Hassan v Trewin - [2004] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HASSAN -v- TREWIN [2004] WASCA 235

CORAM: STEYTLER J
TEMPLEMAN J
MILLER J

HEARD: 16 SEPTEMBER 2004

DELIVERED : 16 SEPTEMBER 2004

FILE NO/S: FUL 103 of 2004

BETWEEN: GHALI HASSAN
Appellant
AND
STEVEN TREWIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram   :BARKER J
File Number             :  SJA 1067 of 2004

Catchwords:

Appeals - Appeal against refusal of leave to appeal - Whether arguable case for grant of leave

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

STEYTLER J: I agree, for the reasons given by Templeman J, that the appeal should be dismissed.
TEMPLEMAN J: This is an appeal against the decision of Barker J, who refused the appellant leave to appeal against his conviction in the Court of Petty Sessions on a charge of common assault. The charge rose out of an incident which was alleged to have occurred at about 4 o'clock in the afternoon of Thursday, 18 December 2003 when the appellant was in his first floor unit at 42 McMaster Street in Victoria Park.
The complainant, who also lived in those apartments, parked her motor vehicle on the verge in front of the building, apparently in an area which was not designated for parking or at least, not designated for parking by her. The area where she parked was near the front door of the units and she parked there in order to carry groceries from her car into her apartment or unit. The complainant's car was parked underneath or close to the balcony of the first floor unit in which the appellant lived.
There was some altercation between the appellant and the complainant because the appellant did not want the complainant to park where she had. He was concerned that it would cause some noise and vibration which would interfere with his study. According to him, he asked her to move the car and she declined to do so. The allegation against the appellant was that he twice deliberately spat on the complainant from the first floor balcony whilst she was on the ground floor and that on both occasions spray and spittle struck her hair and face.
It was then alleged that the appellant came downstairs and further abused the complainant. The complainant called the police, who attended shortly after the incident and spoke to the appellant. He denied abusing and spitting on the complainant. The matter came on for trial in the Court of Petty Sessions on 23 June 2004, before a Stipendiary Magistrate. The appellant was unrepresented. He appeared on his own behalf and the prosecution was conducted by a police officer.
The Magistrate gave the appellant some guidance as to the way in which the matter would proceed in general. In particular he gave the appellant some guidance as to how he should go about cross examining the prosecution witnesses and giving his own evidence, and also in taking the evidence from his witness.
There were only two witnesses, including the appellant and the complainant, who claimed to have been involved in the incident itself.

The complainant was asked to tell the court what had happened at about 10 past 4.00 on the afternoon of 18 December and the complainant then proceeded to do so, without interruption. She simply told her story. In so doing she said that the appellant, and I quote:
"Actually lent over the railing and aimed at me by pursing at his lips, looking at me, aiming at me to spit at me and he did. He caught me and the spray went on my face and on my hair. I called him a pig,
I think, at this stage. At this point I was still trying to get my groceries out of the car and into my unit and once again he lent over the rails and spat at me again, pursed his lips, aimed at me and spat but this time I was a little bit more ready for him and he didn't get me as much, and as I was walking away I felt a spray also, so it was actually more than twice, as stated in my report.
Then he actually went in, back into his unit and I thought that was the end of it and he came charging out, charging down the stairs on the right-hand side of the units and stopped short in a threatening way. At this point I felt quite afraid of him and I actually said to him - I was actually ready to run into my unit and I said to him, you know, 'What are you doing?' Then that's when I said, 'I've had enough. I'm calling the police. You're going to end up with a criminal record if you don't stop it.'
And that's basically what happened. I went into my unit and called the police."
All that evidence was given without any prompting or intervention by the prosecutor. Although it is true that later in the course of the examination in chief of the complainant, the prosecutor - that is, the police officer, did ask some leading questions - for example, the prosecutor said: "I think you said he pursed his lips. Is that right?" - clearly a leading question that was only emphasising, I think, what the complainant had said previously.
It certainly added nothing to the evidence which she had already given. The other leading questions asked by the prosecutor were of the same type. They caused the complainant simply to repeat what she had said previously, without any deviation or inconsistency between what had been said previously and what was said in answer to those questions.
Apart from the police officer who had attended subsequently, there was one other witness called by the prosecution. That was another resident in the block of units, a Ms Seeter. But she was not a witness who had seen anything. She had been inside her unit and had heard the complainant's voice raised. She said she had heard the appellant swearing at the complainant and she had heard the complainant say that she was going to call the police. However, she was not a witness to the alleged spitting.
There was apparently some inconsistency between the complainant's evidence about the appellant coming out of the unit and his version, but that was not a matter which was ultimately the subject of any finding by the Magistrate and I do not think anything turns on it.
The appellant himself gave evidence and denied that there was any spitting. He accepted there was an argument. He said that the complainant had been insulting to him but he denied categorically that there had been any spitting.
The appellant called a witness, a Mr Kahl, who had been in his flat in the units at the material time. He was not a witness who had actually seen anything. He was simply asked whether he had heard an argument. He said he had. He said he had not seen the appellant going down the stairs and having an argument with anybody and he had not seen the appellant assault anybody. He was not a witness who could really carry the matter any further. In the end, therefore, there was simply a contest between the complainant and the appellant. The Magistrate correctly directed himself in the way in which he approached the case. He made it plain that he had to be satisfied beyond a reasonable doubt that the complainant's evidence was true. He raised for himself the question of provocation, even though that had not been raised by the appellant, but quite properly, in my view, rejected that possibility.
The Magistrate gave himself a Liberato direction, quite correctly; that is to say he directed himself in the way the High Court has required the finder of facts to be directed: that even if he did not positively believe what the appellant had said he could not convict the appellant if the appellant's evidence raised any reasonable doubt in his mind as to the truth and accuracy of the complainant's evidence.
In the end the Magistrate came to the conclusion that he believed the complainant and was satisfied beyond a reasonable doubt that her evidence was true in relation to the spitting.
The appellant has pointed out to us this morning that the complainant's evidence was not entirely truthful and accurate, in the sense that she was apparently wrong in her evidence about the length of time that she had lived in the units. She had said it was only quite a short time - a few months - whereas in fact she had been there for something like a year, or over a year.
However, despite that inaccuracy in her evidence, the Magistrate was perfectly entitled to accept her evidence in relation to the charge. As I have said, he directed himself correctly. He considered all the evidence and he was satisfied beyond a reasonable doubt that the charge was proved. In my view, the magistrate did not make any error.
Although, therefore, the appellant has a right to apply for leave to appeal under the Justices Act and he exercised that right in appearing before Barker J, his right to appeal is conditional upon the appeal not being frivolous or vexatious and on his having an arguable case.
The appellant came before Barker J, as I have said, who had read the papers and came to the conclusion that the grounds of appeal advanced did not disclose an arguable case. In my view the learned judge was correct in reaching that conclusion.
The grounds of appeal from Barker J's decision are firstly, that there was no evidence to support the complainant's allegation. Therefore, the charge and conviction were racially motivated. Now, clearly there was evidence to support the complainant's allegation. It was the complainant's own evidence and, as I have said, the Magistrate in the end believed it. There is nothing in that ground of appeal.
The second ground is that the learned Magistrate allowed untrue submissions and hearsay evidence. I am not entirely sure what "untrue submissions" means in this context. It may well be a reference to what the complainant said about the length of time she had stayed in the unit, or it may be simply an allegation that what she said generally in relation to this matter was untrue. Again, as I have said, the Magistrate came to the conclusion that it was true.
So far as hearsay evidence is concerned there was no hearsay evidence given in relation to the facts constituting the offence.
The next complaint is that the complainant lied under oath because she was motivated to throw the appellant out of the premises. Again, there is nothing in that point because the Magistrate believed the complainant.
The next point is that fresh evidence is now available from the witness. Nothing has been said about that but the point would have no substance because any evidence available from the witness would have been evidence available at the time. It is not open to the court to admit fresh evidence where evidence could have been given at the material time but was not given.
Then it is said the learned Magistrate allowed the police to give evidence and based his finding on the evidence. The police certainly gave evidence about their attendance subsequently and in relation to their interviews with the complainant. None of that was relevant to the charge directly and the Magistrate did not base his decision on any of that evidence.
Then there was the point that the Magistrate made his finding on the basis that the appellant was "too concerned" about parking, despite evidence that the appellant had no car. I think that is really very much a side issue because it is peripheral to the complaint and the matters relating to that complaint.
Then there is the complaint that the Magistrate allowed the police to ask leading questions and to put pressure on the appellant.
As I have said in relation to the complainant's evidence, the only leading questions asked were those in which the complainant was required to clarify what she had said earlier, when she was not being led. She did so without adding to or in any way enlarging her earlier evidence.
Then it is said the respondent's evidence contradicted sharply with the witness's. That is true, in the sense that there was a clear conflict of evidence. But that conflict was resolved by the Magistrate in a proper way.
Finally, there is the contention that there was a miscarriage of justice in that the findings were unreasonable and could not be supported by the evidence.
Again, I can only say that the evidence was there and the Magistrate believed it. I have come to the conclusion, therefore, that Barker J was correct in his decision that there was no arguable case disclosed by the appellant. The appeal should therefore be dismissed.

MILLER J: I agree with the reasons delivered by Templeman J. I have nothing to add.