Haigh v Oliver
[2015] WASC 462
•4 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HAIGH -v- OLIVER [2015] WASC 462
CORAM: TOTTLE J
HEARD: 20 OCTOBER 2015
DELIVERED : 4 DECEMBER 2015
FILE NO/S: SJA 1024 of 2015
BETWEEN: BRETT GREGORY HAIGH
Appellant
AND
LAURA MICHELLE OLIVER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E DE VRIES
File No :JO 7877 of 2014
Catchwords:
Practice and procedure - Application for leave to appeal - Whether grounds of appeal have reasonable prospect of success - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Magistrates Court Act 2004 (WA), s 30
Restraining Orders Act 1997 (WA), s 61(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr N S Barron
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Dietrich v The Queen (1992) 177 CLR 292
Elwin v Robinson [2014] WASCA 46
Ex parte Roddan (1995) 14 WAR 279
M v The Queen (1994) 181 CLR 487
Samuels v The State of Western Australia [2005] WASCA 193
TOTTLE J: The appellant applies for leave to appeal against his conviction in the Magistrates Court of Western Australia for breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA) and against the sentence imposed on him in respect of that breach, namely a fine of $300.
The conviction followed a trial held before his Honour, Magistrate De Vries, on 17 February 2015, at which the appellant conducted his own defence. The magistrate gave ex tempore reasons for his decision to convict the appellant and a judgment of conviction was duly entered. The magistrate's reasons were transcribed and a transcript of those reasons was made available to me.
The facts
Unless otherwise indicated, the facts set out below were not in dispute.
On 13 October 2011 a violence restraining order was made against the appellant. Amongst other things, the violence restraining order restrained the appellant from approaching within 20 metres of Ms Daniela Antoinette Bunn. Ms Bunn was the appellant's former partner. Ms Bunn and the appellant have two daughters, the eldest of whom was 15 years old at the offence.
On 30 June 2014 the eldest daughter had a netball game at Joondalup. The game started at about 8.00 pm.
The appellant attended the venue and watched his daughter play netball from a distance.
At the end of the game the netball coach gave the daughter's team a post‑match talk, after which the players and parents dispersed.
As Ms Bunn and her daughter were leaving the courts Ms Bunn saw that the appellant had come on to the court and was following them.
Using her smartphone, Ms Bunn took some video footage of the appellant, (exhibit 5). The footage shows the appellant on the netball court holding a plastic bag. It also records Ms Bunn shouting the words, '20 metres Brett - 20 metres'.
It emerged from the evidence that the plastic bag which the appellant was holding in his hand contained presents for his daughters.
The father of one of the appellant's daughter's teammates assisted the appellant by taking the bag from him and giving it to the daughter. Ms Bunn and her daughter walked off the court down a pathway which led to a carpark. The daughter was distressed. She was consoled by a team mate.
The appellant's daughter and the teammate, who was consoling her, were standing part way along the pathway to the carpark. Although the appellant said that he did not see Ms Bunn, the magistrate found that Ms Bunn and the teammate's mother were standing with the girls. The appellant said he heard his daughter crying and saw that she was being consoled by another girl. The appellant walked by them at a distance of two or three metres.
The issue
The only issue at the trial was whether the appellant was within 20 metres of Ms Bunn on the netball court or when the appellant walked down the path from the court to the carpark.
The witnesses
The prosecution called Ms Bunn. She was cross-examined by the appellant. In the course of the cross‑examination the appellant asked a number of questions directed to issues concerning their daughters' welfare which had arisen between Ms Bunn and him in the past. The magistrate did not allow the appellant to ask questions on these topics as they were not relevant to the narrow issue that had to be resolved. The appellant put his case to Ms Bunn to the effect that he did not come within 20 metres of her on the netball court. He suggested to Ms Bunn that he took two steps backwards when she protested that he was too close. An aspect of the case which the appellant advanced, through his questions, was that Ms Bunn was using the restraining order to prevent him from getting close enough to speak to his daughter by positioning herself between them. By his questions, the appellant also drew attention to the fact that by the time the netball game had finished it was dark and he could not have been expected to have seen Ms Bunn standing with his daughter as he walked down the path from the courts to the carpark.
The prosecution called two police officers. The first was Police Sergeant Kylie Gorczynski who produced a video record of an interview conducted with the appellant. The second was Police Constable Lauren Oliver who produced a diagram showing the dimensions of a standard netball court, exhibit 6. PC Oliver was not cross-examined by the appellant.
The appellant gave evidence. The magistrate elicited the appellant's evidence from him by asking him questions. The appellant gave some evidence about the history of his relationship with his daughters and Ms Bunn. The appellant referred to a face‑to‑face conversation which he had with his daughter on 13 June 2014. It was in the course of this conversation that the appellant learned that his daughter was going to resume playing netball having not played the previous year. The appellant's evidence was to the effect that his daughter was affectionate towards him in this conversation.
In relation to the events of the evening of 30 June 2014, the appellant's evidence was as follows. When his daughter's netball game had finished, the appellant decided to approach her and give her some presents that he had purchased for her and her sister. The violence restraining order did not restrain the appellant from approaching his daughter. He had hoped that Ms Bunn would encourage his daughter to go and see him, but she did not do so. The appellant called out to his daughter and she turned around and told him to 'fuck off'. The appellant said that he was shocked by his daughter's reaction but that he was totally focused on her and had no idea where Ms Bunn was. He did not hear Ms Bunn calling to him.
The appellant said that a gentleman came up to him and asked him whether he could assist by giving his daughter the plastic bag and he agreed. The appellant said that he deliberately stayed back in the area of the courts and saw the gentleman to whom he had given the bag with the presents pass it over to his daughter. He was about 40 meters away at that stage. He said that he lit a cigarette and waited before he walked down the path from the courts to the carpark in order to give Mr Bunn and his daughter an opportunity to leave. The appellant's evidence was that it was dark and that when he did walk down the path, he had heard a person crying and saw a young girl comforting his daughter. They were standing next to a storage shed or 'bin house'. The appellant said that he did not see Ms Bunn. The appellant kept on walking and went to his car and drove home.
The appellant said that he was not within 20 metres of Ms Bunn on the netball court and did not see Ms Bunn as he walked down the path to the carpark.
The Dietrich application
The appellant first appeared before the Magistrates Court on 5 August 2014. On that occasion, his Honour Magistrate Gluestein read the charge to the appellant and he pleaded not guilty. The appellant told the magistrate that he would like to '…invoke the Dietrich rule'. The magistrate told the appellant that the rule did not apply.
At the commencement of the trial the appellant repeated his request to 'invoke the Dietrich rule'. His Honour Magistrate De Vries assured the appellant that there was no prospect of the imposition of a term of imprisonment in the event of a finding of guilt and continued with the hearing.
The magistrate's reasons
After referring to the burden of proof, the magistrate identified the issues that had to be established before a finding of guilt could be made.
The first issue to which the magistrate directed himself was whether the restraining order made on 13 October 2011 had come into force and was served upon the appellant. These facts were not put in issue by the appellant, who admitted in evidence that he had been served with the restraining order on 13 October 2011, (ts 65).
The second issue to which the magistrate directed himself was whether he was satisfied beyond reasonable doubt that the appellant had approached within 20 metres of Ms Bunn on 30 June 2014.
The magistrate found Ms Bunn to be a compelling witness with a very clear recollection of events. He formed a positive impression of Ms Bunn and assessed her to be an honest witness, whose evidence was accurate and reliable, (ts 68 - 69).
The magistrate referred in detail to Ms Bunn's evidence, the video footage, (exhibit 5), and to the dimensions of a netball court as shown in exhibit 6, and noted that a netball court is 30.5 metres long.
The magistrate also referred in detail to the appellant's evidence. The magistrate recorded the appellant's explanation of how it was that he came to know that his daughter would be playing netball on 30 June 2014. The magistrate recorded that during the netball game the appellant was a substantial distance away from Ms Bunn and his daughter. The magistrate did not accept the appellant's evidence that as he approached his daughter on the netball court, he was entirely focused on his daughter and did not see Ms Bunn. He described the appellant's evidence as fanciful and found that the appellant did see Ms Bunn.
His Honour found that it was clear that the appellant was approximately halfway up the netball court when the video was taken, (ts 67), meaning that the appellant was within 20 metres of Ms Bunn, (ts 69). The magistrate found that when the appellant yelled out his daughter's name in order to attract her attention so that he could give her the plastic bag containing the presents, he was within 20 metres of Ms Bunn.
The magistrate also reached the conclusion that the appellant approached within two or three metres of Ms Bunn as he walked down the pathway from the netball courts to the carpark. The magistrate declared himself satisfied beyond reasonable doubt that the appellant knew Ms Bunn was there. The appellant saw his daughter was being comforted by another child, and Ms Bunn's evidence, which the magistrate accepted, was that she was with her daughter at all times, (ts 69).
The approach to the grant of leave to appeal
Leave to appeal is required for each ground of appeal: s 9(1) of the Criminal Appeals Act 2004 (WA). Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success: s 9(2) of the Criminal Appeals Act 2004. That is, a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193 [56]. The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal: s 9(3) of the Criminal Appeals Act 2004.
The parties to the appeal
The appellant nominated the 'Police Department WA/Commissioner' as the respondent to the appeal. The correct respondent is the person who issued the prosecution notice, PC Oliver. At the commencement of the appeal I directed that PC Oliver be named as the respondent in substitution for 'Police Department WA/Commissioner'.
Grounds of appeal
The appellant has represented himself throughout the appeal process. In his appeal notice dated 14 March 2015 the appellant raised the following 24 grounds of appeal:
1.The Magistrate did not allow the accused to invoke the Dietrich Rule on request that the accused stated that the matter was serious (2 years' imprisonment) This was asked to be invoked previously on the 5 August 2014 by the accused.
2.The Magistrate informed the accused that he would not be imprisoned and a second time insured this, the accused asked how he could come to this conclusion as no evidence had been submitted.
3.The accused informed the Magistrate that he could not cross‑examine the witnesses as he was a Boiler Maker not a lawyer.
4.The Magistrate gave legal advice to the accused, informing him that he could cross-examine the witnesses and explained how the accused could do this.
5.The accused questioned section 3 of the act (satisfied) under the act the interpretation includes (probabilities) The Magistrate stated (no) the interpretation is beyond a reasonable doubt.
6.The accused questioned section 12(j) of the act, the relevance of Family Court Orders the magistrate did not take into account Family Court Orders, he informed the accused that he could apply these.
7.The Magistrate failed to question the Applicant relevant to Family Court Orders, as a legal requirement that Applicants are to submit to the proceedings, this matter was questioned to the Courts previously in this matter (on transcript, first directions hearing dated the 5 August 2014 and second directions hearing. (By the accused).
8.The Magistrate did not allow the accused on request of Court Summons be complied with, Filed the 2 February 2015 relevant to police investigation, Marked Attachment 'BH 2'.
9.This would identify the Applicants significant false sworn testimony's to the Courts and Affidavits and W.A. police statements. Relevant to the applicants conduct towards the accused.
10.The Magistrate erred and failed to take into consideration the Order relevant to the compliance of the order significant to the Children that a communication book be applied for communication.
11.The accused informed the Magistrate that on applying the book 3 times the applicant replied by way of (Email) to the first book and did not reply to the other two books.
12.The accused questioned the Magistrate as to an amendment of the Act section 61B(1)(c), to incite or encourage, the Magistrate stated to procure.
13.The accused informed the Magistrate that the applicant was applying the Order in a controlling and a manipulating manner to keep the accused 20 metres from his, their Children.
14.The Magistrate erred in law as this is offences against the accused and the children
Criminal Code Act 1913 (s. 333, s.338)
Children and Community Services Act 2004 (s.101)
15.The Magistrate erred in law, failed to take into consideration section 53B of the Act as the accused brought to his attention the evidence of the child specific to the matter.
16.The Magistrate erred in law, failed to take into consideration the accused questioned the police witness as to why they had not interviewed the child relevant to their investigation, as the child's evidence would be significant.
17.The Magistrate erred in law, as the prosecution tendered a document that was not in the original submissions. (Disclosure).
18.The Magistrate erred in law, failed to take into consideration that the prosecution failed to identify the specific distance of the order was in breach.
19.The Magistrate erred in fact and law, failed to take into consideration that the accused could not have known that his child was behind a brick wall or the applicant as the applicants video footage was extremely dark, the accused informed the Magistrate that the applicant and his child would be going home which meant to their car in the car park (not behind a brick wall).
20.The Magistrate erred in law, his conduct was significantly anxious not only to the accused yet also to the prosecution, he appeared extremely annoyed with the prosecutions time of witnesses and interview (which he stopped half way).
21.The Magistrate erred in law, informed the accused that he did not have to say anything or prove anything that they had to prove everything, on questioning the applicant the Magistrate informed the accused that there is perhaps one specific question you should ask the applicant. As most of the questions the accused asked under cross-examination of the applicant the Magistrate stated were irrelevant.
22.The Magistrate erred in law, failed to apply his discretion relevant to section 12(j) of the Restraining Orders Act, the Magistrate failed to consider section 62A of the Act (Family Violence) as informed to him by the accused (using the Order as a controlling and Manipulating tool against the Children and the accused) which includes (Provocation). The Magistrate failed to apply his discretion relevant to the Family Court Act 1997 s. 9A(1)(2)(a)(b)(c)(d)(e)(f)(g)(h)(i)(j) and the Family Law Act 1975 s. 60CA Best interest of a child and s. 60CG risk of family violence.
23.The Magistrate erred in law, failed to inform the parties as to section 43(2) of the Family Court Act 1997 that the matter would seek their consent, or the matter should be transferred to the appropriate Court of jurisdiction relevant to Family matters.
24.The accused felt extremely badgered and the decision was biased.
The diverse and lengthy grounds of appeal reflect the (understandable) difficulty which the appellant, as a lay person, encountered in his engagement with the processes of the criminal justice system. In his defence before the Magistrates Court, and in the application for leave to appeal, the appellant wished to raise a number of issues relating to Ms Bunn's attitude and approach to his relationship with his two daughters, which he considered ought to be taken into account.
The fact that the appellant was prevented by the magistrate's rulings from developing these arguments on the basis that they were irrelevant to the narrow issue that had to be determined at the trial was an evident source of frustration to him.
A number of the grounds of appeal involve common themes. The respondent's submissions grouped the grounds into categories by reference to such themes. I have followed a similar approach and with minor variations have adopted the respondent's categorisation of the grounds. I will consider the grounds by reference to the categories set out below.
Grounds 1, 2, 3 and 4 - the Dietrich Rule
The appellant's invocation of what he referred to as the 'Dietrich Rule' indicates a misunderstanding on his part as to the nature of the principle upon which he sought to rely.
For the purposes of dealing with this ground of appeal it is sufficient to state that a court faced with an application for an adjournment or a stay of proceedings by an indigent accused charged with a serious offence who, through no fault of his own, is unable to obtain legal representation should, in the absence of exceptional circumstances, adjourn or postpone or delay the trial until legal representation is available: Criminal Law in Western Australia (Weldon) [7860.15], Dietrich v The Queen (1992) 177 CLR 292; Ex parte Roddan (1995) 14 WAR 279.
The Dietrich principles did not apply to the appellant's case before the magistrate because the offence was not a serious offence and there was no prospect that the appellant was liable to be punished by a term of imprisonment. Moreover, the appellant adduced no evidence to support that he was unable to afford legal representation.
Given the appellant's lack of familiarity with the criminal justice system, it may not have been apparent to the appellant that what lay behind the magistrate's assurance to him at the commencement of the trial, that there was no prospect of his receiving a custodial sentence, was that the offence with which the appellant was charged and the circumstances in which it was committed meant that it was not an offence which was likely to result in the imposition of a term of imprisonment, and in the context of the Dietrich principle was not to be regarded as 'serious'. It was for this reason the appellant could not invoke the principle in Dietrich. To avoid any misunderstanding, to say in the context of a discussion of a the potential application of the Dietrich principle that this offence of breaching a violence restraining order was not a serious offence is not to be taken to suggest that this offence was trivial or that breaching a violence restraining order can never amount to a serious offence. The maximum penalty prescribed by the Restraining Orders Act 1997 for breach of a violence restraining order is a fine of $6000 or imprisonment for 2 years or both.
I would add the observation that the fundamental concern that underlies the Dietrich principle is the right to a fair trial. I have reviewed the transcript of the trial. In my view, the appellant received a fair trial. The magistrate treated the appellant with patience and courtesy. He explained the trial process to the appellant and explained the obligation on the appellant to put his version of events to any witnesses in cross‑examination (ts 18), (Magistrates Court Act 2004, s 30). This explanation appears to be the focus of ground 4 but there is no basis to criticise the explanation given by the magistrate. The magistrate assisted the appellant in a neutral way with the presentation of his evidence‑in‑chief.
In my opinion, grounds 1 to 4 have no reasonable prospect of success and I refuse leave in respect of them.
Grounds 20, 21 and 24 - conduct of the trial
Ground 20 involves a complaint that the magistrate stopped the prosecution from playing the video record of interview halfway through and that this indicated a level of anxiety or impatience on his Honour's part. As is disclosed by the transcript, (ts 50), the reason why the magistrate stopped the video recording was because the sound track was so poor as to be unintelligible. The appellant agreed with the magistrate that the video was not important so far as he, the appellant, was concerned.
On my reading of the transcript, there is nothing to indicate impatience on the part of the magistrate at all, let alone impatience of a level that might jeopardise a fair trial.
I refuse leave in relation to ground 20.
The focus of ground 21 appears to be the magistrate's explanation of the burden and standard of proof and his application of it. Neither the ground nor my examination of the transcript reveal any basis for criticism of the magistrate's approach. I refuse leave in respect of this ground.
Ground 24 contends that the appellant felt extremely badgered and that the decision was biased. As I have noted, in my opinion, the magistrate dealt with the appellant with patience and courtesy. Without derogating from that opinion and without implying any criticism of the magistrate whatsoever, it is not difficult to understand how a lay person with an imperfect understanding of the strict requirement for both submissions and questions to be relevant to the issue to be determined, may feel frustrated by a rejection by the court of irrelevant submissions and a disallowance of irrelevant questions. Such feelings of frustration do not, however, translate into a sustainable ground of appeal. Whatever the appellant may have felt, there is no basis for contending that the magistrate was biased. I refuse leave in relation to ground 24.
Ground 5 - burden of proof
This ground appears to concern an exchange between the appellant and the magistrate in the opening stages of the hearing, just after the magistrate had explained the hearing process and the burden of proof to the appellant. The magistrate explained that the prosecution had to prove each element of the offence beyond reasonable doubt. The appellant asked a question in which he referred to 'probabilities', (ts 19). The magistrate responded by making it clear that the onus lay on the prosecution to establish the case beyond reasonable doubt, (ts 20).
The ground has no prospect of success and I refuse leave in respect of it.
Grounds 6, 7, 22 and 23 - application of family law matters
By these grounds, the appellant contends that the magistrate erred in various ways by failing to take into account provisions of Family Law Act 1975 (Cth) and the Family Court Act 1997 as they may interact with s 12 of the Restraining Orders Act 1997 (WA). The precise basis upon which it is alleged that the magistrate erred is obscure. The appellant did not attempt to adduce any Family Court orders into evidence, even though the magistrate specifically informed the appellant that if he wished to rely upon on orders of the Family Court he should produce them, (ts 21). It has to be said, however, that even if such orders had been admitted into evidence, it is difficult to see how they may have assisted the appellant's case on the issue which the magistrate was required to determine.
The appellant's reliance on s 12 of the Restraining Orders Act 1997 suggests some confusion on the appellant's part as to the relevance of that section as it sets out matters to be considered by a court before granting a violence restraining order. It was not relevant to any issue concerning breach of an order.
I have considered the various legislative provisions to which these grounds of appeal refer and consider that they do not assist the appellant in establishing grounds that have a reasonable prospect of success and I refuse leave in respect of them.
Grounds 12, 15 and 22 - application of Restraining Orders Act provisions
Ground 12 invokes s 61B(1)(c) of the Restraining Orders Act 1997. I understand that the appellant relies on the provision to support an argument that Ms Bunn aided or procured the breach by walking towards the appellant or by putting herself between the appellant and his daughter. The provision does not assist the appellant. As the respondent's submissions point out, the subsection has the opposite effect of that contended for by the appellant. The subsection provides that the fact that a protected person (Ms Bunn) aids a breach of an order is not a mitigating factor.
Ground 15 alleged error on the part of the magistrate as he failed to take into account s 53B of the Restraining Orders Act 1997. This section governs the procedure to be applied when a child gives evidence. No child gave evidence and thus it was not relevant to the hearing or the application for leave to appeal.
Ground 22 alleges a failure to consider the factors set out in s 12 of the Restraining Orders Act 1997 and for the reasons given above, it does not assist the appellant. Ground 22 also alleges a failure to consider s 62A of the Restraining Orders Act 1997. This section is concerned with the investigation by police of suspected family or domestic violence and is not relevant to the issue which the magistrate was called upon to determine.
I refuse leave to appeal in respect of each of these grounds.
Ground 14 - contravention of various statutory provisions
In this ground, the appellant refers to various statutory offences. I understand this ground involves a submission that Ms Bunn had contravened the provisions to which reference was made and that the appellant and his daughters were the victims of the offences thereby committed. The allegations which the appellant seeks to introduce through this ground were not relevant to the issue the magistrate had to determine. I refuse leave in respect of this ground.
Grounds 8, 16 and 17 - investigation and disclosure
Ground 8 alleges, in effect, that the magistrate erred in proceeding notwithstanding that there had been no compliance with a summons to produce documents addressed to the Commissioner of Police. The appellant appears to have been particularly concerned to obtain the handwritten notes made by a police officer in the course of an interview between the appellant and that officer at the Midland Police Station, (ts 16 - 17). The police officer was not called to give evidence. I cannot see any basis upon which these documents or, indeed, any of the documents sought by the appellant in his summons, would have been relevant to the issue to be determined by the magistrate. Moreover, as is pointed out in the respondent's submissions, there was no evidence that the summons was served. I refuse leave in respect of this ground.
Ground 16 alleges, in effect, that the magistrate erred because he failed to take into account that the police had failed to interview his daughter and her evidence 'would be significant'. I assume that what the appellant is trying to establish by this ground is that the magistrate should have drawn an inference in his favour to the effect that, had his daughter been called to give evidence, she would have given evidence favourable to him. The police were not obliged to interview the appellant's daughter. I think it is most unlikely that the appellant's daughter would have been able to give any reliable evidence on the issue of how close the appellant approached her mother. The evidence of both the appellant and Ms Bunn was that the daughter was upset and crying. I refuse leave in respect of his ground.
Ground 17 alleges that the magistrate allowed the prosecution to tender a document that was not disclosed to the appellant prior to the hearing. There is nothing in the transcript to suggest that the appellant objected to the tender of any documents or was taken by surprise by the production of any documentary evidence. I refuse leave in respect of this ground.
Grounds 9, 10, 11, 13 and 22 - conduct of the complainant
These grounds reflect the appellant's difficulty in understanding those matters which were relevant to the narrow issue which the magistrate had to determine and those which were not. The hearing was not an occasion on which the appellant could air his grievances about Ms Bunn's behaviour towards him or her alleged failure to abide by the requirements of orders made by other courts. The appellant may have legitimate grievances or he may not. In either case, the hearing of the charge against him was not the occasion to consider them as they were of no assistance to the magistrate in determining whether the appellant approached within 20 metres of Ms Bunn.
I refuse leave in respect of each of these grounds.
Grounds 18 and 19 - errors of fact
As developed by the appellant at the hearing of the application for leave to appeal, the appellant contends that the magistrate could not and should not have found that he, the appellant, approached within 20 metres of Ms Bunn.
The appellant is challenging the magistrate's findings of fact which are credibility based findings.
For the reasons explained by Mazza JA in Elwin v Robinson [2014] WASCA 46 [65] the approach that I should take to this ground is the approach mandated by the High Court in M v The Queen (1994) 181 CLR 487, adapted to take account into account that the proceedings at first instance were before a magistrate.
The question is: whether on a consideration of all of the evidence, was it open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt? Shortly stated, the well-known principles direct me to be mindful of the fact that the magistrate had the primary responsibility for determining the appellant's guilt or innocence and had the benefit of seeing and hearing the witnesses. My role is not to substitute a trial by this court for a trial by a magistrate. Having said that, if I have a doubt, it is doubt that the magistrate ought to have experienced unless his advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by me.
I have reviewed the evidence carefully. I am satisfied that it was open to the magistrate to make the findings of fact made by him.
I refuse leave to appeal in relation to each of these grounds.
Sentence
Although the appeal notice referred to the appeal as an appeal against sentence none of the grounds of appeal were directed towards the fine imposed on the appellant. A fine of $300 appears to me to be well within the magistrate's sentencing discretion and unimpeachable on appeal.
Conclusion
I have refused leave to appeal in respect of each of the appellant's grounds. Accordingly, his application for leave to appeal should be dismissed. I will hear the parties in relation to costs.
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