Gatica-Evans v Wear - [2004] WASCA 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GATICA-EVANS -v- WEAR [2004] WASCA 25

CORAM: JENKINS J

HEARD: 12 FEBRUARY 2004

DELIVERED : 2 MARCH 2004

FILE NO/S: SJA 1109 of 2003

MATTER :The Justices Act 1902 (as amended)

BETWEEN: JAMES PATRICK GATICA-EVANS
Appellant
AND
MICHAEL COLIN WEAR
Respondent

Catchwords:

Criminal law - Appeal from decision of Magistrate - Unlawful wounding - Self defence - Good character - Rule in Browne v Dunn

Legislation:

Criminal Code, s 248, s 301(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J J Scudds
Respondent: Mr R K Malhotra

Solicitors:

Appellant: Porter Scudds
Respondent: State Director of Public Prosecutions

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

Browne v Dunn (1893) 6 R 67
Garrett v Nicholson (1999) 21 WAR 226
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Morris v The Queen (1987) 163 CLR 454
Rosenberg v Percival (2001) 205 CLR 434
Simic v The Queen (1980) 144 CLR 319

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brown v The Queen [1980] Tas R 61
Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991
M v The Queen (1994) 181 CLR 487
Nevermann (1989) 43 A Crim R 347
Watt v Thomas [1947] AC 484
Zecevic v Director of Public Prosecutions (1987) 162 CLR 645

JENKINS J: This is an appeal from the decision of a Stipendiary Magistrate sitting in the Court of Petty Sessions at Fremantle on 5 September 2003 whereby, on complaint number FR 2570/03, his Worship convicted the appellant of unlawful wounding contrary to s 301(1) of the Criminal Code.
By that complaint it was alleged that on 1 January 2003 at Rottnest Island the appellant unlawfully wounded one Scott Anthony Fahey ("the complainant").
On 5 September 2003 the appellant appeared in the Court of Petty Sessions at Fremantle. He pleaded not guilty to the charge and a trial ensued. The appellant was convicted and fined $750.00 and ordered to pay costs of $117.77.

Grounds of Appeal

The grounds of appeal, as set out in the order for leave to appeal, are as follows:
"1.The Learned Magistrate erred in fact and law:
a)by convicting the [Appellant], the Learned Magistrate acted contrary to the evidence and weight of the evidence and the convictions were unsafe and unsatisfactory having regard to the totality of the evidence.
Particulars
1.The Learned Magistrate failed to give sufficient or any weight to the independent witness Chambers and the other Defence witnesses, including the [Appellant].
2.The Learned Magistrate failed to give any weight to the injury on the face of the [Appellant] which was observed by the police shortly after the incident and identified by the Applicant as being caused by the complainant, and the blood on the [Appellant's] top.
3.The Learned Magistrate failed to give sufficient weight to the antecedents and good character of the [Appellant].
(b)in his application of the rule in Browne v. Dunn, by claiming the [Appellant] breached the rule, and thereby giving extra weight to the evidence of some of the prosecution witnesses, when determining the facts and satisfying himself as to the burden of proof.
Particulars
1.The Learned Magistrate wrongly concluded that the [Appellant's] failure to put the [Appellant's] case in specific terms, as opposed to general terms [after a denial] to the complainant Fahey and Prosecution witness Wilson breached the rule in Browne v. Dunn.
2.The Learned Magistrate wrongly concluded that the [Appellant's] failure to put the [Appellant's] case to the prosecution witness Comparti in specific terms, when this witness denied seeing or hearing little if any of the incident, breached the rule in Browne v. Dunn.
3.The Learned Magistrate wrongly concluded that the [Appellant's] failure to put to some of the prosecution witnesses the portion of different evidence of the incident by the Defence witness Stevens, as opposed to the the [Appellant's] case, breached the rule in Browne v. Dunn.
4.After deciding the [Appellant's] Counsel breached the rule in Browne v. Dunn, the Learned Magistrate erred in giving extra weight to the some of the prosecution witnesses, when determining the facts and satisfying himself as to the burden of proof."

The Evidence

At the time of the incident the appellant was 20 years of age. The complainant was 21 years of age. On the evening of 1 January 2003 both men were at the Rottnest Island Hotel. The complainant was very drunk and the appellant had had a couple of beers.
The complainant's version of events, which he testified to, was that he and a friend, Kim Wulff, walked up to two girls who were standing in the beer garden of the hotel. The girls were not previously known to him. Whilst the complainant was talking to the girls an unknown male approached him and told him to "leave my sister alone" and then pushed him. The complainant pushed him back. There was further pushing and shoving and words exchanged between the two of them. Whilst this was occurring, the complainant felt something hit him in the left hand side of his face and he fell to the ground. He discovered he was bleeding from a cut below his left eye. His friends took him from the hotel to the nursing post on Rottnest Island. He was found to have a cut below the left eye and a chipped front tooth. Subsequent medical examination revealed a crescent shaped laceration below the complainant's left eye. It required suturing. Photos, tendered at the hearing, showed a substantial wound immediately below the complainant's left eye. The appellant admitted that he caused the wound.
In cross‑examination, the complainant said he did not recall another male, allegedly the appellant, approaching him. Neither did he recall having a conversation with this male. He denied having any physical altercation with the appellant, who was also unknown to him at the time.
In addition to the complainant, the prosecution called three other lay witnesses. The first, Kirk Grant Wilson, is a friend of the complainant and had gone with him to the hotel. Mr Wilson testified that he saw the complainant go up to the girls. He then saw another male approach and push the complainant away from the girls. There was then pushing and shoving between the complainant and that male. He then saw another male wearing a dark coloured beanie, throw something towards the complainant, from a distance of approximately two metres. He saw the complainant fall back and put his hands over his face. He heard the smash of glass.
In cross‑examination Mr Wilson acknowledged that he had discussed his evidence with the complainant. He said that he would not have had more than six beers that evening.
Another lay witness called by the prosecution was Jennifer Michelle Comparti. Ms Comparti is also a friend of the complainant. She testified that she saw the complainant walk over and shake a blonde girl's hand. She then saw another male with blonde curls and piercing on his face approach and say to the complainant "That's my sister. Leave her alone". Ms Comparti then turned away from the complainant, she heard a glass smash and she turned back and saw the complainant with blood on his face. She saw a dark haired male, wearing a beanie, next to the male with blonde curls.
The prosecution called a further lay witness, Andrew Robert Chambers. Mr Chambers is not an associate of either the complainant or the appellant. He was at the hotel, in the beer garden, and heard shouting. He looked behind and saw what he presumed to be the end of an incident with two males pushing and shoving each other. One of these males was clearly the complainant. Mr Chambers described the other male as wearing a hat and a black shirt with white writing on it. He identified that male as being the appellant. He saw nothing apart from pushing and shoving. He saw the appellant step back and throw a glass at the complainant. Mr Chambers estimated the distance between the complainant and the appellant, at that time, to be three metres.
Under cross‑examination Mr Chambers said that he saw the complainant push the appellant in the middle of the chest with his two hands and that the complainant was moving forwards and the appellant was being pushed back by him. He acknowledged that the appellant was smaller than the complainant. He acknowledged that, from what he saw, the appellant was not the aggressor.
The prosecution called two police officers. Later the same evening they found the appellant on a boat moored at Rottnest Island. He had changed his shirt. They seized the shirt and the beanie that the appellant had been wearing at the time of the incident and noted that the shirt had blood stains on it. By the time of trial the blood had not been identified as belonging to any particular person. The appellant had, what the police described as, a very small nick on his jaw. The police then conducted a video record of interview with the appellant. In the video record of interview the appellant stated that he went up to the group that the complainant was in and started talking to a girl he knew. He said that the complainant, who was standing next to him, pushed him twice. He demonstrated a push with his elbow. He said "Happy fucking new year. Chill out" to the complainant. The complainant then punched his face a couple of times. In "self defence", the appellant stood back and threw his glass at the head of the complainant because he did not want a "biff". He demonstrated where he was punched as being his left eye, chin and the whole of his face. He was asked by the interviewing office if that was when he got the cut on his chin and he said "I think so". The cut was not visible on the video.
The appellant gave evidence in his own defence. His version of the incident was that, whilst he was in the beer garden of the hotel, he saw the sister of a friend and he went to say hello to her. He had his beer glass in his hand. When he approached the girl the complainant was speaking to her. His friend, the girl's brother, Blake Owen Stephens, was standing in the group as well. He said that the complainant was "gesturing" to Mr Stephens. The appellant testified that he was standing next to the complainant and the complainant pushed him with his elbow. The appellant turned to the complainant and said "Happy fucking new year, mate. Chill out". The complainant then pushed him in the chest and said to him "Do you want to go?" He repeated this. He said that the complainant then reached over and punched him twice in the face. One of the blows hit his jaw and the other his nose. That was how he said he got the cut on his jaw. He said that he thought that the complainant was going to come at him again and he thought that "there was no getting out of it". He thought that he was probably going to get hurt by being knocked to the ground and receiving facial injuries. In an attempt to escape from the situation he threw his glass at the complainant. He then left the scene.
In cross‑examination he said that he did not see Mr Stephens and the complainant pushing each other. He said that when he threw the glass he was approximately a metre and a half from the complainant. It was put to him by the Magistrate that there was no reason why the complainant had turned on him. The appellant confirmed that there was no reason. The appellant maintained that the blood on his shirt was his own and said that, although it was a small cut to his jaw, "it was pretty deep".
The appellant also called Mr Stephens to give evidence. Mr Stephens testified that he approached his sister whilst the complainant was speaking to her. He asked his sister is she would like to go with him and he said that the complainant became aggressive. That was when Mr Stephens tried to explain to the complainant that she was his sister. Mr Stephens said he got into a scuffle with Mr Wulff and the appellant came over to see what was going on and to say hello to his sister. He heard the appellant say "What's your problem? Happy fucking new year". He said he then saw the complainant push the appellant a couple of times and punch him in the head. He said that he saw this at least two or three times in quick succession. Mr Stephens testified that at this time the appellant was covering his head with his hands. The appellant then threw his glass at the complainant.
In cross‑examination, Mr Stephens said that definitely two punches from the complainant connected with the appellant but that there were others thrown. At the time of his evidence the Magistrate described the demonstration that Mr Stephens gave of the complainant's punches as being "going like a windmill". Mr Stephens said that the complainant and the appellant were within punching distance of each other and, thus, only a couple of feet apart.
During his evidence Mr Stephens said that he did not really remember the details of the incident very well. It is also apparent that his evidence was different to that of the appellant. At the hearing of the appeal the appellant did not rely upon the evidence of Mr Stephens.
The defence also called Kathryn Vivian Lie. Ms Lie was the appellant's girlfriend at the time and she had gone to Rottnest Island with him. She said that she saw the appellant approach Mr Stephens and his sister and that at that stage she did not notice anything that concerned her. She heard the appellant say "Happy fucking new year" and when she looked up again she saw that he was being pushed and that punches were being thrown to his head. She then ran up to the appellant and told the person throwing the punches, presumably the complainant, to leave her boyfriend alone. She saw a glass come pass her face and hit the complainant but she did not see who threw it. She said that the glass was thrown just a bit less than a metre and that, at the time, the complainant and the appellant were very close to one another.
In cross‑examination Ms Lie said that at the time she saw Mr Stephens standing with his sister she did not see any aggression between Mr Stephens and the complainant.

Ground of Appeal 1(a)

The first ground of appeal alleges that the Magistrate's decision to convict the appellant was unsafe and unsatisfactory.
A conviction may be set aside as unsafe and unsatisfactory notwithstanding that there was evidence upon which a defendant could have been convicted. The test to be applied is to ask whether the Magistrate, acting reasonably, must have entertained a sufficient doubt to have entitled the defendant to a dismissal of the complaint? In order to answer this question the appellate court must make an independent assessment of the evidence. However, it is not sufficient that the appellate court disagrees with the Magistrate's conclusion. The appellate court must be especially careful not to usurp the role of the Magistrate as the finder of fact in a case, such as this, where questions of credibility are decisive: Morris v The Queen (1987) 163 CLR 454 at 461‑462 per Mason CJ.
The Magistrate's findings of fact must stand unless it can be shown that he "failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable.": Rosenberg v Percival (2001) 205 CLR 434 at 447‑448 per McHugh J.
In this case there was ample evidence upon which the Magistrate was entitled to rely in order to conclude that the appellant was guilty of the offence. It is unnecessary to go into detail as to the Magistrate's findings of fact as it is clear from a reading of the findings that the Magistrate accepted the complainant's and Mr Wilson's version of the incident, as he was entitled to do.
The appellant complains that in his reasoning the Magistrate failed to give sufficient weight to the evidence of Mr Chambers and the defence witnesses. It was a matter for the Magistrate, as the finder of fact, to give whatever weight he thought appropriate to the evidence of various witnesses. It is not for the appellate court, which has not had the opportunity to observe the witnesses, to dictate the weight that should be given to the evidence of various witnesses. The situation may be different if the evidence of the witnesses relied upon at first instance was patently unreliable or "glaringly improbable". This was not such a case.
Particular complaint is made that in the course of his findings, the Magistrate found that the appellant and the complainant had not been involved in any physical altercation prior to the appellant throwing the glass at the complainant. The appellant complains that this finding ignores the evidence of the appellant and Ms Lie. As stated the appellant does not rely upon the evidence of Mr Stephens. The appellant particularly complains that this finding was contrary to the evidence of the independent witness, Mr Chambers.
It was entirely within the discretion of the Magistrate to determine which witnesses, and which part of those witnesses' evidence, he accepted. The Magistrate generally accepted the evidence of Mr Chambers because he was independent. However, he did not accept Mr Chambers' evidence that the complainant and the appellant were pushing and shoving each other immediately prior to the appellant throwing the glass. The reason for this is that the Magistrate came to the conclusion that it was contrary to commonsense to suggest that the complainant would be fighting with the appellant rather than Mr Stephens when it was Mr Stephens who he had come into conflict with because he was speaking to Mr Stephens' sister. This was a reasoning process that the Magistrate was entitled to employ.
However, even if the Magistrate had accepted Mr Chambers' evidence on this point it would not assist the complainant. Mr Chambers' evidence was merely to the effect that he saw the complainant push the appellant in the chest and the appellant was being pushed back. This action would not justify the appellant throwing a glass at the face of the complainant.
The first paragraph of s 248 of the Criminal Code states:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm."
It is for the prosecution to negative self defence. It may do this by proving beyond reasonable doubt that the action of the appellant in throwing the glass at the complainant's face was not "reasonably necessary to make effectual defence" against the complainant's push. I do not accept that a Magistrate, acting reasonably, could come to any conclusion other than that the prosecution had negatived self defence because throwing a glass at the complainant, hard enough for it to smash on his face and cause significant injuries, was not reasonably necessary to make effectual defence against a push. I note that the learned Magistrate effectively said as much when he found that the appellant was not aiding in the defence of Mr Stephens because "all they were doing was having a little bit of a push and shove …"
The appellant's first ground of appeal raises two issues to which, he says, the Magistrate failed to give sufficient weight on the basis that they were not expressly referred to in the Magistrate's reasons for decision. The first is that the Magistrate failed to give any weight to the injury on the face of the appellant and the blood on his top. The second is that the Magistrate failed to give sufficient weight to the antecedents and good character of the appellant.
In respect to these issues Owen J in the case of Garrett v Nicholson (1999) 21 WAR 226 stated:
"At common law there was (and is) a duty on a decision maker required to act judicially or quasi-judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. I will repeat what I said on the general question of a duty to give reasons (with which White J agreed) in Frichot v Zalmstra, unreported; FCt SCt of WA; Library No 981291; 13 May 1998 at 14:
'The authority most often cited in this regard is the dicta of Moffitt P, in Pettit v Dunkley [1971] 1 NSWLR 376 at 387‑388. That passage is so well-known that I will not repeat it other than to say that it has been adopted in this court in cases such as Lloyd v Faraone [1989] WAR 154 at 163.
In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the Court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.
To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful. ... [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts.
It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured'."
In my opinion the Magistrate's reasons were adequate in this regard. It is true that he did not mention the cut on the appellant's chin when he made his findings. However, he did refer to the cut when he was summarising the appellant's evidence. Consequently it is clear that he was aware of it when he made his decision. The failure to expressly refer to it is not an appealable error.

I have seen the video record of interview and therefore seen the appellant as he appeared after the incident. As I have said, the cut is not visible. Given its small size and the lack of conviction in the appellant's manner when he said that he thought he received the cut when the appellant punched him, I am not surprised that the Magistrate did not find it necessary to refer to it specifically in his reasonings.
With respect to the failure of the Magistrate to expressly direct himself about the appellant's good character, I note that counsel did not submit to the Magistrate that this was a case which required such a direction. Neither is it the case that the Magistrate was obliged to direct himself concerning the effect of the appellant's good character. Where there is evidence of good character, a judicial officer retains a discretion whether a direction as to good character should be given: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [30] per McHugh J, [77] per Gummow J, [157] per Hayne J and [197] per Callinan J. This is particularly so when such a direction is not requested: Simic v The Queen (1980) 144 CLR 319. Further, it remains a moot point as to whether absence of prior convictions is synonymous with good character: Melbourne v The Queen at [108] per Kirby J.
The only evidence of the appellant's good character was his uncontradicted evidence that he had no prior convictions. It is not surprising, nor is it an error, that given the appellant's young age, 20, the Magistrate did not see the evidence as being such as to warrant him exercising his discretion to give himself a good character direction, particularly when defence counsel did not ask him to do so.
The appellant claims that he was wrongly deprived of having self defence raised as an issue. Section 248 of the Criminal Code states that it is lawful for a person to act in self defence when they are unlawfully assaulted and have not provoked the assault. As his Worship found that the appellant was not unlawfully assaulted there was no necessity for him to consider the issue of self defence. Indeed it would have been contrary to the section for him to do so. The complaint must be that the Magistrate erred in concluding that the appellant had not been assaulted. I have already dealt with this issue.

Ground of Appeal 1(b)

The second ground of appeal alleges that the Magistrate wrongfully concluded that the defence had breached the rule in Browne v Dunn (1893) 6 R 67 and thereby gave extra weight to the evidence of some of the prosecution witnesses when making his findings of fact.
It is correct to say that the Magistrate found that the appellant had breached the rule in Browne v Dunn. That rule being, in summary courts that defence counsel must put to prosecution witnesses the substance of the evidence that the defence proposes to lead from either the defendant or his witnesses on a material issue and which is different from the evidence‑in‑chief of the prosecution witness being cross‑examined: Garrett v Nicholson (supra) at 247 per Pidgeon J.
Defence counsel did not put to the prosecution witnesses some of the particulars of the alleged assault on the appellant by the complainant. I accept defence counsel's submissions that it was unnecessary to do so when the witness was a less important prosecution witness who denied seeing any assault by the complainant on the appellant.
I do not accept defence counsel's submissions that he could not have put Mr Stephens' account to the prosecution witnesses because it was not the same as the appellants. If defence counsel was aware of the evidence that Mr Stephens was to give and he decided to call Mr Stephens to give that evidence, then he cannot disclaim an obligation to put that evidence to prosecution witnesses on the basis that he did not intend to rely upon it. If, on the other hand, at the time he cross‑examined the prosecution's witnesses, counsel was unaware of the evidence that Mr Stephens was to give and therefore did not put it to the prosecution's witnesses the Magistrate was entitled to draw an inference that Mr Stephens' evidence was unreliable because it was a recent invention. In any event, at the hearing of the appeal the appellant's counsel did not rely upon the evidence of Mr Stephens. Thus, nothing turns on the fact that the Magistrate did not rely upon it either.
I am of the view that defence counsel was obliged to put to the complainant, in more detail than he did, the substance of the appellant's evidence. Defence counsel put to the complainant that he pushed and punched the appellant, that the appellant backed off and the complainant "kept going for him". That last phrase, even combined with the earlier propositions does not adequately convey the substance of the appellant's evidence regarding the nature of the alleged assault on him.
However, regardless of my view or the Magistrates' dicta regarding the rule in Browne v Dunn, the Magistrate expressly disclaimed reliance upon any consequences of a breach of the rule in making his findings. The appellant does not dispute that the Magistrate did this. The appellant, however, says that having regard to the Magistrate's finding that there had been a breach of the rule in Browne v Dunn, even an express statement by the Magistrate that he was not relying upon any such breach could not remove the inference that he had relied upon the breach in a manner that was adverse to the appellant's case. I cannot agree. If, as the Magistrate did, he said that he did not rely upon the breach in coming to his findings then I see no reason why I should go behind his express statement.
The learned Magistrate did err in saying that the appellant's evidence was a "recent invention". It was not a recent invention because his evidence was substantially the same as what he told the police during the videoed record of interview. Reading the Magistrate's reasons as a whole, I understand his Worship to be saying that he regarded the appellant's evidence to be "fanciful" and an "invention" in so far as he testified that there was a physical altercation between him and the complainant because his evidence was not logically consistent with the earlier events as the Magistrate had found them to be. In concluding that the error in the use of the word "recent" does not justify allowing this appeal I have taken into account that the learned Magistrate saw the video interview between the appellant and the police played during the hearing. In summarising the evidence, the learned Magistrate stated that in the video the appellant "put his version of events that he has principally maintained today". The learned Magistrate then summarised what the appellant said in the video. It is clear that the learned Magistrate was aware that the appellant's evidence was not a recent invention. His use of the word "recent" was a slip of the tongue that has not infected his reasoning.
Further, it is important to note that the learned Magistrate concluded that the appellant's evidence was fanciful and an invention because it did not accord with his findings and commonsense. It is not a case where he made that finding because of an alleged breach of the rule in Browne v Dunne.

Conclusion

For these reasons, the appeal is dismissed.