Gordon v Barry

[2009] WASC 280

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GORDON -v- BARRY [2009] WASC 280

CORAM:   McKECHNIE J

HEARD:   3 SEPTEMBER 2009

DELIVERED          :   3 SEPTEMBER 2009

FILE NO/S:   SJA 1032 of 2009

BETWEEN:   ALISTAIR LINDSAY GORDON

Appellant

AND

GRAEME JOHN BARRY
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE J G MUSK

File No  :MI 6225 of 2008, MI 6226 of 2008

Catchwords:

Criminal law - Magistrate's reasons - Irrelevant considerations affecting assessment of credibility

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed
Order for retrial

Category:    B

Representation:

Counsel:

Appellant:     Mr S Vandongen

Respondent:     Ms L White

Solicitors:

Appellant:     Jeremy Noble

Respondent:     State Solicitor for Western Australia

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

Nil

1. McKECHNIE J:  On 19 March this year in the Midland Magistrates Court, the appellant stood trial on two counts of assault.  At the conclusion of the trial, and after giving her reasons, the magistrate convicted the appellant of each charge.

2. The appellant appealed against that conviction on three grounds as follows: 

   (1)There had been a miscarriage of justice in that the Magistrate failed to apply the defence of honest and reasonable but mistaken belief pursuant to section 24 of the Criminal Code;

   (2)That there had been a miscarriage of justice in that the learned Magistrate erred in taking into account an irrelevant consideration, namely that the older of the two complainants had not been charged with a criminal offence, and

   (3)The learned Magistrate erred in law in failing to consider whether the prosecution had proved beyond reasonable doubt that the Appellant's act of touching Ms Lewis' foot with his knee was an act that occurred independently of the exercise of his will.

3. This appeal must succeed in relation ground 2 which renders it unnecessary to deal with grounds 1 and 3.  Ground 1 raises interesting and difficult legal questions which probably should await another day because it is difficult, with respect, to know on what basis the magistrate ultimately rejected questions of provocation or whether she found that there was or was not a belief held by the appellant as to the act of driving by the complainant towards his children.

4. This was a contentious issue in the trial.  The complainant said that she had driven slowly and when she saw the children, stopped.  She also said, and this was confirmed by other witnesses, that at the time she had stopped, the appellant approached her before shortly doing the acts which the prosecution asserted.  He said: 'You tried to run my children over'.  He repeated that in evidence.  There was some support for it in the evidence of his son which the magistrate did not deal with in any particular way.

5. As a result there is really little factual basis upon which one can determine how the magistrate dealt with the question of the appellant's belief; whether she considered and rejected it because the appellant had no belief; or it was not a reasonable belief; or was not an honest belief.

6. Ground 2 must succeed.  This was a case involving credibility.  Although certain matters were admitted there was a conflict as to matters, and the magistrate had to determine the conflict and decide beyond reasonable doubt that the prosecution case should be accepted and that the defence case should be rejected before she could convict.

7. There were a number of matters which led her to accept the prosecution case.  The complainant had some previous history of dishonesty but the magistrate discounted that in terms of credibility in this case as she was entitled to.  The magistrate was also entitled to take into account the driving and come to a conclusion.  She said:

   I accept her [the complainant's] version.  She did not drive at them.  She saw them and stopped.  She was leaving the scene after a verbal altercation.  She did not want - she wanted to end it at that point.  (ts 101)

8. That is the conclusion the magistrate reached.  Before reaching that conclusion the magistrate, speaking of the appellant, said:

   He knew how to follow this up, especially as he got angry, you think, on his version.  He's kept his cool all the way through.  She can rant and rave and swear.  He kept his cool, she drives off, he thinks it's deliberate.  (ts 100)

9. I interpose to say that the appellant's belief in the deliberate nature of the driving is all important.  The magistrate continued continued:

   Nobody's hurt but he loses his cool and does what he does and in doing so he upsets the two children in the car very much.

   And that is an issue in relation to provocation. 

10. She continues:

    [B]ut the fact that there appears to have been - the fact that there appears to be no follow up with the police, that is she wasn't charged on this version and that she deliberately drove at these two boys who had to jump out of the way to stop being hit.  She's not charged with anything and on that evidence one would have thought that she would be, because we are talking seriously dangerous behaviour here.

11. Ms White, for the respondent, quite properly concedes that last observation is an irrelevant consideration.  She argues, however, that there is no miscarriage of justice because there are other bases for conviction and that this aspect was just part of the reasoning process. 

12. The difficulty is that I am unable to determine what part this irrelevant consideration played in the magistrate's decision.  It appears that part of the magistrate's reasons for rejection of the appellant's version was because the police did not charge the complainant with dangerous driving and therefore it followed the complainant was not driving dangerously.

13. That finding is one of the central planks of the magistrate's reasoning towards the finding of guilt.  Because it is one of the central planks and is, as conceded, an irrelevant one, it is impossible for me to say there has been no substantial miscarriage of justice.  The result is that the appeal must be allowed on that ground.  I consider that the error affects both convictions because the accused's credibility was in issue and it is impossible to say what part this consideration played in rejection of the appellant's evidence that he did not deliberately come in contact with the second complainant.

14. This was a case entirely about credibility and when there is a significant error in the judging of credibility, the result must be that the appeal is allowed, convictions set aside and the matter be sent back for retrial.