Hunt v Russell - [2019] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HUNT -v- RUSSELL [2019] WASC 284
CORAM:   SMITH J
HEARD:   24 JUNE 2019
DELIVERED          :   9 AUGUST 2019
FILE NO/S:   SJA 1120 of 2018
BETWEEN:   MARCUS ALEXANDER HUNT
Appellant
AND
MICHAEL FREDERICK RUSSELL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R JOHNSTON
File Number             :   AL 2051 of 2017

Catchwords:

Criminal law - Appeal against conviction - Particulars and duplicity, general observations - Latent duplicity - Liquor Control Act 1988 (WA) - Failure to leave premises - Whether appellant was convicted of offence that was not the event particularised by the prosecution - Whether multiple events part of one offence

Miscarriage of justice - Whether procedural unfairness in the carriage of the investigation by arresting officer - Failure to take statements of particular persons - Whether departure from essential requirements of a fair trial - Whether the prosecution sought to change their case during the course of the trial - Whether, in all of the circumstances, there was a miscarriage of justice in that the appellant was the subject of an unfair trial

Bias - Appeal ground raises apprehended bias of primary judicial officer - Apprehended bias, general observations - Where arresting officer who is a witness appears before presiding judicial officer on previous occasions in professional capacity - Waiver - Whether appellant can appeal on grounds of bias after judicial officer brought apprehended bias to attention of parties but no application made

Legislation:

Criminal Procedure Act 2004 (WA)
Licensing Act 1932 (SA)
Liquor Control Act 1988 (WA), s 3, s 3A, s 5(2), s 13, s 114, s 115

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T Jardine
Respondent	:	Mr E Fearis

Solicitors:

Appellant	:	Premier Compensation Lawyers
Respondent	:	State Solicitor for Western Australia

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

Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Bauerhuit v Dean [2011] WASC 253
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Green v The State of Western Australia [No 2] [2014] WASCA 53
Ingham v McKenzie [2009] WASC 351
John L Pty Ltd v Attorney‑General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 567
Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289
McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 13
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Scolaro v Shephard [No 2] [2010] WASC 271
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly (1989) 167 CLR 568
Walsh v Tattersall (1986) 188 CLR 77

SMITH J:

The appeal – application to admit new evidence and the result

On 3 October 2018, the appellant, Mr Marcus Alexander Hunt, was convicted of refusing to leave licensed premises on 16 April 2017, namely the Bremer Bay Resort, having been required to do so under s 115(4) of the Liquor Control Act 1988 (WA).
The conviction was entered after a two day trial on 2 and 3 October 2018 in the Albany Magistrates Court. The appellant was fined $900 and ordered to pay costs of $429.20.
Mr Hunt applies for leave to appeal against the conviction on proposed amended grounds of appeal as follows:[1]
[1] Amended appeal notice, filed 6 May 2019.
1.Miscarriage of justice
(a)The Appellant was convicted for an offence which was not the event particularised by the Prosecution as the establishing charge, thereby denying the Appellant the ability to properly defend the charge;
(b)The proceedings were conducted on a basis that denied the Appellant procedural fairness and was prejudicial to his defence in all of the circumstances;
(c)The Prosecution sought to change their case during the hearing of the matter to rely on separate facts to prove the charge, without making an application to amend the charge, thereby denying the accused procedural fairness;
(d)Denial of natural justice through an apprehended bias by the Magistrate toward the arresting officer and/or the Prosecution.
2.Error of Law
(d)The Magistrate erred in convicting the Appellant on a set of facts not the subject of the charge.
Leave of the court is required for each ground of appeal. Leave to appeal must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2]
[2] Criminal Appeals Act 2004 (WA) s 9.
Mr Hunt also seeks leave to admit into evidence,[3] the following documents:[4]
(a)statement of material facts;
(b)prosecution notice;
(c)transcript of proceedings in the Albany Magistrates Court on 14 May 2018;
(d)transcript of proceedings in the Albany Magistrates Court on 2 and 3 October 2018;
(e)incident report compiled on 6 November 2017; and
(f)a chain of emails, being an email from Andrew Dunn (prosecution) to Magistrate Johnston (undated), and an email from Carl Fjastad (prosecution) to appellant's solicitor dated 9 May 2018.
[3] Criminal Appeals Act 2004 (WA) s 39, s 40.
[4] Application in an appeal, filed 27 May 2019.
It is not necessary for any order to be made to admit the documents referred to in (b), (c), or (d). The prosecution notice and the transcript of proceedings are part of the formal record of proceedings in the appeal.
In support of the appellant's application to admit the documents into evidence the appellant filed an affidavit sworn by Mr Timothy Scott Jardine on 14 May 2019, in which Mr Jardine explains that the documents in (a) and (e) were relied upon by the appellant to prepare for the appellant's defence at the trial. In particular, but not limited to these documents were relied upon to:[5]
(a)organise witnesses for the defence to the particularised event;
(b)for the purposes of examination and cross‑examination of both prosecution and defence witnesses at the hearing;
(c)properly defend the elements of the charge as alleged; and
(d)take instructions and advise Mr Hunt in the normal course.
[5] Affidavit of Timothy Scott Jardine, sworn 14 May 2019.
It is argued on behalf of Mr Hunt that the new evidence should be adduced in the appeal to show that the conduct of the proceedings by the prosecution and/or decision by the magistrate resulted in a miscarriage of justice, in that the facts reasonably relied upon were not those which Mr Hunt was convicted following the trial hearing.
It is also argued on behalf of Mr Hunt that the email chain in document (f), is said to be a document which goes to (and is relevant to show) an apprehension of bias by the magistrate.
Consequently, the documentary statements contained in (a), (e) and (f) (the statement of material facts, the incident report and email correspondence respectively) is 'new evidence' as it was evidence that was available at trial.
The principles the court is required to apply when considering whether to admit new evidence in a criminal appeal were summarised by Pritchard J in CD and EF v Chief Executive Officer, Department of Child Protection and Family Support as follows:[6]
Under the CA Act, an appeal court must decide an appeal on the evidence and material that were before the lower court. However, that requirement does not affect the power of the appeal court to admit additional evidence. Under the CA Act, the Court has a discretion to permit evidence, other than that which was adduced at the trial, to be relied upon.
In Cramphorn v Bailey, Mazza JA observed that:
'The discretion ... is wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions.'
The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence. In the context of a criminal trial, where an appellant seeks to rely on new evidence ‑ that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered ‑ no miscarriage of justice will arise simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty. An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.
[6] CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126 [117] ‑ [119].
For reasons that follow, the new evidence in (a), (e) and (f) should not be admitted in the appeal as I am not satisfied that the new evidence establishes that Mr Hunt is innocent, or raises such a doubt the court is satisfied that Mr Hunt should not have been convicted of the offence.
I am not satisfied that the proposed grounds have any reasonable prospect of succeeding, and accordingly I am not satisfied that any error of law in the decision of the magistrate has been demonstrated.
Leave should be refused on each of the proposed grounds and the appeal dismissed.

Particularisation of the charge

It is important to note that no formal request was made on behalf of Mr Hunt for particulars (or election by the prosecution) of which act of refusal (by Mr Hunt) was to be relied upon by the prosecution before or at the trial.
It is argued, on behalf of Mr Hunt, that the prosecution opened on a potential number of refusals to leave the premises by Mr Hunt, each of which could have supported a separate charge. Although the argument raises an argument whether the charge was duplicitous, this point was not put on behalf of Mr Hunt. It is argued instead that when the prosecution opened on a potential number of refusals that it alleged the first refusal occurred near the bar. This refusal, by Mr Hunt, is said by counsel for the defendant to solely constitute the offence as charged, and that any further refusal near the door (of the bar area) or outside of the bar area was just a continuation of the initial offence.[7] For reasons that follow, this contention is correct. However, this point does not raise any error of law.
[7] ts 9, 24 June 2019.
At the trial, the prosecutor stated in opening that the alleged failure of Mr Hunt to leave the licensed premises after having been required to do so occurred shortly after Mr Hunt intervened when Sergeant Russell was attempting to remove another person from the premises.
The prosecutor then relevantly, stated:[8]
[T]he accused who had been drinking with the male wearing the beige pants and dark hoodie and was standing directly next to him when he confronted Sergeant Russell, challenged Sergeant Russell, putting his hand on Sergeant Russell's chest, yelling something into his face.
The accused was wearing a black t‑shirt with a skull motif on the back and a baseball cap. Sergeant Russell reacted, grabbing the accused around the scruff of the neck with his hand, taking him down to the ground. As he did so, the male with the beige pants and dark hoodie tried to intervene again before he was separated by a crowd controller. Sergeant Russell told the accused, who was smiling up at him from the floor, that he was drunk and had to leave the premises. The accused said, 'I'm not going anywhere'. Sergeant Russell physically dragged the accused by his shirt up onto the ground and pulled him towards the exit.
…
Sergeant Russell told the accused that he was required to leave the premises again, but the accused shouted words to the effect of, 'Fuck you, cunt. I don't have to leave. Fuck off'. The accused wrenched himself away from Sergeant Russell's grip and was standing freely. Sergeant Russell said again 'You are required to leave. You're drunk. Do it now or be arrested'. At this stage, the accused was not restrained and was free to comply with the officer's requirement to leave. The accused turned his back on Sergeant Russell and started walking back towards the bar.
Sergeant Russell took hold of the accused again and pulled him out of the main bar and into the bar beer garden. The accused continued to resist Sergeant Russell and was shouting obscenities at him. Sergeant Russell released the accused and required him to leave the licenced premises again. For a second time, the accused refused and continued swearing at the officer. The accused was eventually physically ejected from the licensed premises after having refused the request to leave a number of times.
[8] Primary court ts 7 ‑ 8, 2 October 2018.
The prosecutor also stated that the prosecution would submit that Mr Hunt exhibited drunken behaviour, disorderly behaviour and quarrelsome behaviour, which if any were proven would establish the prosecution case.[9]
[9] Primary court ts 9, 2 October 2018.
It is common ground that Mr Hunt and another person who was wearing light beige pants were standing very close to the bar when the altercation occurred which resulted in Sergeant Russell taking Mr Hunt down to the ground.
At the trial it appears it was the view of the defence, that the matters stated in opening by the prosecutor were consistent with particulars said to have been provided before trial that the offence occurred when Mr Hunt was taken to the ground by Sergeant Russell at the 'bar area' and not after Mr Hunt was lifted from the ground by Sergeant Russell.
It is argued on behalf of Mr Hunt that the particulars disclosed before the trial only disclosed a requirement to leave the licensed premises when Sergeant Russell first encountered Mr Hunt at the bar area. This contention is not correct.
In making this assumption, the defence relied upon statements made by the prosecutor about the facts of the alleged offence at a hearing before her Honour on 14 May 2018 during the course of hearing applications made by the defence for disclosure and an adjournment of the trial of the charge. The trial of the charge had been listed to be heard on 14 and 15 May 2018.
During the course of argument on 14 May 2018, her Honour asked the prosecutor on what basis Mr Hunt was asked to leave the licensed premises. In response the prosecutor stated:[10]
(a)Mr Hunt interfered with Sergeant Russell when Sergeant Russell was going to speak to another patron;
(b)Sergeant Russell was of the opinion that Mr Hunt appeared to be drunk;
(c)Mr Hunt was argumentative, quarrelsome and behaving in an offensive and disorderly manner;
(d)when Sergeant Russell asked Mr Hunt to leave, he refused to do so;
(e)Mr Hunt failed to leave, so he was removed.
[10] Primary court ts 17 ‑ 18, 14 May 2018.
Whilst the statements made by the prosecutor, on 14 May 2018, can be said to constitute informal particulars of Mr Hunt's conduct that justified the decision to require him to leave the premises, these particulars only go, in part, to the particulars of the offence. They did not constitute, nor did they purport to be, a complete statement of the particulars of the offence.
In any event, these particulars were overtaken by the particulars stated by the prosecutor in opening at the commencement of the trial on 2 October 2018.
During the proceedings on 14 May 2018, the prosecutor also stated that there was CCTV footage which clearly shows the point at which Mr Hunt and Sergeant Russell first came into contact and the use of force by Sergeant Russell in apprehending Mr Hunt, and the commencement of the removal (of Mr Hunt) from the premises.[11]
[11] Primary court ts 29, 14 May 2018.
In this appeal it is argued on behalf of Mr Hunt that the statement of material facts disclosed to the defence prior to the trial also constitute particulars. However, there is no principle established at common law, or by any provision of the Criminal Procedure Act 2004 (WA) that a statement of material facts constitute particulars of a charge.
Leaving this issue aside, the statement of material facts disclosed to Mr Hunt's solicitors prior to trial after setting out the material facts relating to the altercation, and to the fact that Mr Hunt was taken to the ground by an authorised officer, stated that:[12]
As this occurred the accused's friends all lunged towards the officer. Crowd controllers kept the group back and the accused was told that he was now required to leave the premises. Accused said, 'I'm not going anywhere'.
Accused was sitting on the floor and when told to get up he just kept smiling at the officer.
Officer took hold of the accused shirt and lifted him from the ground and said, 'You've been required to leave, go now or be arrested'.
Accused said, 'Fuck you cunt I don't have to leave, fuck off'. Due to the violent situation that had erupted the accused was then immediately pulled by the officer towards the exit.
Half way across the bar floor the accused stopped, turned and tried to return to the bar. Two crowd controllers stood in his path preventing him from returning.
Police then took hold of the accused and pulled him outside through the beer garden. Accused was all the time resisting and shouting obscenities.
Accused was told numerous time to leave of his own accord and refused.
[12] Affidavit of Timothy Scott Jardine, sworn 14 May 2019, annexure A, page 5.
The facts stated in the statement of material facts do not disclose that there was only one refusal by Mr Hunt to leave the licensed premises, or that the offence was complete at the bar area before Sergeant Russell began to pull Mr Hunt from the bar area to the exit. To the contrary, the statement of material facts refers to the fact that it would be alleged that Mr Hunt attempted to return to the bar, he was prevented from returning and that he was told numerous times to leave of his own accord, but refused.
The incident report contains very little information and refers to the alleged offence in very brief terms and does not purport to contain a statement of material facts, or constitute particulars in any form whatsoever.
For these reasons, the only particularisation of the charge that bound the prosecution at the trial were the particulars given to the court at the commencement of the trial on 2 October 2018.

The elements of the offence under s 115(4) of the Liquor Control Act 1988 (WA)

The elements of the offence under s 115(4) (created by s 115(5)), as particularised in opening by the prosecution as an offence under s 115(4a)(a), (b) or (d), were:
(a)a requirement made by an authorised person (as defined in s 13 of the Liquor Control Act) to another person (being a person charged) to leave licensed premises;
(b)the premises in question are licensed (as defined in s 3 of the Liquor Control Act); and
(c)the person charged:
(i)is or appears to be drunk; or
(ii)is behaving in an offensive manner; or
(iii)is a person who the authorised person has reasonable cause to believe is or is known to be quarrelsome or disorderly.

The term 'drunk' is defined in s 3A(1) of the Liquor Control Act as follows:
3A.Term used: drunk
(1)A person is drunk for the purposes of this Act if
(a)the person is on licensed premises or regulated premises; and
(b)the person's speech, balance, co‑ordination or behaviour appears to be noticeably impaired; and
(c)it is reasonable in the circumstances to believe that that impairment results from the consumption of liquor.
Pursuant to s 5(2) of the Liquor Control Act, where it is alleged that a person is drunk, the onus of proof is on the person charged to prove that he or she was not drunk at the time the offence occurs.
At the hearing at first instance it was not in dispute that Sergeant Russell is an authorised person or that the Bremer Bay Resort are licensed premises.
The elements of the offence in dispute were whether:
(a)Mr Hunt had been required to leave the licensed premises before he was removed. In particular, it was argued by the defence that Mr Hunt had been taken to the ground and was under Sergeant Russell's control and removed from the premises before a request to leave had been made;
(b)Mr Hunt had been given a reasonable opportunity to leave the licensed premises (prior to his removal); and
(c)the requirement to leave occurred after Mr Hunt appeared to be drunk, quarrelsome or disorderly.

The magistrate's findings

The main point of the appellant's appeal is raised in proposed grounds 1 (a), 1 (b), 1 (c) and 2 (d).
The essential point made in these grounds is that there has been a miscarriage of justice, and/or the magistrate erred in law, as Mr Hunt was convicted of an offence which was different from that particularised. Specifically, it is contended that Mr Hunt was convicted on a different failure to leave the licensed premises than was particularised by the prosecution.
It is important to note in this appeal that the conduct of Mr Hunt, which was alleged to constitute the offence, was recorded in CCTV footage. The prosecution tendered into evidence CCTV footage recorded by the Bremer Bay Resort which shows what occurred over a ten minute period on the evening in question.
The CCTV footage shows movement of people including Mr Hunt, other witnesses and Sergeant Russell. The CCTV footage also shows movements of the bar staff and customers at the bar. The angle of the video footage shows movements from inside the bar area where the staff are serving customers, to across the bar where Mr Hunt was standing. The CCTV footage shows the actions of Mr Hunt, others and Sergeant Russell from about waist height. The bar obscures any lower view. Sergeant Russell can be seen in uniform wearing a blue police shirt. Mr Hunt can also be seen wearing a black shirt with a distinctive white logo.
At the conclusion of the trial, the magistrate made her findings of fact by having regard to the CCTV footage, as follows:[13]
[13] Primary court ts 100 ‑ 104, 3 October 2018.
(a)Mr Hunt can be initially be clearly seen in the CCTV footage. When Sergeant Russell approached, Sergeant Russell engaged with another male. At that time, Mr Hunt was standing close to the bar and wearing a black shirt with a distinctive white logo. The CCTV footage shows he was engaged in a conversation with one of the witnesses who gave evidence for the defence, Ms Poulish, and he was showing her something on his phone;
(b)Mr Hunt intervened in an altercation between Sergeant Russell and an unnamed male person in beige pants and another person (a Mr Joyce) after Sergeant Russell shoved the male in beige pants (backwards);
(c)the CCTV footage does not show that Mr Hunt made contact with Sergeant Russell deliberately (it may have been inadvertent or unconscious contact as conceded by Mr Hunt);
(d)it is clear from the CCTV footage that from the manner in which Sergeant Russell looks at Mr Hunt that there was some sort of interaction between the appellant and Sergeant Russell (but it is not clear whether that was verbal or physical);
(e)Sergeant Russell was outnumbered and had to act quickly; the whole incident occurred in ten to fifteen seconds, and he had to potentially deal with three people in his immediate vicinity;
(f)it is concerning that Sergeant Russell acted in the manner he did (by taking Mr Hunt to the ground) but he did have to act in a split‑second;
(g)the prosecution relies upon what Sergeant Russell says happened afterwards as to what constitutes the offence;
(h)Sergeant Russell said he had control of Mr Hunt from the time he picked Mr Hunt up from the ground, and the CCTV footage shows he did;
(i)Sergeant Russell's evidence is that he had control of Mr Hunt from picking him up off the ground to approximately the mid‑point between the bar and the exit before Mr Hunt got loose of his hold and started to walk back (to the bar);
(j)Mr Hunt's evidence is that he was walked out of the bar and did not resist;
(k)the CCTV footage at six minutes, 57 seconds shows an image of figures (Sergeant Russell's blue shirt) and (a person wearing) a black shirt with a print consistent with Mr Hunt's shirt and the figures moving back to the bar;
(l)the CCTV footage (at 6.57) is consistent with Sergeant Russell's evidence that he let go of Mr Hunt, told Mr Hunt to leave, Mr Hunt refused and started to walk back (to the bar); and
(m)accepting that a person who is directed to leave licensed premises must be given a reasonable opportunity to do so, even if wrong about the finding that Sergeant Russell gave Mr Hunt an opportunity to leave when he let him go; the evidence of security officers Ms Pearson and Mr Karsakis is that Mr Hunt was struggling strongly and yelling (while Sergeant Russell had hold of him), which conduct in the context constituted a refusal to leave.
The magistrate found that the remaining elements of the offence had been made out. In particular, her Honour found:[14]
(a)a requirement to leave was given to Mr Hunt after he had been put to the ground (by Sergeant Russell); and
(b)Mr Hunt appeared to be drunk.
[14] Primary court ts 104 ‑ 106, 3 October 2018.

Legal principles ‑ particulars and duplicity

The general rule at common law is that the prosecution must give sufficient details of the charge (by way of particulars) so an accused is informed not only of the legal nature of the offence with which he or she is charged, but also the manner in which the offence was allegedly committed.[15]
[15] John L Pty Ltd v Attorney‑General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519 (Mason CJ, Deane & Dawson JJ); Ingham v McKenzie [2009] WASC 351 [77] (Hasluck J); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 567, 589 (Dixon J); Bauerhuit v Dean [2011] WASC 253 [19] (Sleight C).
When particulars are supplied the prosecutor is bound by those particulars, but that means the prosecution will necessarily fail if the prosecution does not prove all of the particulars.[16]
[16] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 567, 480 (Latham CJ); applied in Bauerhuit v Dean [2011] WASC 253 [19] (Sleight C).
In Robinson v The Queen, Johnson J (with whom Spigelman CJ and Simpson J agreed) observed:[17]
[T]he obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v R (2000) 105 FCR 182 at 203 [133].
If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown's colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148].
Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327 ‑ 328, 336.
[17] Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 [141] ‑ [143].
The principles expounded by Johnson J in Robinson v R were applied by Martin CJ in Scolaro v Shephard.[18]
[18] Scolaro v Shephard[No 2] [2010] WASC 271 [65].
There are two aspects of the need for particularity. One is the need to eliminate the risk of duplicity; that is, the occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury (or a magistrate) as a specific event upon which they must focus.[19] The second purpose is as outlined above.
[19] Ingham v McKenzie [2009] WASC 351 [78] (Sleight C).
Duplicity can arise in two ways. There is patent duplicity and latent duplicity. The distinction between the two concepts was explained by Edelman J in McDonald v Higgins as follows:[20]
Duplicity arises on the face of the indictment or prosecution notice if more than one offence is contained, either conjunctively or disjunctively, in the indictment or prosecution notice. Such cases are now commonly now described as one of patent duplicity, although historically the term 'uncertainty' was used to describe formal errors in an information which joined more than one offence disjunctively.
Alternatively, 'duplicity' might emerge from the facts at trial, in the sense that the way that the prosecution case is to be, or has been, conducted gives rise to the possibility of the accused person being convicted of one of a number of distinct offences. In that case, the prosecution notice or indictment is sometimes now described as giving rise to 'latent duplicity'. Historically, the notice or indictment would have been described as being bad for 'ambiguity'.
[20] McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130 [25] ‑ [26].
If duplicity arises in this matter, it must be in the latent sense of duplicity.
One of the central issues for determination in this matter, at the heart of Mr Hunt's proposed grounds of appeal, is whether the prosecutor, in opening, alleged more than one offence of a failure to leave licensed premises after Mr Hunt was required to do so by an authorised officer.
Whilst latent duplicity has not been raised by counsel for Mr Hunt the effect of the arguments put on his behalf are to, in effect, raise whether a latent ambiguity arises.
In McDonald v Higgins, Edelman J explained:[21]
As explained above, a charge will give rise to latent duplicity where, although the indictment or prosecution notice does not, on its face, suggest duplicity, the way that the prosecution case 'is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences'. In other words, latent duplicity can arise if there is only one charge on the indictment but two or more separate acts are relied on by the prosecution, each of which is itself capable of constituting the offence.
Mr McDonald's submission was that latent duplicity arose because the prosecution, by its particulars, proceeded on the basis that it could prove either of the definitions of trespass as alternatives.
The requirement in s 178(2) of the Criminal Procedure Act that '[a]ny objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address' does not apply to cases of latent duplicity; this is because latent duplicity, by its nature, will often become apparent only after the opening address or evidence.
[21] McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130 [55] ‑ [57].
However, latent duplicity does not arise if an offence can properly be found to be a continuing offence, or arise out of facts so closely related to each other that they amount to one activity.[22]
[22] Walsh v Tattersall (1986) 188 CLR 77, 107 ‑ 109 (Kirby J); Green v The State of Western Australia [No 2] [2014] WASCA 53 [24] (McLure P); McDonald v Higgins [2013] WASC 6; (2013) 227 A Crim R 130 [62] (Edelman J).
In Johnson v Miller,[23] a complaint was laid under the Licensing Act 1932 (SA) alleging that Mr Johnson was the licensee of licensed premises out of which certain persons were seen coming in and out during prohibited hours. In a response to a request for particulars, the prosecution stated that it was proposed to prove that about 30 men were seen coming in or out of the premises at particular times. Subsequently, the particulars were amended to an unknown person was seen coming out of the premises during specified hours.
[23] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467.
Dixon J found that a provision (s 209) of the Licensing Act imposed upon the licensee a distinct liability as a separate offence for each person found upon or seen leaving the premises. Dixon J, however, observed that an exception could possibly arise if a group of persons were seen to be leaving at the same time, their presence jointly would not be regarded as constituting more than one offence.[24] His Honour then went on to find that persons who left on distinct occasions, however close in time and acting independently, may be treated as constituting more than one offence, as such conduct would constitute repetitions, not continuations, of the state of facts which exposed the licensee to a penalty.[25]

Was the specific location in the bar particularised in opening and did a latent duplicity arise in the case as particularised?

[24] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 483.

[25] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 483.

The short answer to this question is no. The location of the offence as particularised was simply the licensed premises, inside the bar area.
Whilst the prosecution, in opening, alleged that there were repeated requests to Mr Hunt for him (Mr Hunt) to leave and oral refusals to do so, at the time which those refusals were given by Mr Hunt (as stated in the particulars in opening) Mr Hunt was still restrained by Sergeant Russell.
It was not until Sergeant Russell released Mr Hunt and gave him a further request to leave the premises that it could be, as the magistrate properly found, that Mr Hunt had had a reasonable opportunity of leaving. The repeated requests referred to in opening, and the refusals by Mr Hunt, were part of the continuation of the same set of facts constituting the offence and the case that was found to be made out by the magistrate did not constitute a repetition of separate offences.
The magistrate's findings were consistent with the particularised charge. In particular, Mr Hunt failed to leave the licensed premises after being required to do so after he had broken free of Sergeant Russell and after Sergeant Russell had commenced escorting Mr Hunt from the bar to the exit of the premises.

Did the way in which the prosecution ran their case result in unfairness to Mr Hunt and a miscarriage of justice?

The miscarriage of justice point that counsel for Mr Hunt presses relies upon:
(a)an assumption that the CCTV footage (tendered into evidence by the prosecution) that was the subject of examination and cross‑examination of witnesses throughout the trial (which lasted for almost two days) only related to footage that occurred from five minutes 45 seconds to six minutes 35 seconds; and
(b)an argument that there was no reference in Sergeant Russell's evidence or any other examination or cross‑examination to a part of the CCTV footage where any other alleged offence occurred, in particular to an offence that occurred at six minutes 57 seconds (as found by the magistrate).
It is clear from the transcript that the defence had viewed the CCTV footage before the trial. It is also important to note that the whole of the CCTV footage which extended some ten minutes in length was tendered into evidence.
The CCTV footage was tendered into evidence during the evidence‑in‑chief of Sergeant Russell. When the CCTV footage was first produced by the prosecution the magistrate asked how long the footage was and the prosecutor said that it was approximately six minutes and 30 seconds.[26]
[26] Primary court ts 32, 2 October 2018.
During Sergeant Russell's evidence eight minutes and four seconds of the CCTV footage was played before it was formally tendered into evidence.[27]
[27] Primary court ts 36, 2 October 2018.
At the trial, defence counsel only sought to cross‑examine Sergeant Russell about what could be seen in the CCTV footage between five minutes 45 seconds and six minutes 35 seconds, and did not ask any questions or have any regard to what could be seen (albeit not very clearly) at six minutes 57 seconds.
However, Sergeant Russell did give evidence that:[28]
(a)after he pulled Mr Hunt up off the ground Mr Hunt was unbalanced, uncoordinated, swearing belligerently and saying he was not going to leave and that about halfway from the bar to the exit area to the beer garden Mr Hunt broke free of his (Sergeant Russell's) grip;
(b)he (Sergeant Russell) said to Mr Hunt 'you're drunk. I'm requiring you to leave these premises now. Go or be arrested';
(c)Mr Hunt swore again and said he was not going;
(d)he (Sergeant Russell) told Mr Hunt again to leave; and
(e)Mr Hunt chose to turn back and started to walk back to the bar and he pulled him backwards and out into the beer garden.
[28] Primary court ts 17, 2 October 2018.
Sergeant Russell was cross‑examined by Mr Hunt's counsel about this evidence.[29] In particular, defence counsel put to Sergeant Russell that his evidence in this regard was inconsistent with what can be seen on the CCTV footage.
[29] Primary court ts 70 ‑ 71, 2 October 2018.
This was not correct. When the CCTV footage is viewed at about six minutes 50 seconds to six minutes 54 seconds, slowly (almost frame by frame) two figures can be seen that appear to be Sergeant Russell and Mr Hunt breaking apart and moving back to the bar.
Whilst the prosecutor did not put the CCTV footage at six minutes 50 to 54 seconds to Mr Hunt in cross‑examination, he did put to Mr Hunt Sergeant Russell's evidence about what he said had occurred halfway between the bar and the exit to the bar.[30]
[30] Primary court ts 30 ‑ 31, 3 October 2018.
I am not satisfied that it is arguable that the conduct of the prosecution case was unfair in circumstances where:
(a)the prosecution opened on the particulars found to constitute the offence;
(b)the whole of the CCTV footage was tendered into evidence which shows not only what occurred at the bar area but contains footage of Mr Hunt and Sergeant Russell moving away from the bar area towards the exit; and
(c)Sergeant Russell gave evidence-in-chief (that was the subject of cross-examination) about what occurred after he had lifted Mr Hunt from the ground and the evidence of Sergeant Russell about this was the subject of cross-examination of Mr Hunt by the prosecution.

For these reasons, I am not satisfied that the conduct of the prosecution case resulted in a miscarriage of justice. For these reasons, grounds 1(a), 1(b) (in respect of these points), 1(c) and 2(d) have no prospect of succeeding.

Ground 1(b), (c) and (d) ‑ the carriage of the investigation by Sergeant Russell

A submission is put on behalf of Mr Hunt that the prosecution case was run in a manner which was prejudicial to Mr Hunt; denied him procedural fairness; and resulted in a miscarriage of justice in that Sergeant Russell should not have had the carriage of the matter subsequent to a complaint being made against him which was the subject of an internal investigation directly related to the charge.
On this basis, it is argued that Mr Hunt was denied a fair trial because the prosecution brief and the collation of evidence was prepared by the officer who was not only the arresting officer, but also subject to a complaint by a member of the public, and in these circumstances resulted in prejudice to Mr Hunt.
In support of this submission, the defence complains that Sergeant Russell had not taken any statements from the staff behind the bar. When cross‑examined at trial Sergeant Russell was asked why he did not obtain statements from the bar staff. In response, he said that they were not involved in the removal of Mr Hunt and Mr Joyce, and given that fact he did not put any significant weight on what they could contribute to the investigation.[31]
[31] Primary court ts 50, 2 October 2018.
It is well established that a failure of process which departs from the essential requirements of a fair trial constitutes a miscarriage of justice.[32]
[32] Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [41] (Pullin JA); applying Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [5] (Gleeson CJ); Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [66] (French CJ).
However, to the extent that Mr Hunt relies upon the omission of Sergeant Russell to obtain a statement from any of the bar staff, this omission did not result in an unfair trial.
Firstly, by at least the hearing on 14 May 2018, trial counsel was aware that no members of bar staff were being called by the prosecution, and at least by 2 October 2018 arrangements had been made on behalf of Mr Hunt to call a member of the bar staff, Ms Wilson to give evidence.
Secondly, if trial counsel was of the opinion that other bar staff should be called to give evidence, an application should have been made for an adjournment to call other bar staff to give evidence on behalf of the defence at the trial.
In these circumstances, I am not satisfied that any omission by Sergeant Russell to obtain statements from bar staff identified any unremedied act or omission made in the course of the investigation, or in the course of the trial, which resulted in Mr Hunt not receiving a fair trial.
For these reasons ground 1(b) (in respect of this point), ground 1(c) and 1(d) have no prospects of succeeding.

Ground 1(d) - apprehended bias

In the email chain sought to be admitted into evidence in the appeal an email was sent from Sergeant Andrew Dunn to the Albany Court (on a date that is unknown). In the email Sergeant Dunn requested that Magistrate Johnston be informed that the only police witness to be called in the matter would be Sergeant Russell who appears as the prosecutor from time to time in Magistrate Johnston's court, and this should be brought to her attention in the event that she may feel in any way conflicted in hearing the evidence of Sergeant Russell, so alternative arrangements could be made if necessary.
The email chain indicates that the email from Sergeant Dunn was sent again to the Albany Court by Sergeant Fjastad on 8 May 2018. In his email, Sergeant Fjastad asked whether the attached email could be brought to the attention of Magistrate Johnston, as it raised a question of whether a conflict of interest arose in relation to the trial in this matter. On the following day, Sergeant Fjastad sent a copy of the email that was sent to the court on 8 May 2018 to Mr Hunt's counsel, Mr Jardine. In the email, Sergeant Fjastad stated that he had been informed by the court that her Honour Magistrate Johnston was satisfied a conflict of interest did not arise and that she would not be recusing herself. Magistrate Johnston asked that this be made known to Mr Jardine in the event that he (the defence) wished to make an application prior to the trial.
No application was made on behalf of Mr Hunt for Magistrate Johnston to recuse herself from the hearing of the charge. It is contended in the appeal on behalf of Mr Hunt, in respect of this ground, that the correspondence between the prosecution and the magistrate should have been raised with defence, prior to the hearing, regarding a potential conflict of interest and that the failure to do so constitutes apprehended bias.
This is an odd submission to make. Firstly, the views of the magistrate and the correspondence was raised with Mr Hunt's counsel prior to the trial.
Secondly, it is clear from the email chain that the magistrate properly invited defence counsel to make an application and the failure to do so before the trial of the charge, in these circumstances, constituted a waiver by Mr Hunt of a right to object to the magistrate on grounds of apprehension of bias.
Even if the doctrine of waiver had no application, the test in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend or suspect that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide.[33]
[33] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
In Ebner v Official Trustee in Bankruptcy, the plurality observed:[34]
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[34] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] ‑ [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
Apprehended bias must be firmly established. The suspicion of the ultra sensitive, paranoid or cynical must not be allowed to determine the applicable legal standard of impartiality.[35]
[35] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374 (Kirby P).
Two things need to be remembered:[36]
(a)the observer is taken to be reasonable, and
(b)the person observed is a professional judicial officer whose training, tradition and oath or affirmation, require the judicial officer to discard the irrelevant, the immaterial and the prejudicial.
[36] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12]; cited with approval in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [80] (Gummow J), [132] (Heydon, Kiefel & Bell JJ); Vakauta v Kelly (1988) 13 NSWLR 502, 527 (McHugh J) adopted in Vakauta v Kelly (1989) 167 CLR 568, 584 – 585 (Toohey J); Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289 [40] (McKechnie J; Malcolm CJ agreeing).
It is incumbent upon the party who seeks to raise an allegation of apprehension of bias to raise the matter before a judicial decision‑maker commences to hear the matter.
In a criminal prosecution where a claim was made of an apprehension of bias arising out of judicial officer having presided in respect of other matters involving one of the witnesses, Hall J in Able Lott Holdings Pty Ltd v City of Fremantle observed:[37]
[37] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [22] ‑ [26].
Where there are matters that a party believes raise an issue of apprehension of bias they should be raised at the hearing. That is particularly so where the issue is mentioned by the judicial officer and the parties are legally represented. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Brennan, Deane and Gaudron JJ said:
'Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.'
Whilst that statement was made in the context of comments by a judge during proceedings which were said to give rise to an apprehension of bias, the same considerations apply equally where an apprehension of bias is said to arise from some relationship between the judicial officer and one of the parties.
Whilst it is important that justice be seen to be done, a judicial officer should not disqualify himself or herself on the grounds of bias or reasonable apprehension of bias unless substantial grounds are established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 and Bienstein v Bienstein [2003] HCA 7 [36]. The reasons for this are obvious; if judicial officers were to excuse themselves whenever an application was made then parties would be able to effectively control who sits in judgment of their cases and effective management of the lists would be impossible.
As regards concerns arising from a judicial officer having presided in respect of other matters involving the same litigant, the High Court in Livesay v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 said:
'It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.'
In Chin v The Legal Practice Board of Western Australia [2011] WASCA 110 Newnes JA considered the principle applicable where a judicial officer is asked to disqualify him or herself on the ground that because they have made previous decisions adverse to the person.
His Honour said:
'In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ [4].'
In the matter before Hall J in Able Lott Holdings Pty Ltd, the appellant sought to do what is sought in this appeal; which is to make out a case for apprehension of bias on appeal that was not made in the Magistrates Court. His Honour aptly observed that:[38]
(a)appellate courts must be on guard against attempts to raise points on appeal that are not taken at the trial, for whatever reason; and
(b)sometimes points are not taken for tactical reasons or oversight. What cannot be permitted is for litigants to hold back matters to be raised on appeal in the event of an adverse outcome. Nor can they be permitted to agitate new issues that could readily have been raised at the trial, other than in exceptional circumstances.
[38] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [38].
In any event, there is no proper basis before this court from which it could be found that there was a reasonable apprehension of bias on the part of the magistrate.
The mere fact that a witness (Sergeant Russell) appeared 'from time to time' before Magistrate Johnston as a prosecutor (that is, in a professional capacity in a regional court in adversarial criminal proceedings, with each party occupying distinct and independent roles) would not, without more, lead a fair‑minded lay observer to reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the question the magistrate was required to decide.
For these reasons proposed ground 1(d) has no prospects of succeeding.

Conclusion

Leave to appeal should be refused on all grounds and the appeal should be dismissed.
I will hear the parties as to the orders should be made, including orders as to costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith
9 AUGUST 2019