Baker v Barratt - [2019] TASSC 28

[2019] TASSC 28

COURT: SUPREME COURT OF TASMANIA

CITATION: Baker v Barratt [2019] TASSC 28

PARTIES:  BAKER, Kenneth
  v
  BARRATT, Senior Constable Russell

FILE NO:  2226/2018
DELIVERED ON:  4 July 2019
DELIVERED AT:  Hobart
HEARING DATE:  19 February 2019
JUDGMENT OF:  Geason J
CATCHWORDS:

Magistrates – Appeal and review – Motion to Review – Tasmania – Procedure and evidence - Decision was reasonably open on the evidence.
Aust Dig Magistrates [1348].

Administrative Law – Judicial Review – Grounds of review – Bias – Apprehension of bias - Test is concerned with pre-judgment, not pre-disposition – Magistrates conduct and reasons did not give appearance of pre-judgment leading to an apprehension of bias.

Aust Dig Administrative Law [1071].

Magistrates – Appeal and review – Motion to Review – Tasmania – Powers of court – Procedural error of magistrate in not playing record of interview in open court – No substantial miscarriage of justice.
Justices Act 1959 (Tas), s 110 (2) (ab).

Aust Dig Magistrates [1347].

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Unrepresented
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 28
Number of paragraphs: 30

Serial No 28/2019
File No 2226/2018

KENNETH BAKER v SENIOR CONSTABLE RUSSELL BARRATT

REASONS FOR JUDGMENT GEASON J

4 July 2019

The applicant appeals against his conviction on a charge of common assault contrary to s 35(1) of the Police Offences Act 1935.
A single ground of appeal is articulated in the applicant's notice. It asserts that "the court erred in convicting the applicant against the preponderance of the evidence." I will construe that ground as if it pleaded that no magistrate acting reasonably could have come to the conclusion that his Honour did on the evidence led at trial: Kent v Gunns [2009] TASSC 30, 18 Tas R 454 per Porter J at [7] See generally, Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. The applicant was content that I proceed that way. The respondent accepted that this interpretation reflected the applicant's real complaint.
The applicant filed submissions. The submissions do not relate to the ground of appeal. Rather, they assert that the learned Magistrate, C P Webster, ought not to have heard the case because of bias. This claim is made on the basis that the learned magistrate's cousin is the owner of the Waratah Hotel where the victim of the alleged assault, and the applicant's partner at the time, was employed.
Because the applicant is not represented I will deal with that issue although it is not raised in the way required by the Justices Act 1959[1]. To that end, I will permit an amendment to the notice to review to add an additional ground to the effect that the learned magistrate ought not to have proceeded to hear the case on the basis of apprehended bias. The respondent was content that I take this course.

The hearing

[1]Applicant limited to grounds to be stated in notice to review:

The applicant pleaded not guilty in the Magistrate's Court and the hearing proceeded on 31 July 2018. At the hearing the applicant was represented by Mr O'Halloran.
During the course of the complainant's cross-examination when it emerged the complainant was employed at the Waratah Hotel, the learned magistrate volunteered that his first cousin was the owner of the Waratah Hotel. He added "I don't see any conflict …I don't think that affects anyone …".
The prosecution made no comment about the matter. Counsel for the applicant did not suggest to the court that any problem arose from the disclosure. Nevertheless the applicant now believes that an important issue was not raised. I interpret the basis for that concern to be a worry that the court was more likely to believe the complainant because of the employment relationship she had with the learned magistrate's cousin.
The complainant told the court that on 1 February 2018 she had had an argument with the applicant with whom she was in a relationship. In the course of that argument she said he slapped her in the face and twisted her arm and pushed her onto the floor. Her evidence was that he tried to kick her whilst arguing with her. She said he lifted her up and dragged her to the couch where she covered her face to stop him slapping her again. When it stopped, she rang a friend. That friend gave evidence. He confirmed the fact of the phone call, and that the complainant had said she had been assaulted. He took photos of her for the purposes of recording the consequences claimed to be attributable to the assault.
These were tendered along with the record of interview with the applicant. There was also police evidence which related principally to procedural aspects of the case, and some further photographic evidence.
The applicant gave evidence denying the assault.
In respect of the first issue raised by the applicant, the only question is whether the decision reached by the learned magistrate was reasonably open to him on the evidence. That is, whether on the evidence the only conclusion reasonably open to the court judged on the criminal standard of proof was that the applicant was in breach as alleged.
The learned magistrate expressed his reasons for decision as follows:
"DECISION - HIS HONOUR: Okay, the defendant is charged with assault on his partner on the 1 February 2018. The particulars of the charge are that it's a breach of the Police Offences Act s 35(1) and the particulars are you are charged with on the 1st February 2018 at Rokeby in Tasmania you unlawfully assaulted Ingrid Bautista by kicking the toilet door, which hit her knee and hand, slapping her to the fact, grabbing her arm and twisting it, grabbing her and picking her up and throwing her onto the couch.
Now Ms Bautista gave evidence. She gave evidence essentially that you committed those – you did exactly those acts, but she said that you were having arguments over your finances, that this argument had gone on for a number of years and particularly since she was working, that you became angry during this occasion, this argument, that she went to the toilet and while she was there in the toilet you kicked the door, causing it to hit her knees and she felt pain in the knees and she was crying, that the defendant slapped her, told her to shut up so the neighbours wouldn't hear, he then twisted her arm and pushed her onto the floor. He then pulled – it's alleged that the defendant then pulled her up and threw her onto the couch.
Ms Bautista's evidence was that two days later she contacted a friend, Mr Garcia, and left the – who she met through the church, and left the house in Mr – with Mr Garcia's help she contacted the police.
A video interview was conducted of the defendant by the police and was shown to the Court. Photographs of bruising to the complaint were shown. Mr Garcia gave evidence of Ms Bautista ringing him on the 4th February and complaining of being beaten by her partner and that he picked her up from the defendant's home with her belongings, where he saw the defendant, who waved at him.
The defendant agrees that there were arguments about money but denies assaulting the complainant on the 1 February 2018, he says it's just a continuation of their ongoing arguments. He states that on the 3 February he told – or 4 February he told the complainant that the relationship was over and he speculates that the complainant has made up the allegations of assaults to somehow get him back, is the best I can do.
In evidence in court the defendant, in addition to what – well sorry, in addition – I'll come back to that.
The onus of proving the prosecution case rests on the prosecution of course, who must satisfy me beyond reasonable doubt that the ingredients of the offence have been satisfied. This matter is essentially the word of the complainant against the defendant which basically if I have any doubts about the complainant's evidence then – any reasonable doubts about the complainant's evidence then the prosecution – then the prosecution must fail.
The complainant, Ms Bautista, gave compelling evidence, at one stage she broke down but she continued, she was tearful and she rushed through her evidence and my comment on that is that it was as if she was reliving the assaults upon her. It had the ring of truth and it sounded as if she was reliving the actual events. Her evidence was internally consistent and supported by the external evidence.
The defendant appeared in his video interview to be a controlling person. He admitted that he insulted – sorry, he admitted that he insisted that he owned the two phones, which apparently the couple had between them, he insisted it was his phone, both phones were his phone, and he refused the use of the phone to his partner at will because he owned them, that's what he said. That he would threaten to contact the Immigration officer or the Immigration lawyer if he argued with his partner and gave evidence today that he did on the occasion of the 1st February. He made consistent references – numerous references, I didn't count them but well in excess of twelve references to the fact that she'd lacked respect for him and he didn't receive the respect from the complainant that he deserved. He freely admitted that he called her a cunt but denied that it was abusive and was surprised that the police thought that there was anything untoward in that language. He said that he owed – that she owed everything to him and that she was an ungrateful person. He did however support significant parts of the complainant's evidence and lots of the complainant's isn't really in dispute.
There's no dispute that the couple had argued over money on a number of occasions, there was no dispute that he was agitated on the night, but I'll come back to that. That during the arguments the com – that during the argument on the 1st February 2018 the complainant had gone to the toilet and she was in the toilet while the argument – while he was standing outside continuing the argument. He agrees that he denied her access to the phone on that – on that evening. He agrees that – sorry, he agrees that he denied her access to the phone and he agrees that they – she slept in a different room, so all those factors are – the parties are in agreement, the only area really where they disagree is whether or not there was an assault.
To me, on the video interview he did not appear to be frank and in his interview he chose to answer some questions but declined to answer others. A frank witness, once they choose to give an interview, answers all questions. His answers in the video interviews were evasive. On page 15 is one example. He's asked:
So that the door that you are alleged to have kicked, causing it to his her left knee and her hand as she was trying to protect herself?.....Well I'd say that's untrue.
Well it's either untrue or it's not, you don't say, 'I'd say it's untrue', that's an evasive answer, it doesn't answer the question and most people, I'm sure, would say, 'That's just untrue, it's a lie, it's made up', not 'I'd say it's untrue'.
He mentions bruising to the complainant, he mentions it before the police even say that the complainant has alleged bruising as a result of these assaults. Now one explanation, the most logical explanation is because he knows that there was bruising to her. And then he comes up with a reason that she might have suffered bruising, that is that she's – a dog jumps on her, she's a housekeeper and might be down on her knees and she bruises easily. I note that this allegation was never put to the complainant in cross-examination, therefore a violation of Browne v Dunn. In court the – well in summary on the video interview I thought that the defendant was particularly unimpressive.
In evidence in court the defendant didn't really add anything to his record of interview. He admitted that he was under – feeling financial pressure, he – that he had been in arguments regarding finances leading up to the 1 February and he was getting – and it was getting to him, her actions, and that on the 1 February 2018 he was becoming agitated. He says that he was as calm as when he was in court today, I find that unbelievable given the circumstances that he would be as calm and that given the fact that these arguments had gone on for some years and his financial position that he would be as calm as he was today, particularly when he says that he freely – freely assault – freely abused her and called her – called her terms such as cunt, which I find a particularly repulsive and – word. He also talked about bruising again.
So I prefer the evidence to – the evidence of the complainant to that of the defendant just on what I've heard them say today, and I thought that the complainant was particularly compelling and the defendant was particularly unconvincing. But there are a number of other factors independent of their direct evidence which supports the complainant's version over the – and discredits the defendant's version.
First of all the bruising to the complainant is consistent with an assault as described by her and inconsistent with being caused by methods put forward by the – by the defendant. The bruising is to the top of the arm and the elbow, it's unlikely that a dog would cause bruising in that manner but, as I said, that wasn't raised in any event in cross-examination and really I disregard the – have to disregard the defendant's version anyway. There was no – there was also no motive for the complainant to complain about domestic violence when – if it didn't occur. Now I am conscious of the fact that people do make up tales and do sometimes complain about domestic violence, perhaps for a matrimonial – in a matrimonial dispute to gain an advantage in custody, but in this case this was – the complainant was a Philippino woman who was applying for a visa. She'd been refused a student visa and was no longer eligible for it, the only way that she was relying – that she could remain in Australia was through a fiancé visa. Now the defendant himself said, 'If she'd kissed me and we'd cuddled and we made up I would've kept her and we would've – and she could've – we could've continued along and I would've supported the – continued to support the fiancé visa', so why would the complainant make up an allegation of domestic violence when she's now ineligible for a spouse or fiancé visa, she's cut her own throat so to speak, to use the colloquial language, and she knows that, she knows that she's not, but in her own words, 'It's just gone too far, I had to do something about it and it's not worth –', it had the compelling ring of truth about it.
The defendant's controlling manner, well I've referred to his own evidence, he denies he controls her, it's quite apparent to me that he does control her and he thinks that she – that she owes him something and that – in his evidence in chief – it was only when I brought up the question of love that he even mentioned it. A fiancé visa's not – this sounds more like a partnership, you keep – you do the right thing by me, you give me some financial support, you drive me around and I'll support you on a fiancé visa. Now he is controlling, he admits – he doesn't admit he's controlling but what he's admitted to is controlling behaviour and it's consistent again with her version.
Having heard all the evidence and having observed the complainant and the defendant give evidence I'm satisfied beyond reasonable doubt that the complainant's version of events is correct and that the defendant is not a witness of the truth. I find the facts proved. Okay, any priors? I find the facts proved, which leads to me finding the complaint proved."
The evidence was of narrow compass; the complainant and the applicant had argued; it had become physical; the physicality was evidenced by bruising shown in photographic evidence which was created shortly after the fight. The photographer, Mr Garcia, gave evidence of what he saw and had photographed. The complainant's claims were consistent with that evidence. The complainant's evidence was unshaken in cross-examination, and corroborated in material respects by a third party.
This Court does not undertake its own assessment of the evidence in order to determine the weight it should be afforded: Kent v Gunns (above).
In my view, the reasons given are compelling, and the conclusion of the learned magistrate unimpeachable. The court has taken into account relevant matters, and exposed its reasoning in a detailed judgment. The court has accepted the evidence of the complainant, explaining that determination. It was entitled to prefer that evidence. In that respect the learned magistrate had the advantage of seeing the complainant and the applicant give evidence.
The applicant has not established that the learned magistrate's conclusion was one that was not reasonably open to him. I dismiss this ground.
In so far as it is suggested that the learned magistrate ought not to have proceeded to hear the case on the grounds of apprehended bias, I reject that submission for the reasons which follow.
The question is whether a fair-minded lay observer may reasonably apprehend that the learned magistrate would not bring an impartial mind to the resolution of the matters required to be determined on the hearing: Gascor v Ellicott [1997] 1 VR 332. The test considers that the perspective of a hypothetical fair minded lay observer is not concerned with fanciful or unreasonable apprehensions of bias: Gascor (above). There is a presumption that the fair minded lay observer has knowledge attributed to her of all the circumstances of the case; Liversay v New South Wales Bar Association [1983] HCA 17, 151 CLR 288 at [293]-[294]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at [87]-[88] and [95].
The fair minded observer was characterised in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 at 2418 [2]:
"2 The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The 'real possibility' test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially."
The requisite standard required of a judicial officer is breached if, in the eyes of that fair minded lay observer, a decision-maker proceeds to determination of a question by reference to something other than the evidence which is led. Such pre-judgment will amount to actual bias. In the context of apprehended bias, what is required to be shown is that in the eyes of the fair minded lay observer there is the appearance of such a pre-judgment because of the identified matter, in this case the familial relationship with the complainant's employer. It must be demonstrated by an applicant that not only is there the appearance of that pre-judgment, but circumstances which suggest that it is incapable of being swayed by evidence or argument. The test is concerned with pre-judgment, not pre-disposition. The matter is expressed succinctly in Minister for Immigration and Multi-cultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at [71]-[72] by Gleeson CJ and Gummow J:
"Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion ...".

There is nothing in the conduct of the case or the reasons for decision of the court, which gives the appearance of any pre-judgment based on the relationship, or at all. Accordingly, this ground is dismissed.

The record of interview

I would like to add one comment. The record of interview was played in court, but not in its entirety. There was this exchange:
"RECORD OF INTERVIEW WITH DEFENDANT PLAYED TO THE COURT
HIS HONOUR: Okay, would you like – can we cease it for a second? Okay, do you want me to watch the rest of this now, or do you want 5 me to just take the transcript in now?
MR O'HALLORAN: I'm content with that, your Honour.
HIS HONOUR: Okay. Well, there's only about 5 minutes left anyway. 10 Now, what – that's your case, I take it?
MS GOODWIN: Yes actually, it is, your Honour."
It is not clear why it was stopped at a point when about five minutes was left. The applicant's counsel did not object to that occurring.
The result is that not all the evidence has been heard in open court prior to the court reaching its decision, (which was given ex tempore).
Such practice should not occur. The record of interview is evidence and it should be played in open court. Justice is open, and the evidence which is relied upon to prove the case should be heard in the open. In R v Causby [1984] Tas R 54 at 61, Green CJ refers to "the fundamental" that "save for statutory exceptions a judge may only act upon materials which have been properly presented to him in open court in the presence of the accused".
Furthermore, the transcript of the interview is not evidence. As the High Court said in Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 at [9]: "when the tape is available …there can be no reason to admit the evidence of an out-of-court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape".
The court's reference to using the transcript as an alternative to seeing and hearing the evidence, amounts to it having regard to material which is not evidence. The injunction which is routinely given to juries in relation to the consideration of anything other than the evidence they see and hear, applies equally in a court where the fact finding function is reposed in the judicial officer. The court proceeded in a manner it was not entitled to. Such an approach runs the risk that something material to the case is not seen. It is inappropriate to invite counsel to consent to such course.
There was an error in this respect.
In the circumstances the Court is satisfied that the error did not give rise to any miscarriage of justice. Nothing probative of the matters in issue occurs in the last five minutes of the recording. Accordingly the Court applies the proviso in s 110(2)(ab) of the Justices Act.
The appeal is dismissed.

(1) On the hearing of a motion made on notice to review, the applicant shall be held to the ground set forth in his notice to review unless the court, on such terms as to costs and otherwise as it thinks proper, allows amendment of the notice.

(2) A notice to review may be amended under this section by adding new grounds and by striking out and amending existing grounds.