Lund v Davies
[2013] WASCA 268
•28 NOVEMBER 2013
LUND -v- DAVIES [2013] WASCA 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 268 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:79/2013 | 18 OCTOBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 28/11/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ERIC LOUIS LUND MATTHEW JONATHON DAVIES |
Catchwords: | Criminal law Application for leave to appeal against convictions Refusal of application for an adjournment of trial Admissibility of evidence under s 79C of the Evidence Act 1906 (WA) Expert evidence Disclosure Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 18 Evidence Act 1906 (WA), s 79C |
Case References: | Beamish v The Queen [2005] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LUND -v- DAVIES [2013] WASCA 268 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
MATTHEW JONATHON DAVIES
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ALLANSON J
Citation : LUND -v- DAVIES [2013] WASC 52
File No : SJA 1072 of 2012
Catchwords:
Criminal law - Application for leave to appeal against convictions - Refusal of application for an adjournment of trial - Admissibility of evidence under s 79C of the Evidence Act 1906 (WA) - Expert evidence - Disclosure - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18
Evidence Act 1906 (WA), s 79C
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Beamish v The Queen [2005] WASCA 62
1 McLURE P: This is an application for leave to appeal from the decision of Allanson J dismissing the appellant's appeal against his convictions for assaulting a public officer, obstructing a public officer and refusing to provide personal details (name and address) to a public officer (the public officer offences).
2 On 21 June 2012 the appellant was convicted in the Magistrates Court on five charges arising out of an incident on 13 June 2009. He was convicted of the aggravated assault of Ms Natalie Babic with whom he was in a domestic or family relationship, burglary (being in Ms Babic's dwelling without her consent and assaulting her again), and the public officer offences.
3 Allanson J upheld the appellant's appeal against the aggravated assault and burglary convictions.
4 The sole ground of appeal relating to the public officer offences (ground 3) was that the magistrate erred in refusing the appellant's application for an adjournment of the trial to enable him to adduce expert evidence. The appellant wanted to adduce evidence to show that the police were not acting in the course of their duty because they had unlawfully tasered him. Evidence at trial was given over 10 days in March and April 2012 and the adjournment application was made on the last day of evidence. Allanson J refused leave to appeal on ground 3 and dismissed the appeal against the convictions on the public officer offences.
5 The prosecution case against the appellant in relation to the public officer offences is as follows. In the course of the circumstances which gave rise to the burglary charge Ms Babic telephoned the police. Police arrived at Ms Babic's unit and went inside. One of the officers, Constable Davies, advised the appellant that he was under arrest and tried to guide him away from Ms Babic and also away from a window. The appellant became abusive and resisted that attempt. He wrestled with Constable Davies and fell to the sofa, pulling Constable Davies with him.
6 Two female officers tried to assist Constable Davies to restrain the appellant. During the struggle, the appellant trapped Constable Davies' right leg between his two legs and tried to roll the constable onto the floor. One of the other officers, Constable Morrow, warned the appellant she would use her taser unless he released Constable Davies' leg. She then applied the taser in 'drive stun' mode which was not effective. She made another attempt to use the taser in drive stun mode. On each occasion the taser was applied to the appellant's lower back and hips.
7 Other police officers arrived. One of them, Constable Procopis, also used a taser in drive stun mode, again to the appellant's lower back. Constable Balde then used his taser in 'probe' mode, with one of the two probes going into the appellant's lower back and one into his buttocks. This was effective to incapacitate the appellant, allowing the police to handcuff him. He was taken from the unit. Another police officer, Sergeant Pinch, then asked the appellant to provide his personal details. The appellant was abusive and refused.
8 The prosecution called an expert witness, Christopher Markham, at trial. Allanson J summarised his evidence as follows:
Mr Markham is the principal adviser to the Western Australian Police in relation to the taser, and is responsible for managing the training programme and the policy for its use. He is qualified as a master instructor in the use of tasers. He was called as an expert, and his expertise was not challenged, even when his evidence strayed into areas that were apparently outside his training and experience. That appears to have been a deliberate forensic decision by the defence, which sought to rely on several aspects of Mr Markham's evidence.
Mr Markham described the taser, and how it is operated. He described the two modes of operation: in the 'probe' mode, two probes are fired at the subject from a cartridge on the front of the weapon; in the 'drive stun' mode, the cartridge containing the probes is removed and the electrodes on the taser are applied directly to the subject. The probe mode, if effective, results in the subject being incapacitated. The drive stun mode causes pain, but not incapacitation.
Importantly, in the circumstances of this case, Mr Markham described how, in the probe mode, the two probes are discharged at an 8 degree angle to each other, so that they spread apart in flight. Over a distance of 1 m, the probes will spread about 15 cm. When the taser is held normally, the probes spread vertically. The user can turn the device so that the spread is horizontal.
Mr Markham also described, and produced photographs of, typical taser injuries. The two electrodes on the taser are 35 mm apart. In drive stun mode, these cause burns and blisters to the skin that distance apart. The electrodes are prominent and may, if moved across the skin, also cause cuts and scars. In probe mode, assuming both probes contact the subject, the distance between the marks will depend on the distance over which the taser was fired. The typical probe injury has a small and shallow penetrating wound in the centre, from the point of the probe, if the probe has struck bare skin or has penetrated the clothes. The probe also leaves a regular mark, a bruise caused by the shoulder of the probe.
Mr Markham described how the device records its use, and how that record can be downloaded. The record shows each occasion of use, although it does not record whether that use was in drive stun or probe mode [15] - [19].
9 The defence case was relevantly as follows. The appellant testified that when the police entered Ms Babic's living room, he was sitting on the couch. Constable Davies asked him to stand so that he could be handcuffed. When Constable Davies told him that he was not under arrest, he told the police that he would remain seated. Constable Morrow then fired the taser at him, while he was sitting on the couch, hitting him in the chest. She fired from about a metre away. The two probes hit him just below the heart. They were about 3 - 5 cm apart. Constable Davies then lifted the appellant's shirt, exposing his chest, and Constable Morrow fired again, hitting him in about the same place. The two firings were around 10 seconds apart.
10 The defence sought to rely on medical records prepared at Royal Perth Hospital (RPH) on 16 June 2009, three days after the incident, which included a short report written by an Emergency Department Registrar with the comment: 'Four small marks on lower left chest anteriorly (from tazer gun)'. The medical records were admitted, but the report of the Registrar was not admitted as to the truth of that statement. The magistrate held that the report was made for the purpose of the preparation of a defence to the charges, and was not rendered admissible by s 79C of the Evidence Act 1906 (WA). That ruling was not challenged in the single judge appeal.
11 The defence also relied on a series of seven photographs taken by the appellant with his mobile phone on 14 July 2009 (exhibit 23) said to show the injuries to his chest caused by the taser. The appellant testified that the marks he photographed were caused in that way. The defence showed those photographs to Mr Markham and asked in cross-examination whether, in his opinion, the marks shown in the photographs of the appellant's chest could have been caused by a taser used in probe mode from a distance of about a metre. Mr Markham said that his considered opinion was that the marks were not consistent with a taser used in probe mode and he did not believe they were probe marks. Mr Markham, in evidence-in-chief, had given evidence about the typical appearance of taser injuries, from his experience of having seen many of them. He also produced photographs illustrating the typical injuries (exhibit 19).
12 The defence case at trial was that the police were acting outside their lawful functions at the time the appellant was alleged to have assaulted and obstructed Constable Davies and when Sergeant Pinch asked for his particulars and that the police evidence was a fabrication designed to cover up the unlawful conduct of Constable Morrow.
13 Mr Markham completed his evidence on 29 March 2012. The appellant began his evidence on 30 March 2012. The trial was adjourned on 30 March to 16 April 2012 for the appellant to complete his evidence. On 16 April 2012 after the appellant completed his evidence, defence counsel requested an adjournment of the trial. Counsel told the court that he had located a medical practitioner in the United Kingdom who was a taser expert. He said he did not yet have a report but should have one within 48 hours about whether Mr Markham's evidence about the marks shown in the photographs taken by the appellant was correct. The potential witness, Dr Bleetman, had examined the photographs but required a lot more material. Counsel also told the court that he had not organised a witness before trial because he did not think that issue would be taken 'or expert evidence would be adduced as part of the prosecution case as to the veracity of the photograph the defence produced'. The prosecutor opposed the adjournment.
14 In refusing the adjournment, the magistrate said:
It is the case that Mr Brennan [defence counsel] quite properly says that the ordinary rules would apply as to whether or not an adjournment should be granted and as to when it should be granted etc. The reality is this, that in order to call expert evidence one has to give proper notice, one has to give proper notice through the court system at the trial allocation dates etc. All of these things should be done.
The basic rule is that there should be no adjournment simply because of a lack of preparation. It may well be that Mr Brennan and/or his client has just discovered a person who might say what might be something different from what has been apparent in this case. The reality is this, that photographs were produced by the defence and during the cross-examination questions were put to Mr Markham, the expert on tasers in this State.
It was during cross-examination that these issues were raised … But the real issue is that it was the defence who drew that evidence out. It wasn't the prosecution because the prosecution didn't have the photographs. Now, in order to and on my view impugn their own evidence which was drawn by cross-examination it is sought to try and change the nature of the material which was brought out by the defence.
It is quite clear that it is, in my view, far too late to adjourn this trial so that, as [prosecuting counsel] has put, an entirely speculative issue can be brought into play by someone in England or perhaps anywhere else. I'm of the view that the matter has been going on for a long time. It should have been prepared if this was going to arise. It is the case that it was the defence who had the photographs. It is the case that it was the defence who presented the photographs and it is the case that the prosecution had to deal with them without having ever seen them.
I'm not of the view that there is any extra probative value in perhaps finding something from England in relation to the alleged taser marks on the chest of the accused. I'm not of the view that this is a matter which [should] properly be stopped and adjourned. I am of the view that the matter should proceed. The application for a further adjournment is denied (16/4/12, ts 85).
15 Allanson J concluded that the magistrate had not erred in refusing the adjournment. He said:
A party asking for a favourable exercise of the court's discretion should put sufficient material before the court to support the order it seeks. The information put before the court on the application to adjourn was that the defence did not yet have a report, and did not know what the expert would say. At its highest, the defence had an initial response that the marks 'could be' consistent with two laser discharges. On that material, the refusal of the adjournment would not cause serious injustice to the accused. I am not satisfied that his Honour erred in refusing the adjournment.
I am also satisfied that there was no substantial miscarriage of justice as a result of refusing the adjournment. At the hearing of the appeal, Mr Lund sought to rely on a report later obtained from Professor Bleetman, dated 5 August 2012 …
Professor Bleetman comments on eight marks shown on the photographs sent to him. Three of them he describes as unclear and possibly small bruises or blemishes on the skin. One is described as a classic taser mark. It is not one of the marks on Mr Lund's chest. The other four are described as circular, small dark areas on the skin, and the photograph as 'not of best focus'. The distance between them cannot be accurately determined.
Of these four marks on the chest Professor Bleetman says:
Incomplete barb penetration such that the barrel of the barb is not flush against skin would produce a less distinct signature mark which could resemble a small circular bruise. This could explain the appearance of [the marks]
He notes they are 'consistent with marks that could have been made by Taser probes through clothing or incomplete barb penetration into bare skin' if the distance between them is greater than 2.4 cm. He could not estimate the distance between them from the photograph.
The evidence of Professor Bleetman neither shows Mr Lund to be innocent, nor raises such a doubt about his guilt that the verdict should not be allowed to stand: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510. I am not satisfied that the absence of the evidence from the trial was, in effect, a miscarriage of justice: Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395, 402 and 410 [86] - [91].
16 The appellant, who represented himself in the single judge appeal and in the appeal to this court, relies on six grounds of appeal all of which are extensively particularised. In summary, the appellant claims that Allanson J erred:
1. in finding that the refusal of the magistrate to grant an adjournment to the appellant was justified;
2. in failing to properly consider the magistrate's ruling in respect of the admission of the appellant's medical records prepared by RPH dated 16 June 2009 under s 79C of the Evidence Act 1906 (WA);
3. by summarising the expert evidence adduced through Mr Markham and the report prepared by Dr Bleetman, effectively altering the substance of its meaning;
4. by failing to consider and make a collective assessment based on the other findings on appeal in respect of the magistrate's conduct of the trial in relation to ground 3;
5. in failing to find that the convictions were unsafe and unsatisfactory having regard to evidence that was not disclosed to the appellant, his solicitors or counsel by the prosecution prior to or at the time of trial;
6. by accepting the magistrate's reasons for refusing the adjournment of the trial.
17 The appellant relies on detailed written submissions that have been supplemented by further detailed written submissions filed after the leave hearing. The appellant seeks to reargue the defence case at trial rather than focus on the alleged errors made by the magistrate and Allanson J.
18 The focus of this application for leave must be on the grounds of appeal. Leave of the court is required for each ground of appeal and the court must not give leave to appeal on a ground unless it is satisfied the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9, s 18.
19 I propose to deal with the specific grounds of appeal before addressing grounds 1 and 6 which are general and overlap.
Ground 2
20 The appellant claims Allanson J failed to properly consider the magistrate's ruling that the report of the RPH Registrar was not admitted as to the truth of its contents.
21 The ground is without merit. The magistrate's ruling on that subject was not challenged in the single judge appeal. Moreover, any challenge would have been bound to fail. The party seeking to rely on s 79C of the Evidence Act 1906 (WA) bears the burden of establishing the admissibility of the evidence in question.
22 Section 79C(4)(c) provides that in any criminal proceedings a statement in a document which was made in the course of or for the purpose of the preparation of a defence to a charge for any offence is inadmissible as evidence under s 79C. Section 79C(4) applies to potentially self-serving or otherwise potentially unreliable statements made for the purposes of, or in contemplation of, criminal proceedings: Beamish v The Queen [2005] WASCA 62 [164].
23 The appellant fell short of establishing that it was not open to the magistrate to conclude that the RPH document was inadmissible under s 79C. It was open on the evidence to infer that the appellant, who was charged and bailed on 13 June 2009, went to RPH for the purpose of making a record of his injuries for his defence of the charges and that the relevant statement recorded in the RPH records was made by the appellant to the Registrar (30/3/12, ts 57 - 63). This ground has no reasonable prospect of succeeding.
Ground 3
24 The appellant contends that Allanson J's summaries of the evidence of Mr Markham and the report of Dr Bleetman (the Bleetman report) effectively altered their substance.
25 Mr Markham's evidence at trial occupies in excess of 120 pages of transcript. Allanson J's summary of his relevant evidence was fair and accurate. Moreover, Mr Markham's disavowal of medical expertise (29/3/12, ts 8 - 9) does not detract from or undermine his evidence relating to the nature of injuries ordinarily caused by tasers in the probe mode and the drive stun mode (28/3/12, ts 72 - 75; 29/3/12, ts 7 - 16). In any event, the accuracy of the summary of Mr Markham's evidence is irrelevant to the question whether the magistrate erred in refusing the appellant's application for an adjournment.
26 Allanson J's summary of the Bleetman report is also fair and accurate. Accordingly, Dr Bleetman's evidence falls well short of establishing an arguable claim of a miscarriage of justice. Ground 3 has no reasonable prospect of succeeding.
Ground 4
27 This ground raises matters that travel well beyond the only relevant question in this appeal being whether the magistrate erred in refusing to grant an adjournment. In his particulars the appellant relies on the fact that Allanson J did not accept the magistrate's finding that the appellant was 'stimulated and befuddled' by his use of eight dexamphetamine a day together with a consumption of beer and whisky [41] - [42].
28 The appellant also relies on assertions that the magistrate (1) failed to apprehend the potential bias of Mr Markham; (2) rejected the appellant's case relating to the unlawful use of force; (3) failed to give adequate reasons for adjourning the trial for two weeks during the appellant's examination-in-chief; and (4) had a disposition in favour of the prosecution case.
29 Allanson J did not consider these matters in the challenge to the magistrate's refusal to adjourn the hearing because they were not raised in ground 3 of the single judge appeal. I would refuse to grant leave to raise these new matters in this appeal. Propositions (1), (3) and (4) have no direct bearing on the correctness of the magistrate's decision, which was clearly correct, and are not shown to have any proper factual foundation. Ground 4 has no reasonable prospect of succeeding.
Ground 5
30 Ground 5 relates to the non-disclosure by the prosecution prior to trial of documents that became exhibits 18 and 19. Exhibit 18 is described as a computer download from the asset management system of Western Australian Police. It showed the location and ownership of individual tasers. Exhibit 19 is the photographs obtained by Mr Markham from Taser International showing how a person's skin looks immediately, and 48 hours, after being tasered both in drive stun mode and in probe mode. There was no objection by the defence to the tender by the prosecution of exhibits 18 and 19.
31 There is nothing to indicate that the appellant's very experienced defence counsel was taken by surprise or disadvantaged in his cross-examination of the expert. No adjournment was sought to enable him to deal with the material. Both exhibits were tendered on 28 March 2012 and the cross-examination started on that day and continued the following day, 29 March 2012.
32 There was nothing to connect the content of exhibits 18 and 19 with the appellant's failure to obtain an expert report as to the cause of the marks on his chest the subject of exhibit 23. Further, the appellant's counsel acknowledged that the prosecution could not have provided pre-trial disclosure of exhibits 18 and 19 because it did not have prior notice of the appellant's photographs and his defence (16/4/12, ts 79).
Grounds 1 and 6
33 The particulars to grounds 1 and 6 raise a grab bag of propositions. The appellant contends that (1) the Bleetman report 'inferred the appellant was tasered to the chest unlawfully prior to the allegations relating to' the public officer offences; (2) the magistrate's reasons for refusing the adjournment application 'were unreasonable and cannot be supported by the evidence'; (3) the magistrate failed to properly consider the adjournment application in the context of the whole of the evidence; (4) the magistrate could not make findings as to the provenance of the wounds in exhibit 23 'as the prosecution expert was unqualified' and accordingly there was no evidence adduced at trial; (5) the appellant wanted to adduce independent expert evidence as to the provenance of those wounds; (6) the magistrate found the defence allegations of unlawful use of force had not been made out and accepted the prosecution's submission, finding to the effect that further evidence was of limited probative value; (7) the magistrate failed to properly consider the appellant's evidence and failed to provide adequate reasons for finding the appellant guilty beyond reasonable doubt; (8) Allanson J failed to conduct a systematic analysis of the probative value of the expert witness evidence which was a fundamental error; (9) the basis of Mr Markham's 'considered' opinion was not clearly established; and (10) the whole of the evidence had not been properly considered in the context of the matters being decided.
34 Proposition (1) misstates the effect of the Bleetman report. Proposition (2) confuses the test for setting aside a verdict with the test for error in the exercise of an unfettered discretionary power relating to adjournments.
35 Propositions (3), (6) and (8) are inconsistent with the express terms of the reasons and depend on accepting the correctness of the appellant's attack on that part of Mr Markham's evidence adduced by the defence in cross-examination.
36 As to propositions (4), (5), (7), (9) and (10), they confuse the adjournment application and the subsequent verdicts. The appellant's evidence was the sole evidentiary foundation at trial for the defence case that the police had acted unlawfully. His evidence was positively rejected by the magistrate. In the circumstances the magistrate was not required to make a finding as to the 'provenance' of the appellant's chest marks. Allanson J's summary of the Bleetman report is correct. The report falls short of establishing any miscarriage of justice.
37 The magistrate did not err in refusing the appellant's application to adjourn the trial for the reasons given by Allanson J.
Conclusion
38 None of the grounds of appeal have a reasonable prospect of succeeding. Accordingly, leave to appeal is refused on all grounds and the appeal is taken to be dismissed.
39 BUSS JA: I agree with McLure P.
40 MAZZA JA: I agree with McLure P.
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