Laipato v Truman
[2017] ACTSC 351
•27 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Laipato v Truman |
Citation: | [2017] ACTSC 351 |
Hearing Date: | 31 October 2017 |
DecisionDate: | 27 November 2017 |
Before: | Mossop J |
Decision: | See [73] |
Catchwords: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – self-represented defendant – magistrate rules incorrectly about admissibility of questions asked in cross-examination – no evidence on appeal as to basis for or content of proposed questions – application of the proviso in appeals governed by s 218 of the Magistrates Court Act 1930 (ACT) – no miscarriage of justice – appeal dismissed |
Legislation Cited: | Evidence Act 2011 (ACT), ss 43(1), 43(2), 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 38D Magistrates Court Act 1930 (ACT), s 218 |
Cases Cited: | Dietrich v The Queen (1992) 177 CLR 292 Lee v The Queen [1998] HCA 60; 195 CLR 594 R v Hughes [1986] 2 NZLR 129 |
Parties: | David Laipato (Appellant) Aaron Truman (Respondent) |
Representation: | Counsel A Doig (Appellant) M Thomas (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 52 of 2017 |
| Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 12 May 2017 Case Title: Aaron Truman v David Christopher Laipato; Jason Comer v David Christopher Laipato; Jason Comer v David Christopher Laipato; Jason Comer v David Christopher Laipato; Court File Numbers: CC2016/10740 CC2017/2994 CC2017/2995 CC2017/3904 |
MOSSOP J:
Introduction
This is an appeal against the conviction and sentence of the appellant in relation to a charge of assault occasioning actual bodily harm. A magistrate found the offence proved on 10 April 2017 and, sentenced the appellant to 18 months’ imprisonment on 12 May 2017. At the same time he was sentenced on a number of other charges.
The appellant has appealed against the conviction and sentence on the charge of assault occasioning actual bodily harm (charge CC2016/10740). The appeal, if successful, would also affect other sentences (charges CC2017/2994, CC2017/2995 and CC2017/3904) and hence he has appealed against those other sentences to the extent that is necessary.
The grounds of appeal were:
a)The Learned Magistrate’s conduct of the proceedings generally was such that it resulted in a miscarriage of justice in that the appellant did not receive a fair trial according to law;
b)Further and in the alternative, the learned Magistrate erred in not allowing the Appellant to cross-examine witnesses regarding prior inconsistent statements.
A third ground of appeal alleging that the sentence was manifestly excessive was abandoned.
Counsel for the appellant explained that ground (b) was the substance of ground (a) of the appeal and that there were no matters other than the matters referred to in ground (b) said to give rise to ground (a).
As a consequence the issue is whether the magistrate erred in not allowing the appellant to cross‑examine witnesses in relation to prior inconsistent statements and whether that resulted in a miscarriage of justice.
Proceedings before the Magistrate
At the hearing before the magistrate the appellant was not represented. That situation arose because of a decision made by the appellant that he “didn’t trust anyone with my case”. There was therefore no issue raised as to the trial of the appellant being unfair by reason of the fact that he was unable, through no fault of his own, to afford legal representation: cf Dietrich v The Queen (1992) 177 CLR 292 (‘Dietrich’). However, the fact that the offender was facing a serious criminal charge and was not legally represented was a matter which placed him in a very difficult position because “[t]he substantive criminal law and the rules of procedure and evidence governing the conduct of a criminal trial are, from the viewpoint of an ordinary accused, complicated and obscure”: Dietrich at 334 per Deane J.
The Crown called four witnesses:
(a)the complainant, who was the ex-partner of the appellant (who I will refer to as SM);
(b)two security guards, Mr Saeed Hakim and Mr Shane Sellen; and
(c)the informant, Constable Aaron Truman.
The prosecution did not call two police witnesses whose statements had been served and did not seek to tender their statements. The appellant had not been advised that those witnesses were required to be called.
SM
SM gave evidence that she had been in a relationship with the appellant since 2012. She said that on 4 June 2016 she and the appellant got a room at “the Medina” in Braddon and planned to go out. (The reference to “the Medina” is a reference to the Medina Serviced Apartments complex in Braddon. Although witnesses referred to the complex by various names, in these reasons it will be referred to simply as “the hotel”.) She and the appellant drank at the room and got ready and then went out to Civic where they went to the Academy Nightclub. They drank and danced and saw people they knew. She was intoxicated. She had an argument with the appellant at the nightclub and this resulted in the appellant wishing to leave and go back to the hotel. When they got back to the hotel “I just remember arguing with David and then I remember him picking me up and like thrashing me on the concrete.” This occurred in the basement car park. Her head hit the ground. She described the manner in which she was thrown to the ground although the effect of her demonstration was not clearly described on the transcript. She felt her head and saw blood on her hands and noticed people from security at the hotel were there. She was uncertain what happened after that and whether she and the appellant went up in the lift. She remembered the appellant getting her car keys and getting in her car. She got in with him and drove to some houses near the police station in Woden where the appellant got out and ran off. She went to the police station and then left because she panicked. Ultimately she drove to the Calvary Hospital. She had stitches put on the back of her head and police attended but she did not wish to speak to them. She subsequently made a statement to police. After she left hospital she went back to the hotel and slept. She described her relationship with the appellant as being “toxic and unhealthy at times”. She was asked what she meant by “toxic” and she said: “Like the fighting, the violence. There is a lot that is toxic.” She said that fighting occurred “once a week”. She described her height as “[f]ive [foot] four [inches] maybe” and her weight as “55 kilos”.
Because of the restrictions on cross examination in s 38D of the Evidence (Miscellanous Provisions) Act 1991 (ACT) the appellant’s cross examination was required to be conducted by the registrar of the court.
SM was reminded that she had spoken to the informant on 18 August. She was asked whether she had a clear recollection of what happened on 5 June and it was suggested to her that the informant told her what he thought had happened and her statement was based upon the story that he told her. She denied that was the case.
She said the statement was based upon her recollection. She was asked why she drove to the Calvary Hospital when Canberra Hospital was merely metres away from where the appellant left her. She said that she was not intending to go to hospital at the start but ended up going there.
She was asked when she signed her statement. She said that the statement was made in August and signed at a police station. She was asked whether she had ever lied under oath during any court proceedings and answered “Yes”. There was no follow up question about the answer.
The following question and answer was given:
Have you ever caused yourself self-inflicted injuries that has led to [the appellant] being arrested and charged for an assault against you?---He - yes, I have hurt myself – um - but my understanding is that he was arrested for assaulting me.
Once again, this answer was not followed up.
She was asked whether she had ever given written consent to the Australian Federal Police to obtain her emergency department medical records and said that she had not.
She was asked whether she wanted to make any corrections to her statement or to what she had said under oath today and she said that she did not.
At the conclusion of these questions the registrar checked whether the appellant had any further questions arising out of the answers and he said that he did not. In re-examination SM was asked whether the evidence she had given in the day’s proceedings was “true and correct to the best of [her] knowledge” and she said “Yes”.
Saeed Hakim
The prosecution then called Saeed Hakim, a security guard. He used to work in security at the hotel.
He gave evidence that he started his shift at 11 pm and was working in the reception when he was watching the camera at about 1 or 2 am. He said “I just saw one gentleman just pulled up there with this lady. Saw they were trying to get into the lift. And they were just talking or something, and I just saw this gentleman drop that lady.” Later he said “So like, he dropped her and then quickly I went there and saw her bleeding … called up my supervisor, which was Shane … then Shane quickly came”. He said they came back to the reception level. He said he first saw them on the camera and they were fighting and then he ran downstairs. When he first saw them he was watching them on a computer screen and he zoomed in. He was asked what made it clear to him that there was a fight happening and he said that “the guy just dropped the lady, so then I thought there would be a fight, so I quickly went there, like, she - like, he was, I think, pulling her to get in the lift”. He described that she was bleeding from a point which he indicated. He subsequently said that it was the side of her head. He was asked where the appellant grabbed her and dropped her and he said that he couldn’t see it properly and that he “just saw she was getting dropped, like, she was lifted by him and then got dropped”.
When he reached them they were next to the lift. The appellant said he didn’t need any help. He said that the girl was silent like she couldn’t talk properly and she was scared or frightened. She was lying down but then stood up and got in the lift. He made it clear that his supervisor joined them at the reception level. The appellant said “don’t worry we’ll go to the hospital”. From the reception level they went up to where the appellant was staying and he collected something and came back returned down to the ground level. They went down the stairs into the basement and left from there. The appellant said that he was taking the woman to the hospital. Mr Hakim and his supervisor called the police after that. The police asked for the CCTV footage but Mr Hakim didn’t know how to get it. He said his supervisor provided them with details of room numbers and contact telephone numbers and car registrations.
The cross-examination commenced with a question premised on the basis that the prosecution was “coaching you through your statement before these proceedings” which was objected to and disallowed. The witness agreed that he did review his statement with the lawyers of the Director of Public Prosecutions prior to the proceedings. He denied that they had coached him as to how to respond to questions. He was asked whether anyone had advised him what penalty for perjury was. He did not understand what “perjury” was.
He was asked what a “torso” is. He said that he did not know what that word meant. The transcript records:
MR LAIPATO: Mr Hakim, can you tell me what a torso is?---What was that?
Can you please tell me what a torso is?---Torso?
A torso?---What is it? I don’t know.
Do you know what a torso is?---No.
HER HONOUR: What the word “torso” means.
MR LAIPATO: Can you describe what a torso is?---I - I don’t know what it is. Can I ---
It’s stated as what you described in one of your statements.
HER HONOUR: Look, I’m not sure what you’re getting at. But he hasn’t used that word today in his evidence.
MR LAIPATO: Yes. But he used it before, Your Honour.
HER HONOUR: Well, I haven’t heard it. And that’s what’s important.
The appellant then moved on, asking the witness to describe what he had seen and heard again. The magistrate said that he didn’t have to repeat his evidence but suggested that the appellant might ask particular questions. The appellant identified to the magistrate that the witness had given two different scenarios one of the complainant being dragged into the lift the other of her being amenable. He was told by the magistrate to ask a specific question. However the appellant moved on, asking the witness whether he had ever made any false statements, to which the witness said “No”. He also denied that the police had ever encouraged or requested that he say anything that he did not actually witness saw that he knew to be false.
The appellant asked whether Constable Truman had stamped Mr Hakim’s “security log” or “incident log” and the witness said he had done so on that night. The witness agreed that the police had requested that he provide them with a copy of the CCTV but that he did not have the authorisation and suggested that the police come and speak to the manager the next day. He said he did not know whether the footage had been provided at any time.
It was put to him that he was on patrol at the time and arrived in the basement without actually witnessing any incident. He denied that. He denied making any false or misleading statements to police. He asserted that he had been telling the truth. He was asked about his written statement to police and whether he was certain that, as set out in that statement, he viewed the appellant and the complainant enter the basement car park in a car. He said he was. There then appears the following in the transcript:
MR LAIPATO: … Your security log call to the police, report to the hotel manager, initial statement to Constable Truman, and written statement made on 11 August are all very different. Which one is true?
HER HONOUR: Well, Mr Laipato, you can’t ask that question, because I don’t have any of those things. And that’s assuming that some are not true.
MR LAIPATO: Look, we’re still not using the evidence that I’ve been providing - the brief of evidence that is used ---
HER HONOUR: Mr Laipato ---
MR LAIPATO: Yes.
HER HONOUR: ---the evidence that I have before me is what Mr Hakim has said in court today. All right? So you can ask him questions about what he’s said in court today. But---
MR LAIPATO: I want to ask him which one was true. I’ll just say, they all can’t be true.
HER HONOUR: Well, again, I don’t have those other documents in front of me. And I’m not going to get them in front of me. So I don’t see that there’s much point in asking any questions about them. The question you need to ask in this is about what he said today. If you are insisting - if you say that what he said happened didn’t happen, then put the alternative scenario to him.
The underlined portion is that which was emphasised in the appellant’s submissions.
Mr Laipato then moved on. He asked whether the witness had made different statements to police. The witness said that he had only made one. The appellant then said that he had been provided with information from the hotel manager there was no CCTV footage of the basement and asked why he made reference to this CCTV in the witness’s statements if it doesn’t exist. The question was objected to on the basis that it was misleading. The appellant wished to read something out but was not permitted to. Counsel for the prosecution said that something had been produced to the effect that the CCTV was not recorded or that it was not able to be produced as being recorded CCTV of the footage and that was a different thing to say that there was no camera with a direct link to the monitor. He suggested that needed to be made clear the witness. The transcript then continued:
MR LAIPATO: If I’m not allowed to produce the subpoenaed evidence that I’ve subpoenaed ---
HER HONOUR: I don’t know. I don’t know what you’ve subpoenaed. And I don’t know whether you’re entitled to produce it or not. It’s not my job to give you legal advice, I’m sorry.
MR SWAN: If I can just say at this stage, none of the witnesses who would be relevant to or that Mr Laipato’s referred to, as I understand it, or in attendance today would be hearsay on its face.
MR LAIPATO: What’s that relating to? Police officers? (To witness) Is that true, the hotel manager stated that there is no CCTV footage for the basement? Is that correct?
HER HONOUR: Well ---
MR SWAN: Your Honour, he can’t give evidence of the hotel manager. He’s given his evidence very clearly that he spoke with the police and wasn’t able himself to produce any CCTV footage.
The appellant then moved on asking the witness how long he had been a security guard and whether he had been a witness in court before. There was no re-examination.
Shane Sellen
The prosecution then called Mr Shane Sellen. Prior to the commencement of his evidence following exchange took place:
MR LAIPATO: Your Honour, before we do, so I’m not allowed to refer to any of the statements - any of the evidence that the witnesses - this case has? I’m not allowed to refer to any of the evidence?
HER HONOUR: No, I’m not saying you can’t refer to it, as I don’t know what other evidence is or how it’s relevant. But what - - -
MR LAIPATO: do you have - - -
HER HONOUR: - - - I am saying is - - -
MR LAIPATO: do you have all the evidence as well? That you have - - -
HER HONOUR: No. I don’t have anything. That’s what the hearing is about is for me to get the evidence. So - - -
MR LAIPATO: Am I able to - - -
HER HONOUR: - - - the witness come - you need to listen to what I’m saying and then you can tell me what you want to say. The witnesses come, give their evidence in the witness box. Occasionally documents are tendered. That’s all evidence. What the witnesses say is all evidence.
MR LAIPATO: Yes.
HER HONOUR: Any answers to any questions you ask is evidence. I am not given a copy of their police statement. I am not - that is just an indication of the sort of evidence that they might give, alright?
MR LAIPATO: All right.
HER HONOUR: And that’s the important thing, so far as me deciding whether or not you’re guilty or innocent, is what is said in court.
MR LAIPATO: Okay.
HER HONOUR: It may be relevant to refer to something else in forming a question to ask witness. I can’t tell you that or not. But it’s not very helpful to say all the time - well, I don’t think it’s very helpful to say - - -
MR LAIPATO: Your Honour, I apologise.
HER HONOUR: - - - “You said this in a police statement.” It might be relevant to refer to that, but it might not be. So - - -
MR LAIPATO: Look, I lost a lot of - because I did fail to do the - yes, I lost the (indistinct)
HER HONOUR: Sorry?
MR LAIPATO: So I’m not allowed to tender to you some - any documents relating to that last witness? Is it too late for that?
Her Honour: To tender - - -
MR LAIPATO: Yes.
HER HONOUR: - - - the documents?
MR LAIPATO: Yes, like the log, the - what I was getting at when the questions I asked so that you see - because like, all this evidence is the evidence that’s holding me in jail.
HER HONOUR: Well, you know, we do (indistinct) let’s just find out - again, I can’t say whether or not - but perhaps it might be useful if in a break you show it to Mr Swan and ask him if he would object to it being tendered or not. That might be one step first. But there needs to be a purpose to tender it and it needs to be relevant, it usually needs to be tendered through the right person.
(Underlining as in the appellant’s submissions.)
Mr Sellen commenced his evidence. He said that he was a security guard at the hotel. He received a phone call from Mr Hakim about an incident in the car park. Mr Hakim told him that there was a fight between a man and a woman in the basement. Mr Hakim told him that he witnessed the man “pick her up and drop her on her head”. He went to the security control room and saw where they were. He saw that they were standing waiting for the elevator. He went to the elevator and Mr Hakim, the appellant and his partner were in the elevator. He described the man’s demeanour as “Angry”. The appellant was reaching out to the guard and Mr Sellen said “Don’t touch the guard”. Mr Sellen told him to “let him go because that’s assault” and he immediately let go. He got into the elevator and went up to level four. He saw a trickle of blood coming down the left-hand side of the woman’s face. She had her face down and didn’t acknowledge anything. The man went to the apartment and about 30 seconds later came back and they all got back into the elevator. They went down to the basement and Mr Sellen said that they were going to call an ambulance for the injured lady. The appellant “grabbed her by the arm and dragged her to the car and put her in the passenger seat, trying to speed off”. He had to wait for the security roller door to open. Mr Sellen observed the car speed off into an alleyway that led to Northbourne Avenue.
In cross-examination he was asked whether he reviewed his statement with the DPP prior to the proceedings and said that he did. He was asked whether he was coached as to how to respond to questions and he said “No”. He was asked whether he had been advised what the penalty was for perjury and said “Absolutely”. He was asked who he saw on the CCTV standing outside the lift and he said “Saeed [Hakim], yourself, and your partner”. The transcript then continues:
[MR LAIPATO:] … Is this a copy of your - is this your statement to police? May I tender it, Your Honour?
HER HONOUR: Well, you can’t show it to ---
MR LAIPATO: May I? Sorry, I don’t know what the process of it.
HER HONOUR: You can’t show it to the witness.
MR LAIPATO: Sorry.
HER HONOUR: No, you can’t show it to the witness.
MR SWAN: Perhaps the most appropriate thing, if Mr Laipato’s got a particular part of the statement that he wishes to ---
MR LAIPATO: So only particulars I’m allowed to - because evidence is used against me. I just want to ---
HER HONOUR: Mr Laipato, you need to focus and try and think of the questions that you want to ask. You can’t just show him the statement that he made. It’s not relevant.
Mr LAIPATO: Have you made any false or misleading statements to police in relation to this matter?---No.
He was asked whether, when he explained to a police officer what he observed, he observed that officer taking notes and he said “Yes”. He was asked whether he had been encouraged to make any changes to his statement or told what to say and he said “No”.
The transcript then continues:
MR LAIPATO: Is there any statements you made which you know to be false (indistinct) ---
HER HONOUR: Sorry, but - is that a question or was ---
MR LAIPATO: No, I pull back on it. May I turn to this one? In your statement ---
HER HONOUR: No. You can’t. You can ask him a question.
MR LAIPATO: In your statement, you said that Constable Katten was to return to get the video footage, the CCTV footage?---I never said that.
He was then asked when was the last time that he saw the appellant’s car drive out of the car park. He said it was the back-end turning at the top of the driveway.
There was no re-examination.
Aaron Truman
The next witness was Constable Aaron Truman. He was the informant in the matter. He received a call from staff at the hotel early on Sunday morning. Police attended and talked to Mr Hakim and Mr Sellen. He recounted what he was told by Mr Hakim. Checks of the information provided to police by Mr Hakim showed that the vehicle was registered to SM and the police then believed that the male was Mr Laipato. After attending the hotel police were advised that SM had presented at the emergency department of Calvary Hospital. Constable Truman attended the hospital and other police were already there. Constable Truman and another officer had a conversation with SM. She appeared to be affected by alcohol, was crying and had a blood stain on the right hand side of her head. She was uncooperative with police. She declined to take part in an evidence‑in‑chief recording. Police left the hospital. Constable Truman said police obtained a warrant for the hospital records which were tendered and became Exhibit 3.
He gave evidence that he phoned SM twice and on those occasions she declined to provide a statement. The third time she said that she had changed her mind and wished to provide a statement. Because she was residing in Victoria he arranged for her to provide a statement over the phone which he transcribed and emailed to her. She attended a police station in Victoria and the statement was signed and witnessed by a member of Victoria Police. He obtained a certificate from the Road Transport Authority regarding the appellant’s driver licence which became Exhibit 4.
In cross-examination he was asked whether he had reviewed his statement with the DPP and whether he was coached in any way how to respond to questions. He said he had reviewed his statement but he was not coached. He said that he had been advised what the penalty for perjury was. He was then cross-examined on his police statement. He was asked whether paragraph 7 of the statement accurately reflected what Mr Hakim told him when he arrived at Medina Apartments. He said that it was. The transcript continues:
MR LAIPATO: … Why then have you accepted Mr Hakim’s further version of events on returning - over the ---
HER HONOUR: I don’t know that that is an accurate - is a helpful question.
MR LAIPATO: Yeah, I know. Only because I can’t refer to them, because - how do I refer to ---
HER HONOUR: I can’t tell you how. I can tell you how you can’t do it.
MR LAIPATO: Yeah. Which is unfortunate.
The appellant asked him whether he had questioned Mr Hakim why there was such a significant difference in their stories. This was objected to because no difference was identified to the witness. He was asked about the large gap between 5 June 2016 and 19 November 2016, the date on which he made his statement. Her Honour asked him whether he took notes of the conversation that he had with Mr Hakim in his notebook and he said that he did and that he referred to it when making his statement.
MR LAIPATO: … Constable Truman, the reason why I ask you this because in your initial statement there are differences between the story that you’ve selected to put into your ---
HER HONOUR: Well ---
MR LAIPATO: --- statement of the facts and the ---
HER HONOUR: Mr Laipato, you can’t ---
MR LAIPATO: Because I’m going to get to it, sorry, Your Honour. Like, I - I don’t ‑‑‑
HER HONOUR: Well, you have to get to it without being, first of all, insulting. I mean, it’s - you can if you want to put to somebody that they’re lying. There needs to be a basis for doing that. But you can do that ---
MR LAIPATO: I’m going to try and come back to it, Miss. I’ll try and come back to it. At the moment, I don’t think I can change it. …
He then asked whether when the police officers attempted to interview SM at Calvary Hospital after she had been seen by a doctor. The witness said that he did not know. He was asked whether the standard AFP practice was to interview people in emergency departments before they are assessed by a doctor and he said “Yes”. He was asked whether it was normal for male officers to interview female victims when there were female officers available and he said that it was. He was asked whether he stamped Mr Hakim’s security log before he left to go to Calvary Hospital or whether he stamped it when he returned at 3:30 am. Constable Truman said that he didn’t recall stamping any security log. He was then shown a document. (The document was not identified for the purposes of the appeal.) He said that what appeared at the top of the document was not his stamp but his business card which had been photocopied on to the report.
It was suggested that when he returned with another officer to be the hotel at 3:30 am that was when he started making entries in his notebook. He said that he started making entries when he arrived the first time. Mr Laipato then asked the magistrate:
How am I to ask him the question the differences between the security log and the statement of facts in his notebook?
The magistrate replied:
I don’t know anything about the matter except what I’m hearing. So I don’t know what questions you want to ask.
Mr Laipato then moved on and asked that the officer whether he coached or led Mr Hakim in a manner which would have caused him to change his version of events and the officer said “No”. It was suggested to Constable Truman that “for unknown reasons of your own, it has been your intent to target me and manufacture evidence to have me put away”. The officer said that was incorrect. The transcript continued:
MR LAIPATO: … If you haven’t, then why are there so many discrepancies in the evidence you provided to prosecution?
HER HONOUR: Well, with the greatest of respect, you need to point to discrepancies in the evidence. It’s not - you can’t just say there are discrepancies in the evidence. So you can’t ‑‑‑
Mr LAIPATO: Your Honour, that’s one thing I‘m - I’m struggling to understand.
…
HER HONOUR: … What I was saying is that if there is a particular discrepancy you need to point that out and ask a question about that. But you can’t just bundle up what you say are discrepancies in evidence when they‘re not actually even in evidence.
MR LAIPATO: Yes. Thank you.
HER HONOUR: I don’t have any of those documents that you’re referring to.
MR LAIPATO: Like, shouldn’t you? Like, is ---
HER HONOUR: I don’t know. Only if it’s relevant.
The appellant moved on and asked why, when the officer took a phone statement from SM on 18 August, it wasn’t recorded. Constable Truman explained that it is not practice to make an audio recording of the statements that police take. The officer accepted that it was an error on his behalf to have dated the statement that he prepared as a result of the telephone conversation 17 August when the conversation occurred on 18 August. He was asked whether this was done “to match the dates when you got the search warrant”. There was some discussion about the meaning of this question which was not answered. The appellant moved on and asked why was SM’s statement taken over the phone rather than by another officer in person. Constable Truman explained that he had knowledge of the incident and that he attempted to take witness statements for his own matters when that was practicable. He was then asked about Mr Sellen’s statement being taken by a third officer and he explained that both he and the other officer involved in the case were on their rostered days off on the day when Mr Sellen was available to give a statement.
He denied coaching or leading SM when he took her statement. He said it was what she told him over the phone. He denied reading the security log or seeing it at any time prior to being shown it in the witness box. It was put to him that he was aware of it and he denied that.
He was asked whether he had made any false or misleading statements in his affidavit to obtain a search warrant for SM’s medical records. This question was objected to. The appellant contended that the question was relevant because it went to the informant’s credibility. The question was disallowed because her Honour found that it was “not relevant”.
He next asked the witness how he could have obtained SM’s medical records if the date of birth on the search warrant did not match her date of birth. This was objected to on the grounds of relevance having regard to the fact that all of the medical records had already been tendered. Her Honour explained to the appellant that hospitals would not just hand over medical records but would do so in response to a search warrant. The appellant moved on asking whether the officer had in fact obtained SM’s medical records on 26 July a month before the search warrant was executed on 19 August 2016. Constable Truman said that he obtained them on 19 August as was suggested in his notebook. The appellant put to him that he obtained the medical records on 26 July without a search warrant. The witness said that was incorrect. It was then asked why the documents produced by the hospital had a stamp on them which indicated that they had been certified as true copies on 26 July. There was then an objection on the grounds of relevance. Her Honour said “I think you’re wasting time”. Her Honour then asked the witness whether the hospital knew that the officer was going to seek medical records in advance of the date when the search warrant was formally executed and the officer said yes “[i]t’s similar to a bank warrant.”
The appellant then moved on. He asked Constable Truman why he did not obtain the CCTV footage from the hotel which would have confirmed the prosecution’s version of events. The constable said that after SM decided to provide a statement he returned to the hotel to speak to the manager who informed him that the CCTV for the incident had been overwritten. The appellant put to the officer that he didn’t obtain CCTV footage because it would show that the appellant was not guilty of what he was saying. This question was disallowed because the officer had not been asked whether he had seen the CCTV and hence he could not know whether it would show the appellant was not guilty. There was then some further discussion and her Honour suggested that the appellant asked whether the officer had seen the CCTV footage. The appellant did so and the officer said that he did not see any CCTV footage. The appellant then wished to “present” a letter from the manager of the hotel. Counsel for the prosecution objected to that material going in on the basis that any correspondence that had been subpoenaed was hearsay and hence inadmissible. Her Honour explained that the material was not before her even though other magistrates may have seen it. There was then some discussion between her Honour and the appellant which appears to indicate that the appellant was upset about his inability to put some material before the court and her Honour said:
You still have to - you can only proceed - whether or not you’re a lawyer or not, you can only proceed the way that legally you’re allowed to. And if evidence is not - unless evidence is admissible under the Evidence Act, I can’t receive it … I don’t care whether you’ve subpoenaed it or not.
The appellant then asked the witness why he had taken statements from many people but never made any attempt to interview him to get his version of events. The witness said that he was not able to locate him for a number of months and then afterwards “I didn’t feel it was relevant to offer you a record of interview”. He was asked whether he believed he had acted impartially in this case and he said that he did. He was asked whether he had “recklessly or deliberately made any false statements in the evidence before the court or under oath today” and the officer said “No”. The appellant then sought to cross-examine the witness about something contained in the statement of facts. This appears to have been disallowed with her Honour saying: “Cross-examine him about the evidence that he has given today by all means.” The appellant then indicated that he had no further questions. There was no re-examination.
Balance of the hearing and judgment
There was then some discussion about whether or not the appellant wished to give evidence. He indicated that he thought a Constable Katten would have given evidence. Her Honour indicated that the only evidence that she had was the evidence that she had heard today. The appellant indicated that he did not wish to give evidence and simply wished to make “my closing statement”. Counsel for the prosecution then made his final submissions. The appellant then said that he did not wish to make a closing statement. Her Honour suggested that he think about that over lunch. The appellant said that he was not going to say anything. Her Honour said that it was a matter for him.
After the luncheon adjournment her Honour dealt with a separate case against the appellant in which he chose to give evidence and was cross-examined. After her Honour had given her decision and reasons in that matter, she returned to the charges of unlicensed driving and assault occasioning actual bodily harm. In her Honour’s reasons, she referred to the evidence of SM. She also referred to the evidence of Mr Hakim, noting that he didn’t know SM or the appellant and hence there was “absolutely no reason why he would want to lie about saying that he saw something that he didn’t see”. She also referred to the “other security fellow’s evidence” which supported that of Mr Hakim. In relation to the unlicensed driving charge she had Ms Larkin’s evidence that the appellant drove her to Woden and then got out of the car and the evidence of both security guards that the appellant put SM into the passenger seat and then drove from the driveway straight into a laneway that led to Northbourne Avenue. She referred to the certificate which showed that he was unlicensed on that particular day. She was satisfied that the appellant was guilty of both the offence of driving unlicensed and the assault occasioning actual bodily harm.
Submissions
The appellant referred to that portion of transcript set out at [24], [27], [31], [33], [35] above, emphasising the underlined portions. He submitted that these portions of the transcript demonstrate that the magistrate denied the appellant’s entitlement to cross-examine a witness on issues of credit under s 103 of the Evidence Act 2011 (ACT) and to cross‑examine about a prior inconsistent statement under s 43 of that Act. He submitted that the right to cross-examine witnesses was of central significance to the common law adversarial system of trial: Lee v The Queen [1998] HCA 60; 195 CLR 594 at [32] and basic to any civilised notion of a fair trial: R v Hughes [1986] 2 NZLR 129 at 149. He referred to the judgment of Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6] which provided:
There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.
He submitted that the appropriate remedy was to set aside the orders and remit the matter to the Magistrates Court for a rehearing: Parkinson v Alexander (No 2) [2017] ACTSC 290 at [19], [24].
The submissions of the respondent emphasised the limited role of a judge in assisting an unrepresented accused. It pointed to the remarks of Deane J in Dietrich at 334-35:
While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented.
(Footnotes omitted)
The respondent submitted that the passages referred to by the appellant involved are “cherry-picking” of the transcript.
In relation to the “torso” issue the respondent pointed to the fact that the appellant had continued to cross examine Mr Hakim about a number of issues and that the magistrate had given to the appellant general suggestions as to how he might pursue his cross examination.
In relation to the second passage quoted above where the appellant wished to suggest inconsistencies between Mr Hakim’s statements, the respondent submitted that Mr Hakim had rejected the proposition put to him that he had been on patrol at the time and could not have seen the alleged incident on the CCTV monitor. The respondent then submitted that the magistrate was perfectly entitled to disallow the wrapped up question set out at [27] above. Further, the respondent points to the suggestion which does not appear to have been pursued that there be a discussion between counsel for the prosecution and the appellant as to whether or not the security log would, if tendered, be objected to. The respondent noted that, notwithstanding his decision not to give evidence in the trial, the appellant understood his entitlements sufficiently to make a decision to give evidence in the second trial that occurred later that day.
The respondent submitted that the appellant had demonstrated a capacity to ask well focused questions and that the magistrate was not responsible for his lack of use of that capacity to his best advantage or to his lack of preparation in, for example, ensuring the attendance of the witnesses he considered relevant to his case. It also submitted that the transcript demonstrated that the appellant was often so focused on his pre-planned approach to the hearing that he did not pay due heed to the guidance provided to him by the magistrate.
Consideration and conclusion
The appellant was entitled to cross-examine a witness about a prior inconsistent statement of the witness: Evidence Act s 43(1). He was, however, obliged, if the witness did not admit that he or she had made a prior inconsistent statement, to inform the witness of enough of the circumstances of the making of a statement to enable the witness to identify the statement and draw the attention of the witness to so much of the statement as was inconsistent with the witness’s evidence: s 43(2).
The appellant clearly had an entitlement to cross-examine a witness on matters going only to credibility if that evidence “could substantially affect the assessment of the witness’s credibility”: Evidence Act s 103.
The portion of transcript quoted at [24] above involves, in substance, her Honour disallowing a question about the fact that Mr Hakim had used the word “torso” in one of his statements but did not know what that word meant. The witness statement was not put into evidence before me. Therefore it is not possible to determine the context in which it was used in the witness statement. It is possible that it might have been used in relation to a description of the mechanics by which the appellant lifted SM before dropping her to the ground. The effect of what her Honour said was to prevent the appellant from asking questions about the use in a witness statement, which I assume was signed by the witness, of a word the meaning of which he did not know. On the material before me it is not possible to say that the use of the term “torso” amounted to a prior inconsistent statement by the witness for the purposes of s 43. It was however. a matter which would go to the credit of the witness. On this appeal the witness’s statement was not put into evidence and no explanation was given as to the circumstances in which the word “torso” was used by the witness. Further, although I can assume that it would have been suggested to the witness that he had signed a witness statement which was written by police without understanding its contents, because the manner in which the term “torso” was used in the witness statement was not before me it is not possible (without impermissible speculation) to say that the evidence “could substantially affect the assessment of the witness’s credibility”. Therefore, to the extent to which her Honour suggested to the appellant that he was not entitled to ask questions about material other than oral evidence given to her Honour, that was an error, however as the appeal was run it is not possible to say that the disallowance of the question was wrong.
In relation to the passage at [27] quoted above the appellant focused on the statement by her Honour that “the question you need to ask in this is about what he said today” because it indicated that questions were not permitted in relation to prior statements made by the witness. Once again, the appellant is correct to say that such an approach would be inconsistent with the entitlement under s 43 to cross‑examine upon prior inconsistent statements. Further, it would be inconsistent with the entitlement to cross‑examine on matters which could substantially affect the assessment of the credibility of a witness. However, it is clear the actual question asked was objectionable in that any difference between the “security log call to the police”, the “report to the hotel manager”, “initial statement to Constable Truman” and the “written statement made on 11 August” had not been identified to the witness. The question was, therefore, obviously improper. So far as the more general complaint is concerned, namely, that the approach of her Honour was inconsistent with the entitlement under the Evidence Act referred to above, the difficulty for the appellant is that even on this appeal the various documents the subject of the question have not been put into evidence and the alleged differences between those documents have not been identified. Thus it is not possible to tell whether there was in fact any difference between the prior statements of the witness made on those documents. Further, no attempt was made to identify any difference between the content of any of those documents and the evidence that had been given by the witness in court under oath. Thus, while the appellant has demonstrated statements consistent with a general error of approach, he has not demonstrated that the actual ruling was incorrect or that he was indirectly prevented from pursuing a line of cross‑examination that was of any substance.
The passage quoted at [31] did not involve a ruling on any particular matter of evidence. Rather it was a discussion that occurred prior to Mr Sellen being called. The portions highlighted by the appellant involved her Honour telling the appellant that what was important was what was said in court and that she was not given a copy of the police statements and that she didn’t think it was very helpful to say “you said this at a police statement”. She did, however, recognise that it might or might not be relevant to refer to what was said in the police statement. Her Honour did not articulate that there would be an entitlement to cross‑examine upon an inconsistent statement or to cross‑examine as to credibility if the threshold that the evidence “could substantially affect the assessment of the witness’s credibility ” was met.
The passage at [33] occurred during the cross‑examination of Mr Sellen. It appears that the appellant wished to ask Mr Sellen something about the content of his statement to police. Her Honour appeared to rule that the document could not be shown to the witness. The prosecutor attempted to suggest that if there was a particular portion of the statement which was of significance than a particular approach could be adopted but he was cut off. Her Honour said: “You can’t just show him the statement that he made. It’s not relevant”. The question that was asked subsequently is consistent with Mr Laipato seeking to ask the witness about something which might be characterised as a false or misleading statement. Shortly after there was the interaction referred to at [35] above. The passage emphasised by the appellant is that where her Honour refused a request by the appellant and said: “No. You can’t. You can ask him a question.” It is significant that he then went on to ask a question about the content of the witness statement. These two passages are, reasonably characterised by the appellant as involving her Honour refusing permission to cross‑examine on the contents of a statement made to police. On the other hand the fact that her Honour did permit a question about what had been said in the witness statement is also consistent with a desire to permit previous statements made by the witness to be shown to the witness when the preconditions for cross‑examination based on the document had been established. On the appeal not only were the relevant documents not put into evidence in order to demonstrate the existence of an inconsistency or other issue but there was no explanation as to what was sought to be cross‑examined upon and hence no basis to determine whether or not any cross‑examination based upon the previous statement would have been admissible.
The proceedings were adversarial. By reason of the appellant’s choice to be without legal representation, he faced the “complicated and obscure” substantive criminal law and rules of procedure and evidence: Dietrich at 334. In relation to the manner in which he cross‑examined Crown witnesses, this had the potential to be a very difficult process for him to conduct effectively. The interventions by her Honour were:
(a)to ensure that he recognised that police statements were not before the court and hence to encourage him to focus on the evidence that was before the court, namely, the oral evidence given before her Honour; and
(b)to require him to establish some legitimate purpose before showing a witness the witness’s previous statement to police.
On the other hand, the statements made by her Honour were not explained as being limited in that way and where there was an identifiable ruling the reasons given were not structured in a way so as to permit the appellant to understand the defects of his question and how he might avoid them. Notwithstanding that on some occasions her Honour did permit questions about the contents of statements made to police and did indicate that there may be circumstances in which the previous statements were relevant and could be put into evidence, taken as a whole, the rulings and other interventions by her Honour might reasonably be interpreted by a self-represented litigant as involving a prohibition on cross-examination by reference to prior statements to police. It is notable that each of the passages to which the appellant drew particular attention involved interventions by her Honour where there had been no objection by counsel for the prosecution.
As I have pointed out above, the relevant witness statements upon which the appellant may have wished to cross‑examine Mr Hakim, Mr Sellen and Constable Truman were not put into evidence on the appeal. Nor did the appellant identify what the possible subject matter of the cross‑examination might be. As a consequence, even if I was to place weight on the matters identified in the preceding paragraph, it is not possible to say that the questions that might have been asked would have been admissible by reason of there being a prior inconsistent statement or because they gave rise to a matter which could substantially affect the assessment of the credibility of the witness.
While the manner in which her Honour intervened or ruled can be the subject of criticism it is not a case which falls into that limited category of cases identified by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6] that involves such a departure from the requirements of a fair trial according to law that an appellate court will identify what occurred as a miscarriage of justice without undertaking an assessment of the strength of the prosecution case. Rather, it appears to be one involving erroneous advice or rulings by her Honour the significance of which for the substance of the case against the appellant has not been demonstrated on this appeal.
The case was one in which the complainant gave clear evidence about the actions of the appellant. The cross‑examination was not such as to cast any doubt upon her evidence. The only possible question which might have given rise to a doubt was whether she had ever lied under oath during any court proceedings to which she answered “Yes”. However this answer, while favourable to the appellant, was not pursued, was undermined by what was said in re-examination and no submission was made about it at the conclusion of the case. The complainant’s evidence was corroborated by both Mr Hakim and Mr Sellen. Each gave a version of events consistent with that of the complainant. There was no suggestion below or on appeal as to any motivation that either of these men may have had to be untruthful or any reason why the evidence was not reliable. There was no possible alternative explanation given for the injuries to the complainant that were observed by these men. There was no alternative version of events suggested to any witness that was consistent with the innocence of the appellant and no submissions made by the appellant to her Honour as to findings of fact inconsistent with the Crown case.
Counsel for the appellant accepted that the terms of s 218 of the Magistrates Court Act 1930 (ACT) incorporated or accommodated the proviso that an appeal would not be allowed in a criminal matter where it was shown that no miscarriage of justice occurred. Counsel for the respondent agreed. In the light of the approach taken by the parties it is sufficient to say that this agreed approach is consistent with the reasoning of the High Court in Stokes v The Queen (1960) 105 CLR 279 at 284-285 and Conway v The Queen (2002) 209 CLR 203 at [4]–[39]. In the present case notwithstanding that her Honour may have wrongly ruled or provided incorrect guidance to the unrepresented accused, by reason of the evidence that was given and the absence of any evidence or other explanation as to the subject matter or content of any possible additional cross‑examination by the appellant, there was no miscarriage of justice and hence the appeal should be dismissed.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The convictions and sentences of 12 May 2017 on charges CC2016/10740, CC2017/2994 CC2017/2995 CC2017/3904 are confirmed.
I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 27 November 2017
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