Edmunds v Bill

[2004] WASCA 97

EDMUNDS -v- BILL [2004] WASCA 97

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 97
Published:	13/05/2004
Case No:	SJA:1013/2003	Heard:	15 APRIL 2004
Coram:	WHEELER J	Delivered:	15/04/04
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	HOWARD CHRISTOPHER EDMUNDS JESSE DEAN BILL
Catchwords:	Turns on own facts
Legislation:	Nil
Case References:	Lowndes v The Queen (1999) 195 CLR 665 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : EDMUNDS -v- BILL [2004] WASCA 97 CORAM : WHEELER J HEARD : 15 APRIL 2004 DELIVERED : 15 APRIL 2004 PUBLISHED : 13 MAY 2004 FILE NO/S : SJA 1013 of 2003 BETWEEN : HOWARD CHRISTOPHER EDMUNDS

Appellant

AND

JESSE DEAN BILL
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS AT MIDLAND

Coram : MR NICHOLLS SM

File Number : MI 401 403 404 & 405 of 2001

Catchwords:

Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr L M Levy
Respondent : Mr C Williams

Solicitors:

Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions

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

Lowndes v The Queen (1999) 195 CLR 665

Case(s) also cited:

Nil


(Page 3)

1 WHEELER J: On 15 January 2001 it was alleged that certain offences occurred. The appellant was arrested and charged with them. They were as follows (with their complaint numbers): MI401 of 2001, stealing a motor vehicle; MI402 of 2001, assaulting Karl Thomas Vandersluys, a public officer, while acting in the execution of his duty; MI403 of 2001, unlawful assault; MI404 of 2001, not being a person exempted, possessing articles, namely a machete, a baseball bat and a screwdriver, with the intention of using them to injure or disable any person, contrary to s 8 of the Weapons Act; and MI405 of 2001, resisting Jesse Dean Bill, a member of the West Australian police force, then acting in the execution of his duty.

2 In relation to number MI402 of 2001, the appellant was committed for trial in the District Court at Perth. He ultimately stood trial in relation to that matter on 19 August 2002. The summary matters were adjourned until after the resolution of that District Court trial. It appears from the record there were quite a number of mentions of them. On 20 November 2002 the appellant entered pleas of not guilty to all the other complaints, which were then adjourned for hearing at Midland Court of Petty Sessions on 9 January 2003.

3 It appears from the materials in the appeal book that 20 November 2002 was what was referred to as a "callover day", being a procedure of the Court of Petty Sessions to ensure that matters are ready to proceed. The record of proceedings on that day does not appear on the copies of the complaint which are found in the appeal book. There is a reference to the date but it is not clear whether the appellant was represented or what, if any, observations were made on that day.

4 In any event, as I have said, the matter was adjourned to 9 January 2003 for hearing. The hearing date of 9 January 2003 was vacated and it appears, from the transcript before me that it was vacated because there was a police witness who was unavailable. The matter was then listed for hearing on 23 January 2003. Although the appellant was granted legal aid for his District Court trial it appears from the materials before me that that grant of aid had not extended to cover the summary matters.

5 On 23 January 2003 the appellant appeared in the Midland Court of Petty Sessions. He was unrepresented but had received advice from a Mr Halford, to whom he had given what he called a power of attorney. Mr Halford was not a legal practitioner. The learned Magistrate agreed to allow Mr Halford to act, in effect, as a McKenzie friend. His Worship was careful to ensure that Mr Halford did not represent the appellant. It

(Page 4)

would, of course, have been improper for him to have allowed Mr Halford to act in any way as if he had been a legal representative. The statutory reason for that is to be found in the Legal Practitioners Act 1893. The reason of principle is that the interests of unrepresented persons are not advanced by allowing them to be guided, and often misguided, by other unrepresented persons, as unfortunately appears to have happened in this case.

6 In any event, the appellant applied to adjourn the hearing and the application was opposed by the prosecution. His Worship heard and refused the adjournment application. Apparently on the advice of Mr Halford, the appellant then advised his Worship that he was going to seek a "judicial order of review" on a variety of grounds and he purported to withdraw his consent to the Court's jurisdiction. It appears that he left the Court and his Worship, having advised him that the matter would be heard, permitted him to do so.

7 His Worship then heard evidence in the absence of the appellant and convicted him.

8 The appellant appeals from those convictions on the following grounds. I have, for convenience, labelled them grounds 1, 2 and 3. Ground 1 essentially is that his Worship erred in the exercise of his discretion by refusing the appellant's application for adjournment of the hearing, thereby denying him the chance of an acquittal, and particulars of that ground are given. Ground 2 is that complaint 404, that relating to the weapons, was bad in law in that it was duplicitous and ground 3, which was added by leave today, complains of an inadequacy or an absence of reasons in his Worship's reasons for convicting the appellant.

9 As to the second ground, that relating to the weapons, it is conceded by the respondent that it is duplicitous and that concession is clearly properly made. The complaint reads:

"The appellant not being a person exempted under subsections (3), (5) or section 10, possessed articles, namely, a machete, a baseball bat and a screwdriver, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it to injure or disable any person."

10 There are three articles referred to in that complaint and there are really three matters which should have been the subject of separate complaints, were it sought to deal with all of them. Had the appellant been represented, one can assume that the prosecution would have been

(Page 5)

put to its election in relation to those items. It does appear that different considerations applied to perhaps the machete and the baseball bat on one hand and the screwdriver on the other.

11 In relation to that matter, however, the respondent submits that had it been put to its election, the prosecution must inevitably have succeeded if it had elected either the baseball bat or the machete, the machete clearly being the most dangerous of the potential weapons. It submitted that the evidence was overwhelming; that the appellant possessed at least those items with the relevant intention.

12 The issue that raises, as to the nature of the evidence, is also raised in effect by ground 3 and it seems to me stands or falls on my assessment of the evidence. I turn to that matter in a moment.

13 Dealing, for the moment, with ground 1, the decision in relation to the grant or refusal of an adjournment, it is accepted on both sides that it is for the appellant to demonstrate that his Worship failed to exercise his discretion properly: Lowndes v The Queen (1999) 195 CLR 665.

14 I should perhaps note before I come to review the facts in more detail that as I have mentioned a couple of times already in setting out the chronology, the record of proceedings in the court below is not entirely clear, which is unsatisfactory. It seems to me that it is not my role to fill the gaps in the official record with assumptions of any kind as to, for example, the representation or non representation, presence or absence of the appellant on any occasion. Either the appellant or the respondent could no doubt have produced evidence filling in those gaps, had it been thought essential to do so, so that I draw no inference either favourable or unfavourable in relation to those matters.

15 As is not unusual where a person seeking an adjournment is unrepresented, the basis for the application was not clearly articulated and seemed at times to shift but there are a number of strands, or possible strands, and I deal with all of those that I have been able to ascertain.

16 The first strand was that the appellant was unrepresented. He had been represented at various times in the mentions and he had had legal aid for the District Court matter. The mere fact of being unrepresented appears to me not to be a consideration of importance in circumstances where there was nothing before his Worship, to suggest that that was a situation which would alter in the foreseeable future if an adjournment were granted. It is unfortunate, but it is not itself a miscarriage of justice, to require a person to proceed unrepresented in those circumstances.

(Page 6)

17 Next it was said that the appellant had, only two days previously, received a letter from Legal Aid to the effect that it would not grant legal aid for his representation in respect of these matters. I observe there that it does appear when one looks at the chronology that that letter was likely to have been, if it was a formal refusal at all, a letter sent at the end of the various legal aid review processes, refusing to reverse earlier decisions not to grant legal aid. The alternative inference is that if it was a first refusal, it was a first refusal which must have been made in response to a very late application. In any event, it appears that until the time at which that letter was received, the appellant's position must have been that he was not aware whether or not he would have legal aid and must, logically and prudently, have been proceeding on the assumption that it was possible that he would not. It seems to me it is not open, therefore, to him to suggest that he had had inadequate time for preparation. It was not a case where aid had been granted but suddenly withdrawn, for example.

18 It was also said that the appellant had been to his lawyer the day before to get relevant documents, but that his lawyer was not in his office. That observation begs two questions: the first being why he left it until the day before, (although in fairness I observe that there is some reference in the transcript to telephone calls which had not been returned on earlier occasions), and the second being whether anything in the documents might be of value. That issue needs to be considered against the nature of the prosecution case; the more complex the case the more likely it is that some documentation in the possession of his lawyers could have been of assistance.

19 Finally, it is not entirely clear from the transcript what the position was in relation to some materials, but it seems that the appellant had with him no relevant documents at all, and that there were some documents elsewhere which, at least in Mr Halford's view, would have assisted the appellant in the presentation of his defence. I note, however, that his Worship did adjourn for something under an hour to allow the appellant to go and get the documents which he considered might be relevant and there is no suggestion that had he, for example, sought to inspect the witness statements which the prosecution must have had, that that would have been refused.

20 His Worship was in a difficult position in that he had before him an appellant who was unrepresented. It must be accepted that it is always preferable for a person facing relatively serious charges to be represented. On the other hand there was also before his Worship no apparent reason for what the appellant seems to have been putting to his Worship as a

(Page 7)

complete failure to prepare or to have with him any relevant materials. The charges although, as I have mentioned, in some cases relatively serious, were not factually complex, and the appellant had had the advantage of the experience of the District Court trial at which witnesses relevant to some at least of the charges in issue here had been cross-examined. There was also no real indication to his Worship of how long a time to prepare might have been required. There was a reference to potential witnesses, perhaps, but no identification of who they might have been or how they might have assisted, and I have already mentioned the absence of any explanation in relation to what were generically described as "documents".

21 His Worship also had to consider that the prosecution had its witnesses available, including civilian witnesses, and that the matter was by then getting very stale, with all the consequent risks of injustice which that entailed. In my view it cannot be established, when one looks at all of those considerations, that his Worship's discretion miscarried.

22 In relation to ground 3, which complains of the inadequacy of reasons, having heard the evidence his Worship said only this, and I quote from pages 47 and 48 of the appeal book:

"In view of the evidence, I am satisfied that the requisite standard, that the defendant is guilty of the charges –"

His Worship then mentioned the charges and continued:

"So, the prosecution have proven each of those charges beyond reasonable doubt –"

and he then convicted the appellant.

23 In one sense I think it can be accepted that those are not reasons at all, although it is clear that his Worship reminded himself of the onus and standard of proof, and it is also clear that he accepted the evidence of the prosecution witnesses because of his reference in his opening sentence to "in view of the evidence." However, after evidence which had been very brief and which did in my view suffice to establish in very short compass each element of each charge, and in the absence of any apparent incredibility in that evidence, in the absence of any testing by cross-examination, and in the absence of any countervailing factual material raised by or on behalf of the appellant, reasons would have been no more, in my view, than a brief summary of the evidence which his Worship had just heard. I am not convinced, given the nature of the evidence which as I have already mentioned, was in extremely short

(Page 8)

compass and unchallenged, that that was required in this case. The position might be different where the charges were more complex and the elements needed some untangling or where the evidence itself was complicated, or perhaps where there were apparent differences even in detail between the evidence of any of the various witnesses. That was not this case.

24 Even if one assumes that the observations which his Worship made were inadequate reasons for decision, of which I am by no means convinced, there was in any event in my view no miscarriage of justice by reason of his failure again to recite the evidence which he had just heard.

25 It is submitted, by the appellant that there were certain defences apparently raised by him, at least in relation to some of the charges which his Worship should have specifically considered. In particular, in relation to complaint MI405 of 2001, that of resisting Mr Bill, a member of the WA police force then acting in the execution of his duty, it is said that the issue of self-defence was raised. It was particularly urged upon me that in relation to complaint MI404 of 2001, that relating to the weapons, that his Worship should have considered the provisions of s 8(3) of the Weapons Act. It is submitted that his Worship should at least have canvassed in brief reasons whether those questions did or could arise on the face of the evidence.

26 If I turn briefly to the material which it is said gives rise to those potential defences, it appears in a discussion very early in the proceedings between his Worship, the prosecutor and the appellant as to what precisely had been the history of the District Court matter which was that dealing with the alleged assault upon Constable Vandersluys and in relation to that the appellant said:

"There's a lot of issues here. I was at home in my bed, asleep, and someone breaks into my house. I reacted after I was hit several times. It's self-defence. I didn't hit the guy first. He hit me. He attacked me."

27 I observe that it is a generous reading of that observation by the appellant to suggest that it is related to these complaints rather, than to the District Court matter. If one makes the assumption that it might be capable of being related to these complaints the difficulty with the appellant's submission is that there is no evidence raising the issues to which the appellant refers.
(Page 9)

28 The heart of the factual issue raised by him from the bar table was, essentially, that he was home in bed, someone broke in and hit him, and that he simply reacted. However, the uncontested evidence before his Worship was that the appellant had been awake, and answering the telephone shortly before the events in question. In relation to the weapons charge it was the evidence of Constable Vandersluys that he had, before getting into the house, loudly called out that it was the police. He then went on to say that he and Constable Sloan entered the house and again said, "Howard, it's the police. We are inside your house." The evidence of the constable continues that at that point he pulled his baton from its pouch in its non extended form, that they moved through the house, he saw what he believed to be cigarette smoke and heard a noise, that they made their way to the master bedroom door which was slightly ajar and the constable says:

"The gap that was created from this door being slightly ajar was where I believe I saw the cigarette smoke. I placed my left foot slightly inside the door, and with my right hand, with the baton still in its non-extended form, I slowly pushed the door open. In doing so, as the door opened slowly, I immediately was confronted with the defendant standing about one to one and a half metres from the doorway. He was standing there with a large machete in his left hand and an aluminium baseball bat in his right hand. Both his arms were raised above his head, like this –"

(which I assume he then demonstrates). So all the evidence was inconsistent with the very brief account given from the bar table by the appellant.

29 In relation to the weapons charge, s 8(3) of the Weapons Act - which is the defence which it is submitted his Worship should have considered - provides:

"A person does not commit an offence under subsection (1) if the person carries or possesses the article at the person's dwelling for the purpose of using it in lawful defence at the dwelling in circumstances that the person has reasonable grounds to apprehend might arise."

30 The evidence did not contain, in my view, anything to suggest what circumstances the appellant could have had reasonable grounds to apprehend might arise which could have justified the possession or use of the articles in question. It is true that, as the appellant's counsel points

(Page 10)

out, there is evidence that the appellant was struck at one point by Constable Vandersluys with the baton, but the evidence which was before his Worship is clearly to the effect that that occurred after the point at which the charge in complaint MI404 of 2001 relating to the weapons was complete and at a time at which the appellant, having already raised the weapons in the manner to which I have referred, did not put them down.

31 So it seems to me that the submission that there were defences which his Worship was required to consider, is based upon a proposition which does not find support in the evidence which was before his Worship. For those reasons it seems to me that even if there was a failure to give reasons, there was no miscarriage of justice, there being on the materials before his Worship evidence which was effectively all one way in relation to each element of the various complaints.

32 That is, it seems to me, sufficient also to dispose of the ground 2 relating to the duplicitous complaint. That is, I accept the submission on behalf of the respondent that, had the prosecution been put to its election in relation to either the baseball bat or the machete it must inevitably have succeeded and for those reasons I would dismiss the appeal.