Lawless v Turner

[2005] WASC 254

LAWLESS -v- TURNER [2005] WASC 254

Link to Appeal : [2007] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 254
Case No:	SJA:1082/2002	Heard:	2 SEPTEMBER 2005
Coram:	LE MIERE J	Delivered:	18/11/05
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	KEVIN GERARD LAWLESS MATTHEW DAVID TURNER
Catchwords:	Appeal Criminal law Credibility Findings of fact by Magistrate Power of appellate court to set aside findings Fresh evidence New evidence
Legislation:	Criminal Appeals Act 2004 (WA), s 9, s 40 Police Act 1892 (WA), s 80 Weapons Act 1999 (WA), s 8
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Beamish v The Queen [2005] WASCA 62 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Button v The Queen [2002] WASCA 35; 25 WAR 382 DeVries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson [1999] 21 WAR 226 Kiama Constructions Pty Ltd v Davey (1996) NSWLR 639 Lawless v The Queen (1979) 142 CLR 659 Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998 Ratten v The Queen (1974) 131 CLR 510 State Rail Authority of New South Wales v Herculine Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Canale v Bayens [2001] WASCA 383 CDJ v VAJ (No 1) (1998) 197 CLR 172 Domican v The Queen (1990) 173 CLR 555 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 Fox v Percy (2003) 214 CLR 118 Frichot v Zalmstra, unreported; SCt of WA; Library No 980291; 13 May 1998 Kelly v The Queen (2002) 129 A Crim R 363 Mallard v The Queen [2003] WASCA 296; 28 WAR 1 Mickelberg v The Queen [2004] WASCA 145; 29 WAR 13 Mifsud v Campbell (1991) 21 NSWLR 725 R v Easterday (2003) 143 A Crim R 154 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Underwood & Ors v Gayfer [1999] WASCA 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LAWLESS -v- TURNER [2005] WASC 254 CORAM : LE MIERE J HEARD : 2 SEPTEMBER 2005 DELIVERED : 18 NOVEMBER 2005 FILE NO/S : SJA 1082 of 2002 BETWEEN : KEVIN GERARD LAWLESS

Applicant

AND

MATTHEW DAVID TURNER
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR P NICHOLLS SM

File No : NO 1609 of 2001, NO 1610 of 2001

Result : Convicted

Catchwords:

Appeal - Criminal law - Credibility - Findings of fact by Magistrate - Power of appellate court to set aside findings - Fresh evidence - New evidence

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 40

Police Act 1892 (WA), s 80
Weapons Act 1999 (WA), s 8

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Mr J A Davies & Ms A N Blackburn
Respondent : Ms K E McDonald

Solicitors:

Applicant : D G Price & Co
Respondent : State Solicitor's Office

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Beamish v The Queen [2005] WASCA 62
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Button v The Queen [2002] WASCA 35; 25 WAR 382
DeVries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson [1999] WASCA 32; 21 WAR 226
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Lawless v The Queen (1979) 142 CLR 659
Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998
Ratten v The Queen (1974) 131 CLR 510


(Page 3)

State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

Case(s) also cited:

Canale v Bayens [2001] WASCA 383
CDJ v VAJ (No 1) (1998) 197 CLR 172
Domican v The Queen (1990) 173 CLR 555
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1
Fox v Percy (2003) 214 CLR 118
Frichot v Zalmstra, unreported; SCt of WA; Library No 980291; 13 May 1998
Kelly v The Queen (2002) 129 A Crim R 363
Mallard v The Queen [2003] WASCA 296; 28 WAR 1
Mickelberg v The Queen [2004] WASCA 145; 29 WAR 13
Mifsud v Campbell (1991) 21 NSWLR 725
R v Easterday (2003) 143 A Crim R 154
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Underwood & Ors v Gayfer [1999] WASCA 56


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1 LE MIERE J: On 6 June 2002 the appellant was convicted in the Court of Petty Sessions at Midland of possessing an iron bar with the intention of using it to cause fear, contrary to s 8(1)(b) of the Weapons Act 1999 (WA) and of damaging a door, contrary to s 80 of the Police Act 1892 (WA). The appellant appeals, by leave of a Judge of this Court, from the decision of the Magistrate to convict him of those offences.

Background Circumstances

2 The complainant lived at 210 Avon Terrace, York. The appellant was the licensee of, and resided at, the Imperial Hotel. The Imperial Hotel is located on Avon Terrace, about 1 kilometre from the complainant's residence.

3 The appellant became licensee of the Imperial Hotel in July 2000. The complainant approached him about holding a function at the hotel that would raise funds for the York Wine and Roses Festival Association of which the complainant was an office bearer. The function took place in September 2000. After the function there was a disagreement and confrontation between the complainant and Simone Cherie Bahemia and the appellant. The complainant and Ms Bahemia claimed that the Association was entitled to a commission for each ticket that had been sold. The appellant claimed that the Association was only entitled to a commission in respect of the tickets that had been sold by the Association.

4 There was a further incident involving the complainant and the appellant on 27 May 2001, that is in the week before the alleged offences. The appellant's wife took their dog to the park for a walk. The dog ran off and ended up at the complainant's property. According to the appellant, the complainant telephoned the Imperial Hotel and screamed at him to get his dog off her property but did not identify herself or her property. The appellant said that the complainant again telephoned shortly afterwards and spoke to someone at the hotel and again screamed to get the dog off her property but failed to identify herself or her property. After searching for the dog unsuccessfully the appellant made enquiries at the police station and then located his dog at the complainant's property. The appellant lifted up part of the fence for the dog to get out. The appellant claims that the dog's collar had been removed. It is common ground that as a result of the previous contacts between the appellant and the complainant there was bad blood between them.

5 The appellant was convicted of being in possession of the iron bar and damaging the door between midnight and 1 am on 3 June 2001. The Magistrate considered that the primary issue in the case was the

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identification of the offender who carried an iron bar and damaged the complainant's door.

Outline of Evidence for Prosecution

6 The complainant gave evidence to the following effect. On the afternoon of 2 June 2001 she was at home with her son, Dylan, who was then aged 16 years. The appellant's dog came onto her property. She tied the dog up and called the ranger. The ranger removed the dog from the property at about 3.30 pm to 4 pm that afternoon. At about 8pm or 8.30 pm the police came to her house looking for the appellant's dog. The complainant saw the appellant on four of five occasions later that evening. On some occasions he had just driven slowly past. On other occasions he got out of the car and walked up and down on the footpath.

7 At about 11.15 pm the appellant approached the complainant's house. The door was ajar. The complainant braced the door and the appellant was pushing on it. The complainant was pushed against the corner of the hallway. The appellant left. The complainant saw the appellant get back into his vehicle and drive off. She rang the police. That was about 11.20 pm. After the appellant had left, the complainant looked at the door. There were big scrape marks where a metal object had hit the door.

8 Some time later the appellant returned to the house. The complainant was in bed. She heard the car pull up. She went to the hallway. She could hear that the door was being attacked. Bits of wood flew off and the lock broke and the door flew open and she saw the appellant standing there. The appellant stopped. She saw him throw something in the back of his car and then he drove off. The complainant telephoned the police again. The object the appellant was carrying was a metal bar, probably 18 inches to two foot long. The complainant produced photographs which showed a split and a hole in the door next to the latch. The complainant produced her telephone records. She said that they showed that she rang the police at 11.22 pm on 2 June and 12.45 am, 12.56 am, 1.52 am, 1.57 am and 8.59 on 3 June 2001. The complainant said that the later phone calls were because the police had not turned up.

9 The complainant's son, Dylan, gave evidence to the following effect. Someone came to their door that night and his mother was talking to him. The person came back and was knocking on the door and whistling and walking past. Later, the door was being beaten on. His mother came into the room rubbing her head because she had to brace the door when it was beaten. On the second occasion the door actually gave way. He got up and stepped into the hallway. He stepped in just as the door gave way.

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His mother was behind the door. He saw the appellant stepping off the patio or the verandah. He recognised it was the appellant. He knew the appellant. He had worked with the appellant at his hotel as a waiter.

10 Ms Bahemia gave evidence for the prosecution. On the night of 2 June 2001 Ms Bahemia was at a restaurant on Avon Terrace. She left the restaurant around midnight. She saw the appellant entering his car outside the Imperial Hotel. The appellant drove his car in the direction of the complainant's house. When she turned off Avon Terrace the appellant was still driving along Avon Terrace.

11 On the night of 2 June 2001 Senior Constable Turner was off duty and was playing in a band at the Imperial Hotel. He gave evidence to the following effect. At about 12.50 am on 3 June he received information. As a result he spoke to the appellant in the back bar of the hotel. He informed the appellant that he had received a complaint that the appellant had been to the complainant's house and broken her front door. The appellant said that he had not been there and had not done so. At about 1.45 am that morning Senior Constable Turner attended at 210 Avon Terrace. He then conducted patrols of the York townsite in an attempt to locate the appellant's vehicle. He subsequently located the defendant's vehicle parked in Howick Street. Howick Street runs parallel to Avon Terrace and is about 100 or 150 metres from the Imperial Hotel. The appellant normally parks his vehicle out the front of the Imperial Hotel or if the car parks out the front are taken he parks it in the back gravel car park. Senior Constable Turner found out the following day or the day after that that the appellant had reported his vehicle stolen. The complainant's house is approximately 1 kilometre from the Imperial Hotel.

12 The appellant gave evidence to the following effect. At about 12.40 pm on 2 June the appellant learned that his dog was missing. He drove to the complainant's house and whistled for the dog. There was no response. He drove around York looking for the dog. He returned to the complainant's house at about 1 pm and again whistled for the dog. He got out of his car and walked past the front of the house. He drove back to the hotel. At about 1.45 pm he drove towards Northam and stopped outside the complainant's house. He went to the door and knocked on it. He got no response. He went back to the car and whistled for the dog. There was no response. He drove on to Northam. He returned to York at about 3.30 pm. He went to the York Police Station. He told them that the dog was missing and that he had a problem with the complainant and asked them to look into it. At about 4.00 pm the police officer returned and said

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that he had spoken to the complainant but she said she knew nothing about the appellant's dog, she had not seen it and she did not know where it was. The appellant returned to the hotel. At about 5 pm he again drove around York looking for the dog. He went to the complainant's house just before 7 pm. He drove past the house but did not stop. He and his wife had dinner at the hotel with friends. His wife went to bed before the dinner finished. The dinner finished at about 10 pm. The appellant went around the hotel coffee shop and bars checking on matters. He went to get some ice. He returned and parked his car in front of the hotel at about 10.45 pm. At about 11 pm he commenced lock down, that is closing the front bar, alfresco area and coffee shop area. He then attended to the till and the EFTPOS. The appellant produced the till records which showed that the EFTPOS was turned off at 11.01 pm. The appellant produced a financial report for the daily takings. There is a till reading for the day that says 11.25 pm. The report is in the appellant's handwriting. He completed the document at approximately 11.30 pm. The appellant locked the office and went to see how the band was going. Senior Constable Turner came to the appellant and said that he had received a complaint that the appellant had smashed the complainant's door down. The appellant denied it. The appellant finished his drink and checked everything was locked down. At approximately 11.45 pm he moved his car around the back to be parked outside St Patrick's Church. The appellant returned to the hotel and went to bed. He did not get up during the night.

13 The appellant's wife gave evidence to the following effect. She had dinner with her husband and friends at the hotel. She left the dinner and went to bed at about 9 pm. The appellant came to bed around 11.40 pm. She remembered the time because there was a digital clock next to the bed. The appellant got into bed. If the appellant had got out of bed she would have stirred and would have woken up.

14 Steven Liddell was employed by the Imperial Hotel as duty manager. He gave evidence to the effect that he was not involved in the lock down on the night of 2 June 2001.

Magistrate's Decision

15 The Magistrate briefly outlined the evidence of the complainant, the complainant's son, Ms Bahemia, Senior Constable Turner, the appellant and the appellant's wife. The Magistrate then referred to Mr Liddell and said that he did not find Mr Liddell's recollection of whether the appellant was in the bar between midnight and 1 am or otherwise to be reliable

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because Mr Liddell did not seem particularly certain about what happened on that particular day.

16 The Magistrate then made the following observations. For the appellant to report to the police that his car was stolen when it was just around the corner and he had put it there was odd behaviour. The complainant disliked the appellant. The appellant disliked her. The appellant had reason to go to the complainant's house that night. He had gone there that day trying to find his dog. He was worried about his dog. The dog had been there the week before. The complainant was not lying. She did not fabricate a case against the appellant. The complainant's son, Dylan, was a reliable and truthful witness and the Magistrate accepted his evidence. Senior Constable Turner spoke to the appellant at the hotel at about 12.50 am following a complaint. There was substantial damage to the door. So clearly someone damaged the door that evening. The Magistrate then stated:

"When one comes to consider the identification evidence on the prosecution's side, and in effect the alibi evidence of the [appellant], in my view the totality of the evidence for the prosecution is well and truly sufficient that I am satisfied that the [appellant] was identified by [the complainant] who I accept as a truthful witness, although certainly not - - certainly one who has been prone to exaggeration. I accept her evidence that she identified the [appellant] as being at her front door and damaging the front door with a bar - - some sort of metal bar. He was identified by the son, Dylan.

There's also the other evidence of Simone Bahemia seeing him at midnight, Officer Turner, the conversation at 12.50, the other things I've mentioned, the phone calls, the exhibit 12 report, the door damage itself. He had reason to be there. When one considers all that in connection with the alibi defence of the [appellant] and his wife's evidence – I discard the duty manager's evidence as being of little weight – I have come to the view that the prosecution have in respect of both charges discharged the burden upon them. I reject the evidence of the [appellant] with respect of his alibi. I accept the evidence of the [complainant] that he was at the front door after midnight damaging the front door and the identification of the son, and find therefore the [appellant] is guilty of both charges and convict him."

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Grounds of Appeal

17 On 28 October 2003 Heenan J ordered that the appellant have leave to appeal on five grounds. Ground 4 was a new evidence ground. The new evidence was said to be the Imperial Hotel security video tapes taken on 2 and 3 June 2001 which show, amongst other things, that the applicant was not in the bar of the hotel at around 12.50 am when he was alleged to have been spoken to by Senior Constable Turner regarding the complaint of the complainant made shortly prior to that time. The appellant swore an affidavit on 11 July 2002 in support of his application to adduce further evidence. The respondent filed four affidavits in response to, or as a consequence of, the affidavit of the appellant sworn 11 July 2002. Those are the affidavits of Senior Constable Turner sworn 24 November 2003 and three affidavits sworn by police officers Robert Leon Vogels, David Charles Shepherd sworn 26 November 2003 and Peter Robert Jaremczuk sworn 8 January 2004.

18 At the hearing of the appeal the appellant abandoned ground 4 and sought leave to substitute a new ground 4 in the following terms:

"The appellant relies on the new evidence, which tends to contradict the evidence of the complainant and cast doubt upon the reliability thereof in her assertion that the appellant was present at her home at or about 12.45 am on 3 June 2001 being that contained in:

1. the affidavit of Matthew David Turner sworn 24 November 2003 and annexure MDT1 and MDT2 thereof;

2. the affidavit of Robert Leon Vogels sworn 26 November 2003 and annexure RLV1 thereto;

3. Paragraphs 1 to 8 inclusive of the affidavit of David Charles Shepherd sworn 26 November 2003 and annexure DCS1 thereto.

4. the affidavit of Peter Robert Jaremczuk sworn 8 January 2004 annexure PRJ1 thereto.

5. Annexures KGL1 to KGL6 to the affidavit of Kevin Gerard Lawless sworn 12 April 2005."

19 Annexures KGL1 to KGL6 of the affidavit of the appellant sworn 12 April 2005 are, or relate to, records of telephone calls made and

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received from the mobile telephone of Constable Turner on 3 June 2001 and the mobile telephone of the appellant at various times between 1 June 2001 and 8 June 2001.

20 At the commencement of the appeal I acceded to the proposal of the appellant, agreed to by the respondent, that the appellant's application for leave to amend the grounds of appeal by inserting the proposed new ground 4 and the application for leave to adduce the new evidence be heard together with the appeal.

Appeal Ground 1

21 Appeal ground 1 is that the Magistrate failed to have any, or any proper, regard to the effect of the unchallenged evidence of the appellant that he had been at the Imperial Hotel between 11 pm and 11.30 pm on 2 June 2001 doing the hotel accounts, which evidence was corroborated by the time on a till receipt (exhibit 13), and by the unchallenged evidence of the bar manager, Liddell, that only the appellant had code access to obtain this document, and, which evidence also showed that the complainant and the complainant's son were inaccurate or untruthful witnesses as to their claims that the appellant had been at their premises at that time.

22 The appellant relied upon two documentary exhibits. Exhibit 13 is a set of documents, including a summary of transactions from the front bar till of the hotel. It bears a financial report in the appellant's handwriting. The appellant said that it was he who printed the till summary that night. The document showed the time of printing to be 11.25 pm. Exhibit 14 is an EFTPOS reading from the till at the front bar. The appellant stated that the exhibit showed it was printed at 11.01 pm. The appellant stated that only he and Liddell had the access codes to enable them to print the till summary and EFTPOS readings. Liddell gave evidence that he did not participate in the lockdown process of the front bar on 2 June 2001 and although he had access to the EFTPOS machine it was not he who printed the EFTPOS reading that night. The appellant submits that combined with the evidence of Senior Constable Turner that the distance from the complainant's home to the Imperial Hotel is approximately 1 kilometre, this "mechanical evidence" gives rise to a strong inference favourable to the appellant that he was at the Imperial Hotel and not at the complainant's house during the period in which she alleged he first attempted to force the door, shortly before 11.20 pm on 2 June 2001. That alleged act was not part of the charge but if the available inference were

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drawn it corroborates the appellant's alibi and is adverse to the complainant's credibility.

23 In his reasons for decision the Magistrate did not make any mention of the till summary or the EFTPOS reading and therefore did not state whether or how those documents assisted either party's case or affected the credibility of the complainant, Dylan or the appellant. The appellant submitted that as the Magistrate failed to mention the till summary or the EFTPOS reading in his reasons this Court should infer that the Magistrate overlooked this evidence in his assessment of the complainant. The Magistrate's finding that the appellant was guilty of the acts alleged in the complaint was dependent entirely upon his finding that the complainant and her son were truthful and accurate in their identification of the appellant. Where there is evidence that strongly suggests a witness is lying or mistaken, then that evidence must be dealt with before the court may draw an inference adverse to the accused in respect of the witness' credibility.

24 It is not correct to say that the appellant's evidence that he was at the Imperial Hotel between 11 pm and 11.20 pm on 2 June 2001 was unchallenged. The complainant and Dylan both gave evidence that the appellant was at their house at or shortly before 11.20 pm. It was not necessary for the prosecutor to put that to the appellant in cross-examination.

25 It is correct that Liddell gave evidence that he did not do the reconciliation with the EFTPOS machines on the night in question. However, the Magistrate found that the evidence of Liddell should be given little weight and that his recollection of events was not reliable. That was a finding open to the Magistrate. In cross-examination it was put to Liddell that he did not recall much of the times and events on that night. He replied "not really, no".

26 Where a Magistrate's finding depends to any substantial degree on the credibility of a witness or witnesses, the finding must stand unless it can be shown that the Magistrate has failed to use or palpably misused his advantage of having seen the witnesses give their evidence, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: DeVries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479; State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 per Gaudron, Gummow and Hayne JJ at [3]. An appellate court is not

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entitled to reverse a finding of fact upon an assessment of credibility unless it is satisfied that any advantage enjoyed by the Magistrate, by reason of having seen and heard the witnesses, could not be sufficient to explain or justify that finding of fact: Abalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178 (Mason CJ, Deane, Dawson and Gaudron JJ agreeing).

27 It was open to the Magistrate to, in effect, disregard the evidence of Liddell that he did not do the reconciliation with the EFTPOS machines on the particular night. Once it is found that the evidence of Liddell could not be relied upon, the "mechanical alibi" has little weight.

28 Furthermore, the Imperial Hotel was only a short distance from the complainant's house, so the evidence of the time of the transactions evidenced by the till receipts does not establish that the appellant could not have been at the complainant's house at about 11.15 pm as she said in her evidence. The Telstra records show that she telephoned the police at 11.22 pm. Even if the appellant did undertake the transactions evidenced by the EFTPOS machine and the till receipts at 11.01 pm and 11.25 pm, he might still have been at the complainant's house at about 11.15 or 11.20 pm. The hotel and the complainant's house were on the same street. Senior Constable Turner said that they were approximately 1 kilometre apart. The appellant parked his car in front of the hotel.

29 I am not satisfied that the Magistrate overlooked the evidence of the appellant that he had been attending to the EFTPOS reconciliation at 11.01 pm and the till summary at 11.25 pm. Immediately before stating his finding that he accepted the evidence of the complainant identifying the appellant as the person who damaged her front door, the Magistrate referred to the earlier incident at 11.20 pm or thereabouts. The Magistrate said that the earlier incident referred to at 11.20 pm or thereabouts may have taken place a little earlier than that. The complainant did not have a watch and was not in a position to know exactly what time it occurred. The only clear evidence about it was the telephone call that she made at 11.22 pm. It is to be inferred from those statements that the Magistrate was considering whether the appellant could have been at the hotel at about 11.01 pm and at about 11.25 pm and have been at the complainant's house at the time of the incident at about 11.15 or 11.20 pm.

30 A Magistrate's duty to provide reasons does not extend to identifying precisely every item of evidence which he has considered: Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998 per Wheeler J at 5 (Malcolm CJ and Kennedy J

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agreeing); Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 per Meagher JA at 647. Reasons must enable an appellate court to consider and determine whether or not the judgment is erroneous. Each case must depend on its own circumstances but the reasons must show to the litigant and the appeal court why a decision was made. While the reasons must adequately disclose the intellectual process which has resulted in a particular determination that does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submission must be alluded to expressly, or even by implication in the course of giving reasons: Garrett v Nicholson [1999] WASCA 32; 21 WAR 226 per Owen J.

31 The evidence of the "mechanical alibi" was not so compelling that it needed to be dealt with specifically in the Magistrate's reasons. Furthermore, by considering the time at which the earlier incident occurred the Magistrate dealt with the inference to be drawn from the mechanical alibi. That is, the Magistrate's finding that the earlier incident may have occurred a little earlier than 11.20 pm makes the mechanical alibi evidence not a sufficient alibi.

32 Ground 1 of the appeal is not made out.

Ground 2

33 Ground 2 is that the Magistrate failed to have any, or any proper, regard to the effect upon the reliability of the identification by the appellant by the complainant's son, Dylan, of five specified matters. I will briefly refer to each.

34 The first is the reasons given for the alteration of Dylan's deposition from one made in June 2001, in which he had stated he could not identify the appellant as the perpetrator of the offences, to one made in April 2002, in which he stated he could identify the appellant as the perpetrator.

35 The ground of appeal incorrectly asserts that in his police deposition of June 2001 Dylan stated that he could not identify the perpetrator of the offences. In his deposition of June 2001 Dylan did not state that the appellant was the perpetrator. However, he did not state that he could not identify the perpetrator of the offences. In the course of his evidence he said, in effect, that he had identified the appellant as the perpetrator on the night of the offence but had failed to say so in his earlier deposition because he did not appreciate that the identification of the appellant was the key issue in this matter.

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36 The Magistrate expressly referred to the fact that Dylan did not identify the appellant in his first deposition to the police but found that notwithstanding that fact Dylan was a reliable and truthful witness. The Magistrate accepted Dylan's evidence. It was open to him to do so. Dylan's evidence was not inconsistent with facts incontrovertibly established by the evidence nor was it glaringly improbable.

37 The second matter raised by ground 2 is the differences between both of Dylan's depositions and his evidence at trial as to the time when he alleged he had identified the appellant and what the appellant was doing at that moment. The appellant submits that in his first statement Dylan said he saw the perpetrator as he was stepping off the verandah but did not identify him. In his second statement he said he saw the perpetrator as he was stepping off the verandah and could see him because of the verandah security light. In his evidence at trial Dylan said he recognised the appellant as the appellant turned side on to his car and became visible due to the reflection of the security light against his white car.

38 I accept the submission by counsel for the respondent that the evidence of identification given by Dylan in the first police statement, his second police statement and in the witness box are not inconsistent, rather they become more detailed. The reasons for the change to the statement are adequately explained and these are matters that the Magistrate properly had regard to in accepting Dylan's evidence.

39 As I have said, the Magistrate expressly considered the reliability and credibility of Dylan and accepted his evidence. The difference in Dylan's statements and evidence at trial were all matters for the Magistrate to consider. They do not disclose any error by the Magistrate.

40 The third matter referred to in ground 2 is the evidence of Dylan and others as to the darkness of the area around the complainant's house, that the street lighting was turned off at the time the alleged identification was made, that the witness needed glasses to see clearly and there was no evidence that he was wearing them at the time he made his alleged identification, that he had only had a brief side on view of the perpetrator at a distance, and, that his identification of the appellant's car was wrong when compared to uncontroverted evidence of the appellant and his witnesses as to the features present on the car at the material time, in particular, as to a sticker allegedly seen on the back windscreen which other uncontroverted evidence, namely photographs and other documents, and the unchallenged evidence of the appellant proved had not been

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present on the vehicle until sometime after the alleged offences were committed.

41 As to Dylan requiring glasses to see properly, he did not say, and there is no evidence, that he was not wearing his glasses at the relevant time.

42 As to the lighting, Dylan said that the security light starts to darken out on the road halfway close to the kerb and the light illuminated the vehicle. There was also a street light that illuminated the corner of the block and the house and another security light.

43 The distance between Dylan and the perpetrator was not great. Dylan was standing at the doorway. It was only a step or two off the verandah and the front of the house is right on the footpath. The appellant walked off the verandah and probably another two steps to his car.

44 Both the complainant and Dylan gave evidence that there was a sticker on the rear window of the vehicle. According to the complainant this was not the one which was subsequently, according to the appellant, placed on the top left hand corner of the window and was longer and narrower. It was not put to Dylan that the sticker he saw on the back of the appellant's car was not present at the time nor was he asked to describe the sticker or its location on the back window. The photographic evidence relied on by the appellant to prove there was no dog sticker on the car was a photograph taken by the appellant which he stated was taken shortly after the incident. That was corroborated by the appellant's wife. All of those were matters going to the credibility of the witnesses and were matters for the Magistrate. None of the matters referred to either alone or in combination disclose any error by the Magistrate.

45 The fourth matter referred to in ground 2 is that the Magistrate erred in accepting a dock identification of the appellant by Dylan as corroborating Dylan's identification of the appellant at the scene on the night in question, in particular, when the appellant was known to the witness, Dylan having worked for the appellant at the Imperial Hotel previously.

46 In my view, this is a red herring. This was not a case of a dock identification. The appellant was previously known to Dylan as he had previously worked for the appellant.

47 The fifth and final matter referred to in ground 2 is the fact that the differences between the depositions by Dylan, and the evidence given by

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him at trial (which had not been in the depositions), in general mirrored that of the complainant (who is his mother) and the Magistrate failed to have any, or any proper, regard to the possibility of either a mutual concoction by them as to the identification of the appellant or of influence having been applied to Dylan by the complainant to make such identification when he had been unable to do so previously, this view being further supported by the fact that on some matters as to the alleged events their versions were widely different, such as, amongst other things, whether or not the appellant had been carrying an iron bar, whether the appellant had walked around the front or back of his car upon leaving the scene, whether or not the appellant had stopped at and opened the rear passenger door and thrown the iron bar into the car before getting into it and driving away, and whether or not the appellant had spoken to the complainant at 11.30 pm or at any time on the night in question.

48 The Magistrate expressly considered whether or not the complainant had fabricated the case against the appellant. The Magistrate expressly considered the reliability and credibility of Dylan and found that he did not come to court and lie. The Magistrate expressly referred to the evidence of the complainant and Dylan concerning the dog sticker on the rear of the vehicle of the defendant. The Magistrate said it was possible that the recollection of the complainant and Dylan was mistaken about the dog sticker without it being a fabrication.

49 All of the matters raised in the ground of appeal are matters going to whether the Magistrate should have accepted the evidence of the complainant and Dylan. So far as this aspect of the appeal is concerned, it depends upon a view taken of conflicting testimony. The Magistrate made his findings after seeing and hearing the witnesses. It is not for an appeal court to reverse the Magistrate's findings, merely on the result of its own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case: Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ at 57. It was open to the Magistrate to accept the evidence of Dylan. The Magistrate made no appealable error in doing so.

50 Ground 2 of the appeal is not made out.

Ground 3

51 Ground 3 is that the Magistrate failed to have any, or any proper, regard to the effect of four specified matters upon the reliability of the identification of the appellant by the complainant.

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52 The first specified matter is in part a repetition of matters to which I have already referred and which I will not repeat. It is also said that the complainant required glasses to see properly and that at the moment when she is alleged to have identified the appellant he had his back to her. In my view there is no substance to any of these matters. The appellant was well known to the complainant and on her evidence she had ample opportunity to identify him.

53 The second matter concerns the differences between the complainant's prior evidence before Justices in Busselton on 6 June 2001 regarding the same incident and depositions she had made to police, and her evidence at trial as to how and at what various times she had identified the appellant at her premises on the night of the alleged offences, in particular, as to an identification which was alleged to have taken place at around 11.22 pm at which time the appellant was at the Imperial Hotel as was shown by the till receipt and his other uncontradicted evidence.

54 I have already referred to the alibi evidence concerning the till receipt. The Magistrate expressly referred to the complainant's evidence before the Justice of the Peace. The Magistrate considered the complainant's reliability and credibility. The Magistrate found that the complainant did exaggerate the extent of the appellant's behaviour and she did not give a full and accurate version of what happened when she appeared before the Busselton Justice of the Peace. The effect upon the complainant's reliability and upon the credibility of the previous statements she had given were matters for the Magistrate. Those statements are not so seriously inconsistent with the complainant's evidence at trial nor so detrimental to her credibility that it was not open to the Magistrate to accept her evidence at trial. The Magistrate made no error in accepting her evidence.

55 The third matter refers to the complainant's "obvious and numerous" exaggerations regarding the behaviour of the appellant and her obvious dislike of the appellant based upon prior problems between them, her refusal to answer certain questions until she had been given an opportunity to see her prior sworn testimony on 6 June 2001 and her evidence that if pieces of her prior sworn testimony on 6 June 2001 were shown to be wrong they could simply be disregarded as truthful. These matters all concern the credibility and reliability of the complainant. They do not establish that the Magistrate made any error.

56 The final matter referred to in ground 3 concerns the differences between the complainant's complaint to police as to the appellant's alleged

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behaviour at 11.22 pm and the evidence of Constable Vogels as to that complaint. This matter concerns evidence in an affidavit sworn by Constable Vogels and admitted by consent. Annexed to Constable Vogels' affidavit was an extract from the police occurrence book of a conversation Constable Vogels had with the complainant. The entry reads: "23.20 – could you please speak with Kevin Lawless. He has come to my house and has accused me of doing something to his dog. I don't have his dog". The appellant submits that that evidence is inconsistent with the evidence of the complainant that she did not speak with the appellant at the time.

57 The apparent discrepancy between the evidence of the complainant and Constable Vogel's entry in the occurrence book was expressly referred to by the Magistrate. The Magistrate said that the incident report refers to something being said by the appellant but does not indicate that the complainant said anything back. The Magistrate concluded it was quite possible that the apparent discrepancy might be explained by the appellant having accused the complainant of something and the complainant having not responded. In any event the Magistrate went on to say that notwithstanding that finding he did not consider that the complainant was lying. The Magistrate went on to find that he accepted her evidence. It was open to the Magistrate to do so. The Magistrate made no error.

58 Ground 3 is not made out.

Ground 5

59 Ground 5 is that the Magistrate gave too much weight to, or mistook, the effect of the evidence of the witness Bahemia as to the time when she is alleged to have seen the appellant at around 12.00 am on 3 June 2001 and failed to have any, or any proper regard to five specified matters. On the hearing of the appeal counsel for the appellant stated that the appellant did not rely on two of those matters. I will refer to the remaining three matters.

60 The first is the street lighting outside the Imperial Hotel and that the front hotel lights were off at the time the identification was allegedly made. The only evidence that the street lights were turned off was that of the appellant which was contradicted by other evidence. In addition to stating the area was very well lit and that there is a street light at the location, Ms Bahemia saw the interior light come on in the appellant's car. Ms Bahemia knew the appellant. The Magistrate preferred the evidence

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of Ms Bahemia to that of the appellant. It was open for him to do so. There was no error in doing so.

61 The second matter is that Ms Bahemia was a friend of the complainant and had not come forward to give any deposition to the police until April 2002 and failed, or refused, to bring to court (after service of a summons to do so) a note she had allegedly made, at the behest of the complainant, of the events she alleged she saw which note she claimed allowed her to recall the time of her identification of the appellant. The transcript does not disclose that Ms Bahemia refused to bring the documents to court, only that she had not appreciated that she was required to do so. In her evidence she stated that they were available. That the witness knew the complainant does not lead to any inference adverse to her credibility. It was a matter for the Magistrate to consider together with all the other circumstances.

62 The final matter referred to in ground 5 is that the time at which Ms Bahemia allegedly saw the appellant, namely 12 midnight, heading at speed in the direction of the complainant's house (approximately two minutes away by car) did not corroborate the evidence of the complainant that the appellant had been at her house at 12.45 am.

63 The respondent submits that Ms Bahemia's evidence was led to refute the appellant's alibi. The Magistrate did not find that after the appellant was seen by Ms Bahemia he went straight to the house of the complainant. The matters raised do not disclose any error by the Magistrate.

Ground 4

64 The proposed new ground 4 is that the new evidence to which I have earlier referred tends to contradict the evidence of the complainant and cast doubt upon the reliability of her assertion that the appellant was present at her house at about 12.45 am on 3 June 2001.

65 The court should not grant leave to appeal on a ground unless that ground has reasonable prospects of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). I will consider whether to grant leave to appeal on the proposed new ground 4 together with the question of whether leave should be granted to adduce the new evidence.

66 The principles relating to the admission of fresh and new evidence on appeal are well established. However, the appellant submits that the statutory power contained in s 40(1)(e) of the Criminal Appeals Act to

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receive new evidence gives a broader discretion to admit the new evidence. Section 40(1)(e) applies to any appeal to a superior court. In my view the discretion conferred by s 40(1)(e) is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal.

67 Fresh evidence is evidence which did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered: Beamish v The Queen [2005] WASCA 62 at [9]. Counsel for the respondent submitted, and I accept, that in the case of fresh evidence there is a three stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the appellant at trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be cogent, plausible and relevant. Thirdly, there must be a significant possibility that the finder of fact, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial: Button v The Queen [2002] WASCA 35; 25 WAR 382 per Malcolm CJ at [58]; Beamish v the Queen (supra) per the court at [14].

68 None of the new evidence is fresh evidence. Some of the telephone records were available at trial. All of the telephone records could have been subpoenaed by the appellant at the trial. There is no evidence explaining why the appellant did not do so.

69 In the case of new evidence, the appeal court should only quash a conviction if the evidence either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand: Ratten v The Queen (1974) 131 CLR 510 per Barwick CJ at 520. The mere likelihood that the finder of fact would have returned a verdict of not guilty is insufficient to set aside a conviction on the basis of new evidence: Lawless v The Queen (1979) 142 CLR 659 per Mason J at 675. In a criminal trial the accused is entitled to decide how his case is to be conducted, in particular, what evidence he will call. He makes his decision in light of the knowledge that he is tried but once unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented: Lawless v The Queen (supra) per Mason J at 675 – 676.

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70 The appellant submits that the new evidence establishes, with accuracy attributable to the telephone records, the times at which the complainant made various calls to the police and various police officers called each other.

71 The appellant submits that the new evidence establishes the following matters. First, the complainant telephoned the police at 12.45 am on 3 June and hence the damage to her door occurred at or shortly before 12.45 am. Secondly, Constable Turner spoke to the appellant at the Imperial Hotel at 12.55 am. Thirdly, the complainant telephoned the police and complained that the appellant was again outside her house at 12.56 am.

72 The appellant submits that the time of the incident may be taken as about 12.45 am. The appellant further submits that it is unlikely that the appellant committed the offence at about that time, drove back to the Imperial Hotel and was standing in front of Constable Turner at 12.56 am. I do not accept that submission. Given the short distance between the hotel and the complainant's house there is nothing unlikely about the appellant being at the hotel 11 minutes after causing damage to the complainant's door.

73 The appellant next says that the new evidence establishes that the appellant was at the Imperial Hotel at 12.55 am standing in front of Constable Turner and therefore could not have been outside the complainant's house at 12.56 am. The appellant submits that the telephone records establish that the complainant complained to the police at 12.56 am that the appellant had returned to her house. The appellant submits that that evidence casts grave doubt on the credibility of the complainant.

74 The respondent submits that the appellant stated in her evidence-in-chief that the appellant came past her house again after the 12.45 am incident but did not specify a time. She confirmed in her evidence-in-chief that she telephoned the police again at 12.56 am, 1.52 am and 1.57 am. The complainant stated that these calls were "because no one had turned up. The police hadn't turned up, and I was really quite frightened because he had been coming all day". The complainant was cross-examined about her subsequent phone calls and sighting of the appellant after the incident. The complainant confirmed that she had called Northam Police Station three times after 12.45 am, namely at 12.56 am, 1.52 am and 1.57 am. The respondent submits that the complainant did not specify during which of the three phone calls she

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sighted the appellant. I have carefully read the transcript. I accept the respondent's submission. Accordingly, the fact that the appellant was at the hotel in front of Constable Turner at 12.56 am does not contradict the evidence of the complainant.

75 The appellant further relies on annexure MDT2 to the affidavit of Constable Turner. The appellant submits that this document suggests that when the complainant made her complaint regarding the damage to her door she said: "Kevin Lawless has just come to my house and kicked my front door in". The appellant submits that this raises a further issue with respect to the complainant's credibility, namely, whether, as she claimed, the appellant was carrying an iron bar and whether he used the iron bar to cause the damage to the complainant's door. It is submitted that it is highly significant that the complainant apparently made a statement to police within minutes of the offending behaviour that is completely inconsistent with both offences.

76 Annexure MDT2 is a copy of a telephone message made by officers at Northam Police Station regarding the complaint received from the complainant at 12.53 am on 3 June 2002. Constable Turner obtained the copy of that telephone message in early March 2002 from Senior Constable Da Ronche then of the Northam Police Station. The message records a statement by an unknown officer. There is no evidence as to how the message came to be transcribed. Evidence has not been given by the person who received the message. Whether the message records accurately words spoken by the complainant or the message taker's own description of what the complainant said is unknown.

77 The new evidence does not show the appellant to be innocent nor does it raise such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand.

78 There is another reason why the evidence establishing that the appellant was standing before Constable Turner in the hotel at 12.55 am should not be received as new evidence on appeal. The appellant's case at trial was that he was not at the complainant's house at the time of the offence. His case was that he was not spoken to by Constable Turner at 12.50 am because he had gone to bed at 11.40 pm. That evidence was corroborated by his wife, although rejected by the Magistrate as unreliable. The appellant argued that Constable Turner must have been mistaken as to the time he said he spoke to the appellant, that is it was not 12.50 am but earlier in the evening, prior to the appellant going to bed at 11.40 pm. The effect of the appellant's application to adduce further

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evidence is to change the defence run at trial. The appellant now seeks to prove that he was in fact speaking to Constable Turner at 12.55 am, contrary to his evidence at trial, and therefore he could not have been at the complainant's house. In those circumstances, leave should not be granted to adduce the fresh evidence.

79 The proposed new ground 4 of the appeal does not have any merit. I do not grant leave to amend the grounds of appeal to introduce that ground of appeal.

Conclusion

80 For the reasons stated, leave to adduce fresh evidence and leave to amend the grounds of appeal by substituting the proposed new ground 4 is refused. The appeal is dismissed.