Eastough v Barry - [2013] WASC 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: EASTOUGH -v- BARRY [2013] WASC 144

CORAM: McKECHNIE J

HEARD: 14 MARCH 2013

DELIVERED : 26 APRIL 2013

FILE NO/S: SJA 1014 of 2012

BETWEEN: TIMOTHY JAMES EASTOUGH
Appellant
AND
ZACHARY PATRICK BARRY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 45303 of 2011

Catchwords:

Courts and judges - Whether magistrate had duty to advise accused of right to apply for release of an EROI of a potential witness - Whether prosecutor's cross-examination of accused on material from EROI unfair - Adjournment - Whether adjournment should have been granted

Legislation:

Nil

Result:

Appeal allowed
Conviction set aside
Order for retrial

Category: B

Representation:

Counsel:

Appellant: Mr I B Kakay
Respondent: Mr T C Russell

Solicitors:

Appellant: Kakay Legal
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Lasscock v Seidner [2013] WASC 94

McKECHNIE J:

How this matter comes to court

On 1 May 2011 the appellant was involved in an altercation in Northbridge with a 19‑year‑old man. In September 2011 the appellant was charged with unlawful assault. He pleaded not guilty by endorsement. The appellant requested police disclosure of two records of interview from people who had been present at the time, including his brother. When the case came for hearing on 4 January 2012, the magistrate refused the appellant's application for an adjournment.
The prosecutor said '[we] are prohibited by law from disclosing the record of interview'. This was correct but neither the magistrate nor the prosecutor advised the appellant, who was representing himself, that he could make application: Criminal Investigation Act 2006 (WA), s 122.
The trial proceeded and the appellant was convicted. He appeals against conviction on the basis that he should have been granted an adjournment and because a miscarriage of justice occurred in the lack of disclosure.
At the hearing of the appeal the appellant added a ground against the refusal to make a spent conviction order.
A miscarriage of justice did occur, the appeal is allowed and a retrial ordered.

Should there have been an adjournment?

At the first mention date on 20 October 2011, the endorsed plea of not guilty was recorded and the matter listed for trial on 4 January 2012. At the beginning of the trial, following the plea of not guilty, the magistrate asked the appellant whether he was ready to proceed and the appellant said, 'yes'. There was a short break for other reasons and on resumption it became clear the magistrate had been told that the appellant wanted to make an application for adjournment. The appellant said:
I asked the police for the statements, for some statements. Some evidence was supplied on 15 December. The police didn't supply the statements from the doctors and also two video records of interview from independent witnesses, so I just needed to gather all my evidence and then --- (ts 3).
The magistrate interrupted asking whether the appellant had a lawyer and said '[w]ell are you going to get one' (ts 3). The appellant said 'yes, I will get one' (ts 3). The magistrate then asked the nature of the defence. He said:
Q:[W]hat is the nature of your defence? What are you going to say for you to plead not guilty? You didn't do it, you didn't assault the person, or what?
A:I did not hit the person.
Q:You didn't hit the person?
A:Yeah, I didn't - I didn't assault the person.
...
A:I'm pleading not guilty.
Q:Yes, but what is the nature of your defence? That's what I am asking you. Were you defending yourself? Were you provoked?
A:I was trying to defuse the situation from escalating. Would you like for me to explain what happened?
Q:Well, no, we are still dealing with your application for an adjournment, but I need to know why I need an adjournment - why you need an adjournment, why - - -
A:To gather all the information (ts 3 ‑ 4).
The prosecutor then responded. In connection with the doctor's evidence, he said:
[T]he doctor is mentioned simply because there was some possibility that this charge would be preferred to bodily harm.
...
That has not been done so there is no evidence from a doctor, there will be no evidence from a doctor.
...
As far as I know, a statement hasn't been taken from a doctor (ts 4).
In fact a statement had been obtained from a doctor but as the appellant was only charged with assault I do not consider its non‑disclosure had any material effect, notwithstanding Mr Kakay's submissions about it.
As to the electronic record of interview (EROI) the prosecutor said the appellant 'was amongst several others ... but there are at least two that will need mentioning'. He continued:
One of the accused (sic) is a person by the name of Haddad. Haddad, I assume, is a friend of the [appellant]. He was interviewed on the night in relation of the assault. The [appellant] was, I think, amongst about six people.
Haddad, being one of those people, was interviewed by police on the night, as I have just mentioned, and he was released without charge. No statement was taken from him, we don't plan on calling him as a witness, and there is nothing to disclose.
...
... In relation to the second person sir, it is essentially exactly the same position except that, sir, and it was significant and it bears on the time frame - is that the other person that was interviewed by police was a - was the [appellant's] brother, Thomas Eastough. Now, Mr Eastough was at the scene on the night. He left the scene prior to police arrival. ...
He was eventually interviewed on 8 September this year, so it was a fair way after the offence ... He was interviewed and, once again, he was released without charge (ts 5 ‑ 6).
The prosecutor pointed out that the appellant could easily speak to Mr Haddad.
Neither the appellant's brother nor Mr Haddad had given statements to police.
The prosecutor also noted that this is not a matter where mandatory disclosure is required but in the spirit of good faith, police did disclose what they had, albeit a little bit tardy, by way of voluntary disclosure.
The magistrate addressed the appellant about the two witnesses saying their statements had not been disclosed because there are no statements to disclose. He continued:
[O]ne of those two you mentioned is your brother.
...
Well, you can tell him to come along (ts 8).
The appellant responded:
Yeah, I actually have all - all my witnesses that were meant to be coming down - we have all written up, typed up, statements from each one of them (ts 8).
The magistrate advised the appellant that they would have to give evidence, 'it's no good giving statements'. The magistrate then said:
You see a lawyer; and also, for the reasons that you raise, that you have had no disclosure - that's not sufficient for there to be an adjournment. The fact that you have no lawyer - that also is not sufficient because the matter was listed for hearing on 20 October, it is now December, so October, November, January - you have had three months to get a lawyer and you have done nothing about getting a lawyer (ts 9).
The magistrate then asked again about the defence, effectively a denial of an assault, before concluding '[w]ell, it's not a complicated defence. It's not a defence that requires a lawyer anyway. ... So your application for an adjournment is denied' (ts 10). The magistrate's reasons were as follows:
[Y]ou heard what the sergeant said, and he is quite right, that we have matters listed for hearing months in advance and people just come along on the day of the trial and say, 'I haven't got a lawyer' or 'I haven't done this' or 'I haven't done that. I want an adjournment.' As the sergeant said, it throws the whole system into chaos because your - this matter has to be adjourned again.
When matters are listed for hearing, they are listed for hearing.
They are not to be - that factor is not to be ignored and people can't come along, make no effort to get a lawyer, and then anticipate that they will get an adjournment. So your application for an adjournment is refused (ts 10 ‑ 11).
The magistrate gave advice to the appellant along the lines outlined in the Magistrates Court Act 2004 (WA), s 30. The case then proceeded.
The principles regarding adjournments have been recently and comprehensively summarised by Hall J in Lasscock v Seidner [2013] WASC 94 [20] ‑ [28]. I apply these principles to this appeal.
Subject to the question of disclosure, with which I shall shortly deal, I am not persuaded that the magistrate erred in his discretion to refuse an adjournment. I am conscious that the appellant was unrepresented and may have been unfamiliar with procedures. However, he knew that the date had been fixed for trial. He had statements prepared. It is dangerous for an accused person to proceed on the basis that an application for an adjournment will necessarily be granted and put off the expense of engaging a lawyer in the hope of an adjournment.
The appellant was unrepresented. Arguably when he advised the magistrate that he had statements from witnesses, the magistrate should have enquired further and if the appellant was under the misapprehension that he could tender them, the magistrate should have advised the appellant that the witnesses would have to give evidence in person. Whether such a course would have provided a separate reason for an adjournment is now speculative.
An appellate court will not lightly interfere with the discretion to refuse an adjournment and I am not persuaded that the discretion miscarried.

A miscarriage of justice

In summary, there are three matters which cumulatively amount to a miscarriage of justice:
•the magistrate failing to advise the appellant of his right to seek disclosure of the EROI;
•the prosecutor's use of a non‑disclosed EROI in cross‑examination; and
•the potential relevance of the material in each EROI.
I am not persuaded that the miscarriage of justice was minor and that a conviction was inevitable so the appeal is allowed.

Lack of disclosure

The offence of common assault does not attract the disclosure requirements in the Criminal Procedure Act 2004 (WA). No order was made for disclosure.
The appellant wrote to the prosecution on 2 October 2011 seeking copies 'of all statements relied on in the prosecution of the matter'. The brief was provided on 15 December 2011, including statements of all the witnesses to be called, together with the appellant's EROI and photographs of the complainant taken on the night of the offence. He was not provided with disclosure of:
(1)a report prepared by Veronika Reigler of Royal Perth Hospital dated 3 November 2011;
(2)an EROI taken from Mr Joshua Haddad on 1 May 2011; and
(3)an EROI taken from Mr Thomas Eastough on 8 September 2011.
Mr Russell for the respondent concedes appropriately that although the prosecutor's statement to the magistrate that the prosecution was prohibited by law from disclosing the EROIs was strictly correct, the prosecutor should have referred the magistrate to the power of the court to make directions under s 122 of the Criminal Investigation Act or a further order for disclosure under Criminal Procedure Act, s 61.
It was more than a matter for the prosecutor alone. Disclosure of the two EROIs was a live issue. The appellant was unrepresented and in these circumstances the magistrate had an obligation to advise him that he could make application to view the EROIs. The EROIs may have contained relevant information as they were each from persons who had been present in the vicinity of the altercation. Had the magistrate granted an application, it may have led to the adjournment of the trial for reasons different to those originally advanced.
The duty of a magistrate to assist a self‑represented person varies with the circumstances. The overall duty is to ensure a fair trial.
The magistrate's failure to advise the appellant of his rights was a miscarriage of justice. It deprived the appellant of the ability to apply for the EROIs and assess their significance for himself.

The prosecutor's cross‑examination

Things got worse.
The appellant gave evidence and was cross‑examined. The prosecutor put to the appellant that on his own EROI he said in a joking fashion that he pushed someone but declined to say whom. After an interchange the following occurred:
PROSECUTOR: And I'm considering asking you to require the witness to answer because it impinges greatly upon the credibility of the following witnesses and the positions that they held and seriously undermines my ability to cross‑examine the witness when I can't ascertain who was standing where.
HIS HONOUR: Yes, well, that's - I wasn't aware of his other witness. So was it who you pushed?---It was my brother.
PROSECUTOR: It was your brother you pushed?---Yes. It was my brother.
In fairness to you, are you aware that your brother has spoken to police about this matter?---Yes. That's what I talked to you outside about.
Are you aware that your brother said that he was walking some metres in front of you?---No, I'm not aware of that.
HIS HONOUR: Is the brother giving evidence?
PROSECUTOR: I don't know, sir. We are yet to see, but I have a video record of interview that was taken from your brother in this investigation in which he says - and take it from me, I can play the video, I'm not making this up, he says - he was walking several metres in front of you?---Didn't I ask you outside - - -
Well, with respect, it's not for you to ask me questions. I'm putting the proposition to you in fairness - - - ?---Yes.
- - - that your brother, on video - - -?---Yes.
- - - said he was walking in front of you?---Yeah.
My proposition to you is you could not possibly have pushed him because he wasn't close enough for you to reach?---Mr Ashboth even said that we were situated on the - - -
With respect, that's not the question. It was impossible for you to push your brother, wasn't it?---No, it wasn't impossible.
So your brother is mistaken about what occurred?---Yeah.
Or is it that you're mistaken about what occurred?---Who did I push then? I just told you - - -
With respect, it's not for you to ask me questions?---I just told you who I pushed (ts 48 ‑ 49).
A little further on the cross‑examination continued:
And it is the case, isn't it, that you both ended up grabbing hold of each other's collars effectively. T‑shirt collars?---From me recalling, I'm the only one that had my hand on him. He didn't have his hand on me. That's why I was surprised when you said he put his hand on me.
Well, with respect, you are not the only person who says that. If it becomes necessary to cross‑examine your brother, he also says in the video record of interview that you had your hand on his shirt around the collar position?---Yeah, that's what I said. I said that I had my hand on him but then I was surprised when he said that he had his hand on me, because I didn't - he didn't have his hand on me (ts 53 ‑ 54).
The form of questions concerning the brother's EROI was unfair. The prosecutor made factual statements which were not evidence. The appellant had no chance to make any response because he had not seen the EROI and so could not even judge whether or not what the prosecutor was putting to him was accurate. The magistrate did not intervene to correct the unfairness.

The EROIs are relevant

At the appeal both counsel agreed I should view the EROIs and form my own opinion, counsel being in contention as to whether there was in fact any relevant material on either. I have done so.

Mr Haddad

Mr Haddad's interview was recorded on the same night 1 May 2011 at 2.27 am shortly after the incident. As the designated driver, he was sober. He described what led to the altercation when a man in a white shirt, who must have been the complainant, bumped the appellant. Words were exchanged and it escalated from there. Mr Haddad said someone must have hit him but he did not know whom; he couldn't tell any details because it happened so quickly; he was close, just standing there. Mr Haddad said shoulder bumps happen all the time and he did not see why it should escalate. When asked about the actions of the appellant he said:
I don't know if he hit him - could have, might have. ... Someone provoked someone and in 10 to 15 seconds it all happened.
Although he professed not to see the actual assault on the complainant, the statement of Mr Haddad is capable of giving some support to the account given by the appellant that somebody other than the appellant hit the complainant. Mr Haddad said 'I don't know who hit the guy, someone must have hit him I don't know who, that's the truth'. He said a lot of people were surrounding the complainant and when asked whether he had made contact with the complainant he said 'I never touched him'. When asked who did he said 'Timothy obviously'. He pointed out that people just jumped in, there were random people jumping in. Although Mr Haddad's EROI has limited relevance, it does support the appellant's account as to numbers of people being around and close after the initial bumping of shoulders.

Thomas Eastough

Thomas Eastough, the appellant's brother, was interviewed on 8 September 2011 some months after the event. He did not see the initial contact between the appellant and the complainant as he was walking some steps ahead. Although his EROI is in part inconsistent with the appellant's evidence, he gave a clear account (in the EROI at 26 minutes and 38 seconds and following) as to why the appellant could not have punched the complainant because he (Thomas Eastough) was holding the appellant at the time.
This is relevant information and the lack of knowledge of the contents of this EROI deprived the appellant of it and has led to a miscarriage of justice.
The combination of those three matters makes it inappropriate to apply the proviso.
I have not overlooked the appellant's concession to the magistrate that he had statements from witnesses. Nor have I overlooked the fact that Mr Haddad and Mr Thomas Eastough were people that the appellant could interview for himself. However, the issue is not what the appellant might have done or known but whether a miscarriage of justice has occurred by the non‑disclosure of the EROIs. Each EROI had some but limited relevance. In the circumstances, the fact that they were not able to be viewed by the appellant also amounts to a miscarriage of justice.
The appeal is therefore allowed, the conviction set aside and the matter remitted to the Magistrates Court for re‑trial.

Application for a spent conviction

At the hearing, leave was granted to the appellant to add a ground and appeal against the magistrate's refusal to grant a spent conviction. In support of that spent conviction a number of references were tendered to me. They were not available to the magistrate.
The magistrate considered a spent conviction. He said:
I have turned my mind to the question of a spent conviction, given that [the appellant] is a security guard and needs a clean record to continue in that trade, or that profession, but I do not think it is appropriate for there to be a spent conviction under these circumstances. Unlawful assaults are not charges that give themselves to spent convictions readily (ts 66).
As I have allowed the appeal and ordered a re‑trial, it is not appropriate to express an opinion whether the refusal to order a spent conviction was correct.