Hughes v Innes
[2002] TASSC 110
•6 December 2002
[2002] TASSC 110
CITATION: Hughes v Innes [2002] TASSC 110
PARTIES: HUGHES, Alan Lindsay
v
INNES, David John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 81/2002
DELIVERED ON: 6 December 2002
DELIVERED AT: Hobart
HEARING DATE: 18 November 2002
JUDGMENT OF: Cox CJ
CATCHWORDS:
Magistrates - Appeals from and control over Magistrates - Tasmania - Motion to review - The hearing - Generally - Applicant not permitted to cross examine on certain lines - Whether finding was unsafe and unsatisfactory.
M v R (1994) 181 CLR 487, applied.
Justices Act1959 (Tas), s110(2).
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: K Brown
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 110
Number of paragraphs: 20
Serial No 110/2002
File No LCA 81/2002
ALAN LINDSAY HUGHES v DAVID JOHN INNES
REASONS FOR JUDGMENT COX CJ
6 December 2002
The applicant seeks a review of his conviction for one count of common assault and one count of using abusive language to a police officer in the execution of his duty contrary to the Police Offences Act 1935, ss35(1) and 34B(1)(b) respectively. Both offences occurred on the same day, namely 10 January 2002, but hours and miles apart.
In respect of the offence of assault, the prosecutor called a witness, Ms Tuttle, who was an employee of a firm of estate agents which acted for the applicant's landlord. Ms Tuttle had known him for some two years as a tenant. On 10 January 2002, at about 11am, she came to the rented premises he was occupying in Margaret Street, Sandy Bay with the intention of serving upon him a Notice to Vacate the premises. She gave evidence that she knocked on the door, which was opened by the applicant holding an unsheathed hatchet in his right hand. She threw the notice at him and retreated towards her car as he advanced towards her. She claimed he yelled at her, "I'm going to get you", holding the hatchet above his head and waving it about in a threatening manner. He also said, "I'm coming into the office at 2 o'clock and I'm going to chop you up". She moved quickly towards her car about 100 metres away from the premises, jumped in and drove straight off. He was still in the street holding the hatchet. She said she believed he was going to hit her with it before she got to the car and that when she reached the car, she believed he was going to attack the car with it. She returned to her office and notified the police.
Although there is a glass panel beside the front door of the rented premises, the witness claimed to have first seen the hatchet in the applicant's hand after he opened the door and to have last seen it when he was in the street as she drove off. The police found a hatchet immediately inside the front door in a position in which it could have been seen by Ms Tuttle had it been there when the door was opened by the applicant. The position of the hatchet was photographed by police when they came to the applicant's premises and arrested him. Sergeant Harris, one of the officers who came, said that the police knew the location of the hatchet before they entered and that he noticed it because it was where he had been told it was.
The applicant gave evidence in respect of the assault charge, denying that he had opened the door to the complainant with the hatchet in his hand and denying that he had had it in his hand at any time throughout the incident. While he admitted in cross-examination to having been angry with Ms Tuttle, he denied using any violence or threats of violence. He admitted he told her he was coming into the office at 2 o'clock to collect some receipts for rent corrected to show the proper dates to which rent had been paid and said he may have said that he was going "to get you again", a reference to past dealings in the Small Claims Division of the Magistrates Court in which he had been successful and to which I will come later. In short, his case was that the assault allegation was a fabrication on the part of the complainant and that her motives for making it were annoyance at him for his successful resistance of claims for increased rent and vacant possession of the premises, and a belief by her that an allegation of assault would bolster her attempt to obtain possession pursuant to the Notice to Vacate should that also be challenged in the Small Claims Court. It will be observed that the evidence in respect of the assault consisted of her word against his.
When the evidence-in-chief of the complainant, Ms Tuttle, was concluded, the applicant, who represented himself both on the hearing of the complaints and on this notice to review, began his cross-examination by asking whether the complainant's employer ("the firm") charged an illegal application fee. This appears to have been taken by all concerned to be a reference to a fee charged allegedly in contravention of the Residential Tenancy Act 1997, s17. There was an immediate objection by the prosecutor on the basis of relevance, which the applicant sought to resist on the basis that "the illegally charged application fee was the start of a chain of events leading to the Notice to Vacate and the entire dispute between myself and that office". The learned magistrate thereupon said:
"HER WORSHIP: And the Notice to Vacate and its legal basis is not an issue in Court today, so it's not a relevant question to the issue which is a charge of assault against you about which Ms Tuttle has given evidence. So I'm not going to allow you to ask that question."
The exchange continued:
"MR HUGHES: The relevance is that they have consistently done things to aggravate or in some cases the actions were illegal. I have opposed all of those actions in Court and won each time, includes the licence ---
HER WORSHIP: Mr Hughes that may very well be the case, the issue today is not whether Elders Brown & Banks have charged a fee which is illegal or otherwise, that is not the issue before the Court, the issue is the events of this particular day, and that is what you should be addressing. This is not an opportunity for you to review the entirety of your history with Elders Brown & Banks.
MR HUGHES: The relevance is ---
HER WORSHIP: Mr Hughes did you hear what I said?
MR HUGHES: I'm trying to explain the role.
HER WORSHIP: And I have ruled, it is not relevant, you may not go down that track. If you continue to do it I'll keep ruling against you. Now that is it, do not ask the question ‑ do not ask the question. If you would like to go on and ask any relevant questions you may.
MR HUGHES: I consider it relevant, I ---
HER WORSHIP: I've noted that Mr Hughes, I have ruled against you, now that's it.
MR HUGHES: So I ask for clarification on what is considered relevant?
HER WORSHIP: It's not my role to give you legal advice, I have ruled against you, the matter is not relevant. The issues we are dealing with today are a charge of common assault against you which is alleged to have occurred on the tenth of January this year. We are not here to explore the history of your relationship with Elders Brown & Banks.
MR HUGHES: But my basis of defence is that just to show her motive for making this false allegation.
HER WORSHIP: Well the question of whether or not a charge may have been illegal is not relevant to this charge.
MR HUGHES: What ---
HER WORSHIP: Look Mr Hughes I'm not going to keep arguing with you about it. If you want to I'm quite happy to accept there has been a history of disagreement or dispute between you and Elders Brown & Banks and perhaps between you and Ms Tuttle in relation to your tenancy. That seems fairly obvious but I am not going to sit here and listen to you pick through the history of that dispute, it is not relevant, would you please deal with the charge as it is before the Court and the issues which occurred this particular day.
MR HUGHES: But as far as I'm concerned with having been defeated three times in a row in Court and the last occasion being that morning.
HER WORSHIP: Mr Hughes.
MR HUGHES: That was her motivation for making the false allegation.
HER WORSHIP: Mr Hughes I'm not going to raise it again. I have ruled against you, now would you continue please.
MR HUGHES: How can I continue, there is nothing to continue with.
HER WORSHIP: Well with respect Mr Hughes ---
MR HUGHES: You make it impossible ---
HER WORSHIP: Mr Hughes I'd suggest you address the allegations that have been made against you, specific allegations, and the evidence of Ms Tuttle in relation to those. She has given what she says is detailed evidence of what occurred on this particular morning. That's the sort of matters you need to be addressing.
MR HUGHES: It all comes down to her word against mine on all of them. The only option I have is to show her motive for making the false allegation. That's the only option I have available that I can see."
The applicant's grounds of appeal are:
"The learned Magistrates finding of guilt was unsafe and unsatisfactory in that:-
1The defendant was not permitted to cross-examine the complainant in relation to the history of their relationship.
2The learned Magistrate erred in a finding of guilty on the balance of the evidence in relation to complaints 659/2002 and 690/2002."
The respondent concedes that the applicant had material which, if relevant, could have been put to Ms Tuttle. In substance, it was to the effect that in respect of his tenancy of the premises in Margaret Street, the applicant had been asked by Ms Tuttle to pay the sum of $55 as a "tenancy reference fee". This had been paid by him, but he had formed the belief that it was illegal. There had been correspondence between them, he asserting its illegality and she contending that it was a legal and justifiable fee. This had led him to file a claim in the Small Claims Court seeking its recovery. He had had to pay a filing fee of $28.05, which he added to the claim. The firm had refunded the $55 before the hearing date, but refused to pay the filing fee. When the matter came on for hearing in the Small Claims Court on Friday, 1 June 2001, the magistrate ordered the firm to pay the filing fee to the applicant. The next working day he received from the firm a letter demanding an increase in rent of 10 per cent. He took this to the Small Claims Court on 30 July 2001 and the magistrate again found in his favour. On 2 August 2001, he received a further letter from the firm increasing the rent and giving notice for him to vacate in January 2002. Again he took them to the Small Claims Court and on 10 January 2002, the day of the incident, the magistrate, for a third time, ruled that the increase was not justified, nor was the Notice to Vacate effective. Later that morning, Ms Tuttle had come to his premises with a fresh Notice to Vacate. Since the disputed increase, receipts for rent had been calculated by the firm at the disallowed increased rate and hence showed him progressively getting into arrears. He had demanded that the receipts be corrected to show that, applying the proper rate, he was not behind in his rent and this was the purpose of his announced intention to come into the firm's office at 2pm that day.
In my view, cross-examination along the above lines was relevant to the issue before the court and should have been allowed. I did not understand counsel for the respondent to argue otherwise, but she contended that most of this material did, in fact, come out in the course of the trial and the learned magistrate accepted that there had been a history of dispute between the applicant and the firm. For practical purposes, it appears that Ms Tuttle was the person in the firm with whom the applicant had contact. The learned magistrate said shortly after the exchange I have set out:
"Mr Hughes again I've said I will accept that there has been a history of dispute between you and Elders Brown & Banks, if you wish, and again I don't see the particular problem with it, I'm prepared to accept that there have been appearances in the Small Claims division of the Court in relation to your tenancy, and that apparently you may have been successful in some. Now I'm quite happy to accept that Ms Tuttle has just indicated that the matter went before Mr Willey and that a Notice to Vacate was incorrectly given. And I am presuming from that or assuming that Mr Willey threw it out. Now I'll accept that."
It was claimed in a non-responsive answer from Ms Tuttle that the applicant had on previous occasions, come into the firm's office with a hatchet strapped on his hip, had paid his rent in 5 cent pieces and had abused and harassed other clients in the office.
In her reasons for decision, the learned magistrate, after detailing Ms Tuttle's evidence-in-chief, said:
"Now Ms Tuttle was cross‑examined. The defendant began by cross‑examining her in relation to, what he alleged, was an illegal fee charged by her office. There was a discussion about the relevance of that material, and I indicated to the defendant, and I was prepared to accept that there was a history of dispute, between him and Elders Brown and Banks, and indeed Ms Tuttle as their representative.
From the cross‑examination it became fairly clear that the defendant and Ms Tuttle had, for want of a better phrase, crossed swords in the Small Claims Division of this Court, over matters affecting the tenancy of the premises the defendant lived in, and that in their meetings in the Small Claims Division, the defendant had been largely successful.
It also became apparent, that on the morning of this alleged assault, the defendant and Ms Tuttle faced each other in the Small Claims Division, in relation to a Notice to Vacate, that the particular notice was apparently ruled ineffective, and that Ms Tuttle indicated to the defendant that a further Notice to Vacate would be issued. She also gave evidence that she was instructed by the owner to give that further notice.
It was put to Ms Tuttle, that as a result of losing the Court case that morning, she was annoyed. Her response was, that she was not particularly impressed, 'because I know of the stress you were causing to our staff'. And she detailed the matter she was referring to; namely, the carrying of the hatchet into the office, and paying rent in five cent pieces. …
It was effectively, and perhaps I'll summarise it, put to Ms Tuttle, that she had fabricated this entire allegation, and that she had done so to, in my words, 'shore up her efforts to have the defendant removed from the premises at Margaret Street'. It was, in fact, put to Ms Tuttle, that she planned to create a situation to support her application. Ms Tuttle told the Court that, in fact, when the Notice to Vacate ultimately went before the Small Claims Division, the Magistrate there, Mr Willey, was unaware of the allegation of assault, and it's perhaps of note, that the basis of the proceedings in the Small Claims Division was the Notice to Vacate, the terms of which, I have to infer, were already clearly drawn, and finalised, before the allegation of assault, or even the circumstances in which the allegation could have been raised, had even arisen. …"
Later, dealing with the applicant's evidence and that of the complainant, she said:
"The defendant said that, finally in his own evidence-in-chief, that he'd already taken a number of matters with Elders Brown and Banks to the Small Claims Court. He'd always been successful. There was no reason to believe that, on the next occasion, he wouldn't also be, and there was therefore no reason for him to make any attack on Ms Tuttle at all.
…
Ms Tuttle's evidence was quite clear and concise. She was not moved from it in cross‑examination. The reason, effectively put to the Court, why she might have fabricated her story, is simply not an acceptable one. The reasons that I advance for that are, that Ms Tuttle is a person whose job it is is to manage a number of rental properties. It's clear from her evidence that this wasn't the first time that she's been obliged to give Notices to Vacate. I can infer from her evidence, it's probably not the first time either that she's been involved in the Small Claims Division in relation to tenancy matters.
The description by her of the behaviour of the defendant, in coming into the office wearing a large hatchet strapped to his hip, and paying his rent in five cent pieces, is objectively a description of behaviour which could reasonably be expected to cause people some concern. The defendant indicated that he frequently used the tools that he did.
There was, however, no explanation as to why, given his lack of employment, and lack of any obvious connection to work, voluntary or otherwise, which might have necessitated the use of a hatchet, he felt the need to ride to a place, particularly a place where it was clear there was ‑ had been a level of ill-feeling between him and them, but ride there with a very large hatchet strapped to his body.
Further, in relation to the Notice to Vacate, the defendant's argument is, that this allegation is false, and has been made to shore up that Notice to Vacate. As I indicated, clearly on the evidence the Notice to Vacate had been given, and drawn, prior to these circumstances which gave rise to this allegation. And Ms Tuttle's evidence, which was not challenged in that particular respect, was that the Small Claims Magistrate was never made aware of the allegation of assault. So that reasoning just simply doesn't stand up."
In my view, the above statement shows that the learned magistrate did objectively consider the relationship between the applicant and Ms Tuttle and was seized of the substance of it. True, there were some details which were not placed before her because of her ruling, but there was ample material ultimately adduced from which she could accurately assess the degree of annoyance, or indeed spite, which might have motivated the complainant to invent a false story of assault and to gauge the plausibility of the applicant's suggestion that the fabrication was made to somehow ensure that the Notice to Vacate delivered on 10 January 2002 would be held effective if again challenged (as indeed it was) in the Small Claims Court. In these circumstances, the error in ruling that the line of cross-examination the applicant said he wished to pursue did not result in a substantial miscarriage of justice, and, standing alone, should lead to the dismissal of the motion (Justices Act 1959, s110(2)(ab)).
I have acknowledged that this was essentially a case of word upon word. The applicant argued that there were aspects about the case which would make it extremely difficult for a court to be satisfied beyond reasonable doubt that the prosecution had proved its case. He instanced the failure of the prosecutor to call witnesses from the nearby bowling green or persons in the street who would have been likely to have noticed so bizarre an incident as a man chasing a woman in a public street in broad daylight wielding a hatchet. However, there was no evidence that there were passers by, or bowlers, who could have seen the incident. It is not inherently improbable that at about 11am on a Thursday in early January there were no such persons in a suburban side street either at all, or, alternatively, close enough to take notice.
The applicant also placed reliance upon the police evidence that before they went to the premises they knew the location of the hatchet, which was found near the door. He argued that they could only have known this from information supplied by Ms Tuttle and that she must therefore have seen it there when he opened the door upon her arrival and must have invented the version that it was at that stage in his upraised hand. The argument is very largely dependent on whether or not the police officer had precise information as to where to look for the hatchet. The relevant part of the cross-examination was as follows:
"When you entered you would have been able to see the hatchet fairly early on it being in the door? … Yes.
Near the hatchet you would have also observed other gardening tools, is that correct? … No I didn't take any notice of any other gardening tools and I wasn't looking for them.
I put it to you that if you had been able to see the hatchet you would have been able to see the gardening tools that were with them? … No, the hatchet was on its own standing out quite predominantly.
And what made you claim it was predominant? … We went there with the intention of searching for a hatchet, when you looked inside the residence it stood out as to where it was.
Would that ‑ do you consider that to have been because of its inherent location or because in your mind that's what you were looking for? … No, that's where we were told it was.
So you already knew the location of the hatchet before you entered? … Yes.
And you knew what you were looking for, where to look for it? … Yes.
And you don't consider that that fact in your mind may have made it more predominant than any other item in the premises? … No.
So you would have noticed every other item equally as ‑ to the same extent as you would have noticed the hatchet? … There were a number of items depicted in the photographs as to what was lying around on that side of the house inside the residence, the hatchet was what we were looking for, that stood out as to where it was, and once I had located that I had no reason to search anything else."
This evidence does not establish that the officer knew precisely where the hatchet was, and that Ms Tuttle must have been lying when she said she only saw it while it was in the applicant's hand.
As to the second charge, after the applicant had been taken into custody in respect of the assault, he was detained at the Hobart police station and was released later that afternoon. Constable Blackwood was on bicycle patrol with Constable Franklin in Argyle Street near the Hobart Private Hospital at about 5.05pm. Constable Franklin was in front of him and both were on the footpath. Constable Blackwood said he observed the applicant say to Constable Franklin, "Get off the fucking footpath you pig". The applicant continued to walk and the officers turned around to speak to him, whereupon he said to Constable Blackwood, "You're just harassing me; it's gonna be war; I'll get you, you fucking arsehole". He was thereupon arrested for abusive language to a police officer in the execution of his duty. Constable Blackwood said he had not been involved in the arrest of the applicant at Sandy Bay earlier that day, nor involved in the investigation of that matter. In cross-examination he denied a suggestion by the applicant that either he or Constable Franklin had ridden directly at him.
Constable Franklin corroborated Constable Blackwood in his evidence-in-chief. In cross-examination it was put to him that he had ridden directly at the applicant in order to intimidate a person who he knew had recently been released from custody. He denied any knowledge at the time that the applicant had been in custody and denied deliberately riding directly at him. He admitted that at some stage they may have been facing each other, but said he was riding slowly, giving way to pedestrians and passed the applicant at least a metre away from him.
In his own defence, the applicant gave evidence that he was walking on a narrow part of the footpath where there was insufficient room for a bicycle to pass. One of the police bicycles was being ridden directly at him when it was about 5 metres away. He felt it was an act of intimidation of someone who had just been released from custody and he was not favourably disposed towards police generally at the time. He said he then uttered the words, "Get off the fucking footpath you dickhead". As he was doing so, the police officer moved off the footpath and passed him. In cross-examination it was put to him that he was angry and upset about having the officers come back and speak to him after they had passed and that after the first use of bad language, he had used further language to them which resulted in his arrest. He said, "Quite probably ¾ I don't recall what exact statements I made though …. I said several things during the time. … Some of them would not have been complimentary". The learned magistrate carefully reviewed all the evidence and concluded:
"In relation to this charge the evidence of the two police officers as to what is alleged to have been said was not undermined by cross‑examination. The defendant's evidence as to what he said was said might only suggest that he used the word 'dickhead' instead or 'arsehole'. He's not clear on precisely what he said after that and agrees that he probably said several things, most of them or some of which were not complimentary. The defendant, at the time these events occurred, was clearly angry. Whether his anger was justified or not, given that there was no involvement by either of these officers in the events that have occurred relating to the defendant earlier, is not in my view a matter which justifies his reaction to these officers in the manner that appears he did. I have no reason to doubt the evidence of the two officers as to what was said. If I were disposed to doubt the evidence of Constable Blackwood on the basis that it appears, although he didn't tell the Court this and I point out that he wasn't asked, that he may have had some knowledge of the defendant from earlier in the circumstances earlier in the day then I have certainly Constable Franklin's evidence, which I have absolutely no reason to doubt.
I do not accept that the defendant was justified on whatever basis in using language of the type that was used to these police officers. Firstly I accept that at the time the events occurred they were acting in the execution of their duty, secondly I accept their evidence as to the words used, thirdly I accept that that constitutes abusive language. In the circumstances I find the charge proved."
The ground of appeal in respect of both convictions is that the verdict is unsafe and unsatisfactory. The second particular given is that "The learned Magistrate erred in a finding of guilty on the balance of the evidence in relation to [both complaints]". They were heard in succession, but at the conclusion of the applicant's evidence on the assault charge, the learned magistrate adjourned for lunch without announcing her decision, which she said she would give after hearing the second complaint. She embarked on the hearing of the latter upon the resumption of the court after the luncheon adjournment and delivered her findings on both at the conclusion thereof. I take the particular to complain that the learned magistrate should have announced her finding on the first complaint before embarking on the hearing of the second complaint and that her decision on each has been tainted in some way by her consideration of the evidence on the other charge.
The fact that the learned magistrate dealt with each case completely separately is a strong indication that her decision on each was made on the evidence admissible on each and was not tainted by the evidence on the other. The incidents were separate and not suitable to be joined in the one complaint (Justices Act, s29(1) and cf Criminal Code, s311(2)). But just as magistrates and juries can be expected to reach verdicts applying their minds to the relevant evidence thereon in respect of multiple counts when joinder in the one complaint or indictment is appropriate, I see no reason why the learned magistrate could not have reached her verdicts on each complaint, confining herself to the relevant evidence on each.
A complaint that a verdict is unsafe or unsatisfactory involves a question of fact:
" … which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (Hayes v The Queen (1973) 47 ALJR 603 at 604). But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside." (M v R (1994) 181 CLR 487 at 492 - 493 per Mason CJ, Deane, Dawson and Toohey JJ.)
In the same reasons for judgment, at 493, their Honours said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The same considerations apply where the fact finding tribunal is a magistrate or judge rather than a jury.
Having made an independent assessment of the material before the learned magistrate, I am quite satisfied that it was open to her to be persuaded of the applicant's guilt beyond reasonable doubt. The appeal is dismissed.
0
2
1