Morse v Al-Jubouri [2011] NSWSC 1330 (7 November 2011)

Last Updated: 28 November 2011

Supreme Court New South Wales

Case Title:	Morse v Al-Jubouri
Medium Neutral Citation:	[2011] NSWSC 1330
Hearing Date(s):	2 September 2011
Decision Date:	07 November 2011
Jurisdiction:	Common Law
Before:	Simpson J
Decision:	1. the appeal is allowed; 2. the order that the OSR pay Mr Al-Jubouri's costs is quashed; 3. Mr Al-Jubouri is to pay the costs of the appeal of the OSR.
Catchwords:	CRIMINAL LAW - appeal by prosecutor against costs order made by Local Court in summary proceedings - prosecution of various offences concerning false claims under the First Home Owners Grant - circumstantial evidence - charges dismissed - grounds of appeal assert magistrate erred in finding that prosecution unreasonably failed to investigate and make inquiries - appeal limited to questions of law - whether finding of unreasonableness error of law or error of fact - limited reference in decision to prosecution case - facts upon which decision made not "fully found" - findings based on assumptions not available on the evidence - error established - failure to give reasons for adverse findings made concerning conduct of the plaintiff during interview with the defendant - interview not in evidence - error established - appeal allowed - order for costs quashed - defendant to pay plaintiff's costs of appeal STATUTES - acts of parliament - interpretation - s 59 Crimes (Appeal and Review) Act 2001 - provision silent as to orders that may be made on appeal pursuant to 56(1)(e) Crimes (Appeal and Review) Act 2001
Legislation Cited:	Crimes (Appeal and Review) Act 2001 First Homeowner Grant Act 2000 Oaths Act 1900 Taxation Administration Act 1996
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Clark v Flanagan [1934] HCA 73; 52 CLR 416 Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 289 Collector of Customs v Pozzolanic Enterprises Pty Limited 1993) 43 FCR 280 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd [1941] NSWStRp 53; (1941) 42 SR(NSW) 1 Farmer v Cottons Trustees [1915] UKHL TC_6_590; (1915) AC 922 Hayes v Federal Commissioner of Taxation [1956] HCA 21; 96 CLR 47 McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8
Texts Cited:
Category:	Principal judgment
Parties:	David Morse (Plaintiff) Mahmoud Al-Jubouri (Defendant)
Representation
- Counsel:	Counsel J Sheller (Plaintiff) R M Sweet (Defendant)
- Solicitors:	Solicitors I V Knight (Plaintiff) Jayram & Associates (Defendant)
File number(s):	11/109955
Publication Restriction:

JUDGMENT

1. Pursuant to s 56(1)(e) of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act"), the plaintiff, David Morse, representing the Office of State Revenue ("the OSR"), appeals against an order made in the Local Court on 8 March 2011 that he pay the costs of summary proceedings brought on behalf of the OSR against the defendant, Mahmoud Al-Jubouri. (The judgment shows as "the date of decision" 24 February 2011. The parties were agreed that the correct date is 8 March 2011).

2. At the outset it is convenient to note an anomaly in the legislation governing the appeal. Section 56 of the Appeal and Review Act provides for an appeal to this Court against certain orders of the Local Court. It is in the following terms:

"56 Appeals as of right

(1) The prosecutor may appeal to the Supreme Court against:

(a) a sentence imposed by the Local Court in any summary proceedings, or

(b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or

(d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or

(e) an order for costs made by the Local Court against the prosecutor in any summary proceedings,

other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.

(2) ... "

3. The proceedings brought by the OSR in the Local Court were summary proceedings. It therefore has an appeal as of right to this Court pursuant to s 56(1)(e).

4. Section 59 specifies the orders that this Court may make upon appeal under s 56. Subsection (2) provides:

"(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c):

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal."

5. It is here that the anomaly arises. It will be seen that, while s 59 is specific as to the orders that this Court may make with respect to an appeal against orders of the kinds referred to in s 56(1) (b), (c) or (d), it is silent as to the orders this Court may make with respect to appeals against orders of the kind here in question, under s 56(1)(e). (Appeals of the kind referred to in s 56(1)(a) are the subject of s 59(1).)

6. The parties are agreed (probably correctly) that this is no more than a legislative oversight. However, it poses the question: what orders can the court make with respect to an appeal against orders of the kind here in question? If the maxims expressio unius personae vel rei est exclusio alterius , or expressum facit cessare tacitum are applied, then the orders this Court specifically cannot make are of the kind mentioned in s 59(2)(a) - setting aside the order (under s 59(2)(b)) and substituting another; even more anomalously, it could not make an order dismissing the appeal. With all the limitations these maxims have, this would seem to be an appropriate instance of the application of one or the other. Even on the warranted assumption that the explanation for the exclusion of s 56(1)(e) is legislative oversight, there is no basis on which the court could remedy the situation by reading into the statute words that were not enacted by the legislature.

7. This is plainly a matter calling for legislative reform.

8. I now turn to the substance of the appeal.

Background

9. On 24 October 2005, pursuant to s 7 of the First Homeowner Grant Act 2000, Mr Al-Jubouri applied for a first homeowner's grant, in respect of a property he had purchased, or intended to purchase, at 74 Harris Street, Merrylands. The grant was duly made. It entitled Mr Al-Jubouri to a cash payment of $7,000, and to exemptions with respect to stamp and mortgage duties under the Taxation Administration Act 1996. Pursuant to s 12 of the First Homeowner Grant Act , the grant was conditional upon a "residence requirement", requiring Mr Al-Jubouri, within 12 months of completion of the purchase, to commence occupation of the home as his principal place of residence, and to occupy the home for a continuous period of at least six months (unless the Chief Commissioner of State Revenue approved some variation of either of those periods).

10. The purchase was completed on 5 December 2005. Mr Al-Jubouri was therefore required to take up occupation by 5 December 2006, and remain continuously in residence until six months after the occupation date (the Chief Commissioner not having approved any variation).

11. It is the practice of the OSR to make certain routine inquiries to ensure that recipients of first homeowner grants continue to satisfy the residence requirement. One means by which this is done is to obtain from the recipient of the grant a statutory declaration confirming occupancy; another is to make checks with instrumentalities such as the Roads and Traffic Authority to ascertain whether recipients' addresses, as contained in any motor vehicle driver's licences held by them, have been given as the address of the premises the subject of the grant. Inquiries are also made of other agencies, including energy suppliers, banks and insurance companies.

12. Such routine inquiries made in respect of the grant to Mr Al-Jubouri led officers of the OSR to believe or suspect that he may not, in the relevant time, have occupied the home.

13. On 4 November 2007, Mr Al-Jubouri made and presented to the OSR a statutory declaration pursuant to the Oaths Act 1900. He declared that he had lived in the home "for more than 12 months from 09/12/05 - 03/07." He attached various documents (for example, Integral Energy accounts) to the declaration. The first of the Integral Energy accounts, with a date due of Monday 5 June 2006, showed an amount owing of $136.80; the second, which a due date of Wednesday 6 December 2006, showed an amount owing of $153.60. The statutory declaration was, on the OSR's case, false in material respects, and gave rise to a charge under the Oaths Act (see [18] below).

14. On a date that I cannot ascertain from the materials provided to me, Mr Al-Jubouri was interviewed (through an interpreter) by Mr Morse. A record was made of the interview.

15. After these investigations, Mr Al-Jubouri was charged with four offences. These were:

(a) an offence against s 178BB(1) of the Crimes Act 1900 of making a false statement to obtain money or financial advantage;

(b) an offence against s 25A of the Oaths Act of making a false declaration for material benefit;

(c) an offence against s 55(b) of the Taxation Administration Act of knowingly giving false or misleading information to a tax officer;

(d) an offence against s 44(1)(b) of the First Homeowner Grant Act of knowingly giving false or misleading information.

The hearing in the Local Court

16. The hearing of the charges commenced in the Downing Centre Local Court on 9 August 2010, and proceeded over that and the following day. Mr Morse, representing the OSR, was identified as the prosecutor. I will, however, refer to the proceedings as though initiated by the OSR. Evidence was called from a variety of prosecution witnesses, including Mr Morse. The case sought to be made by the OSR was circumstantial.

17. At the outset, the OSR tendered a "Brief of Evidence" that was marked as Exhibit 1. That bundle of documents was not put before this Court in its entirety, although some documents were separately tendered. Some of what was contained in Exhibit 1 can be gleaned from the oral evidence, the transcript of some of which was in evidence. I note that the final day of transcript that was in evidence in this Court is 10 August 2010; that transcript shows that the matter was adjourned to 29 October 2010. No transcript for that day is in evidence in this Court. At that time, the cross-examination of Mr Al-Jubouri was under way but was incomplete.

18. The evidence adduced by the OSR in the Local Court included the statutory declaration made by Mr Al-Jubouri on 4 November 2007, to which were attached the two tax invoices from Integral Energy, for 5 June 2005 and 6 December 2005, showing a consumption of electricity resulting in charges of, respectively, $136.80 and $153.60. An officer of Integral Energy gave evidence that the invoices actually issued to Mr Al-Jubouri for those dates showed amounts owing of, respectively, $36.28 and $36.76. From this evidence, the OSR sought to establish that Mr Al-Jubouri had falsified the invoices attached to the statutory declaration, and, more importantly perhaps, that the consumption of electricity at his premises was not consistent with his occupation of the house.

19. The OSR also called evidence intended to establish that Mr Al-Jubouri had given, as his postal address (to Integral Energy and others) a post office box number that was held by a friend of his, Ms Ronak Wali, who gave evidence in the prosecution case. Ms Wali said that she had visited Mr Al-Jubouri at the property, that the property was in a derelict and dirty condition and that Mr Al-Jubouri told her that he intended to clean out a garage or shed, attached to the house, to use as his living quarters. She continued to visit him after he had done so, and observed that he had only very basic cooking facilities.

20. The record of the interview conducted by Mr Morse with Mr Al-Jubouri was referred to and initially tendered in the prosecution case, but, after criticism by the magistrate, the tender was withdrawn.

21. Mr Morse said in his evidence that Mr Al-Jubouri had told him that he had been living in his car.

22. During the course of cross-examination of Ms Wali, the solicitor representing Mr Al-Jubouri produced and tendered a "COPS" (NSW Police Force) report of a break-in alleged to have taken place at the Harris Street premises between 3.00 pm on 28 October 2006, and 11.00 am on 30 October. The report of the break-in was recorded as having been made by "Anna Aljubovic". The victim was identified as Mr Al-Jubouri; his address was given as "31 Gibbons Street, Auburn". That, according to Ms Wali, was an address previously occupied by Mr Al-Jubouri.

23. The COPS report contained a checklist to be completed by the reporting officers. In answer to a question "Are Premises Usually Vacant", the officers recorded "Yes". In a short statement of relevant facts and circumstances they recorded: "No persons on premises during the incident as premise is vacant." It is not clear from this document who or what was the source of the information behind these answers.

24. On 10 August Mr Al-Jubouri gave evidence. He said that the house was in extremely poor and dilapidated condition, so poor as to be uninhabitable. He said that initially he lived in the house, but that it was vermin infested, and that, eventually, he cleaned out the garage and lived in it, for approximately a year and a half. He was working long hours in the construction industry. He had a single bed, a small gas cooking device, a toaster, and four chairs. He said that he visited friends, at whose homes he showered. He had no heating in the garage. He gave an explanation of having given the address that he did. He said that he could not write English and had not himself prepared the statutory declaration. Mr Al-Jubouri said that he had been working extremely long hours, as many as 16 or 17 in a day, up to 6 days a week. His English is extremely limited.

25. Mr Al-Jubouri was cross-examined about the interview in which he had participated. However, after the magistrate expressed concerns about the circumstances in which it was conducted, its tender was withdrawn.

26. It seems that Mr Al-Jubouri also produced evidence from the file of the local Council. This apparently disclosed that he had made an application, with the support of a neighbour, to remove certain trees on the property; and that he had submitted a development application, seeking approval to demolish the existing house and rebuild. (I say "apparently" because there is no reference in the incomplete transcript provided to this Court to the Council records. Reference was made to the records in the judgment under appeal.)

27. It emerged in cross-examination of Mr Al-Jubouri that, over a four year period, he had claimed CentreLink benefits, whilst in employment. He admitted this to be the case.

28. On 29 November 2010, the magistrate dismissed all four charges, giving reasons. In this appeal the OSR does not seek to challenge that decision. It is, however, necessary to refer briefly to the reasons.

Reasons for Acquittal

29. The reasons given for the dismissal of all charges were brief. The magistrate referred to the evidence that Mr Al-Jubouri used Ms Wali's address for various purposes, but held that that was insufficient to raise an inference that he was residing in her premises. He made a similar finding in relation to the use of very small amounts of electricity, noting Mr Al-Jubouri's long work hours, and the poor condition of the property. He seems to have accepted evidence that it was a friend of Mr Al-Jubouri, not Mr Al-Jubouri himself, who falsified the Integral Energy records, for the purpose of addressing the requirements of OSR investigation.

30. He noted Mr Al-Jubouri's admission of having received CentreLink benefits to which he was not entitled.

31. He concluded that the circumstantial case presented by the OSR was insufficient to prove beyond reasonable doubt that Mr Al-Jubouri had not occupied the premises, as required. That being the case, most of the charges failed. However, the magistrate separately considered whether Mr Al-Jubouri knew that the statutory declaration he had sent to the OSR was a false instrument. He accepted the evidence that Mr Al-Jubouri is illiterate in the English language and he was therefore not satisfied to the requisite degree that Mr Al-Jubouri knew that the statutory declaration was false. He accordingly dismissed all charges. He made no reference in this judgment to the evidence of Mr Al-Jubouri's tree removal and development applications to the local Council.

The application for costs

32. On the acquittal of Mr Al-Jubouri, an application on his behalf was made for costs. Such an application is governed by s 214 of the Criminal Procedure Act , which is in the following terms:

214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2) ...

(3) ..."

33. No additional evidence was adduced on the costs application. Both parties made submissions.

34. On 8 March 2011 the magistrate gave judgment, ordering the plaintiff to pay Mr Al-Jubouri's costs. It is that judgment against which the OSR appeals.

The magistrate's reasons for making a costs order against the OSR

35. The magistrate briefly noted the evidence adduced by the OSR in the prosecution. In this judgment he made particular reference to the evidence derived from the Council file. (He had made no reference to that evidence in the judgment dismissing the charges.) This was, as he noted it, a letter to the Council countersigned by a neighbour, stating Mr Al-Jubouri's intention to apply to remove trees from the home, and a development application, dated 30 May 2006, by Mr Al-Jubouri, seeking consent to the construction of a new dwelling.

36. Under the heading:

"Did the prosecutor unreasonably fail to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought?",

(a clear reference to s 214(1)(c)), the magistrate identified the issue for determination as:

"13. ... whether the documents [the Council documents concerning the removal of trees and the development application obtained from the Council] give rise to a relevant matter; and if so, whether the prosecutor ought reasonably to have been aware of the matter, and if so whether the matter suggested that Mr Al-Jubouri was not guilty or that proceedings should not be brought."

He held that those documents did give rise to a relevant matter with respect to the residence requirement. He then said:

"14 Mr Morse had access to the council records, and ought to have been aware of the application [for development]. The application for development consent indicated that Mr Al-Jubouri intended to build on the home, and as such suggested that the home was his principal place of residence.

15 The fact that Mr Al-Jubouri applied to Council to remove trees and develop the property suggested that he was not guilty. It provided an explanation for the low consumption of electricity. It also provided an explanation as to why he used the address of Ms Wali to conduct his business."

37. Under a second heading:

"Was the investigation into the alleged offence was [sic] conducted in an unreasonable or improper manner",

(a clear reference to s 214(1)(a)), the magistrate observed that there was no evidence that Mr Morse ever went to the property and said that he (Mr Morse) had confined his investigations to compiling information obtained from other agencies as to the address used by Mr Al-Jubouri to conduct his business, and the history of electricity usage.

He then said:

"17 If Mr Morse had gone to the property he would have obtained information about the state of the property. He might have interviewed neighbours. The information Mr Morse would glean from such a visit would have provided him with information to suggest that the proceedings should not have been brought."

Finally, he said:

"18. The investigation was also conducted in an improper manner with respect to the interview of Mr Al-Jubouri."

He did not elaborate upon or identify the impropriety; the finding harked back to his earlier criticism, (see [25] above) which had caused the withdrawal of the record of the interview from evidence.

He therefore concluded:

"19. The prosecutor:

(1) Failed to investigate a relevant matter of which it ought reasonably to have been aware and which suggested that Mr Al-Jubouri might not be guilty.

(2) Conducted the investigation in an improper manner.

(3) Conducted the investigation in an unreasonable manner.

These were findings, respectively, under s 214(1)(c) and (a), and provided the foundation for a costs order.

38. He therefore ordered the OSR to pay Mr Al-Jubouri's costs of the proceedings. It is to be noted that he made no finding, one way or the other, as to whether Mr Al-Jubouri did live in the premises.

The grounds of appeal.

39. The grounds of appeal are pleaded in the summons as follows:

"[The magistrate]

(a) erred at law in finding that it was unreasonable for the Plaintiff (prosecutor) not to access council documents and [to] conclude from such documents that Mr Al-Jubouri resided in the premises when there was no evidence that such documents suggested he did live there under circumstances where there was significant evidence to support a finding that Mr Al-Jubouri did not live in the premises;

(b) erred at law in finding that it was unreasonable for the Plaintiff (prosecutor) not to speak to Mr Al-Jubouri's neighbours to investigate whether he did live in the premises when there was no evidence that such inquiries would have been productive and in circumstances where there was significant evidence to support a finding that Mr Al-Jubouri did not live in the premises;

(c) erred at law in giving no reasons for finding that the conduct of the Plaintiff's participation in an interview with Mr Al-Jubouri was improper;

(d) erred at law in giving no reasons for finding that the conduct of the Plaintiff in commencing and maintaining the prosecution against Mr Al-Jubouri was unreasonable."

The evidence on appeal

40. The evidence on the appeal suffered from considerable deficiencies. It did not include a large amount of material, including some transcript of evidence that was before the Magistrate. It consisted of an affidavit affirmed by the solicitor for Mr Al-Jubouri (who appeared for him in the Local Court), annexing copies of the transcript of the hearing of 9 and 10 August, and submissions made to the magistrate, as well as the judgment on costs, and two affidavits affirmed by a solicitor in the employ of the Crown Solicitor's Office, representing the OSR. To the second affidavit was annexed the statutory declaration made by Mr Al-Jubouri on 4 November 2007, six tax invoices issued by Integral Energy to Mr Al-Jubouri, six tax invoices issued by Integral Energy to Ms Wali, and the COPS report referred to at [22-23] above. To the earlier affidavits were annexed the transcript of the argument in relation to costs, and the judgment awarding costs. Notably absent was any transcript of proceedings on 29 October, and any documentary evidence tendered that day.

Questions of law on appeal

41. Bearing in mind that an appeal under s 56 of the Appeal and Review Act is limited to grounds involving a question of law alone, significant questions arise in relation to grounds (a) and (b).

42. Ground (a) is based upon an express premise that is false. The premise is that the magistrate made a finding of fact that Mr Al-Jubouri resided in the premises. As I have mentioned above, the magistrate made no finding, either that Mr Al-Jubouri did or did not live in the premises. In the primary judgment of 29 November 2010, dismissing the charges, he said:

"The circumstantial evidence is insufficient when considered together to prove beyond a reasonable doubt that Mr Al-Jubouri did not occupy as his principal place of residence, 74 Harris Street, Merrylands for a continuous period of six months, commencing within 12 months of settlement."

43. Nor is there any such finding in the judgment of 8 March 2011, the subject of the appeal. In any case, even if he had made such a finding, it would have been a clear finding of fact, unreviewable under s 56.

44. However, that premise can be excised from the ground, without disturbing its essential meaning.

45. The greatest difficulty, and this applies equally to ground (b), is whether it raises a question of law, as required by s 56. At issue are the findings of the magistrate that (a) it was unreasonable for the OSR to fail to obtain access to Council documents that would have revealed Mr Al-Jubouri's two applications (for tree removal and development); and (b) that it was unreasonable for the OSR to fail to make inquiries of neighbours of Mr Al-Jubouri as to his residence (or otherwise). Issues of reasonableness have the appearance of questions of fact, not law.

46. In written submissions, counsel for the OSR acknowledged the need to establish that the grounds do raise questions of law, and argued:

"16. The [OSR] submits ... that [the magistrate] misconstrued the relevant provisions of s 214 of the Criminal Procedure Act by not having regard to the relevant prosecution evidence in determining whether one or more other inquiries should have been made and would have suggested innocence on the part of [Mr Al-Jubouri]."

47. In his written submissions, counsel for Mr Al-Jubouri conceded as much. He said:

"4.3 There is no issue that a question of law is raised in the [OSR's] summons. The submission ... that [the magistrate] ' misconstrued the relevant provisions ' of s 214 of the Criminal Procedure Act 1986 by ' not having regard to the relevant prosecution evidence in determining whether one or more other inquiries should have been made ' clearly raises a ' question of law ' ... ".

48. Both the submission and the concession suffer from a flaw in reasoning. Failure to have regard to relevant prosecution evidence does not establish misconstruction of statutory provisions. I any event, I am not persuaded that the concession is properly made. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Glass JA, with whom Samuels JA agreed, referred to a number of previous decisions. One of these was McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8 at [9], in which it was said that the question whether there is any evidence of a particular fact is a question of law; however:

"But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a Tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a Tribunal must believe the evidence because it is all one way. It can accept all, or some, or none of it."

Another decision to which Glass JA referred was Clark v Flanagan [1934] HCA 73; 52 CLR 416, in which Dixon J (as he then was) said:

"The initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law."

A third decision was De Gioia v Darling Island Stevedoring & Lighterage Co Ltd [1941] NSWStRp 53; (1941) 42 SR(NSW) 1 at [5] in which it was said:

"...If the jury find for the plaintiff, and the Full Court rules that the rebutting evidence is overwhelming, it is expressing the opinion that the defendant was, as a matter of fact, not of law, entitled to a verdict."

49. Of these decisions, Glass JA said:

" It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Exparte White [1966] HCA 69; 116 CLR 644 at 654 .

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council [[1980] HCA 16]; [1980] HCA 16; 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General [1940] NSWStRp 9; (1940) 40 SR(NSW) 126 at 138..."

50. Both counsel referred to the decision of the High Court in Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 389 and, in particular, the High Court's acceptance (at p 395) of five propositions, drawn from Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280. Those propositions were stated as follows:

"1. The question whether a word or phrase of a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

3. The meaning of a technical legal term is a question of law.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law" (internal citations omitted).

51. Agfa-Gevaert , like the present case, involved an appeal limited to questions of law. As can be gleaned from the five propositions stated, the specific question in that case involved the construction of particular terminology in a statutory instrument. Propositions 1 - 4 are directed to that question, and have no real bearing upon the present question. Proposition 5 is material, but was qualified in Pozzolanic . The High Court appears to have approved the qualification. The qualification was stated in Agfa-Gevaert as:

"...when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact."

52. In adopting proposition 5, the High Court was echoing something that had been said by Fullagar J in Hayes v Federal Commissioner of Taxation [1956] HCA 21; 96 CLR 47, quoting Farmer v Cotton's Trustees [1915] UKHL TC_6_590; (1915) AC 922 as follows:

"The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only."

Fullagar J considered that this was "the only reasonable view".

53. In the same case, in a passage also endorsed by the High Court in Agfa-Gevaert , Fullagar J said:

"The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). ... Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." (p 51).

The qualification to proposition 5 appears to me to be to the same effect as the last sentences extracted from Azzopardi . Put another way, if the facts found are capable of giving rise to the conclusion or finding of fact (capacity to do so being a question of law) whether to do so is a question of fact.

54. In a later passage in Agfa-Gevaert , relied upon by counsel for the OSR, the High Court said:

" All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech."

In my opinion, the reliance upon this passage was misplaced. There is no phrase used in s 214 which is identified as being used in a sense different from that which it has in ordinary speech. The relevant phrases are:

"that the investigation...was conducted in an unreasonable or improper manner"; "that the prosecutor unreasonably failed to investigate...any relevant matter ...".

55. There is no reason to think that these collocations of words ought not be given their ordinary meaning. That is why propositions 1 - 4 of Agfa-Gevaert also are not presently material.

56. It is also to be observed that, while the statutory terminology in question is of reasonableness or impropriety of conduct, "unreasonableness" in particular, is a qualitative or evaluative concept, and, it seems to me, not the kind of concept the High Court had in mind when, in proposition 5, it referred to "the provision of a statutory enactment properly construed."

57. If the above analysis is applied to the present case, the following results. The factum probandum in relation to ground (a) is the (asserted) unreasonableness of the OSR in failing to investigate the Council's records; in relation to ground (b) it is the (asserted) unreasonableness of the OSR in failing to make inquiries of Mr Al-Jubouri's neighbours.

58. The facta probantia upon which the Magistrate relied are:

• Ground (a):
• the application by Mr Al-Jubouri for permission to remove trees;
• the application for development consent;
• the existence of Council records that would have disclosed those applications;
• the access OSR could have had to the Council records;

• Ground (b):
• that there were neighbours in Harris Street;
• the neighbours may have been able to supply information about Mr Al-Jubouri's occupation (or otherwise) of the property;
• that the OSR could have gone to the vicinity and made inquiries of those neighbours;
• that the OSR did not do so.

59. If the Hayes approach is to be taken, the question whether the facta probantia in each case established the factum probandum is a question of law reviewable under s 56 of the Appeal and Review Act . But if the qualified Pozzolanic proposition 5 is to be applied, the task for this Court is to identify whether the evidence adduced was capable of establishing unreasonableness in either of the relevant respects. If it is so capable, then the ultimate finding is one of fact, and therefore unreviewable.

60. I also bear in mind that passage in Azzopardi (the last sentence in the first paragraph extracted above) that exclude as a question of law, an attack upon the reasoning process.

61. Although I maintain some doubt, given the concession made on behalf of Mr Al-Jubouri, the consequent absence of argument on the question, and the difficulties of drawing a clear distinction between questions of fact and questions of law, I consider that the appropriate course to take in this case is to treat each of the grounds as raising a question of law by doing so should not be taken as endorsement of any proposition that an attack on a finding of reasonableness of itself raises a question of law.

Ground (a)

62. The findings giving rise to ground (a) are directed to s 214(1)(c) of the Criminal Procedure Act . That section is concerned, not only with unreasonable failure to investigate a matter of which the prosecutor was or ought to have been aware; the "matter" must be such as to suggest either that the accused person might not be guilty, or that, for any other reason, the proceedings ought not to have been brought. The magistrate was fully aware of these questions, and addressed himself to them.

63. The Council records were not in evidence on the appeal. Nor were the two applications referred to in the primary judgment. They are mentioned only in the judgment on costs, and relied on as evidence that suggested that Mr Al-Jubouri was not guilty (of which offence or offences is not specified) and which the OSR unreasonably failed to investigate.

64. All that is known of the applications is what is to be found in the costs judgment of 8 March 2011, the subject of the appeal. That makes it difficult to evaluate whether the facts found fall within the terminology of sub-para (c). But, it seems to me, the complaint of the OSR, properly characterised, is that (using the language of Farmer , and of proposition 5 in Agfa-Gevaert ), the facts were not "fully found". Both the primary judgment and the costs judgment are brief, and make little, if any, reference to aspects of the prosecution case. These aspects include the asserted falsification of the Integral Energy accounts, the use of other addresses by Mr Al-Jubouri and the information provided to police recorded on the COPS document.

65. Counsel who appeared for Mr Al-Jubouri on the appeal recognised the difficulty, describing the Magistrate's finding that Mr Al-Jubouri's applications for tree removal and development suggested occupation as distinct from ownership as "a long bow to draw". This concession was well made. If it were not for the explicit ruling by Glass JA in Azzopardi that "demonstrably unsound reasoning does not amount to error of law, I would have concluded that the error of logic, alone, is of such magnitude as to constitute error of law. However, Azzopardi precludes that conclusion. Nevertheless, it is plain that the facts have not been "fully found", and this is sufficient, in the circumstances, to permit review of the decision. The decision cannot withstand that scrutiny.

66. Counsel for Mr Al-Jubouri sought to defend the decision in other ways, but this does not overcome the fact that there was an error of law infecting the decision. Ground (a) succeeds.

Ground (b)

67. The Magistrate found, pursuant to s 214(1)(a), that the investigation was conducted in an unreasonable or improper manner because the OSR failed to go to the property and make enquiries of neighbours. He held that, had the OSR done so:

"The information [it] would have gleaned from such a visit would have provided [it] with information to suggest that the proceedings should not be brought."

Underlying this finding is an assumption that is unwarranted, and not available on the evidence. There was no evidence as to what such enquiries might have yielded. It is equally feasible that the evidence so obtained would have supported the OSR's case. It was not open to the Magistrate to find that failure to make those enquiries was unreasonable.

68. Ground (b) is made out.

Grounds (c) and (d)

69. Each of these grounds complains that the Magistrate gave no reasons for adverse findings he made concerning the conduct of the OSR. The first ground concerns the conduct of Mr Morse in interviewing Mr Al-Jubouri. There were some exchanges between the Magistrate and counsel when the record of the interview was tendered, and when Mr Morse was questioned about it, but these prompted counsel for the OSR to withdraw the tender. The record was therefore not in evidence. That does not mean, of course, that the Magistrate had no knowledge of the content of the interview, but it ought to have been put out of his mind. More importantly, the finding was made in circumstances where counsel of the OSR had no opportunity to argue about the propriety of the interview, or to make submissions about what conclusion ought to be drawn from it. That, in itself, was an error of law (although one not identified in the grounds). Ground (c) succeeds.

70. I can find no express finding in the terms set out in ground (d), that the conduct of the OSR in commencing and maintaining the prosecution was unreasonable, and, accordingly, it was not an error of law for the Magistrate to fail to give reasons for such a finding. Ground (d) fails.

71. As grounds (a) - (c) are made out, the appeal must succeed.

72. The question then arises: what order ought to be made?

73. The orders I make are:

(1) the appeal is allowed;

(2) the order that the OSR pay Mr Al-Jubouri's costs is quashed;

(3) Mr Al-Jubouri is to pay the costs of the appeal of the OSR.

74. Counsel for Mr Al-Jubouri, against the possibility of such a result, sought a certificate under the Suitors Fund Act 1951. I order that, if otherwise entitled, a certificate be issued to Mr Al-Jubouri.

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