Asciak v Asciak
[2000] WASCA 391
•14 DECEMBER 2000
ASCIAK -v- ASCIAK [2000] WASCA 391
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 391 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1118/2000 | 21 NOVEMBER 2000 | |
| Coram: | MALCOLM CJ OWEN J STEYTLER J | 14/12/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld in part | ||
| PDF Version |
| Parties: | GIOVANNI ASCIAK ANNEMARIE PAMELA ASCIAK |
Catchwords: | Appeal Leave to appeal Whether applicant was wrongly refused leave to appeal against conviction and sentence Turns on own facts |
Legislation: | Justices Act 1902 (WA), s 189(1) |
Case References: | Johnson v Johnson (2000) 74 ALJR 1380 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ASCIAK -v- ASCIAK [2000] WASCA 391 CORAM : MALCOLM CJ
- OWEN J
STEYTLER J
- Applicant
AND
ANNEMARIE PAMELA ASCIAK
Respondent
Catchwords:
Appeal - Leave to appeal - Whether applicant was wrongly refused leave to appeal against conviction and sentence - Turns on own facts
Legislation:
Justices Act 1902 (WA), s 189(1)
Result:
Appeal upheld in part
(Page 2)
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Johnson v Johnson (2000) 74 ALJR 1380
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: This is an application for leave to appeal against the decision of a Judge of this Court by which his Honour refused the applicant leave to appeal against a conviction and sentence imposed upon him in the Court of Petty Sessions on 5 April 2000.
2 While the application before this Court is, as we have said, expressed to be one for leave to appeal to the Full Court against the decision of the learned Judge below it is in fact an appeal as of right by virtue of the provisions of s 189(1) of the Justices Act 1902 ("the Act") which provides that an appeal lies to the Full Court against the refusal of a Judge to grant leave to appeal. We will consequently deal with it in that way.
3 The applicant was, on 5 April 2000, convicted on a charge of unlawfully assaulting the respondent, who is his estranged wife. The assault was said to have taken place on 21 February 2000. He was sentenced to a period of 12 months' imprisonment to be served cumulatively on existing terms of imprisonment being served by him. The learned sentencing Magistrate declared him not to be eligible for parole.
4 In his application for leave to appeal heard by the learned Judge below the applicant expressed an intention to rely upon the following grounds of appeal against conviction:
"a. The learned trial magistrate erred in law in applying [sic] a conviction when not all the evidence was made available to the court, in that the Crown failed to submit evidence which could have disputed evidence of statement [sic] and or cross examination, namely the evidence detailed in the List of Exhibits particularly when statement evidence and cross examination evidence is in dispute in particular.
b. The learned trial magistrate erred in law in by [sic] not considering all the evidence.
c. The matter referred to in 1 and/or 2 gave rise to a miscarriage of justice in that not all the evidence was made available to the court.
d. The learned trial magistrate denied the opportunity of the defendant for an adjournment to produce expert witness [sic].
(Page 4)
- e. The learned trial magistrate failed to give adequate consideration to the principles of 'Automatism' regarding physical human movements and possible reactions.
f. The learned trial magistrate failed to give adequate acknowledgement to the physical properties of the appellant, complainant and third party, in that [given] the descriptions of location in the immediate vicinity of the struggle, the appellant could not have struck the complainant without first having struck the third party because:
(i) the arms of the third party were around the complainant
(ii) the head of the complainant was buried into the shoulder of the third party
(iii) the third party is taller than the appellant
(iv) the complainant with her head buried into the shoulder of the third party and with arms of the third party around the complainant, the complainant was completely out of reach
- g. The Crown failed to supply copies of all statements and evidence including exhibits to the appellant as instructed by Mr Heaney S.M. on 22nd February 2000 within reasonable time frames to allow the appellant to properly prepare for the hearing."
"a. The learned trial magistrate erred in imposing a sentence, which was manifestly excessive in all the circumstances.
b. The learned trial magistrate erred in not considering all possibilities of punishment nor did he consider adequately whether the appellant being [sic] eligible for parole.
c. The learned trial magistrate erred in considering that the offences fell toward the top end of the scale of seriousness for offences of their nature.
(Page 5)
- d. The learned trial magistrate erred in considering the uncharged burglary act as aggravating the offences charged.
e. The learned trial magistrate erred in failing to give adequate recognition to the unusual circumstances surrounding the matter, which justified a reduction in sentence."
6 The learned Judge below dismissed the application. There is no transcript of those proceedings and nor did his Honour give written reasons. However the fiat records that the application for leave to appeal against conviction was refused "as [the] matter [was] unarguable, being a decision on questions of fact and credibility of witnesses". The fiat also records that the application for leave to appeal against sentence was refused "as [the] matter [was] unarguable in view of [the] record of convictions of [the] applicant as detailed by [the] Magistrate".
7 The applicant maintained before this Court that the grounds of appeal which he had proposed to raise disclose an arguable case and that he should, consequently, have been granted leave to appeal by virtue of s 187(1) of the Act, there being no suggestion that the appeal is frivolous or vexatious.
8 The applicant also contended before this Court that the learned Judge below should have disqualified himself from hearing the application for leave to appeal. The applicant has said, in his supporting affidavit, that his Honour had acted as the applicant's counsel on a previous matter in 1988, that the applicant "did verbally attack" him at that time because of the applicant's view that his Honour, in his capacity as the then counsel for the applicant, had not acted in the applicant's best interest and that this has resulted in bias against the applicant on the part of the learned Judge below.
9 We will deal, first, with the allegation of bias.
10 The only evidence on this issue is that contained in par 8 of the applicant's affidavit sworn 3 October 2000. This goes no further than that at the conclusion of his trial in 1988 the applicant made a verbal attack on counsel (now the learned Judge below) and that, as a result, his view is that the Judge may not be impartial. There is no evidence that at the time of the verbal attack or at any later time counsel reacted to the comments or did anything else to display an adverse response to or poor impression
(Page 6)
- of the applicant. It is important to note, in this respect, that the events raised by the applicant took place some 12 years ago.
11 More importantly, perhaps, the applicant acknowledged that he did not ask the learned Judged to disqualify himself at the time of the hearing of the application for leave to appeal. Even if, as the applicant said, the hearing was one of very short duration in the course of which he had only a limited opportunity to make submissions, it is difficult to think that the applicant could not have made such an application had he wished to do so.
12 We are not, in the circumstances disposed to allow the appeal on this ground. In our view, and based on this evidence, it could not be said that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 74 ALJR 1380 per Gleeson CJ at [11]. This is the test when a question of reasonable apprehension of bias arises.
13 As to ground (a) of the proposed grounds of appeal on the merits the applicant has identified four particular items of evidence which, he submits, the Crown should have made available to the court.
14 The first three items of evidence relied upon by the applicant are extracts from statements made by Police Constables Nathan James Conchie and Claire Neesam and an extract from a statement made by the complainant. Each of these statements was prepared prior to the applicant's trial and for the purposes of that trial. Each was made available to the applicant some two days before the trial.
15 The extract from Constable Conchie's statement which is relied upon by the applicant records that he observed the complainant to have a red welt on her right temple. The same was said by Constable Neesam in that part of her statement which is relied upon by the applicant. However the complainant, in the paragraphs of her statement relied upon by the applicant, said that she was struck on the left side of her face.
16 Constables Conchie and Neesam both gave evidence at the trial. Constable Conchie said in evidence that he observed a red welt on the complainant's left temple. Constable Neesam said that she observed a "red mark" on the complainant's left temple. The complainant, in her evidence, demonstrated to the learned Magistrate where she was struck. While the transcript does not disclose whether this was the left or right side of her face, it seems, from the evidence, that she very probably pointed to the left side of her face.
(Page 7)
17 The applicant, in the course of his cross-examination of Constable Conchie, put to Constable Conchie the fact that his statement referred to a red welt on the applicant's right temple. Constable Conchie acknowledged that that was so but said that the red welt had in fact been on the complainant's left temple. His evidence in this respect is the fourth item of evidence relied upon by the applicant.
18 The applicant did not cross-examine Constable Neesam with respect to her evidence that the red mark was on the complainant's left temple and nor did the applicant cross-examine the complainant with respect to her demonstration of where she was struck.
19 It will be apparent from what we have said that there was no material "failure" to place evidence before the court in any of the respects relied upon. While it is true that the three statements were not tendered in evidence (and the fourth item referred to was, as we have said, oral evidence given at the trial), the first of them was made the subject of cross-examination by the applicant and the other two were available to him for that purpose had he wished to make use of them in that way. In these circumstances we are not persuaded that there is any arguable ground of appeal in this respect.
20 We should add that an examination of the transcript of the hearing before the learned Magistrate discloses that there were, in addition, some photographs which the Crown had originally proposed to introduce in evidence. Directions had previously been given by another Magistrate that the applicant should be given a copy of the statements made by all Crown witnesses as well as copies of any exhibits. However he was not shown the photographs. When this was raised by him at the commencement of the hearing the prosecutor informed the court that the photographs could not be located and would consequently not be presented to the court. However the transcript discloses that, after the court was so informed, the applicant said that he would, nevertheless, "like to get it [the trial] over with today". The trial thereafter proceeded without further objection from him.
21 It consequently follows that no arguable ground of appeal is disclosed in this respect either.
22 Ground (b) is merely an assertion that the learned trial Magistrate erred in law by not considering all of the evidence. We assume that this is a reference to the same evidence as is referred to in ground (a). If that is so it follows that there is no substance to this proposed ground also.
(Page 8)
- However we should say, in any event, that there is nothing in the transcript of his Worship's reasons which would suggest that the learned Magistrate did not consider all of the evidence which was in fact placed before him.
23 Ground (c) simply repeats the first two grounds and suggests that they gave rise to a miscarriage of justice in that not all of the evidence was made available to the court. It follows from what we have already said that this ground, too, discloses no arguable case.
24 Ground (d) arises out of the cross-examination of the complainant by the applicant. She acknowledged, in the course of cross-examination, that she was on medication in the form of anti-depressant tablets. When questioned about the relevance of this line of cross-examination, which encompassed attempts which the complainant had made to commit suicide, the applicant said that the pills taken by the complainant were highly addictive and that they made her "misplace things, lose things, get agitated and all this kind of stuff" and that, if she had given untrue evidence in her statement, this was "because of the medication". The learned Magistrate told the applicant that he could not say what effect the pills had because he was not qualified to do so and that the same was true of the complainant. The applicant then said: "Well, what do I have to do, adjourn this case to get a psychiatrist in here?". The learned Magistrate responded by saying "No." He then ruled that the questions would not be allowed.
25 The applicant did not in fact make an application for an adjournment in order to obtain psychiatric evidence although he might quite reasonably have assumed, from the learned Magistrate's answer to his question, that any such application would not be acceded to. However, even if the applicant was right in his contentions that the anti-depressant tablets taken by the complainant made her forgetful and agitated there was no suggestion that any psychiatric evidence which he might have obtained would demonstrate anything more than this and nor had the applicant made any effort to obtain evidence of that kind in advance of the trial. More importantly, perhaps, the learned Magistrate accepted, in the course of his reasons, that the complainant was a person of nervous disposition whose recollection of events was "not ... particularly clear". He regarded her as being "in many respects mistaken as to the exact course of events" and preferred to rely upon the evidence of the complainant's daughter, who witnessed the alleged assault.
(Page 9)
26 We are consequently not persuaded that this ground discloses any arguable case.
27 Ground (e) appears to be directed towards an argument that the evidence given at the trial was such as should have led to a reasonable doubt that the applicant could have struck the complainant in the manner alleged. His cross-examination at the trial appears to have been directed in large part towards showing that the physical positions taken up by the complainant and by her daughter, who had intervened in order to protect the complainant from what she believed to be a threatened assault by the applicant, were such as to have made it impossible for the applicant to have struck the complainant in the manner alleged.
28 However, a reading of the transcript does not lend any support to the applicant's contentions in this respect. There seems to be little doubt that the complainant was in fact struck. We have already mentioned that each of the two Constables observed a mark on the side of her face (albeit there appears to have been initial confusion as to whether the mark was on the left or right side of her face) and each of the complainant and her daughter was quite definite that the complainant had been struck by the applicant. The applicant himself acknowledged that he may have struck the complainant albeit, he said, if he did so this would have been by accident. He said, at the very outset of the hearing, that the complainant "must have got a little glance or something" from what he referred to as "a little stick". The learned Magistrate, in the course of considering the evidence given by the complainant and her daughter in this respect, said:
"There is certainly a discrepancy between the complainant's evidence and ... [the] evidence [of her daughter] as to the events leading to the blow. Mrs Asciak says she ran to her daughter, put her head on her shoulder, facing her. The defendant approached from the rear, but to her side. She said she saw him there. She said she felt a blow with a hard object to the ear region. She could not say how or effectively, who struck the blow, but there is no doubt that in fact it was the baton held by Mr Asciak that caused her the blow, or struck her.
On the evidence before the court I am satisfied that the complainant did receive a blow to the left side of her head with the baton held by the defendant ... .
The evidence of ... [the complainant's daughter] is that the complainant and the defendant were facing each other and ...
(Page 10)
- she moved in between them but to the right. She said the defendant raised the baton and struck the complainant to the left side of her head, once that she saw. Having seen the complainant and ... [her daughter], it is apparent to me the complainant was a person, certainly of nervous disposition and her recollection of events is not in my view, particularly clear. I accept her as an honest witness, but in many respects mistaken as to the exact course of events. On the other hand, in my view, ... [the complainant's daughter] was a clear, concise and credible witness. In fact, her evidence is largely consistent with the defendant."
29 The learned Magistrate then went on to consider the evidence given by the applicant himself before rejecting his version of events.
30 In all of the circumstances it seems plain, beyond argument, that the learned Magistrate gave adequate consideration to the matters now sought to be raised by the applicant and that the decision at which he arrived in respect thereof was open to him. There is consequently no arguable ground of appeal in this respect.
31 Ground (f) merely repeats, in more detail, and perhaps more clearly, what was sought to be raised by ground (e). It is enough to reiterate, in that respect, that the evidence before the learned Magistrate was compelling insofar as it suggested that the complainant was in fact struck by the applicant. There is consequently no arguable ground of appeal in this respect either.
32 Ground (g) does no more than contend that the various statements, and any exhibits, were not supplied to the applicant in sufficient time to enable him to prepare for the hearing. However the applicant made no complaint as to lack of preparedness at the time of the hearing. We have already mentioned that he told the learned Magistrate, at the very outset of the hearing, that he wanted to get it over with on that day. This ground, too, is consequently unarguable.
33 We are consequently satisfied that the learned Judge below made no error in refusing to grant the applicant leave to appeal against his convition.
34 That brings us to those grounds of appeal which suggest that leave to appeal should have been granted in respect of the sentence imposed on the applicant.
(Page 11)
35 The transcript discloses that on 22 February 2000 the complainant was sentenced to a total period of 6 months' imprisonment in respect of the events, other than the assault, which had occurred on the previous day. The applicant's actions, on that day, had been in breach of a restraining order which had earlier been made against him and which prevented him from having any contact with the complainant. He had also, on 21 February 2000, damaged property belonging to the complainant. He was consequently sentenced, on 22 February 2000, to 6 months' imprisonment in respect of his breach of the restraining order and to 4 months' imprisonment in respect of the damage to property. The two sentences were made concurrent. We should add that the applicant had earlier that week also been sentenced to a period of 4 months' suspended imprisonment in respect of a separate offence. That sentence was activated on 22 February 2000 but was ordered to be served concurrently with the other sentences to which we have referred.
36 The upshot of the aforegoing is that, when the total period of 6 months' imprisonment to which we have referred is added to that imposed by the learned Magistrate on 5 April 2000, the applicant was ordered to serve a total period of 18 months' imprisonment in respect of the events which took place on 21 February 2000.
37 In sentencing the applicant to the period of 12 months' imprisonment in respect of the assault charge the learned Magistrate told him that he was "quite fortunate" that he had not been charged with burglary as the evidence disclosed that he had gone into the complainant's house with the intent to commit an offence. The learned Magistrate said that the subsequent assault "was a likely consequence of ... [the appellant] going in, in that state of mind, and armed ... " with a piece of wood.
38 Without wishing to be taken to be expressing any view as to the likely outcome of an appeal in this regard it does seem to us to be arguable that the sentence imposed upon the applicant was excessive in all of the circumstances and taking into account the fact that that sentence was made cumulative upon the period of 6 months' imprisonment imposed upon the applicant in respect of other, related events on the same day.
39 It also seems to us to be open to argument that the learned trial Magistrate did take into account, in sentencing the applicant, the fact that he might have been charged with burglary and that his Worship erred in so doing.
(Page 12)
40 As regards the question of eligibility for parole the learned Magistrate said that given the criminal history of the applicant parole was not a viable option as the applicant was a continual offender who showed little prospect of rehabilitation. The applicant contended that he had never previously been given the benefit of parole and that this is something which should have been considered by the learned Magistrate. We are prepared to accept that there is an argument which is capable of being put in that regard.
41 We would consequently allow the appeal against the refusal to give leave to appeal so as to permit the appellant to raise, by way of appeal, grounds (a), (b), (d) and (e) of his appeal against sentence.
42 However, so far as ground (c) is concerned, the learned Magistrate said only that the matter was "serious". He did not say that it was at the top end of the scale of seriousness for offences of this nature. It consequently seems to us that this ground is unarguable.
Conclusion
43 We would consequently allow the appeal against the decision of the learned Judge below but only insofar as concerns his Honour's refusal to give leave to the applicant to appeal against sentence. The applicant should have leave to appeal on grounds (a), (b), (d) and (e) of his proposed appeal against the sentence of 12 months' imprisonment, without eligibility for parole, imposed upon him by the learned Magistrate on 5 April 2000.