James Shearer v Jessica Gilmore
[2014] ACTSC 148
•19 June 2014
JAMES SHEARER v JESSICA GILMORE
[2014] ACTSC 148 (19 June 2014)
APPEAL - GENERAL PRINCIPLES – Appeal against conviction – Whether appellant convicted – Magistrate accepted verdict so as to constitute relevantly a conviction
APPEAL - GENERAL PRINCIPLES – Appeal against conviction – Whether Magistrate erred in relying on evidence of complainant – Magistrate followed evidence closely and assessed demeanour of witnesses – Magistrate’s finding neither glaringly improbable nor contrary to compelling influences – Magistrate’s finding well supported by the evidence and assessment of credibility of witnesses – Appeal dismissed
Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), ss 12, 17
Evidence Act 2001 (ACT), s 38
Human Rights Act 2004 (ACT), s 22(4)
Magistrates Court Act 1930 (ACT), s 208, Pt 3.6, 3.10, Div 3.10.2
Court Procedures Rules 2006 (ACT), r 5138
Abalos v Australian Postal Commission (1990) 171 CLR 167
Baker v Thorpe (1985) 62 ACTR 1
Bloxham v Wyte [2013] ACTSC 151
Campbell v Fortey (1987) 85 FLR 462
Connelly v Allan (2011) 212 A Crim R 320
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Lukatela v Birch (2008) 164 ACTR 24
Maxwell v The Queen (1996) 184 CLR 501
R v Meyboom (2012) 256 FLR 450
Société d ‘Alliances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palatina”) [1924] 20 Ll L Rep 140
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Travini v Starczewski (2009) 167 ACTR 1
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 69 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 June 2014
IN THE SUPREME COURT OF THE )
) No. SCA 69 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAMES SHEARER
Appellant
AND:JESSICA GILMORE
Respondent
ORDER
Judge: Refshauge J
Date: 15 November 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The proceedings be remitted to the Magistrates Court for sentence.
On 8 May 2013, the appellant, James William Shearer, went to the home of his partner, the complainant, at about 6:30 pm and an argument developed.
During the course of the argument, Mr Shearer is alleged to have struck the complainant forcefully, causing her to feel pain and to begin to cry.
As a result, Mr Shearer was arrested and charged with assault contrary to s 26 of the Crimes Act 1900 (ACT).
He appeared in the Magistrates Court the next day and pleaded not guilty. He was released on bail.
After a number of adjournments, during some of which he was remanded in custody, the charge came on for hearing on 29 August 2013 before the learned Chief Magistrate.
Mr Shearer was found to have committed the offence and the proceedings were adjourned for sentence. Mr Shearer, however, appealed in what he said was against the conviction.
That appeal came on for hearing before me on 15 November 2013 when I dismissed the appeal. I indicated that I would give my reasons later.
These are those reasons.
Jurisdiction
An appeal against a conviction in the Magistrates Court to this Court is given under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates such appeals.
The appeal is by way of rehearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, I described such a rehearing in the following terms (at [78]):
2.Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In this context, I note what the High Court has said, where in Fox v Percy (2003) 214 CLR 118 (at 126-7, [25]), Gleeson CJ, Gummow and Kirby J held that:
... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).
As Rares J commented in Lukatela v Birch (2008) 164 ACTR 24 (at 29; [21]):
And, although the appeal is by way of rehearing, the appellate Court does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox [Fox v Percy (2003) 214 CLR 118 at 127-128] [27] per Gleeson CJ, Gummow and Kirby JJ.
I summarised the effect of these principles in Connelly v Allan (2011) 212 A Crim R 320 at 324; [12]-[15] as follows:
12.So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
13.The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate’s reasons. The court has power to receive further evidence, subject to some restrictions.
14.The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.
15.The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.
These are the principles I shall follow.
Preliminary issue
The respondent submitted that the appeal was incompetent because there had been no conviction entered. Section 208(1)(b) of the Magistrates Court Act provides the only ground for an appeal in this case. It is as follows:
208 Appeals to which div 3.10.2 applies
(1) Each of the following appeals is an appeal to which this division applies:
...
(b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 374 or section 375.
There was no doubt that the Magistrates Court in this case proceeded under Pt 3.6 of the Magistrates Court Act. The question was whether the learned Chief Magistrate convicted Mr Shearer or not.
The transcript records:
For the reasons that I’ve detailed I could not rely on the evidence of [the complainant] alone. Rather I rely on the corroborated evidence of the initial complaint and I’m therefore satisfied beyond reasonable doubt that Mr Shearer slapped [the complainant] in the face on 8 May 2013. That slap constituted a common assault and I find the offence proved.
Her Honour did not expressly say “I convict Mr Shearer” or “Mr Shearer is convicted or “A conviction is entered against Mr Shearer”.
Thereafter, her Honour received a copy of Mr Shearer’s prior criminal record and called for the file relating to a prior matter in which Mr Shearer had been sentenced to a term of imprisonment which had been suspended. As required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), a good behaviour order had then been made and the commission of this offence of assault would, it would appear, constitute a breach of that order.
Mr Shearer’s defence counsel, Ms E Kerr, also sought time before sentencing within which to gather material for a plea in mitigation, including matters relating to Mr Shearer’s mental condition and also a report from the Court Alcohol and Drug Assessment Service (CADAS).
In challenging the competency of the appeal, the respondent relied on Bloxham v Wyte [2013] ACTSC 151, where Penfold J had to consider whether an appeal lay from a decision of the Magistrates Court which found an offence proved but, it appears, though the reasons do not expressly state, that the court proceeded under s 17 of the Crimes (Sentencing) Act, which provides that, where an offender is found guilty of an offence, the court may, without convicting the offender, dismiss the charge or make a good behaviour order.
Her Honour concluded (at [52] in that decision) that an appeal from such an order was incompetent because it required the court to read into s 208(1)(b) words such as “or a finding of guilt that would have permitted the court to record a conviction that it nevertheless chose not to record” (at [23] of her Honour’s reasons).
There is no definition in the Magistrates Court Act of the word “conviction” or terms used in the Act such as “convicted” and so the common law applies.
In R v Meyboom (2012) 256 FLR 450 at 454-6; [19]-[31], I considered in some detail the meaning of “conviction” at common law for the purposes of an appeal from a verdict of guilty in the Supreme Court to the Court of Appeal.
No doubt because, in Bloxham v Wyte , the question of jurisdiction was only raised on the appeal and “neither counsel wished to argue the jurisdictional point” (at [8] of her Honour’s reasons) her Honour was not taken to which I had said in R v Meyboom. In that decision, I came to a different view to that of her Honour.
In R v Meyboom, I relied on what the High Court had said in Maxwell v The Queen (1996) 184 CLR 501 and what the Victorian Court of Appeal said in R v Celep [1998] 4 VR 811.
Even though, it appears, I differ from the view of her Honour, I adhere to the view I there expressed, relying on these authorities, which means in this case that, for the purposes of an appeal, the acceptance by a court of a finding of guilty, reinforced by, for example, an adjournment of the proceedings for sentence, would, for the purposes of s 208(1)(b) of the Magistrates Court Act constitute a conviction.
It seems to me that, as I pointed out in Travini v Starczewski (2009) 167 ACTR 1 at 11; [55], that such an interpretation is apparently supported by a construction of the legislation that supports the human right recognised under s 22(4) of the Human Rights Act 2004 (ACT), though, I recognise that there might be regarded as a degree of circularity in doing so. I do not, however, need to dilate on that issue further here.
As a result, I proceeded to deal with the appeal as the learned Chief Magistrate had clearly, as was the position in R v Meyboom at 455-6; [30], accepted the verdict so as to constitute relevantly a conviction.
The appeal
The Notice of Appeal was filed on 5 September 2013. It set out the following grounds:
a.Her Honour erred in deciding that she could not rely on the evidence of the complainant under cross-examination;
b.Her Honour erred in relying on the evidence of [Witness TL-B] after finding that the evidence of [Witness TL-B] was unreliable;
c.Her Honour erred in asking rhetorically about the motivation of [Witness TL-B] to ‘involve the police’ prior to conversing with the complainant about the incident’
d.Her Honour erred in finding that [Witness TL-B] was ‘trying to call the police’ prior to discussing the incident with the complainant.
e.Her Honour erred in finding that [Witness TL-B] had ‘no obvious motivation to lie’; and
f.Her Honour’s finding that the offence was proved was unsafe and unsatisfactory.
At the hearing of the appeal, however, ground (a) was the only ground seriously pressed, though the other grounds were not abandoned. It was, however, submitted that they really flowed from the fact that there was a “different version of events put by the complainant at the trial”.
The relevant facts
The complainant was the first witness. She said that she had called the emergency telephone number, 000, on 8 May 2013 and reported an assault on her by Mr Shearer. She agreed that, as a result, police attended her home and she later attended at a police station where she was interviewed by police. The electronic record of the interview was recorded and played to her Honour.
In the interview, she stated that Mr Shearer had slapped her face.
It was clear that the complainant was an unfavourable witness within the meaning of s 38 of the Evidence Act 2001 (ACT) and her Honour gave the prosecution leave to cross-examine the complainant.
After the interview was played to the Court, however, she gave the following evidence
So ma’am, is it the case that everything you told the police in that interview was, in fact, true and correct to the best of your knowledge?---No.
No? I see. How is it not true and correct?---Most of it was correct apart from the part where I said that Jamie had hit me. We were actually arguing and when he got close to me on the bed I slapped him with my left hand and I said, ‘Get the fuck out of my house.’ And he did not really move. Like, he moved back a little bit and came a bit closer to me and I went to slap him again with my right hand and he knocked my hand out of the way. And I started bawling my eyes out, saying, ‘You just hit me. Get the fuck out of my house. Tara, call the cops.’
Relevant extracts from her interview with police are as follows:
... tonight my friend, [Witness TL-B], was over at my place and we were upstairs in my bedroom watching TV – ‘Neighbours” had just started – and [the appellant] walked in the door from finishing work and came upstairs and started screaming at me about – apparently I lied to him, um, saying that I was with no one over the phone to him and I don’t even recall him asking me who I was with, um, and he kept screaming at me and a bit later on [the appellant’s] friend [J], said, ‘I’m going downstairs,’ and [witness TL-B] got off the bed and said, ‘I’m going with him,’ and [the appellant] leaned over on the bed and I pushed him out of my face and slightly connected with, like, his chin and he slapped me really hard across the face.
And then what happened?
Um, I said, ‘[Witness TL-B], call the police. Get the fuck out of my house, [the appellant],’ and I was screaming at the top of my lungs and then I ran next door – [the appellant] had [Witness TL-B’s] phone – and I ran next door bawling my eyes out saying, ‘[B], can you please let me in,’ and he let me in for a second and I said, ‘My friend’s next door, I’ll just go get her,’ and they were down the end of the complex yelling at each other and I ran down there and [Witness TL-B] was just bawling her eyes out asking for her phone back and [the appellant] said, ‘I’ll give it to you if you go home,’ or whatever. ‘When you go home I will give it to you,’ um, and, um, yeah, that’s pretty much it.
...
And I just went like this, ‘Don’t get in my face,’ and pushed him and I went like this to him, like, I remember tapping his chin.
Describe how you did that?
I went-like I went to push him so my hands were like this/
Yes?
And I went like this to him and pushed him and he launched back a little bit and then just went whack with his right hand and it hit me right here so.
Tell me about when he hit you. Tell me how that felt?
Oh, it was like a really hard slap, like a stinging sensation. I just felt my mouth – it felt like my mouth just, like, filled up with blood and I just started bawling my eyes out and said, ‘Get the fuck out of my house.’ And [Witness TL-B] was, like, in the bedroom about to walk out of the front of my bedroom door so.
Okay. So you said he used his right hand?
Yeah.
She agreed that she had made a statutory declaration explaining why she had given what she now said was an untruthful version of the events. Her evidence as to that was as follows
And in that statutory declaration you gave an account of why it is you say you did not tell the truth and that interview, do you remember what that is?---Yes, it is because my son is in foster care so I really wanted to get him back and my caseworkers does not really like [the appellant] or approve of him and I figures it would be easier if [the appellant] was just out of the picture. And I was going through a really hard time at the time. I was going through lots of assessments about my dad traumatising me when I was younger. And I kind of just jumped to conclusions.
Well, you did not jump to a conclusion, you outright lied, didn’t you, on you- - -?---Yes.
Based on what you are saying now?---Yes.
So when you just said, ‘I jumped to a conclusion,’ that is not true, is it?---No.
It was put to the complainant that she was dependent on Centrelink benefits, that this was “not very much money” and that it would help her when Mr Shearer gives her money which he could not do while in custody and she agreed with those assertions. It was also put to her that she was lying in denying that Mr Shearer hit her, but she rejected that suggestion.
Her relationship with Mr Shearer was explored in cross-examination, acknowledging that she and Mr Shearer had at times been in “a very intimate and caring relationship” and that, while he was in custody, she missed him “a little bit” but she added “I do not miss him enough to lie to the courts today”. She was aware that she might be charged if she lied to the court but admitted that it did not stop her from lying to the police.
She denied that she was lying because she loved Mr Shearer, though she agreed that she had been “through thick and thin with him”.
Under careful cross-examination from Ms Kerr, the complainant explained that her son had been placed in foster care about six weeks prior to 8 May 2013 and acknowledged that this was “a large drama” in her life. Indeed, her initial comment on the interview with police was as follows
So, tell me what you’ve come to talk to me about today?
Um, well my son’s been taken into foster care and I’m just focused on him getting him back.
She explained that her son had been taken from her while she was in hospital towards the end of March 2013. Her hospitalisation was caused by “a psychosis of some kind” but, when she left hospital, she was supported by a “kind of extended family”.
She said that she was taking medication which “knocked [her] around quite a bit ... psychologically”, being anti-psychotic medication.
The complainant agreed that, on 8 May 2013, she and Mr Shearer were yelling at each other and Mr Shearer was accusing her of not looking after his dogs properly; she was sensitive to such an accusation because her son had been taken away as she was said to be unable to look after him.
She said she was aware that Mr Shearer had just been released from custody with conditions and that further police involvement with him would result in him “getting into big trouble”.
She then explained that she had thought that it was a good idea to get the police involved to “get [Mr Shearer] out of the picture ... because [her] Care and Protection worker didn’t particularly like him”. It was, she said, for this reason that she made the complaint to police even though she knew it was not true.
In re-examination, she acknowledged that her son had been taken into care because of her own mental health issues and not through any fault of Mr Shearer. She said that the lie would help her
Because my Care and Protection worker told – pretty much me the option of Jamie or my son and that’s the only way that I would have been able to stay away from him completely.
She admitted that her son had not been returned to her.
The second witness was Witness TL-B. She was also interviewed by police. The interview was recorded and the electronic record played to the court. In it, she said
I didn’t see [the complainant] push Jamie but I seen Jamie hit – slap [the complainant] across the face and it sounded like it really, really hurt. Then [the complainant] yelled out to me to call the cops and as I was dialling in the number Jamie SHEARER stole my phone off me and he could not give it back to me. I chased him down the street, asking for my phone.
It was later said:
A.I didn’t see Jamie get pushed by [the complainant].
Q.How do you know that happened?
A.Because [the complainant] told me that Jamie pushed her – that [the complainant] pushed Jamie.
Q.Okay. So, tell me more about the part where you saw Jamie hit her?
A.Um, I looked over and I heard a smack across the face. Like, I heard someone hit someone and [the complainant] – I looked at [the complainant] and she had a red mark and Jamie then came out and stole my phone as I was dialling the number to the cops.
Q.So, you heard a noise ---
A.I seen – like, I didn’t – like, I seen him hit and then move, like, move his hand towards her face.
Q.Okay. What hand did he use?
A.Um, I think it was a right hand.
Q.Can you describe the movement of his hand?
A.He moved his hand back and then it just went so fast towards her face, like ---
Q.How loud was the noise?
A.Um, loud – like loud but not that loud.
Q.You said it looked like it hurt.
A.Yeah. It looked like it really, really hurt.
Witness TL-B was also cross-examined in some helpful detail by Ms Kerr and agreed that, at one point during the incident, she was “sort of blanking out”. She said that it was like “[m]y mind just stops ...” and agreed that she was lapsing in and out of consciousness.
She also said that the complainant had told her that the complainant had pushed Mr Shearer and that he was “now her ex-boyfriend”.
Witness TL-B denied that she and the complainant had tried to make sure that their versions of events “matched up”.
She was sure that she saw Mr Shearer’s arm move and then she heard the slap. She denied being mistaken when she said she heard a slap. Hearing the slap was not, she said, what made her turn and have a look at what was happening.
She was taken to various details and gave direct evidence of them. She said “I was sure that Jamie hit [the complainant] because I did see Jamie hit [the complainant] ...” She agreed that she did not see Mr Shearer’s hand actually “connect” with the complainant’s face. She denied that the redness she saw on the complainant’s face after the slap was due to dermatitis from which she knew the complainant suffered. In re-examination, she said she did not see the red mark on the complainant’s face before Mr Shearer hit her.
The complainant’s neighbour also gave evidence. He had known the complainant for about six months and knew Mr Shearer as her boyfriend. He recounted how the complainant came to his house on the evening of 8 May 2013 and said
... she came to the door. She was a bit upset, holding her face, and she said “Jamie just hit me”.
He was not cross-examined.
Constable Jessica Gilmore, the informant, next gave evidence and explained she had gone to the complainant’s house when directed following the emergency call to police. She said that the complainant told her that she had been hit by her boyfriend.
A transcript of the emergency call was played to the Court. In the call, the complainant said
Hi, um, my partner just came to my house and my son is in foster care, and he walked in my door screaming at me upstairs and he’s got into my face and I pushed him and he hit me across the face.
...
But yeah, like, I’m not sad or anything, it’s kind of hurting a little bit but it’s not hurting that bad. I’m just really shocked that he hit me and I thought I had better report it.
...
He slapped me really hard across the face. Like, I was sitting on my bed and, like, he slapped me that hard that I fell onto my bed and I just screamed at him saying ‘get out of my house’. My friend saw it and he said that I hit him first, but I accidentally tapped his face when I pushed him away from me, out of my face.
Constable Gilmore was cross-examined but I do not need to rehearse any of it.
Mr Shearer called no evidence.
The decision
As noted above (at [17]) the learned Magistrate found the offence proved.
Her Honour briefly recounted the evidence. Her Honour referred to the evidence of the complainant and of the recorded interview with Constable Gilmore. As to that, she said
And I watched quite closely when she gave her evidence of this and she held her left cheek with her left hand demonstrating that that was the location at which she’d been slapped and she said that she was slapped by [Shearer] with his right hand ... Now [the complainant] comes to court and seeks to resile from the story that she gave to police saying that it was a lie and that, in fact, she’d slapped him. She said she’d made the whole thing up because her case worker from Care and Protection didn’t like Mr Shearer and she wanted her son ... back.
She gave evidence under cross-examination that [her son] who was about five months old at the time had been taken from her when she’s admitted into hospital suffering psychosis. If I were relying on [the complainant’s] evidence alone I couldn’t be sure what to believe. The inconsistency of her evidence and her mental state at the time would put her evidence into question.
The notion that she carefully and cleverly concocted a story to get Mr Shearer out of her life is one which I find implausible. She would have had to have been thinking pretty quickly and she struck me as a fairly unsophisticated young woman. The story would have to have been concocted within minutes of the incident. The complaint of it was so soon after the alleged event. Of course it’s also illogical that the complaint of an assault against Mr Shearer would have resulted in her getting her son Isaac back, he having been taken because of her own mental health problems which makes it more implausible. Although I accept what Ms Kerr has said, people often have illogical ideas and genuinely hold them.
However, not only is the complaint – sorry, the resiling from the complaint and the new explanation which is given for it implausible the initial complaint that was made is corroborated. It was corroborated firstly by the complaint to the neighbour within minutes. It was corroborated by a complaint in identical terms to the police triple-0 line. It was corroborated by the complaint to the police constable who attended.
There’s a reason we have a law about recent complaint and that’s because it is less likely that people are going to make something up immediately after an event than it is that they’re likely to make it up later when they’ve had time to think about it. All of those complaints that were made were made with very minor inconsistencies. Again, the notion that she carefully concocted this plan with its detail in a way to retell it without inconsistency is implausible.
Her Honour then addressed the evidence of Witness TL-B as follows:
We then have the corroboration by [Witness TL-B]. I have to have some concern about her evidence because she indicated both to the police when interviewed and in evidence today that during this incident which occurred on 8 May she was blanking out ...
She presented as a slightly histrionic young lady. There is, of course, the risk that she was subject to influence of a conversation that she had with [the complainant]. They’d been talking for about half an hour before the police came.
During that time it’s possible that they’d traversed the whole incident in various forms. But [Witness TL-B] says that she saw the slap. Not the connection but the movement of the arm and that she heard a noise following it. She says it was only the issue of the push which was filled in, the gap that was filled in, in her conversation with [the complainant]. If it were the case that [Witness TL-B] hadn’t seen something which she interpreted as a slap, why would she have been trying to call the police even before that conversation took place on the way to Erindale? What motivation would there have been to involve the police at that stage?
I have to express concern also that the evidence of [Witness TL-B] held might have been subject to influence by what she heard when she present during part of the conversation between the police office and the victim. It’s highly undesirable that a witness, an eye witness to an event, should be present during such a conversation. However, on this occasion there was no cross-examination as to what [Witness TL-B] heard during her comings and goings, during the conversation between Police Constable Gilmore and [the complainant]. So, what she may have heard or what she might have made of it is therefore speculative.
There were some minor inconsistencies in [Witness TL-B’s] evidence. They were very minor and such as one might expect were a set of circumstances not, in fact, concocted. Although I note that defence counsel has indicated that the hesitation might suggest to me that [Witness TL-B’s] evidence was unreliable I actually interpreted it to the contrary. I thought her evidence was given carefully and quite thoughtfully for a young woman with no obvious motivation to lie.
Her Honour then made the finding of guilt to which I have referred above (at [17]).
The submissions on appeal
Regrettably, I was not favoured with written submissions on the appeal by counsel for Mr Shearer. Such submissions are required to be filed by r 5138 of the Court Procedures Rules 2006 (ACT). They are important for a number of reasons.
They give the other party fair notice of the real issues that even a properly drawn notice of appeal may only raise in a more general way. This, of course, enables the other party also to engage with the issues, saving time by avoiding the need to address matters that are not in dispute, as well as providing the response of that party so that the appeal can be heard efficiently.
The submissions also permit the court to understand what is in issue and prepare for the appeal, not wasting time on what is not in dispute and being able to consider what genuinely is at issue. This also permits the appeal more likely to be able to be determined at or shortly after the hearing.
Counsel for Mr Shearer submitted that her Honour had dismissed the explanation of the complainant too peremptorily. He submitted that the fact that the complainant had “made substantiating complaints to the neighbour and the police at the time, could conceivably have been as a result of a deliberate plan by her”. He also relied on the fact that the recantation by the complainant was “not done on the spot in court. It was done by way of a statutory declaration ...”. He noted that this exposed her to prosecution as did the fact that she gave evidence in court.
Her denial of the commission of the offence, he submitted, was maintained under “fairly robust cross-examination”. The explanation, he submitted, was “at least plausible” and should have raised a doubt about the veracity of her unsworn statements.
Consideration
I could find no error in the decision of the learned Chief Magistrate. It was clear that her Honour had followed the evidence closely and had assessed the demeanour of the witnesses.
Her Honour had given due weight to the recantation of the complainant and her explanation for it. She was, however, careful to assess it against the other evidence.
Her Honour also made due allowance for the manner in which Witness TL-B gave evidence and how that should be assessed.
To uphold the appeal, I must be satisfied that the learned Magistrate has erred in finding that Mr Shearer slapped the complainant and that, on the correct finding of fact, namely that he did not do so, Mr Shearer would have been acquitted. See Dearman v Dearman (1908) 7 CLR 549 at 553, 557, 559, 565.
The learned Magistrate had the advantage of hearing and seeing the witnesses and gave reasons why that was influential. Indeed, as McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ, said in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179
when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.
I am conscious of the fact that the effect of demeanour can be overstated. As Lord Atkin said in Société d ‘Alliances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palatina”) [1924] 20 Ll L Rep 140 at 142
an ounce of intrinsic merit or demerit in the evidence, that is to say, the comparison of evidence with known facts, is worth pounds of demeanour.
As the High Court noted in Fox v Percy at 129; [31], however,
[t]his does not eliminate the established principles about witness credibility; but it tends to reduce the occasions when those principles are seen as critical.
Having carefully scrutinised the reasons of the learned Chief Magistrate, I was, and remain, satisfied that her Honour’s finding was neither glaringly improbable nor contrary to compelling inferences and, indeed, was well supported, not only by her findings on the credibility of the witnesses but also on the evidence.
For this reason the appeal had to be dismissed and I did so.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 June 2014
Counsel for the appellant: Mr M O’Brien
Solicitor for the appellant: ACT Legal Aid
Counsel for the respondent: Ms S Gul
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 15 November 2013
Date of judgment: 19 June 2014
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