Morris v Tucker
[2013] WASC 198
•28 MAY 2013
MORRIS -v- TUCKER [2013] WASC 198
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 198 | |
| Case No: | SJA:1017/2013 | 17 MAY 2013 | |
| Coram: | McKECHNIE J | 28/05/13 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GAYLE ANN MORRIS DAMIEN JOHN TUCKER |
Catchwords: | Courts and judges Whether magistrate's interventions caused miscarriage Whether relevant witnesses not called Whether bias shown |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DAMIEN JOHN TUCKER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 40139 of 2012
Catchwords:
Courts and judges - Whether magistrate's interventions caused miscarriage - Whether relevant witnesses not called - Whether bias shown
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms R Young
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: The appellant was charged, (the charge being amended in the course of the hearing) by prosecution notice, that on 28 July 2012, at West Perth, having been personally served with a Violence Restraining Order number 2012 01561, breached that order by communicating with the person protected. She pleaded not guilty. Following trial on 14 January 2013 she was convicted and fined.
2 The appellant lodged an appeal against her conviction.
The proceedings before the magistrate
3 The appellant conceded that a violence restraining order had been served upon her.
4 Before evidence was adduced, the prosecutor indicated he would call Zoe Emonson, the protected person. The appellant said:
[Am] I allowed to have - see a copy of her criminal record? Because - - -
5 The magistrate said:
I don't even know if she's got a criminal record. You can ask her about matters like that, but it isn't the case that everybody turns up. You know, there comes - - -
MORRIS, MS: No, They're all there, your Honour.
HIS HONOUR; Right (ts 3)
6 There was then a further question:
Your Honour, sorry. Would you like to see some of those while we're talking sir?
7 The appellant was referring to some photographs which she had and asked the magistrate if he would like to see them. The magistrate said, 'No. I wouldn't'.
Zoe Emonson
8 The prosecution called Zoe Emonson who gave evidence that she and her son were protected persons under the order.
9 On 28 July 2012, when an interim order was in place, at about 3.00 pm in the afternoon she said:
I was just doing my gardening, as I do every couple of weekend. I proceeded to go out onto the top balcony of my bedroom. I could hear
(Page 4)
- some arguing and shouting. I started to water my garden, but looking over at the people arguing in a car bay just in front of my apartment block, my townhouse, was a car with another tenant, Steve (ts 3).
10 She heard the appellant:
[I] could just hear that shouting. I am sort of looking at these people. But she saw me sort of straightaway. It all happened quite quickly (ts 4).
11 She described the appellant as right on the corner of the driveway entrance, probably maybe 20 to 30 metres, with no obstructions and that she could quite clearly see and hear the appellant. She was shouting at people and when she saw Ms Emonson she pointed to her on the balcony:
[S]he faced me and pointed.
...
She basically abused me, saying that this was all my fault.
...
'This is all your fucking fault, bitch.' Or, 'This is all because of you, bitch'.
...
I didn't see anybody else out there and she was pointing at me, I suppose.
...
[I] didn't actually have any credit on my phone [to call the police], and I could see my friend, or one of the neighbour's car door open, and I assumed she was somewhere around the car. So I called out to her, called out 'Michelle' [Payne].
...
[My] next-door neighbour, Linda Hayes, ... she came out saying, 'Did you call the police?' ... She proceeded to get her phone and call them.
...
So the police came. What would happen then, as you were standing there?---Well, they were trying to place her in the back of the car, but she wasn't very compliant to that. She was sort of yelling abuse at us and just swearing (ts 4 - 6).
12 In cross-examination the appellant put to Ms Emonson:
It was probably about 2.30 when I arrived, because you know that I go to these units to care for my son who has the disability (ts 7).
(Page 5)
13 The appellant put to the witness that she initiated the incident, calling out 'Fuck off, bitch'. The witness denied it and said, 'I didn't actually speak to her at all' (ts 8). The witness disagreed with the proposition that the appellant did not say a word to her. She said that she did not see the appellant talking to a young lady in a white four wheel drive and denied that she was lying.
14 The appellant asked whether the witness had ever been [convicted] of perjury. The respondent replied:
Actually, many, many, many years ago there was a perjury on me. Yes.
Did you serve time for that perjury, Ms Emonson?---No, I didn't (ts 8).
15 The witness was asked whether she had a criminal record and queried the relevance but the magistrate required her to answer the question. There was then an interchange whereby the magistrate pointed out that the appellant needed to give the witness an opportunity to answer. The question was put to her:
You are lying. You are lying. Do you realise it's seven months for perjury for lying?---I don't have anything to worry here. I haven't lied (ts 10).
16 The witness said she did not see anybody leave the building and did not see a young girl in the white four wheel drive vehicle. The magistrate then intervened after the appellant had accused the witness again of lying saying:
[Y]ou are just asking the same question repeatedly and then you're just saying she's lying.
...
So I get the message you think she's lying. Okay, fine (ts 11).
17 The witness again denied calling out. She said:
Steve was there but I don't know who he was talking to (ts 12).
18 Before the next witness was called the appellant said:
I think it was important that you see exactly where this lady's unit is and where I was standing, your Honour (ts 13).
19 The magistrate said:
[Y]es, you can use the photographs when you give your side of the story, if you like. That's if you're required to (ts 13).
(Page 6)
Michelle Lisa Payne
20 On 28 July 2012 at between 3.00 pm and 4.00 pm the witness was outside her unit, heading over to the complainant's unit. The complainant was on her balcony watering the garden. As she was walking over she heard the appellant shouting out things to the complainant at the end of the driveway, about 20 metres away:
First of all there was no-one else around. There was only Gayle and Zoe when the shouting started. The way it was directed at her, 'I'm going to get you.' Those sort of words.
I'm going to get you, you cunt. You're a slut, whore.' Yeah. These words have been said time again, over and over.
...
[J]ust the general feeling of the words. So always the words are 'slut, whore, cunt.'
She was just shouting towards Zoe and myself (ts 15).
21 Erlinda Hughes called the police who attended and put the appellant in the van. Others present were maybe Steve and Linda. There may have been more:
As she was being put in the paddywagon she started shouting out abuse that she was going to get us, again, and things like that (ts 15).
22 In cross-examination it was put that on 28 July the witness was nowhere to be seen apart from when the police arrived. The witness said:
I was there.
You didn't hear the conversation that Ms Emonson was saying at all, did you?---Zoe didn't say anything.
... Yes. She said to me, 'Call the police.' (ts 16).
23 The witness denied being convicted of perjury. Being asked about her record she said, 'None of your business'. The magistrate directed her to answer the question and she said, 'I don't know. Look it up. Look it up.'
24 She denied being under any drug rehabilitation.
25 In response to a question, 'Well, Ms Payne, do you realise it's seven months for perjury?' (ts 17) the magistrate interrupted the
(Page 7)
- cross-examination saying, 'You are not allowed to belittle and intimidate witnesses' (ts 17).
26 The magistrate's intervention was appropriate.
27 The witness said she moved into the apartments in January 2012 and met the complainant when she moved into the apartments. She did not know her before but became friendly. She denied intimidating the appellant and her son. The magistrate said, 'No, it's not relevant'.
28 The final question was a lengthy one:
Ms Payne, you know you did not see me and you did not speak to me. You did not did not hear nothing (sic). You were not there. The only time that you were there, I put it to you Ms Payne, the only time that you were at the back was when the police come, and you were all heckling me from the back. Is that correct, Ms Payne?---No (ts 18).
Stephen John Murphy
29 On 28 July 2012 he was talking to his daughter through the window of her car at approximately 3.00 pm. The car was in the car park of the units:
I was talking to my daughter and I seen a lady, up near the entrance to the block units, waving her hands and yelling. I couldn't hear what was saying, but I just saw her (ts 19).
30 He identified the appellant in court. Then he heard Ms Emonson call out, 'She's threatening us. Call the police'. The lady who was yelling was waving her hands in the air. At most she was about 50 metres, probably a bit less from Ms Emonson.
31 In cross-examination Mr Murphy said he had been at the unit for 2½ years:
Mr Murphy, you know I never said one word to anyone but yourself when I asked you to remove your car from my son's car bay. Is that correct, Mr Murphy?---No (ts 21).
32 There were questions about parking in the car bays. The witness did not know whether there was a spare car bay vacant on the day. He does not have a criminal record apart from two offences back in 1990. He has never committed perjury.
33 The witness said that he did not hear anything the appellant said. He did not know who she was talking to.
(Page 8)
34 The prosecution called the police officers who attended the incident. Constable Mulroy attended at about 4.15 pm in Charles Street, West Perth. After making enquiries at the units he went to Unit 3 and saw the appellant in the front garden. He informed her she was under arrest on suspicion of breaching a violence restraining order. Her response was:
I'm not coming. I'm my son's carer. He's sick and I need to look after him.
...
As we got to the back of the vehicle, Gayle turned and directed up the driveway to where the victim and the witnesses were still standing and began yelling towards them.
...
I can't recall exactly what she yelled out.
...
Took her back to the police station where Morris participated in a video record of interview (ts 24 - 25).
35 The magistrate said:
HIS HONOUR: We're not seriously going to sit through four - - -
PROSECUTOR: 35 minutes, your Honour.
HIS HONOUR: Someone said four hours (ts 25 - 26).
36 The prosecutor sought to play the slimmed down version.
37 The video failed. The appellant said:
Your Honour, they've had since 28 July and I went to internal police and asked for full disclosure (ts 26).
38 The video was then played and tendered.
39 Ms Morris said:
Anyway, so then you went and said that you agreed, constable, I never said, I never refused to go with you. I did not say that I can't go with you. You agree with that?---At first, when I informed you you were under arrest, your words were, 'I'm not coming.' I'm my son's carer. He's not well. I need to look after him.
I put it to you you're lying?---No.
(Page 9)
- I put it to you you're a bully, and I put it to you you wanted to humiliate me by having Tucker, who you bossed and bullied, I put it to you that you deliberately had that car to humiliate me in front of unit 20, 19, 18, 17 and their friends. I put it to you. You could have pulled up at the front of my son's (ts 29 - 30).
40 The magistrate then intervened to 'give the witness a chance to answer' the question. The following then occurred:
HIS HONOUR: Ever heard of question and answer?
MORRIS, MS: Yeah, I have, your Honour. Yes.
HIS HONOUR: You need to have the question. Then you need to have the answer.
MORRIS, MS: Okay.
HIS HONOUR: Q and A. Okay?
MORRIS, MS: Yeah, yeah. No good just asking the question. You need to get the answer as well.
MORRIS, MS: All right, your Honour.
HIS HONOUR: Okay?
MORRIS, MS: Yeah, yeah.
HIS HONOUR: So you're a lying bully that was deliberately set up Ms Morris, is basically the thrust of it all. What do you say to all of that?---On the day I did ask Constable Tucker to go and get the vehicle he was driving at the time. He had the keys. I couldn't go and get the vehicle myself. We brought the vehicle down directly next to unit 3, so that it was the quickest. We couldn't pull on to Charles Street, it's a very busy road. You can't pull up directly in front of it without obstructing all of the traffic on Charles Street. I pulled up as close to unit 3 as - I got Tucker to pull the car up. He pulled it as close to unit 3 as possible. I was investigating. I placed Ms Morris under arrest and put her in the van.
MORRIS, MS: Excuse me, your Honour. Aren't I supposed to be cross-examining this lady? Didn't she have her turn?
HIS HONOUR: Well, you asked such a long question. Now we've got the long answer.
MORRIS, MS: Rightio.
HIS HONOUR: Yes? (ts 30)
(Page 10)
41 His Honour then intervened:
HIS HONOUR: Yes, I - - -
MORRIS, MS: There was - no. But I'm saying, your Honour - - -
HIS HONOUR: All you want to do is just use this as some forum to make complaints.
MORRIS, MS: Thank you. They can fit on the - - -
HIS HONOUR: By all means, you know, follow that through - - -
MORRIS, MS: Yeah. No, no. To humiliate - - -
HIS HONOUR: - - - but not today in this court. We are here about other things.
MORRIS, MS: Yes, yes.
HIS HONOUR: So unless you've got a relevant question - - -
MORRIS, MS: Yes, yes. No, it was humiliation and - - -
HIS HONOUR: Yes, okay, thank you. No re-examination?
PROSECUTOR: No, your Honour.
MORRIS, MS: Your Honour, could I just - - -
HIS HONOUR: Okay. Thank you very much for that Constable Mulroy?
(THE WITNESS WITHDREW)
HIS HONOUR: Yes, sorry.
MORRIS, MS: Your Honour, could I just say to you that the only person that I did call out, and it was Laurie and Toulah.
HIS HONOUR: Yes.
MORRIS, MS: Who is right next-door to my son's unit, and now that man is in gaol, and one of these people, unit 20, there's an involvement.
HIS HONOUR: Okay.
PROSECUTOR: The prosecution call Constable Damien John Tucker, T-u-c-k-e-r (ts 31).
(Page 11)
42 The final prosecution witness was Damien John Tucker, who was Constable Mulroy's partner. There was no cross-examination of the witness although the appellant said:
I would like to say, Constable Tucker, you were a gentleman on the day. Yes. No, he was, your Honour. I just felt that, as I said to you before, in my eyes you were bullied by Constable Mulroy. But, I know that you have said that, you know, that you heard me calling out, but as I said, I called out to Laurie and Toulah. But that's all I have to say to you. Yes (ts 33).
43 It was at this point that the prosecution applied for the prosecution notice to be amended by deleting the words 'verbal contact' and substituting the word 'communicating'.
44 The following occurred:
HIS HONOUR:Yes. Yes, can, you stand up, please, Ms Morris?
MORRIS, MS: Yes. Yes, your Honour.
HIS HONOUR: That completes all the evidence that's going to be presented against you.
MORRIS, MS: Yes.
HIS HONOUR: As I said to you - - -
MORRIS, MS: Can I - - -
HIS HONOUR: - - - it's up to the - - -
MORRIS, MS: Sorry, your Honour.
HIS HONOUR; Yes. Try listening. Okay? It will be a new experience. Okay? The prosecution have produced all their evidence against you. As I mentioned to you you don't have anything to prove. It is up to the prosecution to prove each element of this offence beyond a reasonable doubt. Now that they have done that you have a choice to make. You can give evidence or you can not give evidence.
You don't have to give evidence and nothing wrong can be said of you if you choose not to give evidence, because you have nothing to prove. Okay? I can't say, for example, well, she must have something to hide, or she's not brave enough to go in the witness box. None of that at all, because of course you have nothing to prove.
If you choose to give evidence you've got to do it in the witness box, taking an oath or an affirmation, whatever is your preference.
(Page 12)
- MORRIS, MS: Yes, yes.
HIS HONOUR: You can tell me, if you like, your side of the story.
MORRIS, MS: Yes, yes. I would like to do that.
HIS HONOUR: Okay. You want to do that, you can do that.
MORRIS, MS: Yes. I would like to do that, your Honour.
HIS HONOUR: Yes, sure. Thank you. As long as you understand you don't have to. But you understand that.
MORRIS, MS: Absolutely (ts 34 - 35).
45 His Honour led the witness's name and said:
We will hear about this alleged breach of a restraining order on 28 July. ... So what do you want to tell me?---I really wanted to tell you, your Honour, for four hours not only was I humiliated at being arrested, falsely arrested. I know that's up to you, your Honour, to find out that.
Yes?---But I was put in a van. There was a two-seated - there was four seats plus a cage. Now, I'm a good living person, your Honour. Those choose to - the police choose to put me in a cage like a dog. I fell from one side to the next. I have injections every three months, your Honour, by Dr Rick Stell, a neurologist. I have, like Parkinsons.
Yes, Perhaps we might deal - when I start off saying have you got anything to say about the alleged charge. Okay. Perhaps you misheard that?---Okay. Yes, yes, okay. All right.
So just talk about 28 July charge, if you wouldn't mind. If you don't want to say anything about that that's fine?---No. I just want to - - -
I'm here not about the construction of police vans, or anything?---Well I will just reiterate, your Honour, I will just reiterate ... I believe it was probably 2.45, approximately. Because I know I wanted to be home by 4.00. I said I'd do a bit of cleaning at my son's. I parked over at Prospect Place, your Honour. I walked across the road. I saw this young girl. I don't know her name, but her boyfriend lived at unit 10. But unfortunately, why I couldn't get her is because I've been told he was robbed and he's gone from the units. He was in unit 10. She drove, your Honour, a white - believe it was a - it's a new four-wheel drive. She was parked right next my son's (ts 36).
46 The magistrate said:
I beg your pardon for interrupting but you would have heard the evidence of Mr Murphy?---Yes.
(Page 13)
- Who said that he was saying goodbye to his daughter, who drives a white Falcon with four doors? (ts 36).
47 The witness said:
Hers was an old - Mr Murphy's daughter is an old, sort or like a Falcon.
48 The magistrate said:
So this is not Mr Murphy's daughter you're talking about?---No, no, no, no.
...
[When] I went to her, because she is afraid going to the units too, and I saw her as I was going to my son's. I just went to say hello to her and that's when Zoe Emonson was standing on her balcony, your Honour.
Yes?---Next minute - and there was another, an indigenous girl across the road, on the other side of Charles Street, your Honour. The next minute this Zoe Emonson was calling out, 'We're calling the police. You're not allowed here. We're calling the police.' Now, this young girl, I don't even know her name, your Honour, but she is the girlfriend of Unit 10, and she said, 'Oh, my God, these units are so scary.' I said, 'I know. I'm trying to get my boy out of here.' She took off, your Honour, and I thought Zoe Emonson might have been talking to the indigenous girl. I did not, your Honour, did not, and I'm under oath, did not say one word to Zoe Emonson (ts 36).
49 The witness gave evidence again about the record of interview and Royal Perth Hospital. The magistrate pointed out, '[I] don't criticise you for having those complaints ... but that's not what I'm here about' (ts 37).
50 In cross-examination the witness denied having a conversation with Mr Murphy outside the son's carport. She spoke to him from the driveway. The cross-examiner said, 'Okay' and the witness said:
You've got a photo there. Would you like me to point it out?
No?---The photo? (ts 38).
51 She agreed she was frustrated at a car being parked in her son's car bay, and she asked Mr Murphy 'Please move your car'.
52 The witness referred to a photograph but the prosecutor said:
There is no photo I'm looking at. I'm asking you a question (ts 39).
(Page 14)
53 The witness denied that the complainant was on the balcony, that she turned to her, that she was frustrated and she yelled out obscenities to her. She did not see Ms Payne.
54 The prosecutor wished to submit the appellant's criminal record but the magistrate ruled against the submission.
55 At the conclusion of her evidence, the witness acknowledged she had no further evidence and that that completed her evidence.
56 At the conclusion of the appellant's submissions the following occurred:
HIS HONOUR: Yes. Okay.
MORRIS, MS: - - - I put in a $2000 air con - - -
HIS HONOUR: I've heard enough of your final address to know that you just want to carry on and have a - - -
MORRIS, MS: Okay. Yes, and your Honour, I have not - - -
HIS HONOUR: - - - generalised complaint about things.
MORRIS, MS: I have not - - -
HIS HONOUR: I'm just here about this case. Okay?
MORRIS, MS: Yes.
HIS HONOUR: So yes, that's fine. Thank you very much for that.
MORRIS, MS: Thanks, your Honour (ts 43)
57 The magistrate correctly reminded himself of the burden and standard of proof and concluded that the complainant's evidence did not cause him any great concern. He said that she was proportionate. She did not seem to denigrate the appellant. She was attacked pretty robustly in the witness box but did not seem to over-react or get really angry or look as though she was a person who was unnecessarily or inappropriately emotional (ts 65).
58 The magistrate had more concerns about the evidence of Michelle Lisa Payne. She has recorded the appellant as saying things that Ms Emonson did not record as saying. What she seemed to be saying was there had been past abuse in those words that she used and she was having difficulty separating out the occasions. Her evidence was significant
(Page 15)
- because she saw the appellant carrying on, and confirms that the complainant wanted to call the police. The magistrate found her evidence a little bit more unreliable, her recollection of the language used but accepted she was there and was not lying. The magistrate did not rely on her version as to what was said.
59 The magistrate considered Mr Murphy was being quite vague in his evidence. His value was simply that yes he was there and recorded the appellant as being there, and to some extent, carrying on.
60 The magistrate said:
[I] must admit - I must be frank and say I don't have any great belief in the credibility of Ms Morris, despite all the business of about swearing on the lives of her children and her grandchildren. She clearly is a person who is very highly strung. She showed that in the face of the court (ts 46).
61 The magistrate formed the view that the appellant 'wasn't a person in who I had any great faith in the truthfulness of'.
62 He set aside the appellant's testimony as not to be relied on. He did not think she was a truthful person.
63 He then turned back to the prosecution evidence to see whether he was satisfied beyond a reasonable doubt. He concluded that the complainant is to be relied on. She told a perfectly understandable, not strange, story. The charge was proved beyond reasonable doubt.
The grounds of appeal
64 The original grounds of appeal were confusing:
1. Was not given full disclosure.
2. Sg Lyon's who refused me bail and gave written deceitful statement did not give evidence at trial yet sat outside.
3. Erlinda Hughes same gave deceitful statement was not called did not attend. (She called Linda Hayes also)?
4. Sarg Bela Malasits gave written statement first it was 8 pages then 3 then he outside with Sg Lyons was not called for me 2 cross exam any of above.
5. Magistrate Malone cut me short constantly.
6. Magistrate Malone refused 2 see my photos.
(Page 16)
65 On 22 April 2013 Hall J listed the matter for directions and after discussion formulated the grounds of appeal (which the appellant accepted) as follow:
There was a miscarriage of justice because the appellant was not given a fair hearing in that:
(1) The magistrate interrupted the appellant in the cross examination of Ms Emonson.
(2) The appellant was not permitted to tender photographs in evidence.
(3) The prosecution failed to call relevant witnesses namely, Sergeant Lyons, Erlinda Hughes, Bella Malasits.
(4) The magistrate interrupted the cross examination of Mr Murphy.
(5) The magistrate was biased against me because of my Aboriginal heritage.
1. The magistrate interrupted the appellant in cross-examination of Mrs Emonson
66 The appellant's handwritten submissions in the appeal raise various matters which may relate to Ms Emonson's credibility albeit in a peripheral way.
67 These were not put to the witness in cross-examination and in any event do not bear on the incident of 28 July 2012.
68 Moreover the assertions are not related to the evidence.
69 There are assertions seeking to raise issues:
• whether Ms Emonson lived alone;
• whether she has a car;
• whether children lived with her;
• whether Ms Emonson had accused the appellant of pushing a child over; and
• allegations about Ms Emonson's associates.
70 Ms Emonson did not give evidence about any of these matters in court and was not cross-examined about them.
(Page 17)
71 As an example, in her written submissions the appellant asserts:
Ms Emonson told the court Magistrate Malone she knew nothing of robbery on 17 January 2011. She said police did not speak with her.
72 However, there was no such evidence at trial.
73 The appellant's submissions are not in any sense submissions. They are a diatribe against Ms Emonson mostly unrelated to the proceedings under appeal. The submissions are not directed to any ground of appeal either as lodged by the appellant or settled by Hall J.
74 The appellant complains about the magistrate's intervention in her cross-examination. However, the magistrate allowed the appellant considerable latitude (which is appropriate when a person is self-represented) in the formulation of questions. The magistrate did intervene on occasions when the witness was unable to get an answer out due to the appellant's continuous speaking. The magistrate also intervened to prevent considerable repetition.
75 The magistrates interventions are correctly summarised by the respondent:
The instances where the Magistrate intervened in the Appellant's cross-examination of Ms Emonson were to:
(a) ensure that Ms Emonson was given an opportunity to answer the questions put to her;
(b) assist the Appellant in simplifying the multiple compound propositions she put to ms Emonson;
(c) assist the Appellant to clearly put her questions on Ms Emonson's conviction for perjury;
(d) assist the Appellant put her allegation that she had not spoke to Ms Emonson; and
(e) attempt to avoid repetitious questions.
76 Litigants in person sometimes present issues of balance for a judicial officer. The litigant must have the opportunity to advance their case in cross-examination. The witness must be treated fairly. The evidence must be intelligible. At times a litigant may be left with an impression that the judicial officer unfairly interrupted the cross-examination when all that happened was that the judicial officer was endeavouring to keep the case on course according to the rules. This is such a case.
(Page 18)
77 The magistrate's interruptions to the cross-examination were appropriate. They did not indicate any bias, nor did they hinder or prevent the appellant from pursuing her cross-examination. There was a degree of repetition that justified intervention.
78 The magistrate's interventions were not unfair. They do not lead to a miscarriage of justice.
79 Although not a separate ground of appeal, I have examined all the magistrates interventions not just those related to Ms Emonson. I am not persuaded that the magistrate so far skewed the balance to result in a miscarriage of justice. His interventions were to keep the proceedings on track.
2. The appellant was not permitted to tender photographs in evidence
80 The magistrate was correct to decline to view the photographs before the case was underway. A magistrate is only entitled to consider evidence properly tendered. It may have been open for the appellant to produce the photos in the course of her case. In fact, photographs of the scene were produced by the police. Nothing in particular turned on the location and position of various participants.
81 At one point in the cross-examination of Ms Emonson the following occurred:
Do you agree that at about 2.45 I arrived at my son's unit. I parked across the road, at Prospect Place. I was on the footpath and there was a young girl, your Honour, who is a girlfriend of unit 10. Here is the picture here, where I was standing, your Honour. This is the footpath. I'm at the unit. Yes.
HIS HONOUR: Just ask questions, if you wouldn't mind (ts 7).
82 Before Ms Payne was called the following occurred:
MORRIS, MS: Excuse me, your Honour.
HIS HONOUR: Yes?
MORRIS, MS: I think it was important that you see exactly where this lady's unit is and where I was standing, your Honour.
HIS HONOUR: Fine. I have no great problem with - - -
MORRIS, MS: I was not on the property.
(Page 19)
- HIS HONOUR: - - - I don't - yes, you can use the photographs when you give your side of the story, if you like. That's if you're required to.
MORRIS, MS: Yeah, okay (ts 13)
83 The prosecutor then intervened:
PROSECUTOR: If you were minded, just as an aide memoir, I do have some which are very similar to the photographs there. It might just help paint the picture a little bit easier, your Honour.
HIS HONOUR: Yes.
MORRIS, MS: Yes, I've got this.
HIS HONOUR: Are you okay with that one?
MORRIS, MS: Yes, yes, sure.
HIS HONOUR: Yes. We are not talking about a traffic accident or anything.
PROSECUTOR: No, your Honour.
HIS HONOUR: We are just talking about the allegation a person said something and, yes, that's the breach.
PROSECUTOR: It's just to establish this - yes, okay. Thank you. If required. I might refer to it if required (ts 13).
84 In cross-examination of the appellant the prosecutor asked:
You didn't speak with Mr Murphy then?---I spoke to him from the driveway.
Okay?---You've got a photo there. Would you like me to point it out?
No?---The photo? (ts 38)
85 The cross-examiner was entitled to conduct the cross-examination on the issues that he wished.
86 At the hearing of the appeal, the appellant showed me the photograph she wished to tender to the magistrate. It is a view of the units from the street. She says it shows her son's unit and that Ms Emonson's unit cannot be seen.
87 Having regard to the issues in the case and the whole of the evidence the absence of the photograph at trial did not cause a miscarriage of justice.
(Page 20)
88 The appellant was also concerned about a Google Earth photograph handed to the magistrate by the prosecutor as an aide memoire. It is an aerial view. Its use as an aide memoire was similar to the use of a sketch. It did not affect the principal issues in the trial or cause a miscarriage of justice.
89 There was in fact no issue that the appellant was present at the units. Nor was her general location in issue. What was in issue was whether, and if so, what was said by way of communication. The photographs could not have answered that question.
3. The prosecution failed to call relevant witnesses namely, Sergeant Lyons, Erlinda Hughes, Bella Malasits
Sergeant Lyons
90 The appellant's complaint about Sergeant Lyons is recorded in the directions hearing held before Hall J on 22 April 2013:
Well, your Honour, I believe that, you know, it was - Sergeant Lyons had a lot to say to me and it was up to him - I heard the conversation, him and Mulroy. Now, he states in his statement, your Honour, Sergeant Lyons who was the senior person that he spoke to Constable Tucker. He was speaking to Constable Mulroy and it was him that made the decision to refuse me bail and said that he was sending me down to the Watch House. It was him that made the decision, your Honour (ts 7).
91 Sergeant Lyons interviewed the appellant at the police station after she had been arrested. It was a matter for the prosecution whether they called Sergeant Lyons. His absence did not lead to a miscarriage of justice. If the prosecution called Sergeant Lyons it could only be because the appellant made admissions or mixed admissions and denials. A conversation consisting entirely of denial would not of itself be admissible.
92 In her submissions the appellant has annexed the witness statement of Sergeant Lyons. He did not attend the scene but was on duty at the Perth Police Station when the appellant was brought in. He recounted a short self-serving statement by the appellant to the effect that she was yelling at someone else and she did not breach the restraining order. This statement is not admissible as the truth of its contents and there was no miscarriage of justice because Sergeant Lyons did not give evidence.
(Page 21)
93 The appellant was unable to establish that the absence of the three witnesses individually or in combination gave rise to a miscarriage of justice.
Officer Malasits
94 Officer Malasits served the VRO on the appellant. She could provide no relevant evidence as to the events of 28 July 2012. Based on her witness statement the evidence of Officer Malasits would not have assisted the appellant.
Erlinda Hughes
95 Before the hearing the respondent swore an affidavit dated 7 January 2013 explaining that Ms Hughes was overseas during the course of the trial and not available for video link.
96 At the appeal hearing counsel for the respondent offered to tender a typed copy of Erlinda Hughes' statement. The appellant asked for the handwritten statement to be tendered as she said, it contradicted the typed statement. Both were tendered. There are a few minor grammatical differences but the substance of each statement is identical.
97 The statement has one discrepancy with Ms Emonson. Ms Emonson said she did not say anything at all. Ms Hughes' statement reads, 'I heard Zoe shouting from next door, "You are not allowed to come down here"'. The balance of the statement is strongly adverse to the appellant.
98 Having reviewed all the evidence I do not consider Ms Hughes' absence from the trial caused a miscarriage of justice or would have led to a different result.
4. The magistrate interrupted the cross-examination of Mr Murphy
99 Mr Murphy was cross-examined briefly. At the end of the cross-examination:
And Mr Murphy, I put it to you, I did not say a word to anyone else.
HIS HONOUR: Yes, we've done that.
MORRIS, MS: Okay.
HIS HONOUR: Okay. Thank you very much.
MORRIS, MS: Thanks, your Honour (ts 22).
(Page 22)
100 This interruption, arguably to prevent repetition, in any event did not cause a miscarriage of justice.
5. The magistrate was biased against me because of my Aboriginal heritage
101 There is simply no material on the transcript which gives rise to any indication of bias on the part of the magistrate because of the appellant's Aboriginal heritage.
102 The submissions attach copies of what appear to be extracts from Constable Mulroy's official notebook.
103 There are identifying details about the appellant written on page 93 including the following:
Caucasian in app. Identifies as aboriginal.
104 This notebook was not tendered in evidence and therefore could not have influenced the magistrate.
105 At the appeal the appellant conceded she does not look as if she has Aboriginal features.
106 Even if the appellant's Aboriginality was disclosed at trial, the transcript does not support the ground of appeal that the magistrate showed bias because of the appellant's Aboriginality.
Conclusion
107 The appellant has attached to her submissions a report from a psychiatrist dated 16 March 2012, she has also attached other letters and medical information. Their contents are not relevant to this appeal and I have not considered them.
108 None of the grounds singularly or in combination give rise to a miscarriage of justice.
109 I am not sure whether at the conclusion of the hearing on 22 April 2013, Hall J granted leave to appeal on the grounds or simply formulated them. I will assume that he granted leave.
110 As the appellant has failed to establish that there has been a miscarriage of justice, in any of the ways particularised, the appeal is dismissed.
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