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J.K. (a juvenile) v. TONY GLEN WALDRON
No. 465 of 1988
Appeal - Criminal Law - Evidence
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Appeal - Convictions by magistrate - nature of appeal after 1983 amendment -
whether appeal encompasses the "unsafe or unsatisfactory" ground - Justices
Act, s.163, Criminal Code s.411(1)
Appeal - Convictions based on uncorroborated evidence of accomplices -
whether unsafe or unsatisfactory
Criminal Law - Appeal from magistrate - whether "unsafe or unsatisfactory"
ground open - whether convictions based on uncorroborated evidence of
accomplices are unsafe or unsatisfactory - test to be applied by appellate
court - Justices Act s.163, Criminal Code s.411(1).
Evidence - Rule in Browne v Dunn - double aspect discussed.
Evidence - evidence of accomplices implicating appellant - need for caution
- desirability of corroboration of accomplice evidence - effect of Rule in
Browne v Dunn where credibility of accomplices not cross-examined.
Benson v Rogers (1966) Tas SR 97
Browne v Dunn (1893) 6 R 67 (HL)
Bulstrode v Trimble (1970) VR 840 at 848
Chamberlain v R (No. 2) 1983-4) 153 CLR 521
Collins v Hill (unreported, Martin J.
- 22 February 1988)
Richardson v Shipp (1970) Tas SR 105
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193
Messel v Davern (1981) 9 NTR 21
Davies v Director of Public Prosecutions (1954) AC 378
Cases referred to:
Tomas v Van Den Yssel (1976) 14 SASR 205
Liversidge v Anderson (1942) AC 206
Scott v Killian (1985) 19 A Crim R 187
Morris v R (1978) 74 ALR 161
Taylor v Armour Co Pty Ltd (1962) VR 346
R v Wallace (1978) Qd R 323
Murphy v Porter; ex p Murphy (1985) 1 Qd R 59
Counsel for the appellant : C.A. Bonnici
Solicitor for the appellant : NAALAS
Counsel for the respondent : C.F. Jenkins
Solicitor for the respondent : Solicitor for
the Northern Territory
As none of the grounds of appeal have been made out the eight appeals are
dismissed and the convictions of 12 May 1988 affirmed.
The appellant, then aged 14 years, was charged before the Juvenile Court at
Darwin on 11 May 1988 with having committed the following 8 offences:-
(1) Unlawfully entering a dwelling house in
Castor Court, Palmerston on 23 January 1988, with
intent to steal (Criminal Code s.213).
(2) Stealing jewellery and food to the value
of $800 on 23 January 1988 (Criminal Code s.210).
(3) Unlawfully damaging a lounge suite and a
water bed, valued at less than $500, on 23 January
1988 (Criminal Code, s.251).
(4) Unlawfully entering a dwelling house in
Canonbury Circuit Palmerston on 3 February 1988 with
intent to steal (Criminal Code, s.213).
(5) Stealing property worth a total value of
$1,418 on 3 February 1988 (Criminal Code, s.210).
(6) Unlawfully damaging the inside of a house,
to the value of $245 on 3 February 1988 (Criminal
(7) Unlawfully entering a dwelling house in
McInnes Circuit, Palmerston on 11 February 1988,
with intent to steal (Criminal Code, s.213).
(8) Stealing jewellery, cash and sunglasses to
a total value of $208 on 11 February 1988 (Criminal
He pleaded not guilty to each charge; he was represented by Counsel. On 12
May he was found guilty on each charge and convicted accordingly.
2. On 10 June 1988 he appealed against each of these convictions; by consent
the appeals were heard together. The appellant contended that each of the
convictions was unsafe and unsatisfactory, because they were founded on the
uncorroborated evidence of an alleged accomplice or accomplices. The appellant
also contended that there was insufficient evidence to warrant convictions for
offences nos 4-6.
3. I turn first to the proceedings in the Juvenile Court.
A. The Police case as opened
4. The case which the Police sought to establish was as follows:-
(a) Charges nos. 1-3 (23 January 1988)
At about 10.00pm on 23 January 1988 the appellant was in the company of
another juvenile McA. McA smashed a rear window of the house at Castor Court;
the appellant entered through the window and let McA in through the door. The
appellant stabbed a water bed with a knife which he had taken from the
kitchen, took some jewellery from the bedroom, and slashed a lounge suite with
a knife. McA took food from the kitchen. They then left the house and went
into the bush. The jewellery was thrown away and has not been recovered; its
value is $800.
(b) Charges nos. 4-6 (3 February 1988)
5. On 3 February 1988 the appellant, in the company of some other juveniles,
went to the house in Canonbury Circuit. McA ripped the flyscreen from the
toilet window, removed louvres, entered the house, and opened the door for the
appellant and another co-offender J. The 3 of them searched the house, threw
eggs into fans, filled satchels with items valued at $1,418, and left. The
damage they caused to the interior of the house amounted to $245.
(c) Charges nos. 7 and 8 (11 February 1988)
6. On the evening of 11 February 1988 the appellant and McA entered the house
at McInnes Circuit through an unlocked rear door. They searched for money.
The appellant took a plastic container containing $160 in cash and some
7. In each break-in there was no one home at the time. I turn next to the
evidence placed before the Juvenile Court.
B. The evidence
8. The learned Magistrate heard evidence from the owners of the 3 houses as
to the mess they found and the goods they found to be stolen, when they
returned to their homes. The evidence was clearly convincing and detailed on
these matters. None of it went to the identity of the culprits.
9. Two juveniles, McA and J, allegedly co-offenders of the appellant, gave
evidence against him. They had already been convicted of participation in the
offences the subject of their evidence, and punished.
10. McA gave evidence implicated the appellant in all 8 offences. His
testimony was as follows.
(a) Offences of 23 January 1988 (nos. 1-3)
11. On this night he was with the appellant. They went together to the house
in Castor Court. McA broke the glass in a window, unlocked it and the
appellant entered through the window and let McA in through the door. The
appellant took a knife from the kitchen and "then we ripped up all the
furniture and the water bed". The appellant "put a hole in the water bed,
that's all". However, in cross-examination, it appeared that McA did not
actually see the appellant damage the water bed; he said "I just seen a hole
in the bed". The owner of the house had detailed the disorder he had found on
his return the following morning; as to the water bed his evidence was that it
"had been jumped on, the valve had been busted, and there was water all over
the carpet". In the result the learned Magistrate was not satisfied that the
appellant had cut the water bed. McA said that the appellant took an orange
from the refrigerator while he himself took some jewellery which he later
threw away in the bush behind the house. All that he saw the appellant
carrying away was an orange.
(b) Offences of 3 February 1988 (nos. 4-6)
12. McA said that he had been with the appellant and another juvenile J that
day. J had a key to the house in Canonbury Circuit. They went to the house
and entered it using the key. It will be recalled that the Police case was
that the premises had been entered through a window, a matter supported by the
description of the window given by the owner of the house on his return - the
fly wire removed from the toilet window, a louvre removed, and the louvres
opened. McA gave an account of finding liquor in a refrigerator, putting it
in his school bag, and giving the bag to the appellant. He said that at the
time "(the appellant) was just standing around". He said he did not see what
the appellant did in the half hour or so they were in the house or where the
appellant went, inside the house.
13. J gave evidence implicating the appellant in the offences of 3 February
1988. His evidence was that on that day he was in the company of the
appellant, McA and another juvenile. He testified:-
"We went for a walk, and we broke into a
house." (emphasis mine)
He identified the house in question as the house in Canonbury Circuit. By his
account McA opened a window, someone entered through the window, and opened
the door through which he (J) entered. His account is in contrast with McA's
account that he J had a key and that they had entered the premises using that
key. It is consistent with the owner's account of finding the flywire and
louvres removed from a window. J said that he placed certain things into his
school bag. He said that McA took "grog". By his account he was in the house
for some 10 minutes.
(c) Offences of 11 February 1988 (nos. 7 and 8)
14. McA testified that at about 10.00pm that night he was with the appellant.
They went to the house in McInnes Circuit, and entered through an unlocked
back door. They searched all the rooms without finding anything. Although
the appellant was in the house with him, McA did not see the appellant "and he
took off before me". He did not see if the appellant was carrying anything
when he left, nor did he take anything himself.
15. I turn next to the submissions made and the decision of the Juvenile
Court. The learned Magistrate was addressed on the need for the corroboration
of the accomplice evidence of McA and J, and on the question whether one
accomplice could corroborate another. Mr Bonnici, Counsel for the appellant,
submitted that the only evidence connecting the appellant with any of the 8
offences with which he was charged, was that of McA and J; as alleged
accomplices, J and McA could not corroborate each other. Mr Bonnici relied on
Davies v Director of Public Prosecutions (1954) AC 378 at 399, per Lord
16. As far as charges nos 4-6 were concerned Mr Bonnici submitted that
neither McA nor J had testified that the appellant was in the house at
Canonbury Circuit; nor had they stated what part, if any, he had taken in the
commission of the offences charged. He submitted that it was not clear from
McA's evidence at what stage he had given the appellant the bag which
contained the "grog".
17. Mr Bonnici's major submission was that the various inconsistencies
between the evidence of McA, J and the householders made it very dangerous to
convict the appellant.
18. The learned Magistrate took time for consideration and delivered judgment
on 12 May. His Worship noted the various deficiencies and variations in the
evidence and concluded:-
"However, by and large it's fair to say
that there is evidence of three unlawful enterings
of dwelling-houses, evidence of stealing the sorts
of things which are alleged in the charges, and
evidence of a considerable amount of damage.
The question is how does the defendant get
linked to that. The defendant is linked to it by
the evidence of two youngsters who have both been
before the court charged over the same matters.
(McA) has given evidence which puts the defendant
fairly in at all three occasions. He doesn't say
that the defendant did very much, but his evidence
makes it quite plain that the defendant was neither
an innocent bystander nor just a nit-keeper.
(J) put him at one house only, and doesn't have
him doing very much. The defendant declined to make
a statement to the police, as was his right, and he
has not given evidence before me yesterday, as was
his right. Neither has he cross-examined (J) at
all, nor strenuously cross-examined (McA). In
particular, he has made no suggestion to (McA) that
(McA) is telling untruths or exaggerating what he
says about the defendant's situation.
On the one hand, we have a very sensible rule
of practice that a magistrate or judge must direct
the court that it is dangerous to act on the
uncorroborated evidence of an accomplice. There is
a rule of practice equally strong that he should
direct the court that it is dangerous to act on the
uncorroborated evidence of a child. These two are
definitely accomplices. Whether they are children
is perhaps problematical. I don't know what (McA's)
age is; he looks anything between 14 and 16. J
looks a deal younger; he might be anywhere between
12 and 14, but I don't know.
The only way I know how old the defendant is is
because I've got a date of birth on the information.
(McA) is hardly at that age of a child where you
simply couldn't trust his evidence because he's of
immature years, and really neither is J. We also
have to contend with the equally proper
well-respected rule, the rule in Browne v Dunn. One
might have thought that if these lads were lying in
their teeth about the defendant's involvement, then
the defendant would have instructed his counsel, who
would have at least put that to them.
As it is, I'm very much inclined to the belief
that (McA) was lying in his teeth about parts of his
evidence, the evidence that he was in a house for
half an hour and had no idea that massive amounts of
damage were being done in another part of that house
by people - presumably people he was with. (McA),
it seems to me, has put the defendant in a little
bit, perhaps enough to make sure that he shares
(McA's) predicament, and no more. I am quite unable
to say that I regard (McA.) as a witness of truth as
to the precise degree of participation of the
defendant, but I am able to say that I regard him as
a witness of truth as to the defendant's being at
each of these places and acting in concert with the
people who were there taking an active. (sic) Under
the Code, I'm afraid that puts the defendant in it.
I find the defendant guilty of all the
charges." (emphasis mine)
THE SUBMISSIONS ON THE APPEAL
19. Ms Jenkins advanced a threshold argument. She submitted that the grounds
for appeal set out in s.163(1) of the Justices Act (applicable to this appeal
by its adoption in s.58(3) of the Juvenile Justice Act) did not permit the
appellant to argue, as he sought to argue, that the convictions were "unsafe
or unsatisfactory". She conceded that under the "common form" provision in
the laws of the States and Territories of Australia, such as s.411(1) of the
Criminal Code (NT), providing for appeals to courts of criminal appeal, an
appellant could contend that a jury verdict was unsafe or unsatisfactory
notwithstanding that there was sufficient evidence to support it; see Morris v
R(1978) 74 ALR 161 at p 175, per Deane, Toohey and Gaudron JJ.; and at p 166,
per Mason C.J. She submitted, however, that s.163(1) of the Justices Act
differed markedly in its wording from the "common form" provision and did not
allow grounds of appeal as extensive as those under Code 411(1).
20. Section 163(1) of the Justices Act provides that appeal lies -
"... on a ground which involves -
(b)an error or mistake ... on a matter or question
of fact alone, or a matter or question of law alone,
or a matter or question of both fact and law ..."
I note that the appellant's ground of appeal under attack was
"That it was unsafe and unsatisfactory to
convict the defendant of the offence on the
uncorroborated evidence of accomplices."
21. The second ground of appeal - insufficient evidence to warrant the
convictions on charges nos 4-6 - also attacked certain convictions on the
basis they were unsafe or unsatisfactory, or dangerous.
22. Section 163(1) of the Justices Act is now in a very different form to the
provision considered by the Full Court in 1981 in Messel v Davern (1981) 9 NTR
21. The Full Court there noted (at p 25) that the corresponding provision in
South Australia provided for a full appeal on both facts and law; it was held
that the then s.163(1) provided for an appeal by way of rehearing which could
involve a hearing de novo. It seems clear enough that the substitution of the
present s.163(1) in 1983 was designed to abrogate the decision in Messel v
Davern (supra) by providing for the appeal under s.163(1) to be an appeal in
the strict sense. As a result I do not think that Messel v Davern is now
authoritative as to the nature of a Justices appeal in this jurisdiction.
23. It appears to have been tacitly accepted hitherto that appeal lies under
the present s.163(1) on the ground that the evidence was so unsafe and
unsatisfactory that it would be dangerous to convict; see for example Collins
v Hill (unreported, Martin J., 22 February 1988).
24. Section 163(1) is very similar in its wording to s.107(4)(a) of the
Justices Act (Tasmania), which provides for an appeal, by way of order to
review, on the grounds of
"an error or mistake on a matter or
question of fact alone, or of law alone, or of both
fact and law."
In Benson v Rogers (1966) Tas SR 97 Burbury C.J. said (at p 99) that the
question for the appellate court under the Tasmanian provision was whether the
magistrate was reasonably entitled not to be satisfied that certain inferences
of fact should be drawn from the evidence. His Honour said (at p 99):-
"Upon a question of fact this court should
treat a matter for review in the same way as an
appeal from the verdict of a jury."
Burbury C.J. expressed the same view in Richardson v Shipp (1970) Tas SR 105
at p 117, another case turning on the weighing of evidence. His Honour cited
in support Taylor v Armour and Co. Pty Ltd (1962) VR 346 at p 351; that was a
decision of the Full Court in Victoria dealing with the Justices appeal by way
of order to review in that State. The Full Court described it as a "long
established practice" that, in relation to any question of fact, the decision
of the Court below should be treated "in the same way as an appeal from the
verdict of a jury", and accordingly "it is not for this Court to make up its
own mind upon the evidence", but to see "whether there was evidence upon which
the magistrate might, as a reasonable man, come to the conclusion to which he
did". The Victorian provision for review appears to be limited to errors of
25. In R v Wallace (1978) Qd R 323 Lucas J. noted at p 327 the power of a
Court of Criminal Appeal to set aside a jury verdict under the "common form"
provision if it considered it would be "dangerous to convict"; and stated (at
"The court should be more ready to set
aside a conviction by a magistrate on the ground
that it is dangerous in the administration of
justice to allow it to stand than it would to set
aside a jury's verdict on this ground."
26. I note that a similar approach was taken in Murphy v Porter; ex p Murphy
(1985) 1 Qd R 59, a decision of the Full Court in Queensland dealing with the
appeal by way of order to review in that State which encompassed error or
mistake in law or fact; see s.209 Justices Act (Q'land).
27. At pp 67-68 Andrews S.P.J. said:-
"Where there is no apparent error of law I
find it difficult without infringement of principle
to conjure up a set of circumstances which would
call for application to a decision a view that it
was dangerous in the administration of justice
except in relation to sufficiency or weight or
nature of evidence ..."
At p 67 his Honour concluded -
"... if the view of this court upon review
of proceedings before a magistrate is that there is
some evidence which in a jury trial might be left to
the jury but as to which a presiding judge ought to
direct that it would be dangerous to act upon this
court may quash a conviction or order."
At pp 78-81 Thomas J. examined the principles governing the proper approach of
an appellate court towards findings and conclusions of a magistrate upon the
return of an order to review. Inter alia his Honour concluded (at p 79) that
if the finding of fact was one that a reasonable man could not make on the
evidence, it would be set aside.
28. From this brief review of authorities I consider apposite, I consider
that the appeal under s.163(1) of the Justices Act comprehends the ground that
the Magistrate's decision was unsafe or unsatisfactory because the evidence
was insufficient or of such a nature that it would be dangerous to convict. I
therefore reject Ms Jenkin's submission. The matters relevant to establishing
this ground are discussed in Collins v Hill (supra) at pp 5-7.
29. Mr Bonnici's primary submission was that all the convictions were unsafe
and unsatisfactory because they were based on the uncorroborated evidence of
accomplices. It is a well-established practice to call as witnesses for the
prosecution accomplices who have pleaded guilty and been dealt with. They are
competent witnesses. For obvious reasons, it is desirable that the evidence
of an accomplice be corroborated. Frequently, however, this is not possible.
The law then requires that the magistrate warn himself that though he may act
upon the evidence of the accomplice, it is dangerous to do so in the absence
of corroboration. It is not in issue that the learned Magistrate warned
himself in this case.
30. Mr Bonnici referred in detail to the evidence given by McA in relation to
all the charges. It is clear to me that, as his Worship held, in his evidence
in chief McA places the appellant in each of the 3 houses, taking part in the
offences charged. McA was cross-examined very briefly and the only question
which related to the role of the appellant was as follows:-
"Is it true that you didn't actually see
(the appellant) do any damage to the water
31. Mr Bonnici submitted that the Magistrate had wrongly concluded that
because the evidence of the accomplices as to the appellant's presence had not
been challenged in cross-examination, it must be accepted as true, because of
the rule in Browne v Dunn (1893) 6 R 67 (HL). This amounts to a submission of
error of law and should have been set out in the Notice of Appeal as a
separate ground; however, no objection was taken. In his submission the rule
in Browne v Dunn (supra) was of limited utility where the issue was
credibility, and the Magistrate had erred in relying heavily upon it since
here the issue was the credibility of an accomplice.
32. He referred to Tomas v Van Den Yssel (1976) 14 SASR 205 at 207 per Bray
C.J., as indicating the need to qualify the application of the rule in Browne
v Dunn (supra) when the question in issue is one of a witness's general
credit. His Honour there had in mind in particular the credit of a plaintiff
in an action for damages for personal injuries, in relation to his evidence
about his symptoms and incapacities. His Honour continued:-
"The rule in Browne v Dunn has much more
force when applied to evidence relating to a
particular fact or topic than when sought to be
applied to the general credit of the witness, though
even in the latter case the failure to cross-examine
at all may, in appropriate circumstances be taken as
an acceptance of the general credit of the witness."
I do not think that this carries Mr Bonnici's submission very far.
33. In Browne v Dunn (supra) the plaintiff failed to suggest in
cross-examination of the defendant's witnesses that a document they had signed
was a sham, that being the essence of the case he sought to make against the
defendant. It was held that if in the course of a case it is intended to
suggest that a witness is not speaking the truth upon a particular point, his
attention must be directed to the fact by cross-examination showing that that
imputation is intended to be made.
34. The rule in Browne v Dunn (supra) has two aspects. The first goes to the
fair conduct of the trial. This requires that the nature of the case on which
it is proposed to rely to contradict the witness' evidence, must be put to the
witness in cross-examination or otherwise made clear to him. This requirement
holds, whether or not what is to be attacked is the accuracy of the facts to
which the witness deposes, or his credit; otherwise, the opponent is unable in
the course of his case to deal with the material which supports the attack.
In fact in this case the defendant did not go into evidence; there was no
evidence led to contradict the evidence of McA or J.
35. The second aspect of the rule in Browne v Dunn (supra) concerns the
cogency or weight of evidence, viz:-
"... if a witness is not cross-examined
upon a particular matter, upon which he has given
evidence, then that circumstance will often be very
good reason for accepting the witness's evidence
upon that matter" (Bulstrode v Trimble (1970) VR 840
Clearly enough, it was this aspect of the rule which the learned Magistrate
had in mind, in his observations (p 9). They involve matters of commonsense;
no error is disclosed by his Worship's observations. In any event I consider
that it is clear that this very experienced Magistrate assessed the
credibility of the witnesses who had testified before him in the usual way and
did not place undue weight on the second aspect of the rule in Browne v Dunn
(supra), being well aware of the danger of accomplice evidence.
36. Mr Bonnici submitted that J's evidence about the events of 3 February did
not place the appellant in the house in Canonbury Circuit, contrary to his
Worship's finding. As noted earlier, J had first named the 3 persons who were
with him, including the appellant, and then had said what "we" did; that is,
"we went for a walk, and we broke into a house". He was not cross-examined at
all. Mr Bonnici submitted that the reference to "we" without any specific
naming of the appellant left open the possibility that the appellant was not
part of the group which entered the house.
37. I do not think that submission can be upheld; the context gives a clear
meaning to the word "we". A court of appeal will not favour a submission on
the effect of the evidence - such as who the witness J intended to include in
his reference to "we" - which was not tested by the cross-examination of J,
when in the context of his evidence the meaning appears clear enough. The
only "authority" which may support Mr Bonnici's submission on what "we" meant,
in the context in which it was used, is that referred to by Lord Atkin in
Liversidge v Anderson (1942) AC 206 at 245.
38. J had never identified the appellant by name as being in the house. Mr
Bonnici submitted that McA was equally as vague as J about the appellant's
involvement in the events of 3 February. He relied on the following passage of
"Who used that key?---(J).
After he used it, what happened then?---We went
inside. Then I went into the room where the parents stay.
The main room was it?---Yes.
I mean, the main bedroom?---Yes. I got nothing out of
there, so I went to the
fridge - it was outside -and I had a school bag with
me, so I put the grog in the school bag, and I gave
it to (the appellant)."
Mr Bonnici relied on the reference in that extract to "outside" as raising the
possibility that the refrigerator was outside the house and so, possibly, was
the appellant. He submitted that this possibility was strengthened by part of
McA's evidence a little later viz:-
"When you left the house, was anyone carrying
anything?---I had this -
(J) had a bag of matches, and I gave my bag to (the
appellant) to carry, with all the grog in it.
Was there anything else in the bag that you
could see?---No, just grog.
Did you see (the appellant) place anything in the bag
when you gave it to him?---No."
I do not think that "outside" in its context bears as a possible meaning the
meaning "outside the house"; it clearly means outside the main bedroom where J
had been. My earlier observations on the effect of lack of cross-examination
on a point sought to be taken on appeal, apply.
39. Mr Bonnici relied on Collins v Hill (supra), and the authorities cited
therein at pp 5-7, in support of his (second) ground of appeal that in
relation to the convictions on charges nos 4-6, the evidence was so vague that
it rendered the convictions unsafe, unsatisfactory and dangerous. It is clear
from the authorities cited in Collins v Hill (supra) that a distinction is to
be drawn between cases where the findings of fact by the Magistrate turn upon
his assessment of the credibility of witnesses, and cases where the
credibility of the witnesses is not a significant matter in those findings.
In this case, the credibility of the witnesses before the Magistrate was a
significant matter, as it was in Collins v Hill (supra). It is vitally
important in such a case that an appellate court give due weight to the
advantage possessed by the Magistrate in assessing the credibility of the
witnesses who appeared before him; see Uranerz (Aust.) Pty Ltd v Hale (1980)
30 ALR 193 at 197-8, per Gibbs J. (as he then was). I consider that there was
ample evidence from which the learned Magistrate could conclude beyond
reasonable doubt that the appellant was guilty, once he accepted - as he did -
that McA was worthy of credit to the limited extent he found him "a witness of
40. Mr Bonnici also referred me to Scott v Killian (1985) 19 A Crim R 187 at
190 per King C.J., where his Honour spoke of the desirability of the
Magistrate looking for corroboration "in cases such as the present whether or
not the customer is technically an accomplice". That case involved evidence
from a customer in a brothel, in relation to which the Magistrate had
considered that he did not need to caution himself. Corroboration of an
accomplice is always desirable, but sometimes not possible. In this case, the
learned Magistrate was well aware of the need for care before accepting
accomplice evidence in the absence of corroboration and cautioned himself
41. Mr Bonnici submitted that McA and J, as accomplices, could not
corroborate each other; that is correct. There is however nothing to suggest
that his Worship treated them as doing so.
42. The learned Magistrate cautioned himself properly on the danger of acting
on the uncorroborated evidence of accomplices. Their credibility was
ultimately a matter for him to determine. I consider that there is nothing to
suggest that the convictions were unsafe or unsatisfactory as a result of his
deciding to act on their evidence. The test in that regard is whether a
reasonable tribunal of fact, properly instructed on the law, ought to have
entertained a reasonable doubt; see Chamberlain v The Queen (No. 2)
(1983-1984) 153 CLR 521. This case falls far short of meeting that test; on
independently examining the sufficiency and quality of the evidence, as is
required of this Court, I do not consider that there is a substantial
possibility that the learned Magistrate erred in his conclusions. It is
therefore not unsafe or unsatisfactory or dangerous to allow the convictions
to stand. His Worship was properly fortified in his conclusions by the lack
43. As none of the grounds of appeal have been made out the eight appeals are
dismissed and the convictions of 12 May 1988 affirmed.