Thursday, 13 May 2010

Tsolacis v The Department of Transport [2010] VSC 183: 'substantially proved' is not 'beyond reasonable doubt'

Tsolacis v The Department of Transport [2010] VSC 183 highlights the desirability of magistrates expressing themselves unequivocally in the terminology appropriate to the application of criminal law, and stating detailed reasons as best they can when making findings of fact.

In Tsolacis, a confrontation between authorised officers of the Department of Transport and the accused lead to charges of unauthorised tram travel and assault. The accused defended himself in the contested hearing in the Magistrates' Court but was found guilty of the charges he faced. The magistrate described the charges as 'substantially proved'.

This finding was one of a number of challenges on the appeal from the Magistrates' Court. It was argued on behalf of the Department of Transport that the expression 'substantially proved' should be equated to 'beyond reasonable doubt'. This submission was rejected.

Beach J [beginning at 11]:

11 Further, there may be cases where one could look at the whole of the judgment and say that whilst the Magistrate has referred to charges being “substantially proved”, it is clear that reasons have been given for finding each element of each charge established proven beyond reasonable doubt. Again, that is not this case. The reference to the charges being “substantially proved” is, in my view, exacerbated by the statement in her Honour’s reasons that whilst the appellant highlighted some inconsistencies in the evidence of the authorised officers, “the weight of the evidence was against him”. The use of this language suggests that her Honour may have engaged in a balancing exercise, rather than asking herself whether each element of each charge had been established beyond reasonable doubt. It is regrettable that in giving her reasons her Honour did not identify the elements of each charge she found “substantially proved”.

12 Counsel for the respondent submitted that a reading of the whole of her Honour’s reasons discloses that her Honour in fact found matters proved beyond reasonable doubt. It was put that the findings of fact made by her Honour disclosed that matters had been proved beyond reasonable doubt. I disagree. The language of the findings made by her Honour was, in my view, equally apposite to a case where the burden of proof was something less than beyond reasonable doubt. It was language of a kind that is often used in the resolution of civil disputes. That is, where the standard of proof is on the balance of probabilities.

13 The short point is that the language of her Honour’s reasons suggest that the appellant was found guilty on a standard different from, and lower than, beyond reasonable doubt. For this reason alone, the appeal must succeed. Whilst an attempt was made by counsel for the respondent to equate “substantially proved” with “beyond reasonable doubt”, this attempt failed for the reasons given by the High Court in Green v The Queen. As was said by Dixon CJ in Dawson v The Queen, “it is a mistake to depart from the time honoured formula [beyond reasonable doubt]”.

(Beach J observed that Dixon CJ had been referring to instructions to juries, but considered the comments equally applicable in this context).

It's a fool's errand to search for a definitive explanation of 'beyond reasonable doubt'. Beach J was particularly critical of the magistrate's use of terminology because of the lack of comprehensive reasons given why the magistrate accepted the evidence of the prosecution and rejected the account of the accused and his witness.

In Shu Zhang v West Sands Pty Ltd [2010] VSC 36, a breach of contract claim, Byrne J vitiated the magistrate's orders and remitted the matter to be reheard based on the absence of stated satisfactory reasons alone.

Byrne J [at 15]:

15 It has been said again and again that the duty of a judicial officer is to provide adequate reasons for the orders made. This is particularly the case where the orders are made following a contested trial. This was a relatively long contested trial of substantial claims. What may be adequate reasons in a given case will depend upon the circumstances, having regard to the purposes for the giving of reasons. These purposes are to inform the parties why and how the result was arrived at and to inform any appeal court what were the contentions of the parties, what were the facts as found, what were the principles of law relied upon and how these principles were applied. A further reason is the fact that it is often useful for the judicial officer to set out his or her reasoning process as a discipline to ensure that this process was in fact undertaken and that it was intellectually satisfactory.

16 The reasons for the Magistrate in this case, regrettably, do not address these objectives. His Honour says nothing about the facts which he found or about the documentary evidence which suggested the vendor was operating the business as manager rather than as owner. His Honour may have been perfectly correct in his assessment of the competing witnesses and in the conclusions of fact which he reached. It may be that there was evidence which supported these conclusions. The difficulty which I face is that I cannot from the reasons of the Magistrate form any view upon this.

The necessity for magistrates to clearly state their reasons could not have been more earnestly emphasised.

(Refshauge J expressed similar sentiments in Moh v Pine [2010] ACTSC 27. Due to language barriers and other issues it was not clear that the accused understood the sentence imposed and the reasons for it (one of a series of errors held to have infected the sentence).

1 comment:

Jeremy Gans said...

Justice Vincent, in his report on the Farah Jama debacle, criticised Australian law's refusal to define 'beyond reasonable doubt' and seemed to include it as one of the reasons for that miscarriage of justice.