Greenwood v Barlee
[2018] ACTCA 62
•14 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Greenwood v Barlee |
Citation: | [2018] ACTCA 62 |
Hearing Date: | 5 November 2018 |
DecisionDate: | 14 December 2018 |
Before: | Burns, Loukas-Karlsson and Charlesworth JJ |
Decision: | See [36] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from ACT Supreme Court – primary judge dismissed an appeal from a conviction recorded against appellant in the Magistrates Court – offence of assault occasioning actual bodily harm – proceedings before primary judge – present appeal – whether appellant demonstrated error by primary judge in present appeal |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Magistrates Court Act 1930 (ACT) ss 25, 37 |
Cases Cited: | Burridge v Chief Magistrate [2016] ACTSC 332; 317 FLR 26 Faris v Coulon [2017] ACTSC 114 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | James Greenwood (Appellant) Cassandra Jayne Barlee (Respondent) |
Representation: | Counsel Ms J Keys (Appellant) Ms R Christensen (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 4 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 5 February 2018 Case Title: Greenwood v Barlee Citation: [2018] ACTSC 46 |
THE COURT:
This is an appeal from a decision of Mossop J made on 5 February 2018 dismissing an appeal from a conviction recorded against the appellant in the Magistrates Court on 2 May 2017 for an offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).
The charge arose out of an incident that occurred around 1 am on 19 February 2015. On the prosecution case the victim, Abdul Aqel, a taxi driver, received a booking for a pick up on Wattle Street in Lyneham in the Australian Capital Territory at about 12.30 am that morning. He drove to the designated pick up location, and observed two males in a driveway. As he approached, one of the males walked away, while the other, the appellant, got into the taxi. He directed Mr Aqel to drive him to Franklin. An exchange then occurred between Mr Aqel and the appellant in which he asked for a deposit of $20. The appellant refused and told Mr Aqel that he would pay him in cash at his destination. Mr Aqel then began to drive away with the appellant in the taxi, but the appellant began shouting and acting aggressively. Mr Aqel feared for his safety and activated the duress alarm in the taxi. The taxi came to a stop and the appellant got out of the taxi, turned around and struck Mr Aqel twice to the area of his left eye with a closed fist. Mr Aqel drove away and stopped at a nearby bus stop. He noticed that his eye was swollen and he could see blood in the corner of his eye. He retrieved an ice pack from the boot of the taxi and held it to his eye. He suffered swelling to his eye which recovered over a number of days. He then drove his taxi to the suburb of Nicholls where he was met by police who took photographs of his face.
Another taxi driver, Hassan Ali, gave evidence that he was driving a taxi in the same area on the morning of 19 February 2015 and he had seen a person punching Mr Aqel while Mr Aqel was in his taxi on Macarthur Avenue. The assailant then ran away. Mr Ali said that he stopped his taxi and went and spoke to Mr Aqel. He noted that Mr Aqel appeared distressed and that one of his eyes was watering.
The appellant was identified as the alleged assailant. On 24 February 2015 he participated in a recorded interview with police in which he claimed to have little recollection of the early hours of 19 February 2015 due to intoxication. He said that he had gone to Civic where he and a number of friends had consumed alcohol. He told police that he believed he walked from Civic to his home in Franklin and that “I don’t know where the taxi comes into it”. When shown photographs of the alleged assailant captured by a security camera in the taxi, the appellant agreed that he was the person shown in the photographs, but continued to claim that he had no recollection of any involvement with a taxi in the early hours of 19 February 2015.
A summons was issued to the appellant requiring him to appear in the Magistrates Court with regard to a charge of assault occasioning actual bodily harm. On 29 September 2015 the appellant pleaded not guilty to the charge and the matter ultimately proceeded to a hearing before a Magistrate on 11 October 2016 with an estimate of three hours. Sadly, and for reasons that are not clear, that estimate was erroneous. The hearing extended over four days between 11 October 2016 and 6 March 2017. In the course of that hearing the appellant gave evidence that after his interview with police he was able to remember the relevant events. He denied punching Mr Aqel and said that all that occurred was a brief scuffle when Mr Aqel grabbed the appellant’s arm as the appellant attempted to get out of the taxi. On 28 April 2017 the Magistrate found the offence proved, and on 2 May 2017 she proceeded to convict and sentence the appellant.
The proceedings before Mossop J
The appellant appealed to the Supreme Court against the conviction. Leaving aside grounds concerning technical issues, on which the appellant was unsuccessful and from which no appeal has been brought in this Court, the grounds of appeal in the proceedings before Mossop J effectively alleged that the Magistrate had erred in accepting the evidence of Mr Aqel and the eyewitness, Mr Ali, and in rejecting the evidence given by the appellant. The appellant argued before Mossop J that, on the totality of the evidence, the Magistrate should have entertained a reasonable doubt as to his guilt.
In dismissing the appeal, Mossop J correctly identified the principles which governed the hearing of the appeal. His Honour referred to the following passage in the judgment of Refshauge J in Peverill v Crampton [2010] ACTSC 79:
24. Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
Mossop J also stated that in such an appeal, the Court must have regard to the significant benefit that the Magistrate at first instance had by reason of having seen and heard the evidence during the course of the trial: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at [25].
Despite having previously told police in the course of his interview that he had no recollection of any involvement with a taxi on the morning of 19 February 2015, the appellant gave evidence in the proceedings before the Magistrate that was consistent with his innocence. He told the Magistrate that there had been an argument between himself and the taxi driver over the taxi driver demanding $20 before commencing the journey. The appellant said that he then told the taxi driver “[n]o, I’ll walk”, and started to get out of the taxi. He said that the taxi driver then grabbed him by his right arm, and after a short scuffle he got out of the taxi.
10. Mossop J noted that the Magistrate found the evidence of Mr Aqel and Mr Ali to be credible. It was common ground that none of the photographs taken by the taxi security cameras had captured photographs of any assault, although they did support Mr Aqel’s evidence that after the alleged assault he got out of the taxi, obtained an icepack, and then applied it to his eye. Mossop J observed that it was uncontroversial that there was a period of three and a half minutes during the relevant period where there were no photographs available. The general manager of Aeriel Taxis gave evidence before the Magistrate concerning the security cameras located within the taxi, and said that he was not able to explain why there was a three and a half minute gap in the photographs. We should note that it was accepted that Mr Aqel could not have in any way manipulated the closed circuit camera system so as to remove these photographs.
11. A ground of appeal in the proceedings before Mossop J alleged that the Magistrate had erred in finding that the evidence of Mr Aqel and Mr Ali was consistent. His Honour observed that it was important to note that the acceptance of the evidence of these witnesses involved consideration of a combination of the substance of their evidence and the manner in which they gave it. His Honour then referred to the following passage of the judgment of Murrell CJ in Faris v Coulon [2017] ACTSC 114 (Faris v Coulon), regarding the principles applicable to the review of findings of fact on appeal (at [9]):
The principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge are well settled and were recently repeated by the Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [132]. There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge’s factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find that the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.
12. Mossop J then said “on the central issue in the case, the evidence of Mr Aqel and Mr Ali was consistent. Both gave evidence of the appellant punching Mr Aqel.” His Honour acknowledged that there were some inconsistencies between the evidence of Mr Aqel and that of Mr Ali, including whether the appellant was inside or outside the taxi when punching Mr Aqel and the overall duration of the event. His Honour noted that Mr Ali had only been located and given a statement to police in July 2016, a year and five months after the incident. Mossop J acknowledged that there were certainly differences between the evidence of Mr Aqel and Mr Ali, both as to whether the appellant was in the taxi or outside it when the punches were thrown, and also in that Mr Ali’s evidence gave the impression of a longer incident than that described by Mr Aqel. His Honour, however, considered the independent evidence of Mr Ali provided important corroboration for the evidence of Mr Aqel on the vital issue of whether Mr Aqel had been punched by the appellant. His Honour said that looking at the substance of the evidence given, “there were no glaring discrepancies, inadequacies or material inconsistencies which would indicate that the evidence lacked probative force such that this Court would conclude that it should not have been accepted or relied upon.” His Honour concluded that it was open to the Magistrate to make the findings that she did with regard to the evidence of Mr Aqel and Mr Ali.
13. Another important ground of appeal in the proceedings before Mossop J alleged that the Magistrate erred in rejecting the appellant’s evidence. His Honour noted that the Magistrate had found “incredible” the proposition that five days after these events the appellant could not recall anything regarding these events due to his intoxication on 19 February 2015, but some two years later was able to recall important details of what occurred in the taxi. Mossop J acknowledged that a resolution of conflicting evidence based on credibility does not immunise the conclusion from challenge, but observed that the Magistrate’s decision to reject the appellant’s evidence was not contrary to any “incontrovertible facts or uncontested testimony” or “glaringly improbable or contrary to compelling inferences”, citing Fox v Percy at [28]-[29].
Mossop J noted that there was a substantial body of evidence which was inconsistent with the appellant’s version of events. This included the evidence of Mr Aqel and Mr Ali, and the photographs of Mr Aqel’s injury. The appellant’s evidence also had significant difficulties in that he was admittedly intoxicated at the relevant time, had previously denied having any knowledge of any interaction with a taxi driver on the morning of 19 February 2015 and that his version of events did not accord with the likely behaviour of a person in his situation. There was no explanation or reason as to why Mr Aqel would have grabbed at the appellant as he tried to leave the taxi. In contrast, his Honour said, the evidence given by Mr Aqel did not suffer from incongruities of this nature. His Honour concluded, at [86]:
Particularly having regard to the advantage available to the magistrate in seeing and hearing the witnesses given [sic] evidence, it was, in my view, reasonably open for her Honour to find the appellant’s version incapable of belief and she was entitled to reject it. Having rejected his evidence, her Honour appropriately noted she was still required to be satisfied beyond a reasonable doubt on the prosecution case.
The present appeal
15. The appellant pleaded a multitude of grounds of appeal from the decision of Mossop J. None of them have any merit. Before addressing them individually, we will observe that the appellant apparently had no understanding of the nature of the present appeal. This appeal is an appeal from the decision of Mossop J, not an appeal from the decision of the Magistrate. The appellant, in these proceedings, must demonstrate error by Mossop J. He does not demonstrate such an error simply by asserting that Mossop J should have found in his favour on the appeal from the Magistrate. In many respects, the present appeal is simply an attempt to repeat the submissions made before Mossop J. The need in proceedings such as the present to identify error on the part of a single judge on an appeal from a decision of the Magistrates Court was emphasised by this Court in McElholum v Hughes [2016] ACTCA 37. We will now address the individual grounds of appeal advanced by the appellant.
16. Ground 5 (d) asserted that Mossop J erred in finding “the Statement of Facts was not Court process which was required to be before the Magistrates Court or this Court”. The appellant asserted that the absence of a Statement of Facts allowed Mossop J to assert the following erroneous facts:
(i)“the informant alleged that an argument ensued and the appellant struck Mr Aqel twice in the left eye with his right fist”;
(ii)the “prosecution case was that the assault occurred during the three and a half minutes when there were no photographs taken”.
17. In order to understand this ground of appeal it is necessary to say something more about the way in which the proceedings were conducted before Mossop J. An application was made by the appellant to lead fresh evidence in the appeal before Mossop J. This included the Statement of Facts prepared by the Australian Federal Police in relation to the charge against the appellant. The submission made before Mossop J was not that the Statement of Facts should be admitted as further evidence on the appeal, but that it was the “information” within the meaning of ss 25 or 37 of the Magistrates Court Act 1930 (ACT) and hence was a court document relevant to, and defining the scope of, the proceedings. Mossop J quite correctly observed that this application was misconceived, citing Burridge v Chief Magistrate [2016] ACTSC 332; 317 FLR 26 at [38]-[47]. We agree with his Honour that the police Statement of Facts does not constitute the “information” upon which the proceedings in the Magistrates Court were commenced. As his Honour observed, it was not a document which was before the Magistrates Court as an exhibit or court process.
18. In the proceedings before this Court, the appellant did not advance any further oral argument in support of this ground. We will nevertheless deal with it. Mossop J was clearly correct in stating that the Statement of Facts was not court process which was required to be before the Magistrates Court, or the Supreme Court on the initial appeal. As we understand the appellant’s submission, he asserted that the evidence which was placed before the Magistrates Court differed from the allegations in the Statement of Facts with regard to the number of punches thrown by the appellant and as to precisely when during the interaction between Mr Aqel and the appellant the assault occurred. The appellant was quite entitled in the proceedings before the Magistrate to explore how the author of the Statement of Facts came by the assertions of fact set out in the Statement of Facts, with a view to demonstrating that either or both of Mr Aqel and Mr Ali had made a prior inconsistent statement. It is, however, incontrovertibly incorrect to assert that the Statement of Facts was the information upon which the proceedings was commenced. We can see no error in the way in which Mossop J dealt with the application to adduce further evidence. This ground of appeal must fail.
19. Ground 5 (e) alleged that Mossop J erred in making certain findings of fact regarding the evidence of Mr Aqel. This is an example of the appellant’s misunderstanding of the nature of the present appeal. The first “finding of fact” referred to by the appellant was nothing more than a recitation by Mossop J of the evidence given by Mr Aqel before the Magistrates Court. The recitation of the evidence was not a finding of fact made by Mossop J. The second finding of fact referred to by the appellant was the statement by Mossop J at [78] that “there was nothing in [Mr Aqel’s] statement which indicates (either alone or in combination with other documentary material) that the magistrate erred in accepting his oral evidence”. This also is not a finding of fact by Mossop J. This was an assessment by his Honour based upon the test applicable to interfering in findings of fact on an appeal by way of rehearing: see Fox v Percy. The final “finding of fact” referred to by the appellant in this ground relates to [13] of Mossop J’s decision where he recites that in cross‑examination Mr Aqel denied the suggestion that he had grabbed the appellant as the appellant exited the taxi. This again is not a finding of fact by Mossop J. It is a recitation of the evidence that was given in the Magistrates Court. The appellant did not suggest in the course of the present appeal that it was not an accurate reflection of that evidence. This ground of appeal must also fail.
20. Ground 5 (f) alleged that Mossop J erred when he “found” at [66] of his judgment that “looking at the substance of the evidence given, in particular by Mr Aqel, there were no glaring discrepancies, inadequacies or material inconsistencies … which would indicate that the evidence lacks probative force such that this Court would conclude that it should not have been accepted or relied upon”. The appellant submitted that Mossop J had failed to have regard to material inconsistencies about the assault and the manner in which it occurred, between Mr Aqel’s statement to police on 27 February 2015 and his evidence on 11 October 2016. There were a small number of alleged discrepancies. In his statement, Mr Aqel said that the appellant punched him while the appellant was seated in the front passenger seat, which the appellant took to be an assertion that only one punch had been delivered. In his evidence, Mr Aqel said he was punched twice. Secondly, in evidence in chief Mr Aqel said that the appellant was seated in the front passenger seat when the punches were delivered, whereas in cross-examination he said that the punches were delivered after the appellant got out of the taxi, with the appellant leaning back into the taxi to deliver the blows. Mr Aqel’s police statement was tendered as further evidence in the appeal before Mossop J. The relevant part of the statement is [13] which says “[a]t this time I have stopped the car, the male opened the passenger door to get out. The male turned around and struck me on my left eye with his right hand closed in a fist causing my head snap to the side”. In proceedings before the Magistrate, Mr Aqel gave evidence that he had not been asked by police at the time he gave his statement how many times he had been punched. In addition, the relevant paragraph of Mr Aqel’s statement does not unequivocally say that the appellant was seated in the taxi at the time he punched Mr Aqel. Mossop J was clearly aware of the contents of the statement of Mr Aqel as he allowed the appellant to tender that statement in the course of the appeal. The simple fact is that there was nothing of sufficient cogency in that material to cause his Honour to take a different view of the evidence than that which had been formed by the Magistrate. There can be no suggestion that Mossop J applied the wrong test in determining whether to set aside the findings of fact made by the Magistrate. For our part, we respectfully agree with his Honour.
Also encompassed by this ground is a complaint that Mossop J failed to properly consider discrepancies between the time when Mr Aqel said he activated the duress alarm in the taxi, and the time recorded in the security camera photos. Mossop J did in fact consider what information could be derived from the security camera photographs at [73] to [74] of his judgment. His Honour accepted that there were uncertainties occasioned by the photographs, and particularly by the absence of photographs for a period of three and a half minutes at around the relevant time. His Honour found that those uncertainties were not such as to require the Magistrate to not accept the evidence of Mr Aqel or Mr Ali.
22. A considerable amount of time was spent in the hearing of this appeal with counsel for the appellant taking the Court to the series of photographs captured by the security cameras within the taxi, and attempting to demonstrate discrepancies between the times recorded on the photographs and events as described by Mr Aqel. This ultimately concluded with the appellant’s counsel embracing the absurd proposition that Mr Aqel must have pressed the duress alarm in the taxi before the appellant even got into the taxi. Much of this submission was based upon the proposition that the camera system in the taxi was operating properly. There was good reason to believe that this was not the case because of the absence of photographs for a three and a half minute period, which should not have occurred had the camera system been operating properly. A comparison between the evidence of Mr Aqel and the evidence of the taxi shift supervisor as to the time when the duress alarm was activated is quite consistent. The shift supervisor was able to hear what took place in the taxi after the duress alarm was activated. In a document headed ‘Contact Centre Supervisor Shift Report’, he recorded that at “0059” the alarm was raised by activation of the duress button, and then records “Argument over money. Pax [semble, passenger] claiming they have cash in wallet. Refusing to give money up front. Heard sounds of a scuffle. Called the police.” No error has been demonstrated in the way in which Mossop J dealt with this issue.
23. The final complaint encompassed by this ground is that Mossop J erred in failing to consider whether the “various accounts” given by Mr Aqel of the assault, either alone or in combination with the evidence from the security photographs, gave rise to a reasonable doubt. This is simply incorrect. Mossop J gave close attention to the evidence of Mr Aqel and the evidence concerning the security photographs. At [80] of his decision, Mossop J concluded that when considered as a whole, the documentary material did not indicate that there was any error in the Magistrate accepting the evidence of Mr Aqel or Mr Ali, and finding the offence proved.
24. Ground 5 (g) alleged that in accepting Mr Aqel’s evidence, both Mossop J and the Magistrate “appear to have been influenced” by “improper views” expressed by the prosecution during Mr Aqel’s cross-examination. In cross-examination, counsel for the appellant sought to put to Mr Aqel that as the appellant was getting out of the taxi Mr Aqel grabbed his arm and restrained him from leaving the taxi. The following then ensued:
[MS KEYS:] I put it to you that when he was getting out of the taxi you grabbed him by the arm and restrained him from leaving the taxi?---Even what I said that this holy book that - - -
HER HONOUR: No, Mr Aqel?---Yes.
The question was, and the defence counsel is suggesting to you that what actually happened was that the passenger was getting out of the car and you grabbed hold of his arm to restrain him?---No.
Do you agree with that?---No.
MS SKVORTSOVA: Your Honour, I think what Mr Aqel is trying to express is that he has taken an oath.
HER HONOUR: Yes.
MS SKVORTSOVA: And he is taking that oath very seriously, and I think that was just a way to express that in answer to my friend’s proposition that he lied under oath about what happened to him. Just a few matters arising out of re-examination.
HER HONOUR: So does that finish - - -
MS KEYS: I haven’t finished.
MS SKVORTSOVA: Sorry. My mistake.
HER HONOUR: I think she was only sitting down because I was speaking.
MS KEYS: Yes.
HER HONOUR: Which is the convention.
25. It may perhaps be described as unwise on the part of the prosecutor to have attempted to interpret what the witness was endeavouring to say to the Magistrate in this extract. But we observe that no objection was taken by counsel for the appellant at that time. It is also absurd to suggest that the Magistrate would have been improperly influenced by this minor incident. The witness was referring to the fact that he had taken an oath. This was well known to the Magistrate. Clearly the witness was purporting to tell the truth, a fact which was also well known to the Magistrate. Exactly how Mossop J was supposed to have been influenced by this minor incident was never explained by the appellant. There is simply no merit to this submission.
Also encompassed by this ground is an allegation that both Mossop J and the Magistrate appear to have been influenced by an interpretation of the evidence of Mr Aqel suggested by the Magistrate in the following extract from the transcript of the hearing on 11 October 2016:
MS KEYS: You don’t say in your statement that you were hit more than one time?---Sorry?
Is that correct?---Yes, but no-one told me. But I know that, but, you know, I did not say, but I said that, yes, punched - hit me, punched me, but someone at that time they did not told me that how many times did he punch you. Because today there was a question and told me how many times did he punched you. I said to him, “Twice, one after, you know.”
HER HONOUR: Perhaps you could just try and explain that. I think he’s trying to say that the police didn’t ask him how many times. I think that that’s what it is. Perhaps you can actually extrapolate on that.
27. It is very clear from this extract that the Magistrate was inviting counsel for the appellant to try to clarify the answer that counsel had received to her question. There is nothing objectionable about such a course. The Magistrate was the tribunal of fact, and it was important that she understand the evidence. How the Magistrate, let alone Mossop J, could have been “influenced by” this statement remains a mystery.
Ground 5 (h) alleged that Mossop J erred by not overturning the Magistrate’s finding that the appellant’s evidence was not credible. The appellant complained that the Magistrate had failed to take into account the actual questions and answers in the original police interview on 24 February 2015. This ground was not addressed by the appellant either in his written submissions or in his oral submissions before this Court. In any event, it is entirely without merit. In his interview with police the appellant unequivocally stated that he had no recollection of any interaction with a taxi or taxi driver on the morning of 19 February 2015, and that he was highly intoxicated at that time. With respect, we entirely agree with the Magistrate that the appellant’s assertion that he had subsequently recalled significant and important details of the events of that morning was simply unbelievable. The exact nature of any error alleged on the part of Mossop J, other than not accepting the appellant’s submission that he should overturn this finding of fact, was never articulated by the appellant.
29. Also within this ground is a complaint that the Magistrate’s rejection of the appellant’s evidence was influenced by views expressed by the prosecutor which conveyed her opinions on the merits of the appellant’s evidence. As far as we can understand this ground, it refers to an attempt by the prosecution in the proceedings before the Magistrate to cross‑examine the appellant on the contents of a document which was referred to as representations made on behalf of the appellant by his parents. It was quite appropriate for the prosecution to question the appellant about this document, and whether any version of events set out in the document was based upon his description of events to his parents. There is nothing in that portion of the transcript referred to by the appellant in this ground of appeal to suggest that the prosecutor had improperly put her opinion about the evidence to the Magistrate. In any event, in giving her reasons for rejecting the evidence of the appellant the Magistrate did not refer to the contents of this document, or cross‑examination of the appellant on the contents of the document. The inevitable inference is that it played no part in the Magistrate’s determination to reject the evidence of the appellant.
30. Ground 5 (j) alleged that Mossop J erred by failing to overturn the finding of the Magistrate to reject the appellant’s evidence and to accept the evidence of Mr Aqel and Mr Ali. In particular, the appellant submitted that the Magistrate’s finding that the appellant’s evidence was incredible was not based on any advantage of seeing and hearing the appellant, but was based on misunderstandings about the evidence of the appellant and his interview with police. He further complained that there were material inconsistencies between the versions of events given by Mr Aqel, and that the evidence of Mr Ali did not corroborate the evidence of Mr Aqel. This is simply a restatement of the complaints made in previous grounds concerning the Magistrate’s finding with regard to the credibility of the prosecution witnesses and her rejection of the evidence of the appellant, and the way in which those issues were dealt with by Mossop J. For the reasons which we have already given, this ground is without merit.
31. Ground 5 (k) alleged that Mossop J erred by finding that the documentary material did not indicate that there was any error in the Magistrate accepting the evidence of Mr Aqel and Mr Ali and finding the offence proved. The basis of this complaint is a reiteration of the appellant’s earlier complaint that Mossop J failed to have proper regard to the security camera photographs. For the reasons we have given this submission should not be accepted. The appellant also complained that Mossop J had fallen into error when he stated, at [30], that “[t]he evidence did not disclose any reason why there were no photographs during that period”, referring to the three and a half minute period. During the course of this appeal we were not taken by the appellant to any evidence which would suggest that this was an error by Mossop J. The appellant further complained that Mossop J had erred in disregarding inconsistencies between the evidence of Mr Aqel and documentary material because Mr Aqel was not cross-examined on that issue. This complaint is a reference to [77] of the decision of Mossop J:
The appellant contended that the shift supervisor’s report was inconsistent with Mr Aqel’s evidence because it showed a dispute about money occurring after the duress button was pushed, whereas Mr Aqel said he set off the duress alarm after the appellant said he would kick Mr Aqel out and drive himself. Mr Aqel was not cross-examined about the extent of conversation before and after the duress alarm was pushed. As a consequence, it is not possible to say that there was an inconsistency with Mr Aqel’s evidence. The absence of full exploration of this time in the evidence did not compel the magistrate to have a reasonable doubt about the commission of the offence, nor does it cause me to have such a doubt.
32. We can see no error in the way in which Mossop J has dealt with this issue. Counsel for the appellant did not take us to any evidence before the Magistrate which demonstrated that Mossop J was incorrect in stating that Mr Aqel was not cross-examined about the extent of conversation between himself and the appellant before and after the duress alarm was pushed. In the absence of demonstration that this statement was incorrect, his Honour’s conclusion that no inconsistency in the evidence of Mr Aqel on this issue had been demonstrated was inevitable.
33. Ground 5 (l) alleged that Mossop J had erred in applying the decision in Faris v Coulon. The appellant sought to distinguish the present case from Faris v Coulon on the basis that in the present case Mr Aqel’s own evidence contained inconsistencies in relation to the central facts of the assault, whereas in Faris v Coulon there had been inconsistencies in the evidence of different police officers with regard to matters of detail. Even if the appellant is correct about the factual differences between Faris v Coulon and the present case, the principle remains the same. Mossop J accurately referred to that principle at [62] of his decision. The appellant also submitted that the principle expressed in Faris v Coulon did not apply to the proceeding against him because in Farisv Coulon the Magistrate was satisfied beyond reasonable doubt that the assault had occurred in the manner described by police, whereas, in the present case, the appellant submitted that the Magistrate made no finding that she was satisfied beyond reasonable doubt that the assault occurred in a manner consistent with any of the versions described by Mr Aqel. This is simply factually incorrect. The Magistrate found the offence proved based upon the evidence given by Mr Aqel in the Magistrates Court proceedings. In any event, this supposedly factual difference between Faris v Coulon and the present case does not affect the application of the principle in Faris v Coulon as expressed by Mossop J to the appeal before him.
34. Finally, ground 5 (c) alleged that the evidence did not establish the offence was proven beyond reasonable doubt and consequently the appellant’s conviction was a miscarriage of justice. We take that to be an assertion that the finding of guilt by the Magistrate was unsafe and unsatisfactory, and that Mossop J should have concluded that it was unsafe and unsatisfactory. In Wyper v The Queen; R v Wyper [2017] ACTCA 59, this Court summarised the relevant authorities and principles applicable to a ground of appeal seeking that a verdict be set aside as unsafe and unsatisfactory. This Court stated at [51]‑[52]:
51. When considering whether it was “open” to a jury to convict, an appellate court must be careful, as was emphasised in R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]–[66]:
[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial…
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
(footnotes omitted)
52. At [38] of Cruz v The Queen [2017] ACTCA 48, this Court said:
… A key qualification to that ordinary basis for finding that a jury ought to have shared the appeal court’s doubts is when the advantage that the jury enjoyed in seeing and hearing the evidence at trial would have been such as to overcome the appeal court’s doubt…
35. There was ample evidence upon which the Magistrate was entitled to find that the appellant had punched Mr Aqel twice, causing him a minor injury to the area of his left eye. There was ample evidence upon which she could find the appellant guilty of the offence. We see nothing in the way in which the matter was dealt with on appeal by Mossop J which would demonstrate error. Indeed, Mossop J undertook a comprehensive review of the hearing before the Magistrate and concluded that no error had been demonstrated.
36. In our opinion, this appeal should be dismissed.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Loukas‑Karlsson and Charlesworth. Associate: Date: 14 December 2018 |
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