Lund v Davies
[2013] WASC 52
LUND -v- DAVIES [2013] WASC 52
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 52 | |
| Case No: | SJA:1072/2012 | 4 DECEMBER 2012 | |
| Coram: | ALLANSON J | 5/03/13 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | ERIC LOUIS LUND MATTHEW JONATHON DAVIES |
Catchwords: | Criminal law Appeal against conviction Particular grounds of appeal Issues of credibility Duty to deliver reasons for decision Turns on own facts Criminal procedure Adjournment of trial |
Legislation: | Criminal Appeals Act 2004 (WA), s 14, s 40 Criminal Code (WA), s 24, s 25 Criminal Procedure Act 2004 (WA), s 62, s 63, s 75(2) Magistrates Court Act 2004 (WA), s 31 |
Case References: | Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Baini v The Queen [2012] HCA 59 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bennett v Carruthers [2010] WASC 5 Bennett v Carruthers [2010] WASCA 131 CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Douglass v The Queen [2012] HCA 34 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Lewis v The State of Western Australia [2008] WASCA 94 Lyster v Kemp [2010] WASC 47 Mano v Iriks [1999] WASCA 180 Manonai v Burns [2011] WASCA 165 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Pallett v Paul [2007] WASC 290 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 Trivett v Zoccoli [2002] WASCA 138 Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 Weary v Stok (1986) 3 MVR 411 Weir v Tomkinson [2001] WASCA 77 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MATTHEW JONATHON DAVIES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K M BOOTHMAN
File No : PE 37706 of 2009, PE 37707 of 2009, PE 37708 of 2009, PE 37709 of 2009, PE 37710 of 2009
Catchwords:
Criminal law - Appeal against conviction - Particular grounds of appeal - Issues of credibility - Duty to deliver reasons for decision - Turns on own facts
Criminal procedure - Adjournment of trial
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14, s 40
Criminal Code (WA), s 24, s 25
Criminal Procedure Act 2004 (WA), s 62, s 63, s 75(2)
Magistrates Court Act 2004 (WA), s 31
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms G M Cleary
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
(Page 3)
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Baini v The Queen [2012] HCA 59
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASC 5
Bennett v Carruthers [2010] WASCA 131
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Douglass v The Queen [2012] HCA 34
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Lewis v The State of Western Australia [2008] WASCA 94
Lyster v Kemp [2010] WASC 47
Mano v Iriks [1999] WASCA 180
Manonai v Burns [2011] WASCA 165
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Pallett v Paul [2007] WASC 290
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Trivett v Zoccoli [2002] WASCA 138
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Weary v Stok (1986) 3 MVR 411
Weir v Tomkinson [2001] WASCA 77
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
(Page 4)
1 ALLANSON J: On 21 June 2012, Eric Louis Lund was convicted on five charges that were brought against him after an incident on 13 June 2009. He was convicted of assaulting Ms Natalie Babic, and of being in her dwelling without her consent and assaulting her again. The other three convictions relate to Mr Lund's conduct following the arrival of police.
2 Mr Lund seeks leave to appeal from each of the convictions. There are three grounds of appeal. Grounds 1 and 2 allege error in law and in fact affecting the convictions for offences against Ms Babic. Ground 3 challenges a procedural decision in the course of the trial, when the magistrate refused Mr Lund an adjournment to enable him to obtain expert evidence. Mr Lund wanted to produce that evidence to show that the police were not acting in the course of their duty because they had unlawfully tasered him. He says the decision to refuse an adjournment affects the decision to convict on each of the other three offences.
3 Although the events occurred in July 2009, the trial proceeded only in 2012. Evidence was given over 10 days in March and April. The adjournment application was made on the last day of evidence, 16 April 2012. The magistrate heard closing submissions on 18 May 2012. On 21 June 2012 the magistrate convicted Mr Lund and sentenced him. The magistrate was required to give reasons for his decision. He gave short oral reasons for his decision at the time he convicted. Sometime later, I have not been told when, he provided written reasons for the decision.
The charges
4 Mr Lund was charged on a prosecution notice which set out five offences. The notice, after amendments, alleged that on 13 June 2009 Mr Lund:
1. without consent was in the dwelling of Natalie Maree Babic and committed the offence of assault;
2. unlawfully assaulted Natalie Maree Babic under circumstances of aggravation, namely the accused is in a domestic or family relationship with the victim;
3. assaulted one Constable Davies a public officer then performing a function of his office;
4. when requested by Sergeant Pinch, a police officer, to supply personal details, namely name and address, refused to do so; and
(Page 5)
- 5. obstructed Constable Matthew Davies, in the performance of the officer's functions.
The case against Mr Lund
5 Mr Lund and Ms Babic were in a domestic or family relationship. Early in the morning of 13 June 2009, they were at Ms Babic's unit. They had been out the night before to her brother's house, and had been drinking there, and again when they returned to Ms Babic's unit.
6 The unit had four levels, with the living room and kitchen on the first floor. Ms Babic and Mr Lund were sitting on two sofas: Ms Babic was on a sofa against the wall, and Mr Lund was on a sofa against the window. The prosecution alleged, in opening, that Mr Lund 'jumped onto her … [and] pushed her over the arm of the couch'. She was able to get up off the couch and walk away. Mr Lund followed her, and while still in the lounge room 'slapped or punched her around the head'. Ms Babic then moved into the kitchen area. Mr Lund followed and pushed her up against the kitchen bench and tried to pull her pants down. After that, he slapped her to the face four or five times.
7 Mr Lund then left the unit to make a cigarette for himself. He had to go to his car to get cigarette papers. While he was outside, Ms Babic locked the door to prevent him from re-entering. She also threw his scarf and perhaps his beanie outside. Mr Lund returned to the house and banged on the front door, and then banged on the window. While he was doing this, Ms Babic phoned the police. Mr Lund kicked the window, causing it to break. He entered the house through the broken window and went upstairs to where Ms Babic was on the first floor. Ms Babic fled to a window. Mr Lund followed her, he shook her by the arms, and abused her and hit her.
8 The police arrived. One of them, Constable Davies, advised Mr Lund that he was under arrest, and tried to guide him away from Ms Babic and also away from the window. Mr Lund became abusive and resisted that attempt. He wrestled with Constable Davies and fell to the sofa, pulling Constable Davies with him.
9 Two female officers tried to assist Constable Davies to restrain Mr Lund. During the struggle, Mr Lund trapped Constable Davies' right leg between his two legs and tried to roll the Constable onto the floor. One of the other constables, Constable Morrow, warned Mr Lund she would use her taser unless he released Constable Davies' leg. She then applied the taser in 'drive stun' mode (explained below). This was not
(Page 6)
- effective. She made another attempt to use the taser in drive stun mode. On each occasion the taser was applied to Mr Lund's lower back and hip.
10 Other officers arrived. One of them, Constable Procopis, also used a taser in drive stun mode, again to Mr Lund's lower back. Constable Balde then used his taser in the 'probe' mode, with one of the two probes going into Mr Lund's lower back and one into his buttocks. This was effective to incapacitate Mr Lund, allowing the police to handcuff him. He was taken from the unit. A police sergeant, Sergeant Pinch, then asked Mr Lund to provide his personal details. Mr Lund was abusive and refused.
The defence case
11 The defence denied the assault and said that Ms Babic had assaulted Mr Lund by punching him on his right ear. In opening, counsel for Mr Lund set out additional matters on which the defence would rely. He said that shortly before Mr Lund left the unit to get his cigarette papers, Ms Babic had been expressing anxiety about her mental state. She had previously expressed ideations of self harm. When Mr Lund tried to re-enter the unit, he thought he had inadvertently locked himself out. He had not been told not to re-enter, and he was anxious that Ms Babic not harm herself. He did not intentionally break the window. When he entered the unit he approached Ms Babic to move her away from the open window on the first floor.
12 When the police arrived Mr Lund sat on the couch to wait for them to come up. While he was sitting there, and without any warning, he was tasered twice to the chest by Constable Morrow. The taser was used in the probe mode and from a distance of about 1 m. The defence said that the police were acting outside their lawful functions at the time that Mr Lund was alleged to have assaulted and obstructed Constable Davies, and when Sergeant Pinch asked for his particulars. Mr Lund also asserted that the taser caused him to have an involuntary muscle contraction which resulted in him trapping Constable Davies' leg.
13 In the course of the trial, and on appeal, Mr Lund put forward two theses. First, that Ms Babic had set him up to have him arrested by the police, perhaps out of revenge for an incident that had occurred the previous year when he had been instrumental in having her brother arrested. Second, the police evidence was a fabrication designed to cover up the unlawful conduct of Constable Morrow in twice tasering Mr Lund while he was sitting on the couch.
(Page 7)
The evidence of Christopher Damien Markham
14 The prosecution called an expert witness, Christopher Damien Markham. His evidence about the use of tasers is essential to understanding some of the other evidence, and to ground 3, so I will outline it now.
15 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.
16 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.
17 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.
19 Mr Markham described how the device records its use, and how that record can be downloaded. The record shows each occasion of use,
(Page 8)
- although it does not record whether that use was in drive stun or probe mode.
The decision and reasons for decision
20 A judicial officer has a duty to deliver reasons for decision. The many decisions of this court to that effect are conveniently summarised by Hall J in Bennett v Carruthers [2010] WASC 5 [14] - [21]. For a magistrate, that obligation and the content of the reasons are now set out in the Magistrates Court Act 2004 (WA) s 31:
(1) The Court’s reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
21 The content of the obligation under s 31 is not the same in every case and depends very much on the circumstances of the particular case, the question of compliance with such provisions raises questions of degree. Determining whether reasons are adequate may involve a consideration of what can be legitimately inferred from the reasons. See Bennett v Carruthers [2010] WASCA 131 [25] - [27]; Manonai v Burns [2011] WASCA 165 [53] - [55].
22 The obligation on the court to identify the facts that it has accepted and give the reasons for doing so requires it to set out findings on why it has accepted one set of evidence over conflicting significant evidence: Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 [32]; Manonai v Burns [55]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. In a criminal trial the court must determine whether the evidence as a whole proves the elements of the offence beyond reasonable doubt. It may be not be sufficient, where there are conflicting accounts, for the court to state it believes one witness in preference to another: Douglass v The Queen [2012] HCA 34 [12].
(Page 9)
23 Further, it is not sufficient that the court be satisfied of the truthfulness of a witness. There is a distinct question of the reliability of the evidence: Douglass [15].
24 In delivering oral reasons for convicting Mr Lund on each charge, his Honour said that, while he had completed written reasons, they had only been delivered to him that morning and had not yet 'been rejigged in the proper form'. He continued: 'I will put the decision in a nutshell at this point. I hope it will be sensible enough for the parties'. His reasons were brief. The written reasons later provided differ from those given orally in several respects. At an obvious level, they are much longer. What was recorded in three pages of transcript was expanded to about 40 pages and 113 paragraphs. More importantly, there are several matters that are included in the document but not touched on in the oral reasons.
25 It is not unusual for oral reasons to be later published in a revised or edited form. When that is done, it is quite proper for the court to revise them 'to correct mistakes of transcription, errors of grammar or infelicities of style, or where by reason of an error the reasons plainly misstate what the decision-maker meant to say, and also to clarify the reasons as expressed orally': Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [56]. The substance of thereasons should not be altered.
26 The existence of two such different sets of reasons is unusual. The effect of there being two sets of reasons was not fully argued, which is understandable when Mr Lund was not represented on appeal. I will refer to both. If it were necessary to resolve any inconsistency between them, my opinion, at least provisionally, is that the reasons delivered orally at the time the conviction was recorded and before sentencing are the reasons to which I should have regard to the extent of the differences between them.
27 The adequacy of the reasons was not a ground of appeal. But consideration of that issue is necessarily involved in examination of ground 1(3) and (4), each of which alleges error by failing to consider whether the prosecution had rebutted certain matters beyond reasonable doubt. It also affects the consideration of ground 2, where the question of why Ms Babic's evidence was accepted over the evidence of Mr Lund is directly raised.
(Page 10)
The Grounds
Ground 1
28 This ground has four parts which raise discrete issues. It is directed to the conviction for burglary.
1) The learned Magistrate erred in fact in finding the Complainant had withdrawn her consent for the Appellant to re-enter the Complainant's premises;
2) The learned Magistrate erred in fact in finding the Complainant had communicated to the Appellant consent to re-enter the Complainant's premises had been withdrawn;
3) The learned Magistrate erred in law in failing to consider whether the Respondent had rebutted beyond reasonable doubt the Appellant's honest but mistaken belief his right to re-enter the Complainant's premises had not been withdrawn (S 24 Criminal Code);
4) The learned Magistrate erred in law in failing to consider whether the Respondent had rebutted beyond reasonable doubt the Appellant's belief a sudden and extraordinary emergency existed, and his acts were a necessary response to the emergency, (S 25 Criminal Code), and if not so, failed to consider whether, the Appellant held an honest but mistaken belief in that regard (S 24 Criminal Code).
29 It is convenient to deal first with parts 3 and 4 of this ground. Sections 24 and 25 of the Criminal Code (WA) provide matters of exculpation on which an accused person has an evidentiary onus.
30 Mr Lund gave evidence that in about late May 2009, approximately two weeks before the incident, he went to Ms Babic's unit and found her to be in a 'dejected' state. Ms Babic told him how depressed she was, that she had been staying in bed the whole time, and was not happy with her life. In the course of that conversation she mentioned suicide and said she admired people who committed suicide. Mr Lund found the kitchen of the unit to be piled with dirty dishes and filthy. Ms Babic had also told him, earlier that year, that she had 'the strongest sleeping pills in the universe' and showed them to him.
31 On the night of the incident, after they had returned to her unit from her brother's house, he sat and spoke to Ms Babic. One of the matters they discussed was whether she would undergo a psychiatric assessment. Mr Lund had arranged the assessment because of her behaviour, including
(Page 11)
- apparent delusions. He also had offered to pay for any subsequent treatment. At this time Ms Babic began shadow boxing, and said she felt like hitting someone. Shortly afterwards she swung a roundhouse punch directly onto his right ear. Mr Lund said that it was then that he pushed her against the arm of the couch and held her there for about two seconds while he told her to stop hitting him. Ms Babic then went to the kitchen. He asked her if she had any cigarette papers, and got no response. Ms Babic began to taunt him, inviting him to hit her, and tried to hit him again.
32 Mr Lund then left the unit to get cigarette papers from his car. He was asked what was in his mind as to whether he could re-enter. He said that he had often stayed at the apartment in the spare room, he had been there since the previous evening and had gone with Ms Babic to her brother's place. He had discussed with her, at the time they opened a bottle of scotch earlier that morning, that he would not be able to drive and would stay there. She had previously asked him whether he was staying upstairs or going home. Mr Lund said that he had no reason to believe that his authority to be there had been revoked. He said she gave him no kind of sign, and did not say anything at all.
33 When he returned from his car and found the door was locked he thought he may have inadvertently locked himself out. He had done so before. He knocked on the door, but avoided the intercom because he did not want to make the dog bark. He called out to Ms Babic through a window. Mr Lund said at this stage he was becoming anxious that something else may have occurred and that Ms Babic might have been harming herself, or intending to do so. He became concerned for her welfare and kicked the window. He said that he did not then intend to break it, but eventually probably would have broken it.
34 When he entered the apartment through the broken window, he was concerned at the situation. He called out, 'Don't do it, Natalie' and was, he said, genuinely concerned for her welfare. When he went to the first floor Ms Babic approached him, and started 'flailing her arms and sort of moving back towards where she had come from'. Mr Lund said that he approached her because he wanted to avoid being hit by her, and also wanted to guide her away from the open window.
35 In effect, Mr Lund said that he believed that Ms Babic had not withdrawn her consent for him to re-enter, but that he had mistakenly locked himself out. He also said that he entered, believing that it was a necessary response due to his belief that Ms Babic may have intended to
(Page 12)
- harm herself. On that evidence, there was material before the court capable of raising the exculpatory matters under s 24 and s 25, and the prosecution was required to negative each of them beyond reasonable doubt: CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8], [35]; Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 333 - 334, Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 - 162.
36 The magistrate did not expressly refer to either section. The failure of the magistrate to expressly mention a matter is not conclusive. The court may infer that the magistrate has taken relevant matters into account.
37 With regard to mistake, the magistrate said nothing in his oral reasons. He found that Mr Lund had no right to re-enter, but did not refer to Mr Lund's belief about whether he had that right.
38 In his written reasons he said:
Notwithstanding the accused's evidence that he thought that the consent had not been withdrawn the facts are entirely against him. When the accused had been told to leave Babic's house there was a clear direction that he was not entitled to remain there. He in fact had been in the middle of a domestic row with Babic in her tenancy holding. All of the evidence shows that on a number of occasions she told him to leave and get out of her dwelling. The accused did leave and the door was locked behind him. Notwithstanding him banging on the door, kicking on the window and rapping on the window, which grew progressively louder, talking on the intercom and then finding his hat and scarf in the street, the accused continued to the extent where he smashed a large window in and entered the dwelling.
39 While his Honour did not refer to s 24, the findings are to the effect that Mr Lund had been told he could not remain, had been locked out, and refused entry despite his banging on the door and kicking the window. In effect, the magistrate found that Mr Lund had, or could have had, no reasonable belief that he was entitled to remain. That finding was open on the evidence, in particular, the uncontroverted evidence that Mr Lund was required to kick in a window in order to re-enter the unit, after repeatedly knocking and calling for Ms Babic to let him back in.
40 Can the court have regard to what was said in the written reasons, when the reasons given at the time of conviction do not deal with s 24? Because of the conclusion I have reached with regard to ground 1(4), it is not necessary to resolve this question.
(Page 13)
41 The magistrate dealt with emergency in both his oral and his written reasons. In his oral reasons, the magistrate said that Mr Lund had ex post facto found in his own mind that he entered to save Ms Babic from doing herself some harm, but that he could not 'in any reasonable circumstances' have come to that conclusion. Later, the magistrate said 'I am not satisfied that he broke in to save her. I can say that conclusively because on his own evidence, he was in enough control to understand that when he saw the police arriving, things would look bad for him'. His Honour said, in all likelihood, Mr Lund was 'stimulated and befuddled' by his use of eight dexamphetamine a day (for the treatment of ADHS), together with the consumption of beer and whisky. Dexamphetamine and beer and whisky 'are always a potent mix and very often give rise to this type of conduct which was a typical form of conduct'.
42 There are some obvious difficulties with these findings. First, there is an apparent reversal of the onus of proof. Second, the conclusion that Mr Lund did not break into the house to save Ms Babic does not follow logically from the fact that he later understood, when the police arrived, that things would look bad for him.
43 More generally, the expressed findings that dexamphetamine and beer and whisky 'are always a potent mix and very often give rise to this type of conduct' and that it was 'a typical form of conduct' are not based on any evidence given in the trial. There was no evidence about the effect of the dose of dexamphetamine which Mr Lund was taking. His evidence that it was a prescribed dose for a medical condition was unchallenged. There was no evidence about the effect of alcohol in combination with the medication.
44 In his written reasons, the magistrate referred to Mr Lund's belief that Ms Babic might harm herself if he did not re-enter. He continued:
It is quite clear that the accused had developed a Svengali type of personality approach toward Babic. He wanted to change her. He said he wanted to check her psychiatric condition. He knew that she drank heavily. He knew that this caused a problem. He also, on his own evidence, knew that the accused [sic] had told him not to come to her house. Notwithstanding all of that the accused [sic] took steps to break into her house after he had left it. When he entered the house he then took hold of the accused [sic] in her alarmed state while she was screaming and yelling. He took a typical approach in circumstances such as this in that he said that he was concerned about what the neighbours might say. He also was rational enough to understand that things did not look good from the police perspective as he looked down upon them on their arrival. That is
(Page 14)
- why he says he took his hands off the accused [sic] when the police arrived.
45 These remarks do not address the issues raised by s 25 of the Code.
46 I am satisfied that Mr Lund has made out the complaint in ground 1(4). I cannot, on reading the oral and written reasons, find that the magistrate considered whether the prosecution had proved that Mr Lund did not act in circumstances where he was entitled to be found not guilty by reason of s 25. While he mentioned Mr Lund's belief that Ms Babic may harm herself, that discussion was sidetracked by a series of irrelevant considerations (such as the 'Svengali' personality remarks) and conclusions unsupported by any evidence. To the extent that he dealt with s 25 in his oral reasons, his Honour appears to have wrongly placed the onus of proof on Mr Lund.
47 Under s 14(2) of the Criminal Appeals Act 2004 (WA), even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. The court must itself decide whether a substantial miscarriage of justice has actually occurred. That task must be performed 'with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction': Weiss v The Queen[2005] HCA 81; (2005) 224 CLR 300 [39]. There are numerous possible kinds of miscarriage, and there can be no single test. But substantial miscarriage includes a case where there has been an error or an irregularity in, or in relation to, the trial and the appeal court cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial: Baini v The Queen [2012] HCA 59 [26]. This is such a case. I cannot be satisfied that the failure of the magistrate to properly consider the issues arising under s 25 did not make a difference to the outcome of the trial. I am not in a position, on consideration of the transcript, to make the findings that need to be made as to Mr Lund's credibility before it can be determined whether the prosecution has proved that s 25 does not exculpate him.
48 I grant leave with respect to ground 1(4), and would allow the appeal on that ground.
49 That finding is sufficient to set aside the conviction for burglary (prosecution notice PE 37706 of 2009). It is unnecessary to resolve the questions arising out of the presence of two sets of reasons in relation to ground 1(3), and, as it was not fully argued, I will not do so.
(Page 15)
50 Nor is it necessary to determine whether there was an error of fact as alleged in grounds 1(1) and 1(2). To some extent those grounds relate to the credibility of Ms Babic, which is the subject of ground 2. But there is also objective evidence, independent of Ms Babic's credibility, on which the magistrate could have found that she withdrew her consent to Mr Lund being in her home, and communicated that to Mr Lund.
51 It would have been open to the magistrate to convict on the evidence led. Despite my reservations about Ms Babic's evidence, I should allow the appeal and order that the case be dealt with again in the Magistrates Court. It is for the prosecuting authorities to decide whether they will proceed.
Ground 2
52 This ground challenges the conviction for aggravated assault (prosecution notice PE 33707 of 2009).
The learned Magistrate erred in law and in fact in accepting the Complainant's evidence, which was inherently unreliable and not capable of proof beyond reasonable doubt.
53 In his oral reasons, the magistrate acknowledged that there were difficulties in Ms Babic's evidence. He said she drinks a very great deal but 'appeared sober throughout [the] trial'. He found her evidence was sufficient, but did not say why.
54 His written reasons are no more analytical of the difficulties in the evidence. Again his Honour referred to the fact that Ms Babic was in a stressful and difficult circumstance and under the influence of alcohol. He held, however, that her evidence was 'persuasive as to the events which took place', and found that the assault took place 'as [Mr Lund] followed her into the kitchen and hit her about the head'. At that point, the magistrate refers again to the question of credibility saying:
I make this finding notwithstanding Babic's drunkenness. Although at times scant, her evidence had a ring of truth about it as opposed to the accused's reconstruction of the events.
55 An appeal court will not lightly interfere where the primary court has made a finding based on its assessment of credibility. An appellate court cannot reverse that finding unless it is satisfied that the advantage enjoyed by the magistrate could not be sufficient to explain or justify his conclusion: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178; Weir v Tomkinson [2001] WASCA 77
(Page 16)
- [26] - [35]. Where the finding made by the trial court depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the court 'has failed to use or has palpably misused his advantage': Devries v Australian National Railways Commission[1993] HCA 78; (1993) 177 CLR 472, 479.
56 I am satisfied, however, that this is one of the cases where the court should interfere. The issues going to the reliability of Ms Babic's account are such that the observation that it had the 'ring of truth about it' is simply inadequate. She may have been an honest witness, but that is not the only question: see Douglass [15].
57 The prosecution opened on the following facts regarding the assault. First, that while they were sitting on the sofas, Mr Lund jumped onto Ms Babic and 'pushed her over the arm of the couch'. After she got up, he followed her and 'slapped or punched her around the head'. When Ms Babic moved into the kitchen area, Mr Lund followed and pushed her up against the kitchen bench and tried to pull her pants down. After that, he slapped her face four or five times.
58 In her evidence at trial, Ms Babic said that while they were sitting on the sofa, Mr Lund jumped up and began to hit her, 'punches, big clouts around the head'. He then pushed her back over the couch. After she was able to free herself and was walking to the kitchen Mr Lund punched her to the back of the head two or three times. In the kitchen, Mr Lund again 'clouted' her a couple of times across her face, including one big one which left her with a sore jaw. After this, Mr Lund tried to remove her jeans. She dropped to the floor and he pulled her up again and was shaking her. Mr Lund then left the unit and went to his car.
59 In the statement she gave to police on the day of these events Ms Babic said that Mr Lund 'slapped me across the face with an open hand, he was using both hands and I felt pain to the side of my face. The left side of my jaw is still sore. I think he hit me four or five times.'
60 When cross-examined about the discrepancy between her evidence and her statement, Ms Babic agreed that there was no reference in the statement to her being hit while on the sofa, or being hit in the back of the head while she was walking to the kitchen. She insisted that she did tell the police about the punching to the back of the head, but agreed that she signed the statement not including those allegations. She said 'I was still shook up and intoxicated'. When it was put to her that she was saying she was still drunk at 3.00 pm (the events having occurred at about 8.00 am)
(Page 17)
- she replied 'I would still have been intoxicated, yes, when I wrote the statement. Exactly'.
61 Again in cross-examination, she said that although the couch incident was not mentioned in her original statement, she rang the police a couple of days later and asked for it to be put in, but the police said they could not change her statement. She could not remember who she spoke to. When pressed about when she had contacted the police she replied:
It was within the first week, or a week, maybe two. Oh God, can't quite remember now. Then again a couple of months after. Something like that, on another couple of occasions within the first six months or so.
62 And again when pressed about the discrepancy she said:
You know, but I can't remember. But obviously I don't know what I was thinking at this - maybe it was four or five times in the kitchen, but see as far as my - you know I can't even remember it being that many times in the kitchen. Yet I remember the back of the head afterwards and didn't remember all that …
63 There were similar inconsistencies between the facts on which the prosecution opened, Ms Babic's statement to police, and her evidence at trial, in relation to the events after Mr Lund re-entered her unit. The prosecution opened on the basis that he shook and hit her. In her statement she said that after he re-entered the unit, Mr Lund shook her physically by the shoulders. She said nothing about being struck. In evidence, she said that after he came back into the flat Mr Lund was 'very close to me, physically all over me, hands everywhere'. She said nothing about being either shaken or struck.
64 The defence in cross-examination also put to Ms Babic a series of occasions when Mr Lund had recorded her, on his mobile phone, behaving in a bizarre, and sometimes in an aggressive fashion.
65 Ms Babic agreed that she had been drinking through the night before these events. They had been drinking beer and wine at her brother's place. From when they arrived at her unit early in the morning they were drinking scotch whiskey. Ms Babic said that before she began drinking whiskey she was 'pretty intoxicated' and at home she drank 'plenty' of scotch. She said, 'I decided to really get drunk that night'.
66 Her evidence was also confused at times. For example, when she was asked about whether she told Mr Lund he could stay on the night of the incident she said that she told him he could stay, but then changed her
(Page 18)
- mind, or 'I'm pretty sure I changed my mind'. When asked again whether she agreed she had changed her mind, she said:
Well, I initially said to you, if I had said that, because I can't quite remember, but what had, you know, just in case I did, and it would be like me to think of that, you know, consider that, you know, not forcing someone to drive, they'd asked to stay because of the drinking. And then I - after thinking about that I thought, 'yeah, I may very well have said yes,' which sparked off my memory about - I don't remember exactly how or where I changed my mind but I know that I must have changed my mind because I know I didn't want him to stay there at all up until whenever he'd asked, and then I sort of, you know, because I didn't want him to stay, I sort of gone back to that, I thought - that's when I thought, 'well maybe I just changed my mind.'
68 The magistrate found that Ms Babic was a 'serious drinker'. Both Constable Bool and Constable Davies said she appeared intoxicated when they spoke to her. Constable Davies said that Ms Babic rang him several times on later occasions about her statement. He said that on each occasion when she rang him she appeared to be intoxicated. Her own evidence was that she was intoxicated when she gave her police statement.
69 In the magistrate's reasons, the reference to Ms Babic's drinking is passed over. There is no mention of the wide discrepancy between her statement to the police and her evidence at trial. There is no mention of the many occasions in the course of her evidence when Ms Babic either altered her evidence or contradicted herself. While the magistrate referred to minor injuries suffered by Ms Babic that were consistent with rough treatment by Mr Lund, none of those injuries were relevant to the particularised assault by blows to the head.
70 The only basis given by the magistrate for accepting Ms Babic's evidence is that it 'had a ring of truth about it as opposed to the accused's reconstruction of the events'. That is completely inadequate in the circumstances. I am satisfied that the assessment of credibility in the witness box could not suffice to overcome these patent deficiencies in Ms Babic's evidence. On a consideration of the whole of the evidence it was not open to his Honour to accept that evidence as sufficient to prove
(Page 19)
- guilt beyond reasonable doubt, on the case particularised against Mr Lund. Leave is granted on ground 2 and the appeal is allowed on that ground.
Ground 3
71 This ground raises a single procedural issue, which affects the convictions on each of the remaining three charges.
1) The learned Magistrate erred in law in refusing to grant the Appellant an adjournment of the trial, to enable the Appellant to adduce expert evidence as to the provenance of wounds to the Appellant's chest;
PARTICULARS
a) The Appellant contended at trial he was Tasered to the chest unlawfully, prior to the allegations of Assaulting a Public Officer, Obstructing a Public Officer, and Refusing to Provide Details to a Public Officer having arisen;
b) The Appellant contended at trial that as a result of the foregoing the relevant Public Officer's were not performing a function of their office;
c) The Respondent adduced evidence at trial without notice, and without qualifying the relevant witness as an expert in regard to photographic evidence, that the said wounds to the Appellant's chest, as depicted in photographic evidence produced by the Appellant at trial, were not Taser wounds.
73 Mr Lund 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 to 5 cm apart.
(Page 20)
- Constable Davies then lifted Mr Lund'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.
74 In support of Mr Lund's account, the defence wished to prove that he had wounds to his chest from the two firings of the taser.
75 First, the defence sought to rely on medical records prepared at Royal Perth Hospital on 16 June 2009, three days after the incident. Among those records was a short report written by an Emergency Department Registrar which including 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 has not been challenged on appeal.
76 Second, the defence relied on a series of seven photographs taken by Mr Lund with his mobile phone on 14 July 2009 and said to show the injuries to his chest caused by the taser. Mr Lund testified that the marks he photographed were caused in that way.
77 Third, the defence showed those photographs to the prosecution witness, Mr Markham, and asked whether, in his opinion, the marks shown in the photographs of Mr Lund's chest could have been caused by a taser used in probe mode from a distance of about a metre. 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 injury. It was the defence who asked Mr Markham to give his opinion on whether photographs produced by Mr Lund showed injuries caused by a taser. 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.
78 There is nothing in the transcript to show that Mr Markham was called without notice. But assuming that he was, the defence did not object. At trial, although not on appeal, Mr Lund was represented by experienced counsel. Counsel did not object to Mr Markham being called, nor did he question his expertise. I am satisfied that the defence saw Mr Markham as a potentially valuable witness with regard to the issues that they were agitating about the use of tasers. There were several
(Page 21)
- matters relating to the characteristics of tasers, their use and storage, and the information downloaded from them, which the defence sought to prove through the evidence of Mr Markham. And, as noted above, it was the defence who sought to elicit evidence from Mr Markham about the photographs of Mr Lund.
79 Mr Markham completed his evidence on 29 March 2012. Mr Lund began his evidence on 30 March. The trial was adjourned on 30 March to 16 April 2012 for Mr Lund to complete his evidence. On 16 April 2012, after Mr Lund completed his evidence, the defence asked for an adjournment. Counsel told the court that he had located a medical practitioner in the United Kingdom who was a taser expert. He said that 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 Mr Lund was correct. The potential witness, Professor Bleetman, had examined the photographs but required a lot more material. He had given an initial response that the wounds shown on one photograph 'could be consistent with two taser discharges as asserted'. Counsel said that he wanted to assess whether what Mr Markham had said 'is the case, whether that is or whether it's equivocal or whether it's in fact the other way around'. Counsel told the court that he had not organised the 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'. Counsel gave no immediate estimate of the time required for the adjournment.
80 The prosecution opposed the adjournment. In particular, counsel pointed out that the evidence from Mr Markham regarding the photographs of Mr Lund's body was brought out in cross-examination, and that the application was somewhat speculative: the defence had been unable to show that the expert would be likely to be available in the future or that what he could say would be material to the case.
81 The magistrate refused the application. After outlining the circumstances, his Honour gave short reasons:
It is the case that Mr Brennan 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 for the court system at the trial allocation dates etc. All of these things should be done.
(Page 22)
- 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, the 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.
82 The Magistrates Court has a general power to adjourn a charge at any time, and may do so whether or not evidence has been given: Criminal Procedure Act 2004 (WA)s 75(2). The decision whether to grant or refuse an adjournment is in the discretion of the court. The principles to be applied in an appeal against the magistrate's exercise of discretion have been settled in a series of cases, summarised by Beech J in Lyster v Kemp [2010] WASC 47 [54] - [56]. See also Pallett v Paul [2007] WASC 290; Trivett v Zoccoli [2002] WASCA 138. In essence, where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. In particular, I agree with Beech J in Lyster v Kemp [56] that, in relation to criminal proceedings, case management is not itself a basis upon which to refuse an adjournment where the refusal would cause injustice: see also Lewis v The State of Western Australia [2008] WASCA 94 [24]. But that does not mean that the public interest, including wasted time and consequent delays to other litigants in the court
(Page 23)
- system, is irrelevant to the exercise of the discretion: Weary v Stok (1986) 3 MVR 411, 413; Mano v Iriks [1999] WASCA 180 [15].
83 The introduction of expert evidence at such a late stage in the trial may have caused significant delay in completing it. Once the defence obtained the evidence, it was required to disclose it. The prosecution may then have been granted an adjournment to investigate it, and to obtain any further evidence that may be necessary as a result of the disclosure: Criminal Procedure Act s 62 and s 63.
84 The reasons given by the magistrate do not expressly mention the basic consideration of injustice. The reasons refer to the need to give notice of expert evidence, how late it was in the trial, whether the application was the result of lack of preparation by the defence, and that the defence was seeking to impugn answers it had itself obtained in cross-examination. His Honour referred also to the possible lack of probative value of the evidence.
85 The factors to which the magistrate referred are all potentially relevant factors in the decision whether to adjourn, but they are factors to be balanced against the potential prejudice to the accused if the adjournment is not granted. There was, however, no material to demonstrate that prejudice.
86 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.
87 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. The court has discretion whether to receive the evidence: Criminal Appeals Act 2004 (WA) s 40.
88 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
(Page 24)
- 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.
89 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]
90 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.
91 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.
92 I would refuse leave with regard to ground 3 and dismiss the appeal against the convictions on prosecution notices PE 37708, PE 37709, and PE 37710 of 2009.
Conclusion
93 Leave is granted with regard to the appeal on grounds 1 and 2, and the appeal is allowed on those grounds.
94 The conviction on prosecution notice PE 37706 of 2009 and the sentence imposed are set aside. On the basis on which I have allowed the appeal, under s 14(1)(e) of the Criminal Appeals Act, I order that the case should be dealt with again by the Magistrates Court. The magistrate who decided the matter originally has now retired, and it is unnecessary to make any orders regarding the constitution of the court.
95 The conviction and sentence on prosecution notice PE 37707 of 2009 are set aside, and the charge on that notice should be dismissed.
96 I refuse leave to appeal with regard to prosecution notices PE 37708, PE 37709 and PE 37710 of 2009, and dismiss those appeals.
4
26
0