MARGJINI v Zampogna
[2004] WASCA 162
•5 AUGUST 2004
MARGJINI -v- ZAMPOGNA [2004] WASCA 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 162 | |
| Case No: | SJA:1125/2003 | 31 MAY 2004 | |
| Coram: | LE MIERE J | 5/08/04 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Convictions set aside, Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | EDMOND MARGJINI AARON MICHAEL ZAMPOGNA |
Catchwords: | Criminal law Assault Appeal Error of law Amendment of complaint under s 46 Justices Act Whether applicant entitled to call evidence after Magistrate had amended complaint Criminal law Assault Appeal Section 46 Justices Act Accused tried summarily on charge of assault occasioning bodiy harm may not be convicted of common assault unless charge amended pursuant to s 46 Tme at which amendment to be made Magistrate empowered to amend at any time prior to decision Discretionary power not to be exercised where it would cause irretrievable prejudice to accused Criminal law Assault Appeal Section 46 Justices Act Whether amendment would cause prejudice to accused Refusal of Magisrate to allow accused to reopen case Magistrate erred in law Upon amendment accused entitled to meet the new charge Criminal law Assault Appeal New evidence Principles of new evidence New or fresh evidence may provide basis of appeal Whether new evidence may be considered "fresh" Whether new evidence capable of belief by jury Whether new evidence sufficient to establish innocence or raise sufficient doubt as to guilt Whether interests of justice require new evidence to be taken into account |
Legislation: | Criminal Code (WA), s 313, s 317, s 689 Justices Act 1902 (WA), s 46, s 47, s 199 |
Case References: | Dorrington v G (a child) (1992) 16 MVR 453 Easterday v The Queen [2003] WASCA 69 Hedge v Thurstun [2001] WASCA 43 Ilic v The Queen [2000] WASCA 411 Mitchell v Myers (1955) 57 WALR 49 Ratten v R (1974) 131 CLR 510 Starling v Ostrowski (2001) 24 WAR 61 Bond v R (1992) 62 A Crim R 383 Button v The Queen (2002) 25 WAR 382 Craig v R (1933) 49 CLR 429 Gallagher v R (1986) 160 CLR 392 Higgon v O'Dea [1962] WAR 140 Leuschel v Police (SA) (1999) 75 SASR 231 Mickelberg v R (1989) 167 CLR 259 Paulger v Hall (2003) 2 Qd R 294 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
AARON MICHAEL ZAMPOGNA
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : TARR SM
File Number : PE 14814 & PE 14816 of 2003
Catchwords:
Criminal law - Assault - Appeal - Error of law - Amendment of complaint under s 46 Justices Act - Whether applicant entitled to call evidence after Magistrate had amended complaint
Criminal law - Assault - Appeal - Section 46 Justices Act - Accused tried summarily on charge of assault occasioning bodiy harm may not be convicted of
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common assault unless charge amended pursuant to s 46 - Tme at which amendment to be made - Magistrate empowered to amend at any time prior to decision - Discretionary power not to be exercised where it would cause irretrievable prejudice to accused
Criminal law - Assault - Appeal - Section 46 Justices Act - Whether amendment would cause prejudice to accused - Refusal of Magisrate to allow accused to reopen case - Magistrate erred in law - Upon amendment accused entitled to meet the new charge
Criminal law - Assault - Appeal - New evidence - Principles of new evidence - New or fresh evidence may provide basis of appeal - Whether new evidence may be considered "fresh" - Whether new evidence capable of belief by jury - Whether new evidence sufficient to establish innocence or raise sufficient doubt as to guilt - Whether interests of justice require new evidence to be taken into account
Legislation:
Criminal Code (WA), s 313, s 317, s 689
Justices Act 1902 (WA), s 46, s 47, s 199
Result:
Appeal allowed
Convictions set aside
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr K M Tavener
Solicitors:
Appellant : Laurie Levy
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Dorrington v G (a child) (1992) 16 MVR 453
Easterday v The Queen [2003] WASCA 69
Hedge v Thurstun [2001] WASCA 43
Ilic v The Queen [2000] WASCA 411
Mitchell v Myers (1955) 57 WALR 49
Ratten v R (1974) 131 CLR 510
Starling v Ostrowski (2001) 24 WAR 61
Case(s) also cited:
Bond v R (1992) 62 A Crim R 383
Button v The Queen (2002) 25 WAR 382
Craig v R (1933) 49 CLR 429
Gallagher v R (1986) 160 CLR 392
Higgon v O'Dea [1962] WAR 140
Leuschel v Police (SA) (1999) 75 SASR 231
Mickelberg v R (1989) 167 CLR 259
Paulger v Hall (2003) 2 Qd R 294
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1 LE MIERE J: The appellant had been charged with two counts of unlawful assault causing bodily harm. The appellant appeals from a decision of a Magistrate whereby the Magistrate, having amended one of those charges pursuant to s 46 of the Justices Act,convicted the appellant of one count of unlawful assault and one count of unlawful assault causing bodily harm.
The Background
2 The charges of which the appellant was convicted arose out of an incident at the Paramount Nightclub in Northbridge in the early hours of the morning of Saturday, 14 September 2002. Stephen Carl Cassidy and his girlfriend, Renee McGrath, went for a night out in Northbridge. They started at about midnight. They visited four clubs or bars before they arrived at the Paramount at about 5 am. By that time, Mr Cassidy and Ms McGrath had each had about eight bourbon and Cokes. At the Paramount they each drank a bourbon and Coke. They each ordered another bourbon and Coke and took a sip out of it. A bouncer, or crowd controller, asked them to leave. It was then about 5.30 am.
3 Mr Cassidy gave evidence as follows. The appellant came up to him and said that it was time to go. Mr Cassidy said that they had just bought a drink and asked for a minute. The appellant said yes and walked away. The appellant then came back and as Mr Cassidy went to have a drink, the appellant knocked Mr Cassidy's elbow and the drink splashed on him and Ms McGrath. The appellant then stepped back. Another bouncer of slight build and blond hair then grabbed Mr Cassidy's arm and marched him outside. When Mr Cassidy got outside, there was first a verbal altercation and then a physical altercation between Mr Cassidy and a number of bouncers. In the course of the altercation, Mr Cassidy suffered bodily harm in the form of a cut and grazes to his face.
4 Ms McGrath followed Mr Cassidy and the blond-haired bouncer outside of the nightclub. She saw a confrontation between Mr Cassidy and four or five bouncers. Ms McGrath gave evidence that she tried to step in and get one of them off Mr Cassidy and that's when one of them slapped her face. Ms McGrath suffered bodily harm in the form of swelling to her cheek.
Course of the Trial
5 The two charges were tried together on 20 October 2003. The appellant was represented by counsel. The appellant pleaded not guilty to both charges. The appellant formally admitted that Mr Cassidy and
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- Ms McGrath had each suffered bodily harm. The respondent led evidence from Mr Cassidy, Ms McGrath, two police officers and three witnesses who witnessed the assaults on Mr Cassidy and Ms McGrath outside the nightclub.
6 Mr Cassidy said that after he got outside the nightclub there was a verbal confrontation between him and the young blond-haired bouncer. One of the bouncers then grabbed him and he fell backwards. Three or four of the bouncers then jumped on him and he remembers getting blows on the head. Mr Cassidy did not identify the appellant as one of the bouncers who had hit him.
7 Ms McGrath gave evidence that she saw Mr Cassidy on the floor outside the nightclub. She did not know how he came to be on the floor. Ms McGrath said that she stepped in and tried to pull one of the bouncers off Mr Cassidy and the bouncer slapped her face. Ms McGrath said she did not know which of the bouncers slapped her face.
8 Darren Robert Hickey gave evidence that at about 6 am he had left the nightclub and was on the other side of the road outside the kebab shop when he saw a scuffle outside the nightclub. Mr Hickey says that the man lost his footing and went over backwards with the weight of the bouncers moving with him and they went over on top of him. There were a couple of punches thrown by the doormen when the man was on the ground. The man's girlfriend was screaming out to leave him alone. Mr Hickey heard a crack like a hard hit and saw the girl hit to the side of her face. Mr Hickey did not see who hit the girl.
9 Thomas Edward Dwyer gave evidence that he was with a group of friends outside the Paramount when he heard a commotion. He saw a man being pushed out of the nightclub and the man went to the ground. Mr Dwyer said that the appellant came out of the nightclub as the man went to the ground and the bouncers then started kicking and punching the man. The other bouncers stopped and the appellant continued kicking the man on the ground. Mr Dwyer said he saw a female trying to pull the appellant by the shirt and the appellant turned around and punched her in the face. Mr Dwyer said that he was a regular patron of the nightclub and he had seen the appellant before at the Paramount.
10 Gavin Peter Burnett gave evidence that he was in the vicinity of the nightclub at about 6 am. He heard a bit of commotion and saw four or five bouncers holding someone down and punching and kicking him. Mr Burnett said that he had been a regular patron of the nightclub for
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- quite a few years and knew the appellant by the name of Monty. He knew the appellant to be one of the head bouncers. Mr Burnett said that the appellant was one of the people throwing punches. Mr Burnett said that he saw a girl come over. She was yelling and put her hand on Monty's shoulder and Monty turned around and punched her in the head. In cross-examination, counsel asked Mr Burnett if he could identify the other bouncers involved. Mr Burnett said he could not. Mr Burnett said that he was able to identify the appellant because he had had a couple of run-ins with "Monty" and he knew straight away it was him. Mr Burnett said that he had been annoyed by the way the appellant had treated him in the past and on one occasion the appellant had picked him up, body-slammed him on the pavement and snapped the end of an elbow, causing him to have to go to hospital. When asked if it was fair to say that he didn't like the appellant, Mr Burnett said: "No. It's not fair to say that at all. Monty's got a job to do and it's not that at all."
11 The prosecution played to the Court a videotape taken at the nightclub. The videotape does not show the appellant assaulting either Mr Cassidy or Ms McGrath. Neither does it show that it was not the appellant who assaulted Ms McGrath or Mr Cassidy.
12 After the prosecution closed its case, the appellant elected not to give evidence.
Magistrate Amends Complaint
13 At the close of the evidence, the prosecutor and counsel for the appellant made closing submissions. The Magistrate then reserved his decision until the following day.
14 The hearing resumed on 21 October 2003. The Magistrate delivered his reasons for decision. In his reasons for decision, the Magistrate directed himself as to the elements of the charges and reviewed the evidence. The Magistrate then made the following relevant findings:
• I have no difficulty in concluding that both complainants were assaulted and received bodily harm.
• I find that [the appellant] was there on the night and … [that] he was involved in the events that took place.
• [The appellant] appears in the video … and was the person seen by Hickey assaulting Cassidy and McGrath and who was identified as being that person by Dwyer and Burnett.
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- • It was [the appellant] who assaulted Ms McGrath and caused her bodily harm.
• It was [the appellant] who assaulted, at some time, Mr Cassidy, but it seems, on the evidence, that Mr Cassidy was assaulted by a number of others during the incident.
15 In relation to the charge that the appellant assaulted Mr Cassidy and did him bodily harm, the Magistrate found:
"I am satisfied that there was bodily harm but, having found Mr Cassidy was assaulted by [the appellant], I can't conclude on the evidence that it was he that caused the bodily harm, such as it was, to Mr Cassidy."
16 The Magistrate then went on to refer to s 46 of the Justices Act and said that it did not follow in the circumstances that because the second element of the assault had not been proven, that it was appropriate for the Court to dismiss the charge. Counsel for the appellant then said that he wished to be heard on that matter. In the course of his submissions, counsel for the appellant submitted that if the Magistrate amended the charge pursuant to s 46 of the Justices Act it would significantly prejudice the appellant because he had come along to meet the prosecution case and in doing so had elected not to give evidence. In the course of counsel's submissions, the Magistrate twice stated that he had found that the appellant had assaulted Mr Cassidy. The Magistrate then stated that he was prepared to adjourn the matter to permit counsel for the appellant to consider the issue and make further submissions.
17 The hearing resumed on 27 October 2003. Counsel for the appellant then made further submissions. Counsel conceded that the Magistrate had power to amend the complaint pursuant to s 46 of the Justices Act, but submitted that if the Magistrate allowed the proposed amendment it would fundamentally prejudice the appellant. The prosecutor then applied to amend the charge that the appellant assaulted Mr Cassidy and thereby caused him bodily harm to a charge that the appellant assaulted Mr Cassidy. The Magistrate allowed that amendment.
18 Counsel for the appellant then applied to reopen the defence case to lead evidence. The Magistrate refused that application in the course of the following exchange with counsel for the appellant:
"HIS WORSHIP: Well, the knowledge of the law - - or the law as it stood has not changed.
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- MR LEVY: Absolutely.
HIS WORSHIP: A decision was made, rightly or wrongly, with the law as it was.
MR LEVY: Yes.
HIS WORSHIP: I am not prepared, at this stage, to allow you to reopen the case.
MR LEVY: As your Worship pleases.
HIS WORSHIP: Yes. All right. Well, as I've said, I find [the appellant] guilty of assaulting Renee McGrath and thereby causing her bodily harm and I find him guilty of the amended charge of unlawfully assaulting Steven Carl Cassidy …"
Order for Leave to Appeal
19 On 15 January 2004, a Judge of this Court granted the appellant leave to appeal from the whole of the decision of the Magistrate on the following grounds:
"1.1 The learned Magistrate erred in law or alternatively in the exercise of his discretion by amending complaint number PE14814/03 by deleting the words 'and thereby did him bodily harm' and thereby denying the applicant a fair trial.
Particulars :
(a) At the close of all the evidence and in the course of his reasons, the learned Magistrate amended the complaint from one of assault occasioning bodily harm pursuant to s 317(1) of the Criminal Code to that of an offence of common assault pursuant to s 313 of the Criminal Code.
(b) Having amended the complaint, the learned Magistrate refused to allow the appellant to call evidence in his defence.
1.2 The learned Magistrate erred in law or alternatively in the exercise of his discretion by refusing to allow the applicant to call evidence after the learned Magistrate had
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- amended complaint number PE14814/03 by deleting the words 'and thereby did him bodily harm', thereby denying the applicant a fair trial.
- 1.3 That since conviction was passed upon the applicant in relation to complaint number PE14816/03, new or fresh evidence has become known and available to the appellant of such significance that had it been led in evidence at the appellant's trial it would render the Magistrate's findings of fact unsafe and unsatisfactory, thereby giving rise to a substantial miscarriage of justice.
Particulars:
(a) Evidence will be led from Salaar Jaaf that it was he who assaulted the complainant, Renee Anne McGrath (and not the applicant) in the manner attributed to the applicant."
The Appeal Concerning Cassidy
21 If an accused upon an indictment is charged with the offence of assault occasioning bodily harm he may be convicted of the offence of common assault if it is established by the evidence. However, where the accused is tried summarily for the offence of assault occasioning bodily harm he may not be convicted of the offence of common assault unless the charge is first amended pursuant to s 46 of the Justices Act. Sections 46 and 47 of the Justices Act provide:
"46. No objection shall be taken or allowed to any complaint, or to any summons or warrant to apprehend a defendant issued upon any complaint, for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing.
47. If any such variance appears to the justices to be such that the defendant has been thereby deceived or mislead, they may, and at the request of the defendant shall, upon such
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- terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant for his appearance at the time and place to which the hearing is adjourned."
22 Section 46 of the Justices Act was considered by Dwyer CJ in Mitchell v Myers (1955) 57 WALR 49. In that case, the appellant had been charged with offences including dangerous driving. At the conclusion of the evidence for the defence the Magistrate informed the prosecuting sergeant that he was not prepared to convict on the charge of dangerous driving, but that if the prosecution applied to amend the charge to one of negligent driving he would grant the application and convict. An application to amend was then made and granted and the appellant was convicted of negligent driving.
23 Dwyer CJ held that a new offence unrelated to that charged in the complaint could not be the subject of amendment, as that would be more than a mere variance. His Honour defined a "cognate offence" as being one similar to the offence charged or one which would be a constituent of the actual complaint which had been charged, being an element or ingredient of the offence originally charged.
24 In the course of his judgment Dwyer CJ considered the time at which an amendment can be made. His Honour said, at page 53:
"It has been suggested that it must be made before the opening of a defence. I do not think that is the strictly correct view. I think it can be made at any time before a final decision on the original complaint is made by the Justices; it seems to me inappropriate to and inconvenient in Magistrates Courts to require them to come to any earlier decision; although s 46 refers to a variation between the complaint and the evidence in support thereof, the weight and worth of evidence can on occasion only be gathered when all is heard, and I think the powers of the Justices must so extend; the provisions in s 47 then come into play; that is to say the Justices must at the request of the defendant give him an opportunity to consider his defence, and hence to be heard at some future time. It would be wrong if the Justices made any attempt to compel the defendant to deal immediately with the defence to a complaint which had just arisen; but power to amend is present in the Act and there seems to be no reason why, if the Justices consider an offence
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- has been proved, an amendment should not be made at any time before conviction or dismissal."
25 Dwyer CJ held that s 46 of the Justices Act, despite containing language suggestive of an obligation upon a Magistrate to amend a defective complaint does, upon its proper construction, impose a discretion to allow such an amendment. In Starling v Ostrowski (2001) 24 WAR 61, Kennedy J said at [17] that the view that the use of the power is discretionary has, since Mitchell v Myers, been adopted in this State.
26 In Hedge v Thurstun [2001] WASCA 43, the appellant was charged with an offence contrary to s 60(1) of the Road Traffic Act 1974 (WA), that he wilfully drove a motor vehicle on a road in a manner that was, having regard to all the circumstances, dangerous to the public or to any person. The Magistrate convicted the appellant who then appealed to this Court. At the hearing of the appeal, counsel for the respondent conceded that the evidence did not establish that the appellant was driving in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person and that consequently he should not have been convicted of the offence with which he was charged. However, the respondent contended that even though the conviction should be quashed, the Court should substitute for it a conviction on the alternative offence under the same section of driving in an inherently dangerous manner. Roberts-Smith J refused to follow that course. His Honour said at [30]:
"I am not prepared to accede to the respondent's submission that I amend the charge to one of inherently dangerous driving and to convict the appellant of that. The learned Magistrate could not have done that without, if the appellant had requested, adjourning the hearing to enable the appellant to call further evidence, and I consider it would be entirely inappropriate for me to afford the appellant that opportunity on this appeal with the result that I would end up having to decide the issue partly on the transcript of the evidence before the Court below and partly on the evidence given before me."
27 In Dorrington v G (a child) (1992) 16 MVR 453, the respondent had been charged with riding a bicycle recklessly on a road contrary to Reg 1306 of the Road Traffic Code 1975. At the conclusion of the prosecution case, the defence counsel stated that he would call no evidence. After closing addresses by both the prosecution and the defence, the prosecutor sought to amend the complaint to charge the
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- respondent with riding the bicycle without due care and attention. The Magistrate refused to amend the charge and dismissed the complaint. On appeal, the basic contention of the appellant was that the Magistrate erred in failing to allow the prosecution to amend the complaint.
28 Wallwork J said at [14]:
In my view, applying the spirit of the reasons in Mitchell v Myers, an amendment of the charge to one of riding a bicycle without due care should have been allowed by the learned Magistrate in this case. As the appellant contends, the learned Magistrate erred by paying too much regard to the respondent's decision not to call evidence. The hearing could have continued with the respondent being allowed to call evidence, or alternatively, it could have been adjourned for a continuation of the hearing on a future day (pursuant to s 47) if such an adjournment was necessary to avoid prejudice to the respondent."
29 In my view, s 46 of the Justices Act empowers the Magistrate, in appropriate circumstances, to amend a complaint at any time prior to making a final decision on the complaint. The Magistrate has a discretion whether to permit an amendment or not. A Magistrate has the power in appropriate cases to amend the charge to fit the evidence actually given during the course of a hearing. The jurisdiction for a judicial "shifting of the goal posts" is found in s 46 of the Justices Act. The discretion must be exercised in the interests of justice and to ensure the defendant receives a fair trial.
30 The discretion should not be exercised to amend the complaint if to do so would cause irretrievable prejudice to the defendant. The Magistrate may, and should where appropriate, allow the defendant to reopen his case to call evidence and, if necessary, to adjourn the proceedings to enable the defendant to do so.
31 The central tension is between the interests of justice in ensuring that criminal proceedings are not regarded as "games" in which guilty people are on occasion "let off" on a technicality, and the other important justice consideration that the defendant has the right to know the nature of the charge against him so that he may prepare his defence and meet it. It is a central tenet of our criminal justice system that criminal proceedings are of an adversarial nature and do not amount to an inquiry. Criminal prosecutions are not "games", but the adversarial process has been devised
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- in our common law to secure justice over all. The defendant is informed as to the nature of the charge and required to enter a plea to the complaint. The defence case will be moulded, witnesses briefed and tactical decisions taken. The decision to call or not call evidence will be devised to meet the charge the defendant faces. A defendant, and his legal advisers, cannot, at the same time, answer the case with which the defendant is charged and some other offence with which the defendant might be charged as a result of an amendment to the complaint. To require the defendant to answer not only the case with which he is charged, but to present his case on the basis that the charge may subsequently be amended, is to require the defendant to participate in a Kafkaesque inquiry.
32 In exercising his discretion whether to amend a complaint, the Magistrate must consider whether any amendment would cause prejudice to the defendant. The circumstances may require that an amendment not be permitted or that it be permitted only on terms as to an adjournment or permitting the defendant to give evidence, or further evidence. The later in the day any proposed amendment occurs, the more vigilant the Magistrate must be to ensure no prejudice is caused to the defendant by the amendment.
33 In this case, the Magistrate refused to allow the appellant to reopen his case to call evidence "at this stage". It appears the Magistrate considered it was too late in the proceedings to take that course. If the Magistrate considered that he did not have power to permit the appellant to reopen his case at that stage of the proceedings, the Magistrate was wrong. If, alternatively, the Magistrate considered that he could not allow the appellant to reopen his case and call evidence because the Magistrate had already decided that the appellant was guilty of assault, then the Magistrate was wrong to allow an amendment to the complaint after he had already reached a final decision. Either way, the Magistrate erred in law.
34 The respondent submitted that the Court should, pursuant to s 199(1)(b) of the Justices Act, dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considered that no substantial miscarriage of justice has occurred. In my view, a substantial miscarriage of justice occurred by the Magistrate amending the complaint in the manner in which he did and refusing to allow the appellant to reopen his case and call evidence. The appellant elected not to call evidence at a time when the charge against him was one of assault occasioning bodily harm. The appellant's counsel took the view
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- that the evidence did not establish that the appellant was guilty of that offence and took the forensic decision not to call evidence. As a result of the Magistrate subsequently amending the charge and refusing to allow the appellant to reopen his case and call evidence, the appellant was denied the opportunity of calling evidence in answer to the charge with which he was subsequently convicted.
35 The respondent submits that the appellant was not denied the opportunity to call evidence in answer to the charge of assault because when the appellant elected not to call evidence it was open to the Magistrate to amend the charge. The Magistrate seems to have taken the same view. In my opinion, that argument is fallacious. The appellant was entitled to decide whether or not to call evidence without having regard to hypothetical, unformulated amendments to the complaint. Upon the complaint being amended, he was entitled to then be given an opportunity to meet the new charge.
Appeal Against Conviction of Assaulting and Causing Bodily Harm to Ms McGrath
36 This ground of appeal relies upon the evidence led from Salaar Karim Hama Farja Jaaf at the hearing of the appeal.
37 Mr Jaaf gave evidence that on the morning of the alleged assaults he was employed as a bouncer at the Paramount Nightclub. He had finished work when he saw an incident in front of the nightclub.
38 English is not Mr Jaaf's first language. In my view, this at times led to difficulty in communication between Mr Jaaf and counsel and at times led Mr Jaaf to give what appeared to be contradictory or inconsistent answers to questions asked of him.
39 In general, the evidence of Mr Jaaf was as follows. A man had been kicked out of the nightclub. He was in front of the club, engaged in a verbal dispute with a number of bouncers. He was swearing at a skinny and fit bouncer with yellow hair. The man went to the ground. He was struggling and the bouncers were holding him. Mr Jaaf came to the assistance of the bouncers. A girl approached the group. She was screaming. She pushed Mr Jaaf and he pushed her away. Mr Jaaf felt somebody grab him by the collar. He swung his left hand and the back of his hand made contact. As he turned around he saw that he had hit the girl on her left cheek.
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40 At one time Mr Jaaf said that he did not make contact with the girl. However, I am satisfied that that answer was a result of Mr Jaaf's lack of proficiency in the English language and I am satisfied that Mr Jaaf intended to convey throughout his evidence that his left hand did strike the girl, but that it was an accident and he had not intended to strike her.
41 Mr Jaaf said that after the incident the police arrived, but that he did not talk to them. He worked at the Paramount on occasions after the incident, including occasions on which the appellant was working there. He spoke to the appellant, but they did not discuss the incident that Mr Jaaf described in his evidence. On 23 October 2002, Mr Jaaf spoke to another bouncer at the Paramount, called Brett. Brett advised Mr Jaaf to go and see his solicitor, Mr Prior. Mr Jaaf went to see Mr Prior. As a result, Mr Prior wrote to the appellant's solicitor on 24 October 2003. The letter said that Mr Jaaf had contacted Mr Prior on 23 October 2003 and instructed that the appellant had recently been convicted of assaulting a female at the Paramount Nightclub and that he, Jaaf, was in fact the person who assaulted the female in question. The letter enclosed a statement of Mr Jaaf. The statement is broadly consistent with the evidence given by Mr Jaaf, but omits much of what Mr Jaaf said in his evidence in this Court. All that is said in the statement concerning the incident with the girl is as follows:
"I clearly remember a blonde girl, about medium height.
She was screaming and yelling and she was trying to get involved in the incident.
I stepped forward and tried to stop her getting involved. She pushed me away and I pushed her back.
She came back again and pushed me in the back. I did not know who had pushed me and I swung around with my arm and accidentally hit her in the face with the back of my hand."
42 The statement goes on to say that Mr Jaaf was giving the statement now because he had been told that the appellant was charged and had gone to court. Mr Jaaf said: "I did not say anything before because nobody had asked me about this incident. I did not know about [the appellant] being charged until last week. I am coming forward now because I cannot let somebody be punished for something I did."
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Principles Applicable to New Evidence
43 Material which was not produced at trial may provide the basis of an appeal on the ground of new or fresh evidence. Such material may always be described as new, but it is only properly termed fresh if it is not available to the accused at his trial, and would not have been available to him by the exercise of reasonable diligence.
44 An appeal court should quash a verdict of guilty if the material presented to it shows the applicant to be innocent, or raises such a doubt about his guilt that the verdict should not be allowed to stand. In either case, the verdict should be quashed even though the material presented to the Court comprises new evidence which was not fresh evidence that was not available to the accused at the trial, or that could not have been available to him by the exercise of reasonable diligence in the preparation of his case: Ratten v R (1974) 131 CLR 510 at 518 per Barwick CJ.
45 The procedure to be applied when new evidence is tendered upon an appeal was described by Barwick CJ in Ratten v R (supra) at 518, as follows:
"In every situation the court must decide on the relevance of the new evidence … It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence ... Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it."
46 In my view, the evidence of Mr Jaaf is relevant. Counsel for the respondent submitted that Mr Jaaf may have been describing an incident different from that in which the complainant McGrath was assaulted. I do not accept that submission. Mr Jaaf's account of the incident involving the man and girl outside the nightclub is not sufficiently different from that described by the prosecution witnesses to give rise to the conclusion that he was describing a different incident. The evidence of Ms McGrath is that she was struck once to the face. There is no evidence suggesting that a second female was struck to the face in the course of this or any other incident outside the nightclub. If the evidence of Mr Jaaf is accepted then it must have been he and not the appellant who struck Ms McGrath.
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47 I find the evidence of Mr Jaaf to be credible in the sense that it is capable of belief by a reasonable jury. Counsel for the respondent pointed out that there were a number of differences between the evidence of Mr Jaaf and the prosecution witnesses. Counsel further pointed out that the statement by Mr Jaaf enclosed with the letter from Mr Prior to the appellant's solicitor of 24 October 2002 omitted important details of the incident that were recounted by Mr Jaaf in his oral evidence. Further, counsel pointed out that there were apparent inconsistencies in Mr Jaaf's oral evidence.
48 In my view, the differences between Mr Jaaf's evidence and that of prosecution witnesses does not result in Mr Jaaf's evidence not being capable of belief by a reasonable jury. There were differences in the evidence given by the prosecution witnesses. That is not surprising, given the time that elapsed between the incident and the trial, the fact that the incident occurred at about 6 am after the witnesses had been partying for some hours, the sudden onset of the incident and the general circumstances which made careful observation and recollection difficult. Furthermore, there were differences between the evidence of Ms McGrath and the prosecution witnesses who identified the appellant as the person who struck Ms McGrath. As to the apparent inconsistencies or contradictions in Mr Jaaf's oral evidence, it was apparent to me that these may have resulted from the manner in which Mr Jaaf gave his evidence and his apparent language and communication difficulties.
49 I am required to form my own view of the facts of the case. In doing so, I must take the facts as found at the trial in the sense which, having regard to his verdict, the Magistrate must have taken them. I must then decide whether the new evidence is sufficient to establish the innocence of the appellant or at least that there is sufficient doubt as to his guilt. I am not satisfied of those matters. In my view, it would be open to a court to convict the appellant of assaulting Ms McGrath and causing her bodily harm notwithstanding the evidence of Mr Jaaf. The appellant has not established innocence or the existence of an appropriate doubt. Therefore, the appellant has not established that he should be acquitted outright on appeal.
50 It is next necessary to consider whether the appellant's conviction should be quashed and a retrial ordered.
51 In general, whether a conviction will be set aside and a new trial ordered on the basis of new evidence will depend on whether the new
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- evidence is fresh evidence: Ilic v The Queen [2000] WASCA 411, Easterday v The Queen [2003] WASCA 69.
52 In Ilic v The Queen (supra) Ipp J, with whom Wallwork J agreed, made the following observations about whether new evidence is "fresh":
[56] The general rule is that no miscarriage of justice will result from a failure to lead evidence if the evidence was available or could with reasonable diligence have been available to an accused: …
[57] Ordinarily, where the evidence was available, and the accused knew that the witness in question existed, and ought to have realised that the witness might be able to give relevant testimony, the evidence will not be regarded as fresh, even though the accused had no actual knowledge of what the witness might say … It is accepted, however, that in a criminal trial 'great latitude' is afforded to an accused in determining whether evidence is fresh or only new. This was emphasised in Lawless v The Queen by Stephen J (at 669):
"However, 'great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial', it being 'probably only in an exceptional case' that evidence not actually available to him is to be denied the quality of fresh evidence. …
[58] Stephen J went on to say (at 669) that if the want of knowledge leads to the 'inference that it' was the product of an intentional failure to make inquiries 'it should be "only in an exceptional case" that evidence not called because not known to be available is denied its character of fresh evidence'.
[59] In a sense, there is an inconsistency between the approach to be adopted in dealing with a submission that an accused should be acquitted on the ground of new evidence, and that required in dealing with a submission that a new trial should be ordered. In both instances, the determinative factor is whether a miscarriage of justice has occurred, but in the former the determination is based
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- on the new evidence irrespective of whether it is fresh. In the latter, the new evidence is ignored unless it is fresh. It is not clear to me what the rationale is for the 'sharp distinction' … The existence of a miscarriage of justice is the relevant ground on which this Court is empowered to set aside the verdict of the jury and is the essential question in regard to the admission of new evidence … Any qualification or compartmentalising of the inquiry into whether there has been a miscarriage of justice is not based on a rule of law … There are no fixed rules against which a miscarriage of justice is to be judged …
- [60] Accordingly, the 'great latitude' to be afforded to an accused in determining whether evidence is fresh is simply a facet of the broader inquiry into whether there has been a miscarriage of justice as contemplated by s 689 of the Criminal Code. This latitude has the capacity to result in a blurring of the boundaries between what might ordinarily be regarded as evidence that is fresh and not fresh. That might be a necessary consequence of the search into the question whether there has been a miscarriage of justice.
…
[64] I shall approach the question whether the new evidence tendered by Ilic and Sammut is to be regarded as fresh in accordance with the broad approach as to whether there has been a miscarriage of justice, affording them the latitude in this respect that the authorities require."
53 I shall follow the approach described by Ipp J in determining whether the evidence of Mr Jaaf is to be regarded as fresh. Mr Jaaf was known to the appellant. The appellant knew that Jaaf was one of the bouncers on duty at the Paramount on the night of the incident. The appellant's counsel asked questions in the cross-examination of the prosecution witnesses that indicated the appellant knew that Mr Jaaf had been on duty that night. It should have been obvious to the appellant that Mr Jaaf might have seen what occurred and might be able to give relevant evidence. The appellant has given no evidence as to why he did not approach Jaaf. There is no evidence that the appellant had any reason to believe that Jaaf would not have spoken to the appellant, or his solicitor, about the incident. Normally, those circumstances would preclude the
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- evidence in question being categorised as fresh. Nevertheless, for the following reasons, I have come to the conclusion that the evidence of Mr Jaaf should be taken into account.
54 First, although the appellant did not pursue inquiries with due diligence and did not approach Mr Jaaf for information, I am satisfied that he did so because of the prosecution case he originally came to meet. Counsel for the appellant submitted that the appellant's original decision not to call any evidence was based on the prosecution case and the nature of the offence charged. When it became apparent to the appellant that the nature of the offence alleged against him with respect to Mr Cassidy had changed, he sought to call evidence in his defence. That evidence included the evidence of Salaar Jaaf which had become known to him between 21 October and 27 October 2003.
55 It is true that the offence with which the appellant was charged in relation to Ms McGrath did not change. However, that charge was heard together with the charge in relation to the alleged offence concerning Mr Cassidy. The decision of the appellant not to call any evidence was made before the charge concerning Mr Cassidy was amended. Counsel for the appellant says that when once the charge had been amended the appellant sought to call evidence, including evidence from Mr Jaaf. In my view, that evidence would have been available to the appellant in relation to the charge concerning Ms McGrath as well as the charge concerning Mr Cassidy. For the reasons I have given earlier, the Magistrate erred in not allowing the appellant to call that evidence.
56 Secondly, I consider the evidence of Mr Jaaf to be cogent and potentially significant.
57 In the circumstances, I consider that, like Ilic v The Queen, this is an exceptional case in which the interests of justice require the new evidence to be taken into account. In the circumstances of this case, there would be a miscarriage of justice if that did not occur.
58 Having determined that the new evidence of Mr Jaaf should be regarded as fresh, I consider that the decision of the Magistrate should be set aside and a retrial ordered. The evidence of Mr Jaaf is relevant and credible. I am persuaded that there is a reasonable possibility that, had the new evidence been led at the trial, a reasonable Magistrate might not have convicted the appellant of assaulting Ms McGrath and doing her bodily harm. Such a Magistrate might have considered that the evidence of
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- Mr Jaaf, that he struck Ms McGrath, created a reasonable doubt as to whether the appellant had assaulted Ms McGrath.
Conclusion
59 For the reasons stated, the appeal will be allowed in relation to both convictions. The appellant's convictions will be set aside and a new trial will be ordered before a different Magistrate on both charges.
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