KAMALJIT v Kennedy
[2014] WASC 184
•28 MAY 2014
KAMALJIT -v- KENNEDY [2014] WASC 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 184 | |
| Case No: | SJA:1087/2013 | 21 NOVEMBER 2013 | |
| Coram: | LE MIERE J | 28/05/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | KAMALJIT JASON KENNEDY |
Catchwords: | Appeal Leave to appeal against conviction of unlawful assault Application to adduce fresh evidence No error of law or fact No miscarriage of justice Magistrate gave proper or adequate reasons for decision No grounds of appeal have reasonable prospect of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 39(1), s 39(4), s 40(1)(e) Criminal Code (WA), s 313(1)(b) Magistrates Court Act 2004 (WA), s 31(1) Sentencing Act 1995 (WA), s 45 |
Case References: | Ascic v Bedworth [2013] WASCA 174 DPJB v The State of Western Australia [2010] WASCA 12 Liberato v The Queen (1985) 159 CLR 507 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 600 Ska v The Queen (2011) 243 CLR 400 The State of Western Australia v Rayney [2013] WASCA 219 Weiss v The Queen (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JASON KENNEDY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : CI 36 of 2013
Catchwords:
Appeal - Leave to appeal against conviction of unlawful assault - Application to adduce fresh evidence - No error of law or fact - No miscarriage of justice - Magistrate gave proper or adequate reasons for decision - No grounds of appeal have reasonable prospect of success
Legislation:
Criminal Appeals Act 2004 (WA), s 39(1), s 39(4), s 40(1)(e)
Criminal Code (WA), s 313(1)(b)
Magistrates Court Act 2004 (WA), s 31(1)
Sentencing Act 1995 (WA), s 45
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms S J Oliver
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Ascic v Bedworth [2013] WASCA 174
DPJB v The State of Western Australia [2010] WASCA 12
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 600
Ska v The Queen (2011) 243 CLR 400
The State of Western Australia v Rayney [2013] WASCA 219
Weiss v The Queen (2005) 224 CLR 300
1 LE MIERE J: The appellant was convicted after a trial in the Magistrates Court of the offence that at the Christmas Island Resort at about 11.00 pm on 14 March 2013 he unlawfully assaulted Kristine Norrie contrary to s 313(1)(b) of the Criminal Code (WA) was fined $300 and granted a spent conviction order under s 45 of the Sentencing Act 1995 (WA). The appellant seeks leave to appeal against his conviction.
Prosecution case
2 The appellant and the complainant, Ms Norrie, were employed by Serco Immigration Services at Christmas Island and both resided at Christmas Island Resort. It was the prosecution's case that Ms Norrie had entered the hotel room of the appellant after he had offered to fix her laptop. When Ms Norrie attempted to leave the room, the appellant assaulted her by grabbing her wrist to restrain her and prevent her from leaving the room.
3 The matter was tried before a magistrate sitting at Perth. The appellant was legally represented at the hearing. The prosecution called evidence from Ms Norrie and from Shaun Timmis, an AFP officer. Ms Norrie was cross-examined to the effect that her account as to what happened in the hotel room was not true and that she had made up a large part of the allegation. Ms Norrie denied this. Ms Norrie denied that the appellant had not laid a hand on her. Ms Norrie was also cross-examined about the fact that she had made a complaint around the same time against another person on Christmas Island. Although the magistrate refused to allow the appellant to question Ms Norrie as to the substance of the allegation she made against the other person, Ms Norrie confirmed that nothing resulted from her complaint.
4 Mr Timmis gave evidence that he had taken from Ms Norrie the complaint which gave rise to the present conviction and a complaint of another assault that did not involve the appellant. Mr Timmis was cross-examined but was not asked any questions about the incident that did not involve the appellant.
5 The appellant gave evidence in his defence and was cross-examined.
6 The magistrate delivered oral reasons for decision. Her Honour found that the appellant's evidence was not credible. Her Honour found that the appellant was afraid of the consequences of his behaviour and the impact the charge would have on his future employment and this was motivation for him to be untruthful. Her Honour found that the appellant was not a truthful or honest witness.
7 The magistrate found that Ms Norrie answered all the questions put to her in an honest manner, even conceding matters which she missed in her examination-in-chief. Her Honour concluded that Ms Norrie was a truthful and honest witness. Her Honour found that the prosecution had proven the offence beyond a reasonable doubt.
Grounds of appeal
8 The appeal notice contains five grounds of appeal. Ground 4 is, in effect, an application to adduce fresh evidence. I will deal with that ground or application first.
Application to adduce fresh evidence
9 In the course of giving his evidence Mr Timmis said that Ms Norrie had attended the Christmas Island police station on 15 March 2013 and complained about two assaults. Mr Timmis took details of the complaint about the two assaults in his diary. The prosecution tendered the pages of the diary which contained the details concerning the assaults. Counsel for the appellant objected to the tender. The magistrate did not receive the notes in evidence and they were marked for identification 'MF1'. The appellant now seeks to adduce that document as new evidence in the appeal.
10 The Criminal Appeals Act 2004 (WA) s 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. Section 39(4) provides that subsection (1) does not prevent an appeal court from considering any evidence that the lower court refused to admit. Section 40(1)(e) provides that for the purposes of dealing with an appeal, an appeal court may admit any other evidence.
11 Appeal courts distinguish between fresh evidence and new evidence. Evidence is considered to be fresh if it did not exist at the time of trial or could not have been discovered at that time by the exercise of reasonable diligence. If the evidence was available or if it could have been discovered, then it will only qualify as new evidence. In this case the evidence was available to the appellant at trial and hence is 'new' evidence.
12 An appeal will be allowed on the basis of new evidence only where the new evidence establishes that the appellant is innocent or raises such a doubt that the appellate court concludes that the appellant should not have been convicted: DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA). The new evidence sought to be adduced in this case does not meet that test.
13 In any event, the evidence was not admitted at trial as a result of a tactical decision made by the appellant's counsel. It will only be in rare cases where new evidence will be admitted in such circumstances. This is not such a case. The appellant was legally represented at trial. His counsel's decision is the decision of the appellant for the purposes of this appeal. That the appellant has now changed his mind about adducing the notes into evidence is not a sufficient reason for allowing them into evidence on the appeal. Furthermore, the new evidence is not of such a compelling nature that the interests of justice require it to be received in evidence on the appeal.
First ground of appeal
14 The first ground of appeal is:
The Magistrate arrived at a decision without any proper evidence. She trusted the words of other side and did not permit to speak my side.
15 The appeal appears to be on the ground that the magistrate made an error of fact or law or that there has been a miscarriage of justice because the guilty verdict was unreasonable or could not have been supported by the evidence. In deciding whether a miscarriage of justice has occurred because the guilty verdict was unreasonable or could not have been supported by the evidence, the appeal court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence having regard to the fact that the magistrate is entrusted with the primary responsibility of determining guilt or innocence and has the benefit of having seen and heard the witnesses: Ska v The Queen (2011) 243 CLR 400 [11] - [14] (French CJ, Gummow & Keifel JJ); Weiss v The Queen (2005) 224 CLR 300 [39] - [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ); MFA v The Queen (2002) 213 CLR 600 [58] (McHugh, Gummow & Kirby JJ); M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ).
16 In The State of Western Australia v Rayney [2013] WASCA 219 [374] Weinberg, Whealy and Buddin AJJA referred with approval to the part of the judgment of Buss JA in Ascic v Bedworth [2013] WASCA 174 where his Honour discussed the role of an appellate court dealing with an appeal from a verdict in the trial before a magistrate. His Honour said:
Where there has been a trial before a judge alone or a magistrate, the reasoning of the court which is based on a credibility determination must be distinguished from the reasoning of the court which is based on inferences drawn from facts that were undisputed or found by the court.
Normally, the court's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. However, as Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
'Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences' [21] (footnotes omitted).'
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J)), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ). In Dearman, Isaacs J said:
'The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).'
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
'These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted)' [64] - [67].
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
18 It was open to the magistrate to find that the prosecution had proved beyond reasonable doubt that the appellant had assaulted Ms Norrie.
19 The appellant was legally represented at the trial. He gave evidence. There is no basis for the ground of appeal that argues that the appellant was not permitted to 'speak my side'.
20 The first ground of appeal has no reasonable prospect of succeeding and leave to appeal should not be granted on that ground.
Ground 2
21 The second ground of appeal is:
The sentence passed by the magistrate is excessive and severe, as case is false. There is no evidence and witness in the case.
22 There is no patent or latent error by the magistrate. The sentence imposed on the appellant reflected the seriousness of the offending and the need for deterrence. The court imposed a fine of $300 and granted an application for a spent conviction. The sentence is not manifestly excessive.
23 Insofar as the second ground of appeal asserts that the conviction was unreasonable or could not have been supported by the evidence it adds nothing to the first ground of appeal.
24 The second ground of appeal has no reasonable prospect of succeeding.
Ground 3
25 The third ground of appeal is formulated in part by reciting exchanges between the magistrate and the appellant after the magistrate had delivered her reasons for decision. In essence, the ground of appeal is that the magistrate gave no proper or adequate reasons for decision.
26 The Magistrates Court Act 2004 (WA) s 31(1) provides that the court's reasons for decision need only identify the facts and the law that the court has accepted and applied in coming to its decision and give reasons for doing so and need not canvas all of the evidence given in the case or all the factual and legal argument or issues arising in the case. The magistrate adequately identified the facts that she accepted in coming to her decision and gave intelligible, rational reasons for doing so.
27 Ground 3 of the appeal has no reasonable prospect of success.
Ground 4
28 Ground 4 is the application to adduce fresh evidence. I have held that the evidence is new evidence and should not be admitted.
Ground 5
29 In ground 5 the appellant asserts that he is not guilty and lists what he describes as 'facts in the background' in support of that assertion.
30 The background facts assert that supervisory staff in his employer's company are racist and have discriminated against him on the basis of race, religion and nationality. Amongst other assertions the appellant says that supervisory staff of his employer instigated the complaint by Ms Norrie.
31 This appeal is concerned with the appellant's conviction for the offence of assault. The appeal is not concerned with whether the appellant has been discriminated against on the basis of race, religion and nationality by his employer. Insofar as the appellant asserts that the charge against him was instigated by his employer there is no evidence of that in the evidence before the magistrate.
32 Ground 5 of the appeal has no reasonable prospect of success.
Conclusion
33 None of the grounds of appeal have any reasonable prospect of success. Leave to appeal will be refused.
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