Michael Dewson v Fraser James Macdonald
[2014] ACTCA 39
•27 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Michael Dewson v Fraser James Macdonald |
Citation: | [2014] ACTCA 39 |
Hearing Date(s): | 5 February 2014 |
DecisionDate: | 27 August 2014 |
Before: | Refshauge J |
Decision: | The Court orders that leave to appeal be refused. |
Category: | Principal Judgment |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Leave to appeal out of time |
| Legislation Cited: | Crimes Act 1900 (ACT), s 26 Court Procedures Rules 2006 (ACT), r 5405 |
| Cases Cited: | Dearman v Dearman (1908) 7 CLR 549 |
Parties: | Michael Dewson (Appellant) Fraser James Macdonald (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr K Lee (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 89 of 2013 |
Decision under appeal: | Court: ACT Supreme Court Before: Nield AJ Date of Decision: 7 June 2013 Case Title: Michael Dewson v Fraser James Macdonald Citation: [2013] ACTSC 112 Court File Number(s): SCA 22 of 2013 |
Refshauge J:
On 21 October 20112, Michael Dewson, the applicant, went to the residence where Paul Dove lived. He knocked on the door, which was opened by Matthew Dove, Paul’s brother.
Mr Dewson struck Matthew Dove in the face and was later charged with common assault.
He appeared in the Magistrates Court and pleaded not guilty. After a hearing, he was convicted.
He appealed against the conviction and on 7 June 2013 his appeal was dismissed by Nield AJ.
Mr Dewson has now sought leave to appeal against that dismissal of his appeal.
The application for leave
Under r 5405 of the Court Procedures Rules 2006 (ACT), an appeal must be commenced within twenty-eight days from the date of the decision from which it is sought to appeal.
Mr Dewson’s application, dated 10 December 2013, is, therefore, more than five months out of time.
I have set out in R v Meyboom (2012) 256 FLR 450 the approach that a Court should take in considering whether to grant leave to appeal out of time.
That approach may be summarised as follows:
1. Such applications should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
2. There should be an explanation for the delay, as to which any action other than to appeal that has been taken by the applicant is relevant.
3. The court must consider any prejudice to the respondent in defending the proceedings that is caused by the delay and any such prejudice will tell against the extension.
4. The mere absence of prejudice is not enough to justify the extension of time.
5. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
6. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
7. In particular, the court will look, above all else, to determine that there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
The proceedings
The proceedings have had a rather chequered history. The incident out of which the proceedings arise occurred, as noted above (at [1]) on 21 October 2011. Mr Dewson was charged with common assault, an offence under s 26 of the Crimes Act 1900 (ACT).
Mr Dewson pleaded not guilty and the charge was heard on 6 July, 14 August and 10 September 2012. On 11 September 2012, the learned Chief Magistrate delivered her decision and convicted Mr Dewson.
Mr Dewson was represented at the trial in the Magistrates Court. He was required, if he wished to do so, to appeal against the conviction on or before 9 October 2012.
On 27 May 2013, however, he applied for leave to appeal out of time against his conviction. He was not represented and prepared the application himself.
The application was heard on 7 June 2013. Mr Dewson represented himself.
Nield AJ dismissed the application. See Dewson v Macdonald [2013] ACTSC 112. In doing so, his Honour said (at [12]-[13])
12. It was a case where Chief Magistrate Walker, having heard the evidence, accepted the evidence presented by Mr Mathew Dove, that he did not have the rifle, and by Ms Chantelle Dewson, that Mr Paul Dove had the rifle and that he was standing behind her when she was standing between Mr Matthew Dove and Mr Paul Dove.
13. Mr Dewson, I regret to say, does not understand what has happened. It is simply a case where the charge against him was proved beyond reasonable doubt, notwithstanding his evidence, and the case against a different person, in which his evidence was said to be inconsistent with the Crown’s case, was heard by another magistrate, who acted upon the guilty plea of that other person. In these circumstances, Mr Dewson cannot possibly have a basis for a grievance.
Mr Dewson, still unrepresented, then made a further application for leave to appeal out of time against his conviction. The application was lodged on 15 November 2013.
The application came before Burns J on 29 November 2013. His Honour considered two matters: whether there were any grounds of appeal and whether there was an abuse of process in the making of the application. In Dewson v Macdonald [2013] ACTSC 152, his Honour found against Mr Dewson on both grounds and dismissed the application. His Honour said (at [13]-[16]):
13.And I note that he was represented by experienced counsel in those proceedings and there was apparently two versions of an event of quite limited scope, that being an altercation between him and another person at the front door of certain premises. The question was whether he was acting in self-defence when he struck a blow or whether he was not.
14.And it appears that that issue was determined by the learned Magistrate against him, that her Honour determined that he was not acting in self-defence. Nothing that he has put before me today would demonstrate that there was an error in either the finding of fact by the learned Magistrate or alternatively her application of law to those findings of fact.
15.Secondly, the problem with the present application is that it is a form of abuse of process in that the applicant is seeking to re-litigate something that has already been determined by this court this year, with a decision being handed down by Nield AJ on 7 June this year in which he refused exactly the same application.
16.I am not suggesting that he pursue this, it is a matter for him ultimately, but I do not suggest he take the following as an encouragement. His remedy, if he had one, was to seek leave to appeal from the decision of Nield AJ rather than to simply recommence the same application in front of a different judge.
Apparently still aggrieved, Mr Dewson took up the comment made by his Honour and applied to this Court for leave to appeal against the order of Nield AJ dismissing his application for leave to appeal out of time against his conviction.,
The facts
The background and basic facts of the offence are helpfully set out in the reasons for decision of the learned Chief Magistrate as follows:
The following facts aren’t contentious. Michael Dewson daughter, Chantelle(?), aged 18, was and still is in a relationship with Paul Dove, son of Lyn and Frank Dove and younger brother of Matthew Dove, the complainant. At about 9 pm on the evening of 21 October 2011, the defendant and his wife, Rachel Dewson, were at home with their other two daughters. Chantelle came home upset. She and Paul had had an argument and he had broken her mobile phone. Sometime later, Rachel Dewson accidentally overheard a conversation between Paul and Chantelle on the telephone in which Paul was said to be berating Chantelle. She handed a second handset to the defendant so that he could hear the conversation. Apparently Paul was saying highly derogative things to Chantelle.
The defendant became very angry and determined to go over to Paul’s house at 72 Sinclair Street in Kambah. Chantelle’s younger sister, Teagan(?), saw him leaving. He told Teagan where he was going. Teagan told Chantelle who set off at speed to get there first. Teagan and Rachelle followed a little later. As it transpired, Chantelle did get there first and ran into the unlocked house shouting out something along the lines of her father was coming. He was angry and not to let him in. Within a very short time, the defendant got to the front door and started banging on the glass panes to the side of the front door and ringing bell repeatedly and loudly.
What happened after this point is in dispute. The defendant says that when the front door was opened, Matthew Dove, previously known to him, stood there and raised a firearm towards him. He says that the firearm exhibited in these proceedings is not the one he was confronted with. The defendant says that in fear for his safety he punched Matthew in the face, a punch he later stated he thought may have broken Matthew’s nose, even though he said that the force applied was only about 4 out of 10. Matthew then fell over dropping the firearm, according to the defendant. He says that he then became aware of Paul who picked up the same firearm and pointed it at him. The defendant states that Paul said something along the lines – I withdraw that – that he said something along the lines of, “Are you going to shoot me?” – a number of times. The defendant further states that when Lyn Dove went to call the police, he then retreated to his car parked halfway up the battleaxe drive to the property.
The defendant states he then went back down the drive to the front door where he engaged in a verbal exchange with Lyn referring to her as a “fucking bitch.” The defendant stated that when he had gone to the house he intended to speak to Paul’s father, Frank, whom he knew to be a pastoral care teacher at his younger daughter’s school. At no stage, on the evidence, did he ask to speak to Frank. The defendant’s version raises the issue of self defence in that he says he punched Matthew because he feared what Matthew would do with the gun. In sharp contradistinction to this version is that of Chantelle Dewson, Matthew Dove, Paul Dove, Lyn Dove and Frank Dove. Matthew said he was in his bedroom at about 10 o’clock on the night when he heard Chantelle coming into the house shouting something about her father. He was used to emotional outbursts from her and took little notice. However, he then heard banging on the glass near the front door and was concerned it might break. He answered the door empty handed and said, “Calm down, mate.” He was immediately punched in the face and stepped back. Chantelle, according to Matthew, came from behind him, stood between him and her father and told her father to stop.
Matthew then became aware of Paul coming through the kitchen holding his father’s old firearm. The police were then called. Chantelle stated that Matthew answered the door to her father with nothing in his hands, that she then became aware that Paul had a firearm in his hands. She was aware of Lyn and Frank nearby in the room. Otherwise her memory was quite limited. Paul Dove recollected Chantelle coming to the house, bursting through the front door and saying something to him along the lines of “My dad’s coming. He’s on his way here.” And possibly, “He’s going to come and bash you.” He came from his bedroom and saw Chantelle in the family area near the front door. There was then thumping on the door and ringing of the doorbell along with the defendant’s shouting to open the door.
Matthew was closest to the door and Paul told him to lock it. Instead, Matthew, empty handed, opened it and was hit in the face. Paul then went from the kitchen through a hallway to an ensuite bedroom and retrieved the firearm which took him 10 to 15 seconds. Matthew, Frank, Lyn and Chantelle were then all in the room. He stood in the kitchen entry area holding the weapon barrel down. The defendant asked Paul what he was going to do with the gun then challenged Paul to come outside to be bashed. Once the defendant stepped back Paul states he put the gun on the kitchen bench and stood with the rest of his family.
Despite the spelling of her name in the transcript, it appears that Mr Dewson’s daughter is Chantal Dewson and I shall refer to her where necessary with that spelling which Mr Dewson used.
Her Honour considered the evidence carefully. She accepted the evidence of Paul Dove, Matthew Dove, Lyn Dove, Frank Dove and Chantal Dewson all of which, she said, she found “convincing and compellingly so”, despite some discrepancies.
Her Honour rejected the evidence of Mr Dewson and explained in some detail why she did so. I can find no error in the reasons given by her Honour.
It is, of course, a matter for the judge of the facts, whether that be a jury, a judge or a magistrate, to evaluate the evidence of witnesses and to decide which evidence can be accepted and which must be rejected.
The challenge
Mr Dewson raised a number of issues. Understandably, they were not formulated with the precision that one would expect where he to have been represented.
I have set out in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40]-[42], the obligations of a court when a litigant is unrepresented. Clearly, an unrepresented litigant will often not know much if any law or procedure and, subject to the limits that I there set out to ensure that the judicial officer remains impartial and does not prejudice the represented party, a court must provide such assistance as is necessary to ensure that the unrepresented party has a fair hearing and is aware of his or her substantive and procedural rights.
Mr Dewson was clearly aggrieved because his version of the events was not accepted. He explained to me in some detail how it was that his version should have been accepted.
An appeal court must conduct a real review of the trial and of the Magistrates Court’s reasons. See Dearman v Dearman (1908) 7 CLR 549 at 564. Regard, however, must be had to the advantage that the magistrate has which is denied to the appeal court, that of seeing and hearing the witnesses give their evidence. This is especially important where credibility is at stake.
Thus, while acknowledging that mistakes occur in trials, the High Court has pointed out in cases such as Fox v Percy (2003) 214 CLR 118 at 128 that an appellant who wishes to challenge such a finding bears a heavy onus of showing that, for example, the factual findings of the magistrate are “glaringly improbable” or “contrary to compelling inferences” and must give due weight to the advantage of the magistrate who has had the advantage of seeing and hearing the witnesses. Of course, if the appeal court can conclude that there are such mistakes, then it must set aside the finding.
Mr Dewson, however, did not, in my view, point to any such errors in the fact finding of the learned Chief Magistrate.
He raised the question of the emergency call to police made by Ms Lyn Dove dialling 000 from the residence on the evening.
He first submitted that the transcript of the call had mistakenly attributed some of the conversation to his daughter, Chantal Dewson. It is clear from at least one comment, attributed to her, where the person refers to “my son”, that it is an incorrect attribution. That, however, did not lead her Honour into any error. Her Honour did not improperly rely on this material.
Mr Dewson, however, also sought to rely on the recording to show that findings of the learned Chief Magistrate were in error.
His case was that, when he opened the door, Matthew Dove was holding a gun and that Mr Dewson hit him in self defence, reasonably believing that he had to do what he did in order to protect himself from harm.
Mr Dewson told me that the prosecution case was that Matthew Dove never had a gun in his possession but that Paul Dove produced the gun. Mr K Lee, for the respondent, agreed. He said, that Paul Dove was claimed to have obtained the gun while Ms Dove was talking on the phone to the police.
He said that there was claimed to be conversation between Paul Dove and himself. That conversation was not, however, recorded on the record of the call. He submitted that this undermines the prosecution case and renders the conviction unsafe.
I have not heard the recording of the emergency call but I have read the transcript of the call. It does record some conversation by persons other than Ms Dove and the police officer.
Paul Dove said in evidence that when he came to the front door with a gun, Mr Dewson said, “What, are you going to shoot me with that?” Paul Dove then said Mr Dewson started screaming, saying “Come out here, I’ll bash you”.
In cross-examination, Paul Dove said that before he went to get the gun, he told his mother to call the police. The cross-examination did not make it clear, but I can accept for the purposes of this application that Ms Dove was on the phone while Paul Dove had the gun.
The absence of any record of the exchange between Paul Dove and Mr Dewson, Mr Dewson says, shows that it did not happen. That is, however, by no means definitive. It may just not have been picked up by the phone or by the police recording device. Later, Mr Dewson seemed to say that it did happen, but at an earlier time.
Mr Dewson’s evidence is that when he hit Matthew Dove, the gun fell with him and was picked up by Paul Dove.
Indeed, he then told me what happened as the following exchange occurred:
MR DEWSON: Surely if I had said to Mr Dove, Mr Paul Dove, “Oh, what are you going to do? Are you going to shoot me,” and I said that three times clearly, and all the witnesses are in agreement with that, so everybody heard, so it would have been picked up on the phone call. Sure if that was the case, it would have been in the transcript of the phone call, and that’s not the case, your Honour.
HIS HONOUR: Sorry. Do you say you did say that?
MR DEWSON: I did say that, but earlier on. I said that way before the phone call was made, and Mrs Chantelle Dewson actually gave evidence towards that as well, that it was said.
While, however, this may mean that the incident occurred before the phone call was made, it does not prove to any degree that Matthew Dove had possession of the gun. I am not convinced that the evidence is so clear, but, even if Paul Dove’s evidence was that he produced the gun while Ms Dove was on the phone and even if that evidence is incorrect, it does not help Mr Dewson, for it does not mean the learned Chief Magistrate had to reject Paul Dove’s other evidence which, in quite specific terms, was supported by what Mr Dewson himself said, as well, of course, as that of other witnesses.
While the absence of the relevant conversation on the recording of the emergency call may lead to an inference that the producing of the gun occurred before the call, it does not prove that Matthew Dove had the gun. In any event, to suggest that Matthew Dove had the gun was directly inconsistent with the evidence of Chantal Dewson, Paul Dove and Matthew Dove. Her Honour did, and was entitled to, prefer the evidence of these three people over the evidence of Mr Dewson and there is nothing about the emergency call that is inconsistent with her Honour proceeding in that way.
There is nothing in this submission to show error by the learned Chief Magistrate in the findings her Honour made.
Mr Dewson also challenged the admission of the weapon that he said Matthew Dove had carried. He said it was not admissible in the proceedings. I can find no basis for that submission.
His argument was that it had not been identified by the witnesses. The difficulty for Mr Dewson, however, is that the firearm was admitted into evidence without any objection from his counsel, a very experienced barrister in criminal matters. I can see no basis for the submission that the firearm was admitted in error.
Mr Dewson also submitted that the evidence of the informant was “not all admissible”. He did not descend to any particulars of what he said was inadmissible. No objection was taken at the trial to any of that evidence. I cannot see that any of that evidence was inadmissible.
Mr Dewson also suggested that evidence given by the prosecution was inconsistent with evidence in another case. Paul Dove was, it appears, prosecuted for possessing a firearm when not licensed to do so. It appears he pleaded guilty and was sentenced for the offence.
Mr Dewson said that the prosecution of Paul Dove was listed initially to precede the prosecution of him.
Mr Dewson did not, however, explain to me what the inconsistency was. I could not see anything in what he did say which could show that the proceedings against Paul Dove disclosed an inconsistency with the evidence given in the proceedings against Mr Dewson.
If anything, the plea of guilty by Paul Dove and his conviction, supports the conviction of Mr Dewson.
Of course, the challenge that Mr Dewson wishes to mount is against the order of Nield AJ. He did not, however, point to any error made by his Honour.
Conclusion
Having considered this matter, it is clear to me that there is no basis on which leave to appeal could be granted.
I accept that the delay between the decision of Nield AJ on 7 June 2013 and the decision of Burns J on 29 November 2013 was obviously caused by Mr Dewson simply not understanding the processes of the court. I also accept that he acted promptly thereafter, making this application on 10 December 2013.
Nevertheless, I cannot ignore the fact that the decision of the learned Chief Magistrate was given on 11 September 2012.
The main reason, however, that leave to appeal should be refused is that there are no prospects of Mr Dewson being successful on the appeal. He has not been able to identify any errors by either the learned Chief Magistrate or Nield AJ.
The application must be dismissed.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 August 2014 |
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