Kezic v Hartley - [2012] WASC 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KEZIC -v- HARTLEY [2012] WASC 320

CORAM: HALL J

HEARD: 6 AUGUST 2012

DELIVERED : 14 SEPTEMBER 2012

FILE NO/S: SJA 1062 of 2012

BETWEEN: DUSAN KEZIC
Appellant
AND
JAMES LEWIS MUNRO HARTLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J MUSK
File No  :PE 14311 of 2012, PE 14312 of 2012

Catchwords:

Criminal law - Appeal from Magistrates Court - Whether verdicts reasonable - Whether magistrate biased - Whether prosecution evidence falsified - No reasonable prospects of success - Leave to appeal refused

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms C A Lakewood

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

HALL J: On 7 May 2012 the appellant was convicted after a trial in the Magistrates Court of one count of common assault, contrary to s 313(1)(b) of the Criminal Code (WA) and one charge of disorderly conduct, contrary to s 74A(2)(a) of the Criminal Code. By an appeal notice filed on 28 May 2012 the appellant has sought leave to appeal against those convictions.
The appellant is self‑represented. The ground of appeal stated in the appeal notice was incomprehensible. For that reason, on 6 August 2012 I convened a directions hearing to determine what the appellant's grounds of appeal were and whether they had any merit.
The appellant raised three issues at the directions hearing. First, he alleged that he had not been given a fair hearing before the magistrate because the magistrate was biased against him. Secondly, he asserted that the evidence did not support a finding of guilt. I took this to mean that he was suggesting that the guilty verdicts were unreasonable and could not be supported having regard to the evidence. Thirdly, he asserted that a security video tendered in evidence by the prosecution was false. The appellant asserted that the video had, in some unspecified way, been tampered with.

Were the verdicts unreasonable

Where a finding of guilt is challenged on the basis that it is unreasonable or cannot be supported on the evidence the question for the appellate court is whether the tribunal of fact must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J). See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495 (Mason CJ, Deane, Dawson and Toohey JJ).
The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA with whom McLure P and Mazza JA agreed).
A ground of this type requires the appellate court to examine the whole of the evidence not just to determine its sufficiency but to weigh the evidence and decide whether or not it gives rise to any reasonable doubt: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. It should be borne in mind that the appeal court has neither seen nor heard the witnesses and regard should be had to the advantage which the primary court had in that regard: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126 ‑ 127 (Gleeson CJ, Gummow and Kirby JJ).
The prosecution case was that on 13 January 2012 the appellant spat on another man at the Mirrabooka Shopping Centre and that when a security guard intervened he verbally abused the guard and then head‑butted him. The disorderly conduct was said to be constituted by the spitting and the verbal abuse. The assault was alleged to be constituted by the head‑butting of the security guard.
The prosecution called three witnesses. They were Mr Stephen Cooper, the security guard, Mr Brendan Exell, an independent witness, and Constable Joseph Holland, the police officer who later arrested the appellant and conducted an interview with him.
Mr Cooper gave evidence that he is employed as a security guard. He said that he was working at the Mirrabooka Square Shopping Centre on 13 January 2012. Whilst on a routine foot patrol through the shopping centre he saw the appellant spit in the face of another male customer. Mr Cooper said that he was approximately ten metres away at the time. He said that prior to this incident both parties had been walking through the shopping centre and that he saw no prior altercation between them. The other man was with a child.
Mr Cooper said that after the spitting incident both customers had walked on but the appellant had then turned round and started walking back towards the other man. Mr Cooper said that he then intervened by stepping in front of the appellant who was pushing a shopping trolley. He said that the appellant tried to push the shopping trolley into him. Mr Cooper pushed the trolley to one side and told the appellant that his behaviour was not appropriate. He said that the appellant then tried 'barging through me to get to the other customer'.
Mr Cooper then said that he tried to restrain the appellant by grabbing one of his wrists and turning him around to escort out of the shopping centre. As this occurred the appellant's wrist watch fell off and slid underneath a table at the food court. Mr Cooper said that he then picked up the wrist watch and handed it to the appellant. As this was occurring the appellant verbally abused him. Mr Cooper then told the appellant that he had to leave the shopping centre and that if he did not he would be charged with trespassing.
Mr Cooper said that the appellant then head‑butted him. He said that the appellant's right forehead came into contact with his left temple. No injury was caused but Mr Cooper gave evidence that he had a headache for the rest of the day and was a little dazed afterwards. Mr Cooper gave some details of the abusive language that had been used by the appellant. It is unnecessary to repeat that language here, other than to say it involved swear words and insults regarding Mr Cooper's family.
Mr Cooper produced a disk containing security footage from the shopping centre. Whilst the camera was some distance away and was in a fixed position, the footage was generally consistent with Mr Cooper's evidence.
Mr Cooper was cross‑examined by the appellant. The appellant suggested that Mr Cooper had struck him and broken his glasses. Mr Cooper denied this. Mr Cooper maintained his evidence as to what occurred and rejected propositions to the contrary put to him by the appellant.
Mr Exell gave evidence that he had been sitting at a table having lunch with his mother at the food court. He said that he observed the appellant abusing and swearing at another man who was with a little girl. He said he did not hear the other man say anything and that he appeared to be just trying to get away. He said he saw the appellant spit at the other man and that that was when a security guard came over and intervened. He said the security guard stood in front of the appellant as the other man was walking away with the little girl. He said the appellant was trying, 'very, very hard to get past that security guard to get to that guy'.
Mr Exell was shown the security footage and confirmed that it depicted the incident he saw. He identified himself on the footage. He estimated that he was five to ten metres away when the spitting incident occurred.
Mr Exell said that the security guard told the appellant to leave. He said that the security guard and the appellant were 'front on, chesting each other'. He said that at this point the appellant's watch came off his hand and went underneath the table that Mr Exell was sitting at. He said that the security guard then came over to pick it up. He could hear the appellant swearing at the security guard at this time. He said that the appellant then stepped forward and head‑butted the security guard. He said that the appellant then started walking off and that he was 'going off' at the security guard. At that point another security guard attended and escorted the appellant from the premises.
The appellant put to Mr Exell in cross‑examination that he, Mr Exell, had not been present at the time of this incident. This was a brave line to take in light of the fact that Mr Exell appeared on the video footage. In any event, Mr Exell maintained that he was present and adhered to his evidence.
Constable Holland gave evidence that he had arrested and interviewed the appellant on 22 February 2012. In the interview the appellant said that the security guard had hit him and grabbed his glasses and watch. He said that the security officer had attacked him from behind and punched him in the back. It appears to be on the basis of this evidence that the magistrate gave consideration to whether the appellant's actions in head‑butting the security guard were excused on grounds of self‑defence.
The appellant gave evidence in his defence. Much of his evidence was not coherent, however he maintained that what he had told the police in the interview was correct. He then said that the security guard had put an arm on his back and that he had tried to resist the force used against him. He said that he had head‑butted the security guard afterwards but it was in order to protect himself.
In her reasons for decision, the magistrate concluded that it was the appellant who was aggressive from the outset. She found that the appellant had been abusive to the other man and had spat on him. She also found that the appellant had been aggressive and offensive to the security guard and had assaulted him in the way alleged. She found that self‑defence had been disproved beyond reasonable doubt.
Her Honour came to these conclusions on the basis of the evidence of Mr Cooper, Mr Exell and the surveillance video. She found this evidence to be consistent. She noted that Mr Exell was an independent witness and that the surveillance video was also independent. As to the appellant's suggestions that the video had been tampered with, her Honour noted that there was no evidence to support that suggestion and that in any event the video was consistent with the evidence of the witnesses.
This is a case that, to a considerable extent, depended upon the magistrate's assessment of the credibility of the witnesses. The appellant gave a different account of what occurred to that given by the prosecution witnesses. There were no significant inconsistencies in the prosecution witnesses' evidence. It was clearly open for the magistrate to accept the evidence of the prosecution witnesses and reject that of the appellant. There is no basis for suggesting that the magistrate erred and a ground to this effect has no reasonable prospect of succeeding.

Was the magistrate biased?

At the directions hearing the appellant said he believed that the magistrate disliked him. He suggested that she treated him badly. He said that, 'Her attitude was one hundred percent against me'. When asked whether he was suggesting that he did not receive a fair trial the appellant said that this was so because the magistrate believed the prosecutor and accepted what the appellant asserted was false evidence.
The test for determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question to be decided: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
Whilst the appellant has provided no details of what it is he says manifested the appearance of bias on the part of the magistrate, I have taken the opportunity to carefully read the transcript of the proceedings. It is apparent from that transcript that the appellant had very little understanding of the procedure to be followed in a trial of this nature. This was particularly evident when it came to cross‑examining witnesses. The appellant frequently sought to simply make statements or assertions rather than putting questions. This meant that the magistrate had to stop the appellant and explain the purpose of cross‑examination and how questions could be put. On occasions she endeavoured to assist the appellant by simplifying some of the propositions he was advancing. This was in an effort to assist the appellant in putting his case. None of this involved any apparent bias on the part of the magistrate. This ground is without merit.

Whether the prosecution led false evidence

The appellant alleges that the video surveillance footage was not genuine footage but was 'made up'. At the directions hearing he suggested that the police had made a 'movie against me'. This allegation has never been expressed in more detail than that.
These allegations were also put in cross‑examination to witnesses at the hearing. They were rejected. There was no evidence at the trial to support them. Nor has any additional evidence been advanced by the appellant on this appeal. The magistrate rejected the suggestions of the appellant that the video had been tampered with and noted that there was no evidence in that regard. In fact, the evidence was to the contrary. Furthermore, as the magistrate noted, the surveillance footage was consistent with the evidence of the prosecution witnesses, Mr Cooper and Mr Exell.
A ground asserting that the video was in some respect false is entirely unsubstantiated and has no prospect of succeeding.

Conclusion

Leave of the court is required in respect of each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA). Section 9(2) of the Act provides that the court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. This requires that the ground have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487. Unless the court gives leave to appeal in respect of at least one ground of appeal the appeal must be dismissed: s 9(3) of the Act.
None of the issues identified by the appellant at the directions hearing is reasonably arguable, far less do any of them have any rational prospect of succeeding as a ground of appeal. Therefore leave must be refused in respect of each of them and the appeal dismissed.

Orders

1.Leave to appeal in respect of all grounds refused.
2.Appeal dismissed.
3.Appellant to pay the respondent's costs to be taxed if not agreed.