Faris v Coulon
[2017] ACTSC 114
•18 May 2017
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 |
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 decided that the appellant should not be permitted to rerun her case. I was also cognisant of the difficulties of calling a witness to speak for the first time about events more than two years earlier and of the undesirability of calling a 13-year-old child who was only 11 years of age at the time of the incident.
The appeal
The appeal to the Supreme Court is pursuant to s 208 of the Magistrates Court Act1930 (ACT) (MCA). The appeal is by way of rehearing and the Supreme Court must conduct a review of the evidence before the Magistrates Court. Pursuant to s 214 of the MCA, the Supreme Court has power to draw inferences of fact. An appellant will succeed if they can establish an error of law or fact or a manifestly wrong exercise of discretion.
The principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge are well settled and were recently repeated by the Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [132]. There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge’s factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find that the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.
Prosecution evidence
In the Magistrates Court, the prosecution called evidence to the following effect.
In response to 000 calls from the appellant, at about 3:40 pm on 11 October 2014, Sergeant Coulon, Constable Shoemark and Constable Nikias attended the residence of the appellant and her husband, Mr Faris at Howmans Street, Harrison.
The appellant had rung the 000 number seven times to complain about her neighbours, the Bruzgas. After listening to the calls, the Magistrate described them as “extremely aggressive, agitated and hysterical” and commented that the appellant’s husband, Mr Faris could be heard in the background making “extremely offensive remarks” to the person who answered the calls.
When the police arrived, the appellant was very agitated. She opened the front door and began to shout at the police. She was joined by Mr Faris, who also yelled aggressively.
The police began to walk towards the Bruzgas’ residence to ask them what had occurred.
When the police were halfway down the appellant’s driveway, the appellant ran towards them, yelling. The appellant pushed Sergeant Coulon in the chest. Sergeant Coulon reacted by raising her right arm. She pushed the appellant away and stepped backwards. The appellant again lunged towards Sergeant Coulon. Constable Shoemark stood between the two and grabbed the appellant by the top of her arms, in the shoulder area, pushing her back to prevent her from contacting Sergeant Coulon. The appellant flung her arms and clenched her fists as though she was going to punch Constable Shoemark. He caught the appellant’s forearms and guided her backwards, away from Sergeant Coulon. Constable Shoemark told the appellant that he would release her if she calmed down, but the appellant continued to struggle.
This incident occurred in the vicinity of a tree. Police did not dispute the possibility that, in the course of the incident, the appellant was accidentally scratched by a twig.
Immediately prior to the incident, Constable Nikias was standing to the right of Constable Shoemark, who was standing to the right of Sergeant Coulon. Although Constable Nikias did not observe any physical contact between the police and the appellant, his observations of the surrounding events were consistent with the description of physical interaction that was given by Sergeant Coulon and Constable Shoemark.
Mr Faris came forward, wrapped his arms around the appellant’s upper body and tried to drag her away from the police. Constable Shoemark released the appellant.
Mr Faris continued to drag the appellant away from the police, towards the front of the premises. The appellant yelled “[h]e assaulted me, you assaulted me, I’ll kill them” and “[h]e called me a Jordanian slut”. He pulled her inside and shut the door. The appellant continued to yell out.
The police proceeded to the Bruzgas’ home in Harrison, which was directly behind the appellant’s residence. There, they located Constables Hull and McClintock. They spoke to Mr Bruzga. He stated that, prior to police attending, water had been sprayed accidentally over his back fence onto the appellant’s property. The appellant and her husband had become irate and had accused Mr Bruzga of deliberately spraying their property. Because Mr Bruzga was fearful, he had called the police.
All five police returned to the appellant’s residence. The appellant opened the door and tried to exit but Mr Faris pulled her back inside and shut the door. From inside, she shouted at the police. Mr Faris complained that the police should do something about the neighbours, asserting that the police were racist for failing to do so.
To avoid inflaming the situation, the police decided to leave. Constable Hull said that, at one point, Mr Faris became aggressive and he placed his hand on Mr Faris and pushed him away.
On 17 December 2014, Sergeant Coulon and Constable Shoemark returned to the appellant’s residence and offered her the opportunity to participate in a digital record of interview. The appellant asserted that the police had assaulted her, verbally abused Sergeant Coulon, and slammed the door in her face.
Defence evidence
The appellant gave evidence that originally three police officers, including Seargeant Coulon and Constable Shoemark attended her residence. They declined to come inside, ignored the appellant, and were rude to her husband. The police were yelling. Sergeant Coulon pushed the appellant and then Constable Shoemark grabbed her by the wrists and arms and dragged her outside, where he deliberately rammed her into a tree. As a result, the appellant sustained a minor cut or cuts to her neck. She tendered photographs of the cut. The appellant said that her husband came outside and she ran back inside.
The appellant denied that she had rushed at Sergeant Coulon and pushed her.
Later, two police officers returned and the appellant reported that she had been assaulted.
She called the emergency line again. In response, two further police officers attended.
Mr Faris gave evidence largely corroborative of his wife’s evidence, although he agreed that he had come outside to grab the appellant and take her inside from the driveway. He also said that only two groups of police attended the residence, an initial group of three police and a further two police on the second occasion.
The appellant called a then 13-year-old child witness, N. On the day after the incident and recently, she had told the appellant and Mr Faris what she had seen. N said that she had witnessed everything from the lounge room window. Sergeant Coulon had pushed the appellant and Constable Shoemark had dragged the appellant by her wrists from the house to a tree. The appellant had run back inside, crying.
On the appeal, the appellant’s legal representatives contended that the police may have been motivated to invent the allegations against the appellant as “payback” to explain their aggressive behaviour towards her.
Magistrate’s decision
The Magistrate found that the police evidence was credible; although the evidence of the police officers differed in detail, it was consistent in relation to the central facts. Her Honour was satisfied beyond reasonable doubt that the assaults had occurred in the manner described by the police.
On the other hand, the Magistrate found that the appellant’s evidence about the police conduct when they responded to the appellant’s emergency call (yelling at the appellant, abusing her husband and pushing the appellant in the chest for no apparent reason) was irrational and inherently improbable. The Magistrate found that the appellant’s evidence was “totally invented”.
Her Honour noted that, on the evidence of Mr Bruzga (tendered by the defence), before the police arrived, the appellant and her husband were behaving very aggressively. Her Honour noted the police evidence that, when they arrived, the appellant was behaving aggressively and irrationally and was incomprehensible. Her Honour observed that the appellant’s fury was apparently caused by anger towards her neighbours.
Submissions on appeal
The appellant made the following submissions:
(a)The Magistrate placed undue weight on the evidence of the prosecution witnesses, which contained many inconsistencies. In particular:
(i)The evidence of Sergeant Coulon and Constable Shoemark that they first saw the appellant at the front door was inconsistent with the statement of facts which said that police first saw the appellant in the driveway.
(ii)The times given by Constables Hull and McClintock indicated that they were at the appellant’s residence at about the time when, according to the other police, the appellant committed the offences. However, Constables Hull and McClintock did not witness any assault by (or upon) the appellant.
(iii)Constable Nikias did not witness an assault by the appellant, although he was present when the alleged assault occurred.
(iv)Mr Bruzga’s evidence was that the events occurred in the morning, not the afternoon as stated by the police. Further, Mr Bruzga did not give evidence of witnessing any assault by (or upon) the appellant.
(b)The prosecution breached its duty to call evidence from material witnesses, Constables McClintock and Hull and Mr Bruzga. Although it was open to the appellant to lead evidence from these witnesses and the appellant did so, this course deprived the appellant of the opportunity to cross examine witnesses who were in the prosecution “camp”.
(c)The Magistrate erred in her approach to the assessment of credibility of the appellant and her witnesses. It was not appropriate for the Magistrate to assess the credibility of the appellant or her witnesses; to do so was “an unlawful practice.”
(d)The Magistrate failed in her duty under s 13 of the Evidence Act2011 (ACT) (Evidence Act) to assess N’s competence as a witness; a proper assessment of competence would have boosted N’s credibility. There was no proper basis for the Magistrate to reject N’s evidence on the basis of credit; there was no reason for the Magistrate to find that N had been coached.
(e)The Magistrate should have disqualified herself because of actual or apprehended bias. The Magistrate repeatedly chastised the appellant’s legal representative and criticised the appellant herself (see, for example Transcript 26.02.16, T 7-9 and 16.03.16, T 39-42), and the Magistrate adopted the prosecution submission about a proposition being “absurd”: at 16.03.16, T 39-42. In fact, the Magistrate’s conduct caused the appellant to believe that the Magistrate was biased: 26.02.16, T 51. The Magistrate should have recused herself when asked to do so on 16 March 2016.
Assessment of credibility of prosecution witnesses
The outcome depended upon the Magistrate’s assessment of the credibility of the prosecution witnesses and, inter alia, on her Honour’s determination of whether the evidence of the appellant’s witnesses caused her to have a reasonable doubt about the critical aspects of the evidence of those witnesses
In relation to the alleged inconsistencies in the evidence of prosecution witnesses, a review of all the evidence shows that the Magistrate was entitled to find that there was no significant inconsistency. Her Honour was entitled to accept the evidence of the three police officers who said that they had witnessed two assaults by the appellant. Her Honour did so in the context that she completely rejected the appellant’s account of events.
The appellant’s submissions identified several respects in which the appellant said that the prosecution case was inconsistent.
First, the appellant relied on a small injury to her neck as corroborating her evidence that Constable Shoemark had forced her back into a tree.
The difficulty with this contention is that, even if the small cut to the appellant’s neck was caused by contact with a tree, such an injury was consistent with Constable Shoemark’s version of events. He conceded that there was a tree in the vicinity. Inferentially, the appellant could have sustained the injury by accident.
Second, the appellant placed great reliance on the fact that Constables McClintock and Hull said that they did not witness any assault. The appellant submitted that, as they were present, the police would have witnessed an assault (if one had occurred) and the fact that they did not do so cast doubt on the prosecution case.
Viewed as a whole, the evidence does not show that the two police officers were present at the time of the alleged assault on Sergeant Coulon and Constable Shoemark. If one examines the sequence of events described by all the police officers (rather than just the times given, which may well have been slightly inaccurate) it is clear that Constables Hull and McClintock were not present at the time of the alleged assault by the appellant. At that time, they were at the Bruzga residence.
Third, the appellant relied on the fact that Constable Nikias did not witness any physical contact between the appellant and Sergeant Coulon although by all accounts he was in the immediate vicinity.
It is not surprising that Constable Nikias did not witness any physical contact. Constable Shoemaker was standing between Constable Nikias and Sergeant Coulon. The limited observations that Constable Nikias did make were quite consistent with the assaults described by the other police officers. He said that he saw the appellant move towards Sergeant Coulon with her hands raised and saw Sergeant Coulon move back, although he could not see whether direct contact occurred.
The appellant submitted that there was no evidentiary basis for the Magistrate’s findings that N had been “coached” and had “rehearsed what she had to say”.
However, there was some evidentiary support for those findings. In cross-examination, N admitted that she had spoken with the appellant and Mr Faris about the evidence that she would give and that they had encouraged her to “practice” what she would say. As a matter of common sense, the nature of the close familial relationship between N and the appellant would cause any fact-finder to question the reliability of N’s evidence. Given the sensitivities of the situation, there was every reason that the Magistrate might not elaborate greatly as to the reasons for rejecting N’s evidence.
Prosecution duty to call relevant evidence
The prosecution was obliged to call all available material witnesses: R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 at [102]-[104].
However, on the prosecution case (and on the facts found by the Magistrate), the witnesses whom the prosecution did not call were not material in the sense that they were not in a position to have witnessed the alleged assaults by (or upon) the appellant.
As it transpired, the two police officers were made available by the prosecution and were called by the appellant. The statement of Mr Bruzga was tendered in the appellant’s case without objection from the prosecution. Consequently, the Magistrate was not deprived of the evidence of these witnesses.
However, the appellant complained that because she was required to call the witnesses, she was deprived of the opportunity to cross examine them.
This submission ignores the fact that the appellant could have sought leave to cross examine under s 38 of the Evidence Act but failed to do so.
Further, when the evidence is examined as a whole, it seems most unlikely that cross examination could have advantaged the appellant.
I am not satisfied that the prosecution failed in its duty to call material witnesses. Nor is there a possibility that the course that was followed caused any forensic disadvantage to the appellant. There is no risk that justice has miscarried.
Ascertaining the competence of N
N gave sworn evidence supporting the appellant’s version of events. The Magistrate found her to be an unreliable witness.
Before N gave evidence, the Magistrate briefly questioned N for the purpose of verifying her competence to give sworn evidence. Her Honour did so although she was of the view that most children of N’s age would be competent to give sworn evidence.
However, the appellant complained that, because the Magistrate failed to extensively question N, her Honour failed to realise that N was a highly reliable witness. More detailed questioning by the Magistrate would have bolstered N’s credibility.
This submission confuses two concepts. First, there is a presumption that every person is competent to give evidence: s 12 and 13(6) of the Evidence Act. In the case of N, there was never any significant question about her competence to give evidence and the Magistrate accepted that she was competent. Second, the determination of competence has nothing to do with a determination about credibility. Competence is concerned with whether a witness can give evidence; credit involves the fact-finder making a determination about the veracity of the evidence given by a competent witness.
It would be quite wrong for a court to find that a witness was less reliable merely because the witness was a child (see for example s 165A (1)(a) of the Evidence Act), but there is nothing to support a suggestion that the Magistrate adopted such an erroneous approach.
Bias
As noted above, the appellant concluded that the Magistrate was biased and “against her from the beginning”: 26.02.16, T51.
The appellant’s submissions about bias relied primarily on the manner in which the Magistrate addressed the appellant and her legal representative, as well as the Magistrate’s alleged use of the word “absurd” when describing the appellant’s version of events.
In fact, the Magistrate did not use the word “absurd”. The prosecutor put to the appellant during cross-examination that her version of events was “patently absurd”. The appellant objected to answering the question. The Magistrate said that the question was a fair question. However, at no stage during the hearing or in her reasons for decision did the Magistrate herself use the expression “patently absurd” or “absurd”.
There is no doubt that the Magistrate was, at times, curt towards the appellant and the appellant’s legal representative. On a number of occasions, her Honour made statements such as “[j]ust get started”, “I’m not going to listen”, and “[s]it down” to the appellant’s legal representative. Her Honour also reprimanded the appellant on numerous occasions. In one instance, her Honour suggested that the appellant may be found in contempt of court.
On the second day of the hearing, 16 March 2016, the Magistrate refused an application to recuse herself, explaining that any shortness on her part was an attempt to progress the matter in the face of a busy court schedule. At that stage, it would seem that the appellant was agitated and was not responding properly to questions.
Whether the Magistrate was behaving discourteously towards the appellant and her legal representation is difficult to determine without hearing a recording of proceedings in the Magistrates Court. Neither party tendered the recording. Factors such as the tone or volume in which the Magistrate delivered her statements could determine whether the Magistrate was being discourteous or simply attempting to progress a matter in difficult circumstances.
In any case, even if it is accepted that the Magistrate treated the appellant rudely or discourteously, this is not the point. The appellant’s submissions confuse the concepts of discourtesy and lack of impartiality.
In Eastmanv R [2015] ACTCA 24; 295 FLR 426 at [30] – [32] the Court of Appeal explained the concept of apprehended bias as follows:
[30] First, the question is one of possibilities (real and not remote) not probabilities.
[31] Second, the principle of apprehended bias admits of the possibility of human frailty. What that relevantly may mean in the context of this matter is that the principle admits of the possibility that a fair-minded observer might apprehend that even the most experienced, well-regarded and well-intentioned judge, might not be able to entirely put out of his or her mind, or might be subconsciously influenced by, a matter that might affect their impartiality.
[32] Third, the test requires the identification of what might affect the judge’s impartiality and its logical connection with the possibility of departure from impartial decision-making in the case at hand.
In this case, the third requirement explained at [32] has not been made out. The appellant did not identify any factor which may have affected the Magistrate’s impartiality and (more importantly) identify a logical connection between any such factor and her Honour’s decision-making.
Orders
The appeal is dismissed and the orders of the Magistrates Court are confirmed.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 18 May 2017 |
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