Lovett v White
[2003] TASSC 15
•17 April 2003
[2003] TASSC 15
CITATION: Lovett v White [2003] TASSC 15
PARTIES: LOVETT, Ronald James
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 34/2002
DELIVERED ON: 17 April 2003
DELIVERED AT: Launceston
HEARING DATE/S: 26 March, 4 April 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - "Unsafe and unsatisfactory" conviction - Whether magistrate had sufficient regard to defendant's evidence.
Kelly v O'Sullivan (1995) 4 Tas R 44, followed.
Davies and Cody v R (1937) 57 CLR 170, applied.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: W G Tucker (26 March), S J N Brown (4 April)
Respondent: L Goodsell (26 March), J P Ransom (4 April)
Solicitors:
Applicant: W G Tucker
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 15
Number of paragraphs: 26
Serial No 15/2003
File No LCA 34/2002
RONALD JAMES LOVETT v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT CRAWFORD J
17 April 2003
The applicant pleaded guilty to count 1 on complaint 26371/02 that alleged he unlawfully assaulted Sandra Maree Carmichael by grabbing hold of her left shoulder, contrary to the Police Offences Act 1935, s35(1). He pleaded not guilty to count 2, that alleged he unlawfully assaulted Ms Carmichael by driving his motor vehicle directly towards her whilst she was holding a child in her arms, contrary to the same provision. A hearing was conducted and the magistrate found count 2 proved. After a plea in mitigation was made, the applicant was convicted of both counts and sentenced to three months' imprisonment and ordered to pay costs of $483.75.
The applicant applied to review the conviction on count 2, complaining that it was unsafe and unsatisfactory in all the circumstances. He also applied to review the sentence because it was manifestly excessive in all the circumstances. I have only heard submissions concerning the conviction.
The applicant submits that the conviction on count 2 was unsafe and unsatisfactory because the learned magistrate failed to adequately read the transcript of a video recorded interview that was conducted by police officers with him or alternatively, the learned magistrate failed to pay adequate attention to the applicant's evidence-in-chief and his cross-examination.
An unfortunate aspect of the case is that a substantial part of the hearing before the magistrate was not tape recorded. I have been provided with a transcript, made from a tape recording, of much of the evidence-in-chief of the complainant. No tape recording was made of the balance of her evidence, including cross-examination by defence counsel; the evidence of an independent witness, Deborah Reid, who was called by the prosecutor; the evidence of the applicant; and the statement by the learned magistrate of his reasons for finding count 2 proved. The Court was eventually provided with a copy of the notes made by the learned magistrate of some of the missing evidence. There is no doubt that the notes are an abbreviation of the evidence. In particular, his Worship's notes of the evidence of the applicant are extremely brief. I have been provided with no information whatever of the learned magistrate's reasons for finding the prosecution case proved. They were not recorded by the learned magistrate or the court in any form.
The failure of magistrate's courts to adequately record proceedings is not uncommon, based on my experience of lower court appeals that have recently come before this Court in Launceston. I express my concern about it and hope that the courts will do all that they can to improve their performance. Whenever proceedings are not adequately recorded, the task of this Court to assess whether a case was determined in accordance with the law is frequently a difficult one and sometimes impossible.
To explain the nature of the applicant's case before this Court, it is necessary to relate some of the evidence given before the learned magistrate. The complainant gave evidence that she and the applicant had a de facto relationship for almost two years, but the relationship had broken down, with acrimony. A daughter resulted from the relationship. On the morning of 2 November 2001, the complainant was outside the Newnham newsagency on George Town Road for the purpose of collecting their daughter from the applicant. They had an argument, in the course of which he grabbed her by the shoulder. He followed her to the newsagency and grabbed hold of her again. He abused her, left the newsagency and climbed into his car. She left the newsagency, walked along George Town Road and crossed it, intending to head to her residence. She saw the applicant come out of a side street and drive along George Town Road. She could see that he was "mouthing something" and she stuck her finger up at him. He pulled up alongside her.
The complainant said that she decided to walk back across the road to the other side. She noticed a woman getting into her car on the other side and decided to walk to her, I infer for the purpose of seeking some sort of refuge by her presence. She said that the woman had her window down and as she approached the parked car she commenced to speak to the woman at her driver's door. She noticed that the applicant had driven further down the road, turned and then drove back towards her, on her side. She was holding their young daughter in her arms. When she saw the car coming towards her she became very scared and for the purpose of getting out of its way, to prevent her being hit, she jumped on top of the bonnet of the woman's car, still holding her daughter. At that point in her evidence the tape recording equipment ceased to record. The handwritten notes made by the learned magistrate of the balance of her evidence are brief and are unlikely to contain much of the remaining evidence that was given by her. His Worship noted that in re-examination she said that at the time she jumped, the applicant's car was within inches of her.
The learned magistrate's notes of the evidence of the independent witness, Deborah Reid, reveal that her evidence strongly supported the complainant's evidence. She did not know the complainant or the applicant. She was sitting in her parked vehicle and described the complainant as a young lady on the other side of the road, yelling at her and running across to a position alongside her driver's side mirror, screaming "please don't go". She described the applicant's vehicle as passing "awfully close to my car" and the complainant as throwing herself onto Ms Reid's bonnet. She said that the applicant's vehicle was a foot from her car. His Worship's notes of cross-examination record her as saying that it all happened very quickly. The applicant's vehicle was "very close" and the complainant "then literally threw herself across the bonnet and sat the child on the car sitting on her bottom". She denied that the applicant's vehicle was three to four feet away and asserted that it could not have been. At the conclusion of Ms Reid's evidence the prosecution case was closed.
The notes made by the learned magistrate of the evidence given by the applicant were extremely brief. That is particularly so with regard to his evidence-in-chief, for apart from recording his name and address, and that he was unemployed, they record only that he said that on 20 November 2001 he took part in an interview and the answers he then gave were true and correct. A transcript of his video interview by the police, but not the video, was admitted as a defence exhibit. Although that may seem odd, it should be pointed out that the prosecutor had intended to tender it but overlooked doing so, and it was tendered by consent in the course of the defence case. Concerning the alleged assault with a motor vehicle, his Worship's notes of the cross-examination of the applicant record that he maintained that his vehicle was "a good three to four feet" from Ms Reid's car and he denied that he was attempting to frighten the applicant. There was no re-examination of the applicant. The learned magistrate then found the case proved (without his reasons being recorded). Relevant to penalty, his Worship noted only that the applicant had no prior convictions and was 39 years of age.
The applicant's counsel before the learned magistrate was Mr Grant Tucker. In an affidavit sworn for the purposes of the motion to review, Mr Tucker said that the applicant gave sworn evidence and as part of his evidence confirmed that the answers in the interview were true and correct. At the conclusion of his evidence, the prosecutor, Kim Hibble, cross-examined the applicant and there was no re-examination. At the conclusion of the defence case the learned magistrate moved immediately to his decision that he found the case proved, Mr Tucker said. He maintained that the learned magistrate failed to read or read adequately the transcript of the video interview, given that the only opportunity for his Worship to do so was during the course of the applicant's evidence-in-chief and cross-examination. I note that Mr Tucker did not claim to have seen that the learned magistrate did not read the document. Alternatively, he maintained that if the learned magistrate did read it, then his Worship failed to pay adequate attention to the applicant's evidence-in-chief and cross-examination. I note similarly, that Mr Tucker did not claim to have seen that the learned magistrate failed to do so. Mr Tucker said that the applicant believed that the learned magistrate had not and could not have fully read the questions and answers in the transcript of the interview, given that it appears that it was tendered at the outset of the defence case, with no break between evidence-in-chief, cross-examination and the magistrate's announcement of the reasons for his decision.
The respondent relied on three affidavits. The prosecutor in the court below, Constable Kim Hibble, attested that during his cross-examination of the applicant he was regularly turning to watch the learned magistrate for the purpose of making sure that he was not proceeding too quickly for his Worship to take notes. Constable Hibble stated that he had a specific recollection that at some point during the cross-examination, the learned magistrate appeared to be reading the transcript of the interview. Constable Hibble is very tall and had a clear and uninterrupted view of the magistrate. Constable Hibble has a recollection of the learned magistrate saying to Mr Tucker, "I have read it, Mr Tucker", but Constable Hibble did not say when that occurred. The hearing took about an hour in total. Constable Hibble confirmed that the learned magistrate gave his decision straight after the completion of the evidence. There had been no break in the course of the hearing.
An affidavit was sworn by Constable Jayson Taws, who observed the hearing. He said that he remembers that a transcript of the interview was tendered on the defence case and that the magistrate appeared to be reading it from the time it was tendered until the end of the defence case. Constable Taws was not cross-examined, and it is impossible to understand exactly what the Constable meant when he said that. I am unable to find from it that throughout the balance of the defence case the learned magistrate was fully occupied reading the transcript of the interview. Constable Taws recalled that Mr Tucker asked his Worship if he required further time to read the transcript and the magistrate stated words to the effect that he had read the interview. At some later time in the proceedings and in reference to the transcript of it, Mr Tucker remarked that the learned magistrate must be a "speed reader". (On the hearing of the motion to review, the applicant's counsel stated that Mr Tucker recalled saying that at some point of time during the hearing.) Constable Taws could not recall any breaks once the hearing had commenced. He recalled having a discussion with Mr Tucker at the end of the matter, when Mr Tucker told him that he did not think that the learned magistrate had read the transcript of the interview.
An affidavit was also sworn by Mr Gregory Amos, the clerk of the court at the time. He had no recollection of the hearing or of any comments or unusual exchange between the learned magistrate and Mr Tucker.
According to the transcript of it, the interview between the police and the applicant lasted 22 minutes. The transcript is nine pages long. A judicial officer experienced in reading transcripts of video interviews, as I have no doubt his Worship was, would have had no need to pay attention to the contents of the first two pages. The third page contains a relatively long 39 line narrative by the applicant of his version of the relevant events on George Town Road on the day of the alleged offence, culminating, in the last 12 lines, in the following:
"Um as I was driving back up the road Sandra stuck her finger up at me so I pulled up, stopped and did a u turn and I pulled up just in front of her and I was going to get out of the car and abuse her and I thought no, it's not going to achieve anything. Um I hadn't got out of the car, I hadn't turned the car off or anything, I still had the seat belt and all on and I thought bugger this I'm going home so there, I looked, there was no traffic coming so I turned around did a u turn, it was just outside um near the bakery on George Town Road and I did a u turn and as I was doing a u turn Sandra started running across the road and run straight for there was a car parked outside the bakery at Newnham. And she ran straight for the car and launched her self up on to the bonnet, you know, um I drove passed her it was probably a couple of feet, say three or four feet away from her, um and I just continued on my way and went home."
In answer to a question, the applicant confirmed that the complainant was holding their daughter in her arms when she went up onto the bonnet of the parked car.
The interviewing officer returned to the circumstances of the alleged assault in the middle of the sixth page, when he said to the applicant that the complainant claimed he had driven the car straight at her causing her to jump onto the bonnet. He responded:
"No that's wrong, as I did my u turn and started to come back up George Town Road, Sandra run across the road to the car and jumped up on to the guard and the bonnet of the car. She wasn't standing beside the car when I got to her, she was running across the road and as there was two lanes that way she could either waited till in the middle or gone right across but she jumped up on to the bonnet and the guard of the car. She wasn't standing beside the car at all before I got to her."
On the seventh page the interviewing officer sought to clarify that the applicant had not seen the complainant running across the road when he executed his U-turn. The applicant responded:
"Because before I did a u turn I looked to see if any cars were coming either way and there was nothing coming and if Sandra had of been running across the road at that time I would have seen her or walked across the road I would have seen her before I did the u turn, but as I did the u turn and started to come back around and head back up towards Newnham is when she ran across the road and jumped up on the bonnet of the car just before I got there."
The officer told the applicant that the independent witness believed that his car had almost hit her car and would have passed within a foot of it. The applicant responded that the distance was three to four feet, and in answer to a question said that if an occupant had been opening the car door to get out, there still would have been room to pass.
Thereafter, for almost 2½ pages of the transcript until its end, the questions concerned aspects of the unhappy relationship between the complainant and the applicant, apart from one question, directed to the applicant, concerning whether it was his intention to hit the complainant with his vehicle. He replied:
"No, because she had the baby in her arms and there was no way in the world I'd do anything to harm the baby, not after I've gone through. Um, I've lost a child through a previous relationship and um there is no way in the world I'd do anything to harm Erin."
Overall, questions and answers relating to the alleged assault occupied about three pages of the nine page transcript of the interview.
Counsel for the respondent conceded that if I find that the learned magistrate failed to sufficiently read the transcript of the interview, or to pay sufficient attention to the evidence of the applicant, the finding that count 2 had been proved should be regarded by me as unsafe and unsatisfactory.
A ground of review that such a finding was unsafe or unsatisfactory may properly be raised in this Court. Kelly v O'Sullivan (1995) 4 Tas R 44. Commonly the ground attacks the sufficiency of the evidence, but that is not the case here. It is one to which the following dicta in Davies and Cody v R (1937) 57 CLR 170 at 180, referring to what a court of criminal appeal may do on an appeal from a jury's verdict, may be adapted:
"For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
I have no doubt that Mr Tucker honestly believes that the learned magistrate had insufficient time in which to adequately read the contents of the transcript of the interview and at the same time to pay proper attention to the applicant's testimony. However, the accuracy of Mr Tucker's recollection of the hearing and the validity of his belief, are weakened by his professed inability to recall whether the video recording of the interview was tendered and precisely when it and/or the transcript were tendered. In his affidavit he asserted that the conviction was unsafe and unsatisfactory because the learned magistrate failed to view the video and failed to read or read adequately the transcript, asserting in the alternative, that if the learned magistrate did read the transcript, his Worship failed to pay adequate attention to the applicant's testimony. The video was not tendered as an exhibit.
Counsel for the applicant conceded that because of the contents of the affidavits of Constables Taws and Hibble there is evidence that the learned magistrate read at least part of the transcript and possibly all of it. To that I add that there is evidence that his Worship stated that he had read it. It is also clear that the learned magistrate must have paid attention to at least some of the appellant's testimony, for his Worship made handwritten notes of some of it. The evidence of Constable Taws that the learned magistrate appeared to be reading the interview, from when it was tendered until the end of the defence case, should be read in that light. Plainly the learned magistrate must have paid some attention to the applicant's testimony. Nevertheless, the applicant's counsel submitted that for there to be a satisfactory hearing, the learned magistrate had to give proper and full attention to the applicant's evidence, because of the direct conflict between the complainant's version of the incident and the applicant's version. The issue of credit was involved and counsel submitted that to determine that issue, the learned magistrate needed to observe the applicant's demeanour when he was giving evidence. Counsel further submitted that on the evidence before me I should conclude that there was no substantial break in the course of the proceedings during which the learned magistrate could have read all of the transcript without something else going on at the same time, and I should find that the learned magistrate did not pay sufficient attention to either the transcript or the applicant's testimony, or both, and that the hearing was therefore unsatisfactory.
The evidence does not persuade me that the learned magistrate failed to pay adequate attention to either the applicant's evidence or to the contents of the transcript of the interview. As mentioned earlier in these reasons, the learned magistrate is an experienced judicial officer. He may well be a fast reader, I do not know, but the evidence falls short of satisfying me that there was unfairness in the hearing because his Worship did not properly consider relevant evidence. It may well be that the learned magistrate found the evidence of the complainant and the independent witness to be powerfully cogent and convincing and the applicant's version of the events, and his credit, to be so unconvincing, that his Worship felt no need to take time to reflect before announcing his reasons. Whatever the position, the applicant has not established the ground for review.
No attack has been made by the applicant concerning the reasons for finding the charge proved or the failure to properly record them.
The motion to review the conviction therefore fails. I will now proceed to hear submissions on the second ground of the motion, concerning whether the sentence of three months' imprisonment was manifestly excessive in all the circumstances.
0
2
0