KAMALJIT v Kennedy
[2014] WASCA 185
•21 OCTOBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAMALJIT -v- KENNEDY [2014] WASCA 185
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 3 OCTOBER 2014
DELIVERED : 21 OCTOBER 2014
FILE NO/S: CACR 120 of 2014
BETWEEN: KAMALJIT
Appellant
AND
JASON KENNEDY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :KAMALJIT -v- KENNEDY [2014] WASC 184
File No :SJA 1087 of 2013
Catchwords:
Criminal law - Conviction - Whether verdict unreasonable or could not be supported - New or fresh evidence - Inadequate reasons - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18
Criminal Code (WA), s 313(1)(b)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [2014] WASCA 137
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
McLURE P: This is an application for leave to appeal from the decision of Le Miere J refusing the appellant leave to appeal against his conviction in the Magistrates Court of one charge of unlawful assault.
The appellant was convicted after trial by Magistrate Lane of unlawfully assaulting Kristine Norrie (the complainant) contrary to s 313(1)(b) of the Criminal Code (WA). The appellant was fined $300 and granted a spent conviction order.
At the material time, the appellant and the complainant were employed by Serco Immigration Services at Christmas Island and both resided at the Christmas Island Resort. The prosecution case was that the complainant had entered the appellant's room at the resort after he had offered to fix her laptop; the appellant put his hand on the complainant's leg and arm and said he liked her; the complainant told the appellant she was uncomfortable and, when she attempted to leave, the appellant grabbed her wrist to restrain her and prevent her from leaving the room.
The appellant was legally represented at the trial. The prosecution called two witnesses, the complainant and Shaun Timmis, an AFP officer. The defence case at trial was that the complainant had fabricated the assault allegation. The complainant was also cross‑examined about the fact that she had made a complaint around the same time against another person on Christmas Island. The magistrate refused to allow questions as to the substance of the allegation made against the other person.
The appellant gave evidence in his defence. He denied the allegation and gave a differing account as to the course of events on the night in question.
The magistrate's reasons
The magistrate delivered oral reasons on the day of the trial. She correctly identified all relevant guiding legal principles, including those relating to the burden of proof, the standard of proof and the principles in Liberato v The Queen (1985) 159 CLR 507 that must be applied when the outcome depends on the resolution of a conflict in the evidence of the complainant and defendant on material matters.
There was no dispute that in the late evening on 14 March 2013 the appellant and the complainant were in the appellant's room while he was trying to fix the complainant's laptop computer. The magistrate identified the conflicts in the evidence of the complainant and the appellant as to the circumstances leading up to and including the assault. She resolved each conflict against the appellant, giving her reasons for doing so. As part of the background, the magistrate found that before the evening of 14 March 2013, the appellant had requested the complainant's telephone number and called and texted her. The appellant was seeking social contact which the complainant was avoiding (ts 40). She also found that the complainant did not give the appellant any encouragement to enable him to conclude that the complainant liked him or was interested in him (ts 40).
The magistrate made a positive finding that the appellant was not a truthful or honest witness. She concluded he was genuinely afraid of the consequences of his behaviour and the effect the charge would have on his future employment (ts 40).
As to the magistrate's assessment of the complainant, she took into account her demeanour and conduct during the course of the trial (ts 40 ‑ 41). The magistrate found that the complainant answered all the questions put to her in an honest manner, even conceding matters which she had missed in her examination‑in‑chief. The magistrate concluded that the complainant was a truthful and honest witness and that the prosecution had proven the offence beyond reasonable doubt.
Single judge appeal
In a single judge appeal under pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (Appeals Act) the leave of the court is required for each ground of appeal and the court must not give leave on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding: s 9(1) and (2).
Unless the court gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed: s 9(3).
There were five grounds of appeal before the primary judge. Leave to appeal was refused on all grounds.
Appeal to this court
There are five grounds of appeal to this court, albeit with multiple strands. They cover most but not all of the matters raised in the single judge appeal. Section 9 of the Appeals Act also applies to an appeal from a single judge to this court: s 18.
Ground 1
The matters of complaint in ground 1 are as follows: the magistrate's assessment of the truthfulness and honesty of the witnesses was only a matter of perception and perception cannot prove a case beyond reasonable doubt; in her evidence at trial the complainant falsely denied making a complaint about another person; the police and the complainant took money from that other person and thereafter did not pursue the complaint; the complainant's evidence at trial was a false story fabricated by a third party, as detailed in ground 2; and a Longman‑type warning (Longman v The Queen (1989) 168 CLR 79) should have been given.
I start with the specific complaints. First, the complainant did not deny making a complaint about another person. Her evidence in cross‑examination (ts 17), was as follows:
Did you make a complaint around that time against another fellow up there?‑‑‑I did mention something.
Sorry?‑‑‑I was talking to the police about someone else.
You were?‑‑‑Yes.
So you made a complaint about ‑ against another person up there, did you?‑‑‑Yes, I did.
Defence counsel later returned to the subject (ts 18):
WILLIAMS, MR: Can I ask you, did anything result from your complaint about this person?‑‑‑Which person?
About this other person?‑‑‑No.
Have you made complaints about other people in the past?‑‑‑No.
Yes, thank you, I have no further questions.
In context, the final question and answer can only relate to any additional complaints about different people.
Second, a Longman warning was not required. The appellant was not charged with a sexual offence. In any event, it is no longer the law that victims of sexual offences are 'suspect witnesses': Anderson v The State of Western Australia [2014] WASCA 137 [37] ‑ [42].
Third, I take the appellant's 'perception' based challenge to be a claim that, having regard to the evidence, the verdict was unreasonable or could not be supported. As to which, see M v The Queen (1994) 181 CLR 487; Anderson [57].
The question this court must ask itself is whether it thinks that, upon the whole of the evidence, it was open to the magistrate (as the trier of fact) to be satisfied beyond reasonable doubt that the appellant was guilty. In that task this court must not disregard or discount the fact that the magistrate was entrusted with the primary responsibility of determining guilt or innocence or the fact that the magistrate has had the benefit of having seen and heard the witnesses.
I have read the trial transcript and am satisfied that it was open to the magistrate, as a matter of fact and law, to conclude that the appellant was guilty of the offence beyond reasonable doubt. I make that assessment acknowledging this court's limitations in not having had the benefit of seeing and hearing the witnesses. Leave to appeal is refused.
The remaining strand is dealt with in ground 2.
Ground 2
This is a ground alleging racial discrimination and corrupt conduct by police and Serco employees. Most of the assertions and allegations are contained in the appellant's case. Reference is also made in those submissions to an 'Officer Report' dated 9 December 2012. On its face it is a report by the appellant to his employer of alleged incidents in which he was abused by other Serco employees.
There are any number of objections to this ground. First, the matters were not litigated at the appellant's trial. Second, they are not supported by sworn evidence. Third, any affidavit containing the bare assertions and allegations made by the appellant against others would fall a long way short of the cogency and plausibility required to satisfy the first step in an appeal based on new or fresh evidence: Lawless v The Queen (1979) 142 CLR 659, 675‑ 676.
The appellant also seeks to rely on diary notes made by Officer Timmis as to what he was told by the complainant. The primary judge was correct, for the reasons he gives, to refuse leave to adduce this evidence in the appeal ([9] ‑ [12]). The evidence is not capable of undermining the conviction. In any event, a forensic decision was made by defence counsel at trial to object to its tender by the prosecution.
This ground is without merit. Leave to appeal is refused.
Ground 3
Ground 3 is to the effect that the magistrate did not give proper or adequate reasons for her decision. This ground is to the same effect as ground 3 in the single judge appeal. It has no merit for the reasons given by the primary judge. Leave to appeal is refused.
Ground 4
This raises the same matters covered in grounds 1 and 2. Leave to appeal is refused.
Ground 5
The appellant contends that: Aaron Lee made false statements against the appellant which the magistrate did not question at trial; a copy of the false statement of Mr Lee was submitted to the magistrate who did not consider the appellant's position relating to that matter; the DPP did not provide submissions to the appellant during the single judge appeal; he has been convicted without evidence; the charge was false and baseless and framed by a Serco staff member who wanted revenge on the appellant. The last two matters have been canvassed in grounds 1 and 2.
As to Mr Lee, he accompanied the complainant to the police station on 15 March 2013 (ts 20). Mr Lee was not called as a witness and his statement was not adduced in evidence at trial (ts 19 ‑ 20). Accordingly, the statement was not taken into account by the magistrate.
In this case the respondent did file written submissions, a copy of which was provided to the appellant at the hearing of the single judge appeal (ts 5). The matter was stood down to enable the appellant to consider those submissions (ts 6). No error is established. In an application for leave to appeal, ordinarily the court hears only from the appellant, who bears the onus of persuading the court that one or more of his grounds of appeal has a reasonable prospect of succeeding. The appellant was unable to discharge that onus.
There is no merit in any of the matters raised in this ground. Leave to appeal is refused.
Conclusion
No ground of appeal has any reasonable prospect of succeeding. Leave to appeal must be refused and the appeal dismissed.
BUSS JA: I agree with the orders proposed by McLure P and with her Honour's reasons.
I am satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the magistrate to reject the appellant's version of events and to be satisfied beyond reasonable doubt as to his guilt. Her Honour, acting reasonably, was not precluded by the state of the evidence from convicting the appellant. The magistrate had the very significant advantage of seeing and hearing the witnesses give their evidence. The trial record does not require the conclusion that her Honour must necessarily have entertained a doubt about the appellant's guilt. After paying full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction.
MAZZA JA: I agree with McLure P.
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