Greenwood v Barlee

Case [2018] ACTSC 46

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
Evidence Act 2011 (ACT), s 46

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
Burridge v Chief Magistrate [2016] ACTSC 332; 317 FLR 26
DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
Eastman v The Queen (1997) 76 FCR 9
Faris v Coulon [2017] ACTSC 114
Fox v Percy [2003] HCA 22; 214 CLR 118
Peverill v Crampton [2010] ACTSC 79
R v Birks (1990) 19 NSWLR 677
R v Costi (1987) 48 SASR 269
Ryan v Vizovitis [2017] ACTSC 114

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

  1. 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

  1. 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:

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Greenwood v Barlee [2018] ACTSC 46
Case
[2018] ACTSC 46
Decision Date

CaseChat Overview and Summary

The appellant in this case, Greenwood, sought to appeal against their conviction for assault occasioning actual bodily harm before the Magistrates Court of the Australian Capital Territory. The appeal was based on several grounds, including the magistrate's alleged failure to make a minute or memorandum of conviction, the exclusion of a statement of facts and documentary evidence, and the magistrate's reliance on the victim's evidence over the appellant's evidence. The appeal also challenged the magistrate's application of the rule in Browne v Dunn during the cross-examination of the victim. The appeal was ultimately dismissed by the Court, confirming the conviction.

The central legal issues in this appeal revolved around the procedural correctness of the magistrate's handling of the case, specifically whether the magistrate complied with statutory obligations under the Magistrates Court Act 1989 (ACT). The appellant argued that the magistrate failed to make a proper record of the conviction and the grounds for it, as required by section 141 of the Act. The appellant also contended that the magistrate erred in excluding the statement of facts and other documentary evidence from consideration. Additionally, the appellant challenged the magistrate's acceptance of the victim's evidence and rejection of their own, questioning whether the rule in Browne v Dunn was correctly applied during the cross-examination of the victim.

The Court addressed each of these issues in turn. It found that the magistrate had indeed made a record of the conviction on the bench sheet, as required by section 141. The Court also determined that the statement of facts, being a police document, was not a court process and therefore not required to be before the Magistrates Court. The Court found no error in the magistrate's reliance on the victim's evidence, stating that it was impressive and consistent. The Court further held that the rule in Browne v Dunn was appropriately applied during the cross-examination of the victim. As a result, the appeal was dismissed, and the conviction was confirmed.

No further orders were made by the Court beyond the dismissal of the appeal and confirmation of the conviction.

Orders

Orders of the court

See [102]-[103]

Background

Background to the litigation

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. As a consequence of the ruling that I made, the material before the Court for the purposes of the appeal was: Part 3.9 of the MC Act relates to the “enforcement of criminal decisions”. Section 141 provides the following: 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: 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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