Davidson v Vince
[2015] ACTSC 310
•14 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Davidson v Vince |
Citation: | [2015] ACTSC 310 |
Hearing Date(s): | 12 October 2015 |
DecisionDate: | 14 October 2015 |
Before: | Robinson AJ |
Decision: | The Appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal principles – introduction of further evidence |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 5193 Crimes (Sentencing) Act s 33(1)(q) Magistrates Court Act 1930 (ACT) ss 208, 214(3), 214(4) |
Parties: | Jamie Douglas Davidson (Appellant) Jesse Ryan Vince (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms E Beljic (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 49 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 14 May 2015 Case Title: Jamie Douglas Davidson v Jesse Ryan Vince Court File Number(s): CC2014/12125 |
ROBINSON AJ:
The Appeal
This is an appeal by Jamie Douglas Davidson, the Appellant, against a sentence imposed upon him by Magistrate Boss on 14 May 2015. The Appellant pleaded guilty to an offence of assault occasioning actual bodily harm and was sentenced to a period of 10 months imprisonment. The Appellant was to be released after serving 7 months full-time custody with the balance of the term being suspended upon the Appellant entering into a Good Behaviour Order for a period of 3 years. The terms of that Good Behaviour Order were then set out by the sentencing Magistrate.
The sentencing Magistrate remarked that the head sentence had been reduced from 12 months on account of the guilty plea.
The offence of assault occasioning actual bodily harm carries a maximum sentence of 5 years.
The Appellant appeals pursuant to s 208 of the Magistrates Court Act 1930.
The Appellant was self-represented at the appeal.
Grounds
The grounds of appeal set out in the Notice of Appeal dated 15 June 2015 were:
Ground 3: The appellant will seek to put further evidence before the Court.
Ground 5: The witnesses can provide more information about the situations which shows it was less severe.
As can be seen no error is sought to be identified by the Notice of Appeal in the judgement under consideration, and it is also not suggested that the sentence was manifestly excessive.
Further Evidence on Appeal
Relevantly, for present purposes further evidence on appeal to the Supreme Court is regulated by s 214(3) and 214(4) of the Magistrates Court Act 1930 and Rule 5193 of the Court Procedures Rules:
Magistrates Court Act 1930
214 Appeals in cases other than civil cases
(3) In an appeal to which this section applies, the Supreme Court must-
(a) if it considers it necessary or expedient to do so in the interests of justice-
i) order the production of a document of anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which the section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if-
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of which the appeal arose on an issue relevant to the appeal; and
(b) The Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
Court Procedures Rules 2006
Rule 5193 Further evidence on appeal to Supreme Court
(1)This rule applies to an application to the Supreme Court to receive evidence mentioned in the Magistrates Court Act 1930, section 214 (3) and (4) in an appeal mentioned in that section.
Notes Pt 6.2 (Applications in proceedings) applies to the application and an application for an order under this rule.
(2)The application must be supported by an affidavit stating-
(a) The grounds of the application; and
(b) Any evidence necessary to establish the grounds of the application; and
(c) The evidence that the applicant wants the Supreme Court to receive.
(3)Not later than 21 days before the day set for the hearing of the appeal, the applicant must file the affidavit in the Supreme Court and serve a stamped copy on the other party to the appeal.
(4)Unless the Supreme Court otherwise orders, the evidence of the other party to the appeal must be given by affidavit.
(5)Not later than 14 days before the day set for the hearing of the appeal, the other party to the appeal must file the affidavit in the Supreme Court and serve a stamped copy on the applicant.
It should be noted that the Appellant was legally represented before the sentencing Magistrate and expressed no disagreement with the facts tendered before the Magistrate. Six references in the nature of character evidence and mitigation evidence were tendered before the sentencing Magistrate.
The Appellant’s counsel made submissions for the most part dealing with reoffending and the influence of alcohol. He quite naturally dealt with the long history of recidivism which included six prior convictions for assault in circumstances where the Appellant had had the benefit of assistance from ACT Corrective Services from 1992.
The Appellant did not comply with the rules of court regarding the tendering of further evidence on appeal. I accepted as a tender on the voir dire the following documents:
(a)Exhibit 1, which was a statement from Deborah Morrison who was present at the time and place of the assault. In substance she wrote relevantly about provocation from the complainant towards the Appellant on the night.
(b)Exhibit 2, which was a statement from the Appellant dealing with his current inability, whilst in gaol, to properly conduct his business.
(c)Exhibit 3, which was a record of interview between the co-accused, Paul William Kinsella, and police, recorded on 2 December 2014. The Appellant pointed out that there was evidence of provocation from the complainant to the Appellant contained in that interview.
The Appellant told me from the bar table that the statement of Deborah Morrison was in court on the day of sentence. He also told me that his counsel had been told by the DPP that “we’re not allowed to use it”. Self evidently, the DPP does not have any right to tell a defendant what can and cannot be tendered. For whatever reason, the solicitor for the Appellant at that time must be taken to having declined to seek to tender the Morrison statement. Nor was there any acceptable explanation as to why it was not tendered before the Magistrate.
Exhibit 2 does not relevantly reflect on the issues in the Appeal. Exhibit 3 covers the same ground as exhibit 1. It may be that exhibit 3 was not in the possession of the Appellant at the time of sentencing but I was given no explanation as to why it was not reasonably available at the time if it was seen to be significant.
In any event, the Appellant did rely on provocation before the Magistrate. The relevance of this factor could not be in dispute under the Crimes (Sentencing) Act s 33(1)(q). The statement of John Vincent dated 4 May 2015 dealt with this issue. I was not given a reason why the Appellant’s counsel did not make further oral submissions to the Magistrate on this issue. The probable reason is that it was not seen at the time as useful, in the sense of, being material to the actual disposition of the proceeding before the sentencing Magistrate.
In my opinion there is no reasonable explanation for the failure of the Appellant to adduce further evidence of provocation at the hearing before the Magistrate.
In order to determine the possible significance of the “further evidence” I have considered the judgment under appeal. In no sense would the sentence be seen as out of the range available to a sentencing Magistrate. Indeed, if it matters, it might be concluded that the sentence was towards the lenient end in the circumstances of the case. The Appellant could not expect to receive any great leniency as a result of his prior criminal history.
The offence to which the Appellant pleaded guilty was objectively serious. The Appellant punched the victim to the head and gouged his eye, causing scratches to his cornea, sub-conjunctival haemorrhage, corneal abrasions and eye trauma. The assault caused the complainant to seek ongoing treatment from an eye specialist.
At the hearing before the Magistrate, the Appellant chose not to give evidence. His counsel at the hearing said that “[the Appellant] accepts full responsibility for the injury to the complainant’s eye” and that “his decision to physically assault the victim was inappropriate”. There was no challenge to the facts relied upon by the prosecutor.
Further, I am not convinced that it would be necessary or expedient to receive this evidence in the interests of justice, being corroborative of the existing evidence of provocation upon which no oral address was made.
Order
I dismiss the appeal.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 14 October 2015 |
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