Marhaba v Marshall
[2018] ACTSC 334
•30 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Marhaba v Marshall |
Citation: | [2018] ACTSC 334 |
Hearing Date: | 30 July 2018 |
DecisionDate: | 30 July 2018 |
Before: | Burns J |
Decision: | See [9] |
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – extent to which self-defence was raised in the proceedings before the magistrate – whether the magistrate provided appropriate assistance to the appellant in determining whether she should give evidence – prior inconsistent statement – magistrate did not give any reasons for rejecting the version of events given in statement to the police – appeal upheld |
Parties: | Roubi Marhaba (Appellant) Gavin Marshall (Respondent) |
Representation: | Counsel Mr J O’Keefe (Appellant) Ms K McCann (Respondent) |
| Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 87 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 19 December 2017 Case Title: G Marshall v Roubi Marhaba Court File Number: CC 10211 of 2015 |
BURNS J:
I think it is regrettable, bearing in mind the course that the matter took before the magistrate, but I am ultimately of the view that the appeal must be upheld, the conviction set aside and the matter remitted to the Magistrates Court for rehearing before a different magistrate.
A number of issues have been raised on the appeal. The first really concerns the extent to which self-defence was raised in the proceedings before the magistrate. The magistrate, in his reasons for decision, made a comment to the effect that self-defence was not raised in the evidence before him. With the greatest of respect to the learned magistrate I do not agree. There was evidence which raised the question of self-defence. However, if that was the only ground of appeal I would not uphold the appeal. The fact is that the magistrate went on to make findings of fact as to how the offence occurred and those findings of fact were such that self-defence simply did not arise.
Another ground of appeal related to a complaint that the magistrate had not provided appropriate assistance to the appellant in determining whether she should give evidence and particularly in circumstances where there was an allegation of self-defence. The magistrate did give a clear indication to the appellant that she was entitled to give evidence if she chose to do so, although she was not obliged to give evidence. He also made it clear to the appellant that if she chose not to give evidence, his Honour would be required to determine the case upon the evidence which was before him.
In my opinion, the magistrate was not required to do anything more. That is particularly so in circumstances where there was no onus cast upon the appellant, with respect to proving self-defence. As Mr O'Keefe submitted, there was an evidentiary onus but, in my opinion, such an evidentiary onus had been satisfied in the course of the prosecution case. However, that became irrelevant because the findings of fact made by the magistrate were such that self-defence was not an issue. The magistrate, in those circumstances, would not have been required to give the appellant any indication that she would be well advised to give evidence because of the self‑defence issue having been raised.
The matter which is of concern to me is the way in which his Honour dealt with the evidence of one of the prosecution witnesses being Simone Kelly. Simone Kelly was an eyewitness. In her evidence-in-chief she gave evidence consistent with the prosecution case, that being that the complainant had been slapped by the appellant. She was cross-examined in the proceedings before the magistrate to demonstrate that she had made a prior inconsistent statement; that is, in her statement to the police she had made a statement, in effect, exonerating the appellant. It may be taken from the statement, and also from the evidence given by the witness before the magistrate, that the witness claims to have observed all of the incident in question. On that basis, of course, the magistrate was clearly correct to determine that there was a prior inconsistent statement.
His Honour's reasons set out the basis upon which he did not accept the oral evidence given by the witness, being that she had made a prior inconsistent statement. However, as Mr O'Keefe has correctly pointed out, the statement which was made by Simone Kelly and which was tendered in the proceedings before the magistrate also had to be considered by the magistrate, because as part of the evidence the version of events given by Simone Kelly in that statement was evidence before the magistrate and it was evidence which would have tended to exonerate the appellant.
Unfortunately, the magistrate did not give any reasons for rejecting the version of events given by Simone Kelly in her statement to the police. There may well have been good reasons available to the magistrate for him to reject that statement but he did not give any reasons. It was incumbent upon the magistrate, if he was to convict the appellant of the offence, to give a reason why he rejected evidence which was consistent with her innocence. This he did not do.
As I said, whilst bearing in mind the period of time that this hearing continued in the Magistrate Court, it is regrettable that the matter will have to go back to the Magistrates Court. I can see no other alternative.
Orders
The appeal will be upheld, the conviction will be set aside and the matter will be remitted to the Magistrates Court for rehearing before a different magistrate.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 1 February 2019 |
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