Hodder v Neenan
[2020] WASCA 163
•2 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HODDER -v- NEENAN [2020] WASCA 163
CORAM: QUINLAN CJ
MAZZA JA
PRITCHARD JA
HEARD: 12 JUNE 2020
DELIVERED : 2 OCTOBER 2020
FILE NO/S: CACR 144 of 2019
BETWEEN: JAMES LESLIE HODDER
Appellant
AND
ROBERT NEENAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
File Number : SJA 1028 of 2019
Catchwords:
Criminal law - Appeal against conviction - Whether amendment to charge on day of hearing occasioned prejudice to the appellant - Admissibility of evidence - Whether adjournment should have been granted by magistrate on grounds of ill‑health - Whether verdict unreasonable or cannot be supported by evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 16, s 18, s 30(3)(a), s 39, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 132, s 134
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r 32(4)(c)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | J Scholz |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Avsar v Binning [2009] WASCA 219
City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Frailing v Mackay [2020] WASCA 73
Hodder v Neenan [2019] WASC 311
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Waters v Wigger [2017] WASCA 46
Wells v The State of Western Australia [2017] WASCA 27
Wright v McMurchy [2012] WASCA 257
JUDGMENT OF THE COURT:
On 7 February 2019, the appellant was convicted, after a trial, of two charges. The first was that on 30 January 2018, the appellant unlawfully assaulted a female victim in circumstances of aggravation, namely that the victim was over the age of 60 years (aggravated assault charge).[1] The second charge was that on 20 February 2018, the appellant obstructed First Class Constable Thomas Arthurs, in the performance of his functions (obstruction charge).[2] The appellant was sentenced to a global fine of $1000, and was ordered to pay costs of $100.
[1] Charge number PE 9219/2018.
[2] Charge number PE 9220/2018.
The appellant applied for leave to appeal against both convictions, and against the sentence imposed. Justice Hill refused leave to appeal and dismissed the appeal.[3]
[3] Hodder v Neenan [2019] WASC 311 (Primary Reasons).
The appellant now seeks leave to appeal against the decision of the learned primary judge.[4] He advances six grounds of appeal. They broadly reflect most of the grounds of appeal advanced before the primary judge.[5]
[4] Criminal Appeals Act 2004 (WA) s 16(2).
[5] The appellant in fact advanced seven grounds of appeal before the primary judge. He did not advance a ground of appeal reflecting ground 2 before the learned primary judge (namely that he was refused an adjournment to secure a lawyer). The tenor of each of the remaining grounds was reflected in the grounds of appeal advanced in this appeal.
The appellant requires leave to appeal on each ground of appeal to this court.[6] Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.[7] The appellant's application for leave to appeal on each of his grounds of appeal was referred to the hearing of the appeal.[8]
[6] Criminal Appeals Act, s 9, s 18.
[7] Criminal Appeals Act, s 9(2), s 18.
[8] Order made on 5 November 2019 by Mazza JA (WAB 4).
For the reasons outlined below, the appellant has failed to establish that he has a reasonable prospect of succeeding on any of the grounds of appeal.[9] Leave to appeal must therefore be refused and the appeal dismissed.
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
The circumstances of the offending
It is convenient to commence with an overview of the evidence adduced in respect of each of the charges, before turning to the findings made by the learned magistrate.
Overview of the evidence in relation to the aggravated assault charge
On 30 January 2018, the appellant was living at a set of flats in Subiaco (Flats). The victim, who was 68 years of age at the time, was visiting the Flats on that day. She was a paid carer for one of the residents who lived there, and provided cleaning and other assistance for other residents, in a voluntary capacity.
The evidence of the victim was that at about 3.00 pm she went to collect some mail from the residents' mailboxes. As she did so, the appellant came up behind her and started shouting obscenities at her. The victim had never met the appellant before. The appellant then moved away, while still shouting obscenities at the victim. She followed him, through the grounds of the Flats towards Barker Road, and across Barker Road, asking what his name was and where he lived, because she wanted to be able to identify the person who had abused her. Eventually the appellant stopped, and at that point he grabbed both of the victim's wrists, and said 'help me, help me' in a high-pitched voice, 'like a girl'. Another man, Mr Kevin Sarre, at that point came out of nearby premises and told the appellant to let the victim go. The appellant then hit the victim on her left buttock with his right hand. That was the conduct which constituted the assault. The appellant then walked back to his unit at the Flats, followed by the victim and Mr Sarre.
Part of these events was witnessed by Mr Gary Smith, another resident of the Flats, for whom the victim was a carer.
Mr Smith's evidence was that he was on the balcony of his unit when he saw the appellant walking quickly, while the victim followed him, asking him his name and where he lived. Mr Smith then went out to Barker Road and saw the appellant holding the victim by the arms and yelling 'help me, help me' in a girl's voice. Mr Smith then saw another man, Mr Sarre, come up to the appellant and the victim. Mr Smith then saw the appellant hit the victim on her bottom with his right hand. The appellant then left and went back to his own unit, followed by the victim and Mr Sarre. Mr Smith later called the police.
Mr Sarre was working in premises on Barker Road when he thought he heard a woman calling for help. He ran outside and saw a man (the appellant) walking quickly, and a woman tugging at his sleeve, saying 'stop him, he assaulted me'. Mr Sarre did not see the appellant hit the victim. Mr Sarre approached them and heard the appellant say 'leave me alone'. Mr Sarre then accompanied the appellant back to the appellant's unit, along with the victim, before returning to his business premises.
The appellant gave evidence in his defence. His evidence was that he had left his unit at the Flats to walk outside and was approached by the victim, who starting following him, and yelling at him to stay away from another resident. He denied that he came up behind the victim and starting yelling obscenities at her. The appellant said that the only time he went through the mail box area was when the victim was chasing him. The appellant said that he walked away from her towards Barker Road, but the victim continued to follow him. He said the victim eventually caught up with him, grabbed him by the wrist, and asked him what his name was, at which point he walked off and yelled out 'help, help'. He claimed that the victim hit him. He denied having hit the victim on the buttock, and denied that she tried to tug at his arm to stop him from moving on. The appellant also said that he saw Mr Smith outside the Flats and Mr Smith was yelling at him. The appellant said that Mr Sarre then came out of his premises, and spoke to them. The appellant said that he wanted to go back to his unit, and Mr Sarre went with him.
Ms Valerie Fernandez also gave evidence. She said that she was at the appellant's flat, and went outside onto the balcony. She denied having seen the appellant following the victim. Ms Fernandez said she saw the victim chasing the appellant, and Mr Sarre chasing both of them. They came up to the appellant's unit, and the victim told Ms Fernandez that she had been assaulted.
Overview of the evidence in relation to the obstruction charge
The evidence adduced at the hearing in respect of this offence was, in summary, as follows.
On 20 February 2018, Constable Neenan was on duty with First Class Constable Arthurs. They were conducting enquiries into a report of an indecent assault on the victim. Early that morning, they took statements from Mr Smith and Mr Sarre. They then went to the appellant's unit to speak with him. Ms Valerie Fernandez, a friend of the appellant's, answered the door, and the appellant then came to the door. Constable Neenan told the appellant that he was arresting him on suspicion of an indecent assault, and commenced cautioning him. At that point the appellant started to swear at Constable Neenan, asking why he was being arrested. The two police officers then tried to escort the appellant out of his unit and down the stairs of the Flats, but he refused to go. Constable Neenan tried to grab the appellant's arm, but he pulled away and a scuffle arose. The two police officers grabbed each of the appellant's arms, handcuffed him, and escorted the appellant down the stairs. When they got to the police van, the appellant refused to get into the van, and began swearing obscenities at the police officers. The police officers then placed the appellant into the police van and took him to the Wembley Police Station where he was charged.
First Class Constable Arthurs gave evidence that after obtaining other witness statements, he and Constable Neenan went to the appellant's unit at the Flats. After the appellant came to the door, Constable Neenan advised him that he was under arrest on suspicion of an indecent assault, and at that point, the appellant started yelling profanities, and tried to walk back inside his unit. First Class Constable Arthurs said that he and Constable Neenan then took hold of the appellant by his wrists but he pulled away and as they escorted him down the stairwell he continued to swear at them and to attempt to pull away from them. They then placed the appellant in handcuffs and escorted him out to the police van, at which point he was cautioned. The appellant refused to get into the police van, and kicked out at them. First Class Constable Arthurs said that the police officers then placed the appellant inside the van, and took him to Wembley Police Station.
The appellant also gave evidence in relation to this charge. His evidence was that he was at home on the morning of 20 February 2018 when police officers knocked on the door of his unit. He said that the police officers told him that they were going to arrest him for indecently assaulting a young girl, and the appellant said that that frightened him because he did not know what they were talking about. He denied that he swore at the police officers. He admitted that when one of the police officers grabbed him by the wrist he pulled his arm away, because it was hurting him, but denied resisting them and said that his health meant that he had no strength to do so. He said that when he was handcuffed he was in a lot of pain, and that he was unable to get into the police van because of the handcuffs and because he was not well.
Ms Fernandez's evidence in relation to the events of that morning was that the police officers came to the door of the appellant's unit and told the appellant that he was under arrest for assaulting a young girl. She said that the police then grabbed the appellant and that the appellant was trying to push the police officer to let go, and was trying to release himself from their grip. She said that the police officers then walked the appellant down the stairs and then banged him against a wall, twisting his arm, and then they took him away. She went out onto the balcony again and saw the appellant being taken by the police in handcuffs.
Findings made by the learned magistrate
The learned magistrate found Mr Sarre to be an independent witness, and accepted his evidence in its entirety. She found the victim and Mr Smith to be credible witnesses, whose evidence she accepted save in so far as it differed from that of Mr Sarre, in which case she preferred Mr Sarre's evidence to theirs. The learned magistrate found the appellant's evidence to be inconsistent and not credible. She found that Ms Fernandez's evidence of the events of 30 January 2018 added little, but was, in any event, consistent with the evidence given by the other witnesses.
The learned magistrate made the following findings of fact in relation to the aggravated assault charge:[10]
On 30 January 2018 both [the appellant] and [the victim] were at the … Flats. [The victim] went to collect the mail and heard a male voice abusing her. She followed the man asking for his name and address. She followed him and the language continued by [the appellant]. [The appellant] grabbed her by both wrists and this was seen by Mr Greg Smith. Mr Sarre heard a voice … which he thought was [the victim] saying 'Help me, help me'. He left his business premises and he saw [the appellant] and [the victim]. [The appellant] let go of [the victim] and struck her to the left buttock with his right hand. [The appellant] then walked to the units with Mr Sarre or ahead of Mr Sarre and [the victim]. The police were called by Mr Smith and investigated the matter further on 20 February 2018.
[10] ts 9, 7 February 2019.
On the basis of these findings, the learned magistrate found that the prosecution had proved each element of the offence beyond a reasonable doubt and convicted the appellant of the aggravated assault offence.
The learned magistrate found the evidence of Constable Neenan and First Class Constable Arthurs to be credible and reliable and she accepted their evidence,[11] which she found was also largely supported by the evidence of Ms Fernandez who described the appellant on a number of occasions as resisting the police.[12] The learned magistrate accepted Ms Fernandez's evidence that the appellant was actively resisting the police. The learned magistrate found that the appellant admitted in his own evidence that he was pulling his hand away from the police officer. While the appellant disputed resisting or swearing at the officer, the learned magistrate did not accept that his evidence in that respect was credible.[13]
[11] ts 12, 7 February 2019.
[12] ts 12, 7 February 2019.
[13] ts 13, 7 February 2019.
In respect of the obstruction charge, the learned magistrate made the following findings:[14]
PC Neenan and PC Arthurs, having visited witnesses early in the morning on 20 February 2018 and having taken statements, attended [the appellant's] address. PC Neenan knocked on the door, which was answered by Ms Fernandez. At the time the [appellant] was seated in the unit. The [appellant] went to the door voluntarily and PC Neenan told him he was under arrest for suspicion of indecent assault.
[The appellant] uttered obscenities to the officers and pulled his arm away when PC Neenan tried to take his arm. He walked back into the apartment. The officer entered … pursuant to section 132 of the Criminal Investigations Act and each officer took a hold of each arm to escort him to the van. There was a scuffle in the stairwell before the first landing and he was handcuffed, and the handcuffs were applied before escorting him down to the van further.
[The appellant], I accept, had difficulty in entering the van and refused to do so and was assisted by both officers in getting into the van and, therefore, on that basis I find the prosecution have proved each element of the offence beyond a reasonable doubt and I'm convicting [the appellant] of that offence.
[14] ts 13, 7 February 2019.
Nature of the appeal
The appellant's right of appeal to this Court against the decision of the primary judge to refuse leave to appeal and to dismiss his appeal arises under s 16(2) of the Criminal Appeals Act 2004 (WA). An appeal of that kind is an appeal by way of a re-hearing, and not an appeal de novo.[15] The fundamental task of this Court is to correct an error or a miscarriage of justice.[16] Consequently, an appellant must demonstrate that there has been error of a recognised genre, by the primary court, that falls to be corrected, or that there has been a miscarriage of justice, so that the appellant is entitled to the orders or relief sought.[17] Subject to the possible admission of additional evidence,[18] the court will carry out its appellate function by reference to the record of the court below, bearing in mind that the primary judge did not have the advantage that the learned magistrate had in seeing and hearing the witnesses at trial.[19]
[15] Supreme Court (Court of Appeal) Rules, r 25; Frailing v Mackay [2020] WASCA 73 [116]; Wright v McMurchy [2012] WASCA 257 [27] ‑ [28] (Pullin JA, Mazza JA agreeing), [97] (Buss JA).
[16] Frailing [116].
[17] Wright [97] (Buss JA) citing Avsar v Binning [2009] WASCA 219 [37] (Owen JA, Miller & Newnes JJA agreeing).
[18] Criminal Appeals Act, s 39 and s 40(1)(e).
[19] Frailing [116].
In an appeal of the present kind, the grounds of appeal must identify an error by the single Judge whose decision is under appeal.[20] The Supreme Court (Court of Appeal) Rules 2005 (WA) contemplate that the grounds of appeal filed by an applicant will state, for each ground, whether the ground contends for an error of fact, an error of law, or an error of mixed fact and law.[21] The grounds of appeal advanced by the appellant do not expressly allege errors by the learned primary judge and do not indicate whether an error of law, or fact, or mixed fact and law, was made. The grounds of appeal appear to refer, or to primarily refer, to errors said to have been made by the learned magistrate.
[20] Wright [96] (Buss JA); Waters v Wigger [2017] WASCA 46 [77] (Mitchell JA).
[21] Supreme Court (Court of Appeal) Rules, r 32(4)(c).
Construing the grounds most favourably to the appellant, we have understood them to contend that the learned primary judge erred in law or in fact in failing to find an error by the learned magistrate of the kind asserted by the appellant.
Ground 1
Ground 1 is in the following terms:
Refused fair and just trial by having two separate charges heard same day and time strongly inconveniencing the appellant's defence.
This ground reflects ground 3 of the grounds of appeal advanced before the learned primary judge.[22]
The power to order that discrete charges be tried together
[22] Ground 3 in the appeal before the learned primary judge was 'Refused his legal rights and fairness by having 2 separate charges heard same day and time': Combined Blue and Green Appeal Book (BGAB) 2.
Section 134 of the Criminal Procedure Act 2004 (WA) (CP Act) permits the court to order that two or more charges against one accused that are contained in two or more separate prosecution notices be tried together if three preconditions are met: the prosecutor consents; the court has jurisdiction to deal with all of the charges; and the court is satisfied that it is in the interests of justice to do so.
Each of the charges against the appellant was contained in a separate prosecution notice.
The charges were ordered to be tried together. That decision was initially made on 22 March 2018, when a hearing date was listed for 27 September 2018. On that date, the trial failed to proceed, and the question whether the charges should be tried together was revisited. A decision was again made that the charges should be tried together, and a hearing date set. At the commencement of the hearing on 17 January 2019, the appellant voiced his opposition to the charges being heard together, but did not apply for a separate trial.
In order to assess the appellant's contentions, it is necessary to say a little more about what occurred on 22 March 2018 and 27 September 2018.
The decision(s) to order that the charges be tried together
A listing hearing in respect of the charges was held on 22 March 2018. On that occasion, the appellant was represented by counsel. The presiding magistrate enquired whether separate trial dates were sought for each charge, given that they occurred on different days. Counsel for the appellant told the magistrate that while it was not strictly necessary that the charges be tried together, they 'could probably be dealt with [on] the same day … there is some connection there'.[23]
[23] BGAB 80 (ts 2, 22 March 2018).
The prosecutor was clearly content with that course, and there was no question that the Magistrates Court had jurisdiction to deal with both charges. As for the interests of justice, the presiding magistrate accepted that there was a connection between the two charges in that the officers who investigated the aggravated assault charge (and who conducted an electronic record of interview with the appellant in relation to that charge) were the persons said to have been obstructed when they went to arrest the appellant. In addition, counsel for the appellant was content for the charges to be tried on the same day.[24] Accordingly, the presiding magistrate listed both charges for trial on 27 September 2018.
[24] BGAB 80 (ts 2, 22 March 2018).
On that listed trial date, the charges were called on, and the prosecutor sought to amend the aggravated assault charge to remove an allegation that the assault was an indecent assault. Having made that amendment, the presiding magistrate enquired whether the appellant sought an adjournment of the trial as a consequence of the amendment.[25] The appellant indicated that he did not seek an adjournment (although as it happened the trial was unable to proceed because there was insufficient time to hear it that day).
[25] BGAB 85 (ts 3, 27 September 2018).
In the course of responding to questions from the presiding magistrate as to whether the appellant sought an adjournment, the appellant asked whether the trial of both charges had to be held on the same day.[26] Having clarified that the investigating officers (who conducted the electronic record of interview) for the aggravated assault charge were the persons said to have been obstructed in the obstruction charge, the presiding magistrate asked whether the appellant objected to the charges being tried together. The appellant indicated that his concern was that the charges were two different matters which occurred three weeks apart.[27] The presiding magistrate concluded that there was a strong argument that it was in the interests of justice that the charges be heard together given the involvement of the same officers in relation to both charges.[28] He listed the charges for hearing on the same day.
[26] BGAB 85 (ts 3, 27 September 2018).
[27] BGAB 86 (ts 4, 27 September 2018).
[28] BGAB 86 (ts 4, 27 September 2018).
The presiding magistrate thus reconsidered the question whether the charges should be heard together, and concluded that it was in the interests of justice to do so. As a result of that decision, the charges were listed for trial together on 17 January 2019.
At the commencement of the trial, following the amendment of the obstruction charge, the appellant was asked if he understood the charge, and the following exchange took place between the appellant and the learned magistrate:[29]
HER HONOUR: Do you understand that charge? Yes?
…
ACCUSED: I don't really because I can't understand how this happened on that day, but I don't believe that both charges should be heard at the same time.
HER HONOUR: Okay.
ACCUSED: I know. I'm sorry, that's fine. That's my opinion.
HER HONOUR: Okay. The reason why - they're two different trials that are going on today. This probably was canvassed with you, I imagine, in a trial allocation, was it? Yes. And what is said against one charge is not evidence against the other. I've got to consider both charges independently, although I'm hearing two charges at the same time[.]
[29] BGAB 91 (ts 3, 17 January 2019).
While the appellant clearly continued to maintain his opinion that the charges should not be tried at the same time, it is apparent that he did not apply for the trial of each charge to be heard separately, and on different days, but merely expressed his opinion that the charges should not be heard at the same time. It is also clear that the learned magistrate did not understand the appellant to be applying for an adjournment of one charge for trial on a later date.
The appellant's contentions
The appellant complains that the conduct the subject of the two charges occurred three weeks apart, but the trial for each charge was heard on the same day and at the same time.[30]
[30] Appellant's Outline of Submissions [2]; WAB 7.
The appellant also submitted that 'attempts were made on several occasions to have the two matters heard separately but defendant was refused fair justice'.[31]
The conclusion reached by the learned primary judge
[31] Appellant's Outline of Submissions [6]; WAB 8.
The learned primary judge accurately set out the procedural history relating to the trial dates for the charges.[32] Her Honour then had regard to s 134 of the CP Act, and concluded:[33]
In this case, the prosecutor consented to the charges being heard together and the court had jurisdiction to deal with both charges. Given that the second charge arose from the events that occurred when the police attempted to arrest the appellant on the first charge, in my view it was open to the court to be satisfied that it was in the interests of justice for the charges to be heard together.
Ground 1 has no reasonable prospect of success
[32] Primary Reasons [7] - [13].
[33] Primary Reasons [65].
When, on 27 September 2018, the learned presiding magistrate listed the charges for hearing on the same day, there was no suggestion that the prosecutor took a different view to that previously expressed and thus can be understood to continue to consent to that course; there was no question that the Magistrates Court had jurisdiction to deal with both charges; and the question then was whether the Court was satisfied that it was in the interests of justice to do so.
Approaching the matter most favourably to the appellant, it may be inferred that the ground of appeal contends that the learned primary judge erred in law in her conclusion that it was open to the court (that is, the presiding Magistrate on 27 September 2018) to have concluded that it was in the interests of justice for the charges to be tried together. There is no merit in that contention. What is in the interests of justice must be assessed having regard to the facts and circumstances of each case. The conclusion reached by the presiding magistrate was that it was in the interests of justice to try the charges on the same day because they involved witnesses in common. As the learned primary judge found, that conclusion was clearly open to the learned magistrate. No error has been demonstrated in her Honour's consideration of this ground of appeal.
The appellant's submission that attempts were made on several occasions to have the two matters heard separately, but that the defendant was refused 'fair justice' must be rejected. On 22 March 2018, when the charges were first listed for trial on the same day, that decision was made with the consent of, if not on the application of, counsel for the appellant. On 27 September 2018, when the appellant objected to the charges being tried together, the question was reconsidered, and the presiding magistrate determined that it was in the interests of justice for the charges to be listed for trial on the same day, for the reasons set out above.
At the commencement of the hearing on 17 January 2019, although the appellant indicated that he did not agree with the decision that the charges be tried on the same day, he did not make an application to adjourn the hearing of either of the charges on that basis. The position, therefore, was that it was only on 27 September 2018 that the appellant in fact sought to have the charges tried separately, and on that occasion, the learned presiding magistrate considered the appellant's objection but decided that the interests of justice nevertheless warranted that the charges be tried together.
The appellant also appeared to contend that the learned primary judge erred because the appellant 'unjustly had to attempt to defend two separate matters same day and time' [sic].[34] At the hearing on 27 September 2018, the presiding magistrate concluded that it was not 'unreasonable' for the two charges to be tried together.[35] The possibility that it might be more difficult for an accused person to defend two or more charges, rather than one charge, cannot compel the conclusion that it would not be in the interests of justice for those charges to be tried together. In every case where the discretion under s 134 of the CP Act is exercised, an accused will have to defend two or more discrete charges on the same occasion.
[34] Appellant's Outline of Submissions [5]; WAB 7 - 8.
[35] BGAB 86 (ts 4, 27 September 2018).
Given the appellant's contention that he was denied a fair trial by virtue of the charges being heard together, the appellant's ground of appeal might alternatively be understood as contending that his ground of appeal before the learned primary judge amounted to a contention that there was a miscarriage of justice,[36] and that the learned primary judge erred in failing to so find.[37] Even understood in that way, there is no merit in the ground of appeal.
[36] cf Criminal Appeals Act 2004 (WA), s 8(1)(b).
[37] cf Criminal Appeals Act, s 8(1)(b).
The learned primary judge reviewed the transcript and observed that the prosecution led its evidence and closed its case on the aggravated assault charge before proceeding to adduce its evidence on the obstruction charge. Her Honour noted that the learned magistrate then granted a short adjournment before asking whether the appellant intended to adduce any evidence. The learned primary judge also observed that when the appellant gave evidence the learned magistrate asked him to give his evidence in relation to the aggravated assault charge before turning to his evidence in relation to the obstruction charge. The prosecutor took the same approach in cross examination. Finally, the learned primary judge noted that the learned magistrate heard closing addresses in relation to the aggravated assault charge before hearing the closing addresses in relation to the obstruction charge.[38] The learned primary judge concluded that 'the learned magistrate conducted the trial so that there were two separate trials on the one occasion'[39] and that there was no merit in the appellant's ground of appeal. The appellant has not established any error in the learned primary judge's reasoning or conclusion in this respect.
[38] Primary Reasons [66] - [68].
[39] Primary Reasons [69].
The transcript discloses that the appellant cross examined the witnesses called by the prosecution, and put to them his view of the events of 30 January 2018 and 20 February 2018, before proceeding to give his own evidence as to the events of those dates, and then calling Ms Fernandez to give evidence also. There is nothing in the transcript to indicate that the appellant was hampered, in dealing with the evidence of the prosecution witness, in giving his evidence, or in adducing the evidence of Ms Fernandez, by the fact that he had to address both the events of 30 January and of 20 February 2018. Nothing on the face of the transcript suggests that the decision made by the learned presiding magistrate to list the two charges for trial together resulted in any tangible unfairness to the appellant in mounting his defence to the charges.
Finally, the appellant submitted that the learned primary judge was incorrect when she observed[40] that the 'prosecution closed its case on [the] first charge before calling witnesses on the second charge [and that] before the second matter there was a short adjournment'.[41] He submitted that in fact 'there was no adjournment between matters'.[42] Those submissions are without merit. After the prosecution called its last witness (Mr Sarre) in respect of the aggravated assault charge, the prosecutor confirmed that that completed the prosecution's case on that charge. Before the prosecutor called his witnesses in respect of the obstruction charge the learned magistrate adjourned the proceedings for ten minutes to enable the appellant to switch his focus to the events of 20 February 2019, which were the subject of the obstruction charge.[43] Furthermore, in considering whether the prosecution had proved each charge, the learned magistrate considered the evidence relevant to each charge independently of the evidence relevant to the other charge.[44]
[40] Primary Reasons [66].
[41] Appellant's Outline of Submissions [8] - [9]; WAB 8.
[42] Appellant's Outline of Submissions [9]; WAB 8.
[43] BGAB 142 - 143 (ts 54 - 55, 17 January 2019).
[44] ts 9, 7 February 2019.
Ground 1 has no reasonable prospect of success.
Ground 2
Ground 2 is in the following terms:
Change of charge of one of these matters on day of trial.
Ground 2 reflects ground 5 of the grounds of appeal advanced before the primary judge.[45]
[45] Ground 5 in the appeal before the learned primary judge was 'Changes to one charge day of hearing': BGAB 2.
The appellant submitted that the '[p]rosecution changed one of the alleged charged matters on day of trial but appellant was still refused [an] adjournment to investigate new charge. Again appellant's [l]egal rights were denied'.[46]
[46] Appellant's Outline of Submissions [10]; WAB 9.
This ground of appeal refers to the obstruction charge. That charge was amended at the commencement of the trial. As originally framed, the charge was bad for duplicity[47] because it alleged that the appellant had obstructed two public officers, namely Constable Neenan and First Class Constable Arthurs. On the application of the prosecution, the charge was amended to allege that First Class Constable Arthurs was obstructed in the performance of his functions.
[47] cf City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 [47] (Buss JA, Mazza JA agreeing), [86] (Corboy J).
As the learned primary judge correctly noted, s 132 of the CP Act gives the court the power to amend a charge at any time before or during a trial.[48] The power to amend may be exercised on the application of the prosecution or an accused, or on the court's own initiative.[49] If the court is satisfied that the amendment of the charge prejudices the accused's defence, the court must adjourn the charge.[50] A court may refuse to amend a charge if it is satisfied that the amendment is material to the merits of the case, would prejudice the accused's defence and an adjournment would not overcome the prejudice.[51]
[48] CP Act, s 132(1).
[49] CP Act, s 132(2).
[50] CP Act, s 132(8).
[51] CP Act, s 132(10).
The learned primary judge correctly noted that although the appellant was unrepresented in the hearing, he 'did not object to the amendment, seek an adjournment, or raise any matters which would suggest that [he] was prejudiced by the amendment'.[52] The learned primary judge also correctly noted that the appellant did not raise any specific matter in support of his general submission to the effect that it was unfair to have the charge amended on the day of the hearing.[53]
[52] Primary Reasons [58].
[53] Primary Reasons [59].
There is no merit in the appellant's submission that he needed an adjournment to investigate the 'new charge'. There was nothing 'new' about the charge as a result of its amendment. As the learned primary judge correctly observed, the amendment 'simply removed one of the offences contained within the charge'[54] namely the alleged obstruction of Constable Neenan in the performance of his functions. The charge continued to allege that First Class Constable Arthurs had been obstructed in the performance of his functions. Constable Neenan and First Class Constable Arthurs both gave evidence in relation to the obstruction charge. As the learned primary judge concluded:[55]
[I]t could not be said that the appellant was prejudiced by the amendment, even though it occurred on the day of the trial. … It did not change the evidence to be led by the appellant or the fundamental allegation raised against the appellant, namely, what occurred on 20 February 2018 when the police attended his unit to arrest him.
[54] Primary Reasons [60].
[55] Primary Reasons [60].
The appellant has not established any error by the learned primary judge in her analysis or conclusion and this proposed ground of appeal has no reasonable prospect of success.
Grounds 3 and 6
It is convenient to deal with grounds 3 and 6 together. Ground 3 is in the following terms:
Appellant's witnesses were refused to have evidence admitted.
Ground 3 reflects ground 1 of the grounds of appeal advanced before the learned magistrate.[56]
[56] Ground 1 in the appeal before the learned primary judge was 'Magistrate Watt refused defendant's witnesses to give certain evidence which was important to his innocence': BGAB 2.
In relation to ground 3, the appellant submitted that the:[57]
[A]ppellant's witnesses were refused to have [their] evidence admitted in court because the court said the evidence did not relate to two days of being charged but evidence to be given by two witnesses was to strongly assist defendant in his defence. Again defendant refused fair justice.
The two witnesses Valerie Fernandis and Edwin Ashby were left shattered because of this court decision.
Because of this court decision … the defendant had unfair trial.
[57] Appellant's Outline of Submissions [11] - [15]; WAB 9 - 10.
Ground 6 is in the following terms:
Violence restraining order placed on alleged victim regarding the same incident.
Ground 6 reflects ground 7 of the grounds appeal advanced before the learned primary judge.[58]
[58] Ground 7 in the appeal before the learned primary judge was that 'Defendant had restraining order and strict conditions against alleged victim': BGAB 2.
In relation to ground 6, the appellant submitted that:[59]
The alleged victim was the guilty party following defendant all around [the] … Flats where the appellant lives yelling abuse at him and following him wherever he went.
The appellant had a violent restraining order placed against alleged victim because of her behaviour on that day. The alleged victim did not contest this order.
The evidence the appellant sought to adduce
[59] Appellant's Outline of Submissions [21] - [22]; WAB 11.
The evidence the subject of ground 3 appears to refer to evidence which the appellant was not permitted to give himself, or to adduce from three other witnesses.
First, in the course of his own evidence, the appellant started to tell the learned magistrate that the victim 'was the one who hit me, and I've even got a violence restraining order… against her for hitting me'.[60] After clarifying that the violence restraining order was not in place on 30 January 2018, the learned magistrate did not make a ruling as to the admissibility of that part of the appellant's evidence. Instead, she indicated to the appellant that he needed to confine his evidence, in relation to the aggravated assault charge, to the events of 30 January 2018, and the appellant did not pursue the point.[61]
[60] BGAB 172 (ts 84, 17 January 2019).
[61] BGAB 172 - 173 (ts 84 - 85, 17 January 2019).
Secondly, in the course of the evidence of Ms Valerie Fernandez, the learned magistrate ruled as inadmissible evidence that Ms Fernandez wished to give to the effect that the victim had attacked her on another occasion or occasions at the Flats,[62] and that the victim 'took us to court to try and vary the application'.[63] The learned magistrate refused to permit questions about those matters, because they were not relevant to the charges the subject of the trial.[64] In addition, in the course of her evidence, Ms Fernandez sought to give evidence that the victim had lied in the witness statement she made to the police, which was disclosed to the appellant. Although the learned magistrate did not formally rule that that evidence was inadmissible, she did not permit Ms Fernandez to elaborate on that evidence.[65] Finally, in the course of Ms Fernandez's evidence, the appellant sought to hand up a witness statement which Ms Fernandez had obtained from a third party 'who witnessed things that happened between [the appellant] and [the victim]'.[66]
[62] BGAB 189, 196, 203 (ts 101, 108, 115, 17 January 2019).
[63] BGAB 193 (ts 105, 17 January 2019).
[64] BGAB 189 (ts 101, 17 January 2019).
[65] BGAB 187 (ts 99, 17 January 2019).
[66] BGAB 195 (ts 107, 17 January 2019).
Thirdly, in the course of the trial, the appellant called Mr Edwin Ashby to give evidence. It very quickly became clear, in the course of his evidence, that Mr Ashby was not present on 30 January 2018 when the aggravated assault was alleged to have occurred. Instead, Mr Ashby said that he was intending to give evidence 'to tell the history of a series of bullies … and one of them gave evidence … against [the appellant]'.[67] The learned magistrate clarified with the appellant that Mr Ashby's evidence concerned the conduct of third parties towards the appellant after the events in question.[68] The learned magistrate concluded that as Mr Ashby had no evidence to give about the events of 30 January 2018 or 20 February 2018 then his evidence could not be relevant to the charges, and Mr Ashby was released without giving any further evidence.[69]
[67] BGAB 205 (ts 117, 17 January 2019).
[68] BGAB 207 (ts 118, 17 January 2019).
[69] BGAB 206 - 207 (ts 118 - 119, 17 January 2019).
Fourthly, in the course of his cross examination of the victim, the appellant put to the victim that she obtained a violence restraining order against him, but that she did not attend court when the order was challenged. The learned magistrate did not permit him to ask about that matter on the basis that it was not relevant to the charges.[70]
The learned primary judge's conclusion in relation to these grounds of appeal
[70] BGAB 118 (ts 30, 17 January 2019).
The learned primary judge noted that:[71]
In submissions, the appellant referred to the following evidence that he sought to adduce:
(a)the failure of the victim to attend court in September 2018 on the hearing of her application to obtain a violence restraining order against the appellant;
(b)his obtaining of a violence restraining order against the victim;
(c)the violence restraining order he had against Mr Chris Mark, a friend of the victim; and
(d)evidence from a Mr Edwin Ashby about 'what ha[d] been going on at the [Flats] which contributed to all these problems'.
(footnotes omitted)
[71] Primary Reasons [87].
In addition, the learned primary judge also observed that:[72]
[D]uring the course of the trial, the appellant also sought to adduce evidence from Ms Fernandez that:
(a)the victim had 'lied in her disclosure';
(b)the victim had attacked Ms Fernandez on another day; and
(c)an out of court statement made by a friend of Ms Fernandez who was not called as a witness at the trial.
(footnotes omitted)
[72] Primary Reasons [88].
Other than the appellant's reference to evidence of a violence restraining order that he had obtained against Mr Mark, the other aspects of the evidence had been dealt with by the learned magistrate in the course of the trial of the charges. In his submissions before the learned primary judge, the appellant explained that Mr Mark was a friend of the victim's and that the appellant had obtained a violence restraining order against Mr Mark. The appellant told the learned primary judge that the victim then 'started accusing [him] of getting a restraining order against him when you shouldn't, and that's how it all started'.[73]
[73] BGAB 47 (ts 9, 28 June 2019).
In the hearing of the appeal before this Court, the appellant explained that Mr Ashby 'lived at those flats and he used to work in a garden … that's very close to where the balcony is for these people that sit around and he heard them continually comment about what they were going to do to me. And he would have been a good witness to say exactly what they were going to do at that time.'.[74]
[74] BGAB 49 (ts 11, 12 June 2020).
In the course of the hearing before this court, the appellant also indicated that he had intended to call another witness, Ms Terry Starkovich. However, he acknowledged that he did not tell the learned magistrate that he wanted Ms Starkovich to give evidence.[75]
[75] BGAB 49 (ts 11, 12 June 2020).
Further, in so far as the appellant sought to adduce evidence in relation to the violence restraining order against the victim, the appellant sought to explain the relevance of that evidence in the following way:[76]
I then applied for myself for a violence restraining order because she grabbed me around the wrist and - and abused me, and the magistrate said, because she wasn't there the magistrate agreed with me and said if she did that she gave me a violence restraining order against her and she never challenged that. If she was so innocent, want she says, she would have challenged the violence restraining order and she didn't.
[76] BGAB 52 (ts 14, 12 June 2020).
The appellant submitted that that evidence would show that the aggravated assault charge against him was not proper.[77]
[77] BGAB 52 (ts 14, 12 June 2020).
The learned primary judge dealt with the appellant's submission that he should have been permitted to adduce this evidence as follows:[78]
In order for evidence to be admitted, it must be relevant. Evidence is relevant if it tends to prove a fact in issue or is a fact which is relevant to a fact in issue. Evidence of a statement that is made outside the court, otherwise known as hearsay evidence, is generally not admissible as truth of the contents of the statement. In addition, the evidence of a witness must be of matters which they have directly observed and not their opinion.
The matters to be determined by the learned magistrate were whether the appellant unlawfully assaulted the alleged victim on 30 January 2018 and whether he obstructed a police officer on 20 February 2018 when they attempted to arrest him on the first charge. Evidence about events that occurred after this or which were not related to these events was not relevant. In my view the evidence which the appellant sought to adduce referred to at pars 87 and 88(a) and … [(b)] above was irrelevant to the charges before her Honour and, accordingly, was not admissible at trial.
In relation to the matters which were referred to during the trial, in my view, the evidence at par 88(a) was inadmissible opinion evidence and was not admissible. Finally, in respect of the evidence at par 88(c), this was hearsay evidence and, similarly, was not admissible.
Grounds 3 and 6 have no reasonable prospect of success
[78] Primary Reasons [89] - [91].
The learned primary judge was, with respect, correct to conclude, for the reasons she gave, that the evidence which the learned magistrate refused to permit the appellant to adduce was inadmissible, and thus that no error was made by the learned magistrate in excluding this evidence. In so far as the appellant did not, in the course of the trial, seek to adduce evidence concerning the violence restraining order he had obtained against Mr Mark, evidence of that kind was not relevant to the charges, for the reasons given by the learned primary judge, and thus would not have been admissible in any event.
Grounds 3 and 6 have no reasonable prospect of success.
Ground 4
Ground 4 is in the following terms:
Not allowed adjournment for medical health reasons.
Ground 4 is similar to ground 6 of the grounds advanced in the appeal before the learned primary judge.[79] At the hearing before the primary judge, the appellant asserted that he sought an adjournment on the basis that he was unwell.[80] The learned primary judge approached the ground of appeal as encompassing a contention that the appellant sought, and was denied, an adjournment because he was sick and not fit to stand trial.[81]
[79] Ground 6 was that 'Medical Certificates by doctors show defendant unfit for trial': BGAB 2.
[80] ts 38, 5 - 6 June 2019.
[81] Primary Reasons [70].
Before this Court, the appellant submitted that he:[82]
[H]ad medical health problems during course of the trial and asked for adjournment. But was refused.
Appellant produced medical certificates at Court during trial.
[82] Appellant's Outline of Submissions [16] - [17]; WAB 10.
The learned primary judge concluded that the appellant's contention that he had sought an adjournment on the basis that he was sick and not fit to stand trial was:[83]
[N]ot reflected in the transcript of the hearing before the learned magistrate. At the commencement of the trial, the appellant complained of a pain in his hand and informed the learned magistrate that he had a 'breathalyser' problem. The learned magistrate granted the appellant a short adjournment so that he could take medication. The appellant did not seek an adjournment of the trial on the grounds of ill health or raise any concerns with the learned magistrate during the course of the trial as to his inability to proceed because of health problems.
The only other time that the appellant's health was raised was after the parties gave their closing addresses on each of the charges. At that point, the learned magistrate indicated that she could deliver her decision on the charges at 2.45pm that day. The appellant stated that he was not very well and the learned magistrate observed that he was quite distressed and accepted that he was not a well man. On this basis, the learned magistrate reserved her decision. (footnotes omitted)
[83] Primary Reasons [71].
The learned primary judge's recitation of the position was entirely accurate. The appellant has not demonstrated any error in the learned primary judge's analysis or conclusion.
For completeness, we note that the appellant sought an adjournment on the second day of the trial, namely on 18 January 2019. His stated basis for seeking an adjournment was 'I haven't got the transcripts of anything of the trial, and I want to get a lawyer to represent me'.[84] He also submitted that 'I'm just applying for that adjournment because I want to look into the facts more so I can be better prepared, not just one day'.[85] The learned magistrate dismissed that application, which was made after the conclusion of the evidence.[86] That decision was the subject of a separate ground of appeal before the learned primary judge,[87] which her Honour found was not made out. That ground of appeal is not reflected in the grounds of appeal to this court.
[84] BGAB 211 (ts 124, 18 January 2019).
[85] BGAB 213 (ts 126, 18 January 2019).
[86] BGAB 214 (ts 127, 18 January 2019).
[87] Ground 2 of the grounds of appeal before the learned primary judge.
Ground 4 has no reasonable prospect of success.
Ground 5
Ground 5 is in the following terms:
Independent witness proves innocence of defendant.
Having regard to the appellant's submissions, the tenor of ground 5 appears to be to the same effect as part of ground 4 advanced before the learned primary judge, namely that the appellant's conviction (for the aggravated assault charge) was unsafe and unsatisfactory.[88]
[88] Ground 4 in the appeal before the learned primary judge in fact was expressed more broadly: 'The decision was unsafe and unsatisfactory': BGAB 2. That ground was understood by the learned primary judge was pertaining to the appellant's conviction of each of the charge.
The appellant submitted that:[89]
During the trial there was only one independent witness, Gary Sarre, who clearly stated in his evidence … that he did not see appellant strike or touch alleged victim.
Sarre stated he heard a person calling for help and went to their aid where he saw two people in a dispute.
Sarre said he went back to [the] … Flats to accompany the defendant to where he lives.
Gary Sarre clearly stated he did not see [an] assault or any touching. The police by charging the defendant did not produce any DNA or fingerprints but arrested the appellant on alleged victims statements.
[89] Appellant's Outline of Submissions [18] - [20]; WAB 10 - 11.
The principles concerning the determination of an appeal ground which contends that the verdict of a jury (or of a magistrate) is unreasonable or cannot be supported by the evidence are well established. They were recently explained by this Court in Wells v The State of Western Australia[90] as follows:[91]
[90] Wells v The State of Western Australia [2017] WASCA 27.
[91] Wells [13].
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
(footnotes omitted)
The learned primary judge clearly had regard to, and applied, these principles. Her Honour noted that the question for an appellate court was whether it was open to the jury, or to the magistrate, to be satisfied of guilt beyond reasonable doubt, or in other words, whether the jury (magistrate) must, rather than might, have entertained a doubt about the appellant's guilt.[92]
[92] Primary Reasons [94] - [95] citing Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J) and The State of Western Australia v Olive [2011] WASCA 25 [44] (Buss JA).
In relation to the aggravated assault charge, her Honour then reviewed the evidence and concluded that she was satisfied that there was a sufficient foundation for the findings made by the learned magistrate in relation to the aggravated assault charge, and that it was open to the learned magistrate to be satisfied of the appellant's guilt on each charge beyond reasonable doubt.[93]
[93] Primary Reasons [97], [100].
The appellant's submissions proceed on the assumption that Mr Sarre saw the entirety of the interaction between the appellant and the victim. However, it was apparent from Mr Sarre's evidence that that was not the case. As we have already noted (at [11] above) when Mr Sarre first saw the appellant and the victim, the appellant was walking away from the victim, and she was tugging on his sleeve saying 'stop him, he assaulted me'. In short, by the time Mr Sarre saw the appellant and the victim, the assault had already occurred. Nothing in Mr Sarre's evidence, which was accepted in its entirety by the learned magistrate, precluded a finding that the appellant had assaulted the victim. In so far as Mr Sarre gave evidence that he heard the victim claiming that the appellant had assaulted her, that evidence was entirely consistent with the evidence given by the victim (outlined above, and accepted by the learned magistrate) that the appellant assaulted her by hitting her on the buttock.
The evidence given by the victim and Mr Smith suggested that Mr Sarre approached the appellant and the victim before the assault occurred. However, while the learned magistrate accepted the evidence of both the victim and Mr Smith as credible, to the extent that it differed from the evidence given by Mr Sarre, she preferred the evidence of Mr Sarre.[94]
[94] ts 8, 7 February 2019.
The learned magistrate reached her conclusions about the credibility and reliability of Mr Sarre, the victim and Mr Smith, with the benefit of having seen and heard their evidence. This was not a case in which the evidence contained any discrepancy, or was so inadequate, tainted or otherwise lacking in probative force, as to warrant the conclusion that, even making full allowance for the advantages enjoyed by the learned magistrate, there was a significant possibility that the appellant was wrongly convicted, such that the learned primary judge should have set aside the conviction for the aggravated assault charge.
The appellant has not demonstrated any error in the primary judge's reasoning or conclusion in respect of the matter raised by ground 5. Ground 5 has no reasonable prospect of success.
Conclusion
The appellant has not established a reasonable prospect of success in respect of any of the grounds of appeal.[95] Leave to appeal should be refused on each ground, and the appeal must therefore be dismissed.
[95] cf Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Associate to the Honourable Justice Pritchard2 OCTOBER 2020
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