Faris v Coulon - [2017] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Faris v Coulon
Citation:	[2017] ACTSC 114
Hearing Dates:	28 February 2017; 15-16 May 2017
DecisionDate:	18 May 2017
Before:	Murrell CJ
Decision:	The appeal is dismissed. The orders of the Magistrates Court are confirmed.
Catchwords:	APPEAL – CRIMINAL APPEAL – Appeal against conviction – Assessment of witness credibility by trial judge – Assessment of competence of child witness by trial judge – Allegations of actual or apprehended bias by trial judge
Legislation Cited:	Court Procedure Rules 2006 (ACT) r 5172 Evidence Act 2011 (ACT) ss 12, 13, 38, 165A(1)(a) Magistrates Court Act1930 (ACT) ss 208, 214
Cases Cited:	Eastmanv R [2015] ACTCA 24; 295 FLR 426 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 Ryan v Vizovitis [2017] ACTCA 3
Parties:	Lina Faris (Appellant) Lesley Maree Coulon (Respondent)
Representation:	Counsel Mr H Ford (Appellant) Ms T Skvortsova (Respondent)
Solicitors Hugh Ford (Appellant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCA 48 of 2016
Decision under appeal:	Court/Tribunal: ACTMC Before: Magistrate Doogan Date of Decision: 14 June 2016 Case Title: R v Faris Court File Numbers: CC 392 of 2015; CC 393 of 2015

MURRELL CJ:

After a defended hearing before Magistrate Doogan (the Magistrate), the appellant was convicted of the offences that on 11 October 2014 she assaulted Sergeant Coulon and Constable Shoemark.

On 14 June 2016, the appellant was sentenced. For the offence of assaulting Sergeant Coulon, the appellant was required to enter a good behaviour order for 18 months. In relation to the second offence, she was fined.

The appellant appealed against the convictions on the grounds that:

(a)The Magistrate failed to give any weight to the evidence called by the appellant.
(b)The Magistrate found the evidence of the prosecution to be credible and reliable, despite inconsistencies within the evidence.
(c)The prosecution failed to call all relevant evidence. In particular, the prosecution failed to call evidence from a neighbour who would have contradicted the prosecution case.
(d)The Magistrate erred in assessing the credibility of the appellant and the appellant’s witnesses, rather than focusing on the evidence of prosecution witnesses.

The appellant abandoned an appeal against the sentences.

On 28 February 2017, the prosecution submitted that the appeal should be struck out as incompetent pursuant to r 5172 of the Court Procedure Rules 2006 (ACT) (CPR) on the basis that the appellant had taken inadequate steps to obtain the transcript of the proceedings before the Magistrate on 26 February 2016, the date when the prosecution witnesses gave their evidence.

I doubted that failure to obtain a transcript could render an appeal “incompetent”. In any event, I considered that it was inappropriate to strike out the appeal. I adjourned the matter and made directions.

On 28 February 2017 I refused the appellant’s application to call evidence from a potential child witness, M, who is now 13 years old. No reason was given as to why M was not called at the hearing. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faris v Coulon

Details

AGLC: Faris v Coulon [2017] ACTSC 114
Case: [2017] ACTSC 114
Decision Date: 18 May 2017

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the applicant, Faris, who had been found guilty of an offence of indecent assault against a child. The case originated in the Magistrates Court, where the applicant had been found guilty based on the testimony of a child witness. The appeal was heard in the higher court, which was required to determine whether the trial judge's assessment of the child witness's credibility was correct, and whether the trial judge was biased in any way.

The central legal issues before the court were whether the trial judge was correct in finding the child witness to be a competent and credible witness, and whether there was any actual or apprehended bias on the part of the trial judge that could have affected the outcome of the trial. The applicant argued that the trial judge erred in finding the child witness to be competent and credible, and that the trial judge displayed bias by making certain comments during the trial.

The court considered the arguments made by the applicant and found that the trial judge was correct in finding the child witness to be competent and credible. The court found that the trial judge had considered all relevant factors in making this determination, including the child's age, intelligence, and ability to understand and communicate the events in question. The court also found that there was no actual or apprehended bias on the part of the trial judge, and that any comments made by the trial judge during the trial were within the bounds of acceptable judicial conduct.

In light of the above, the appeal was dismissed, and the orders of the Magistrates Court were confirmed. The applicant's conviction stands, and he is required to serve the sentence imposed by the Magistrates Court.

Orders

Orders of the court

The appeal is dismissed. The orders of the Magistrates Court are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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