Hefny v Barnes
[2021] TASSC 4
•19 February 2021
[2021] TASSC 4
COURT: SUPREME COURT OF TASMANIA
CITATION: Hefny v Barnes [2021] TASSC 4
PARTIES: HEFNY, Mohamed
v
BARNES, Alisha
FILE NO: LCA 2901/2019
DELIVERED ON: 19 February 2021
DELIVERED AT: Hobart
HEARING DATE: 20 October 2020
JUDGMENT OF: Blow CJ
CATCHWORDS:
Magistrates – Hearing – Conduct of magistrates – Participation – Controlling presentation of evidence-in-chief of unrepresented defendant and his witness – No unfairness in the circumstances.
Aust Dig Magistrates [1119]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: S Nicholson
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2021] TASSC 4
Number of paragraphs: 23
Serial No 4/2021
File No LCA 2901/2020
MOHAMED HEFNY v ALISHA BARNES
REASONS FOR JUDGMENT BLOW CJ
19 February 2021
This is a motion for the review of a determination by a magistrate, Mr R Marron, by which he found that two charges against the applicant, Mohamed Hefny, were proven. Both charges related to an incident on 24 March 2018. The first alleged that the applicant assaulted a man named Richard Lloyd by grabbing his arms and pushing him, by grabbing his arms again, by punching him twice, and by pushing him again. The second charge alleged that the applicant resisted two police officers in the execution of their duty by struggling with them and refusing to place his arms behind his back to be handcuffed. The applicant has filed a notice to review which contains grounds in which he asserts that the learned magistrate denied him procedural fairness in several respects, and that he was obliged to disqualify himself on the basis of apprehended bias.
The applicant did not have a lawyer in the Magistrates Court or for the hearing of this motion to review. To a large extent the submissions that he made to me did not relate to procedural fairness or apprehended bias, but to asserted weaknesses in the prosecution case and the proposition that he was innocent. In the Magistrates Court, witnesses gave evidence to the effect that the applicant committed the offences that he was charged with. It was open to the learned magistrate to believe those witnesses and find the charges proven. The grounds listed in the notice to review do not contain any assertion that the prosecution evidence was too weak or too unreliable for the learned magistrate to find the charges proven. My role therefore is to determine whether the learned magistrate denied the applicant procedural fairness, or whether he erred by proceeding when he should have disqualified himself on the basis of apprehended bias.
At the start of the hearing I made an order extending the time for the filing of the applicant's notice to review. That notice contains seven grounds. The seventh is not a true ground of review, but a reference to his application for an extension of time.
Procedural fairness
Mr Jadav's evidence
Grounds 1 to 5 relate to procedural fairness. I will deal first with ground 5 as it is the only ground that relates to the presentation of the prosecution case. That ground reads as follows:
"5 The learned Magistrate erred in law in allowing the prosecutor to translate evidence of a prosecution witness whereby the prosecution had the opportunity to employ the service of a qualified translator and elected not to do so."
This ground relates to a prosecution witness named Beshu Jadav. He was a PhD student. His English was not perfect. The transcript records that the following exchange occurred during his evidence-in-chief:
"HIS HONOUR: Yes, what's the next thing that happened?
WITNESS: And next Mohamed Hefny said, 'Why did you,' he told me, he didn't told me, just said me, 'Better give your own country person or Indian or Nepalese, better to keep Sigmund [Mr Lloyd] out of this house'.
PROSECUTION (resuming): He said, 'Better for you to have someone from your country'……..Yeah.
In the house?........ Yes.
And better to keep Sigmund out of the house?........ Yes, yes.
Is that what he said?........Yes, and I don't know why or what happened between him and Sigmund, I don't know.
HIS HONOUR: That's probably just enough for the moment. I'm having my clerk make enquiries about an interpreter.
PROSECUTION: That might be limited if we – I might have a discussion with the clerk later about that. I think –
WITNESS: At –
HIS HONOUR: Whoa, whoa –
PROSECUTION: I think, if I take him slowly, I'll be able to get the general thrust of his evidence. His evidence would be relatively minimal, your Honour.
HIS HONOUR: Well, now, Mr Jadav, it's lunch time – it's actually past lunch time – so we're going to have a break and we'll resume at 2.15."
Shortly after that the magistrate adjourned for lunch. When the hearing resumed after the adjournment, nothing was said about whether or not an interpreter was needed or was available. Mr Jadav proceeded to give his evidence in English.
His English was not ideal. For example, he referred to a plumber's bill as "my plumbing charge". He sometimes left out words such as "and" or "the". However, having read the transcript of his evidence, I am satisfied that he always made himself understood, and that the prosecutor did not put words into his mouth. The prosecutor certainly did not translate anything that he said, nor did he make any attempt to suggest that any of his answers had a particular meaning.
I accept that there are times when a magistrate has a duty to arrange an interpreter for a witness who is unable to express himself or herself with reasonable clarity in the English language. I accept that sometimes a defendant might be prejudiced in his or her defence if that is not done. However Mr Jadav was able to make himself understood. The magistrate was therefore not obliged to arrange for an interpreter to be provided. The absence of an interpreter cannot have made any difference to the outcome of the case. Ground 5 must therefore fail.
The applicant's evidence
Grounds 1 and 2 relate to the applicant's evidence-in-chief. They read as follows:
"1 The learned Magistrate erred in law in not affording the applicant an opportunity to give his own evidence in chief.
2 And/or in the alternative to ground 1 above, the applicant was not given procedural fairness as he was not given an opportunity to give his own evidence in chief."
When it was the applicant's turn to give evidence, the learned magistrate had heard evidence from four prosecution witnesses – Mr Lloyd, Mr Jadav, and two police officers. It is clear from the transcript of the hearing that he understood the sequence of events that occurred, or were alleged to have occurred, on the day to which the charges related. When the applicant gave his evidence-in-chief, the learned magistrate did not ever give him an open invitation to say whatever he wanted to say. Instead he asked him a series of questions, inviting him to outline the events of the day in question from beginning to end. At times he intervened to clarify things that the applicant said, and to question him as to matters of detail. Apart from a couple of uncontroversial preliminary questions, the magistrate did not ask any leading questions. That is to say, he did not ever put words into the applicant's mouth. He did not challenge anything that the applicant said. He elicited a coherent account of events relating to the two charges in much the same way as a lawyer representing the applicant would have done. In relation to the encounter between the applicant and Mr Lloyd to which the assault charge related, and the encounter between the applicant and the police officers to which the second charge related, the magistrate allowed the applicant to give his version of events without any significant interruption. The evidence-in-chief occupies 22 pages of transcript. Everything that the applicant said was said in response to a question from the magistrate. At the conclusion of the evidence-in-chief, the applicant was not asked whether there was anything additional that he wanted to say. The applicant was questioned by the magistrate as if the proceeding was an inquisitorial one, rather than an adversarial one. The nature of the questioning had a substantial practical advantage, in that it enabled the magistrate to hear a detailed and thorough account of the relevant events. There was no risk of the applicant's account being jumbled, incomplete or confused.
The magistrate had a fundamental duty to ensure that the applicant received a fair trial: MacPherson v The Queen (1981) 147 CLR 512 at 523; Tomasevic v Travaglini [2007] VSC 337, 17 VR 100 at [139]. To receive a fair trial, a defendant must have a proper opportunity to advance his or her defence to the charges: RPS v The Queen [2000] HCA 3, 199 CLR 620 at [11]; Wharton v The Queen (No 2) [2017] WASCA 164 at [128]. It will often be necessary or desirable for a magistrate who is hearing a case involving a self-represented litigant to intervene to stop irrelevant matters being raised or to prevent unnecessary delays or disruptions: Michael v Western Australia [2007] WASCA 100 at [65]. This is not a case of a magistrate intervening, but a case of a magistrate taking control of the presentation of a defendant's evidence-in-chief from start to finish. He should have invited the applicant to give evidence relating to the charges, and not asked any questions of his own until there was a good reason to do so. However it is clear from the transcript that no unfairness to the applicant resulted from the magistrate failing to take that course.
His defence to the assault charge was that he did not use force against Mr Lloyd in any of the ways alleged, or at all. As to the charge of resisting police, he conceded that he was told that he was under arrest, but contended that he had not committed an assault, that he was not told why he was being arrested, and that he did not resist in any way. Although the magistrate controlled the presentation of his case by asking questions, that did not prevent him from giving a detailed, thorough and unrestricted account of the events relating to his encounters with Mr Lloyd and the police officers. The way in which the magistrate conducted the case did not hinder him in advancing his defence to the charges in any respect. Grounds 1 and 2 must therefore fail. He received a fair hearing.
The applicant's wife's evidence
The applicant called his wife, Amira Elshazly, as a witness in the court below. Grounds 3 and 4 relate to her evidence. They read as follows:
"3 The learned Magistrate erred in law in not affording the applicant the opportunity lead [sic] evidence in chief from his witness.
4 And/or in the alternative to ground 3 above, the applicant was not given the [sic] procedural fairness as he was not given the opportunity to lead evidence in chief from his witness."
When Ms Elshazly was called as a witness, the magistrate told her, "Mr Hefny will take you through your evidence and then there'll be some questions from the police ...". However the magistrate began by asking her a series of questions relating to the assault charge. Those questions and the answers to them occupy about nine pages of transcript. The magistrate then invited the applicant to question his witness, which he did. He asked about four questions and then indicated that he had no more questions relating to the assault charge. The magistrate then asked the witness a series of questions about the charge of resisting police. Those questions and their answers occupy about six pages of transcript. He then gave the applicant an opportunity to ask more questions, which he did. Those questions and the answers occupy a little over six pages of transcript.
The magistrate did not put words into the mouth of the witness. Between them, he and the applicant elicited a detailed and thorough account of the relevant events. Significantly, the witness gave evidence to the effect that she saw the encounter between her husband and Mr Lloyd, that the acts of physical violence alleged by Mr Lloyd did not happen at all, that her husband was told that he was under arrest, that he asked what he was being arrested for and did not get an answer, and that he co-operated in allowing the police to handcuff him.
The magistrate did give the applicant an opportunity to lead evidence-in-chief from the witness personally, contrary to the assertions in grounds 3 and 4. It is perhaps surprising that he questioned the witness before inviting questions from the applicant, first in relation to one charge and then in relation to the other. However the applicant was not hindered in presenting evidence from his wife to support his case. The manner in which the magistrate questioned the witness did not result in any unfairness to the applicant. Grounds 3 and 4 must therefore fail.
Apprehended bias
Ground 6 reads as follows:
"6 A reasonable, impartial observer, would have apprehended bias on the part of the learned Magistrate with particulars to be supplied."
A judge or magistrate is disqualified from hearing a case if a fair-minded lay observer might reasonably apprehend that he or she might not bring an impartial mind to the resolution of a question that he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6].
Although ground 6 foreshadowed the supplying of particulars relating to the allegation of apprehended bias, no such particulars were formally provided to the court. The applicant did file a document in the form of an affidavit in which he set out contentions relating to the magistrate's decision. However none of his criticisms in that document made any reference to the contention that a reasonable observer might have apprehended possible bias on the part of the magistrate. Similarly, none of his submissions at the hearing of the motion to review were said to provide a basis for a possible apprehension of bias. As I understand his submissions, the applicant contends that there was a basis for an apprehension of bias because the magistrate, in his reasons for finding the charges proven, made adverse comments relating to the applicant's credibility, and made findings of fact that went against him.
The magistrate provided written reasons for his decision. Although he made adverse findings as to the applicant's credibility and as to the commission of the offences of assault and resisting police, there is nothing in those reasons to indicate any possibility of pre-judgment or any lack of impartiality.
It is clear from the transcript that the magistrate gave no indication of siding with the prosecutor or of unwillingness to listen to argument. In the section of his reasons in which he considered the applicant's credibility, he took into account at [36] that the applicant would have found the court appearances "uncomfortable and potentially distressing". At [37] he said that he did not believe that tolerance or patience could be counted amongst the attributes that the applicant possessed, but then said, "it does not automatically follow however that the lack of these attributes brands a person as being prone to violence".
Ground 6 must fail because nothing that the magistrate said or wrote gave any indication of possible bias. The fact that he disbelieved the applicant and his wife is not an indication that he might have been biased when he evaluated the evidence.
Conclusion
For these reasons, the motion to review must be dismissed. I emphasise that the grounds of review relied upon by the applicant required me only to consider issues relating to the fairness of the hearing. I was not required to consider whether he was guilty or innocent.
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