Grant v Carey
[2023] ACTSC 105
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Grant v Carey |
Citation: | [2023] ACTSC 105 |
Hearing Date: | 8 February 2023 |
DecisionDate: | 8 February 2023 |
Reasons Date: | 8 May 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [37] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – appeal from finding of guilt on charge of choking – whether Magistrate applied incorrect legal test – where respondent concedes error – error made out – appropriate disposition of appeal – matter remitted to Magistrates Court |
Legislation Cited: | Magistrates Court Act 1930 (ACT) pt 3.10, ss 128, 214 |
Cases Cited: | Ji v Stone [2023] ACTSC 54 |
Parties: | Ross James Grant (Appellant) Julian Carey (Respondent) |
Representation: | Counsel A McKenna (Appellant) S Janackovic (Respondent) |
| Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions | |
File Number: | SCA 28 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 29 June 2022 Case Title: Carey v Grant Court File Number: CC2020/4557 |
LOUKAS-KARLSSON J
Introduction
On 8 February 2022 I made the following orders:
(a)Appeal upheld.
(b)The order made by Magistrate Cook on 29 June 2022 in relation to CC2020/4557 is set aside.
(c)Matter remitted to Magistrate Cook for further hearing and decision according to law.
Reasons were reserved and reasons now follow.
Appeal
This is an appeal pursuant to part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
The appellant appeals from the finding of guilt on the charge of choking on the ground that the learned sentencing Magistrate erred in finding the appellant guilty by finding that recklessness on the part of the appellant made out the offence of intentionally and unlawfully choking, suffocating or strangling in contravention of s 28(2)(a) of the Crimes Act 1900 (ACT).
The appellant seeks that the conviction be set aside in relation to the charge of choking.
I note at the outset that the respondent conceded that an error of law has been established. The respondent, who I will refer to as the prosecution for the sake of clarity, advanced two alternative dispositions available to the Court:
(a)That the appeal should be dismissed and the finding of guilt remain in place notwithstanding the conceded error.
(b)If the primary position is rejected, the matter should be remitted to the Magistrates Court for determination according to law.
I will deal first with the asserted error, conceded by the prosecution, before outlining my reasons concerning the appropriate disposition of the appeal.
Nature of Appeal
An appeal under s 214 of the Magistrates Court Act is an appeal by way of rehearing which requires an appellant to show legal, factual or discretionary error on the part of the Magistrate: McFarlane v Van Eyle [2022] ACTCA 68 at [20], Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [18]. See also Ji v Stone [2023] ACTSC 54 at [143]-[156].
Section 218 Magistrates Court Act
Section 218 of the Magistrates Court Act provides the orders which this Court may make upon hearing and determining an appeal include:
(a)Confirming, reversing or varying the conviction, order, sentence, penalty or decision appealed from: s 218(1)(a);
(b)Giving a judgment, or making an order that, in all the circumstances, is appropriate, or refusing to make an order: s 218(1)(b); and
(c)Setting aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remitting the proceeding to the Magistrates Court for further hearing and decision: s 218(1)(c).
The Hearing
Following a defended hearing on 28-29 March 2022 before Magistrate Cook (“the Magistrate”), the appellant was found guilty of four charges in June 2022 including a charge of choke contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2020/4557).
The relevant events occurred on 19 April 2020. The prosecution case was that in the evening the appellant told the complainant to leave their home. The complainant retrieved a bag containing cannabis from the kitchen and went to the bedroom. The appellant followed the complainant into the bedroom. The appellant pushed the complainant onto her back on the bed and a physical struggle ensued over the cannabis which caused a scratch to the complainant’s wrist (Assault occasioning actual bodily harm – CC2020/7449). The prosecution case was that the appellant held the complainant down by the neck with his hand and later with his forearm with greater force (Choke – CC2020/4557) during which time the appellant punched the bed and punched the complainant at least twice to the head which caused bruising (Assault occasioning actual bodily harm – CC2020/7448). The complainant released the bag and stood up from the bed. The appellant grabbed the complainant by the arm and pushed her (Common assault – CC20/7450). The complainant then left the home.
At the commencement of the hearing, the appellant pleaded guilty to a statutory alternative of common assault (for the unlawful struggle over the cannabis – CC2020/7449) and to the common assault (for grabbing the complainant by the arm – CC2020/7450). The appellant denied choking and punching the complainant and maintained his pleas of not guilty with respect to the choking charge and the assault occasioning actual bodily harm charge.
Both the complainant and the appellant gave evidence at the hearing. The complainant gave evidence that the appellant held her around the neck. She gave evidence that the appellant’s left hand was around her throat and then he moved to press down with his forearm. Under cross examination the complainant rejected defence counsel’s assertion that the appellant never placed a hand on her throat.
The Magistrate summarised the appellant’s evidence in relation to the charge in the following terms:
My weight was definitely on her at times as I was trying to balance getting my feet to have purchase. My arm was definitely in that vicinity as it was going from the bed trying to get it back to the bag. It was passing over her chest. At no stage did I deliberately try and put any weight on her, my elbow on her and certainly not my hand.
Findings of the Magistrate
The Magistrate’s statements concerning findings in relation to the charge of choking included the following:
And on his own evidence that he wasn’t sure where his left forearm was moving conceding that it was close to her neck or throat of the complainant. That he was reckless in such circumstances, knowing the risk or the possibility that may, in fact, apply force directly to the complainant’s neck or throat area and certainly the upper chest area. That he was in a heightened state and that he was in pursuit to recover the bag and he pushed on regardless against the foreseeable circumstances.
(emphasis added)
The appellant does not challenge the findings of fact made by the Magistrate. It is submitted that the error lies in the application of the incorrect fault element to determine whether the appellant was guilty of the charge of choking.
Consideration regarding error
On a charge of intentionally and unlawfully choking another person, the prosecution must prove each of three legal elements beyond reasonable doubt:
a) The accused choked the complainant.
b) The choking was intentional.
c) The choking was unlawful.
The elements set out above, including “intention” as the fault element, were included on the first page of the “Prosecutor’s aide memoire pursuant to Practice Direction 1 of 2022 – para 32”. This document was handed up to the Magistrate at the commencement of the hearing.
It is clear that the proper legal test to apply was a test of intention not recklessness. At the risk of over-explanation of the obvious, this is clear from the following.
The relevant offence provision, s 28 of the Crimes Act, states “intentionally”:
28 Acts endangering health etc
…
(2) A person who intentionally and unlawfully—
(a) chokes, suffocates or strangles another person
…
is guilty of an offence punishable, on conviction, by imprisonment for— 5 years;
(emphasis added)
In my view the prosecution’s concession was properly made. I agree that error has been established. A finding of guilt for the choking charge required a finding of intention. His Honour erred in relying on recklessness as the relevant element.
Therefore, having determined that an error of law is established, the relevant issue to be determined is the appropriate disposition of this appeal. The question that now falls to be determined is to remit or not to remit?
To remit or not to remit?
The Magistrate’s findings of fact are critical to the determination of the question of what consequence ought to flow on appeal from the Magistrate’s application of an erroneous legal test. The question to resolve is whether the Magistrate’s findings relating to the charge of choking are explicit on the evidence. In my view they are not for the following reasons.
The appellant submitted that there is no uncertainty surrounding the Magistrate’s findings of fact. The appellant submitted that it is clear that his Honour made findings of fact that the appellant’s conduct was reckless and that this Court should enter a verdict of acquittal. In my view, it is not the case that the Magistrate accepted the appellant’s version of events. There is in fact an absence of explicit fact-finding concerning the choke on the part of the Magistrate.
The appellant further supported his submission by reference to the ex tempore remarks in respect of his Honour’s reasoning and decision on the choke charge which included the following:
The defendant, at no stage, said he’d punched or choked the complainant. As to the second aspect he may not intentionally have choked the [complainant], however, based on the complainant’s evidence and the defendant’s evidence that he may have been at least reckless at what he was doing with his hand or his forearm as he was struggling the bag in his own evidence, as I’ve previously read out. He admits that he was in the area of the neck and upper chest area and that it was moving around.
(emphasis added)
The appellant submitted that the Magistrate’s use of the term “may not intentionally” indicates that his Honour was unable to reject the appellant’s denials of using his hands. Having read the ex-tempore remarks, I am unpersuaded by this submission. I do not accept that this is the only interpretation available.
Further, the appellant referred to the following comments:
I’m satisfied the defendant had hung onto the bag in circumstances where [the complainant] was laying on the bed holding onto the bag and he was applying force to recover it.
And on his own evidence that he wasn’t sure where his left forearm was moving conceding that it was close to her neck or throat of the complainant. That he was reckless in such circumstances, knowing the risk or the possibility that he may, in fact, apply force directly to the complainant’s neck or throat area and certainly the upper chest area. That he was in a heightened state and that he was in pursuit to recover the bag and he pushed on regardless against the foreseeable circumstances.
I’m satisfied the complainant was consistent in her account under extensive cross-examination about the order of what had occurred. I accept there is limited evidence as to the injury on the neck or throat that is raised by the defendant and supported by the lack of medical evidence to support the same and the photographic evidence equally.
However, I am satisfied the force was not great but I am satisfied beyond a reasonable doubt it occurred having regard to the evidence provided by the complainant, both the father and the mother as I say, police the next day and her friend, Ms Clancy. Also, of course, I reject the defendant’s version of events and I accept that of the complainant on that particular aspect.
I do so because I found the defendant to be selective, inconsistent and unreliable on important pieces of evidence that I’ve earlier referred where his version of events in relation to the charge is different from that of the complainant. I reject his versions on the specific elements of the offence being established where they are contrary to the evidence of the complainant.
(emphasis added)
The substance of the Magistrate’s decision tends to suggest that the Magistrate had, in fact, accepted the complainant’s evidence concerning the choke, as can be gleaned from the above extract. The Magistrate stated that he accepted the complainant’s evidence and that he rejected the appellant’s evidence.
In my view the Magistrate’s acceptance of the complainant’s version of events is consistent with his finding of guilt with respect to the punches to the complainant’s face which were occurring simultaneously with the choking and which were denied by the appellant. The Magistrate made a finding of guilt with respect to the charge of assault occasioning actual bodily harm.
The appellant submitted that his Honour accepted the appellant’s evidence and placed obvious reliance on it in coming to the erroneous finding of recklessness. This submission in my view is not necessarily consistent with the magistrate’s acceptance of the complainant’s evidence as set out above.
Importantly for the issue of that I must resolve, the Magistrate did not outline the findings of fact which underpinned the “reckless choke” during the hearing or during the sentencing. The Magistrate’s fact finding is clouded by his Honour’s erroneous decision concerning the availability of recklessness as the relevant legal test. Discerning the relevant facts as found by the Magistrate for the application of the correct legal test of intention becomes somewhat amorphous in the circumstances of this case. In my view, attempts at divining the facts as found by the Magistrate for the purpose of applying the correct legal test on appeal amount to guesswork and speculation.
The prosecution’s initial primary position was that the appeal ought to be dismissed. Given the evidence before the Magistrate and his Honour’s acceptance of the complainant’s version of events, the prosecution submitted that an application of the correct legal test in relation to the choke charge would have inevitably led to a finding of guilt in any event. As stated above, I do not accept this submission.
In oral submissions, the prosecution correctly noted the following at T23.21-24:
I cannot submit to your Honour that the Magistrate has made a positive explicit finding that the choke is constituted by the complainant's version of events. I am simply saying it's unclear.
There is in my view a lack of clarity concerning the fact finding at first instance. That lack of clarity leads inexorably to the conclusion that an order for remittal to the Magistrate is the appropriate course.
In the unique circumstances of this case I do not consider the fragmentation of the proceedings to be an issue in the disposition of this matter. The Magistrate in this case is uniquely placed to apply the correct legal test to the facts as he finds them to be having seen the complainant and appellant give evidence and having heard all the evidence in this case.
For the foregoing reasons it is appropriate that there be an order of remittal to the Magistrate’s Court for determination according to law.
Orders
It is for these reasons that the following orders were made on 8 February 2023:
(d)Appeal upheld.
(e)The order made by Magistrate Cook on 29 June 2022 in relation to CC2020/4557 is set aside.
(f)Matter remitted to Magistrate Cook for further hearing and decision according to law.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 8 May 2023 |
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