Fb v Paule
[2021] ACTSC 213
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | FB v Paule |
Citation: | [2021] ACTSC 213 |
Hearing Date: | 13 June 2021 |
DecisionDate: | 13 September 2021 |
Before: | Mossop J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction and sentence – offence of damage property – self represented litigant – appeal dismissed EVIDENCE – APPEAL – whether further evidence should be admitted on appeal from the Magistrates Court – it should not |
Legislation Cited: | Crimes Act 1900 (ACT), s 30 Criminal Code 2002 (ACT), s 403(1) |
Parties: | FB ( Appellant) Cameron Paule ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) N Deakes ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 55 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Taylor Date of Decision: 17 and 26 November 2020 Case Title: The Police v [FB] Citation: CC 12427 of 2019 |
MOSSOP J:
Introduction
On 19 November 2019 the appellant was charged with the following offences:
(a)damaging property contrary to s 403(1) of the Criminal Code 2002 (ACT); and
(b)making a threat to kill contrary to s 30 of the Crimes Act 1900 (ACT).
Following a contested hearing on 4 and 5 November 2020, on 17 November 2020 a magistrate found the offence of damaging property proved and found the offence of making a threat to kill not proved. On 26 November 2020, the magistrate recorded a conviction for the damage property offence and sentenced the appellant to a good behaviour order for 18 months, including supervision for 12 months and 40 hours of community service. He was also ordered to pay $2,999.95 in compensation within 18 months.
The offence arose from a dispute with the victim, who was the appellant’s stepson. The appellant lived with his partner and her two sons. On 18 November 2019 the victim left the house for work. Approximately an hour later the appellant arrived home from an interstate trip and became angry that the victim was not at home. The victim received a text message from his brother indicating that if the victim did not return home soon, the appellant would start to break his belongings. The police were called, and the victim returned home.
When the victim arrived at home, he saw the contents of his cupboards spread over the floor of his bedroom, the hallway and the front yard. Rubbish was strewn around his bedroom and the curtains were pulled from the windows. Various electronic items were damaged including a PlayStation, an iPad, a TV, a digital camera and accessories, an Apple MacBook Pro laptop and a drone. When the police attended, they spoke to the appellant’s partner who said that the appellant had caused the damage. The appellant was arrested by police.
By Notice of Appeal filed on 10 December 2020, the appellant appeals from the conviction and sentence imposed by the magistrate. While the appellant was represented before the magistrate, he was unrepresented in his appeal.
The grounds of appeal are difficult to identify in that they are not clearly articulated in the manner expected of grounds of appeal. The Notice of Appeal contains a number of the appellant’s contentions about the matter, including the police investigation. These include that:
(a)An unidentified police officer referred to as the “ghost officer” emotionally blackmailed the victim into proceeding with charges against the appellant so that the victim could receive compensation, blackmailed the appellant’s partner into giving a false statement and engaged in “religious mockeries”.
(b)The magistrate was biased in favour of the DPP. The appellant contends that he was not allowed to say anything to defend himself and when his partner tried to speak the truth, the magistrate intimidated her.
The relief sought is extensive and goes well beyond what might be granted in an appeal of this type. However, it at least implies that the conviction and sentence should be set aside.
The hearing below
At the hearing before the magistrate, the appellant was represented by an experienced solicitor. On the first day of the hearing, both the prosecutor and the solicitor for the accused gave openings. The appellant’s position articulated by his solicitor was that the issue was whether the appellant’s partner was in fact the person who damaged property. In relation to the threat to kill charge, the position was that the threat was denied and the issue whether a reasonable person would fear that the threat would be carried out. The solicitor for the appellant also raised the fact of the appellant’s good character.
Seven witnesses were called.
The first witness was KL, a son of the appellant’s partner who had given a recorded evidence-in-chief interview. That was played. There was an objection to some further oral evidence concerning what was referred to as the “sword incident”. The way that that was dealt with was that the evidence was to be led on the voir dire and then a ruling on the s 137 of the Evidence Act 2011 (ACT) objection made at a later date. KL was cross‑examined.
The next witness was JL, another son of the appellant’s partner, who gave oral evidence. His phone call to police operations was played and admitted into evidence. He was cross‑examined.
The next witness was Constable George Blattman, an officer at Tuggeranong Police Station who gave oral evidence and was cross-examined.
At the end of the first day of the hearing, the statement of Constable Makaylie Gill was tendered by consent.
On the second day of the hearing, the appellant’s partner was called by the prosecution. She gave oral evidence. Given that the effect of her evidence was that she was the one responsible for damaging the property, proceedings were adjourned briefly so that she could obtain legal advice as to whether or not she wished to object to giving evidence that might incriminate her. She did not wish to take any objection to giving that evidence. An application was subsequently made by the prosecutor under s 38 of the Evidence Act to permit her to be cross-examined and leave was given. She was then briefly cross‑examined by the solicitor for the appellant.
The next witness was Constable Ainsley Pruckner, a constable who at the date of the incident was attached to Tuggeranong Police Station. She gave oral evidence and was cross-examined. After the luncheon adjournment, Constable Danielle Bewick, a constable who was attached to the Tuggeranong Police Station, gave oral evidence and was cross-examined.
The final witness was Constable Cameron Paule, a constable based at the Tuggeranong Police Station. Constable Paule was the informant. He gave evidence and was cross‑examined.
There was no defence case.
Submissions were then made concerning the sword incident by the solicitor for the appellant and by the prosecutor. Her Honour indicated that she would make her ruling on s 137 of the Evidence Act at the same time as giving her substantive decision. The solicitor for the appellant then made his closing submissions which dealt first with the threat to kill charge and then the damage property charge. So far as the damage property charge was concerned, the solicitor for the appellant made competent submissions targeted at the critical issue, namely whether or not the evidence of the appellant’s partner that she was responsible for the damage gave rise to a reasonable doubt. The prosecutor then made her submissions. No submissions were made in reply by the solicitor for the appellant. Although her Honour had been in a position to deliver her decision the next day, in order to accommodate the solicitor for the appellant, she gave her reasons on 17 November 2020.
The magistrate gave her reasons orally. They extend over 18 pages of transcript. Her Honour commenced by giving some general directions as to the nature of a criminal trial. She then described in summary form the evidence given by each of the witnesses. She then turned to address the issue arising under s 137 of the Evidence Act and, having considered the evidence and various authorities, decided that the evidence was admissible. Next, she turned to consider what evidence should be accepted. So far as KL was concerned, she gave reasons for accepting that he was a witness of truth upon whose evidence she could rely. In relation to JL, her Honour concluded that while his evidence was otherwise reliable, she did not accept that he had actually seen the appellant throwing things and snapping items out the front of the premises. That was because that was not something which he said to police, to his brother or to the “000” operator. So far as the appellant’s partner was concerned, the magistrate gave careful consideration to her evidence. She recorded that she observed her carefully. Ultimately, she concluded that the appellant’s partner’s version was “somewhat incredible” and that in giving her evidence she had not been true to her oath. The magistrate went on to consider the threat to kill charge, concluding that it had not been proved beyond reasonable doubt. She was therefore satisfied that the charge of damaging property was made out but the threat to kill charge was not.
The magistrate’s reasons were well structured and reflect a logical and careful consideration of the issues in the case as it was presented to her. Having regard to the issues in the case, her Honour gave very careful consideration to the evidence of the appellant’s partner.
Further evidence
The appellant sought to have further evidence admitted on the appeal. This material was provided on a USB flash drive. This flash drive contained nine folders of material containing a total of 240 documents. These were a mix of material extracted from the prosecution brief, documents prepared by the appellant containing submissions or statements as to what had occurred, some videos, some documents relevant to family violence proceedings and some extracts of statements given to the police.
In dealing with the question of further evidence it was relevant to take into account that:
(a)the appellant was represented in the hearing below;
(b)the bulk of the material was material that was in existence or known to the appellant at the time of the hearing;
(c)there was no explanation as to why, if it was relevant and admissible, it was not sought to be admitted at the hearing before the magistrate;
(d)most of the material was not admissible; and
(e)to the extent that the material involved evidence that might have been given by the appellant at the hearing, the forensic choice to not have him give evidence was clearly one which was open in the circumstances.
The relevant provision is s 214 of the Magistrates Court Act 1930 (ACT). This appears to give rise to three possible pathways by which evidence may be admitted: s 214(3)(a)(iii), s 214(3)(b) and s 214(4).
The respondent opposed the admission of the further material. The absence of consent means that s 214(3)(b) of the Magistrates Court Act is not applicable. So far as s 214(4) of the Magistrates Court Act was concerned, I was not satisfied that the combined conditions in that subsection were established, namely that the evidence, first, be credible, admissible and relevant to an issue on appeal and, second, that there was a reasonable explanation for the failure to adduce it. Finally, so far as s 214(3)(a)(iii) of the Magistrates Court Act was concerned, I was not satisfied in relation to any of the evidence that it was “necessary or expedient … in the interests of justice” to receive the evidence of any witness whose evidence was recorded in the material, most obviously the appellant.
For these reasons I ruled at the hearing that the material would not be admitted.
Appeal against conviction
In light of the refusal to admit further evidence, the scope of the appeal is confined to the material that was before the magistrate.
To the limited extent to which any issue of police misconduct was raised below, it was considered by the magistrate. The “ghost officer” issue did not arise at the hearing before the magistrate. The submissions made to the magistrate on behalf of the applicant were carefully and appropriately targeted at the proposition that the evidence of the appellant’s partner had to be rejected beyond reasonable doubt before the appellant could be convicted. The appellant’s solicitor directed the magistrate to evidence which he said was consistent with the appellant’s partner having been the offender. Thus, while he submitted that the magistrate might have a real suspicion that she was “trying to take the hit” there was “at least a reasonable possibility that … she’s actually telling the truth”. The evidence before the magistrate does not disclose an inadequate investigation, the hiding of evidence from the appellant, the emotional blackmail of the victim into proceeding with the charges or the blackmail of the appellant’s partner into giving a false statement. Notably, the findings of the magistrate involved a careful consideration of the appellant’s partner’s evidence and the magistrate specifically rejected the proposition that there was “any unprofessional conduct on the part of the police”. That involved a rejection of the appellant’s partner’s evidence that the police were harassing and intimidating her. Further, in rejecting the appellant’s partner’s evidence, her Honour rejected the uncorroborated evidence of the appellant’s partner that a police officer had told her son that unless he pressed charges, he would not be able to get any compensation for his belongings.
The passages in the Notice of Appeal in relation to bias or an apprehension of bias on the part of the magistrate are difficult to understand. In oral submissions, considerable emphasis was placed by the appellant upon what he said was anti-Muslim bias arising from the proposition that a good father would go to the pub and drink beer with his son. This issue arose from an exchange with counsel for the appellant as to the admissibility of what was described as “the sword incident” as relationship evidence. Her Honour said:
These were not father and sons going out and having a beer and watching the cricket together or something of that kind.
The point that her Honour was making was that the evidence was of a poor relationship between the appellant and his stepsons rather than a good one. While the reference was, perhaps, a culturally specific one, no fair-minded lay observer might reasonably apprehend that the trier of fact might not bring an impartial mind to the resolution of the issues in the case because of the making of this statement.
The appellant also referred to some cross-examination by the prosecutor of the appellant’s partner in which she drew attention to an apparent inconsistency between the appellant’s partner’s evidence that she got the appellant to throw her son’s goods out of the house because she herself did not have her hijab on, yet shortly afterwards put her hijab on in order to leave the house to go and meet her son. This was principally directed as a criticism of the prosecutor but said to have formed the basis upon which the appellant’s partner’s evidence was not accepted (the appellant said “her credentials was [sic] taken away from her”). Nothing in this cross-examination suggests that it involved any discriminatory treatment. The issue was a simple factual one arising in the context of a challenge to the change in the evidence of the appellant’s partner. The magistrate made no specific reference to this cross-examination in her decision. There is in my view no substance in any claim of an apprehension of bias by reason of this evidence being admitted.
There is, in my view, no substance in the claim that the appellant was not allowed to say anything to defend himself and that when his partner tried to speak the truth, the magistrate intimidated her. It is clear that the appellant had the opportunity to give evidence but, with the benefit of legal advice, chose not to. Neither the submissions nor the transcript of the proceedings support the contention that the magistrate intimidated the appellant’s partner when she was giving evidence.
Because of the difficulty in understanding the appellant’s grounds of appeal, it is finally worth addressing the substance of the case against the appellant. It must be noted that the principal issue in relation to the charge on which the appellant was convicted was a narrow one, namely, whether it was proved beyond reasonable doubt that the appellant was the person who had damaged the property. If the prosecution was to succeed, it was necessary for the magistrate to reject beyond reasonable doubt the evidence of the appellant’s partner. The submissions made on behalf of the appellant were carefully and realistically targeted at the proposition that there was at least a reasonable possibility that the appellant’s partner was telling the truth. The magistrate carefully assessed the evidence on that issue and was able to reject that evidence beyond reasonable doubt. The conclusion is one which was clearly open to the magistrate.
For these reasons I do not consider that the conviction should be set aside.
Sentence appeal
Despite the lack of clarity in the Notice of Appeal, the appellant said at the hearing that “I’m challenging everything. I should not have no sentence at all.” As no other specific error is alleged in relation to the sentence, I have treated the appeal as including a claim of a manifestly excessive sentence even in the event that the appeal against conviction was unsuccessful.
The sentence imposed by the magistrate is set out at [2] above. It included a conviction, a period of good behaviour including a period of supervision, 40 hours of community service and an order for compensation. The order for compensation only related to a modest fraction of the amount that had been claimed, which was $15,896.75.
The magistrate heard submissions and gave her decision on 26 November 2020. Her Honour identified the damaged incurred as being around $16,000. She identified that the offending took place in a family violence context and assessed the offending as “somewhere around, if not slightly higher than the midrange” of objective seriousness. She referred to the very limited criminal history of the offender, his study and his significant hearing loss.
In ordering the payment of compensation limited to the amount of $2999.95, her Honour took into account that payment of the full amount of the loss would be something that the appellant would unlikely be capable of. However, payment of the compensation amount was made a condition of the good behaviour order and hence would give rise to consequences if the payment was not made.
Having regard to the circumstances in which the offending occurred, the personal circumstances of the offender and the value of the property damaged, it is very clear that the sentence imposed was not manifestly excessive. It appropriately balanced the objective and subjective circumstances of the offending and the offender.
No other error is apparent in relation to the sentencing decision.
Order
The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 13 September 2021 |
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