Davy v Fletcher
[2011] WASC 351
•16 DECEMBER 2011
DAVY -v- FLETCHER [2011] WASC 351
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 351 | |
| 16/12/2011 | |||
| Case No: | SJA:1028/2011 | 25 NOVEMBER 2011 | |
| Coram: | EM HEENAN J | 25/11/11 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | GARY PETER DAVY CHRISTINE NICOLE FLETCHER |
Catchwords: | Appeal against conviction and sentence Application for leave to appeal On appeal from Magistrates Court Assault Refusal of spent conviction order |
Legislation: | Nil |
Case References: | Brewer v Bayens (2002) 26 WAR 510 R v Tognini (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHRISTINE NICOLE FLETCHER
Respondent
ON APPEAL FROM:
For File No : SJA 1028 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BU 378 of 2011
Catchwords:
Appeal against conviction and sentence - Application for leave to appeal - On appeal from Magistrates Court - Assault - Refusal of spent conviction order
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Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr I MacFarlane
Respondent : Ms M J Paterson
Solicitors:
Appellant : Ian MacFarlane
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Brewer v Bayens (2002) 26 WAR 510
R v Tognini (2000) 22 WAR 291
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1 EM HEENAN J: This is an application for leave to appeal against a conviction and sentence imposed in the Magistrates Court at Bunbury on 22 February 2011 by his Honour, Magistrate KT Fisher.
2 After a plea of not guilty and a trial, the applicant, Gary Peter Davy, was found guilty of having assaulted David John Down at or near 21 Mustang Loop, Eaton on 10 August 2010.
3 Following the conviction after trial, the matter was adjourned for further evidence to be taken and for submissions to be received in relation to the penalty to be imposed. After taking evidence and hearing submissions on that matter which, importantly for present purposes, included submissions on behalf of the applicant that a spent conviction order should be granted, the learned magistrate ordered that the applicant should pay a fine of $800, costs of $183.70 and his Honour refused the application for a spent conviction order. From that decision this present application for leave to appeal was brought on 14 March 2011. The proposed grounds of appeal were later amended and still later extended. I will come to the details in a moment.
4 By an order for directions made by Hall J on 19 May 2011, it was directed that the application for leave to appeal should be heard at the same time as the appeal, and certain other directions of a procedural kind were then given. Later, on 27 July 2011, further directions and orders were made again by Hall J. An application to add an additional ground of appeal filed on 28 June 2011 was granted and leave to appeal on the additional ground was directed to be heard at the same time as the appeal.
5 The grounds of appeal as amended are: first, that the learned magistrate erred in law by ruling that intention is not an element of assault, a contention that is supported by a series of particulars which I will mention in a moment; second, that the learned magistrate erred in law by not ordering a permanent stay of proceedings on the basis that there was an abuse of process, again with reference to particulars; third, that the learned magistrate erred in law and fact in imposing a fine rather than releasing the appellant without penalty, again with reference to particulars; and fourth, that the learned magistrate erred in law by not granting a spent conviction order in favour of the appellant, again with reference to the particulars.
6 The set of four particulars supporting these initial four grounds of appeal are as follows. In relation to ground one:
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- During closing submissions to the Court, Defence Counsel submitted that intention was an element of the offence of assault. Once raised the Learned Magistrate ruled that intention was not an element of assault and in doing so fell into error of law.
7 Ground two:
At the commencement of the trial, Defence Counsel flagged to the Court that he was aware that the prosecutor was using these proceedings for a purpose other than to prosecute the Appellant. That other purpose was an embarkation on an inquisitorial quest to glean information from the Appellant not relevant to the charge before the Court. When the prosecutor did embark upon an inquisitorial quest during the trial, Defence Counsel immediately objected and made an application that the proceedings were an abuse of the Court's process. It is submitted that in dismissing the Defence Counsel's objection, the Learned Magistrate fell into error of law.
8 Ground three:
In sentencing the Appellant, the Learned Magistrate fell into error by taking into account irrelevant factors in (a) the Appellant put the prosecution to the proof, and (b) that the Appellant would not co-operate with the police by naming the person from an unrelated incident.
9 Ground four:
In refusing to grant a spent conviction, the Learned Magistrate erred in finding that the Appellant was likely to commit such an offence again because the Appellant endorsed the behaviour of another in an unrelated incident by refusing to name that person; such finding having no foundation.
10 The fifth ground of appeal, which was the subject of the second order for directions and which was directed to be the subject of an application for leave today, is that the learned magistrate erred in law and fact by not considering defences that had been properly raised. The supporting particulars were:
Notwithstanding that there was evidence during the trial that gave rise to defences of (a) provocation and (b) prevention of wrongful act or insult, the Learned Magistrate failed to consider such evidence and thereby fell into error.
Background
11 It is necessary to say something about the background of the relationship between the appellant and his neighbour, the person assaulted, Mr Down. Both live, and have lived for some years, in
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- neighbouring properties in the suburb of Eaton on the outskirts of Bunbury. There are coloured photographs, which were exhibited in the proceedings and which are before this court, showing that the two houses are modern, well-kept and substantial constructions in a new well-kept and attractive suburb. Despite this, the relationship between the two neighbours has been poor for almost the whole of the time that Mr Davy and his family have been living there for some three and a half years before this incident.
12 The trial recounted some of the episodes of neighbourly inhospitality which, on the submissions, came to a large degree from the house and family of Mr Down. Before the evening of 10 August 2010 when this episode occurred, there had been a rubbish or refuse cleaning round advertised by the local government authority for the area encouraging householders to put outside for collection various items which were obsolete or which were no longer wanted. Mr Davy or members of his family decided to put out an old washing machine or some other piece of obsolete whitegoods apparatus, and it was left on the road verge for collection by the council. For some reason or another, it was not picked up by the council and Mr Davy, somewhat irritated about this, was in communication with the council and was evidently informed directly or indirectly that the council would be around again to pick it up, and he left it outside on the verge again.
13 The particular location where the washing machine was left is identified in the photographic evidence but it is not really material except to say that for some reason or another, perhaps for ease of access, it was left on the verge in front of the Down property rather than the Davy property, and there it remained.
14 When Mr Davy came home on the evening of 10 August 2010, he noticed not only that the washing machine or the item of apparatus was still there and had not been collected by the council, contrary to his hopes and expectations, but that it had been moved on to the verge in front of his own home and stuck to it was a note with black writing on it reading: 'The collection has been past already if you didn't realise! so don't leave it on my lawn area. Thanks.' To Mr Davy this meant only one thing; that his neighbour, Mr Down, had been interfering and had carried out an unneighbourly act evidently in ignorance of the fact that Mr Davy had been in communication with the council and been encouraged to believe that the council would come back after the appointed day and collect this item.
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15 Mr Davy thereupon made the first of several mistakes. He decided to march up to the front door of Mr Down's house and to remonstrate with him about moving the washing machine or the whitegoods and to explain to him that men from the council were indeed coming around. He knocked on the door. The door opened. Mr Down came to the door and a conversation began, which steadily deteriorated, as one might imagine. In the course of the conversation, words were exchanged. It was not a cordial atmosphere. One would not say the two people concerned were friendly or sympathetic. It was an unseemly occasion.
16 As it deteriorated, Mr Down told Mr Davy to leave. He used a common colloquialism telling him to leave. It was offensive, and it heightened the temperature. Despite this, Mr Davy did not leave and this caused Mr Down to repeat the verbal formula. Realising that he was getting nowhere, Mr Davy decided that he would leave but before doing so, he put his hand on Mr Down's chest and pushed him.
17 The evidence differed as to the degree of force occasioned in the push, but the finding of the learned magistrate appears in his reasons for decision when he says:
in the course of the exchange that became heated you [Mr Davy] were asked to leave on a number of occasions and in the departing moments you pushed, as it's suggested by you, off the victim [Mr Down]. It was not a forceful push but it was in every respect an application or force that was not otherwise justified or excused by law.
18 That is the assault for which Mr Davy was subsequently charged, of which he was convicted and from which conviction he now seeks leave to appeal.
19 That seems to be the final interaction between Mr Davy and Mr Down but very shortly, in a matter of seconds after that occurred, a third person, a young tall male, who has not been identified, came rapidly towards the door where these two men were standing from across the front lawn in the semi-darkness. Upon arriving at the front door that third person immediately punched Mr Down in the face, striking him in the lip area and causing him a modest injury. This was followed up with an attempt to punch Mr Down several times again, and then this third person grabbed Mr Down in a headlock. There was a struggle. Mr Down was successful in disengaging from the headlock, and he retreated inside his doorway and closed the door in the face of this assailant, whereupon this unidentified young man put his fist through the glass leadlight window of the door, causing it to break.
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20 The Downs, or one member of the family, called the police. They arrived 20 minutes later. The young man whose actions I have been describing had by then disappeared. The police then began a series of interviews and investigations, in the course of which they asked Mr Davy to name the young man, believing that Mr Davy knew who he was. Mr Davy declined to do so and maintained that refusal on subsequent occasions when he was asked by the police to give that name. He was within his rights not to provide that or any other information to the police except for his own name, residential address and associated particulars.
21 Later the police charged Mr Davy with the offence of assault and the charge proceeded through the courts and eventually was listed for trial and determination as I have already described. In the course of these procedures there were communications between the solicitors acting for Mr Davy and the police, and these included an email exchange on the question of whether or not Mr Davy was prepared to identify this young man who actually did assault Mr Down, and did so in a much more substantial way.
22 The details of these communications are set forth in an affidavit of Mr MacFarlane sworn 5 July 2011 which I have considered and treated as part of the material for hearing on this application. It is unnecessary to identify all the communications. I can, however, say that they cover a period from 19 October 2010 to 25 January 2011; that is, only two days before the trial. These reveal that the police prosecutor had been asked to consider whether or not the charge against Mr Davy might be dropped, having regard to the minor nature of the offending.
23 As the email exchanges progressed, it became evident that the police were, if not sympathetic to Mr Davy, at least inclined to take the realistic view that this was, at least from his point of view, a minor transgression. The police prosecutor raised the prospect that if Mr Davy would be prepared to identify the young man who took the more serious role in the events at this suburban episode they would be prepared to support an application that if the charge against Mr Davy proceeded and resulted in a conviction, it should be dealt with under s 46 of the Sentencing Act 1995 (WA) in that the court should release Mr Davy and impose no sentence.
24 Mr Davy's response through his lawyer was that he preferred to have the charges against him dropped rather than proceed to a disposition even with a favourable outcome under s 46 of the Sentencing Act. The police responded to the effect that they had evidence that an assault was committed by Mr Davy, that they had a person who was aggrieved and
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- was pressing them to lay the charges, and that they felt obliged to proceed given the stage that the matter had reached. In the end Mr Davy did not disclose the name of the young man, and the case against him proceeded to a full trial and to the result which I have already described.
25 It is against that background that the various grounds of appeal need to be assessed. It is necessary for me to consider whether any of the grounds of appeal raises a sufficiently arguable prospect of success to warrant the grant of leave to appeal. I have reached the conclusion that none does and that leave to appeal should therefore be refused. I will now state briefly my reasons for those conclusions.
26 In relation to the first ground, that the learned magistrate erred in law by ruling that intention is not an element of assault, in the circumstances of this case this proposed ground of appeal appears to me, with all respect, to be miscast or misplaced. In my respectful opinion, the learned magistrate was correct in ruling that intention, in the sense of a specific intention, was not an element of the offence of assault. However, that does not appear to be the real gravamen of the position adopted by the applicant either on the present application or at the trial. Underlying the words adopted in the ground and in the submissions is the proposition that there is a mental element involved in the commission of the offence of assault and that, in some way or another, the observation by the learned magistrate denied that that was the case and deprived Mr Davy of an arguable or viable defence.
27 It is true that, as with most offences, there is a mental element in the offence of assault, at least in the sense that it must be a willed act. Further, there are defences to a charge of assault which depend upon the state of mind of an accused person such as provocation, self-defence, exercise of an honest claim of right, a mistaken and reasonable belief into a certain set of things, and perhaps others, but none of those could conceivably apply to the circumstance which existed here.
28 This was not an attempt to exercise an honest claim of right. There was no self-defence necessary or attempted. This was not an action taken in the defence of property or of others. There was no mistake about the identity or conduct of Mr Down. Mr Davy was not under any actual or imminent threat of violence and had he felt provoked, he could have easily stepped back and left the altercation. Accordingly, I do not consider that any question concerning intention or the mental element associated with or available in the case of certain defences to a charge of
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- assault could influence the outcome of these proceedings. No arguable question arises from the first ground.
29 In relation to the second ground, that the learned magistrate erred in law in not ordering the permanent stay because proceedings were an abuse of the court, this relates to a submission made to the learned magistrate, both at the commencement of the trial and during the course of the cross-examination of Mr Davy, that the purpose of the proceedings was to force Mr Davy to disclose the identity of the young man so that the police could pursue proceedings against him.
30 I do not consider that there was any basis upon which it could be said that there was an abuse of the process of the court or that the proceedings were brought for a collateral purpose. The exchange of emails, which I have already mentioned, is clear evidence that the police were anxious to obtain the name of this third person. It is equally clear that they considered that there was clear evidence of a prima facie case of assault by Mr Davy and that they felt obliged to proceed. They were prepared to take a lenient view and to support an application for a disposition of the proceedings under s 46 of the Sentencing Act as already described if the disclosure was made by Mr Davy, but it was not.
31 When the trial commenced, there was no suggestion that there was not a case to answer. When Mr Davy was cross-examined, he was asked by the police officer to identify the third person, the young man whom I have now mentioned several times, but objection was taken by his counsel on the basis that that was not relevant and was indicative of the pursuit of a collateral purpose. The learned magistrate did not accept that it revealed the pursuit of a collateral purpose, but he did consider that it was not relevant and did not require the disclosure of that name by Mr Davy and it was not given. Nothing in those circumstances amounts, in my opinion, to any arguable basis to support the claim of an abuse of the court process by these proceedings either in their institution, their prosecution or in the conduct of the trial.
32 The final two of the first set of grounds of appeal relate to sentence, and they assert that the learned magistrate erred in law and in fact by imposing a fine rather than releasing the appellant without penalty and, secondly, that the learned magistrate erred in law by not granting a spent conviction.
33 The hearing at which the sentencing disposition of this case occurred was on 22 February 2011. It was put to the learned magistrate that
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- Mr Davy was a man of previous good character, as indeed he was, that he had no relevant convictions, and neither did he have any convictions, and that this whole episode was unfortunate and relatively trivial. To an extent, his Honour accepted much of the burden of those submissions, but not all of them. His Honour said:
I have no quarrel with the bald assertions of the testimonials and the references, supported self-evidently by your lack of prior record, that you are generally regarded within those persons who know you and with whom you associate as a person of good character.
However, against the background of your continued indication and non-cooperation with the agencies, the law enforcement agencies, it must impact I would think, on my satisfaction that you are unlikely to commit such an offence again. It would seem to me that you are by your lack of cooperation in large part endorsing the behaviour of another in failing to bring them to account or to have them account for their behaviour.
That endorsement must in some small part cause the satisfaction that I am required to have to waiver.
It is not something that is loose in passing, it must be a genuine satisfaction, which I cannot presently hold. The appropriate disposition in my view is a fine of $800. You are to pay costs of $183.70 and I decline to make a spent conviction.
35 It is to be noted, of course, that spent convictions are an exceptional event in any case. For leave to appeal to be granted on either of these two grounds, it is necessary to show, on some arguable basis, that there was an error of law or an error in the exercise of the discretionary sentencing powers by the learned magistrate. The error need not be express. It can be inferred from the disposition of the sentence in its context by suggesting that the result was disproportionate or involved considerations of some irrelevant or collateral factors. However, I am satisfied that that is not the case.
36 This whole episode was, as I have already said several times, very unbecoming. It was between two adult, mature, responsible, respectable men who had failed to deal adequately with the annoying irritations between them. It was very foolish of Mr Davy to go to the front door of his neighbour to berate him upon a subject which was bound to result in
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- an argument, as it did. It was foolish of him not to leave when first told to leave. It was provocative in a sense without constituting provocation at law that Mr Down swore at Mr Davy as he did, but there was no justification for the push to the chest. It did constitute an assault and, consequently, it was for the law to impose some penalty.
37 The fine which was imposed could not, in all the circumstances, be said to be excessive. It was not submitted to me that it was excessive. It was submitted, however, that there should have been a spent conviction order and that Mr Davy's failure to disclose the identity of the young man was a contributing factor to the refusal of the spent conviction order, so there had been an irrelevant consideration entertained and therefore an error in the exercise of the sentencing conviction.
38 I am not satisfied that there is any arguable basis for that suggested conclusion. The learned magistrate was faced with a situation in which some deterrent penalty was appropriate even if only of modest dimensions. It was necessary for the law to demonstrate that this kind of behaviour would not be tolerated by the courts and that a penalty and its consequences were necessary to reinforce that message. The fact that Mr Davy was not prepared to disclose the identity of the third person was, in my opinion, capable of giving rise to an inference that he was protecting or in sympathy with that person.
39 Other inferences might possibly be drawn but those actually drawn were inferences which I consider were open and it was not erroneous for the learned magistrate to draw them. As to what extent they contributed to the decision to refuse the spent conviction order, the answer to that is: not entirely, although the mere fact that they were mentioned indicates that they were material.
40 I do not consider that there is any basis for concluding that the learned magistrate was wrong. A different judicial officer in these circumstances may or may not have granted a spent conviction order, but we are dealing with a particular instance, and this court only has power to interfere if there is a basis for concluding that there was an error in law or an erroneous exercise of the powers involved in the sentencing jurisdiction occurred.
41 There are numerous authorities to the effect that the grant of a spent conviction order is a discretionary power of an exceptional nature only to be sparingly exercised. There are differences of view within this court about just how sparing the exercise of that power should be, but the
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- prevailing view is that it is a special power which ought be restricted to cases of special merit. The authorities were reviewed by Murray J in R v Tognini (2000) 22 WAR 291, and they were reviewed in Brewer v Bayens (2002) 26 WAR 510 and in a number of other subsequent authorities. I do not consider that there is any basis upon which it could be said that there is an arguable ground for success on those two proposed grounds of appeal.
42 This then brings me to the fifth and final ground of appeal, that the learned magistrate erred in law and fact by not considering the defences of provocation or prevention of a wrongful act or insult which had been properly raised, and that the magistrate failed to consider such evidence and thereby fell into error. It must be apparent from the observations which I have already made that I do not consider that this proposed ground is arguable either. I am satisfied that there was no basis upon which it could be said that the push by Mr Davy was the result of provocation which would constitute a defence at law. Similarly, I do not consider that there is any basis upon which it could be said that the push was justified or necessary to prevent a wrongful act or insult. Mr Davy was at the door of the neighbour on his neighbour's property. He was arguing with the neighbour. He had been told to leave and he should have left.
43 For those reasons, I refuse leave to appeal.
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