Greenwood v Barlee
[2018] ACTSC 46
•5 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Greenwood v Barlee |
Citation: | [2018] ACTSC 46 |
Hearing Date: | 2 February 2018 |
DecisionDate: | 5 February 2018 |
Before: | Mossop J |
Decision: | See [102]-[103] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – conviction for assault occasioning actual bodily harm – whether magistrate made minute or memorandum of conviction – whether magistrate erred by excluding the statement of facts and failing to consider statement of facts and all documentary evidence – whether magistrate erred in finding victim evidence impressive and consistent, relying on victim’s evidence and rejecting the appellant’s evidence – whether magistrate erred in finding rule in Browne v Dunn applied to victim cross-examination – appeal grounds not made out – appeal dismissed – conviction confirmed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5052 Crimes Act 1900 (ACT), s 24 Magistrates Court Act 1930 (ACT), ss 25, 28, 37, 141, 141(3), 142, 208(1)(b), 214, 214(3), 214(3)(a)(i), 214(3)(a)(ii), 214(3)(a)(iii), 214(3)(b), 214(4), 214(4)(a), 214(4)(a)(i), 214(a)(ii), 214(4)(b), Pt 3.9 |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Allied Pastoral Holidings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; 73 ALJR 306 |
Parties: | James Greenwood (Appellant) Cassandra Barlee (Respondent) |
Representation: | Counsel J Keys (Appellant) K McCann (Respondent) |
| Solicitors Director of Public Prosecutions (ACT) (Respondent) | |
File Number: | SCA 34 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Special Magistrate Hunter Date of Decision: 2 May 2017 Case Title: Barlee v Greenwood Court File Number: CC 4131 of 2015 |
MOSSOP J:
Introduction
This is an appeal from a conviction of the appellant upon a charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). He was convicted after a defended hearing which took place over three days before a special magistrate (“the magistrate”). On 28 April 2017 the magistrate found the offence proved. On 2 May 2017 the magistrate convicted the appellant and required him to enter into a good behaviour order for a period of 12 months with 25 hours of community service.
Nature of the appeal
The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (MC Act). Such an appeal is by way of rehearing. The principles to be applied upon such an appeal are set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24] as follows:
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.
In determining such an appeal, the Court must have regard to the significant benefit that the magistrate at first instance has by reason of having seen and heard the evidence during the course of the trial: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25].
The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].
It will be necessary to have further regard to the statutory provisions regulating the conduct of an appeal later in these reasons because the appellant sought to have evidence that was not before the magistrate admitted as evidence on this appeal.
Application to amend notice of appeal
By application filed 30 January 2018, the appellant sought leave to file a further amended notice of appeal. Having regard to the amendments made in that document, it was appropriate to grant leave to make that amendment and I ordered that the draft further amended notice of appeal be taken to be the further amended notice of appeal.
Grounds of appeal
The grounds of appeal set out in the further amended notice of appeal are as follows:
(a)In convicting the Appellant, a minute or memorandum was not made and signed by [the magistrate] in contravention of section 141 of the Magistrates Court Act 1930, in circumstances when a record of the decision on 28 April 2017 was demanded by the Appellant on 2 May 2017 for the purposes of this appeal, under section 142 of the Act.
(b)In the reasons given on 28 April 2017 for finding the offence of ‘assault occasioning actual bodily harm’ proven, the Magistrates Court erred-
(i) in failing to take account of the Statement of Facts and excluding the Statement of Facts from the appeal papers;
(ii) in finding the evidence of Abdul AQEL and Hassan ALI to be impressive and articulate, and “consistent with each other” (Transcript 28 April 2017 page 6 lines 17-26);
(iii) in relying on the evidence of AQEL and ALI in preference to the Statement of Facts and documentary evidence, specifically CCTV footage from taxi TX 309 (Exhibit “P 7”- also see Camera 1/Driver and Camera 2/Passenger being Exhibits “D2” and “D3” respectively), and Aerial Taxi’s Shift Report 18 February 2015 from 22.24-06.30 (Exhibit “D5”), as well as their written statements dated 27 February 2015 and 8 July 2016 respectively;
(iv) in rejecting the Appellant’s evidence;
(v) in finding that AQEL would have to have been cross-examined “under the rules of Browne v Dunn” in relation to the proposition that “his injury may have been sustained as a result of his use of the ice block on his eye” (Transcript 28 April 2017 page 7 lines 34-38); and
(vi) in failing to consider that the Statement of Facts and all documentary evidence did not establish beyond reasonable doubt that the Appellant assaulted Abdul AQEL at about 1am on 19 February 2015, and by the assault, occasioned actual bodily harm to Mr AQEL.
The proceedings below
On 19 February 2015, Mr Abdul Aqel, a taxi driver, received a booking for a pick up on Wattle Street in Lyneham, ACT. Mr Aqel was driving a taxi with registration TX309. Upon arrival at the pick-up location, Mr Aqel observed two males in a driveway. As he approached, one of the males walked away, while the other, the appellant, got into the taxi. The appellant stated to Mr Aqel: “Take me to Franklin”. The informant alleged that an argument ensued, and the appellant struck Mr Aqel twice in the left eye with his right fist.
The appellant was summonsed to appear in the ACT Magistrates Court on
29 September 2015. On that date, the appellant entered a plea of not guilty and the matter was adjourned to 6 May 2016 for hearing. On 6 May 2016, the appellant did not appear and a warrant was issued. After a number of adjournments, the appellant appeared on 11 October 2016 and the hearing proceeded before the magistrate over the course of 11 October 2016, 14 February 2017 and 6 March 2017.
The evidence given at the trial may be summarised as follows.
Day 1: 11 October 2016
Abdul Aqel
The victim, Abdul Aqel, was the first witness called by the prosecution. He gave evidence that he was employed as a taxi driver, and had been driving taxis since about 2008. He stated that on 19 February 2015 at around 12:30am, he received a booking via his
on-board computer system for a pick up near Macarthur House. As he approached and brought his taxi to the pick-up location, he observed two males. One of the males (the appellant) walked towards him, got into the taxi and sat in the front passenger seat. The appellant stated “Take me to Franklin”. An exchange then occurred between Mr Aqel and the appellant in which Mr Aqel asked for a deposit of $20. The appellant refused and told Mr Aqel he would pay him in cash once at his destination. Mr Aqel then proceeded to drive the taxi along Northbourne Avenue. The appellant began shouting and acting aggressively towards Mr Aqel, who began to fear for his safety. He then activated the duress alarm.
Eventually, the taxi came to a stop and the appellant exited the vehicle. Mr Aqel’s evidence was that the appellant got out of the taxi, turned around and struck him twice on the left eye with a closed fist. He stated his vision became blurry. Following this,
Mr Aqel drove his taxi to a nearby bus stop along Northbourne Avenue. He noticed his eye was swollen and could see blood in the corner of his eye. He suffered swelling to his eye which recovered over a number of days. He then drove his taxi to Nicholls where he was met by police who took photographs of his face.
Mr Aqel was cross-examined by counsel appearing for the appellant. He was asked whether he grabbed the appellant as he exited the taxi, to which he replied “No”. He was cross-examined regarding matters in his police statement dated 27 February 2015 and it was suggested that he was never punched, a suggestion which he denied.
Hassan Ali
Mr Ali gave evidence that he had been a taxi driver since 2012. On 19 February 2015 he was on shift. He recalled he was driving on Macarthur Avenue in Lyneham. He saw a taxi which was stopping and then driving. He stopped his taxi and saw a person punching Mr Aqel. At the time, Mr Ali had a passenger in his vehicle. Mr Ali and the passenger got out of the taxi. Mr Ali went to the driver’s side of Mr Aqel’s taxi. The appellant was seen to be running away. At the time when Mr Ali pulled over and saw Mr Aqel’s taxi, the interior light of the vehicle was on. He observed “a distress situation, and he was being assaulted by someone …” Mr Ali gave evidence that the appellant was in the car at the time he punched Mr Aqel. This was to some extent inconsistent with Mr Aqel’s evidence that the appellant had exited the car. Mr Ali clarified however that the appellant was “out from his seat. Like he was sitting in the seat. His body was like he was throwing his punch and he wasn’t sitting on the seat”.
When asked what Mr Aqel was doing, Mr Ali gave evidence that he was “defending himself”. When asked what he meant by this, Mr Ali stated “Like it looked like – what I see, he was sitting and I haven’t noticed any motion from him that he has punched the other guy or not yes”. Following the appellant running away, Mr Ali approached Mr Aqel and asked about his welfare. Mr Aqel responded “No, it’s all good”. Mr Aqel however seemed to be shocked and one of his eyes was watering.
Mr Ali was cross-examined by counsel for the appellant regarding the contents of his statement to police dated 8 July 2016. Various propositions were put to him about what he observed, but his attendance at the scene and his observation of an incident was not challenged. Following re-examination by the prosecutor, counsel for the appellant sought to tender the police statement of Mr Ali on the basis she “had cross-examined him”. The magistrate refused to admit the statement and counsel agreed the witness could be excused.
Day 2: 14 February 2017
Constable Cassandra Barlee
Constable Barlee was the informant. She gave evidence that she was on shift on 19 February 2015. She received a transmission that a duress alarm had gone off in a taxi in Lyneham. Following this, she attended Nicholls and met Mr Aqel. He appeared to be quite shaken and his left eye was bloodshot. The officer gave evidence about speaking to Mr Aqel and the subsequent investigations she undertook.
Constable Andrew Nisbet
Constable Nisbet conducted the record of interview with the appellant, which was tendered and became an exhibit.
Peter Wright
Mr Wright was the supervisor for the call centre at Aerial Taxis. His role was to take bookings from the public. He gave evidence explaining how the booking process worked. He gave evidence that on 19 February 2015 he made a triple zero call following the activation of the duress alarm. He explained that once the alarm had been activated, he was able to hear what occurred inside the vehicle. At the time he heard a “scuffle”.
Phillip Skipper
Mr Skipper was the General Manager of Aerial Taxis. He gave evidence about how the duress alarm operated and the process once it has been activated. He also gave evidence in relation to the closed circuit television (CCTV) system located within a taxi and that it captures a series of still images, rather than video.
Mitchell Ward
Mr Ward was a friend of the appellant. He gave evidence that he was out with the appellant on the night of 18 February 2015 and both were drinking alcohol. The appellant and Mr Ward had attended a bar in Civic for a few hours before deciding to go home. The appellant and Mr Ward walked towards Macarthur Avenue and stopped at Macarthur House. They decided to wait there and catch a taxi. After a taxi was called, Mr Ward recalled sitting on a driveway and a taxi turning up a short time later. He stated he could not really remember the appellant getting into the taxi. Mr Ward was not
cross-examined by counsel for the appellant.
Day 3: 6 March 2017
Philip Skipper
Mr Skipper’s cross-examination continued. He was not able to explain why there was a three and a half minute gap in the photographs that were available from the cameras in the taxi. While he was the General Manager, he had not been responsible for downloading that material and providing it to the Australian Federal Police. He had not been aware, prior to giving evidence, that there was material that was missing. He was asked questions relating to the times shown on the photographs that were available and the relationship between those times and the time of the duress alarm recorded on other documents provided by the company.
The appellant
The appellant was called to give evidence. In examination-in-chief, he stated he had been out with a friend (Mr Ward) drinking on the evening of 18 February 2015. They went to a couple of bars throughout the course of the evening. He stated he had a “fair bit” to drink. The appellant stated that Mr Ward lived in Lyneham and so he and Mr Ward decided to walk in that direction and get a taxi from that area.
Following the taxi arriving, the appellant said goodbye to Mr Ward. He got into the taxi and had a short exchange with the driver, Mr Aqel. The appellant stated Mr Aqel asked him how his night was and where he wanted to go. The appellant replied that he needed to go to Franklin “but as far as $20 would go”. Mr Aqel stated to the appellant that he wanted the money up front. The appellant stated that he showed Mr Aqel $20, which was in his wallet, and that he would pay him after. The appellant then described what happened next:
APPELLANT: … Well, when I pulled my wallet out and showed him the money, he said, “Still got to pay the $20 up front”. And I said, “No I’ll walk”. And then he grabbed – as I got out of the taxi, he grabbed me by the right arm and then we had a little bit of a scuffle and I got out.
MS KEYS: So you said you had a bit of a scuffle when you got out but was it – when was it?
APPELLANT: No, before I – before I exited, I just tried to get him off my arm and then exited the taxi.
The appellant gave evidence that some days after the incident, he was called into the police station and participated in a recorded interview. He did not remember the incident, however, after speaking with Mr Ward and being advised he was being summonsed to court, “it sort of come back”.
Under cross-examination by the prosecutor, the appellant was asked what a “fair bit” to drink was, to which he replied “probably 10 plus” and later said he and Mr Ward “had 20 each”. He was cross-examined about his recollection of the events at the time of speaking to police and subsequently. It was suggested that his version about being grabbed by Mr Aqel was untruthful, which he denied. There was no re-examination by counsel for the appellant.
Following the appellant giving evidence, the magistrate requested that the parties provide written submissions and the matter was adjourned.
Written submissions were filed by the prosecution on 7 March 2017. The appellant filed submissions dated 19 April 2017 and 24 April 2017.
Exhibits tendered
The following items were marked as exhibits:
(a)Ex P1, Photographs of Mr Aqel dated 19 October 2015
(b)Ex P2, Photographs of Mr Aqel dated 24 February 2015
(c)Ex P3, Photographs from the Taxi CCTV
(d)Ex P4, Record of Interview with Appellant
(e)Ex P5, CD Recording of the Taxi
(f)Ex P6, Large view of camera photographs
(g)Ex P7, CD of photographs from the Taxi camera
(h)Ex D1, GPS Tracking bundle of documents
(i)Ex D2, Photographs of the Taxi – Camera 1
(j)Ex D3, Photographs of the Taxi – Camera 2
(k)Ex D4, document headed “MT Data” Form providing data from the Taxi computer system
(l)Ex D5, Business Record “Contact Centre Supervisor Shift Report” prepared by Mr Wright
(m)Ex D6, Further disclosures on 6 May 2016 in relation to evidence of Mr Aqel.
Exhibits D2 and D3 involved photographs taken from Exhibit P7 which came from cameras within the taxi. It was common ground that any assault by the appellant (or any assault upon him by Mr Aqel) was not shown upon any of the photographs that were in evidence. The photographs were generated as a result of a duress alarm being activated by Mr Aqel and by various other events relating to the operation of the taxi. It was also uncontroversial that there was a period of three and half minutes where there were no photographs. Following that three and a half minute period, there were photographs of Mr Aqel’s hand holding an icepack to his eye. The prosecution case was that the assault occurred during the three and half minute period when there were no photographs taken. The evidence did not disclose any reason why there were no photographs during that period, although there was evidence given by Mr Skipper about the retrieval of the photographs and their provision to the police.
The magistrate’s decision
The magistrate delivered her reasons on 28 April 2017. Her Honour summarised the facts and the evidence given by the various witnesses. In summary, she found the evidence of Mr Aqel and Mr Ali credible. As to the photographs, the magistrate said that they did not assist her to determine what occurred other than that they supported
Mr Aqel’s evidence about getting out of his car and applying an icepack to his eye.
Her Honour considered the evidence of the appellant, but ultimately rejected it. She quite properly recognised that, having rejected the evidence of the appellant, she nevertheless needed to be satisfied of the prosecution case. After considering the evidence led in the prosecution case, her Honour found the offence proved.
The appellant was sentenced by the magistrate on 2 May 2017.
Application to adduce further evidence on appeal
The notice of appeal identified that the further evidence sought to be put before the Court was:
(a)The statement of Mr Aqel dated 27 February 2015; and
(b)The statement of Mr Ali dated 8 July 2016.
Ultimately counsel for the appellant did not press the application for the admission of the statement of Mr Ali.
An application in proceeding dated 29 January 2018 sought have admitted into evidence:
(a)The statement of facts prepared by the Australian Federal Police in relation to the charge; and
(b)The exhibits that were in evidence before the magistrate.
It is clearly appropriate that the exhibits which were before the Magistrates Court are also before this Court. The appellant said that an order was necessary because they were not included in the schedule of documents prepared in the registry of the Magistrates Court and sent to the Supreme Court. Although the appellant was correct in saying that the actual exhibits were not included in the schedule of documents sent by the deputy registrar of the Magistrates Court to the Supreme Court, the exhibits were in fact sent to the Court and are on the court file. That is the process contemplated by Practice Direction 3 of 2012. It was therefore not necessary to make any particular order in relation to them.
That left outstanding the question of whether the following documents should be before the Court on this appeal:
(a)the statement of Mr Aqel dated 27 February 2015; and
(b)the statement of facts prepared by the Australian Federal Police in relation to the charge.
The statutory provision relevant to the admission of further evidence on appeal is s 214 of the MC Act. That section provides:
214 Appeals in cases other than civil cases
(1)This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2)In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must—
(a) if it considers it necessary or expedient to do so in the interests of justice—
(i)order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii)order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii)receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
While the Court Procedures Rules 2006 (ACT) contain a provision of general application describing the power of the Court on an appeal from the Magistrates Court: r 5052, that rule cannot operate to alter the powers on appeal when those powers are specifically enumerated in the MC Act itself.
There are three different situations contemplated by s 214. First is the situation where the parties to the appeal consent to the receipt of evidence: s 214(3)(b). In that circumstance the receipt of evidence is mandatory. That is made clear by the reference to “must” in the chapeau to sub-s (3). Second is the situation described in sub-s (4). Once again, so long as the preconditions identified in the section are satisfied, the Court “must” receive that evidence. The preconditions set out in the subsection are:
(a)There is a reasonable explanation for the failure to adduce the evidence in the proceeding (s 214(4)(b));
(b)The evidence is likely to be credible (s 214(4)(a));
(c)The evidence would have been admissible in the proceedings out of which the appeal arose on an issue relevant to the appeal (s 214(4)(a));
(d)The Court is not satisfied that evidence would not afford a ground for allowing the appeal (s 214(4) chapeau).
Third is the situation contemplated by sub-ss (3)(a)(i) to (iii). Those are powers to compel the production of exhibits or other things connected with the proceedings (sub-s (3)(a)(i)), to compel persons to attend for examination before the Supreme Court, that is, to permit additional oral evidence to be given (sub-s (3)(a)(ii)), and also to receive evidence of a witness in documentary form which is “tendered” (sub-s (3)(a)(iii)). All of these powers are discretionary powers which arise if the Court “considers it necessary or expedient to do so in the interests of justice”; s 214(3)(a). It is clear that these generally stated powers go beyond the first two categories because they are clearly distinct from the obligation to receive further evidence set out in the other paragraphs of sub-s (3). Further, the reference to it being “necessary or expedient to do so in the interests of justice” makes it clear that they are discretionary powers and hence extend beyond the circumstances in sub-s (4) which result in an obligation rather than a discretion to receive further evidence. Although sub-ss (3)(a)(i) and (ii) appear to relate to obtaining access to documents, things or persons rather than receipt of further evidence, they carry with them an implication that the documents, things or persons may be put before the Court as evidence on the appeal.
Statement of Mr Aqel: On 11 October 2016, counsel for the appellant sought to tender Mr Aqel’s police statement after re-examination by the prosecutor on the basis that it was a “prior inconsistent statement”. The prosecutor made no objection. Initially the magistrate indicated that the statement dated 27 February 2015 was admitted into evidence as “Exhibit D1”. However, because neither party had an unmarked copy of the statement, it was not formally recorded as an exhibit and the magistrate indicated that it could be tendered on the next occasion as the proceedings would be adjourned part heard. Counsel for the appellant did not subsequently formally tender the statement.
Whether or not the document was in evidence was a matter returned to on 6 March 2017. Counsel for the appellant indicated that she thought that the statement had been tendered. The magistrate, relying upon the list of exhibits, indicated that it had not been tendered and made statements inconsistent with what is disclosed by the transcript to have occurred on the earlier occasion. Counsel for the prosecution also, apparently not recollecting her earlier position, said that the statement was not in evidence and opposed its admission. Counsel for the appellant did not at that stage attempt to retender the document, merely indicating that she thought that it had already been admitted into evidence.
Having regard to what occurred on 11 October 2016, and the confusion that existed when the subject of its tender was later revisited, I considered that it is expedient in the interests of justice to admit the statement as evidence on this appeal and hence to it forming part of the appeal papers for this appeal.
Statement of facts: So far as the statement of facts is concerned, that is merely a statement of the allegations to be made by the informant in the proceedings before the Magistrates Court. It is clearly first hand hearsay to the extent that it records what might become the oral evidence of the informant, and more remote hearsay insofar as it records the evidence of other persons. The admission of the statement of facts as evidence on the appeal was not consented to.
The submission of the appellant was not that the statement should be admitted as further evidence on the appeal, but that it should be before the Court because it was the “information” within the meaning of ss 25 or 37 of the MC Act and hence was a court document relevant to (and defining the scope of) the proceedings. This submission was misconceived. I described the nature of an “information” under the MC Act and its significance for the jurisdiction of the Magistrates Court in Burridge v Chief Magistrate [2016] ACTSC 332; 317 FLR 26 at [38]-[47]. It is clear that the police statement of facts does not constitute the information. It was therefore not a document which was before the Magistrates Court as an exhibit or court process. It was not a document which could be, or was required to be, amended under s 28 of the MC Act.
The statement of facts is therefore not a court process which was required to be before the Magistrates Court or this Court. I therefore did not treat it as part of the appeal papers for the appeal.
Summary of material before the Court
As a consequence of the ruling that I made, the material before the Court for the purposes of the appeal was:
(a)The schedule of documents sent by the deputy registrar of the Magistrates Court;
(b)The exhibits sent by the deputy registrar of the Magistrates Court;
(c)The transcripts of proceedings on 11 October 2016, 14 February 2017, 6 March 2017 and 28 April 2017; and
(d)The statement of Mr Aqel dated 27 February 2015.
Ground (a)
Part 3.9 of the MC Act relates to the “enforcement of criminal decisions”. Section 141 provides the following:
141 Minute of decision and notice to defendant
(1)If the court convicts or makes an order against a defendant—
(a) a minute or memorandum of the conviction or order must be made and signed by the magistrate exercising the jurisdiction of the court; and
(b) the defendant must be notified in writing of the conviction or order.
(2)A minute or memorandum under subsection (1) (a) must specify the amount of any victims financial assistance levy imposed under the Victims of Crime (Financial Assistance) Act 2016, part 7.
(3)Failure to comply with subsection (1) does not invalidate a conviction or order or the enforcement of a conviction or order.
(4)The minute must not form part of—
(a) a warrant under the Crimes (Sentence Administration) Act 2005, section 12 (Warrant for imprisonment); or
(b) an enforcement order.
The magistrate made a record on the bench sheet on 28 April 2017 that the offence had been proved. This note was signed by the magistrate. On 2 May 2017, the magistrate also made a note that the appellant was convicted. This was signed by the magistrate. Also prepared and signed by the magistrate at the time of sentencing was a form outlining that the appellant had been convicted and describing the terms of the good behaviour order imposed. Section 141 was therefore complied with. Even if it had not been complied with, it would not have provided a ground of appeal because of the operation of s 141(3).
Although s 142 of the MC Act was referred to in the ground of appeal, it is not relevant as it relates to a separate obligation. Section 142 provides:
142 Formal convictions and orders
(1)The conviction or order must, if required, be drawn up by the court in proper form and be filed by the registrar in the court's records.
(2)It is not necessary for a court formally to draw up a conviction or order or any other record of a decision, unless it is demanded by a party to the proceeding for the purpose of an appeal against the decision, or is required for the purpose of a habeas corpus order or another order from the Supreme Court.
Amongst the schedule of documents is a formally drawn up good behaviour order which appears to have been signed by the appellant on
2 May 2017. That document records the conviction and the terms of the good behaviour order. The appellant was therefore on notice of the terms of the order made and in a position to exercise, as he has, his entitlement to appeal.
The appellant submitted that there had been a failure to comply with s 142 because counsel for the appellant applied for a record of the decision for the purposes of an appeal against the decision. This request was followed up in an email dated
30 August 2017 which appeared to equate a record of the decision with a statement of reasons. That was misconceived. The section does not require the provision of a written statement of reasons. It only requires the conviction or order to be drawn up. As pointed out above, this occurred.
Counsel for the appellant made the submission that the:
failure to draw up a record of the decision made on the 28 April 2017 in circumstances where it was expressly demanded for the purposes of an appeal, should be regarded as being aimed solely at hindering the Appellant’s appeal and causing him detriment in that context, particularly when no other explanation is provided.
For the reasons given above, this submission is without foundation. Further, it could not, in any event, provide a basis for setting aside the conviction.
This ground of appeal is not made out.
Ground (b)(i)
This ground of appeal asserts an error on the part of the magistrate in failing to take into account the statement of facts and excluding it from the appeal papers.
The ground may be disposed of shortly:
(a)For the reasons given above, the statement of facts was not the information for the purposes of the MC Act;
(b)The statement of facts was not in evidence before the magistrate and therefore the magistrate was not obliged to take it into account; and
(c)The exclusion of it from the material sent by a deputy registrar of the Magistrates Court to this Court pursuant to Practice Direction 3 of 2012 was consistent with the fact that it was not in evidence and, even if incorrect, would not disclose any error in the magistrate’s decision.
The ground of appeal is not made out.
Ground (b)(ii)
The appellant has asserted the magistrate erred in finding the evidence of Mr Aqel and Mr Ali “impressive and articulate” and “consistent with each other”.
It is important to note that the acceptance of the evidence of Mr Aqel and Mr Ali involves consideration of a combination of the substance of their evidence and the manner in which they gave it. While the former is disclosed by the transcript of the proceedings, the latter is a matter in relation to which the magistrate who saw and heard the evidence being given had a significant advantage over this Court on appeal.
The principles applicable to the review of findings of fact were recently summarised in in Ryan v Vizovitis [2017] ACTCA 3. Relevant to the circumstances of the present case is the summary of the approach to review of findings of fact based on oral evidence given by the Chief Justice in Faris v Coulon [2017] ACTSC 114 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 the conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find 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.
In the present case, 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. The appellant, however, asserted that there were inconsistencies between their evidence.
The first was whether the appellant was inside or outside the vehicle when punching
Mr Aqel, and second was the overall duration and nature of the interaction. Mr Aqel gave evidence that the appellant had got of the car before punching him. Mr Ali had only been located and given a statement to police in July 2016, a year and five months after the incident. Mr Ali, who made his observations while his vehicle was driving slowly past on the right, said that he saw that the car light was on, that someone was punching another driver, he stopped his vehicle, got out and went to the driver’s side of the other taxi and saw the passenger get out and run away. He could not say whether there were multiple punches or not. He described the passenger as in the vehicle, but throwing a punch and not sitting on his seat, and gave the Court a demonstration. He accepted in
cross-examination that his vision of the appellant’s body was not clear but said he was focusing on the situation not the door of the vehicle. He said that the taxi driver was “just defending himself”, but the following answer indicated he meant that in the sense of not throwing punches himself rather than anything more specific. He observed that the driver’s eye was watering and bruised. There was no suggestion put to either witness that they knew each other or that either had influenced the statement or evidence of the other.
There is certainly some differences between the evidence of Mr Aqel and Mr Ali, both as to the location of the appellant and because Mr Ali’s evidence, taken overall, gives the impression of a longer incident than that described in the evidence of Mr Aqel. However, the independent evidence of Mr Ali was important corroboration for that of Mr Aqel. The differences in Mr Ali’s evidence were understandable given the position from which he observed the incident and the passage of time until he was asked to recall what occurred. The differences in the evidence were matters which, along with the evidence, needed to be considered.
However, 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 lacked probative force such that this Court would conclude that it should not have been accepted or relied upon.
Insofar as there was documentary material available that needed to be considered when assessing the evidence of Mr Aqel and Mr Ali, that is an issue addressed in relation to ground (b)(iii) below. That documentary material is not such that it demonstrates that the magistrate’s decision to accept the evidence of Mr Aqel and Mr Ali involved an error.
In my view it was open to the magistrate to make the finding that she did. As a consequence, this ground of appeal is not made out.
Ground (b)(iii)
The appellant asserted in this ground of appeal that the magistrate erred in “relying” on the evidence of Mr Aqel and Mr Ali “in preference to the Statement of Facts and documentary evidence”. The documentary evidence identified by the appellant included:
(a)The statement of facts;
(b)Exhibits D2 and D3, being CCTV/photographs from the taxi;
(c)Exhibit D5, being the Shift Supervisor Report; and
(d)Statements from both Mr Aqel and Mr Ali provided to police.
The submission of the appellant was that this was a case similar to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306 (in particular at [63]) in which inadequate attention had been paid to the documentary evidence, and when that documentary evidence was given its proper weight, an error was established.
It is necessary to deal with each of these documents or categories of documents separately, as well as considering the documentary material as a whole.
The statement of facts: As pointed out in relation to ground (b)(i) above, the statement of facts was not in evidence before the magistrate and was not a court document. It therefore did not provide a basis upon which the oral evidence of Mr Aqel and Mr Ali might not be accepted.
Photographs: In relation to the photographs from the taxi, a disc of photographs was tendered before the magistrate as Exhibit P7. However, the photographs relevant to the submissions made by the parties, both at first instance and on appeal, were reproduced in Exhibits D2 and D3. The magistrate stated in her reasons:
Ultimately, the photographs really did not assist me in any way to determine what happened on that day, other than it does support the contention that Mr Aqel got out of his car, went to his boot, put an icepack on his eye because it was painful – and that is clear on the evidence from the photographs.
There was an issue in relation to – that Ms Keys raised at the beginning, in relation to the photographs and the timing of the photographs. Now, as I understand it, from the evidence of Mr Skipper, camera one is on the driver, camera two is on the passenger and camera three is for the outside – and there was, and she quite rightly put, no photograph of the defendant punching Mr Aqel – and that was a concern that I had. There was also a concern that she raised in relation to the timing of the photographs. However, it was explained, ultimately, on the last day, that what had happened was when the vehicle stops and the door is open the camera is on the outside – and it seems to me that having considered all the evidence as a whole any issue in relation to timing. In my view, doesn’t change my opinion of what had occurred.
This ground of appeal is clearly related to the complaint made at ground (b)(ii) that the magistrate accepted the evidence of Mr Aqel and Mr Ali and found them to be credible witnesses. As pointed out above, the photos do not show any punch by the appellant or any grabbing by Mr Aqel. A three and a half minute period had no photographs. The timing of this was not inconsistent with the Crown case and other available evidence such as the shift supervisor’s report. There were uncertainties in relation to the photographic evidence because of the unexplained missing portion. Those uncertainties were not able to be resolved by Mr Skipper because he was not an expert on the operation of the camera and not responsible for the downloading process for the camera in question. However, these uncertainties were not such as to require the magistrate to not accept the evidence of Mr Aqel or Mr Ali or to have a reasonable doubt about the commission of the offence.
Shift supervisor report: A document headed “Contact Centre Supervisor Shift Report” became Exhibit D5. The document records, most relevantly:
Argument over money. Pax claiming they have cash in wallet. Refusing to give money upfront. Heard sounds of a scuffle. Called police. Tried to ring driver. His number is not in service. Driver not responding to radio. …
This first part of the report was consistent with both the prosecution case and the different version of events given by the accused in evidence. The contents of the document are not such as to indicate that the acceptance by the magistrate of the evidence of Mr Aqel and Mr Ali was wrong.
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.
Statements of Mr Aqel and Mr Ali: As I have indicated above (at [42]-[44]), the statement of Mr Aqel was admitted into evidence and should be considered on appeal. There was nothing in that statement which indicates (either alone or in combination with other documentary material) that the magistrate erred in accepting his oral evidence.
So far as Mr Ali’s statement is concerned, that was not in evidence before the magistrate and the appellant did not press the application to have it admitted on appeal. It therefore cannot provide a basis upon which this ground of appeal could succeed.
Documentary material as a whole: When considered as a whole, the documentary material does not indicate that there was any error in the magistrate accepting the evidence of Mr Aqel and Mr Ali or finding the offence proved.
Ground (b)(iv)
This ground asserts that the magistrate erred in rejecting the appellant’s evidence.
In her reasons, the magistrate correctly noted the appellant did not have to give evidence and that it was for the prosecution to prove its case beyond a reasonable doubt. She identified that, given the appellant gave evidence, his evidence was to be assessed in the same manner as the evidence of any other witness. The magistrate noted the evidence that during his recorded interview with police, some five days after the incident, the appellant could not recall what occurred due to his level of intoxication, yet, some two years after the incident was able to recall important details of what occurred in the taxi during oral testimony. The magistrate found this to be “incredible”.
Whilst accepting that a resolution of conflict based on credibility does not immunise the conclusion from challenge, the magistrate’s decision to reject the appellant’s evidence is not contrary to any “incontrovertible facts or uncontested testimony” or “glaringly improbable or contrary to compelling inferences”: see Fox v Percy at [28]-[29].
There was a substantial body of evidence which was inconsistent with the appellant’s version of events: that of Mr Aqel, that of Mr Ali, and the photographs of Mr Aqel’s injury. The evidence of the appellant had significant difficulties:
(a) The appellant was intoxicated at the relevant time, having consumed a substantial amount of alcohol. His estimates of what he had drunk varied during the course of his evidence from he could not remember how many, to “a fair bit”, to “probably 10 plus”, to “we had 20 each or something”, to “a pretty big night”.
(b) After having been contacted by police and agreeing to participate in a recorded interview, he denied being able to recall anything that had happened. Remarkably, his evidence was that after having spoken to friends after the police interview his memory revived to a point where, two years after the event, he was able to give a detailed description of what had occurred. However, notwithstanding his earlier participation in an interview, and his subsequently revived recollection, he took no steps to disclose that revived recollection to police.
(c) The appellant’s version of events did not accord with the likely behaviour of a person in his situation:
(i) His evidence was that he asked to only go as far as $20 would take him when he claimed to have a couple of hundred dollars in poker machine winnings in his wallet. If he had such money, he would have been likely to get the taxi all the way to his house and not gone as far as $20 would take him and walk the balance of the way.
(ii) He said that when he was leaving the taxi he said that instead of paying money in advance he would walk, which would be an unusual course for someone in Lyneham who was trying to get home to Franklin.
(iii) There was no explanation or reason as to why a taxi driver such as Mr Aqel would have grabbed at appellant as he tried to leave the taxi.
In contrast, the version of events given by Mr Aqel did not suffer from incongruities of this nature.
Particularly having regard to the advantage available to the magistrate in seeing and hearing the witnesses given 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.
No error has been shown and this ground of appeal is not made out.
Ground (b)(v)
The appellant asserts the magistrate erred in finding Mr Aqel was required to be
cross-examined “under the rules of Browne v Dunn” in relation to the proposition that “his injury may have been sustained as a result of his use of the ice block on his eye”.
This ground of appeal arises out of a submission made by counsel for the appellant to the magistrate. In her written submissions to the magistrate, counsel for the appellant submitted:
The Defendant submits that Mr Aqel’s conduct in applying the block of ice to his left eye for a period of about 17 minutes provides an explanation for the injury to his left eye other than being caused by any assault by the Defendant. The alternative explanation is consistent with the Defendant’s denial that he assaulted Mr Aqel and the lack of any CCTV footage of an assault.
In her reasons, and in rejecting this submission, the magistrate stated:
In her submissions the defence counsel relied on – or proposed that it was actually Mr Aqel, not – she didn’t say “did it on purpose”, but his injury may have been sustained as a result of his use of the ice block on his eye. There are a couple of issues with that. Firstly, he was never cross-examined about that – and under the rules of Browne v Dunn he would have to have been.
It was never suggested to him that, in fact, it was him that inflicted the injury to his own eye – and, indeed, the evidence from him, and also from the photographs which I saw, clearly show him going to his – going to the boot of the car, where he says he had the ice block, and then putting it on his eye.
…
The submission made by the appellant’s counsel to the magistrate appears to have been directed to the proposition that no punch occurred, rather than that it did occur but was not itself the cause of actual bodily harm. As the magistrate correctly identified, the submission was inherently problematic. It necessarily suggested that there was no punch to Mr Aqel’s eye, but that Mr Aqel injured himself by getting out his taxi, getting an icepack and placing it on his eye for about 17 minutes. No reason disclosed by the evidence, or human experience, was or is suggested as to why he might have done this. This alone provided sufficient reason to reject the submission made by the appellant to the magistrate.
Counsel for the appellant submitted that, in fact, the rule in Browne v Dunn required that the proposition that the swelling and injury to Mr Aqel’s eye was caused by his punch.
The rule in Browne v Dunn is in reality a principle of fairness. Its content and application is neither fixed nor inflexible: Eastman v The Queen (1997) 76 FCR 9 at 102. Its application and consequences of non-compliance ebb and flow with the nature of the proceedings and facts in issue: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1. In that case, Hunt J provided a useful summary of the reasons for the rule at 22–3:
There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. First, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.
In criminal cases the consequences of a failure to comply with the rule of practice identified in Browne v Dunn are not fixed: R v Costi (1987) 48 SASR 269 at 271; R v Birks (1990) 19 NSWLR 677 at 689-90. A failure to comply with a rule of practice cannot compel a jury to find an element of an offence proved. It may require or provide a basis for a witness to be recalled under s 46 of the Evidence Act 2011 (ACT). It may lead to the exclusion of subsequent evidence. It may compel a direction about the content of counsel’s address. It may simply be a factor to be considered when assessing the evidence and reaching conclusions on findings of fact.
In the present case the failure to cross-examine Mr Aqel so as to suggest that he had caused the injury to himself by applying in the icepack to his eye was one of the factors relied upon by her Honour in rejecting the submission. If it was a submission with any inherent merit, then there would have been a basis for saying that it was unfair for the submission to be put in circumstances when it had not been put to Mr Aqel, and to take that fact and the uncertainty as to whether there was a good answer to it into account in making findings of fact. However, in the present case, the submission raised a scenario that was so unlikely and so clearly likely to have been met by a simple denial, that the failure to put the proposition to the witness is of less significance. The weakness of the factual contention does not disclose an error in the approach that her Honour took in relying on the rule of practice in Browne v Dunn as one of the reasons for rejecting it.
So far as the appellant contended that the rule in Browne v Dunn required the appellant to be cross-examined on the causal link between his punch and any actual bodily harm, fairness did not require that to be put. It was obvious that on the appellant’s version of events that would not have been the case because he said he did not punch Mr Aqel.
This ground of appeal is not made out.
Ground (b)(vi)
The appellant asserts the magistrate erred in “failing to consider that the Statement of Facts and all documentary evidence did not establish beyond a reasonable doubt” the assault occurred.
As noted above (at [45]-[46], [57]) and as correctly pointed out by the magistrate, the statement of facts was not admitted into evidence. There is no error established in her Honour not having regard to it.
This ground of appeal is repetitive insofar as it overlaps with the assertion in ground (b)(iii) which asserted that various documentary materials should have been preferred to the oral evidence of Mr Aqel and Mr Ali. For the reasons given earlier, I do not accept that the documentary material is such that it discloses an error by her Honour in accepting the evidence of Mr Aqel and Mr Ali.
Therefore this ground of appeal has not been made out.
Conclusion
Because none of the grounds of appeal have been established the appeal must be dismissed.
Orders
The order of the Court is: The appeal is dismissed and the conviction confirmed.
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 15 March 2018 |
Greenwood v Barlee [2018] ACTSC 46
TS v DT [2019] ACTSC 295
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