Momand v Merttens
[2015] WASC 150
•1 MAY 2015
MOMAND -v- MERTTENS [2015] WASC 150
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 150 | |
| Case No: | SJA:1091/2014 | 3 FEBRUARY 2015 | |
| Coram: | CORBOY J | 1/05/15 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on two proposed grounds of appeal Appeal allowed Conviction set aside | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMAD FARHAD MOMAND JIM HARRY MERTTENS |
Catchwords: | Criminal law Appeal against conviction and sentence Inconsistent verdicts Unreasonable and unsatisfactory verdict Adequacy of reasons Accident |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Criminal Code (WA), s 445 Magistrates Court Act 2004 (WA), s 31 |
Case References: | Bennett v Carruthers [2010] WASCA 131 Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Libke v The Queen (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 Manonai v Burns [2011] WASCA 165 McKenzie v The Queen (1996) 190 CLR 348 MFA v The Queen (2002) 213 CLR 606 Morgan v The State of Western Australia [2011] WASCA 185 NCH v The State of Western Australia [2010] WASCA 29 Osland v The Queen (1998) 197 CLR 316 Phillips v The Queen (2006) 225 CLR 303 Raux v The State of Western Australia [2012] WASCA 1 Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Riley v The State of Western Australia [2007] WASCA 22 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Schmidt v The State of Western Australia Australia [2013] WASCA 201 SKA v The Queen (2011) 243 CLR 400 Weiss v The Queen (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JIM HARRY MERTTENS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M FLYNN
File No : AR 5702 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Inconsistent verdicts - Unreasonable and unsatisfactory verdict - Adequacy of reasons - Accident
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 445
Magistrates Court Act 2004 (WA), s 31
Result:
Leave to appeal on two proposed grounds of appeal
Appeal allowed
Conviction set aside
Category: B
Representation:
Counsel:
Appellant : Mr F Merenda
Respondent : Ms M Georgiou
Solicitors:
Appellant : Sklarz Lawyers
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bennett v Carruthers [2010] WASCA 131
Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Libke v The Queen (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487
Manonai v Burns [2011] WASCA 165
McKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Morgan v The State of Western Australia [2011] WASCA 185
NCH v The State of Western Australia [2010] WASCA 29
Osland v The Queen (1998) 197 CLR 316
Phillips v The Queen (2006) 225 CLR 303
Raux v The State of Western Australia [2012] WASCA 1
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Riley v The State of Western Australia [2007] WASCA 22
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schmidt v The State of Western Australia Australia [2013] WASCA 201
SKA v The Queen (2011) 243 CLR 400
Weiss v The Queen (2005) 224 CLR 300
- CORBOY J:
The appeal and the result
1 The appellant was charged with two offences - that:
(a) on 19 March 2013, at Thornlie he unlawfully assaulted Danielle Lee Duncan, contrary to s 313(1)(b) of the Criminal Code; and
(b) that on the same date and at the same place, he unlawfully damaged the property of Danielle Duncan, being a car stereo, valued at $50, contrary to s 445 of the Criminal Code.
2 The appellant was acquitted of the first charge but convicted of the second charge. He was sentenced to 7 months' imprisonment suspended for 14 months. He was ordered to pay $50 compensation for the damage caused to the car stereo.
3 The appellant appealed from his conviction and sentence. He drafted his own appeal notice which proposed four grounds of appeal: 'miscarriage of justice'; 'miscarriage of the law'; 'being given wrong conviction' and 'being handed down harsh sentence'. The appellant also filed an affidavit with his appeal notice in which he provided a further explanation of his proposed grounds of appeal.
4 A directions hearing was held for the purpose of clarifying the appellant's proposed grounds of appeal in light of his affidavit and appeal notice. The respondent conceded at the directions hearing that the sentence imposed by the magistrate was manifestly excessive and that a fine would have been the appropriate punishment.
5 Following the directions hearing, I circulated draft proposed grounds of appeal that reflected the matters stated by the appellant in his affidavit and the submissions that had been made at the directions hearing. The purpose of the draft proposed grounds of appeal was to assist the parties and the court to better identify the errors that the appellant contended had been made by the magistrate in convicting him of the second charge. The draft proposed grounds of appeal were:
(a) the magistrate erred in law by failing to make a finding on whether the complainant was the owner of the car stereo at the time that it was allegedly damaged;
(b) the magistrate erred in fact in finding, if he did so find, that the complainant was the owner of the car stereo at the time that it was allegedly damaged;
(c) the learned magistrate erred in fact and in law in finding that the appellant had damaged the car stereo.
6 The particulars to the final proposed ground of appeal alleged that:
(i) the finding was inconsistent with the findings made by the magistrate on the charge that the appellant had unlawfully assaulted the complainant;
(ii) there was insufficient evidence on which the magistrate could be satisfied that the appellant had damaged the car stereo in that there were inconsistencies in the complainant's evidence and between her evidence and the evidence given by the other witnesses to the incident;
(iii) there was no evidence that the car stereo produced in court and received as an exhibit was the stereo that had been allegedly damaged.
7 The question of whether the appellant was to be given leave to appeal on any of the proposed grounds of appeal was deferred to the hearing of the appeal.
8 The appellant was granted legal aid and was represented at the hearing of the appeal. The appellant's solicitor amended the notice of appeal shortly prior to the hearing of the appeal to allege that:
The learned magistrate erred in law and in fact in failing to consider the issue and defence of accident, in that the stereo had fallen to the ground whilst the complainant and her friend were in a physical altercation with the appellant and his brother.
Particulars
(a) the evidence of the appellant and his brother, Mr Momand, was that there was a physical 'scuffle' between the parties that was initiated by the complainant and her friend Juston.
(b) with respect to the alleged assault, the learned magistrate found that, having regard to the abovementioned evidence, there was at least the reasonable possibility that any force used by the appellant was in self-defence, and therefore acquitted the appellant of assault.
(c) the learned magistrate therefore consequently failed to direct himself as to the likelihood of the car stereo having been damaged by accident in the course of the 'scuffle' between the appellant, the complainant, her friend and the appellant's brother.
9 It was not clear from the appellant's amended appeal notice whether he intended to abandon the grounds of appeal foreshadowed in his affidavit and as settled following the directions hearing or whether the allegation concerning accident was a further proposed ground of appeal. A further directions hearing was held at which the respondent was advised that he should be ready to argue the grounds of appeal identified at the previous directions hearing as well as the proposed ground concerning accident.
10 I have concluded that:
(a) the appellant should be granted leave to appeal on the second and third proposed grounds of appeal identified at and following the directions hearing;
(b) the appellant should not be granted leave to appeal on the first proposed ground of appeal identified at and following the directions hearing and the proposed ground raising accident;
(c) the appeal should be allowed;
(d) the appellant's conviction should be set aside;
(e) there should be no order for a new trial of the property damage charge.
The facts alleged by the prosecution
11 The prosecutor alleged in his opening that:
(a) The appellant attended the complainant's house in Thornlie on 18 March 2013 and purchased a car stereo for $50.
(b) The appellant later contacted the complainant by text claiming that the car stereo did not work and that he wanted his money back. As a safety precaution, the complainant arranged to meet the appellant in a public area at the Thornlie Square shopping centre for the purpose of taking the car stereo back and returning the money paid by the appellant.
(c) On 19 March 2013, the appellant met the complainant and her friend in the carpark at the Thornlie Square shopping centre. There was a heated exchange, during which the appellant threw the car stereo onto the ground. The stereo was damaged as a result.
(d) The argument continued and the appellant then kicked the complainant twice. The complainant blocked one kick with her arm, but the second kick struck her in the stomach. The appellant then left the shopping centre.
The evidence
The complainant's evidence
12 The complainant stated that she had advertised the car stereo on Gumtree. She was a fly-in fly-out worker and initially, she corresponded with the appellant about the sale of the stereo by text message. She met with the appellant on the afternoon of 18 March 2013, following her return to Perth. She sold him the car stereo for $50 (ts 7).
13 The next day she received multiple phone calls from the appellant which she was unable to answer at the time. She then received a series of text messages from the appellant. He claimed that the car stereo did not work and there followed an increasingly acrimonious and aggressive exchange of text messages. The complainant considered that the appellant's messages were threatening and so she contacted the police. However, there were further text messages exchanged between the appellant and the complainant in which they arranged to meet at the Thornlie Square shopping centre for the purpose of returning the car stereo and the money that had been paid for its purchase.
14 The complainant went to the Thornlie Square shopping centre at approximately 3.15 pm on 19 March 2013. She was accompanied by a friend, Juston Lusignan.
15 The complainant and Mr Lusignan got out of their vehicle on arriving at the shopping centre and walked down to the driver's side of a vehicle that was occupied by the appellant and another person.
16 The appellant's companion was his brother, Sediq Momand. He got out of the vehicle and shook Mr Lusignan's hand (ts 13 - 14). The appellant was remained in his car.
17 The complainant then yelled at the appellant. The appellant got out of his car and said that the complainant could have her stereo back. The appellant then took $50 from Mr Lusignan and put the money in the central console of his car. Mr Sediq Momand had the car stereo in his hand. The appellant then pushed Mr Lusignan twice before Mr Sediq Momand told him to back off and get back into the car. The appellant then grabbed the stereo from his brother and smashed it in the carpark. He smashed it by throwing it on the ground (ts 14 - 15).
18 The appellant then got back into his vehicle. However, the complainant stood in the door of the vehicle so that it could not be closed. She did that because she wanted her money back as the car stereo had been smashed by the appellant.
19 The appellant got out of the car and kicked the complainant; the first kick was blocked, but the second kick struck the complainant in the stomach (ts 18 - 19). The appellant returned to his vehicle and drove away.
20 Mr Lusignan picked up the stereo from the ground and he and the complainant also departed. The complainant did not recover the $50.
Mr Lusignan's evidence
21 Mr Lusignan stated that the complainant asked him to assist in exchanging the stereo and the money paid for its purchase with the appellant. He agreed and the complainant gave him $50 before they arrived at the Thornlie Square shopping centre.
22 He and the complainant got out of the complainant's vehicle and walked across to another vehicle on arriving at the shopping centre carpark. The appellant got out of the vehicle as they approached and they met in front of the appellant's car. The appellant asked for his money and the complainant replied, 'You need to learn some respect towards women' (ts 33). The situation became 'very tense very quick' following that comment. Prior to the complainant making the comment to the appellant, Mr Lusignan had approached the appellant's companion and shook him by the hand. Mr Lusignan stated that after the appellant had asked for his money:
She [the complainant] said that he needed to learn respect towards women, and that sort of just went over his head and he started to say what I said before, that we didn't know him and that he was a gangster and - which I sort of chuckled at. And after that he asked again about the money, and we asked about the stereo.
Yes?---And after that he leant into his car and grabbed the stereo, which he handed to Danielle, and I gave him his money.
So who did you give the money to?---The accused (ts 34).
23 The complainant said something further to the appellant after he had handed the stereo to the complainant. The appellant then:
[P]retty much lashed out and kicked at her and she went back. And he leant forward again and grabbed the stereo, with another kick after that, which she put her hands out to block. And after that he grabbed the stereo and chucked it on the ground (ts 35).
24 In the course of being further questioned by the prosecutor about the circumstances in which the stereo was damaged, Mr Lusignan stated that there was a heated exchange between the complainant and the appellant (which he described as a 'little kerfuffle') during which the stereo was taken by the appellant out of the complainant's hands; the appellant then kicked at the complainant twice and he threw the stereo onto the ground as he got back into his car (ts 36 – 37). The appellant retained the $50.
25 In cross-examination, Mr Lusignan denied that Mr Sediq Momand had the stereo with him when he got out of the car or that he had handed the stereo to the complainant. There was no discussion between Mr Sediq Momand and the complainant. He also denied that the complainant had positioned herself at any time so that the appellant could not shut the door of his car. Mr Lusignan also denied that he had touched the stereo until he picked it up off the ground after the appellant had departed. He denied that the complainant refused to give the appellant the money that he had paid for the car stereo (ts 45 - 46).
The appellant's evidence
26 The appellant stated that he purchased the car stereo from the complainant for $60. He took the car stereo to a shop that specialised in stereo equipment and was told that it did not work. He then attempted to ring the complainant, but there was no answer. He then sent text messages to the complainant asking for his money back. He also went to the complainant's house for that purpose. There was an exchange between them during which the complainant abused the appellant. An arrangement was then made for him to meet with the complainant at the Thornlie Square shopping centre (ts 52 – 55).
27 He went to the shopping centre with his brother. The complainant and Mr Lusignan approached his car and he said to his brother words to the effect, 'Look, I don't want to get out of the car because she's - she's, kind of, very arrogant towards me and she's racist so if she says something, you know, I don't want to get involved with - I don't want - I don't want trouble, you know'. He then asked his brother to give the stereo to the complainant and to retrieve the money that he had paid. He handed the stereo to his brother who got out of his car and gave the stereo to the complainant. She then gave the stereo to Mr Lusignan (ts 56). The complainant then said to the appellant's brother that she was not going to return the money and made some racist remarks (ts 57).
28 The appellant got out of his vehicle and approached the complainant and asked for his money back. There was an exchange between them and the complainant grabbed the appellant's shirt, ripping the collar. Mr Lusignan then punched Mr Sediq Momand and the appellant pushed the complainant away with an open hand while demanding his money back. The appellant then said to his brother that the situation was getting out of hand and they should leave. The appellant got into his car and the complainant tried to stop him from closing the door. She also attempted to kick and punch him (ts 58 – 59).
29 The appellant left the shopping centre without his money. He did not know what had happened to the stereo after the complainant had handed it to Mr Lusignan.
30 In cross-examination, the appellant stated that he did not think that his brother and Mr Lusignan shook hands. Otherwise, the appellant maintained the account that he had given in his evidence-in-chief during cross-examination.
Mr Sediq Momand
31 Mr Sediq Momand stated that he had been asked by his brother to assist in returning the stereo. They went together to the Thornlie Square shopping centre carpark. The complainant and Mr Lusignan approached the vehicle in which they were sitting. The appellant asked Mr Sediq Momand to give the stereo to the complainant and to collect $50 from her. He handed the stereo to the complainant and asked for $50 (ts 82). The complainant told Mr Sediq Momand that she did not have the money and was not going to give the money back. The complainant then handed the stereo to Mr Lusignan. Mr Sediq Momand told the appellant that the complainant did not have the money. He then walked back towards the car and the appellant got out of the car at the same time. The appellant endeavoured to move towards the complainant, but she rushed towards him and started punching him. Mr Lusignan ran towards the appellant and the complainant and, at the same time, Mr Sediq Momand put himself between the two of them. The complainant was shouting abuse at the appellant. Mr Sediq Momand pulled the appellant away and put him in the car. At one point, the complainant grabbed the appellant by the shirt and ripped his shirt. Mr Sediq Momand got into the vehicle, but the appellant was unable to close his door because the complainant was holding the door. She was trying to kick the appellant as she held the door. Mr Sediq Momand did not see what happened to the stereo after it was handed to Mr Lusignan (ts 83 – 84).
32 Mr Sediq Momand maintained the account that he had given in his evidence-in-chief during cross-examination. He added that he did not shake hands with Mr Lusignan. He stated that he did not know what happened to the car stereo after the complainant gave it to Mr Lusignan.
The magistrate's reasons
33 After summarising the prosecution case and that of the appellant, the magistrate observed that there were discrepancies between the accounts given by the complainant and Mr Lusignan about what had occurred: which kick had been blocked by the complainant; whether the car stereo had been handed to Mr Lusignan, as the complainant stated, or whether it had been handed to the complainant, as Mr Lusignan stated; whether the appellant had pushed Mr Lusignan as the complainant stated or whether any contact between the appellant and Mr Lusignan had been incidental, as Mr Lusignan had stated; when the stereo had been thrown to the ground - before the kicks were delivered, according to the complainant, or after they had been delivered, according to Mr Lusignan, and the distance between the vehicles when the complainant and Mr Lusignan had first arrived at the shopping centre. The magistrate then commented:
There are, then, discrepancies - a number of discrepancies. On the other hand, there is consistency, as I have already said, about the crucial allegations of the prosecution case. The kicks, the number of kicks delivered, the fact that it was [the appellant] that threw the stereo to the ground, and the fact that the stereo broke into pieces (ts 105).
34 The magistrate further observed that it was significant that the car stereo (exhibit B) had damage to the exterior consistent with the evidence given by the complainant and Mr Lusignan.
35 As to the appellant's case, the magistrate noted that Mr Sediq Momand's evidence was broadly consistent with the appellant's case. However, the magistrate considered that the appellant was not a reliable witness as:
(a) In cross-examination, the appellant tended to add details that were not mentioned in his evidence-in-chief so that the magistrate was 'left with the impression that he was attempting to bolster his case the longer he stayed in the witness box'.
(b) There were aspects of the appellant's evidence that were not put to the witnesses who had been called by the prosecution - for example, the appellant's evidence that he had gone to the complainant's house at her invitation and his evidence that he had been abused by her when he went to her house. Those were matters that were not put to the complainant in cross-examination. Further, the appellant gave evidence that Mr Lusignan twice struck Mr Sediq Momand; that was another matter that was not put to Mr Lusignan when he gave evidence.
36 The magistrate continued:
Against that background, I come then to make findings of fact. Notwithstanding my conclusion that [the appellant] is not a reliable witness, I am left with conflicting versions with respect to whether or not [the appellant] delivered kicks to [the complainant]. On the one hand, [the complainant] and Juston are saying that they were - they observed those kicks, and on the other hand, Sediq saying he was present for the duration, and did not see that happen. In the end, I am unable to be satisfied, beyond a reasonable doubt, given that conflict, that that happened. Put another way, there is at least a reasonable possibility that any physical exchange did not involve those kicks, and any physical force used by [the appellant] was in self-defence. The prosecution has failed to prove beyond a reasonable doubt that there [sic] kicks delivered (ts 107).
37 The magistrate then turned to the charge of unlawful damage:
So far as the evidence in relation to the damage is concerned, Sediq was unable to give evidence about what happened to the stereo after he handed it over. Notwithstanding the conflict between the evidence - the conflict among the evidence of [the complainant] and Juston about who received the stereo, they are consistent that it was [the appellant] who threw it to the ground. I am satisfied that [the appellant] collected the stereo and that he threw it to the ground. I am satisfied that it was damaged when that took place.
Apart from the evidence of [the complainant] and Juston in that regard, there's the physical evidence, in terms of the damage to the stereo itself. To be clear, it is the damage to the steel component of the major box which is significant in that finding (ts 107).
38 The magistrate noted that there was a conflict in the evidence about whether or not $50 was handed to the appellant. Mr Lusignan stated that the money was handed across and the magistrate inferred from the text messages that the complainant had attended at the shopping centre carpark for the purpose of handing across the money that had been paid by the appellant to purchase the car stereo. He was satisfied that the money had been handed back, despite the evidence of Mr Sediq Momand that it had not been paid back. The magistrate gave no reason for not accepting Mr Sediq Momand's evidence - he simply stated that he did not accept his evidence on that point (ts 107). The magistrate found that the complainant was entitled to the car stereo, having handed the money back to the appellant.
The conflicting evidence about the car stereo
39 It will be apparent from the above summary that there was a conflict in the evidence about who had the car stereo and how it came to be damaged. The complainant stated that the appellant and Mr Sediq Momand got out of the appellant's vehicle and that Mr Sediq Momand had the car stereo in his hand. The appellant then pushed Mr Lusignan and took the car stereo from Mr Sediq Momand and threw it on the ground. Mr Lusignan picked the stereo up from the ground. Accordingly, on the complainant's version, neither she nor Mr Lusignan was given the stereo by the appellant or Mr Sediq Momand before it was damaged.
40 Mr Lusignan, Mr Sediq Momand and the appellant all gave evidence that the car stereo was first given to the complainant before it was damaged. Mr Lusignan stated that the appellant grabbed the stereo from the complainant and threw it on the ground after there had been an exchange with the complainant. Mr Sediq Momand and the appellant stated that the appellant gave the stereo to Mr Sediq Momand who then gave it to the complainant. The complainant, in turn, handed the stereo to Mr Lusignan. Mr Lusignan denied in cross-examination that he was given the stereo by anybody; he first touched the stereo when he picked it up off the ground after it was allegedly thrown by the appellant.
41 There was a further inconsistency in the evidence given by the complainant and Mr Lusignan that was noted by the magistrate. The complainant stated that the appellant threw the stereo to the ground and that it was a little later in the incident that the appellant allegedly kicked her (ts 15 -21). Mr Lusignan stated, however, that the appellant first kicked the complainant and then took the car stereo from her and threw it to the ground (ts 35).
Further questions for the parties
42 I caused an email to be sent to the parties after the hearing of the appeal in which I invited further submissions on the following questions:
(a) The magistrate found, so far as the evidence in relation to the damage was concerned, that Mr Sediq Momand was unable to give evidence about what happened to the stereo after he handed it over (ts 107). Was it implicit in that finding that the Magistrate had concluded that Mr Sediq Momand had not given evidence about (and had not been able to give evidence about) whether the appellant had grabbed the stereo from either the complainant or Mr Lusignan and whether the appellant had damaged the stereo by throwing it to the ground? Was it open to find on the whole of Mr Sediq Momand's evidence that he was in a position to see whether the appellant had grabbed the stereo and thrown it to the ground and that he had not seen the appellant do either of those things?
(b) The Magistrate found (at ts 107) that he did not accept Mr Sediq Momand's evidence that the complainant had not handed over $50. Was the Magistrate required to give reasons for that finding? Did he do so and if not, what are the consequences of his failure to do so?
The relevant principles
The obligation to give reasons
43 Section 31 of the Magistrates Court Act 2004 (WA) applies to both civil and criminal proceedings (see the definition of 'case' in s 3). The section provides that:
(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 reasons for doing so;
(c) need not canvass all the evidence given in the case;
(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.
44 Section 31 does not relieve a magistrate from the duty owed by all judicial officers to provide reasons that expose the process by which a decision has been reached. As Hall J (with whom Pullin & Murphy JJA agreed) observed in Manonai v Burns [2011] WASCA 165:
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred [53].
45 His Honour cited from the reasons of Steytler P in Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525:
While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact [52].
46 Hall J continued:
Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher J said:
'Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear.'
…
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important [55] - [56].
47 The reasons provided by a judicial officer should be considered as a whole; they are to be read in the context of the evidence adduced at the trial and an appeal court may take into account what can be legitimately inferred from the reasons: Bennett v Carruthers [2010] WASCA 131. An error in the reasons does not necessarily mean that there has been an appealable error. An appeal court will only interfere where the inadequacy of the reasons is such as to give rise to a substantial miscarriage of justice: s 14(2) of the Criminal Appeals Act 2004 (WA) (CAA).
Inconsistent and unreasonable verdicts
48 Buss JA summarised the principles relevant to an allegation that the verdicts of the jury were inconsistent in Riley v The State of Western Australia [2007] WASCA 22. The principles identified by his Honour were drawn from McKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606 and Phillips v The Queen (2006) 225 CLR 303. In brief summary:
(a) The test is one of logic and reasonableness. The appellant must satisfy the court that the two verdicts cannot stand together; that is, no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the verdicts.
(b) An appeal court is reluctant to find that verdicts were inconsistent in the relevant sense out of respect for the function which the law assigns to juries. Accordingly, if there is a proper way by which the appeal court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one that was open to the jury. It is only where the inconsistency rises to the point that the appeal court considers an intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.
(c) Where an inconsistency is found between a verdict of acquittal and a verdict of guilty, an appellate court may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the charge for which the appellant was found guilty on the footing that this merely carries forward the logic of the other acquittal verdict. However, the relief that is appropriate depends upon the particular facts of the case.
(d) The onus is on the appellant to demonstrate that the verdicts of the jury were inconsistent in the relevant sense.
A jury is, of course, entitled to accept part but not all of the witnesses' versions of events. Accordingly, the circumstances of the case may justify acquittal on some charges and conviction on other charges, even though proof of the charges depends upon the complainant's evidence. There is no general rule that a jury must necessarily find the complainant's evidence to be untruthful or the complainant's credibility to have been undermined in respect of charges on which the appellant was convicted where there are other charges on which the appellant was acquitted (see NCH v The State of Western Australia [2010] WASCA 29 [130], (Buss JA) (Martin CJ & Mazza JA agreeing)). However, in Osland v The Queen (1998) 197 CLR 316 McHugh J observed that:
When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring a verdict of guilty … Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused [116].
50 It is a question of fact whether a conviction is unreasonable or unsupportable. The appellate court is required to make an independent assessment of the whole of the evidence to determine whether the conviction can be supported. The question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113] (Hayne J). If the appeal court forms the view that the jury must have entertained a doubt about the appellant's guilt, then it is saying, in effect, that the jury erred in reaching its verdict: Morgan v The State of Western Australia [2011] WASCA 185 [95] (Pullin JA).
51 The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of seeing and hearing the witnesses. In most cases, a doubt experienced by an appellate court will be a doubt that the jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice has occurred.
Accident
52 Section 23B of the Criminal Code provides that a person is not criminally responsible for an event which occurs by accident. The event in this instance is the damage caused to the car stereo.
53 The onus to prove that the event alleged did not occur by accident rests with the prosecution. However, there must be some evidence that raises the issue for determination. The prosecution can prove that the alleged event did not occur by accident by proving beyond a reasonable doubt that:
(a) the accused intended that the event should occur; or
(b) the accused foresaw that the event was a possible (not a speculative or remote) outcome of the act or omission forming part of the alleged offence; or
(c) an ordinary person in the position of the accused would have reasonably foreseen that the event was a possible (not a speculative or remote) outcome of the accused's act or omission.
See Raux v The State of Western Australia [2012] WASCA 1.
The first proposed ground of appeal – finding on ownership of the car stereo
54 Section 445 of the Criminal Code makes it an offence to destroy or damage the property of another person. Accordingly, the prosecution was required to prove that the car stereo was the property of the complainant at the time that it was damaged.
55 It was clear from the evidence that property in the stereo passed to the appellant when he purchased it from the complainant. There was no dispute that the appellant and the complainant agreed that the car stereo would be returned to the complainant and the complainant would refund the money paid by the appellant when they met at the Thornlie Square shopping centre. It followed that property in the stereo would pass back to the complainant on her repaying the purchase price. Accordingly, the prosecution had to prove beyond a reasonable doubt that the appellant had received his money back prior to the stereo being damaged.
56 The magistrate correctly identified that the prosecution was required to prove that this had occurred. The magistrate's findings were summarised earlier in the reasons. They are further considered below.
57 Section 9 CAA provides that the leave of the court is required for each proposed ground of an appeal. The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court of Appeal stated:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].
58 I have concluded that leave to appeal on the first proposed ground of appeal should be refused applying that test. The magistrate considered and made a finding on whether the complainant was the owner of the stereo at the time that it was allegedly damaged. Whether that finding was reasonable or supportable on the evidence presented in the trial is a separate question.
The third proposed ground of appeal – finding that the appellant had damaged the car stereo
59 It is convenient to next consider the third proposed ground of appeal and to then return to the second proposed ground of appeal.
The findings about Mr Sediq Momand's evidence
60 It will be noted that the magistrate's observation that Mr Sediq Momand 'was unable to give evidence about what happened to the stereo after he handed it over' (emphasis added) implicitly accepted that Mr Sediq Momand had the stereo before it was handed over to either the complainant or Mr Lusignan. That finding is inconsistent with the evidence given by Mr Lusignan, but consistent with the evidence given by the complainant (and the appellant and Mr Sediq Momand). The magistrate made no reference to that conflict in the evidence in finding that he was satisfied beyond a reasonable doubt that the appellant had thrown the stereo to the ground on the basis of the evidence given by the complainant and Mr Lusignan.
61 The magistrate's comment contained a further implied finding: that Mr Sediq Momand was not in a position to be able to see what happened to the stereo after he handed it over to either the complainant or Mr Lusignan. The magistrate's finding appears to have been based on the following evidence given by Mr Sediq Momand:
Yes. All right. And you talked earlier about the car stereo. What happened with that car stereo? Did you see it after it was handed to the man?---No, I didn't see it. I didn't see it. I don't know what happened (ts 85).
62 Mr Sediq Momand was cross-examined on that evidence:
So the stereo, you've already been asked, so who had the stereo, this - the friend of the lady?---Yes.
And it's a fairly big stereo, isn't it?---Yes.
Like, you carried it from the car you were saying?---Yes.
So it weighed probably 5 or 6 kg maybe? And I may be quite right with that?---About that, yes.
Yes. And - it's your evidence that you never saw it again - - -?---No.
- - - after it got handed over to her friend?---No.
When you left did you see it?---No.
What were you looking at when you left?---Just we - I looked, reversed and then once the car was turned I looked straight on the road (ts 94).
63 The parties accepted that the magistrate found, in effect, that Mr Sediq Momand was not in a position to see whether or not the appellant had thrown the stereo to the ground as alleged by the complainant and Mr Lusignan. That finding, by implication, was contrary to the evidence given by the complainant as she stated that Mr Sediq Momand was holding the stereo when it was grabbed by the appellant and thrown to the ground. Consequently, there were two inconsistencies concerning Mr Sediq Momand's evidence that were not resolved by the magistrate.
64 The magistrate also commented that, '[n]otwithstanding the conflict between the evidence - the conflict among the evidence of [the complainant] and [Mr Lusignan] about who received the stereo, they are consistent that it was Mr Momand who threw it to the ground' (ts 107). Read literally, that observation misstates the effect of the evidence given by the complainant and Mr Lusignan. The complainant did not state that the stereo was handed over. She stated that the appellant took the stereo from Sediq Momand and threw it to the ground. Mr Lusignan, the appellant and Mr Sediq Momand, on the other hand, all agreed that the stereo was handed to the complainant. The appellant and Mr Sediq Momand stated that the complainant then gave the stereo to Mr Lusignan; Mr Lusignan denied that he had received the stereo from the complainant.
65 In my view, it is clear from reading the whole of Mr Sediq Momand's evidence that he observed the appellant throughout the entire incident. He gave a detailed and apparently complete account of the incident and the appellant's movements. It was not suggested at any point that Mr Sediq Momand's view of what had occurred had been obscured or that he had been distracted. The only point on which he appeared to be uncertain concerned who he alleged had punched him on the shoulder. However, he stated that this was because he was facing the appellant at the time and the complainant and Mr Lusignan were behind him (ts 91 and ts 92).
66 Mr Sediq Momand's evidence concerning what happened to the car stereo was set out earlier. The question that he was asked in his evidence-in-chief was, perhaps, ambiguous. However, in my view, the effect of his evidence was that he did not see what happened to the stereo after it was handed over because he was focused on the events that then occurred. That is, his evidence was not that there was some point in the incident where he was unable to see the appellant and so could not say whether the appellant had grabbed the stereo and thrown it to the ground as the prosecution alleged. Rather, he did not know what Mr Lusignan did with the stereo after it was handed to him by the complainant (on Mr Sediq Momand's version of what had occurred).
67 That conclusion is consistent with the evidence given by the complainant and Mr Lusignan. As I have already indicated, Mr Sediq Momand must have known what happened to the car stereo on the complainant's evidence as he was holding it immediately prior to it being grabbed by the appellant and thrown to the ground. Mr Lusignan's evidence was that Mr Sediq Momand was standing next to the appellant when the car stereo was handed to the complainant. The appellant and the complainant then exchanged some words and the appellant lashed out at and kicked the complainant. The appellant then grabbed the stereo and kicked the complainant again. He threw the car stereo to the ground following the second kick. According to Mr Lusignan, Mr Sediq Momand put his hand on the appellant's shoulder and attempted to calm him down a few times during the entire incident and he may have stepped between the appellant and the complainant (ts 42). There was no suggestion in Mr Lusignan's evidence that Mr Sediq Momand was in a position where he could not see what the appellant was doing. Rather, the inference is that Mr Sediq Momand was standing next to the appellant throughout the incident until they both returned to the appellant's vehicle.
The witnesses' credit
68 The magistrate noted that the evidence given by the complainant and Mr Lusignan was consistent on some matters and inconsistent on other matters. He identified some of the discrepancies in their evidence, but he made no findings about the truth and reliability of their evidence generally.
69 His Honour further noted that Mr Sediq Momand's evidence was broadly consistent with the appellant's case. He made several observations about the appellant's evidence that were adverse to his credit and he apparently discounted his evidence in making his findings. However, he made no express findings about the truthfulness and reliability of Mr Sediq Momand's evidence generally.
The inconsistency in verdicts
70 As has been noted, the magistrate found that he could not be satisfied beyond a reasonable doubt that the appellant had assaulted the complainant because of the conflict in the evidence given by the complainant and Mr Lusignan, on the one hand, and the evidence of Mr Sediq Momand on the other hand. Although the magistrate referred to the possibility that any physical force used by Mr Sediq Momand was in self-defence, he did not proceed to make findings on whether the prosecution had negated any defence under s 248 of the Criminal Code. No doubt that was because his ultimate finding was that 'the prosecution has failed to prove beyond a reasonable doubt that there were kicks delivered' (ts 107).
71 The magistrate gave two reasons for finding that the prosecution had proved beyond a reasonable doubt that the appellant had damaged the car stereo. First, notwithstanding that there were 'discrepancies' between their evidence, both the complainant and Mr Lusignan had stated that the appellant had thrown the stereo to the ground. Second, Mr Sediq Momand did not know what had happened to the stereo. However, his Honour observed earlier in his reasons that '[i]t is of significance to me that the evidence, in the form of the exhibit which is exhibit B is the stereo which has damage to the exterior of consistent with the case of both - or the evidence of both [the complainant] and Mr [Lusignan]' (ts 105). It is apparent from that observation that his Honour regarded the physical state of the stereo, as produced by the complainant, as corroboration of the evidence given by the complainant and Mr Lusignan.
72 There are several points to be made respectfully about the magistrate's findings.
73 First, the alleged assault and the damage to the car stereo were separate events. However, they formed part of a single, short incident. Indeed, on Mr Lusignan's evidence the assault and the damage formed part of a continuous sequence – the appellant kicked the complainant twice and then grabbed the stereo and threw it to the ground. The magistrate's finding that he could not be satisfied that the prosecution had proved the alleged assault beyond a reasonable doubt was relevant – in my view, significant - for determining whether the prosecution had proved that the appellant had damaged the car stereo as alleged.
74 Second, the magistrate found that he could not be satisfied beyond a reasonable doubt that the appellant had assaulted the complainant notwithstanding that the complainant and Mr Lusignan both gave evidence that the appellant had kicked the complainant. Accordingly, the fact that the complainant and Mr Lusignan both stated that the appellant had thrown the car stereo to the ground could not be sufficient, by itself, to establish beyond a reasonable doubt that the appellant had damaged the stereo if the same reasoning was followed.
75 Third, his Honour found that Mr Sediq Momand's evidence was sufficiently credible to, at least, raise a reasonable doubt as to whether the appellant had kicked the complainant.
76 Fourth, in my view, his Honour misunderstood the effect of Mr Sediq Momand's evidence on what happened to the car stereo during the incident. On the findings made in the assault charge, Mr Sediq Momand's evidence ought to have been sufficient to have raised a reasonable doubt as to whether the appellant was guilty of the property damage charge once the magistrate's misunderstanding is discounted - unless there was other evidence that resolved the doubt.
77 Fifth, the only other evidence that was relevant was the state of the car stereo as produced by the complainant in her evidence. In my view, the probative value of that evidence was not sufficient to sustain a conclusion that the verdict of conviction on the property damage charge could reasonably and logically stand with the verdict of acquittal on the assault charge. The condition of the car stereo as produced by the complainant was evidence that the car stereo had been damaged at some time and of the extent of the damage allegedly caused by the appellant but it was not, in itself, evidence that it was the appellant who had caused the damage in the manner alleged by the prosecution.
78 Sixth, there were several inconsistencies between the evidence of the complainant and Mr Lusignan that were not resolved by the magistrate but which are relevant to the question of whether, on a review of all of the evidence, it can concluded beyond a reasonable doubt that the appellant was guilty of the property damage charge. That difficulty was further compounded by the inconsistencies with Mr Sediq Momand's evidence – particularly, as the magistrate made no general finding about the truthfulness and reliability of Mr Sediq Momand's evidence.
79 I have concluded that the verdicts reached by the magistrate cannot reasonably stand together having regard to the points made above.
Unreasonable or unsustainable verdict
80 Proof of the charges depended on the magistrate being satisfied beyond a reasonable doubt that the appellant had committed the acts alleged on the evidence given by the complainant and Mr Lusignan and despite the evidence of the appellant and Mr Sediq Momand. There was little evidence presented that could corroborate the testimony of the witnesses.
81 In my view, it is not possible in those circumstances for the court to independently assess the evidence to determine whether the magistrate must have had a reasonable doubt about the guilt of the appellant. The court does not have the advantage of seeing and hearing the witnesses and its assessment must necessarily concentrate on whether the magistrate had erred and if so, the effect of the error.
82 Adopting that approach and applying the test identified in M v The Queen,as explained in SKA v The Queen and Morgan v The State of Western Australia, I consider that the magistrate must have had a reasonable doubt about whether the appellant was guilty of the property damage offence for the same reasons that I have found that the verdicts were inconsistent.
The second proposed ground of appeal – the payment of the money to the appellant
83 The magistrate rejected Mr Sediq Momand's evidence that the complainant did not hand any money to the appellant. He gave no reason for that finding, apart from noting that Mr Lusignan had stated that the money was paid and that text messages exchanged between the appellant and the complainant indicated that the purpose of the meeting at the Thornlie Square shopping centre was to enable the appellant to return the car stereo and the complainant to refund the money that had been paid. However, it is not apparent why Mr Sediq Momand's evidence regarding the alleged assault should have been sufficient to raise a reasonable doubt in the magistrate's mind but his evidence concerning the payment of the money should be rejected and Mr Lusignan's evidence accepted. It was, of course, open to the magistrate to accept and reject parts of each witness's evidence. However, the findings on the evidence of Mr Sediq Momand and Mr Lusignan concerned a matter that was essential to the proof of the charge alleged against the appellant: refer to the comments of Hall J in Manonai reproduced earlier. In my view, the magistrate was required to provide reasons for his findings.
84 The failure of the magistrate to give adequate reasons for his finding that the complainant had repaid the appellant the purchase price for the car stereo was not expressly pleaded as a ground of appeal. It was, however, raised by me following the hearing of the appeal and the parties were given an opportunity to make further submissions on the question. In those circumstances, I do not consider that it would be unfair to the respondent to take into account the magistrate's failure, in my view, to adequately explain his finding.
85 As his Honour recognised, it was necessary for the prosecution to prove that the complainant had refunded the purchase price prior to the car stereo being damages (on the prosecution case) for the appellant to be found guilty of an offence under s 445 of the Criminal Code. It is no possible to be satisfied beyond a reasonable doubt that the appellant was guilty of an offence under that section in the absence of a properly reasoned finding that the complainant had repaid the purchase price for the stereo to the appellant.
The fourth proposed ground of appeal - accident
86 It was not submitted on behalf of the appellant at the trial that the issue of accident was raised by the evidence. That was, no doubt, because the conflict in the evidence was between that given by the appellant and Mr Sediq Momand - that the appellant did not damage the car stereo - and the evidence of the complainant and Mr Lusignan - that the appellant had grabbed the car stereo and deliberately thrown it to the ground.
87 It was submitted in the appeal that the car stereo may have been accidentally damaged during a scuffle between the various parties. There are three difficulties with that submission. First, as has been indicated, it is not consistent with the evidence. No-one suggested that the car stereo fell from somebody's grasp in the course of a scuffle except for the appellant:
You got hold of the stereo and threw it on the ground in the car park, didn't you? - - -Why would I do that for?
No, I'm just saying that's what you did? - - -That's incorrect.
How did it end up on the ground? - - -Don't know. Maybe in the scuffle. I don't know. The guy had it in his hand. Maybe when he threw punches at my brother he threw it on the ground or something.
88 As can be seen, the appellant's answer was entirely speculative given in response to a question that impermissibly invited him to speculate. The appellant's answer did not raise the issue of accident for determination.
89 The second difficulty is that the allegation of accident is inconsistent with the magistrate's finding that the appellant deliberately damaged the stereo. The magistrate found that the prosecution had proved beyond a reasonable doubt that the appellant had deliberately damaged the stereo by throwing it to the ground. That is a finding to the effect that the appellant intended to damage the car stereo (and, of course, the appellant must have foreseen the possibility of the stereo being damaged in throwing it to the ground).
90 The third difficulty is that, in my view, an ordinary person, in the position of the appellant, would have reasonably foreseen that the car stereo would be damaged if it was held by, for example, the complainant and she subsequently became involved in a scuffle with the appellant.
91 I have concluded that leave to appeal on the fourth proposed ground of appeal should be refused applying the test stated in Samuels.
The orders to be made
92 Section 14(1) of the CAA provides that the Supreme Court may, among other things, substitute a decision that should have been made by the court of summary jurisdiction or order the case to be dealt with again by the court. The power to allow an appeal is subject to the qualification contained in s 14(2) - 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.
93 McLure P explained in Morgan v The State of Western Australia that:
The High Court has made it clear that an intermediate appellate court cannot conclude there was no substantial miscarriage of justice unless it is satisfied (as a necessary but not always sufficient condition) that the evidence admitted at trial proved beyond reasonable doubt the accused's guilt of the offence on which the jury returned its verdict: …Where the irregularity is material, the appellate court must first weigh all the evidence and be positively satisfied of the accused's guilt before concluding that there was no substantial miscarriage of justice [4].
94 The proposition to which her Honour referred was taken from Weiss v The Queen (2005) 224 CLR 300 [44]. Her Honour further explained in Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246 [10] the principles identified by the High Court in Weiss.
95 It will be apparent from the reasons that have been given that I am not satisfied that the evidence admitted in the trial established beyond a reasonable doubt that the appellant was guilty of the charge of property damage. I consider that the appeal should be allowed and the conviction set aside. This is a case in which it is appropriate to enter a verdict of acquittal on the charge on which the appellant was found guilty on the footing that this carried forward the logic of the verdict of acquittal on the other charge.
96 The power to grant a new trial is discretionary. The court must decide whether it is in the interests of justice to order a new trial. It is well established that the power to order a retrial should not be exercised in such a way as to give the prosecution an opportunity to make a new case that was not made at the first trial. It is equally well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction: Schmidt v The State of Western AustraliaAustralia [2013] WASCA 201 [115] (Martin CJ).
97 Where the evidence admitted at the trial was sufficiently cogent to support a conviction, the court must take into account any circumstances that might render it unjust to the accused to make him or her stand trial again; remembering, however, that the public interest in the proper administration of justice must be considered, as well as the interests of the individual accused: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.
98 In my view, it would be unfair to the appellant to order a new trial given that he was acquitted of the assault charge. As has been emphasised, the two charges arise out of a single incident. It is impossible to see how the witnesses could give evidence relevant to the charge of property damage without also giving evidence about what they alleged occurred in relation to the assault charge. Even allowing for the fact that the charge would be heard and determined by a magistrate rather than a jury, the unfairness to the appellant in those circumstances would, in my view, outweigh the public interest in a re-trial.
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