Hodder v Neenan
[2019] WASC 311
•28 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HODDER -v- NEENAN [2019] WASC 311
CORAM: HILL J
HEARD: 28 JUNE 2019
DELIVERED : 28 AUGUST 2019
FILE NO/S: SJA 1028 of 2019
BETWEEN: JAMES LESLIE HODDER
Appellant
AND
ROBERT NEENAN
Respondent
ON APPEAL FROM:
For File No: SJA 1028 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T WATT
File Number : PE 9219 of 2018; PE 9220 of 2018
Catchwords:
Criminal law - Appeal against conviction - Appeal against sentence - Whether adjournment should have been granted by magistrate - Whether decision unsafe and satisfactory - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 10(3)
Criminal Code 1913 (WA), s 172(2), s 313(1)(a)
Criminal Investigation Act 2006 (WA), s 132
Criminal Procedure Act 2004 (WA), s 75(2), s 132, s 134
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Chew v The Queen (1991) 4 WAR 21
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Hanneybel v The Queen [2004] WASCA 54
Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483
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
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
The State of Western Australia v Olive [2011] WASCA 25
HILL J:
On 7 February 2019, the appellant was convicted after trial of one count of unlawful assault in circumstances of aggravation and one count of obstructing a public officer in the performance of his functions in relation to incidents that occurred on 30 January and 20 February 2018 respectively. The learned magistrate imposed on the appellant a global fine of $1,000 for both charges and ordered that he pay costs of $100.
The appellant seeks leave to appeal against both convictions as well as the sentence imposed by the learned magistrate.
Notice of appeal and leave to appeal
On 21 February 2019, the appellant filed his notice of appeal which was within time.[1]
[1] Criminal Appeals Act 2004 (WA) s 10(3).
The notice of appeal sets out seven grounds of appeal, namely that:
1.The learned magistrate refused to admit certain evidence from defence witnesses;
2.The appellant was refused an adjournment to secure a lawyer;
3.The two separate charges were heard jointly;
4.The verdicts were 'unsafe and unsatisfactory';
5.An amendment was made to one of the charges on the day of the hearing;
6.Medical certificates show that the appellant was unfit to stand trial; and
7.The appellant had obtained a restraining order against the victim.
All seven grounds relate to the appellant's appeal against his conviction. The appellant did not address his appeal against sentence in his notice of appeal or in his oral submissions to the court.
The appellant requires leave to appeal.[2] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[3] This means that the ground must have a rational and logical prospect of succeeding.[4] On 20 March 2019, Acting Justice Strk ordered that the application for leave to appeal be heard with the appeal.
[2] Criminal Appeals Act s 9(1).
[3] Criminal Appeals Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Procedural background
On 20 February 2018, the appellant was charged by the respondent with both charges. The first charge originally alleged that on 30 January 2018 at Subiaco, the appellant 'unlawfully and indecently assaulted [the victim] in circumstances of aggravation, namely the victim is over the age of 60 years'. The second charge originally alleged that on 20 February 2018 at Subiaco, the appellant 'obstructed Constable Rob Neenan and First Class Constable Thomas Arthurs in the performance of the officer's functions'.
The charges came before the Magistrate's Court on 22 March 2018 for mention. On this appearance, the appellant was represented by counsel. Counsel for the appellant submitted to the court that both matters 'could probably be dealt with at the same day'.[5] This was because the second charge occurred when the officers went to arrest the appellant on the first charge and accordingly, 'there is some connection there' between the charges.[6] On this basis, both charges were listed for trial at the same time and adjourned until 27 September 2018 for hearing.
[5] ts 2 (22 March 2018).
[6] ts 2 (22 March 2018).
When the matter came back before the magistrate's court for hearing on 27 September 2018, the appellant was unrepresented. No magistrate was available to hear the matter that day so the matter was adjourned. On this date, the first charge was amended to allege that the appellant 'unlawfully assaulted [the victim] in circumstances of aggravation, namely the victim is over the age of 60 years'. During this appearance, the appellant asked the court whether the charges had to be heard on the same day. The court asked whether he had an objection to the matters being dealt with together.[7] The appellant indicated that he thought they were two different matters. The learned magistrate stated that because the second charge occurred at the time that he was being arrested for the first charge, there was a strong argument for the charges to be held together and that he considered it was in the interests of justice for the matters to be held together.[8]
[7] ts 3 (27 September 2018).
[8] ts 4 (27 September 2018).
The matters were the subject of two trials which were conducted simultaneously on 17 and 18 January 2019. The appellant pleaded not guilty to both charges. On 7 February 2019, the learned magistrate convicted the appellant on both charges.
At the commencement of the hearing on 17 January 2019, the learned magistrate, before formally putting the second charge to the appellant, allowed an amendment to the second charge, on the basis that the original charge was bad for duplicity. The charge was amended to allege that the appellant 'obstructed First Class Constable Thomas Arthurs in the performance of the officer's duties'.[9]
[9] ts 2 - 3 (17 January 2019).
Following this amendment, the following exchange occurred:[10]
[10] ts 3 - 6 (17 January 2019).
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 - - -
ACCUSED: Okay.
HER HONOUR: - - - so that you get to come once, and there's some saving or your time and the court's time from that point of view, but it doesn't make any difference from whoever is hearing it, because I can only consider the evidence for the one charge in relation to that, and any evidence for the other charge in relation to the other.
ACCUSED: Okay, your Honour.
HER HONOUR: It happens often ‑ very often; almost always ‑ where somebody is charged with multiple charges. Are you all right? You're flinching.
ACCUSED: I've got severe - - -
HER HONOUR: Arthritis?
ACCUSED: No. I don't know what it is. I had it last time I came to court, terrific pain in my hand from - - -
HER HONOUR: Okay.
ACCUSED: I don't know if it's just using your hand. I have terrific pain from it every now and then. I don't know what it is.
HER HONOUR: All right. Well, just - - -
ACCUSED: But it just, yes, I'm not quite sure.
HER HONOUR: Okay. If you need some medical attention today you need to let me know.
ACCUSED: Okay, your Honour.
…
ACCUSED: If I might, your Honour.
HER HONOUR: Yes.
ACCUSED: My friend out there has got some medicine of mine.
HER HONOUR: Yes.
ACCUSED: Would she be able to bring it in? It's something to do ‑ I've got this breathalyser problem.
HER HONOUR: Okay.
ACCUSED: And I get very - - -
HER HONOUR: Breathless, do you?
ACCUSED: Yes.
HER HONOUR: Okay. And you need the medication now?
ACCUSED: Yes, sometimes I need it desperately in to me. I've been getting sick a lot lately and it's ‑ they don't know what it is.
HER HONOUR: All right. Well, what I will do is ‑ I will need you to be in a position to defend the trial today, so of you need to take that medication, that's fine. I will stand down so you can go outside and take the medication and come back in. I will give you 10 minutes to do that.
ACCUSED: Okay.
HER HONOUR: Is that okay?
ACCUSED: Yes, thank you very much.
HER HONOUR: All right. So I will just stand down. Go and grab the medication and take the medication, and then come back.
ACCUSED: Thank you very much. Thank you, your Honour.
(Short adjournment)
HER HONOUR: Okay. Mr Hodder, you've had the opportunity to have your medication. Okay. All right. Now, have we got some water for you as well? Yes, we have.
ACCUSED: Yes, some water here.
HER HONOUR: Okay. Yes.
ACCUSED: Thank you very very much.
The appellant did not make any application for an adjournment at that time or during the course of the first day of the hearing.
The prosecution case at trial
Aggravated Assault
The prosecution called three witnesses in relation to the first charge of aggravated assault: Suzanna Papadimitriou (the victim), Gary Smith and Garry Sarre.
Ms Papadimitriou is a 68‑year‑old woman.[11] Ms Papadimitriou's evidence was that on the afternoon of 30 January 2018, she was at the Wandana flats in Subiaco where she worked as a volunteer care advocate.[12] Prior to this date, she had not had any interaction with the appellant.[13]
[11] ts 14 (17 January 2019).
[12] ts 14 - 15 (17 January 2019).
[13] ts 15 (17 January 2019).
Whilst the victim was collecting some mail for a resident at approximately 3.00 pm that afternoon, the appellant came up behind her shouting obscenities and expletives at her. The appellant then walked away, whilst still shouting expletives. Ms Papadimitriou followed the appellant onto Barker Road, and confronted him about what he had said and asked for the appellant's personal details including his name and where he lived.[14]
[14] ts 15 (17 January 2019).
While they were both on Barker Road, the appellant took hold of the victim's wrists and started repeatedly saying 'help me' 'like a girl'.[15] She asked the appellant to let go of her wrists. Another man (Garry Sarre) came out to the street from 48 Barker Road and came towards them. Ms Papadimitriou's evidence was that this man told the appellant to 'Let her go'.[16]
[15] ts 15 (17 January 2019).
[16] ts 15 - 16 (17 January 2019).
The appellant then let go of the victim's wrists and as he was walking away from her, he used his right hand to slap her left buttock.[17] This slap is the assault that is the subject of the charge.
[17] ts 16 (17 January 2019).
The victim's evidence was that when the alleged assault occurred, Mr Gary Smith was 'on the taxi stand side on the grass' and 'another man [was] coming towards me called Mr Gary Sarre'.[18] She gave evidence that these incidents occurred over a period no longer than 10 minutes.[19]
[18] ts 17 (17 January 2019).
[19] ts 19 (17 January 2019).
After the alleged assault, Mr Hodder went back across Barker Road to the Wandana flats and the victim followed him.[20] She knocked on his door and Ms Valerie Fernandez answered the door. The victim subsequently attended the Wembley police station and gave a statement to the police.[21]
[20] ts 20 (17 January 2019).
[21] ts 21 (17 January 2019).
In cross‑examination, Ms Papadimitriou was asked why she was asking for details from the appellant and she said she wanted to know where he lived and who he was.[22] Throughout the course of cross‑examination, she maintained that she was hit by Mr Hodder and that he walked off after this.[23]
[22] ts 24, 28 (17 January 2019).
[23] ts 34 (17 January 2019).
Mr Smith's evidence was that he lived at the Wandana flats in Subiaco[24] and that Ms Papadimitriou was one of his helpers and had been for approximately five years.[25] On 30 January 2018, at approximately 3.00 pm, he gave Ms Papadimitriou a key to his letterbox and she went to the letterboxes to collect a letter for him. He was on the balcony of a ground level apartment with two other people when he saw the appellant running quickly with Ms Papadimitriou following him yelling out 'What's your name? Where do you live?'[26]
[24] ts 40 (17 January 2019).
[25] ts 41 (17 January 2019).
[26] ts 40 (17 January 2019).
Mr Smith went out onto Barker Road and saw that the appellant had the victim by both wrists.[27] At this stage, he was on the opposite side of the road. The appellant was yelling out '"help me, help me" in that little girl's voice'.[28] At this point, he saw Mr Sarre coming up Barker Road towards the appellant and Ms Papadimitriou. The appellant let go of the victim and 'with his right hand, hit her on the … bottom'.[29] After this, the appellant returned to his unit.[30] The victim and Mr Sarre followed him.[31]
[27] ts 41 (17 January 2019).
[28] ts 40 (17 January 2019).
[29] ts 40 (17 January 2019).
[30] ts 40 - 41 (17 January 2019).
[31] ts 46 (17 January 2019).
Mr Sarre's evidence was that he was working in his premises on 30 January 2018 when he heard what he thought was a woman calling for help.[32] He came out of his office onto Barker Road and saw the appellant walking quickly in front of a woman (the victim) who was tugging at his sleeve and calling out 'Stop him, he assaulted me'. Mr Sarre ran up to them. The appellant kept walking away from the woman saying 'Leave me alone'. Mr Sarre suggested that the appellant return to Wandana and accompanied him back there.[33] When they arrived at the appellant's flat, a woman answered the door and asked whether he had seen the appellant assault the victim. The woman went inside the unit with the appellant. The woman then came back out and asked Mr Sarre again whether he had seen the victim being assaulted.[34] At this point, given that Mr Smith was also present, Mr Sarre left and returned to his premises.[35] Mr Sarre's evidence was that he did not see the appellant hit the victim.[36]
[32] ts 50 (17 January 2019).
[33] ts 51 (17 January 2019).
[34] ts 51 (17 January 2019).
[35] ts 51 (17 January 2019).
[36] ts 53 (17 January 2019).
In cross‑examination, Mr Sarre accepted that it was the appellant who said, 'leave ‑ leave me alone'.[37] Mr Sarre said he could not recall who suggested going back to Wandana, but agreed that it was the best course of action and that the appellant then went back to Wandana.[38]
Obstructing a public officer
[37] ts 52 (17 January 2019).
[38] ts 52 - 53 (17 January 2019).
The prosecution called two witnesses in relation to the second charge: Constable Neenan and First Class Constable Arthurs.
Constable Neenan's evidence was that on the morning of 20 February 2018, he and First Class Constable Arthurs were conducting enquiries into Ms Papadimitriou's allegation of indecent assault. After taking witness statements from Gary Smith and Gary Sarre, Constable Neenan attended the address of the appellant. [39] He knocked on the door. Ms Fernandez answered the door and he could see the appellant sitting in a chair in the unit. He said that he needed to speak to the appellant. The appellant came to the door voluntarily. At the door of the appellant's unit, Constable Neenan advised the appellant he was being placed under arrest on suspicion of an indecent assault complaint.[40] Constable Neenan began to caution the appellant who swore at him and asked why he was under arrest. The officers tried to escort him downstairs but the appellant refused to go. Constable Neenan grabbed the appellant's arm and the appellant pulled away.[41]
[39] ts 56 (17 January 2019).
[40] ts 56 (17 January 2019).
[41] ts 57 (17 January 2019).
Each officer 'grabbed' an arm of the appellant and tried to escort him down the stairs. The officers then handcuffed the appellant and escorted him down the remaining flights of stairs before taking him to the police van.[42] Constable Neenan cautioned him again. The appellant refused to get into the van so the two officers aided the appellant into the back of the van. During this time, the appellant was swearing at the two policeman and asking why he was under arrest.[43] Constable Neenan accepted that the appellant had difficulty getting into the van because of his physical state.[44] The appellant was then conveyed back to the Wembley Police Station where he was interviewed.[45]
[42] ts 57 - 58 (17 January 2019).
[43] ts 59 (17 January 2019).
[44] ts 65 (17 January 2019).
[45] ts 60 (17 January 2019).
Under cross‑examination, Constable Neenan accepted that when he attended the appellant's unit on 20 February 2018, he did not have a warrant and that he had told the appellant that he was under arrest for suspicion of indecent assault.[46] Constable Neenan was specifically asked why the appellant was charged with not cooperating. His response was 'at the stairwell, when we were actually trying to guide you out civilly, you obstructed us. That's why the handcuffs were put on you.'[47]
[46] ts 62 (17 January 2019). The appellant was initially charged with indecent assault but the charge was amended in September 2018 to a charge of aggravated assault.
[47] ts 65 - 66 (17 January 2019).
First Class Constable Arthurs gave evidence that from about 8.00 am, he, together with Constable Neenan, went to Subiaco to obtain witness statements. At approximately 9.45 am, they attended the appellant's unit to speak to him. When they knocked on the door, a woman answered the door and Constable Neenan asked if they could speak with the appellant. The appellant came to the front door. Constable Neenan advised the appellant that he was under arrest on suspicion of an indecent assault matter. The appellant then started yelling profanities, waved his arms in the air and walked back into his apartment.[48] The police officers entered the apartment under the Criminal Investigation Act 2006 (WA), s 132 and took hold of the appellant by his right wrist and escorted him to the front of his apartment.
[48] ts 68 (17 January 2019).
The appellant was yelling and screaming profanities at the officers and was resisting 'in an aggressive manner'.[49] He said he escorted the appellant into the stairwell area of the Wandana units. As they were walking down the first flight of stairs, the appellant was lurching forward and screaming and resisting. As a result of this behaviour, the police officers were required to handcuff him for their own safety.[50] As they were escorting the appellant to the police care, the aggression and swearing continued. When they got to the police car, the door was opened and Constable Neenan gave the appellant 'his section 137 and 138 Criminal Investigation rights, including the police caution'. The appellant was asked to enter the security pod and he refused. As a result, they were forced to place him into the pod.[51]
[49] ts 68 (17 January 2019).
[50] ts 69 (17 January 2019).
[51] ts 69 (17 January 2019).
Under cross‑examination, Constable Arthurs was asked how the appellant did not cooperate with the police. His response was:
Various ways. Namely, resisting arrest in the form of aggressive lurching and pulling your arms away and kicking out at the van, yelling profanities, swearing at us.
He was also asked why the handcuffs were not put on before the stairwell. His evidence was that during the initial struggle it was not practical to put the handcuffs on which is why it was done in the stairwell. He also gave evidence that the appellant had refused to cooperate in getting into the pod of the police vehicle.
Defence case at trial
The appellant elected to give evidence on both charges and called Ms Valerie Fernandez as a witness.
The appellant also attempted to adduce evidence from Edwin Ashby. After Mr Ashby was sworn in, the appellant sought to ask Mr Ashby questions about 'what they've done to me'.[52] The learned magistrate ruled that the only matters before her were the events on 30 January 2018 and 20 February 2018 and unless Mr Ashby's evidence went to these events, his evidence was not relevant. On this basis, she refused to hear Mr Ashby's evidence and he was discharged.
Aggravated assault
[52] ts 118 (17 January 2019).
In respect of this charge, the appellant's evidence was that on 30 January 2018, he was in his unit with Ms Fernandez. He told her that he was going to the bottom of the units for a break. He went up in the lift to the second floor of A Block. At this point, Ms Papadimitriou started to follow him and yelled at him to stay away from Chris Mark.[53] He kept walking towards his unit and Ms Papadimitriou continued to follow him. He called out to her '[w]hat are you doing'. He did not want her to know where he lived so he kept walking. He went through the post office box and went down to Barker Road. When the appellant got down to Barker Road, he ran out of breath.[54]
[53] ts 82 (17 January 2019).
[54] ts 83 (17 January 2019).
At this stage, Ms Papadimitriou caught up with the appellant, grabbed him by the wrist and said: '[w]hat's your name, what's this? What's your name?' The appellant said that he got angry, walked off and started yelling '[h]elp, help.' He said that Mr Sarre came out of his unit and came up to him. The appellant told Mr Sarre that he wanted to go back to his unit and Mr Sarre came back with him[55] as did Ms Papadimitriou.[56] The appellant also gave evidence that Mr Smith came out the front of the flats and was yelling at him.[57]
[55] ts 83 (17 January 2019).
[56] ts 85 (17 January 2019).
[57] ts 84 (17 January 2019).
The appellant's evidence was that the only time that he went through the post office box was when he was being chased by Ms Papadimitriou.[58]
[58] ts 86 (17 January 2019).
In cross‑examination, the appellant said that prior to the incident, he did not know Ms Papadimitriou, he never swore at her[59] and he had never seen her at Wandana before.[60]
[59] ts 87 (17 January 2019).
[60] ts 89 (17 January 2019).
Ms Fernandez's evidence was that on 30 January 2018, she was at the appellant's unit at Wandana cleaning his flat. While she was doing this, the appellant went for a small walk, which was his normal practice.[61] After she had finished wiping the dishes, Ms Fernandez went out on the balcony to put the tea towels there. Whilst on the balcony, she saw Ms Papadimitriou on the footpath following the appellant followed by Mr Sarre. She said she heard the appellant call for help. She was upset because the appellant has either asthma or breathing problems. The appellant climbed the stairs calling out 'Valerie, Valerie, help me'. She let the appellant in and asked Ms Papadimitriou and Mr Sarre what was wrong. Ms Papadimitriou said that she had been assaulted.[62]
[61] ts 98 (17 January 2019).
[62] ts 99 (17 January 2019).
In cross-examination, Ms Fernandez said that the time between when the appellant left his unit and when he returned was about 15 to 20 minutes.[63] Her evidence was that she did not see anybody assault anyone else.[64]
Obstructing a public officer
[63] ts 109 (17 January 2019).
[64] ts 109 (17 January 2019).
The appellant's evidence was that on 20 February 2018 he was at his unit when the police knocked on his door and Ms Fernandez opened it. He went outside and asked one of the police officers what it was all about. His evidence was that one of the officers said that he had indecently assaulted a young girl and it frightened him.[65] The appellant said that he 'never fought anyone, because [he] couldn't'. He said that he had no strength. The appellant said that one of the police officers grabbed him by the wrist and he pulled away because it hurt. He said they threw him into the van.[66]
[65] ts 85 (17 January 2019).
[66] ts 86 (17 January 2019).
In cross-examination, the appellant said that he could not remember the exact words the police officers used when they came to his front door and that he had asked them whether they had a warrant.[67] He denied swearing at the police officers[68] and resisting arrest.[69] His evidence was that it was not possible for him to get into the van on his own behalf because it was a small pod.[70] He said that he did not spit at anybody[71] and did not kick out with his legs.[72] He said that the police officers picked him up and threw him in the van and that he felt like he was in danger.[73]
[67] ts 92 (17 January 2019).
[68] ts 92 (17 January 2019).
[69] ts 94 (17 January 2019).
[70] ts 95 (17 January 2019).
[71] ts 96 (17 January 2019).
[72] ts 96 (17 January 2019).
[73] ts 97 (17 January 2019).
Ms Fernandez also gave evidence about this incident. Her evidence was that on 20 February there was a knock at the door and an officer said, '[w]here is he?' At the time, the appellant was sitting in the lounge room. The officer then said to the appellant that he was under arrest, she asked what for and the officer responded that it was for assaulting a young girl.[74] She said the officer then grabbed the appellant. The appellant was pushing his hands and trying to get the officers to let him go of him.[75] She said the appellant walked down the stairs and the police officers banged him against the wall and twisted his arm. She went back out on to the balcony and observed that he was handcuffed behind his back.[76]
[74] ts 100 (17 January 2019).
[75] ts 102 (17 January 2019).
[76] ts 102 (17 January 2019).
In cross-examination, she confirmed that when she opened the door of the appellant's unit, they told him that he was under arrest. She said that the police didn't introduce themselves,[77] although they might have said that they were from the Wembley Police Station.[78] Her evidence was that the police tried to arrest the appellant at the door to his unit, but he tried to get them to let go.[79] She said the police handcuffed the appellant in the landing of the stairs. She saw the appellant trying to resist the police and that they pushed him into the wall and twisted his hand.[80]
[77] ts 111 (17 January 2019).
[78] ts 113 (17 January 2019).
[79] ts 112 (17 January 2019).
[80] ts 115 (17 January 2019).
Application for an adjournment
The evidence concluded at approximately 4.00 pm on 17 January 2018 and the matter was adjourned until 11.30 am the following day, 18 January 2018, for closing submissions. When the matter was called on 18 January 2018, the appellant applied for an adjournment so that he could get the transcripts of the trial and said that he wanted 'to get a lawyer to represent me' because he didn't 'really know how to handle [himself] in this matter'.[81] The application for an adjournment was opposed by the respondent.
[81] ts 125 (18 February 2019).
The learned magistrate dismissed the application for an adjournment.
Reasons of the magistrate
On 7 February 2019 at 3.06 pm, the learned magistrate delivered her reasons for decision on the two charges.
In relation to the first charge of aggravated assault, the learned magistrate accepted the evidence of Mr Sarre as both honest and reliable. She noted that he was an independent witness and accepted his evidence in its entirety. The learned magistrate also accepted the evidence of Ms Papadimitriou and Mr Smith as credible witnesses and where their evidence differed from that of Mr Sarre, preferred his evidence. In relation to the appellant, the learned magistrate found that he was 'internally inconsistent and inconsistent with other evidence' and that he was not a credible witness.[82]
[82] ts 8 (7 February 2019).
She made the following findings of fact:[83]
[O]n 30 January 2018 both Mr Hodder and Ms Papadimitriou were at the Wandana Flats. Ms Papadimitriou 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 Mr Hodder. Mr Hodder grabbed her by both wrists and this was seen by Mr Greg Smith. Mr Sarre heard a voice of which he thought was Ms Papadimitriou saying, 'Help me, help me'. He left his business premises and he saw Mr Hodder and Ms Papadimitriou. Mr Hodder let go of Ms Papadimitriou and struck her to the left buttock with his right hand. Mr Hodder then walked to the units with Mr Sarre or ahead of Mr Sarre and Ms Papadimitriou.
The police were called by Mr Smith and investigated the matter further on 20 February 2018.
[83] ts 9 (7 February 2019).
In relation to the second charge, the learned magistrate found the evidence of the two police officers to be credible and reliable and accepted their evidence. Their evidence was largely supported by the evidence of Ms Fernandez.[84] The learned magistrate noted that the appellant admitted in his own evidence that he pulled his hand away from the officer but disputed resisting arrest or swearing at the officer. In this regard, she found the appellant's evidence was not credible.
[84] ts 12 - 13 (7 February 2019).
The learned magistrate summarised her factual findings in the following terms:[85]
PC Neenan and PC Arthurs, having visited witnesses early in the morning on 20 February 2018 and having taken statements, attended Mr Hodder's address. PC Neenan knocked on the door, which was answered by Ms Fernandez. At the time the accused was seated in the unit. The accused went to the door voluntarily and PC Neenan told him he was under arrest for suspicion of indecent assault.
Mr Hodder 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 under - 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.
Mr Hodder, I accept, had difficulty in entering the van and refused to do so and was assisted by both officers in getting into the van.
[85] ts 13 (7 February 2019).
Hearing of appeal
The appellant did not file written submissions prior to the hearing on 28 June 2019. At the hearing of the appeal, the appellant indicated that he was in a position to address me on his grounds of appeal.[86] The respondent proceeded with the hearing on the basis that if the appellant went outside the grounds of appeal, they might require further time to address any additional matters.[87] Ultimately, this was not required.
[86] ts 2 - 3 (28 June 2019).
[87] ts 3 (28 June 2019).
I will deal with the grounds of appeal in the chronological order in which the issues arose in the course of the trial before the learned magistrate.
Ground five - amendment to the charge on day of hearing
As noted above, both of the charges were amended prior to the hearing; the first charge was amended on 27 September 2018 and the second charge on the day of trial.
The appellant's ground of appeal focuses on the amendment to the second charge which occurred on the day of trial. The transcript of the hearing records that the charge was amended following a concern raised by the learned magistrate that the charge was duplicitous as it named both officers. That is, the learned magistrate raised, quite properly in my view, a concern that the original charge alleged two separate offences in the one charge - an offence that the appellant obstructed Constable Rob Neenan in the performance of his functions and an offence that the appellant obstructed First Class Constable Thomas Arthurs in the performance of his functions. As such, the original charge was bad for duplicity.[88]
[88] Chew v The Queen (1991) 4 WAR 21.
The Criminal Procedure Act 2004 (WA) s 132 gives the court the power to amend a charge[89] at any time before or during a trial.[90] If the amendment prejudices the accused's defence of the charge, the court is required to adjourn the hearing[91] or, if an adjournment will not overcome any prejudice, refuse the amendment.[92]
[89] Criminal Procedure Act 2004 (WA) s 132(3).
[90] Criminal Procedure Act s 132(1).
[91] Criminal Procedure Act s 132(8).
[92] Criminal Procedure Act s 132(10).
While I note that the appellant was unrepresented in the hearing before the learned magistrate, I note that at the time the amendment was made, the appellant did not object to the amendment, seek an adjournment or raise any matters which would suggest that the appellant was prejudiced by the amendment.
The appellant submitted that it was unfair to have the charge amended on the day of the hearing. Apart from this general submission, no specific matters were raised by the appellant to support this assertion.
In my view, it could not be said that the appellant was prejudiced by the amendment, even though it occurred on the day of the trial. The amendment simply removed one of the offences contained within the charge. 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.
In my view, there is no merit in this ground of appeal.
Ground three - hearing of charges together
The appellant submitted that it was unfair and unjust that both charges were heard on the same day. He asserted that he was 'trying to fight one and they're bringing up questions for another … and they're not exactly the same charges'.[93]
[93] ts 4 (28 June 2019).
It is apparent from the procedural history of the matter, which I have summarised above, that:
(a)the proceedings were listed at the same time on the application of the appellant's counsel who appeared for him at the first mention date;
(b)the appellant raised a concern about the listing of the matters at the same time with the court on 27 September 2018 and at the commencement of the hearing before the learned magistrate; and
(c)the court considered that it was in the interests of justice for the matters to be heard together as the second charge arose from the events that occurred when the police attended to arrest the appellant on the first charge.
The Criminal Procedure Act s 134 provides that:
A court may order that 2 or more charges against one accused that are contained in 2 or more separate prosecution notices or indictments be tried together if ‑
(a)the prosecutor consents; and
(b)the court has jurisdiction to deal with all of the charges; and
(c)the court is satisfied that it is in the interests of justice to do so.
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.
In relation to the appellant's submissions as to the conduct of the hearing, it is apparent from the transcript of the hearing before the learned magistrate that the prosecution led evidence and closed its case on the first charge before proceeding to call the witnesses on the second charge. Between hearing the evidence of the prosecution case on each of the charges, the court adjourned for a short time.
The only two witnesses that gave evidence on each of the charges were the defence witnesses - the appellant and Ms Fernandez. Before hearing the evidence of the appellant, the learned magistrate asked the appellant whether he intended to give evidence in relation to one or both matters. The appellant informed her he intended to give evidence on both matters. The learned magistrate then asked the appellant what happened on 30 January 2018[94] before asking him what occurred on 20 February 2018.[95] In cross‑examination, the prosecutor asked the appellant questions about the events on 30 January 2018.[96] He then indicated that he would 'move on to the events that happened on 20 February'.[97] Similarly, when Ms Fernandez was cross-examined, the prosecutor first asked her about the events on 30 January 2018. He then stated 'I will have you turn you[r] mind to 20 February, which is the second one we're talking about today'.[98]
[94] ts 81 (17 January 2019).
[95] ts 85 (17 January 2019).
[96] ts 87 - 91 (17 January 2019).
[97] ts 92 (17 January 2019).
[98] ts 111 (17 January 2019).
I also note that when the parties gave closing addresses on 18 January 2019, the learned magistrate heard the closing addresses from both parties in respect of the first charge before hearing from both of them on the second charge.
In my view, the learned magistrate conducted the trial so that there were two separate trials on the one occasion. There is no merit in this ground of appeal.
Ground six - whether the appellant was fit to stand trial
The appellant asserts that the trial should not have proceeded because he was unfit to stand trial. He submitted that he sought an adjournment because he was sick and not fit to stand trial.
This submission is not 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.[99] 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.
[99] ts 5 (17 January 2019).
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 2.45 pm that day. The appellant stated that he was not very well[100] and the learned magistrate observed that he was quite distressed and accepted that he was not a well man.[101] On this basis, the learned magistrate reserved her decision.[102]
[100] ts 149 (18 January 2019).
[101] ts 149 (18 January 2019).
[102] ts 151 (18 January 2019).
This ground can only succeed if the evidence available at trial, as supplemented by any evidence that might be adduced on the appeal, indicates that the appellant was so unwell as to be unable to follow the proceedings or to properly give evidence in his defence.
The appellant did not tender any medical certificates before the learned magistrate nor did he bring an application to adduce evidence on the appeal. As such, there is no evidentiary basis to support the appellant's submission that he was unfit to stand trial. There is no merit in this ground of appeal.
Ground two - refusal of adjournment
The appellant submitted that the learned magistrate erred in refusing his application for an adjournment on 18 January 2019. The application for an adjournment was made on the basis that the appellant had not received the transcripts of the trial that occurred the previous day and that he wanted to obtain legal representation. At that stage, all witnesses had given their evidence and the matter had been adjourned overnight for closing addresses.
The following exchange then took place between the learned magistrate and the appellant:[103]
HER HONOUR: Yes. Well, Mr Hodder, the issue was one that you should have raised yesterday before we started, because now a lawyer is not going to be in a position to represent you for a closing address.
ACCUSED: Why?
HER HONOUR: You've already conducted the trial. You chose to represent yourself. I asked you yesterday – asked whether you had legal advice from a duty lawyer; asked you whether you wanted to be represented, and you continued to represent yourself. So at this point in time, really you're in a position where -
[ACCUSED]: But the matter has gone an extra day and I need a lawyer to represent me.
HER HONOUR: Yes, but we're up to closing addresses, Mr Hodder, so it's not a position where I can adjourn a matter for a lawyer to represent you in a closing address of a trial. …
ACCUSED: I just really believe 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.
[103] ts 125 - 126 (18 January 2019).
The learned magistrate dismissed the application for an adjournment and gave the following reasons for her decision:[104]
I'm not going to allow the adjournment, Mr Hodder. I appreciate that you're not a lawyer, and I think I've given you a lot of latitude around that. I did ask you about legal advice yesterday, and whether you would like to be represented. You did choose to represent yourself. I can see from 27 September you also were choosing to represent yourself, and it was through the fact that the court wasn't available that the trial didn't proceed.
ACCUSED: I didn't choose to represent myself. I was going to ask for an adjournment that day because they changed all the - - -
HER HONOUR: All right. Well, it doesn't seem that you did. The matter was adjourned because there was no magistrate available on that day. But you've had the facts, you've had all of these papers, for a long time to prepare, to get legal advice. My view is that you've had ample opportunity, and if you choose to represent yourself in those circumstances, then we need to finish the trial and proceed. It's not a complicated matter. It is actually just a factual matter in relation to this. And I must say, on the evidence that I heard on the second trial yesterday, the obstruct, actually there wasn't a lot of dispute even as to the facts. So it's a fairly straightforward trial matter.
[104] ts 127 - 128 (18 January 2019).
Her Honour then proceeded to hear closing addresses from both parties.
I note that, apart from the first mention of the charges on 22 March 2018, the appellant had been unrepresented at all subsequent hearings of these charges including on 27 September 2018 when the matter had originally been listed for trial.
At the commencement of the trial, the learned magistrate asked the appellant whether he had received legal advice in relation to the charges and whether he had seen a duty lawyer.[105] The appellant's response was to the effect that he had seen a duty lawyer earlier in relation to the charges. Her Honour asked the appellant whether the duty lawyer had spoken to him about the defence and going to trial, to which the appellant answered 'yes'.[106] Her Honour noted that the appellant had a pen and paper to take notes during the hearing and then explained the procedure for the hearing.[107]
[105] ts 4 (17 January 2019).
[106] ts 4 (17 January 2019).
[107] ts 4, 6 - 10 (17 January 2019).
The learned magistrate had a general power to adjourn the hearing of the charges at any time under the Criminal Procedure Act s 75(2).
In Lewis v State of Western Australia, Buss JA summarised the principles which this court must apply in reviewing the decision by a learned trial judge to grant or refuse an adjournment of a criminal trial as follows:[108]
The principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply to a trial judge's decision to grant or refuse an adjournment of a criminal trial. The correctness of the trial judge's decision can only be challenged by demonstrating error in the decision-making process in the manner explained in House v R (1936) 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ). Also see R v Alexandroaia (1995) 81 A Crim R 286, where Hunt CJ at CL, Grove and Dunford JJ said:
Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made. (citations omitted)
[108] Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40].
In that case, the court noted that each case will turn on its own facts and circumstances. The fundamental question is whether, in refusing the adjournment, the appellant was not given a full opportunity to present his defence, which is a basic standard required for the proper administration of justice.[109]
[109] Hanneybel v The Queen [2004] WASCA 54 [33].
In this case, the appellant appeared on the first day of trial without legal representation and without objection. He was given a full opportunity to present his defence. The refusal of the application for an adjournment before closing address did not deprive him of the full opportunity to present his defence. At that stage, it would have been difficult for a lawyer to represent the appellant for closing addresses as they would not have been present during the evidence, would not be able to cross‑examine the witnesses and would not have notes of the evidence given by the witnesses.
In the circumstances, I am not satisfied that there was any error in the learned magistrate's decision making process in refusing the application for an adjournment. In my view, the ground must also fail.
Grounds one and seven - refusal to admit evidence of defence witnesses including evidence of the appellant's restraining order against the victim
The appellant submitted that the refusal of the learned magistrate to admit evidence from witnesses called by him was unfair and, in effect, amounted to an error of law.
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 Chris Mark, a friend of the victim; and
(d)evidence from Edwin Ashby about 'what ha[d] been going on at the Wandana flats which contributed to all these problems'.[110]
[110] ts 117 - 119 (17 January 2019).
I note that during the course of the trial, the appellant also sought to adduce evidence from Ms Fernandez that:
(a)the victim had 'lied in her disclosure';[111]
(b)the victim had attacked Ms Fernandez on another day;[112] and
(c)an out of court statement made by a friend of Ms Fernandez who was not called as a witness at the trial.[113]
[111] ts 99 (17 January 2019).
[112] ts 100 - 101 (17 January 2019).
[113] ts 107 (17 January 2019).
In order for evidence to be admitted, it must be relevant.[114] Evidence is relevant if it tends to prove a fact in issue or is a fact which is relevant to a fact in issue.[115] 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.
[114] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6].
[115] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [118].
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 (d) 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.
The appellant has not demonstrated that the learned magistrate made any error of law in refusing to admit this evidence. In my view, neither of these grounds of appeal has any merit.
Ground four - verdicts were unsafe and unsatisfactory
The appellant submitted that the verdict was unsafe and unsatisfactory because the learned magistrate did not 'give any reasons as to why [he was] being convicted' and because the evidence of Mr Sarre, the independent witness, was that he did not see the alleged assault.[116]
[116] ts 9 (28 June 2019).
In considering whether a conviction is unsafe or unsatisfactory, the question for an appellate court is:[117]
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. (footnotes omitted) (original emphasis)
[117] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J). See also The State of Western Australia v Olive [2011] WASCA 25 (Buss JA).
These principles apply by analogy to a trial before a magistrate.[118]
[118] The State of Western Australia v Olive [44].
In relation to the first charge, the learned magistrate found that the evidence of each of Mr Sarre, Ms Papadimitriou and Mr Smith was credible and rejected the evidence of the appellant. Her Honour was entitled to make these findings.
I am satisfied from the evidence given at trial that there was a sufficient foundation for the magistrate's findings that:
(a)On 30 January 2018, both the appellant and Ms Papadimitriou were at the Wandana flats;[119]
(b)Ms Papadimitriou went to collect some mail and heard a male voice abusing her;[120]
(c)she followed the man and asked for his name and address. This man was the appellant;[121]
(d)the appellant grabbed both wrists of the appellant, which was witnessed by Mr Smith;[122]
(e)Mr Sarre heard someone calling for help.[123] He then left his business premises and saw the appellant and Ms Papadimitriou on Barker Road;[124]
(f)the appellant let go of Ms Papadimitriou and he struck her left buttock with his right hand;[125] and
(g)the appellant walked back to the units with Mr Sarre, followed by Ms Papadimitriou.[126]
[119] ts 15 (17 January 2019).
[120] ts 15 (17 January 2019).
[121] ts 15 (17 January 2019).
[122] ts 15, 41 (17 January 2019).
[123] ts 50 (17 January 2019).
[124] ts 51 (17 January 2019).
[125] ts 16, 40 (17 January 2019).
[126] ts 20; 51 (17 January 2019).
In relation to the second charge, the learned magistrate found that the evidence of each of the police officers was credible, that this evidence was largely supported by the evidence of Ms Fernandez and in part the appellant and rejected the evidence of the appellant where it departed from the police officers. Her Honour was entitled to make these findings.
I am satisfied from the evidence given at trial that there was a sufficient foundation for the magistrate's findings that:
(a)Constable Neenan and First Class Constable Arthurs attended the appellant's unit on 20 February 2018;[127]
(b)Constable Neenan knocked on the door and Ms Fernandez answered the door. The appellant went to the door voluntarily and was told he was under arrest for suspicion of indecent assault;[128]
(c)the appellant swore at the officers, pulled his arm away when Constable Neenan tried to take his arm and walked back into his unit;[129]
(d)Constable Neenan entered the appellant's unit and each officer took a hold of each of the appellant's arms to escort him to the van;[130]
(e)there was a scuffle in the stairwell before the first landing and the appellant was handcuffed before the officers escorted him down to the van;[131] and
(f)the appellant had difficulty getting into the van and refused to do so. The officers assisted him to get into the van.[132]
[127] ts 56, 68, 100 (17 January 2019).
[128] ts 56, 68, 100 (17 January 2019).
[129] ts 57, 68, 102 (17 January 2019).
[130] ts 57 - 58, 68 (17 January 2019).
[131] ts 57 - 58, 69 (17 January 2019).
[132] ts 65, 69 - 70 (17 January 2019).
In my view, it was open to the magistrate to be satisfied of the appellant's guilt on each charge beyond reasonable doubt. Accordingly, the convictions were not unreasonable. This ground of appeal has also not been made out.
Appeal against sentence
None of the appellant's grounds of appeal raised any relevant matters in relation to the sentence imposed by the learned magistrate. No submissions were made by the appellant in support of his appeal against sentence.
At the time of the offences, the maximum penalty for unlawful assault committed in circumstances of aggravation was imprisonment for 3 years and a fine of $36,000.[133] The maximum penalty for obstructing a police officer in their duties was imprisonment for 18 months and a fine of $18,000.[134]
[133] Criminal Code (WA) s 313(1)(a).
[134] Criminal Code s 172(2).
The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty.
In my view, taking into account the maximum penalties for each of the offences with which the appellant was found guilty, it cannot be said that the sentence imposed on the appellant of a global fine of $1,000 for both charges was unreasonable. Accordingly, the appeal against sentence should also be dismissed.
Conclusion
In my view, none of the grounds of the appeal have been made out.
For these reasons, leave to appeal should be refused and the appeals against conviction and sentence dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill29 AUGUST 2019
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