King v Lankford
[2000] WASCA 214
•18 AUGUST 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KING -v- LANKFORD [2000] WASCA 214
CORAM: WHEELER J
HEARD: 21 JUNE 2000
DELIVERED : 18 AUGUST 2000
FILE NO/S: SJA 1165 of 1999
BETWEEN: PAUL ANTHONY KING
Applicant
AND
TROY LANKFORD
Respondent
FILE NO/S :SJA 1095 of 2000
BETWEEN :PAUL ANTHONY KING
Applicant
AND
LISA BARGAIN
Respondent
FILE NO/S :SJA 1001 of 1999
BETWEEN :PAUL ANTHONY KING
Appellant
AND
FELICITY JEAN CRAWFORD
Respondent
Catchwords:
Justices - Appeal - Complaints of resisting and hindering arrest and assault - Refusal to adjourn - Dietrich principle - Conduct of Magistrate - Apprehension of bias
Legislation:
Nil
Result:
Appeal for extension of time to appeal dismissed
Appeal dismissed
Category: B
Representation:
SJA 1165 of 1999
Counsel:
Applicant: In person
Respondent: Mr P D Quinlan
Solicitors:
Applicant: In person
Respondent: State Crown Solicitor
SJA 1095 of 2000
Counsel:
Applicant: In person
Respondent: Mr P D Quinlan
Solicitors:
Applicant: In person
Respondent: State Crown Solicitor
SJA 1001 of 1999
Counsel:
Appellant: In person
Respondent: Mr P D Quinlan
Solicitors:
Appellant: In person
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Dietrich v R (1992) 177 CLR 292
Hunt v Towie, unreported; SCt of WA (Wallwork J); Library No 940283; 8 June 1994
Weinel v Fedcheshen (1995) 65 SASR 156
Case(s) also cited:
Cumby v Rhodes, unreported; SCt of WA; Library No 5367; 29 May 1984
Geraldton Fisherman's Co-operative Ltd v Munro [1963] WAR 129
Kazinski v R, unreported; SCt of WA; Library No 8286
Letts v King (1988) WAR 76
Matich v Godfrey, unreported; SCt of WA (Walsh J); Library No 920026; 13 February 1992
Myers v Myers [1969] WAR 19
NSW v Canellis [1984] 181 CLR 309
Romito v Williams, unreported; SCt of WA; Library No 920649; 4 December 1992
Williams v R (1986) 66 ALR 385
WHEELER J: I have before me an appeal against conviction and an application for leave to appeal. The appellant was convicted after trial in the Court of Petty Sessions at Rockingham on 11 December 1998 in respect of three complaints, one, that he resisted Constable Lankford, a member of the Western Australian Police Force acting in the execution of his duty, one of hindering Constable Lankford, and one in respect of assaulting Felicity Crawford. The events out of which the complaints arose, all took place on 15 October 1998.
Application to vacate hearing of appeal
On 4 October 1999, the applicant obtained both an extension of time and leave to appeal from the decision of the Magistrate in respect of the complaints of resisting and hindering. Since that time, the appellant has on a number of occasions sought to have argument in respect of the appeal adjourned and before me on 21 June, he sought to vacate the hearing of the appeal, which had been listed. I did not do so, for reasons which I then gave. Broadly, I took the view that there was insufficient evidence before me to suggest that the appellant was then incapable, for medical reasons, of conducting his appeal. It also appeared to me that, to the extent that there was medical evidence which indicated that the appellant was suffering a degree of disability as a result of previous head injury, there was no evidence to suggest that the appellant's condition would improve within the foreseeable future, so as to enable him to more readily conduct his appeal. I had the advantage of hearing the appellant present considerable argument in respect of the application to vacate the hearing date, and I formed the view that he was capable of presenting argument in a coherent way and of understanding and responding to argument put on behalf of the respondent. Finally, I took the view that it was desirable in the public interest that these matters be resolved promptly, since they arose out of an alleged assault by the appellant upon his then de facto spouse, and that a re‑trial would be likely to involve Ms Crawford in giving evidence of events which, it appeared from the transcript of the trial, it had been traumatic for her to recount, and which she had, no doubt by now, assumed that she had put behind her.
Background - the trial
So far as the assault complaint was concerned, the appellant had on foot two applications for leave to appeal and extension of time, one made on 8 June 2000, and the other made late in 1999 but not pursued since them. In respect of that application, the appellant sought to amend the application to rely upon a number of additional grounds. It is probably convenient to consider the proposed grounds after dealing with the course of the trial.
The appellant advised her Worship at the outset that he had been under the impression that the matters would not proceed since Ms Crawford had written a letter to the court seeking to withdraw the complaint in respect of her. Her Worship replied, "That is not something I can listen to." and the appellant then requested legal representation. Her Worship said that Mr King had had legal advice, and had had a status conference and that he had had "ample time". It appears that her Worship had been the presiding Magistrate on the earlier occasion.
Ms Crawford then gave evidence of an assault upon her by the appellant on the date in question. She was cross-examined by the appellant, and he put to her that he had in effect been attempting to restrain her in a situation in which he had reason to fear that she would attempt to commit suicide, she apparently having attempted to do so some four weeks or thereabouts beforehand. He also put to her that she had threatened him with a knife at some stage during the course of that incident and that any pain that she experienced in her neck was not a result of that incident but stemmed from a pre-existing condition. Ms Crawford denied these suggestions and further stated in relation to the letter that she had written to the court that she had done so under pressure from the appellant.
The two police officers then gave evidence that they attended at the house as a result of a call. The evidence was to the effect that one of them asked Mr King to stay outside, so that they could speak to Ms Crawford, but that he followed them and refused to comply, despite being pushed by one of the constables, and that he kept following the constable. He was advised that he was under arrest and the constables attempted to take him to the police vehicle, but he struggled and had to be dragged to it. There was some difference in the evidence of the two constables as to whether, once he had been taken to the police van, the appellant cooperated in getting inside it, or had to be pushed in. One of the constables gave evidence that they saw red marks on Ms Crawford's neck which appeared to him to be finger marks. The other constable gave evidence that, as well as following the officers and refusing to allow them to go and interview Ms Crawford without his being present, the appellant was continually yelling.
They were cross-examined by the appellant about whether one of them had grabbed him by the throat, to which the reply was that there was a push towards the throat area, about whether he had cooperated in climbing into the vehicle, about the layout of the front veranda where he was allegedly following and yelling at the officers, and about whether he was advised of the reasons for his arrest. As to this last, the answer was that he was not advised, since his behaviour at the time made it impossible to advise him until he had calmed down later at the police station. There was a videotaped record of interview taken, but since there were apparently no admissions made on it, it was not produced in evidence.
The appellant then gave evidence in his own defence to the effect that he did restrain Ms Crawford and hold her, but that he did not grab her by the throat or drag her by the hair and that he only restrained her in order to stop her from harming herself. He admitted that despite his apparent concern for Ms Crawford, which he said had commenced relatively early in the morning, he later went out about his own concerns. It should be noted that the alleged assault did not occur until about 4 o'clock in the afternoon and that the appellant said that at one stage he had gone out to the shops and on another occasion had gone to another room and worked on the computer for a time. His evidence was that at some time during the day she had gone out with the children so that when he went to go to the shops, she was not home in any event. He admitted talking loudly but said he did not yell or hinder the police officers and that when he was arrested, no reason was given for his arrest, despite his asking on a number of occasions for it. He denied resisting arrest and further said that any appearance of resistance may have been created by a painful back condition, which made it difficult for him to walk with the officers to the vehicle.
The appellant's sole ground of appeal in relation to the hindering and resisting arrest charges was that the learned Magistrate denied him the opportunity to obtain legal advice and representation. He was relying, in that respect, upon both the Dietrich v R (1992) 177 CLR 292 ("the Dietrich principle") and upon the ordinary principles governing applications for adjournments. He relied upon that ground also in respect of the conviction for unlawful assault, but in addition applied to amend his grounds so as to add an additional 10 grounds of appeal which, during the course of argument, he said were largely relevant to the resisting and hindering complaints as well. I think it is appropriate to have regard to all of the proposed grounds in respect of all of the complaints. I deal first with proposed grounds 2 through to 11 inclusive, since, in my view, they can be fairly readily disposed of and return then to the first ground, which appears to me to be the most significant one. I deal with those grounds below, using the appellant's numbering.
Ground II
This ground deals with the statutory declaration made by the complainant, which accompanied her letter to the court seeking not to proceed with the complaint of assault. The appellant appears to take the view that her Worship should have had regard to the content of that statutory declaration. However, it was put to the complainant during her cross-examination by the appellant that she had made a declaration in which she said that she did not agree with matters contained in her statement (which matters might reasonably be assumed were reflected in her evidence). The complainant agreed that she had made the statutory declaration but said she had done so under pressure from the appellant. She said that her evidence in court was correct. Her Worship had before her, then, the fact of the existence of a prior inconsistent statement, which would have been relevant to her evaluation of the complainant's credibility. The content of the prior inconsistent statement was not itself, of course, capable of being evidence as to the truth of its contents and it would not have been appropriate for her Worship to take it in evidence.
Ground III
The thrust of this ground is that there was no evidence of the assault apart from that of the complainant herself. However it was open to her Worship to convict on the evidence of the complainant, which she accepted.
Ground IV
This ground is to a similar effect to ground III.
Ground V
This complains that her Worship did not consider any defences available to the appellant such as extraordinary emergency, accident, or compulsion. It is true that her Worship did not list all the possible defences contained in the Code and consider them. There was no obligation upon her to do so unless there was some evidence which raised an issue in respect of any of them.
The primary thrust of the appellant's case was that he did not do what the complainant alleged that he had done, nor had he resisted arrest or hindered the police. Her Worship did not believe the appellant, but accepted the evidence of the prosecution witnesses. To the extent that the appellant's evidence in respect of Ms Crawford's threatened suicide, or apprehended suicide, might have given rise to a defence of extraordinary emergency or something of that kind, her Worship simply did not accept that evidence.
Ground VI
This ground complains that the appellant was denied the opportunity to quote relevant cases. It is true that during the course of the appellant's address, her Worship observed "I am aware of the law" in a manner which suggested that he ought not to continue to deal with matters of law. However, the matters of law which the appellant was at that time putting before her Worship were well known, and her Worship did not make any error in relation to the application of the law. She did not deny Mr King the opportunity to address her in relation to matters of fact, and so his inability to take her Worship to well known propositions of law, which she in any event appears to have applied, would have had no effect upon the case.
Ground VII
This complains that the appellant was denied the opportunity of viewing or having made available the videotaped record of interview. That videotape was simply irrelevant to the trial, as it contained no admissions.
Ground VIII
It is suggested that the appellant's arrest was unlawful and that he was thereafter wrongfully detained. This appears to relate to the appellant's insistence that he asked on more than one occasion to be told the reason for his arrest and was not told. However, the evidence, which her Worship accepted, was to the effect that his behaviour at the time made it impracticable to advise him of the reasons for his arrest and the evidence of the constables, which her Worship accepted, was that he was advised as soon as practicable. Any unlawful detention of the appellant subsequent to his arrest (of which there is in any event no evidence) would not appear to be relevant to the matters the subject of these complaints.
Ground IX
It is suggested that the learned Magistrate erred in allowing evidence to be tendered by a police officer of an expert nature when the witness was unqualified. This deals with the red marks on the neck. It was clearly open to the officer to give evidence of his observation of red marks on Ms Crawford's neck. His evidence that they appeared to him to be finger marks is, in my view, properly to be understood not as any attempt to give expert medical evidence that they were consistent with being finger marks, but rather as an observation that their shape and size suggested to him that they were finger marks. It seems to me that this is evidence which a lay witness is capable of giving, although its weight is not as great as it would have been if given by a medical witness who was capable of ruling out other possibilities. The possibility that the marks stemmed from Ms Crawford's naturally "mottled skin" was put to her Worship by the appellant.
Ground X
This deals with an alleged misrepresentation of evidence in the closing address of the prosecuting sergeant. It does not appear to be material to her Worship's decision.
Ground XI
This ground suggests that her Worship drew inferences about the appellant without first making inquiry of the appellant. The relevant inference is, it appeared from the course of argument before me, one which arose at the time of sentencing and was to the effect that the appellant was not properly trained for dealing with suicidal people and would have been better advised, if he had any fears about Ms Crawford, to have called for appropriate assistance. It was merely an observation made by her Worship subsequent to her findings of fact by way of advice to the appellant, and does not appear to have formed part of the reasoning leading to conviction.
Failure to adjourn
For the reasons which I have briefly outlined, it appears to me that there is no substance in the proposed grounds 2 through to 11 inclusive, in respect of any of these complaints. There remains, however, the failure of her Worship to adjourn the hearing so that the appellant could seek legal advice and representation.
Although there was no ground of appeal to this effect, it was also said more than once by the appellant during the course of argument before me, that her Worship "yelled at" the appellant, that she threatened him with being found in contempt of court, and that her behaviour towards him was so intimidating that he was inhibited in the proper presentation of his case. It is fair to say that there are some indications in the transcript which, at least if read in isolation, would give rise to serious concern in respect of these allegations. I have therefore, after writing to both counsel for the respondent and to the appellant, and receiving no objection from either party, obtained and listened to the tapes of the proceeding before her Worship.
It is true that her Worship's tone during the proceedings was impatient, and became more so as the matter progressed. In fairness to her Worship, it should at once be observed that there were aspects of the trial which might have tested the patience of a judicial officer. For example, almost immediately at the commencement of her evidence, Ms Crawford made observations addressed directly to the appellant, telling him "don't look at me" in a hostile tone and having to be advised by her Worship that her Worship would not tolerate rudeness by Ms Crawford to anyone in court. Ms Crawford did not immediately begin to deal with the prosecutor's questions in a manner which answered them directly or assisted the court. For example, when asked her occupation at the beginning of the proceedings, she said that it was "supposed to be" home duties, although it transpired that she was living in a refuge at that time and was therefore not engaged in home duties. When asked what happened on the day in question, her answer at first was simply "too much". It appears that she then became somewhat tearful and incoherent. In cross-examination, the appellant, as is not unusual with unrepresented litigants, wished to deal with a considerable number of matters which appeared to be of peripheral or no relevance to the subject matter of the complaints and his cross-examination of the police officers was addressed in considerable part to matters which occurred some time after his arrest, and which did not appear to be capable of bearing on the subject matter of the complaints.
That said, there are a number of observations of her Worship which appear to depart from the standard of courtesy and patience desirably shown by a judicial officer, even in a trying matter in a busy court, and particularly towards an unrepresented defendant. For example, while cross-examining Ms Crawford, Mr King appears to have been over eager to answer her Worship's question about the relevance of a portion of his cross-examination and to have interrupted one of her Worship's questions to him on the subject. This prompted her Worship to say, "Mr King, if you don't listen to me, I'm going to cite you for contempt of court for which you can be imprisoned". He was later told, when advising her Worship of a matter of fact, rather than asking a question during the course of cross-examination (which is of course not unusual for an unrepresented litigant) "Mr King, if you address me one more time, you're going to be in problems". Her Worship added, "I've had enough of you". When the appellant became confused about the order of addresses, having given most of his evidence, he was advised by her Worship, "Mr King, if you're law student, you're a very poor law student from what I can gather if you don't listen". During the course of cross-examination by the police prosecutor, the appellant departed somewhat from a direct answer to a question and started to explain to her Worship his feelings at the time for Ms Crawford, only to be told by her Worship, "This is the last time - - the very last time, or I'm going to charge you with contempt of court …".
While even a tape recording cannot adequately reproduce courtroom atmosphere, it is difficult to discern in Mr King's tone anything that would have prompted warnings of this kind. In my view, a warning in relation to potential consequences of contempt of court, is very likely to overawe a litigant and should not be given unless clearly necessary. Behaviour of this kind by a judicial officer presents at least two obvious dangers. The first is that the judicial officer may be perceived as biased. The second is that a litigant may be prevented from presenting his or her case adequately, so that a trial will miscarry. In the particular circumstances of this case, it is my view that neither of those potential dangers was realised.
So far as bias is concerned, her Worship, on a number of occasions, displayed at the least, considerable impatience with, and perhaps even hostility, not only to Mr King, but also towards the complainant. I have already referred to her swift and appropriate correction of the complainant when she directly addressed the appellant. She advised the complainant very firmly that although these "type of things may mean a great deal to you" all her Worship was interested in was "the facts". Her Worship noted to the prosecuting sergeant that the complainant had at one time strayed a long way from answering a particular question. She commented adversely on the complainant's "attitude" again during cross-examination and corrected her, and at one stage when the complainant queried the relevance of a question asked by the appellant in cross-examination, her Worship said to the complainant that it was "not for you to query the relevance". She appeared to be critical of the complainant for remaining in the courtroom after her evidence was completed. The appellant later recalled Ms Crawford in order to lead evidence from her concerning the hindering and resisting charges and her Worship then said at the completion of that evidence, "Thank you Ms Crawford. You are free to go, and I would suggest that, this time, you do". In my view, a reading of the transcript as a whole, or listening to the tape recording as a whole, suggests that her Worship was equally impatient with the complainant and the appellant and was critical of the conduct of each of them in the courtroom.
So far as the Dietrich principle is concerned, there was before her Worship no evidence of impecuniousness on the part of the appellant. He said that that is because her Worship denied him the opportunity to put that material before her. There was, likewise, no evidence before me, although the appellant told me something of his financial problems at the time from the Bar table. Assuming for the moment that the appellant was relevantly impecunious, it appears to me that there was no real threat of deprivation of personal liberty in this case. Clearly the resisting arrest and hindering charges were relatively insignificant. They were not serious offences of their kind. Assault is, of course, a more serious offence, but it was not an assault involving apparently any attempt to cause serious injury, there was no weapon involved, and it was committed over a relatively short period of time and did not result in any injury more significant than the discomfort experienced by the complainant. While imprisonment was legally available then, it was not a case in which there was as a practical matter a significant risk and it would appear to me that, following the reason of Perry J in Weinel v Fedcheshen (1995) 65 SASR 156 that this was not relevantly a "serious" offence which required that the trial should be adjourned until legal representation was available. See also Hunt v Towie, unreported; SCt of WA (Wallwork J); Library No 940283; 8 June 1994.
Finally, it is necessary to consider the proceedings before her Worship in order to determine whether legal representation might have resulted in some significant difference in the proceedings, or whether the denial of representation or the attitude towards the appellant exhibited by her Worship, prevented the case for the appellant from being properly and fairly put.
I have already noted the way in which the appellant cross-examined Ms Crawford and cross-examined the police officers. Mr King canvassed before me the issues which arose in the trial, his view of the facts, and the matters which he might have wished to put to her Worship. With one exception, there was no matter raised by him at the hearing of this appeal which was different from or in addition to the matters which he canvassed before her Worship.
He did suggest before me that if he had been given an adjournment, he would have been able to obtain photographs or other evidence of the layout and dimensions of the steps where he was allegedly hindering the police officers, and that such material would have cast doubt on portions of the evidence of those officers. However, it seems to me most unlikely that this would have been so. The police officers' evidence as to precisely how far apart the constable and the appellant were, which evidence the appellant said was inconsistent with the dimensions of the steps, was not a central part of the evidence. It seems most unlikely that the appellant would have anticipated a dispute arising to which the dimensions of the steps might have been relevant, that being a simple physical matter of fact rather than something likely to involve disputed recollection and it seems to me unlikely that he would have obtained evidence of such a peripheral matter. Even had he done so, it appears to me that at most, the impact of such evidence would have been to suggest that the constable and the appellant were further apart than the "2 inches" suggested by the officer, but would not have been inconsistent with the proposition that they were in very close proximity to each other.
Otherwise, each of the matters which the appellant put to me, which were relevant to the determination of the matters before her Worship, were in fact canvassed by the appellant during the course of his cross-examination of the witnesses. Her Worship arrived at her findings of fact based upon features of the appellant's evidence which were difficult to accept; in particular, her Worship took the view that it was at the least odd if the appellant's concern about Ms Crawford arose early in the morning, that he did not seek any assistance and apparently was prepared either to leave her or to allow her to go out on her own with the children during the course of the day. Although she made no express finding to that effect, it is clear from her reasons that as to the resisting and hindering complaints, she accepted the evidence of the police officers and did not accept that of the appellant. In the emotionally charged situation described by the appellant and by the complainant, the picture of the appellant as being very calm and courteous which was suggested by his evidence, was in any event inherently somewhat implausible. It therefore appears to me that the half dozen or so ill-advised remarks directed by her Worship towards the appellant were neither indicative of bias, nor such as to interfered with the conduct of the trial by preventing him from placing all relevant material before her during the course of his cross-examination and his own evidence.
Conclusion
So far as the appeal against conviction in respect of complaints R0981757 and R0981758 are concerned, I would therefore dismiss the appeals. In relation to the application for extension of time and for leave to appeal against conviction in respect of R09801307, being the assault conviction, in my view the delay in bringing and in proceeding with the application, together with the circumstance that, for the reasons that I have outlined, the appeal could not succeed, make it appropriate simply to refuse the application for leave to extend time.
The result is that both the application and the appeals fall to be dismissed.
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