Davidson v The Queen
[2012] ACTCA 1
•January 31, 2012
JAMIE DOUGLAS DAVIDSON v THE QUEEN
[2012] ACTCA 1 (31 January 2012)
APPLICATION – seeking leave to appeal out of time against convictions imposed in the Magistrates Court – no acceptable reason for delay – application refused
APPLICATION – seeking leave to appeal out of time against orders from a single judge of the Supreme Court – no demonstrable error argued – application refused
Evidence Act1995 (Cth), ss 38, 66
Magistrates Court Act 1930 (ACT), ss 208, 209
Supreme Court Act 1933 (ACT), s 37E
Court Procedure Rules 2006, rr 5171, 5174
Attorney-General (NSW) v Spautz [2001] NSWSC 66
Giannarelli v Wraith (1988) 165 CLR 543
Matta v The Queen (1995) 126 FLR 127
R v Davis [2003] VSCA 173
R v O’Keefe [1979] VR 1
R v Tait [1999] 2 Qd R 667
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 52 – 2011
No. SCA 53 of 2011
Judge: Burns J
Court of Appeal of the ACT
Date: 31 January 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 52 – 2011
) No. SCA 53 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAMIE DOUGLAS DAVIDSON
Applicant
AND: THE QUEEN
Respondent
ORDER
Judge: Burns J
Date: 31 January 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for leave to appeal out of time against the convictions imposed in the Magistrates Court on 26 May 2011 is refused.
The application for leave to appeal out of time from the orders of Refshauge J of 20 July 2011 is refused.
The applicant has made an application to the Court of Appeal for leave to appeal out of time against convictions and sentences. On 26 May 2011 the applicant was convicted in the ACT Magistrates Court after a contested hearing of one charge of assault occasioning actual bodily harm and one charge of common assault. I understand the complainant with respect to those charges to be the applicant’s de facto partner. He was sentenced to 12 months imprisonment on the charge of assault occasioning actual bodily harm and six months imprisonment on the charge of common assault, the sentences to be served consecutively but with the sentence to be suspended after 12 months and the applicant to be released subject to his compliance with a good behaviour order.
The applicant appealed against both his convictions and sentences. However, before his appeal came on for hearing his then solicitor, Mr Andrew Fraser, filed a notice discontinuing the applicant’s appeal against his convictions. The appeal continued as appeals against sentence only and was heard by Refshauge J on 20 July 2011. His Honour dismissed the appeals and confirmed the sentences imposed by the learned Magistrate. The applicant submits that his appeal to the Supreme Court against the convictions imposed in the Magistrates Court was discontinued by his legal representatives without his instructions. The applicant further submits that the learned Magistrate failed to take into account the complainant’s recanting of her initial complaint.
The applicant now seeks leave to appeal out of time to the Court of Appeal against his convictions and against the orders made by Refshauge J dismissing his appeal from the decision of the learned Magistrate and confirming her orders.
Jurisdiction
The applicant was not legally represented when he lodged the current application, and was not represented in the hearing before me. No issue of jurisdiction was raised by the respondent, but on reflection it appears to me a question does arise. In “discontinuing” his appeal against the convictions imposed by the learned Magistrate the applicant left only his appeal against the sentences imposed by the learned Magistrate to be determined by Refshauge J. It was not necessary for his Honour to make any orders with respect to the applicant’s appeal against his convictions as it was not before him. Indeed, it is doubtful if his Honour had jurisdiction to make any order.
As a consequence, there are no orders of Refshauge J with respect to the convictions imposed in the Magistrates Court for the applicant to appeal from.
The jurisdiction of the Supreme Court on appeals from the Magistrates Court is governed by Part 3.10 of the Magistrates Court Act 1930 (ACT), which includes s 208:
208 Appeals to which div 3.10.2 applies
(1) Each of the following appeals is an appeal to which this division applies:
(a) an appeal by an of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) of (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):
(i) the person whose fitness to plead was decided;
(ii) anyone who appeared at the proceeding in which the decision was made;
(iii) anyone else with the leave of the court;
(b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 375;
(c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 375;
(d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 pr part 3.7, or under the Crimes Act, section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed;
(e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i) part 3.2 (Sentences of imprisonment);
(ii) part 3.3 (Non-custodial sentences);
(iii) part 3.4 (Non-association and place restriction orders);
(iv) part 3.5 (Deferred sentence orders);
(v) part 3.6 (Combination sentences);
Note Orders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
(f) An appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders-amendment and discharge).
(3) Subsection (1) does not affect any power that the Supreme Court has, apart from this Act, to grant bail or to vary the conditions of bail.
Section 208 allows for appeals confined to an appeal against conviction only, or an appeal against sentence only. Of course an appellant may appeal against both conviction and sentence, but where the appeal as found in the notice is confined to an appeal against sentence the jurisdiction of the Supreme Court is similarly confined.
By filing a Notice of Discontinuance of his appeal against his convictions, as permitted by r 5171 of the Court Procedure Rules 2006, the applicant deprived Refshauge J of any jurisdiction to make orders concerning the convictions imposed in the Magistrates Court. By virtue of r 5171 (5) (a) the applicant’s appeal against his convictions was abandoned. However, abandonment differs from dismissal of an appeal by consent under r 5174 in that abandonment would not act as a bar to the applicant re-agitating the abandoned appeal. In my view this is what the applicant now seeks to do, effectively endeavouring to appeal against his convictions outside the time prescribed for the institution of an appeal of 28 days found in s 209 of the Magistrates Court Act 1930.
The jurisdiction of the Court of Appeal is governed by s 37E of the Supreme Court Act 1933 (ACT):
37E Appellate jurisdiction
(1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2) The following matters may be brought before, and heard by, the Court of appeal:
(a) appeals in relation to the following orders:
(i) orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master));
(ii) other orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b) appeals under section 37S (Reference appeal in relation to proceeding);
(c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal.
(3) However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252.
(4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge only with leave of the Court of Appeal.
(5) In this section
registrar includes a deputy registrar.
There can be no doubt that the applicant’s application for leave to appeal from the orders of Refshauge J dismissing his appeal against the sentences imposed in the Magistrates Court is an appeal against an order of this Court and as such is within s 37E (2) (a) (ii). The applicant’s application to the Court of Appeal is competent to that extent. However, s 37E does not give the Court of Appeal jurisdiction to hear and determine appeals from magistrates directly. To the extent that the present application seeks leave to appeal in the Court of Appeal from the convictions imposed in the Magistrates Court it is incompetent.
However, I do not propose dismissing the applicant’s application seeking leave to appeal from the convictions imposed in the Magistrates Court without considering the merits of the application. To that end, I direct that insofar as the application seeks leave to appeal from the convictions imposed in the Magistrates Court it is to be treated as an application under s 209 of the Magistrates Court Act 1930 for leave to appeal to the Supreme Court out of time. I will determine the application on its merits.
Appeal out of time
The applicant seeks leave to appeal out of time.
The Notice of Discontinuance of Appeal was filed in the ACT Supreme Court on 19 July 2011 by the applicant’s then solicitor. The Application for Leave to Appeal Out of Time Against Conviction or Sentence was filed in the ACT Supreme Court on 18 October 2011.
Neither the affidavit of the applicant dated 7 October 2010, nor the evidence of the applicant given from the witness box gives any explanation as to why the applicant waited approximately three months to file his Application for Leave to Appeal Out of Time Against Conviction or Sentence.
The principles regarding appeals out of time as applied in Victoria have been set out in R v O’Keefe [1979] VR 1:
The principles which govern an application for extension of time for appealing are conveniently stated by Gowans, J in delivering the judgment of the Full Court in R v John Edward Darby (unreported, 2 May 1975) as follows: -
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for the discretion of the Court and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.”
These principles were more recently reaffirmed by the Court of Appeal of Victoria in R v Davis [2003] VSCA 173.
“Special and substantial” reasons for extending time to appeal is not required by all Australian jurisdictions. In R v Tait [1999] 2 Qd R 667, the Queensland Court of Appeal, comprising McMurdo P, Thomas JA and Cullinane J, stated at [3]:
3 ... “The principles applicable to applications for extension of time in criminal appeals are now less stringent than they were expressed to be in R v Trew, R v Brown and R v Ollis and Andersen. It was then suggested that in every case where an extension was sought, the court required “substantial reasons” to be shown why such an extension should be made, and that after a lapse of a considerable period of time, “very exceptional circumstances” were necessary...”
5 The recent approach by this Court to the question of extending time in criminal appeals is sufficiently illustrated by R v Mentink and a number of unreported cases in this Court. These suggest that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay. (at p 668, footnotes omitted)
A similar approach was taken by the Western Australian Court of Criminal Appeal in Matta v The Queen (1995) 126 FLR 127:
Section 695 of the Code requires that a notice of appeal be lodged within 21 days. When the prescribed period for the lodging of a notice of appeal has expired the only way in which a person can institute an appeal is by way of an application of an extension of time within which to appeal. The principles on which the court proceeds in dealing with an application for an extension of time are well-known. The court has a discretion but it is a discretion that will only be exercised in favour of extending time where facts are established which appear positively to call for its exercise. The delay must be explained. If there is no satisfactory explanation for the delay the grounds of the proposed appeal will become dominant. In whatever way the matter is approached, it would not be usual for time to be extended unless there would be a manifest injustice in refusing to exercise the discretion by granting the indulgence which the applicant seeks. Almost inevitably, this will involve a consideration of the merits of the proposed appeal: see Narkle v The Queen (unreported, Court of Criminal Appeal, WA, Library No 6108; 2 December 1985); Gavin v The Queen (1992) 6 WAR 195. (per Owen J at p 130)
Similar principles have been applied in South Australia. In R v Balchin (1974) 9 SASR 64 the South Australian Supreme Court sitting in Banco stated:
In the first place, it is not inappropriate to point out that an application for leave to appeal must be made within ten days of the conviction or sentence. Although the Court may extend this period, normally the Court will refuse to grant an application for extension of time within which to appeal, except in a case where, on the merits, the appeal would be likely to succeed (R v Marsh), or where through exceptional circumstances or some untoward vicissitude, the applicant has been prevented from applying his mind to the question of appeal (R v Hatfield). The practice of this Court in relation to the granting of an extension of time within which to appeal was stated in R v Tame as follows:
“This Court has held, from time to time, that when a sentence is passed or a conviction is recorded, the right of appeal, or to apply for leave to appeal is one which, according to the Act, must be made promptly, that is, within the ten days allowed by the Act. If it is not, the right of appeal is gone, and the time will not, in the ordinary course of things, be extended, unless there is some ground for apprehending that justice has miscarried.” (per Hogarth ACJ, Bright and Walters JJ)
(footnotes omitted)
In my opinion an applicant for extension of time to appeal will normally be called upon to demonstrate some explanation for failing to lodge their appeal within the prescribed time, and that there are grounds of substance for any proposed appeal such that it would be manifestly unjust to refuse the application. Strong grounds for the proposed appeal will militate in favour of the court exercising its discretion in favour of an applicant, even where the explanation for delay is weak or non-existent. The onus falls on the applicant to demonstrate grounds for the court to exercise its discretion.
Delay
The applicant’s convictions were imposed in the ACT Magistrates Court on 26 May 2011. The notice of appeal from the convictions and sentences was lodged on 1 June 2011, well within the prescribed time set out in s 209 of the Magistrates Court Act 1930. The Notice of Discontinuance filed by the applicant’s then solicitor was lodged on 19 July 2011. The appeals against sentence proceeded before Refshauge J on 20 July 2011, at which time his Honour dismissed the appeals. The application for leave to appeal out of time was lodged on 18 October 2011. The prescribed period for lodging an appeal from the decision of the Magistrates Court expired on 23 June 2011, and that for lodging an appeal from the decision of Refshauge J expired on 18 August 2011.
The applicant swore an affidavit on 7 October 2011 in support of his application. It is the applicant’s contention that he never gave his lawyers instructions to discontinue the appeal against conviction. Insofar as the contents of the affidavit address his delay in lodging an appeal from the decision of Refshauge J, the applicant says:
8 I have tried on a number of occasions to get Legal Aid or another Lawyer to defend me in this matter but I have been unsuccessful in all accounts and this is why it has taken me so long to get it back into the Courts. I believe that I have a case to be heard and I think that I can be successful in my appeal if given the chance
Whilst the delays in seeking to appeal the decision of the learned Magistrate to record convictions and that of Refshauge J to dismiss the appeals against sentence are not extreme, the applicant’s application is unsatisfactory. Assuming for present purposes that he did not become aware of the discontinuance of the appeal against conviction until 20 July 2011 (the date of the hearing before Refshauge J), nearly three months elapsed before the applicant sought to appeal. The applicant provided no details of his attempts to obtain legal assistance, such as who he approached and when. Ultimately, the applicant drafted and lodged his proposed notice of appeal and his application for leave to appeal himself. No explanation has been provided by the applicant as to why he could not have drafted and lodged his notice of appeal from the decision of Refshauge J within the prescribed period.
The abandonment of the conviction appeal
The applicant submits that his appeal against the convictions imposed by the learned Magistrate was withdrawn by his legal representatives without his instructions.
The applicant refused the opportunity to have his former legal representatives brought to court for the purposes of giving evidence in this matter. As such, I can only proceed on the materials put before the court by the applicant, in the form of his affidavit and the evidence he gave from the witness box. In his affidavit the applicant deposed to the circumstances surrounding the conduct of the appeal by his then legal representatives:
2. I would like for this appeal to be heard as when I was in the Supreme Court in June 2011 I was not given the chance to have my appeal heard
3. When I 1st appeared in front of Her Honour Judge (sic) Duggan (sic) I believe that she had already made up her mind that I was guilty before I had even the chance to be represented
4. I had several written letters by the person that I had falsely assaulted stating that at the time of these allegations that she had fabricated the story due to being very angry and upset with me and that she had lied to the police and that everything that was said was false. Miss Fiona Craig also gave evidence on the stand of these false allegations but the Judge would not take anything that she said into account
5. Andrew Fraser had been representing me and I had to give him $2000 (which I had to borrow) for him to go ahead with the appeal and then I was given approval (sic) form Legal Aid for him to go ahead with the appeal for conviction/and or severity but when I went to Court I was later informed that they weren’t going for this and I wasn’t even given the chance to discuss this.
6. I have stated on numerous occasions that I was innocent and then I was given a 12mth sentence for a crime that I did not commit. I have found this very hard as I am in a place where I don’t belong and I feel like my life has been taken away from me
7. I was hoping in some way that I could get my sentence withdrawn or reduced in a hope that they could run concurrent with each other and that I would therefore only serve 6mths out of the 12mths that I was given
In cross-examination, the applicant was adamant that he had told his legal representatives to continue with the appeal on the day the appeal was listed to be heard before the ACT Supreme Court. However, that is the only aspect of the conversation upon which the applicant is clear. He is unable to describe the contents of those conversations, and is also unable to clarify the nature of the advice given him by his legal representatives. The applicant is unable to say with any clarity whether his legal representatives advised him to discontinue the appeal. He is, however, able to recall that his barrister advised him that his appeal on conviction had little prospects of success.
The applicant presented as a reasonably intelligent, articulate and assertive man. He was at pains to emphasise his belief that he was innocent of the charges and that he had instructed his then legal representatives that he wanted to continue with his appeals against conviction. He was present during the hearing of the appeal before Refshauge J when his counsel reiterated in open court that the appeals against conviction had been abandoned, and yet in his evidence he provides no plausible explanation for failing to object to his lawyers, or to Refshauge J, during the course of the hearing that his lawyers were not following his instructions. It is not credible that the applicant would have voiced no objection to his counsel abandoning the appeal against conviction if he had instructed them, as he claims, only the morning of the hearing that he wanted to pursue that aspect of the appeal. His explanation, that he was told by the “security officer” not to talk to his lawyers, is simply not credible. The applicant is no novice when it comes to appearing in court, and I have no doubt he is aware of his right to instruct his legal representatives, both before and during the course of proceedings.
I am not satisfied that in abandoning his appeals against conviction the applicant’s then lawyers were acting contrary to their instructions.
Prospects of success - conviction
The applicant was arrested on 19 January 2011 and charged with two charges of assault occasioning actual bodily harm. According to the Record of Conversation between the complainant and Police, this is what happened:
Ah, tonight we left AMF Bowling at Tuggeranong. On the way home Jamie started getting aggravated with me, started accusing me of things that has not happened. Um, I asked him to get out of the car. He wouldn’t get out of the car. So when we stopped at the lights at the Caltex service station I went to get my bag because he asked for the keys to the unit that we live in. I went to get, um, the keys out of my bag. He then proceeded to burn me with his cigarette. When I pulled in to the Caltex service station, um, I got out of the car and Jamie proceeded to get out the other side. He took my bag and everything that was in it. I went – then went inside and asked the gentleman behind the counter to call the police.
These events set out the basis for the charge of assault occasioning actual bodily harm which occurred on 18 January 2011. The following excerpt, also taken from the Police Record of Conversation between the complainant and Police, detail the events which form the basis for the charge of assault occasioning actual bodily harm which occurred on 14 January 2011:
... proceeded to drag me into the bathroom, threw me into the bath, tried to strangle me. Um, I have abrasions on my right elbow, a deep cut as well, I have bruises on my leg and also on my arms and back. So that would have been the last night previous to tonight, yes.
The accused entered pleas of not guilty to both charges on 2 February 2011.
On 14 April 2011 the applicant’s matter went to a hearing before a Magistrate in the ACT Magistrates Court. In that hearing, the complainant, who was the applicant’s partner at the time, gave evidence which was contrary to the information she had previously given to Police regarding the incident in question. From the transcript of the proceedings before the learned Magistrate, this is what occurred at [AB 32]:
Question: Now Ms (sic) Davidson, if I can take you firstly to 18 January this year. Were you driving somewhere with the defendant?
Answer: I was driving home from the Tuggeranong Bowling Club.
Question: And Mr Davidson was sitting in the passenger seat?
Answer: Yes, that’s correct.
Question: And some time during this trip was there some discussions between you and Mr Davidson?
Answer: Yes we had a – a verbal, yes.
Question: Yes, and when you say “verbal” what do you mean by that?
Answer: We had a disagreement.
Question: So what was the disagreement about?
Answer: Numerous things, Jeremy wanted to break up with me, he’d had enough, he was under a lot of pressure.
Question: And was it a heated argument?
Answer: No really, no. I think it got a little bit out of hand at the end, yes, but-
Question: When you say a little bit out of hand, what do you mean?
Answer: Well I kept it going. If I’d just stopped it probably wouldn’t have got any further.
Question: At some point, did you stop the vehicle?
Answer: I stopped at the traffic lights.
Question: Yes, and did you continue the argument?
Answer: No, I went to hit Jamie.
Question: Now when you say you stopped at the traffic lights, was this near a service station?
Answer: Yes, that’s correct.
Question: The Caltex Service Station?
Answer: Yes, that’s right.
Question: And this was in the Caltex Service Station in Monaro Highway in Hume?
Answer: Yes.
Question: So you stopped your vehicle?
Answer: Traffic lights, yes, I had a red light.
Question: Well did you both remain in the vehicle?
Answer: Yes, we did.
Question: And you said that the argument hadn’t finished, you were still arguing?
Answer: I went to hit Jamie, the argument had stopped, I went to hit Jamie because he told me he didn’t want to be with my any more, so I gave him a backhander.
At this point the prosecutor made an application to cross-examine the complainant under s 38 of the Evidence Act1995 (Cth), indicating that the evidence that was being given in court during the hearing was different to the information provided during the complainant’s conversation with Police. The learned Magistrate did not refuse the request, but asked the prosecutor to continue questioning the complainant about the incident, indicating she would grant the application if it became necessary. Accordingly, the prosecutor continued questioning the complainant:
Question: Now you indicated that your hand made contact with the defendant?
Answer: Yes. With – more – a cigarette.
Question: So you’re indicating that you used your left hand?
Answer: Yes, that’s correct.
Her Honour: Sorry, with what?
Answer: With a cigarette. I went to give him a backhander but he had a cigarette.
Question: So you’re indicating that you used your left hand?
Answer: Yes, that’s correct.
Question: Can you demonstrate to the court again how you did that?
Answer: I was sitting there driving, we’d stopped at the traffic lights and I went like that with my hand.
Question: And so you’re indicating that you’re holding your left hand in a fist?
Answer:
Yes, that’s right.
Question: And you’re moving it in a sideways direction, okay. And your partner, Mr Davidson, was smoking a cigarette at the time?
Answer: Yes.
Question: And where did you strike him?
Answer: Well I hit him with – like when I went like that he had the smoke in his hand which was going up to his mouth.
Question: So he had a cigarette still in his hand, it wasn’t in his mouth?
Answer: No.
Question: So you hit him where?
Answer: Sorry?
Question: So what part of his body did you make contact with?
Answer: His hand.
Question: And what happened to the cigarette?
Answer: I’m not quite sure, I didn’t know. I had a green light, and I took off.
Question: Okay, and what happened to your hand?
Answer: I received a burn mark on the back of my hand from hitting his cigarette.
Question: About how long did your hand remain in contact with the cigarette?
Answer: I’m not quite sure. It would have only been a few seconds I suppose.
Question: So a few seconds, can you give an approximate 2, 3 seconds, 4 (sic) second?
Answer: No, I can’t. I’ve gone like that, so however long that will take.
Question: You didn’t keep your hand on the cigarette?
Answer: I had – no I didn’t keep my hand on – on the cigarette. I had a reaction from hitting his cigarette which I – which I burnt myself, which was my own fault.
Question: Ms Davidson?
Answer: It’s Ms Craig.
Question: Sorry, sorry Ms Craig. Mr Davidson was still sitting in the passenger seat when you did this?
Answer: Yes, he was.
Question: And after you burnt your hand?
Answer: Yes.
Question: What did you notice about Mr Davidson?
Answer: He laughed at me and called me a fool.
Question: So he laughed at you and called you a fool?
Answer: Yes.
Question: Now at some point you called the police, you dialled 000?
Answer: Yes, I did.
At this point, the prosecutor played, and subsequently tendered, the audio tape of the complainant’s 000 call. He then went on to question the complainant about the incident alleged on 14 January 2011:
Question: Ms Craig, leaving this incident for a moment, if we can go back a few days to 14 January, was there an incident that happened at your place on that day, 14 January?
Answer: I slipped over in the bath and hurt my elbow. Jamie and I had been out for the night, I’d had a few to drink. He’d asked me to go and have a shower and I slipped over in the shower. We’ve got a very rough wall along the shower, so I slipped over and grazed my elbow.
Question: Was there a crowbar that you keep at your house, or was kept at the house?
Answer: Yes, it’s above the door. We’ve had prior people try to get in or break into the warehouse, so Jamie keeps it there.
Question: Did you sustain an injury as a result of what you say, the fall?
Answer: I received a scrape on my elbow, yes.
The prosecutor also tendered the complainant’s taped record of conversation with Police as evidence of the complainant’s prior inconsistent statements. At this point the prosecutor successfuly renewed his application under s 38 of the Evidence Act 1995.
Prior to the hearing, the complainant had provided two written statements to Police, the first dated 20 January 2011 and the second dated 4 February 2011, both of which refuted the information she had provided to Police at the time of the incident of 18 January 2011. The learned Magistrate addressed these statements in her decision:
“And the two letters – I have to look at the two letters, because Mr Fraser said that I have to really consider those two letters because they do provide an inconsistent version, and the letters of themselves are rather pathetic, you know? And that’s sad too. And I don’t say that in an unkind way, but they are a pathetic attempt to try and recant, and they’re not credible.
She says in the letter, “I realised after all of this” – this is the letter of the – the first letter, I think. 20 January, a couple of days later. She says, “I realised after all of this that my intentions were wrong and I didn’t mean to make the statement as I realised that everyone has problems and that two people who love each other should be able to work things out.” That’s false. He was telling her, on her version today, that he was trying to leave, that he was leaving. So why she would write that two people who love each other try to work things out is an odd thing for her to say in the context where he is telling her that it’s all over and I’m going to leave you.
So they’re not credible. These letters, in my view, are not credible, and they are, as I say, a pathetic attempt by her to try to undo what she had the courage to do. And it’s the first time. And if she hasn’t made 000 calls before that’s sad too, because she certainly has, on her evidence that I’ve accepted from the statements, she has had – she has experienced violence from this man in the past.”
It is clear from the reasoning of the learned Magistrate that she took the statements and the evidence of the complainant recanting her initial complaint into account in coming to her decision. However, that was not the only evidence before the learned Magistrate relevant to the applicant’s guilt. There was evidence before the learned Magistrate of visible injuries to the complainant consistent with her initial complaints to the Police. The complainant sought to explain away those injuries in her testimony before the learned Magistrate, but her explanation is far from convincing. The learned Magistrate was entitled to take into account the unlikeliness of the coincidence of the complainant having suffered those injuries shortly before she determined to make a false complaint of assault to Police and so as to have them available as corroboration of her false complaint.
In addition, the learned Magistrate was entitled to give weight to the Police observations that when they attended upon the complainant her “body was shaking and she was visibly upset”. Again, the complainant sought to explain this evidence in a manner that did not inculpate the applicant, by saying she was upset that they had just had an argument. The learned Magistrate was entitled to consider the likelihood of a person as distressed as the complainant having the capacity to concoct on the spot a false accusation against the applicant with the degree of detail revealed in her record of conversation with Police at the Caltex service station at Hume at 11.35 pm on 18 January 2011.
The learned Magistrate also had the advantage of hearing the recording of the 000 call made by the complainant on the evening of 18 January 2011, and was entitled to take into account her demeanour during that call.
The statements made by the complainant to Police on the evening of 18 January 2011 were admissible as evidence of the truth of the matters complained of: s 66 Evidence Act 1995 (Cth). No objection was taken to the admissibility of those statements before the learned Magistrate.
The learned Magistrate was entitled to take into account in determining to reject the complainant’s evidence recanting her complaints that her statements to the Police had been relatively spontaneous, and as such were likely to be true, and that the complainant had a motive to recant her complaints. The complainant gave evidence that she wants to continue in her relationship with the applicant, and has a strong emotional attachment to him.
In these circumstances it is not surprising that counsel appearing for the applicant before Refshauge J took the view that the prospects of success on the appeals against conviction were slight. In my opinion, the applicant’s prospects of success on any appeal against conviction are poor.
Prospects of success - sentence
The applicant does not allege any specific error by Refshauge J, nor does he seek to put anything new with respect to sentence before the Court of Appeal. The applicant has failed to demonstrate that he has any substantial grounds for appeal against the order made by Refshauge J.
Conclusion
Whilst the delay on the part of the applicant in seeking leave to appeal from the convictions imposed in the Magistrates Court, and the order of Refshauge J dismissing his appeal against the sentences imposed, is not great, I do not accept his explanation for the delay. Furthermore, I am satisfied that his prospects of success with respect to each of the proposed appeals are poor. I consider that each of the applications should be refused.
I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 31 January 2012
Counsel for the applicant: The applicant appeared in person
Counsel for the respondent: Mr T Jackson
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 25 November 2011
Date of judgment: 31 January 2012