Daniel Colin Kleehammer v Joshua Burnett
[2013] ACTSC 131
DANIEL COLIN KLEEHAMMER v JOSHUA BURNETT
[2013] ACTSC 131 (5 July 2013)
Evidence Act 2011 (ACT)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 21 of 2013
Judge:Nield AJ
Supreme Court of the ACT
Date:5 July 2013
IN THE SUPREME COURT OF THE )
)No. SCA 21 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DANIEL COLIN KLEEHAMMER
Appellant
AND: JOSHUA BURNETT
Respondent
ORDER
Judge:Nield AJ
Date:5 July 2013
Place:Canberra
THE COURT ORDERS THAT:
The appeals are dismissed.
The convictions are confirmed.
The sentences set by Magistrate Mossop are confirmed. The 12 months Community Service Order is to commence from today and the 18 months Good Behaviour order is to commence from 5 April 2013.
The appellant has 4 months from today for the payment of costs and the victim support levy.
I have an appeal by the appellant, Daniel Colin Kleehammer, against convictions found by Magistrate Mossop, as he was then was, in relation to five charges that the appellant assaulted the complainant, Ms Leisel Cupido, on 25 November 2012 and/or 26 November 2012.
The charges against the appellant came about in this way:
(1) At some time after 12 midnight on 26 November 2012 the complainant left the home in which she and the appellant then resided as housemates, if I can use that expression, and contacted police. She told Magistrate Mossop that she had awoken at about 12.30am on 26 November 2012 feeling “really scared” and thinking that the appellant was “going to hurt her”. She thought that her thoughts emanated from an argument in which they were involved earlier that evening.
(2) Because of her thoughts, she contacted police. Police arrived at about 2.15 am on 26 November 2012. Police found the complainant outside her home, in the street. The complainant gave police a short statement as to what had happened between her and the appellant during the evening. She showed police marks upon her body. She told police that her property in her bedroom in the house had been strewn about by the appellant.
(3) Police entered the home and found the appellant to be asleep, apparently under the influence of alcohol. Police arrested the appellant. Police photographed the complainant’s bedroom. Later, police photographed the marks upon the complainant. Later still, the complainant gave police a detailed statement of what she said had happened between her and the appellant during the evening. Police charged the appellant with the offences.
(4) Those offences are these:
(i) Charge Case 10267/2012: kicking the complainant with his legs when they were sitting together on a couch in the lounge room;
(ii) CC 10268/2012: hitting the complainant when they were in the complainant’s bedroom;
(iii) CC 10269/2012: hitting the complainant on the side and back of her head when they were in her bedroom;
(iv) CC 10270/2012: hitting the complainant on the left side of her face and on her left eye when they were in the bedroom; and
(v) CC 10272/2012: throwing a clock radio at the complainant, hitting the complainant on the top right hand side of her head, when they were in the bedroom.
In due course, on 14 March 2013 the appellant appeared before Magistrate Mossop in the Magistrates Court on the hearing of the charges. On being arraigned with the charges, he pleaded not guilty to each of them. Magistrate Mossop heard evidence from the complainant, the police and the appellant.
Magistrate Mossop was satisfied beyond reasonable doubt by the evidence of police of what the complainant told them about the assaults, by the photographs of the complainant showing marks upon her body and by the photographs of the complainant’s room, which shows property strewn about the room, including a television lying on the floor on its face, and the differences between the appellant’s evidence and what he told police when interviewed, that the appellant had assaulted the complainant in the ways that the complainant alleged to police.
The appellant, being aggrieved by Magistrate Mossop’s findings and convictions, appealed to this court. The notice of appeal raised a number of grounds of appeal to which I will refer in a moment.
Today, I have heard the appellant’s appeal. I allowed the appellant to adduce further evidence from the complainant in cross examination, that evidence being that on the night of the incident she had taken Xanax, albeit that it had not been prescribed for her, and that a week before the hearing before Magistrate Mossop she had again taken Xanax, albeit that it was not prescribed for her. I refused to allow the appellant to adduce evidence by way of a printout from Google as to the effect of Xanax upon a person. A pharmacologist would be required to give that evidence.
The appellant’s solicitor has relied upon 9 grounds of appeal and I will refer to each of them in the order in which he referred to them:
The complainant’s competency to give evidence before Magistrate Mossop(1)
The appellant’s solicitor argued that, because the complainant had taken Xanax about a week before giving evidence before Magistrate Mossop, she was incompetent to give evidence. I do not agree. She was clearly competent to give evidence.
(2) The prosecution’s use of section 38 of the Evidence Act 2011 (ACT)
The appellant’s solicitor submitted that Magistrate Mossop should not have exercised his discretion to allow the prosecution to cross examine the complainant pursuant to section 38 of the Evidence Act 2011 because, although the complainant said that she could not remember the events of the night, she was not unfavourable to the prosecution. I disagree. Magistrate Mossop considered what he was required to consider and he made a discretionary ruling. As the learned Crown prosecutor commented, others may make a different discretionary ruling. However, Magistrate Mossop, who considered what he needed to consider, made a discretionary ruling in favour of the prosecution and I cannot say that he was in error in doing so.
(3) The evidence of police
The appellant’s solicitor argued that the evidence of police, because they had not witnessed the assaults, was inadmissible. I fail to understand his argument. The fact is, their evidence of immediate complaint from the complainant, the photographing of the marks upon the complainant and the photographing of the complainant’s bedroom in the house was admissible. Frankly, the photographs of the marks upon the complainant’s body are consistent with her complaint that she had been assaulted by the appellant. The photographs of property strewn about the complainant’s bedroom are also consistent with her complaint to police. The police evidence was clearly relevant and admissible and Magistrate Mossop was bound to admit it.
The photographs of the marks upon the complainant’s body and of the property strewn about her bedroom (4)
The appellant’s solicitor submitted that the photograph should not have been admitted into evidence because the prejudicial effect of those photographs outweighed the probative value of them and, therefore, section 137 of the Evidence Act required Magistrate Mossop to refuse to admit the photographs into evidence. Again, I cannot understand the basis for the appellant’s solicitor’s argument. The photographs are clearly relevant. They show relevant evidence. They are clearly admissible. The prejudicial effect of them is obvious. Indeed, evidence presented by a prosecution in proceedings against an accused is prejudicial. It is evidence designed to bring about a conviction of an accused. The question is whether the evidence is unfairly prejudicial to the appellant. Clearly, it was not. Magistrate Mossop was entitled to admit the photographs into evidence.
The fact that, at the time of the complainant giving police her complaints, she was affected by alcohol and/or Xanax (5)
Police recognised that the appellant had consumed alcohol. Police considered that her level of intoxication was towards the lower end of the range from one to ten; one being sober and ten being highly intoxicated. Police did not know that the complainant had taken Xanax, but it would not have mattered. Police considered the complainant capable and competent to give a statement and she did.
The assessment by police of the complainant’s state of intoxication or level of intoxication (6)
I consider that police, as well as anybody, may give evidence of a person’s being intoxicated and an assessment of the level of that person’s intoxication.
(7) Cherry picking of the evidence
It is difficult to understand how a complaint can be made where a body of evidentiary material, some parts of it inconsistent with other parts of it, is presented to a magistrate who is asked to consider it all and then decide what it is that he or she accepts. That is what juries do in criminal trials, that is what magistrates and judges do in criminal trials without juries. The magistrate or judge looks at all of the evidence and decides what it is within it that he or she accepts. That is what Magistrate Mossop did. He looked into the evidence, he referred to it at length, he made decisions about who he would accept, whether in whole or in part; he referred to the evidence that he preferred to other evidence and he made a decision. I cannot see that he did anything inaccurately or inappropriately.
(8) Magistrate Mossop called the complainant a liar
A fair reading of Magistrate Mossop’s reasons would reveal that he did not call the complainant a liar.
Magistrate Mossop called the accused a liar (9)
Again, a fair reading of Magistrate Mossop’s reasons would reveal that he did not call the appellant a liar. He commented upon the fact that when interviewed by police, the appellant did not mention having had an argument with the complainant, nor to his having called the complainant by an offensive word, whereas, in his evidence, he said of doing both those things. All Magistrate Mossop did was point out the differences in the appellant’s evidence to what he had said when interviewed. Again, that is what magistrates and judges do when determining who it is to be accepted and what it is to be accepted.
I reject the appellant’s grounds of appeal. Reading Magistrate Mossop’s reasons, it is clear that Magistrate Mossop, as I have said already, referred extensively to the evidence that had been placed before him. He referred to his assessment of the witnesses. He referred to the differences in the witnesses’ evidence, specifically the differences in the evidence of the complainant and the appellant. He did everything that he was required to do. He did it properly, he did it without error. I dismiss the appeals. I confirm the convictions.
The orders I make are as follows:
(1) The appeals are dismissed.
(2) The convictions are confirmed.
(3) The sentences set by Magistrate Mossop are confirmed. The 12 months Community Service Order is to commence from today and the 18 months Good Behaviour order is to commence from 5 April 2013.
(4) The appellant has 4 months from today for the payment of costs and the victim support levy.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 9 July 2013
Counsel for the appellant: Mr H Ford
Solicitor for the appellant: Hugh Russell Ford
Counsel for the respondent: Mr A Williamson
Solicitor for the respondent: Office of the Director of Public Prosecutions
Date of hearing: 5 July 2013
Date of judgment: 5 July 2013
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