An interesting decision of the NSW Court of Appeal on the topic of recognition of a novel duty or care.

Ibrahimi v Commonwealth of Australia [2018] NSWCA 321

The Court of Appeal has dismissed an appeal from Mr Ibrahimi, representing a class of persons, against the Commonwealth of Australia concerning an alleged breach of duty of care owed to the plaintiffs during the shipwrecking of the boat on which they were travelling, SIEV 221, off the coast of Christmas Island in December 2010.

The Court (Payne JA, Meagher JA and Simpson AJA agreeing) (consistent with the primary finding at first instance) held that any alleged duty could not arise under the established categories of duty. Rather, any duty would have to arise as a novel duty of care, in which case the application of the salient features test is the correct approach.

On the facts of he case, there was no relevant reliance by the group members on the Commonwealth which would give rise to the relevant vulnerability, nor did the Commonwealth have control over the risk to the the group members in the relevant sense. In addition, there is no expectation placed on public authorities, of which the Commonwealth was one, of general reliance: that an entity will properly perform its public or private function.

It is important to note that this particular case dealt with potential harms flowing from omissions by a public authority, not from positive acts by such public authority. These aspects operate to mitigate against imposing a duty of care of a novel kind.

Finally, a $2 coin to the primary judge, on a difficult legal issue and emotionally charged issue, who was correct to reject case brought by Mr Ibrahimi.

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Strike out considerations – echoes from an appeal

To summarily to dispose of the proceedings is one which calls for the exercise of “exceptional caution”. [1]

The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it.” [2]

It is only to be exercised “when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff”. [3]

The “Court is not concluded by the manner in which the litigant formulates his case in his pleadings.” [4]

The fatal defects in the plaintiff’s case must be very clear before the Court will intervene to strike out a pleading. [5]

A “high degree of certainty” that the plaintiff’s case will fail if it goes to trial is required. [6]

References

1.General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.

2. Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.

3. Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.

4. Ibid.

5. Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 – 945) per Cross J.

6. Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ.

 

Taken from [6] of Perera v Genworth Financial Mortgage Insurance Pty Limited [2016] NSWCA 53 (Slattery J)

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Approach this Court should take on appeal – Warren v Coombes

From

Kitgetzis v Roche [2014] VSC 657 (Rush J)

Case involved motorbike collision with plaintiff notwithstanding plaintiff crossing street against red man signal motorbike rider could be negligent. At first instance the finding was that the applicant (motorcyclist) was negligent and that the respondent (pedestrian) was contributory negligent to the extent of 60 per cent..

Appeal – applicant denies negligence and in the alternative alleges contributory negligence on the part of the respondent.

Illustration of the role of an appeal’s court in considering whether the first instance decision with regard to breach of duty of care by motorcyclist may be overturned.

[24] The approach this Court should take on appeal was explained in Warren v Coombes.  Gibbs ACJ, Jacobs and Murphy JJ said:

The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.( (1979) 142 CLR 531, 552-3.)

……..

[44]On an appeal by way of rehearing such as the present, the appellate court will only interfere if it is satisfied the order the subject of appeal is the result of some legal, factual or discretionary error.( Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ); Lacey v A-G (Qld) (2011) 242 CLR 573, 597 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).)

[45] Obviously enough, it will be necessary for an appeal court conducting an appeal by way of rehearing to re-evaluate the question of contributory negligence for itself if it reaches different conclusions with respect to the primary facts from that of a trial judge. This, however, is not such a case. For the reasons I have explained, I accept the trial judge’s conclusions as to the primary facts. In turn, this is a case in which the trial judge’s finding as to contribution is not to be lightly reviewed. Due deference must be given to the fact that he heard the oral evidence of the relevant witnesses and was immersed in the evidence by the trial process in a way in which this Court is not.(See the observations of Whelan JA in TAC v Cuthbertson [2013] VSCA 29 [34].) This Court must be persuaded he erred in making a multifactorial evaluation of the facts as a whole. I am not persuaded that the judge’s finding as to apportionment was not reasonably open.

Appeals court unltimately agreed with trial judge that appellant (motorcyclist) was also negligent.

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Legal Principles of an appeal in the nature of ‘rehearing’

An appeal is in nature a rehearing.

A court may in certain circumstances receive fresh evidence on the hearing of such an appeal, but no application was made to lead fresh evidence in this appeal. The nature of such an appeal was examined by the High Court in Fox v Percy (2003) 214 CLR 118, where, in a frequently quoted passage, the plurality (Gleeson CJ, Gummow and Kirby JJ) said at [22]–[23] and [25]:

The nature of the “rehearing” provided in these and like provisions has been described in many cases… The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.…

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect”.

[Citations omitted]

The plurality then quoted from the decision of the majority in Warren v Coombes (1979) 142 CLR 531 at 551:

[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 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.

In the case of Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, said concerning the nature of such an appeal at 178:

In S.S. Hontestroom v S.S. Sagaporack [1927] A.C. 37 at p. 47, Lord Sumner pointed out that:

“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own views of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions offact should, as I understand the decisions, be left alone.”

Consequently, where a trial judge has made a finding of fact contrary to the evidence of the witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas [1947] A.C. 484, at p. 488.

In cases where views have been conducted. Section 54 of the Evidence Act 2011 (ACT) provides that a court may draw any reasonable inference from what it sees, hears or otherwise notices during a view. In which case a primary judge may have an advantage compared to the court hearing the appeal.

In Pledge v Roads and Traffic Authority (2004) 205 ALR 56, Callinan and Heydon JJ, with whom McHugh ACJ, Kirby and Hayne JJ agreed, said, concerning the equivalent provision in the Evidence Act 1995 (Cth) at [49]:

Even before the enactment of the Evidence Act, appeal courts customarily accorded significance to a demonstration or view at first instance.

 

[ELLIOT JAMES LAWRENCE STONE v THE OWNERS – UNITS PLAN 1214 & ORS
[2014] ACTCA 14 (19 May 2014)]