Graham Walter Fletcher v Stephen Noel Harris

[2005] ACTCA 44

GRAHAM WALTER FLETCHER v STEPHEN NOEL HARRIS [2005]
ACTCA 44 (9 November 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 22 - 2005
No. SCA 28 of 2004

Judges:        Crispin P, Gray and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:           9 November 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 22 - 2005
  )          No. SCA 28 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRAHAM WALTER FLETCHER

Appellant

AND:STEPHEN NOEL HARRIS

Respondent

REASONS FOR JUDGMENT

Judges:  Crispin P, Gray and Marshall JJ
Date:  9 November 2005
Place:  Canberra

IN THE SUPREME COURT OF THE     )          No. ACTCA 22 - 2005
  )          No. SCA 28 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRAHAM WALTER FLETCHER

Appellant

AND:STEPHEN NOEL HARRIS

Respondent

Judges:  Crispin P, Gray and Marshall JJ
Date:  9 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal against a decision of the Chief Justice.  On 8 May 2002, the appellant was charged upon information and summons with a number of offences.  The charges came before Magistrate Madden in the ACT Magistrates Court on 24 March 2004.  On 17 May 2004 his Worship (as he was then known) convicted the appellant of one charge of fail to leave premises and found the remaining charges proven.  In relation to the first charge, the appellant was fined the sum of $200 and was required to pay court costs and the criminal injuries compensation levy.  In relation to the second and third charges, he was released upon entering into a 12 month recognisance.  The fourth charge was dismissed.

1. The appeal to the Supreme Court was brought by an amended notice of appeal dated 27 September 2004 and was heard by the Chief Justice on 16 December 2004.  His Honour dealt with the appeal in relation to the two charges of obstruct Commonwealth official immediately, and ordered that the convictions and penalties be set aside.  His Honour reserved judgment in relation to the other charges and delivered a written judgment on 18 April 2005.  The conviction and penalty imposed in relation to the assault charge were set aside and a finding of not guilty substituted in relation to that charge.

1. In relation to the remaining offence of failing to leave premises without lawful excuse, his Honour said:

“Here the appropriate response was to record an adverse finding, but not otherwise to proceed to conviction.  However, given the ongoing nature of the Appellant’s grievance, a recognisance to be of good behaviour for 12 months would have been appropriate in the sum of $200.  Accordingly, the penalty is set aside and a recognisance in those terms imposed, but the information is, pursuant to section 404 (sic) of the Crimes Act, dismissed.”

1. The appellant has appealed against his Honour’s judgment.  It should be noted that, at the hearing before his Honour, the transcript of proceedings before the Magistrate was tendered, and exhibits, excluding a tape recording referred to by Mr Fletcher, were produced.

1. As I have mentioned, the incident relating to the charge of failing to leave premises occurred on 15 April 2002, when the police were called to the NRMA office at Woden after the appellant had allegedly refused to leave the premises when requested to do so by staff.  The police also attempted to have the appellant leave, but he continued to decline to do so.  He was then forcibly removed by police officers.

1. The Chief Justice, in addressing the matter, reviewed the relevant authorities in relation to the question of whether the appellant had had a lawful excuse to refuse to leave, and after referring to conversation allegedly recorded on an audio tape by Mr Fletcher, concluded that he had not.  Consequently, the Chief Justice found that the appellant had been rightly found to have committed an offence contrary to section 11(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 (Commonwealth).

1. In support of his appeal, the appellant argued that his Honour fell into appealable error by relying upon the transcript of evidence derived from what he described as the “alleged tape” said to have been recorded at the time of the incident.  He submitted that the tape should not have been admitted, either in the proceedings before the Magistrate or on appeal, because it was only a copy and was unreliable.

1. Having regard to the evidence as to the manner in which the tape was copied, it is my opinion that it was clearly admissible and his Honour was entitled to rely upon the evidence in question.  Furthermore, whilst the appellant has indicated that he is not confident that the tape is wholly accurate and has maintained that there is reason to believe that at least one track has been “fudged” by the removal of some material and the addition of some noises, he has not been able to positively assert that he did not say the words in question. 

1. In fact, there was ample evidence to establish that he did use the words in question, and in my view it was clearly open to the Chief Justice to be satisfied that the evidence before the magistrate had been sufficient to support the finding of guilt.  Accordingly, I would dismiss the appeal.

1. There is, however, a cross appeal which is based upon the contention that his Honour erred in applying the provisions of section 402 of the Crimes Act 1900 (ACT), which was the section to which his Honour clearly intended to advert. As is alleged in the notice of cross appeal, the offence was a Commonwealth offence and, accordingly, the appropriate section to apply in the circumstances was section 19B of the Crimes Act 1914 (Cwth).  That section provides that if the provisions stipulated in subparagraphs 19B(1)(a) and (b) are satisfied “the court may, by order:

(c)   dismiss the charge or charges in respect of which the court is so satisfied; or

(d)   discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he will comply with [various stipulated conditions.]”

1. For my part, I accept that his Honour did fall into error by inadvertently referring to the wrong section, and it is appropriate that the order that his Honour made, that is dismissing the charge upon entering into a recognisance, be set aside and in lieu thereof an order be substituted that the appellant be discharged upon entering into a recognisance in the sum of $200 to be of good behaviour for the balance of the period of 12 months, that is until 18 April 2006.

1. The order of the court is that the appeal be dismissed, the cross appeal be allowed, and the order dismissing the charge upon the appellant entering into a recognisance be set aside, and in lieu thereof it be ordered that the appellant be discharged in respect of the relevant offence upon entering into a recognisance in the sum of $200 to be of good behaviour until 18 April 2006.

[NOTE:  THE APPELLANT REFUSED TO SIGN THE RECOGNISANCE IMPOSED BY THE COURT OF APPEAL.  THE COURT LATER RECONVENED, AND AFTER SPEAKING WITH THE APPELLANT, WHO CONTINUED TO REFUSE TO SIGN THE RECOGNISANCE, THE COURT SET ASIDE THE INITIAL ORDER.  THE APPELLANT WAS CONVICTED AND FINED $200 IN LIEU OF THE RECOGNISANCE.]

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Crispin.

Associate:

Date:    22 November 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 22 - 2005
  )          No. SCA 28 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRAHAM WALTER FLETCHER

Appellant

AND:STEPHEN NOEL HARRIS

Respondent

Judges:  Crispin P, Gray and Marshall JJ
Date:  9 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree.

   I certify that the preceding paragraph numbered (13) is a true copy of the Reasons for Judgment herein of his Honour Justice Gray.

   Associate:

   Date:    22 November 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 22 - 2005
  )          No. SCA 28 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GRAHAM WALTER FLETCHER

Appellant

AND:STEPHEN NOEL HARRIS

Respondent

Judges:  Crispin P, Gray and Marshall JJ
Date:  9 November 2005
Place:  Canberra

REASONS FOR JUDGMENT

MARSHALL J:

1. For the reasons given by the learned President, I also would dismiss the appeal and allow the cross appeal.  I agree that the orders proposed by the learned President are appropriate ones to be made.

   I certify that the preceding paragraph numbered fourteen (14) is a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

   Associate:
   Date:    22 November 2005

Counsel for the Appellant:  Self represented litigant

Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  9 November 2005
Date of judgment:  9 November 2005