Dodd v Brown  NTSC 102
PARTIES: DODD, Jacob
BROWN, Peter Phillip
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: JA 65 of 2012 (21211330)
DELIVERED: 21 December 2012
HEARING DATE: 16 October 2012
JUDGMENT OF: BARR J
APPEAL FROM: WALLACE SM
CRIMINAL LAW – APPEAL AGAINST FINDING OF GUILT AND CONVICTION – Criminal Code (NT) s 23 and s 32 – defence of ‘honest and reasonable mistake’ raised – whether prosecution failed to prove beyond reasonable doubt appellant did not have honest and reasonable belief he had permission to use the vehicle – magistrate found appellant guilty based on inference – reasonable possibility of innocence established on evidence – error of law – finding of guilt set aside – conviction quashed – verdict of not guilty entered
CRIMINAL LAW – APPEAL AGAINST FINDING OF GUILT AND CONVICTION – appellant found guilty and convicted of unlawful use of a motor vehicle – offending conduct involved appellant sleeping in stolen vehicle – whether an unlawful ‘use’ for the purposes of s 218(1) Criminal Code (NT) – if prosecution had proved beyond reasonable doubt the appellant knew the vehicle was stolen or knew he did not have permission to use it, conduct would have amounted to unlawful use
Criminal Code s 23, s 32, s 218
He Kaw Teh v The Queen (1985) 157 CLR 523; Jaeger-Steigenberger v O’Neill  NTSC 42; Jiminez v The Queen (1992) 173 CLR 572; Shepard v R (1990) 97 ALR 161, followed
Fawcett v BHP by-Products Pty Ltd (1960) 104 CLR 80; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 505, considered
Appellant: A Hancock
Respondent: J Tierney
Appellant: North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar1223
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Dodd v Brown  NTSC 102
PETER PHILLIP BROWN
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 21 December 2012)
Appeal against finding of guilt and conviction
 On 7 June 2012, the appellant was found guilty and convicted by the Katherine Court of Summary Jurisdiction of the unlawful use of a motor vehicle overnight on 23 March and 24 March 2012. He has appealed against the finding of guilt and conviction.
 The facts relating to the appellant’s offending can be briefly summarised.
 A Holden Commodore utility was stolen in Katherine, late at night on Friday 23 March or in the early morning of Saturday 24 March 2012. At approximately 4.00 am on Saturday 24 March 2012, police officers found the appellant asleep in the driver’s seat of the stolen vehicle, on the side of the Victoria Highway about five kilometres outside Katherine. Another person, Kane O’Keith, was asleep in the passenger seat. The appellant appeared to be sleeping off the effects of alcohol. The vehicle had sustained damage: a front tyre had blown, oil had leaked from the vehicle, there were metal shavings on the dipstick and the engine was ‘cooked’ and no longer operative. The damage could not be repaired. The appellant gave evidence that he had been drinking at a house in Katherine and was approached outside the front yard of the house by Kane O’Keith, his cousin, who offered him a lift and a place to sleep. He accompanied O’Keith to the stolen Commodore utility. According to the appellant, O’Keith then began to drive the vehicle around at speed in an erratic manner to the point where the front tyre blew and the radiator ‘got hot and bust the motor up’. After the car had broken down, the appellant said that he tried to cool the engine with water and told O’Keith not to drive the car any more. The appellant and O’Keith then had a smoke and a drink outside the vehicle for 10-15 minutes before they went to sleep in the vehicle, in the positions in which they were found by police officers.
 The offending conduct for which the appellant was found guilty was the appellant’s use of the motor vehicle by sleeping in the front seat, which the learned magistrate found constituted an unlawful use of the motor vehicle within the meaning of s 218(1) Criminal Code.
 At the hearing of this appeal I gave leave to substitute the following two grounds of appeal for the previous three grounds set out in the Notice of Appeal:
1. The learned magistrate erred in finding that the appellant used the motor vehicle for the purposes of s 218 of the Criminal Code.
2. The learned magistrate erred in finding that the appellant used the motor vehicle unlawfully.
 The contention on the first ground of appeal is that the appellant’s use of the motor vehicle by sleeping in the front seat was not a ‘use’ of the motor vehicle within the meaning of s 218(1) Criminal Code, and hence not an unlawful use.
 The contention on the second ground of appeal is that the prosecution failed to prove beyond reasonable doubt that the accused did not have an honest and reasonable belief that his cousin was in lawful possession of and lawfully using the motor vehicle.
 I deal first with the second ground of appeal.
 Under s 23 Criminal Code, a person is not guilty of an offence if the act constituting that offence was “excused”. Section 32 Criminal Code provides, relevantly, that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for it to any greater extent than if the real state of things had been such as he believed to exist.
 The governing principle in relation to ‘honest and reasonable mistake’ was stated by Dawson J in He Kaw Teh v The Queen:
The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.
 In the course of giving evidence at trial, the appellant raised the defence of mistake of fact under s 32 Criminal Code: that he honestly and reasonably believed that the vehicle in which he was driven belonged to O’Keith or to a family member of O’Keith, and that the appellant had permission, express or implied, to drive in and sleep in the vehicle.
 The magistrate’s reasons indicate that he was not satisfied the prosecution had proven beyond reasonable doubt that, up to a certain point in time, the accused did not have an honest and reasonable belief that O’Keith was lawfully using the motor vehicle. That point in time was when O’Keith had, in the words of his Honour, “blown the vehicle up, come to rest”, or, in the words of the appellant, after “the radiator got hot and bust the motor up”.
 The following passage from his Honour’s reasons is illustrative:
I can just about believe the account of Mr Dodd so far as it relates to his not having anything whatsoever to do with the stealing of the vehicle in the first place and it may well be that it didn’t cross Mr Dodd’s mind to ask Mr O’Keith anything about the motor vehicle when he first got into it, having been offered a providential lift home. It might take you a while and it might just about be believable that the reported driving of Mr O’Keith in Katherine and then out on the highway when he was smoking the tyres and whatnot, would not lead to some sort of conversation about whether Mr O’Keith was going to smash the vehicle.
 His Honour’s remarks: “I can just about believe …” and “it might just about be believable …” are modes of expression which to my mind confirm that his Honour gave the appellant the benefit of reasonable doubt up to the time when the vehicle broke down. As his Honour said:
I should say that it’s by no means clear in my mind that I believe Mr Dodd up to that point, but I certainly don’t believe him beyond that point.
 In relation to the period of 10-20 minutes after the time of the vehicle breakdown, the learned magistrate was satisfied beyond reasonable doubt that the appellant was aware that O’Keith was not the owner of the vehicle, that the vehicle belonged to someone else, that O’Keith did not have permission to use the vehicle and that neither did the appellant. The following passage explains his Honour’s reasoning:
But I can’t believe that after he [O’Keith] had blown the vehicle up, come to rest and the two of them have sat down and had a beer or two while they work out what they do next, I simply cannot believe that at that point Mr Dodd didn’t – wouldn’t – if he’s an innocent bystander until this point, an innocent passenger completely ignorant of the stolen nature of the vehicle, it’s just inconceivable at that time he wouldn’t ask, “Well look what you’ve done to your car” or “Whose car was it anyhow that you’ve blown up here?” “Is this your uncle’s car?” or whatever. Nothing said whatsoever. I simply cannot believe in that situation that the provenance of the vehicle would not be discussed between the parties.
And it’s not that Mr Dodd says he asked and was lied to about whose the car was, he’s saying he never asked, the question never crossed his mind, never came to light during the 10 or 20 minutes that the two of them were awake and together having a beer and a cigarette at the scene of this automotive disaster. Just unbelievable. So at least as regards the last episode which predates Mr Dodd getting back into the vehicle, I just don’t believe him. I think at that time he must have been – and I’m satisfied beyond reasonable doubt that he must have been well aware that the vehicle was not Mr O’Keith’s and that it was someone else’s and that Mr O’Keith did not have permission to use the vehicle and neither did Dodd.
 The magistrate’s reasoning in relation to the period after the vehicle breakdown stemmed from evidence given by the appellant in examination in chief that he did not, at any stage that night, ask his cousin where he had got the car. I set out that evidence, in context, below:
And how did he propose to get to his house? — I’m not too sure. Well I – well he told me to come around here and jump in the car, so I followed him in – I didn’t ask him where he got that car from, I just – I was too drunk. So I jumped in the car, passenger side with him and off we go.
Now you say you didn’t ask him where you got the car from. Had you ever seen that car before? — No.
Did you wonder where Kane might have got the car from? — Probably his in-laws around Katherine probably give him to use, but I’m not too sure.
Did you at any stage that night ask Kane where he’d got the car from? — No, because I was too drunk.
 The appellant’s examination in chief as to the period after the time of the vehicle breakdown was as follows:
And when you got out of the car did you look at the car with Kane? — No. Kane was standing on the driver’s side and I told him to go and pop the bonnet so I could cool the radiator off.
And did you do anything else when you were outside the car? —Yeah, we was talking, having a yarn there. I had a couple of cans of beer there, so just one can each and a smoke.
And how long were you out of the car? Could you give me an estimate of the time that you were out of the car for? — 10, 15 minutes.
And you were both found by the police of course inside the car sometime later. Who got back into the car first? — Kane.
And do you know why he got back into the car? — To go to sleep probably. Because he was tired.
And so when he got back in the car, what side of the car did he go into? — The passenger’s side. ….
Did you try to drive the car at any time that night? — No. I told him not to drive it anymore further because you’ll fuck the motor up, but.
And did you know that the car was stolen? — No.
 The appellant said a short time later in his evidence that he had gone to sleep in the driver's side of the car because he was “wasted” and that he “couldn't make it back home.”
 The appellant did not give evidence as to the subject matter of the “yarn” he had with Mr O’Keith after the time of the vehicle breakdown, except that he said he suggested to his cousin: “Let's try walk back home”, to which his cousin replied “No, I'm a bit too tired to walk, so we’ll just crash out here”.
 The prosecution did not call Mr O’Keith to give evidence and there was no reference in the transcript to any explanation being given to the magistrate for O’Keith’s absence.
 The appellant was cross-examined on a number of issues, and I set out relevant questions and answers below:
So your cousin … Kane, … is he a person with a little bit of money or not much money or … ? — I’m not too sure.
Have you ever seen him owning good cars before? — I see him got one silver car back home, it’s a 4-wheel drive. So he travel up and down from Robinson to home, Borroloola and that’s it.
You said you didn’t think it was strange that he had quite a new ute? — Yeah. But I wasn’t thinking that way because I was too drunk. …
So you told the magistrate about him driving really – that you were worried about the way he was driving that car around Katherine? — Yeah, because that’s just too fast.
… did you think it was strange that someone would drive their own car that roughly? — I see a lot of people drive their car that fast. …
So you said that the car has then got this overheating problem. Were you upset for your cousin that he’d ruined – that he’d broken his car? — Yeah, I told him not to drive it anymore further because he’ll fuck the motor up. But it looked like he already did. So I jumped out, grabbed a water and tell him to pop the thing, bonnet off so I can cool it off. Cooling it down, it couldn’t go down, the temperature was too high.
Did he care that the temperature was too high? — Yeah, he was walking around wandering what he’s going to do but I didn’t wake up on that.
I suggest to you that you’re not telling the magistrate the truth and that what’s actually happened is you knew that this car was stolen? — No.
You knew that it was very unlikely that your cousin would have a car like this and you didn’t care? — Well he gets a lot of money so I thought he probably bought it or something.
I suggest to you that at least by the time the car has overheated that you were aware that it’s not his car and then you were so drunk that you decided that you’d just sleep in the car? — Yeah.
And you didn’t care whether it was – whose car it was? — Well I thought it was my cousin’s car so I just – he wouldn’t mind if I can camp on the driver’s side, so yeah.
 The magistrate thought it was “inconceivable” that, after the vehicle breakdown, if the appellant had in truth been an “innocent passenger, completely ignorant of the stolen nature of the vehicle”, there would not have been a conversation between the appellant and his cousin in relation to ownership of the vehicle. The appellant said that there was no such conversation at any stage that night, and by implication, no such conversation at any time during the 10-15 minutes after the vehicle had broken down and before he and O’Keith fell asleep. The magistrate therefore did not believe the appellant that he did not know that the car was stolen, as he claimed in his evidence in chief. His Honour was satisfied beyond reasonable doubt that the appellant was aware (during the “last episode”) that the vehicle was not O’Keith’s and that O’Keith did not have permission to use the vehicle.
 Counsel for the appellant argues that his Honour’s reasoning indicates that he reversed the onus of proof. It was for the prosecution to prove beyond reasonable doubt that the accused did not have an honest and reasonable belief that O’Keith was lawfully using the motor vehicle, whereas (on the appellant’s argument) the magistrate’s reasons for decision disclose that he regarded the appellant as having the onus of satisfying him that he did have the relevant honest and reasonable belief. The appellant relies on the passage extracted in par  above from the judgment of Dawson J in He Kaw Teh v The Queen.
 Counsel for the appellant contends that the learned magistrate reversed the onus of proof by, in effect, inventing a conversation in which the appellant asked O’Keith who the car belonged to and in which O’Keith answered to the effect that the car was stolen. In my view, however, this contention misconstrues the magistrate’s reasons extracted in par  above. The magistrate did not reason that the appellant must have enquired as to the ownership of the vehicle and then disbelieve the appellant because he said that he had not so enquired. Rather, the magistrate reasoned that, after the vehicle breakdown, an “innocent passenger” would have asked who owned the vehicle, presumably out of concern for the owner’s interests or for the extent of the driver’s liability to the owner. The magistrate appeared to accept the appellant’s evidence that he had not made any such enquiry. Indeed, it was the absence of such enquiry which caused the magistrate to be satisfied beyond reasonable doubt as to the appellant’s guilt. Where the magistrate said: “I simply cannot believe in that situation that the provenance of the vehicle would not be discussed between the parties”, he was not finding that a discussion as to provenance had taken place. The “situation” postulated was that the appellant was an “innocent passenger”, and the magistrate was saying that an “innocent passenger” would have raised the issue of provenance after the “automotive disaster”.
 Moreover, when the magistrate said: “I just don’t believe him”, he was not expressing disbelief of the appellant’s evidence that he had not asked O’Keith where he had got the car; rather, he was expressing disbelief of the appellant’s evidence that he did not know that the car was stolen.
 His Honour’s reasoning should be seen in the context of the egregious mistreatment of, and the damage caused to the vehicle by O’Keith while the appellant was a front seat passenger. The fact that the appellant made no enquiry as to ownership of the vehicle, notwithstanding such mistreatment, was not such as to cause his Honour to reject the appellant’s evidence that, up to the time of the vehicle breakdown, he did not know the vehicle was stolen. However, with respect to the period after the vehicle breakdown (and it was not a mere breakdown: his Honour described it as an “automotive disaster”), his Honour appears to have reasoned that the admitted absence of relevant enquiry by the appellant was evidence that the appellant knew the vehicle was being used without the consent of the owner.
 I therefore reject the appellant’s argument that the magistrate found that a conversation in relation to provenance or ownership took place between the appellant and O’Keith. On the contrary, his Honour accepted the appellant’s evidence that such a conversation had not taken place.
 However, I consider that the learned magistrate either reversed the onus of proof or erred in applying the onus of proof insofar as he reasoned that the appellant’s failure to raise the issue of provenance after the “automotive disaster” was evidence of his knowledge that the vehicle was stolen or being used unlawfully, and hence evidence of his guilt.
 The question is whether there ought to have been a reasonable doubt on the part of the learned magistrate that the appellant had an honest and reasonable, but mistaken, belief that the vehicle belonged to O’Keith or to a family member of O’Keith, and that the appellant had permission, express or implied, to drive in and sleep in the vehicle.
 In my view there was evidence sufficient to raise a reasonable doubt as to the guilt of the appellant.
 The appellant was probably significantly intoxicated at the time he was driven in the stolen vehicle and at the time he went to sleep in that vehicle. The intoxication of the appellant was relevant to his admitted failure to make proper enquiry of his cousin as to the ownership and provenance of the vehicle. The appellant gave evidence that he was too drunk, and hence that he did not ask his cousin where he had got the vehicle. He also said in evidence that he was “wasted”. These statements are self-serving, but the appellant was not cross-examined or challenged as to his asserted level of intoxication. Moreover, the appellant’s evidence as to his level of intoxication was corroborated by the evidence of the police officers who attended at the location referred to in par  above in the early morning of 24 March 2012.
 Further, the stolen vehicle was a 1999 model and there was nothing on the face of it which should have raised particular suspicion on the part of the intoxicated appellant: it was not a BMW 7-series, Lexus, Range Rover or similar.
 Another relevant matter is the fact that the appellant did not flee the scene where the vehicle came to rest. That could have been because of his intoxication, but it also raises a reasonable doubt as to the absence of guilty knowledge on his part.
 The learned magistrate’s reasons indicate that he did not consider the possibility that the appellant was an “innocent passenger”, who had made no enquiry as to ownership of the vehicle because of reasons other than that he knew that the vehicle was stolen or being used unlawfully by O’Keith. In my view, that possibility was a reasonable possibility, consistent with innocence, because of the appellant’s intoxication, and the other matters referred to in the preceding three paragraphs. The intoxication presumption in s 7 Criminal Code has no bearing on this issue. On the face of it, intoxication is a reasonable explanation for the appellant not making any enquiry as to ownership, even in the period after the vehicle breakdown. The learned magistrate did not give reasons as to why he excluded an explanation consistent with the appellant’s innocence.
 The learned magistrate’s process of reasoning as to the appellant’s guilt was based on inference. His Honour inferred that the appellant knew that the vehicle was stolen or being used unlawfully because he did not raise the issue of provenance with O’Keith. However, it is well established from cases involving the drawing of inferences that the magistrate could not properly return a verdict of guilty unless no other rational inference consistent with the innocence of the appellant could be drawn. As Mildren J said in Jaeger-Steigenberger v O’Neill  NTSC 42:
“To enable the learned magistrate to be satisfied beyond reasonable doubt of the guilt of the accused it was necessary not only that her guilt should be a rational inference, but that it should be the only rational inference that the circumstances would enable him to draw.
 Relevant to my considerations in the present case, his Honour continued:
“An inference to be rational must rest upon something more than mere conjecture. The bare possibility of innocence does not prevent the magistrate from finding the appellant guilty if the inference of guilt is the only inference open to a reasonable magistrate upon a consideration of all the facts in evidence.”
 In the present appeal, I consider that the learned magistrate erred as explained in par ; further that the matters explained in par  to par  establish a reasonable possibility of innocence, not just “mere conjecture” or “the bare possibility of innocence”.
 It is not strictly necessary for me to decide Ground 1 of the appeal, and hence the remarks which now are obiter dicta. I have reached the view that, if the appellant knew that O’Keith was not the owner of the vehicle and/or that O’Keith did not have permission to use the vehicle, and was thus using it unlawfully, and if in those circumstances the appellant got back into the vehicle to sleep in it, then that use would have amounted to unlawful use of the motor vehicle notwithstanding that the vehicle was not being used as a conveyance, or “for its vehicular purpose”.
 In the hypothetical circumstance, therefore, using the motor vehicle to sleep in would have been a use which was unlawful as contrary to s 218(1) Criminal Code.
 I add that the appellant’s argument on appeal was contrary to a concession made by defence counsel at trial, in these terms:
“It is conceded that there is a case to answer in respect to charge 1 since Mr Dodd was found inside the vehicle, effectively using it. And the defence case seeks to address that by calling Mr Dodd.”
 In my view, that concession was properly made.
 I allow the appeal on Ground 2.
 Pursuant to s 177(2) Justices Act, I set aside the finding of guilty and quash the conviction recorded by the learned magistrate. I enter a verdict of not guilty.
 He Kaw Teh v The Queen (1985) 157 CLR 523 at 593.1.
 T 23.7.
 T24.6 – 25.3.
 The “quite new ute” was a 1999 Holden Commodore
 I do not understand this answer to have been an admission in response to first part of the cross-examiner’s question, given the answer to the next question.
 See the appellant’s examination in chief extracted at par  above.
 He Kaw Teh v The Queen (1985) 157 CLR 523 at 593.1; also Jiminez v The Queen (1992) 173 CLR 572 at 582.
 Appellant’s Outline of Submissions paragraphs 37 and 38.
 See par  and par  above.
 Shepard v R (1990) 97 ALR 161 at 163-165, per Dawson J.
 Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80 at 91-92 per Windeyer J; see also Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505.