Kalmar v Knox [2003] NTSC 50

PARTIES:	JOZSEF KALMAR

	v

	REMY DEJONG KNOX

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA89 of 2002 (20102679)

DELIVERED:	9 May 2003

HEARING DATES:	3 April 2003

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Appellant:	In person
	Respondent:	G. Fisher

Solicitors:
	Plaintiff:	Not applicable
	Defendant:	Commonwealth Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	mil03298
Number of pages:	11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kalmar v Knox [2003] NTSC 50
No. JA89 of 2002 (20102679)

	BETWEEN:

	JOZSEF KALMAR
	Appellant

	AND:

	REMY DEJONG KNOX
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 9 May 2003)

[1]	On 6 September 2002 the appellant was convicted in the Court of Summary Jurisdiction of an offence against s 269(1)(ac) of the Bankruptcy Act 1966 in that on 6 February 1998 at Darwin, being an undischarged bankrupt he did alone, obtain goods from a person by promising to pay that person amounts aggregating $3,000 or more without informing that person that he was an undischarged bankrupt.
[2]	The grounds of appeal to this Court as set out in the notice of appeal, are that his Worship erred in dismissing the evidence of Christopher Kalmar as unreliable and in relying upon the evidence of Linda Riggs as corroborating the evidence of Rhona Dunn.  
[3]	The appellant, who represented himself at the hearing of the appeal, indicated that he wished to argue that the conviction against him was unsafe and unsatisfactory.  Counsel for the respondent had no objection to this course and permitted it to be argued as if the notice of appeal had been duly amended accordingly.
[4]	In summary, his Worship found that at the time the appellant entered into a contract for the purchase of certain plant and equipment for the sum of $45,000 on 6 February 1998 from one Rhona Dunn, the appellant did not advise her of his bankruptcy.  Under the terms of that agreement, the appellant took possession of that plant and equipment immediately following the contract with a promise to pay the purchase price by 
15 July 1998.  The money was not paid by that time.  Rhona Dunn pursued the appellant for the purchase price and was not advised of his bankruptcy until a meeting in June of 1999.
[5]	The principal evidence against the appellant was that of Rhona Dunn herself.
[6]	According to Rhona Dunn's evidence, in 1996 and 1997 she was operating a food shop at the Palmerston Oasis Shopping Centre.  Subsequently she advertised the equipment contained in the business for sale, as well as a transfer of the lease to the premises.  As a consequence, she received two inquiries; one from the appellant and another from a gentleman who telephoned from Gove.  Ms Dunn said that Mr Kalmar rang her on her mobile telephone and they arranged to meet at the shopping centre a day or so later.  The meeting was held in the front of the shop in the presence of Ms Dunn's sister, Linda Riggs, who was also called to give evidence.  
Ms Dunn said that the appellant asked her if she would provide vendor finance for the full amount of the purchase price for a period of six months.  The appellant said he had no money at present but that he was expecting a compensation payout from the government as a result of laws which changed the Firearms Act and forced him to close his business down.  The appellant also asked her to put the sale of the business into the name of his daughter Samantha as he was going through a divorce settlement and he did not want his wife to have access to anything.  Ms Dunn said that she agreed to provide vendor finance because she could remember in the back of her mind seeing an article in a local newspaper referring to something like this and she assumed that the person that the article was about was the appellant.  An agreement to reflect the terms as arranged was prepared by a solicitor and executed on 6 February 1998.  The purchase price of the equipment was $45,000.  An assignment of the lease dated 12 February 1998 and signed by the parties was also produced in evidence.
[7]	The appellant went into possession of the premises on 13 February 1998.  Ms Riggs, who had worked in the business, stayed on for a time to help train a person or persons in the employ of the appellant.  All of the items agreed to be purchased were also handed over.  Ms Dunn's evidence was that at no time did the appellant tell her that he was an undischarged bankrupt and had he done so she would not have gone through with the sale, but would have preferred to have dealt with the buyer from Gove.
[8]	Subsequently the appellant made no payments as promised.  Ms Dunn began to chase him for the purchase price and a meeting was held in June 1999 at which time Ms Dunn asked for the money or failing that, the return of the equipment.  The appellant told her that some of the equipment had been sold and the rest was being stored in a friend's house.  Ms Dunn asked to see it but the appellant said this was not possible because he did not have the keys to the house and the friend was presently in Sydney.  Ms Dunn then suggested that the appellant ought to take out a loan and it was at that stage that the appellant said to her "I can't take out a loan.  I'm bankrupt."  
Ms Dunn assumed that the appellant meant by the words "I'm bankrupt" that he did not have any money or other assets such as to enable him to obtain a loan.
[9]	Subsequently the appellant wrote a letter or a notation which was given to Ms Dunn in which he set out the circumstances of his bankruptcy.  It was at this stage that she believed that the appellant may be an undischarged bankrupt and she made some inquiries of her own through ITSA, The Insolvency Trustee Service of Australia, which confirmed the appellant's status as a bankrupt.
[10]	Ms Dunn's account was corroborated by the evidence of her sister Ms Riggs.  
[11]	The appellant's account was that Ms Dunn was introduced to him by a friend called Ben Vanderhavel at the Oasis Supermarket Woolworths complex in Palmerston.  Apparently there was also some discussion at the cafe and 
Ms Dunn asked him if he would be interested in taking it over.  The appellant said that he told her that he was bankrupt and he could not afford to take over the cafe.  He said that Ms Dunn offered him terms.  That led to a discussion as to what the nature of the terms were, during which he told her about his claim for compensation.  He also claimed that during that conversation Mr Vanderhavel was present and that Ms Dunn was fully aware of his bankruptcy and in fact had seen something on television about what had happened to him and why he had become a bankrupt.  He also said that his son Christopher was present at some of these discussions.
[12]	The evidence of Mr Kalmar's son Christopher was very brief.  He said that in early 1998 he was present during some of his father's dealings with 
Rhona Dunn.  These occurred in late February or early March.  He was not present during all the discussions, but at one time he walked in and over heard them discussing the appellant's bankruptcy.  This was in his father's office.  He said that he was unable to remember the exact words but he did remember that Ms Dunn was leaning forward towards the appellant and she sort of had a concerned or worried tone of voice or expression.  In cross-examination he said the conversation was some four years ago and he was first asked to recall it in November of 200l, some ten months before the hearing.
[13]	The learned Magistrate said that Rhona Dunn struck him as a reliable witness.  Her memory of the transaction appeared to be fairly comprehensive and he thought that her evidence made sense.  The learned Magistrate referred to the possibility of bias and concoction between Ms Dunn and her sister and concluded that he could safely discount the possibility of concoction or collaboration, either conscious or unconscious.  He concluded that he accepted the prosecution witnesses and believed them, and that he rejected the evidence given by the defendant and by his son, and that he was satisfied beyond reasonable doubt that the charges had been substantiated.
[14]	Turning to the first ground of appeal, it is plain that Christopher Kalmar's evidence was very vague as to detail and it is unsurprising that his Worship attached no weight to it.  I do not think any error can be demonstrated on the part of his Worship.  His Worship was entitled to either accept or reject that evidence as he saw fit.
[15]	Turning to ground 2, it was submitted by Mr Fisher on behalf of the respondent that corroboration of the evidence of Rhona Dunn was not required as a matter of law, but in any event Linda Riggs' evidence did corroborate the evidence of Rhona Dunn. I will return to this in a moment.
[16]	During  cross-examination  Ms Dunn  admitted to having pleaded guilty to one count of dishonesty involving a significant sum of money and to have served a period of eight months imprisonment.  These charges were said to arise out of a series of transactions which commenced in about January or February of 1988.  Ms Dunn's good character was therefore challenged.
[17]	According to Lord Hailsham of St Marylebone LC in Director of 
Public Prosecutions v Kilbourne [1973] A.C. 729 at 740 the recognised categories of cases where a corroboration warning is required to be given includes witnesses of "admittedly bad character".  Lord Hailsham's speech was concurred in by Lord Morris of Borth-y-Gest.
[18]	I have been unable to find any Australian authority which has followed the dicta of Lord Hailsham.  It is not referred to in any of the standard Australian textbooks on the law of evidence.  In Bromley v The Queen (1986) 161 CLR 315 at 323, Brennan J as he was then, merely observed that Lord Hailsham "added a further category".  Notwithstanding that there may be no such category in Australia, it was submitted by the appellant that a corroboration warning ought nevertheless to have been given because there was a risk of a miscarrage of justice arising from the circumstances of the case: see Longman v The Queen (1989) 168 CLR 79 at 86. 
[19]	If Ms Dunn's evidence needed to be corroborated, the learned Magistrate did not instruct himself accordingly, but there is no doubt that her evidence was in fact corroborated by her sister.  There is no rule of evidence which prevents the evidence of a near relative from amounting to corroboration of the evidence of another witness whose evidence needs to be corroborated.  Even the evidence of a spouse can, in law, corroborate the evidence of another spouse: see Tripodi v The Queen (1961) 104 CLR 1; R v Evans [1964] 3 All E.R. 401 at 405.  Of course the weight to be given to such evidence is another matter.  As the High Court observed in Tripodi v 
The Queen at p 9 in relation to the corroborator being the spouse:
It is easy to imagine cases in which the very circumstances disclosed by the evidence would make it inadvisable for the jury to depend on the wife's confirmation and it may be assumed that as a matter of course the judge will when that occurs so advise the jury.
The same might be said of the evidence of a sister.
[20]	The learned Magistrate was alive to the possibility of bias and concoction and concluded that he could safely discount it.  That conclusion has not been demonstrated to be erroneous.  
[21]	It was therefore not necessary for the learned Magistrate to give himself a corroboration warning: see Kelleher v The Queen (1974) 131 CLR 534.  It follows that ground 2 of the appeal has not been made out.
Was the verdict unsafe and unsatisfactory?
[22]	When this ground of appeal is raised, the Court is required to undertake its own independent examination of the relevant evidence: see Morris v 
The Queen (1987) 163 CLR 454 at 473.  It is well settled that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that, as a matter of law, there is evidence upon which the accused could have been convicted: see Rostron v The Queen (1991) 1 NTLR 191 at 205.  The question I must ask myself is whether I think that upon the whole of the evidence it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.  In answering that question I must not disregard or discount either the consideration that the learned Magistrate is the body entrusted with the primary responsibility of determining guilt or innocence,
or the consideration that the learned Magistrate has had the benefit of having seen and heard the witnesses.  On the contrary, I must pay full regard to these considerations.
[23]	It is plain that the learned Magistrate was not impressed with the evidence of the appellant.  The learned Magistrate refers in his reasons to the appellant as a person who appeared not to remember a lot of things that happened in recent times, particularly during the period of his bankruptcy.  The learned Magistrate said that he got the impression that the appellant's loss of memory was selective so that when difficult questions were posed his memory became less than perfect.  The learned Magistrate referred to the appellant's health as perhaps providing an explanation as to why he might entertain a belief that in fact he told Ms Dunn that he was an undischarged bankrupt and that his health may have contributed to his loss of memory of things that have occurred or indeed, may have led him to believe that he did something when in fact he never did it.
[24]	As was said by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 494-95:
... where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even  making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
Those observations apply equally to trial by a Magistrate sitting without a jury.
[25]	The appellant, who represented himself during the appeal, referred to a discrepancy in the evidence between Ms Riggs and that of Ms Dunn as to the date of a meeting which occurred in either June or July of 1999.  I do not consider that there is any significance in that discrepancy.  Ms Dunn's testimony was in fact supported by two independent exhibits which strongly indicated that the relevant meeting was held in early June of 1999.
[26]	The appellant made a submission along the lines that it was apparent from the evidence of Ms Dunn that when she acknowledged that she was told by the appellant he was bankrupt,  at first she did not understand him to mean bankrupt in the legal sense.  His submission was that if she misunderstood him on this occasion she might well have misunderstood him at the relevant time.
[27]	The evidence of Ms Riggs and Ms Dunn however was that the appellant had at no stage told either of them that he was an undischarged bankrupt.  Both were cross-examined at some length.  I have been unable to find anything in the evidence upon the record itself which leads me to conclude that, making full allowance for the advantages enjoyed by the learned Magistrate, there is a significant possibility that the appellant has been wrongly convicted.
[28]	In these circumstances the appeal must be dismissed.
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