Michael Francis Buggy v Mathew Blow
[2013] ACTSC 113
•7 June 2013
MICHAEL FRANCIS BUGGY V MATHEW BLOW
[2013] ACTSC 113 (7 June 2013)
R v Mulcahy [2010] ACTSC 98
R v Liberato (1985) 159 CLR 507
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 68 of 2012
Judge: Nield AJ
Supreme Court of the ACT
Date: 7 June 2013
IN THE SUPREME COURT OF THE )
) No. SCA 68 of 2012
AUSTRALIAN CAPITAL TERRITORY )
Michael Francis Buggy
Appellant
v
Mathew Blow
Respondent
ORDER
Judge: Nield AJ
Date: 7 June 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The conviction and sentence are confirmed.
The appellant has until 31/01/2014 to pay the fine.
I have an appeal by Mr Michael Francis Buggy against a conviction for assault upon Mr Kevin Mitchell on 16 July 2011. The incident which gave rise to the charge against the appellant occurred at about 11:40 am on 16 July 2011 on a footpath adjacent to Callam Street between Hindmarsh Drive and Wilbow Street in Phillip. Mr Mitchell was walking along the footpath in a generally southerly direction. The appellant was riding a pushbike along the footpath in a generally northerly direction. As it transpired, there was a collision between the pushbike being ridden by the appellant and Mr Mitchell.
The circumstances of the collision between the two of them led to what later occurred between them and, when I say “later”, I mean within seconds. That there was a collision is not in dispute, although how the collision occurred is in dispute. The appellant blamed Mr Mitchell for the collision for having dropped his shoulder into the appellant as the appellant was riding his pushbike past Mr Mitchell. Mr Mitchell denied having dropped his shoulder into the appellant as the appellant was riding his pushbike past him. Perhaps it is unnecessary to decide whether or not Mr Mitchell dropped his shoulder into the appellant as the appellant was riding his pushbike past Mr Mitchell because it is not that collision which is the assault, rather it is the aftermath of what happened.
The aftermath of what happened is that the appellant, wrongly, attacked Mr Mitchell. He did so when Mr Mitchell was lying on the ground. He placed his knee on the chest or stomach of Mr Mitchell, holding him onto the ground. He then grabbed the hood of his jacket, at least this is the appellant’s version, and told the appellant not to do anything, not to follow him, otherwise he would assault him.
It is this incident which gave rise to the charge against the appellant. As to this incident, the aftermath of the collision, the appellant claimed that he acted in self defence because he believed that Mr Mitchell would arise from the ground and attack him and so, in that belief, he, as it were, got in first.
Part of what occurred between the appellant and Mr Mitchell was witnessed by the driver of an excavator, Mr Luke Epplestun. Mr Epplestun jumped a 1.8 metre wire dividing fence between the site at where he was operating the excavator and the footpath and, in no uncertain terms, told the appellant to leave Mr Mitchell alone. Although the appellant claimed that Mr Epplestun could not have seen anything of what had happened between him and Mr Mitchell when Mr Mitchell was lying on the ground, it is obvious, it seems to me, from the appellant’s statement that Mr Epplestun could at least have seen the appellant kneeling on the chest or stomach of Mr Mitchell and holding him about his head.
Mr Epplestun said that the appellant punched Mr Mitchell twice. The appellant denied having punched Mr Mitchell at all. There was a confrontation, albeit one in words, between Mr Epplestun and the appellant which prompted Mr Epplestun to say that he intended to report what he had seen to Woden Police Station. This prompted the appellant to go to Woden Police Station. As it transpired, Mr Epplestun arrived at the police station first and he was followed by the appellant.
What occurred in the police station does not cast any favourable light upon the appellant. It is beyond argument that the appellant was both agitated and aggressive whilst in the police station. That is not necessarily relevant to what had occurred earlier between him and Mr Mitchell on the two occasions, the first being the collision between his pushbike and Mr Mitchell and then the second being his putting his knee on Mr Mitchell’s chest or stomach to restrain him on the ground. In any event, police became involved and, as Mr Ryan said, with commendable restraint, police did not there and then arrest the appellant, but later police charged the appellant by summons with having assaulted Mr Mitchell.
This charge came before Magistrate Mossop in the ACT Magistrates Court on 18 July 2012. During the hearing, the appellant was represented by counsel, Mr Michael Pickering. Magistrate Mossop heard evidence from Mr Mitchell, Mr Epplestun, Constable Shane Hough, Senior Constable Michael Bunt, Constable Russell Hocking, Constable Matthew Blow and Constable Natalie Rosella, called by the Crown Prosecutor, and the appellant, called by Mr Pickering, and, after hearing the evidence of all of them, he heard submissions by the Crown Prosecutor and the appellant’s counsel as to whether the Crown had proved its case beyond reasonable doubt.
Having heard the submissions, Magistrate Mossop retired to his Chambers for an hour before returning to Court to give his decision. Magistrate Mossop referred to the rules which govern a criminal trial, as I had outlined them in R v Mulcahy [2010] ACTSC 98, also the principle referred to by Brennan J in R v Liberato (1985) 159 CLR 507that a criminal trial is not a contest between two people, and to the principle of self defence which I had outlined also in Mulcahy. He referred to the evidence of the complainant, Mr Epplestun, police and the appellant. He commented upon the appellant’s demeanour during the trial. He thought that the appellant had reconstructed his evidence because he had ruminated on it over the 12 months between the incident and the hearing, with the consequence that his evidence was unreliable.
Magistrate Mossop expressed preference for the evidence of Mr Mitchell, Mr Epplestun and the police and he rejected the contrary evidence of the appellant. He rejected the appellant’s claim of self defence. He said that he found that the appellant did not believe on reasonable grounds that he had to do what he did in his own defence.
Being dissatisfied with Magistrate Mossop’s decision, on 8 August 2012 the appellant filed his notice of appeal. The grounds specified in the notice of appeal are and I quote:
“The Magistrate prevented the accused from fully presenting his case. The Magistrate failed to apply the law correctly in his assessment of the evidence. The Barrister representing the defendant failed to properly cross examine the witnesses. The police failed to bring the requested witnesses to court after indicating that they were available, enabling crucial evidence favourable to the police to go unchallenged.”
By the notice of appeal, the appellant sought leave to adduce further evidence before the court saying that “witnesses that were requested to the police to be in attendance to give evidence as to the alleged injuries sustained by the victim and the witness who saw the incident.”
On 21 March 2013 the respondent filed an application to adduce further evidence, that evidence being the affidavit of Mr Williamson. On 19 April 2013 I allowed both the appellant and the respondent to adduce further evidence. On 4 June 2013 the appellant filed his written submissions. The respondent had filed written submissions on 23 March 2013. Today, I have heard the appellant’s appeal.
Today the appellant called Mr Ryan to give evidence. Mr Ryan’s evidence does not assist the appellant. In fact, Mr Ryan’s evidence is relatively neutral. I say “relatively neutral” because he did not see the collision between the appellant when riding his pushbike and Mr Mitchell or the appellant’s attack upon Mr Mitchell. He became aware that something had happened or was happening on the footpath when Mr Epplestun jumped the fence, to which I have already referred.
Mr Ryan later saw what he said had transpired between the appellant, Mr Epplestun and Mr Mitchell and later between the appellant and police. His memory, like the memory of everybody involved in the case, has been affected by the passage of time and by the effect of reconstruction. Mulling over something tends to affect the memory of whatever it was. In any event, I do not see that Mr Ryan’s evidence supports or undermines the Crown’s case or the appellant’s case. It is simply neutral, except to confirm the appellant’s anxiety and aggression.
The jurisdiction of the Supreme Court in relation to an appeal from a Magistrate in the Magistrates Court is a well known jurisdiction. It is a jurisdiction which requires that error be shown on the part of the Magistrate. The error may be in the wrongful admission of a piece of evidence. It may be in the denial of admission of a relevant piece of evidence. It may be in the decision being so flawed as to indicate an error in principle.
I have read the transcript of the proceedings before Magistrate Mossop. I have read Magistrate Mossop’s decision. I have read the written submissions of the appellant. The appellant’s written submissions challenge nearly every point in the evidence and in Magistrate Mossop’s findings, but they do not show error on the part of Magistrate Mossop. Magistrate Mossop realised that he was conducting a criminal trial. He recognised the rules that applied to a criminal trial. He understood the principle of self defence. He applied the law to the facts as he found them. That is what a Magistrate does in making a decision in a criminal trial. First, the Magistrate has to find the facts within the evidentiary material which satisfy him or her. Then the Magistrate applies the law as he or she understands it to be to the facts as found by him or her.
So that Mr Buggy will understand, I propose to refer to the facts as I see them based upon the evidence placed before Magistrate Mossop. This is something that I need not do as I have said already that I do not see error in Magistrate Mossop’s finding of the facts or his understanding of the law and the application of one to the other.
The evidence justifies these findings: that Mr Mitchell did not give “the bird” to the appellant; that Mr Mitchell did not drop his shoulder into the appellant as the appellant attempted to ride past him on his pushbike; that the appellant’s pushbike collided with Mr Mitchell; that Mr Mitchell was knocked to the ground; that when Mr Mitchell was lying on the ground, he was attacked by the appellant who placed his knee on Mr Mitchell’s chest or stomach, who punched him twice, who swore at him and who threatened him; that the evidence of Mr Epplestun confirmed much of the evidence of Mr Mitchell and denied much of the evidence of the appellant; that the evidence of the police, albeit not relevant to what had occurred between the appellant and Mr Mitchell, confirmed that the appellant was in an agitated and aggressive state, confirming, in my mind, his attack upon Mr Mitchell, his swearing at him, and his threatening him.
The circumstance of Mr Mitchell lying on the ground when he was attacked means that self defence simply did not arise. Mr Mitchell had done nothing towards the appellant other than be in his path on the footpath as he attempted to drive past him on his pushbike. He was lying on the ground when he was attacked by the appellant. He had not threatened the appellant. He had not done anything towards the appellant. He was simply lying on the ground, having been knocked there, by the collision. He had done nothing to justify the appellant’s attack upon him. The question of self defence simply did not arise, and Magistrate Mossop was correct to find that it did not arise.
Turning now to the specific grounds of appeal. There is nothing in the transcript which suggests in any possible way that Magistrate Mossop had prevented Mr Pickering from fully presenting the appellant’s case. I have said already that Magistrate Mossop applied the law correctly to the facts as he had found them. Having read the transcript, there is nothing in what Mr Pickering did which failed to properly present the appellant’s case before Magistrate Mossop. It must be said, however, that the Crown’s case was strong to the point of being overwhelming. There was very little that Mr Pickering could have done. It is impossible for me to say whether police failed to bring witnesses to court. In fact, they brought all the witnesses whose evidence was relevant. True it is that Mr Ryan’s evidence is peripherally relevant, albeit, as I have said, it adds nothing to the Crown’s case or the appellant’s case and does not take anything away from either of those cases.
The appellant simply believes in his own case and he will not change his view no matter how long he lives. He will not accept that he was the wrongdoer. He will forever blame Mr Mitchell. He will never accept that Mr Epplestun was a truly independent person who witnessed a part of what occurred between the appellant and Mr Mitchell. Having heard Mr Ryan today, he will blame Mr Ryan. He blames the police. He blames Mr Pickering. He blames the Magistrate. He may well blame me after today. But the case against him was strong to the point of being overwhelming. The Magistrate was correct to find what he did.
The appeal is dismissed. The Magistrate’s conviction and sentence are confirmed. I allow until 31 January 2014 for the payment of the fine.
I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 12 June 2013
Counsel for the appellant: Self represented
Solicitor for the appellant: Self Represented
Counsel for the respondent: Mr K Lee
Solicitor for the respondent: Office of the Department of Public Prosecutions
Date of hearing: 7 June 2013
Date of judgment: 7 June 2013
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