O'Connor v Ryan
[2001] NTSC 112
•11 December 2001
O'Connor v Ryan [2001] NTSC 112
PARTIES:GRAHAM RONALD O'CONNOR
and
CRAIG VICTOR RYAN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY APPELLATE JURISDICTION
FILE NO:JA65/2001 (20016671)
DELIVERED: 11 December 2001
HEARING DATES: 1 November 2001
JUDGMENT OF: MILDREN J
REPRESENTATION:
Counsel:
Appellant:In Person
Respondent: G McMaster
Solicitors:
Appellant:Not Represented
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number:
Number of pages: 14
IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
JA65/2001 (20016671)O'Connor v Ryan [2001] NTSC 112
BETWEEN:
GRAHAM RONALD O'CONNOR
Appellant
AND:
CRAIG VICTOR RYAN
Respondent
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 11 December 2001)
On 19 June 2001 the appellant was convicted in the Court of Summary Jurisdiction of aggravated assault, contrary to s 188(1) and (2)(b) of the Criminal Code, after a contested hearing. The learned Magistrate sentenced the appellant to imprisonment for one month which he suspended immediately upon the rising of the Court subject to two conditions:
1. that he be of good behaviour for two years; and
2. that he pay a fine of $500 within six months.
The appellant was self-represented in the Court of Summary Jurisdiction and appeared in person to prosecute this appeal.
The grounds of appeal as set out in the notice of appeal, are:
1. The Magistrate erred in law in that insufficient consideration was given to the elements of self-defence as they applied to the evidence before the Court;
2. The Magistrate erred in law in that the defendant as a self-represented party was not afforded the opportunity to put matters to prosecution witnesses;
3. That the sentence of imprisonment imposed on the defendant was manifestly excessive.
During the course of the hearing of the appeal it became evident that the appellant wished to raise a number of matters which were not set out in the notice of appeal. These were:
1. That the learned Magistrate wrongly refused to admit into evidence certain photographs and newspaper clippings which the appellant had sought to tender.
2. That the learned Magistrate failed to properly advise the appellant, as a self-represented litigant, of his rights.
3. That the finding of guilt was unsafe and unsatisfactory.
The facts as found by the learned Magistrate were that the alleged victim, Sharlene Swan, had been at a family gathering at 6 Walmulla Street, Alice Springs. Also present at the gathering was her cousin Deborah Swan and a person called Eunice. Sharlene had consumed alcohol but Deborah had not. At about 1.30 a.m. the following morning, Sharlene, Deborah and Eunice walked to a telephone box and called for a taxi. Shortly thereafter, a taxi bus driven by the appellant arrived and they all got in. The taxi was driven to Spicer Street where Eunice lived. She got out and the taxi drove on. The taxi bus had bench seats covered in plastic which were slippery. As the bus went around a corner, Sharlene was flung to the left. She remonstrated with the appellant: "What's the fucking hurry?" Shortly after this, the appellant slammed on the brakes, flinging her forward. Both Sharlene and Deborah alighted the vehicle. The appellant also got out and walked around to the front of the vehicle. The appellant removed his glasses and said: "Where's my bloody money?" The destination of the journey had not yet been reached. Sharlene, who had the money in her hand, flung it at the appellant's feet. The appellant said: "Pick it up". Sharlene replied: "No". The appellant began pushing her in the chest until she was up against a fence, then punched her twice to the left side of the face and twice more to the back of the head when she turned her head away. Whilst this was happening, Deborah called out to the appellant to stop hitting Sharlene. The appellant said: "Do you want a punch too?" Deborah offered money to the appellant which he took from her hand. She called out for help and the appellant backed away, got into the taxi bus and drove off. Sharlene and Deborah telephoned the police immediately thereafter. In finding these facts, the learned Magistrate said that for reasons which he expressed he accepted the evidence of Sharlene and Deborah and had no hesitation in rejecting the evidence of the appellant whenever it conflicted with their evidence.
The appellant had been interviewed by the police and the tape recording and a transcript thereof was tendered by the police prosecutor. The appellant also gave evidence before the learned Magistrate. His account was that Sharlene was intoxicated. During the journey she said, more than once, things like: "Slow down you fucking white cunt". Towards the end of the journey she said: "I'm going to bash you". He said: "Did I hear you right?" She said: "If you did, what are you going to do about it, you fucking white cunt?" He then pulled up the vehicle and asked them to hop out. He went to the side door and Sharlene got out, followed by Deborah. As he turned to close the door, Deborah bent down to pick something up which she handed to Sharlene who raised her hand in the air as if to throw something at him. Sharlene said: "You fucking white cunt, I'm going to throw this at you." As Sharlene's hand came forward, he ducked and then he heard something hit the bus behind him and realised it was money. He lashed out and hit Sharlene and then said: "Right, that's it. Go away." Sharlene said: "No" and raised her hand again as if to throw something at him, so he hit her again although not hard. The defences thus raised were provocation and self-defence.
It is convenient to begin with the ground that the verdict was unsafe and unsatisfactory. I am required to make my own independent assessment of the evidence, both as to its sufficiency and quality, notwithstanding that there was evidence sufficient to support the verdict as a matter of law: see Morris v The Queen (1987) 163 CLR 454 at 473. The question I must ask myself is whether I think, upon the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question I am required to bear in mind the consideration that it was the learned Magistrate who was entrusted with the primary responsibility of determining guilt or innocence and the fact that he had the benefit of seeing and hearing the witnesses: see M v The Queen [1994] 181 CLR 487 at 493. If on the other hand, the evidence, upon the record itself
...contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the [Magistrate] there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and set aside a verdict based on that evidence. (M v The Queen, supra, at 494)
In this case, the learned Magistrate accepted the evidence of Sharlene and Deborah and rejected the appellant's account. His Worship did not say in his reasons that he relied to any extent on the manner in which the witnesses gave their evidence in the witness box (save as to one matter to which I will come), but he relied to some extent on the expressed motives given by the appellant for striking Sharlene, which he thought demonstrated revenge rather than self-defence. The second reason given was that in respect of the two episodes of Sharlene throwing, or threatening to throw, coins at him his Worship said that the accused's evidence sounded false and that it was contrary to his own experience that persons minded to throw things at others, usually issue warnings. I take it from this that his Worship thought it particularly unlikely that a warning would have been given on two occasions. The third matter which impressed his Worship was that the women immediately complained to the police whilst the appellant, who claimed to be deeply offended and wounded by the alleged racial abuse, did nothing about it. I think these reasons are sufficient for rejecting the appellant's account. I note in addition that although the appellant cross-examined Deborah Swan with some skill and put much of his case to her, which she denied, he did not suggest to her in cross-examination that her evidence about the threat he made to Deborah was wrong.
The appellant's argument before me focussed on alleged discrepancies in the accounts given by the Crown's witnesses. A number of the appellant's submissions were not supported by the transcript of the evidence. The appellant complained, on a number of occasions, that the transcript was inaccurate; he asserted that he raised matters with witnesses or in his own evidence which he was unable to find in the transcript. At the end of the hearing of the appeal I advised the appellant that I would order a certified copy of the transcript and examine it to see if his complaint was justified. I have now done that and the record has been certified in accordance with s 11 of the Records of Depositions Act. It accordingly has the evidentiary value given it by s 16 of the Act. The record does not reproduce the tape-recording of the appellant's interview with the police, but that exhibit is part of the materials before me and it may be that some of the matters the appellant expected to find in the transcript are to be found only in that exhibit.
I arranged for a certified copy of the transcript to be sent to the appellant and gave him the opportunity to make any further submissions he wished to make. None were forthcoming other than that the appellant still maintained that the transcipt is inaccurate. I am unable to accept this. A number of the appellant's complaints about alleged discrepancies do not relate to discrepancies in the accounts given by the Crown's witnesses, but refer to differences in the evidence given by the Crown witnesses on the one hand and the account he gave on the other. I have carefully considered the evidence and the appellant's submissions. I do not consider that the evidence of Sharlene or Deborah Swan displayed discrepancies or inadequacies of such a nature as to raise in my mind a significant possibility that the appellant had been wrongly convicted.
Even on the appellant's version, I am satisfied that there was no case of self-defence. Assuming that Sharlene had thrown coins at him which hit the bus and not him, even on his version he then assaulted her. At that time, there was no threat; the second alleged threat did not warrant the use of any force and was clearly unnecessary and disproportionate to the occasion. There is no evidence that the appellant believed that Sharlene at the time of the second threat was in a position to do him any harm; in any event, she was defending herself against him. As to provocation, the appellant did not assert that he lost the power of self-control, although that is not fatal. However, on his own account, he clearly did not as his account was that he didn't hit Sharlene very hard, only enough to act as a warning and that if he had wanted to go further "she would have been knocked out on to the footpath, no problem at all". Furthermore if, as the learned Magistrate was entitled to do, the prosecution's witnesses were believed and the accused was disbelieved, ground 1 of the appeal has no substance.
Ground 2 of the appeal I think was intended to raise the appellant's complaint concerning the photographs and newspaper cuttings which the appellant submitted were wrongly excluded in evidence. I have seen the photographs and newspaper cuttings. They do not relate to and are irrelevant to the issues which the learned Magistrate had to decide and were properly excluded. There was no other occasion where the learned Magistrate wrongly rejected any matters which the appellant wished to put to the prosecution witnesses. The appellant asserted that he wished to show the Magistrate the taxi-bus because there were marks still on it which he claimed were made by the coins and that the Magistrate refused to permit him to do this as it was not relevant. The transcript does not bear out this contention. The appellant did raise this with the Magistrate during cross-examination, but the Magistrate did not refuse to look at the bus and the matter was not raised again. It was not up to the Magistrate to tell the appellant what evidence he wished to call: see Dietrich v The Queen (1992) 177 CLR 292 at 334-5 per Deane J. This ground must be rejected.
The next matter is the complaint that the learned Magistrate failed to properly advise the appellant of his rights, in particular, he complains that, although he was told he had the right to trial by jury, he did not know what this meant. Later he said that he did not know that the charge he faced was a gaolable offence and that if he had known that, he would have elected for trial by jury. The learned Magistrate, before the trial began, explained to the appellant that the offence was an indictable offence, that it was capable of being dealt with summarily, that is, by him that day if the appellant consented to that course, but that otherwise it would have to go before a judge and jury. The appellant was specifically asked if he wanted the Magistrate to hear it or if he wanted trial by jury and he asked the Magistrate to hear it himself. The appellant is plainly a person who has been brought up in an Australian, or at least British, cultural background. He is a mature adult who has lived in Alice Springs for thirty years with a good command of English. He has spent time in the armed forces. He was able to cross-examine the witnesses with a considerable degree of skill. I have no doubt that the appellant well understood the difference between trial by jury and a summary trial by a magistrate. I note that the appellant did not ask the Magistrate to explain the difference. As to the suggestion that the Magistrate should have told him that if he were to be convicted he might be imprisoned, I find it incredible that the appellant did not appreciate that this was a possibility. In any event, the learned Magistrate was under no such duty. The Magistrate's duty did not extend to offering him advice; only to informing him as to his rights in order that he may determine how to conduct the case and in order to ensure a fair trial: see MacPherson v The Queen (1980-81) 147 CLR 512. The duty does not extend to advising an unrepresented litigant of the potential penalty he may face if convicted. Accused persons who assert their innocence do not expect to be convicted. Advice about the potential penalties is likely to be misunderstood. At this stage of a hearing, a Magistrate will not know enough about the case to suggest what is a likely penalty and advising persons about the maximum penalty merely invites questions about the sentencing process which is not likely to be productive. I reject this ground of appeal. The appeal against conviction is therefore dismissed.
As to the appeal against sentence, the learned Magistrate initially convicted the appellant and fined him $500. However, the police prosecutor drew to his Worship's attention s 78BA of the Sentencing Act and the fact that the appellant had a prior conviction for aggravated assault on 17 September 1979 when he was fined $200. Secton 78BA provides that where a person has previously been found guilty of a "violent offence" the Court must record a conviction and order the defendant to serve a term of actual imprisonment which may be partly, but not wholly, suspended. A "violent offence" includes an offence against s 188 of the Criminal Code "other than where the circumstance of aggravation in s 188(2)(k) exists". (That circumstance of aggravation is an indecent assault, which is dealt with vide s 78BB of the Sentencing Act). Section 78BA makes it clear that its provisions apply whether or not the previous finding of guilt was made prior to or after the commencement of the section. In this case, the previous finding of guilt was over twenty years ago and attracted only a small fine. Because of those features, ordinary sentencing principles would have required it to be ignored. No doubt, the appellant was as surprised as I was that such a matter could be dragged up after such a long time and as a result, I have checked the Criminal Records (Spent Convictions) Act to see if it assists the appellant. Section 6 of that Act provides that a criminal record becomes spent after ten years if:
1. The penalty imposed was less than a sentence of imprisonment of six months (whether suspended or not); and
2. There have been no subsequent convictions in the ten year period for a gaolable offence other than a traffic offence.
The appellant's only subsequent convictions were for three traffic offences, one in 1979, one in 1980 and the other in 1986. He has not been convicted of any offence since then. However, the Act only gives limited protection against spent convictions and in particular, does not apply to the sentencing process (s 15(f)), although "the court shall not permit the publication of any information so disclosed unless it is of the opinion that the interests of justice in the particular circumstances required it". I think this is such a case because it demonstrates once again the unfairness and irrationality of mandatory sentencing. However that may be, that was (and still is) the state of the law and the learned Magistrate had no option but to impose a sentence of actual imprisonment, albeit to the rising of the Court, with the balance of the one month sentence suspended.
If that is all that had happened, I do not think that I could have interfered, but the learned Magistrate also imposed the $500 fine he originally had in mind as a condition of the suspended sentence. Here I think the learned Magistrate demonstrable erred on two grounds. First, if the learned Magistrate considered that the facts only warranted a $500 fine as he first thought, it is difficult to see how, once a sentence of imprisonment was imposed, the $500 fine was warranted because a sentence of imprisonment, albeit mostly suspended, is still a sentence of imprisonment and is clearly a more severe penalty than a $500 fine. However, more importantly, is the consideration that the fine has been made a condition of the suspended sentence. It is true that s 40(2) of the Sentencing Act gives the court a wide discretion, for it provides that the order suspending a term of imprisonment "may be subject to such conditions as the court thinks fits"; but this does not entitle a court to impose conditions contrary to law. Section 7 of the Sentencing Act empowers the court to make "one or more of the following sentencing orders". Section 7(e) refers to the power to fine and s 7(g) refers to wholly or partly suspended sentences. Clearly s 7 envisages that a fine as well as a partly suspended sentence may be imposed, but the section contemplates when it uses the words "one or more sentencing orders", that a fine is in itself a separate sentencing order. Moreover, when one considers the way fines are to be enforced, it is clear that the statutory machinery provided cannot be made to apply where the fine is attached as a condition of a suspended sentence. If the fine imposed in this case is not paid, the consequence is that there will be breach proceedings brought under s 43 of the Act, with the result that the court will be required to deal with the breach under s 43(5). The worst possible consequence in this case is that the court might require the appellant to serve the whole of the balance of the sentence. Secondly, the appellant will not be able to use the procedure set out in s 21 to allow further time to pay, or to apply for an installment order. Thirdly, the procedures envisaged by s 26 and s 27 which could lead to a community service order (now called "community work order") will not apply. Next, there are the provisions of s 85 of the Justices Act which enable an order for imprisonment to be made in default of payment of the fine. The effect of s 85(3) of the Justices Act read with s 81, is that the maximum period of imprisonment which may be ordered in default of payment is one day for every $50, or in this case ten days, which is considerably less than the thirty days or 29 days which the appellant may have to serve if he breaches the order suspending the sentence. I think it is clear that the elaborate machinery provided for by the legislature displays an intention that the power to fine must be used as a separate sentencing order and not as a condition of an order for suspending a sentence. Even if I am wrong in that conclusion and a fine can be so conditioned, given the different consequences of non-payment, I consider that the discretion to attach a fine as a condition of a suspended sentence ought only be used in special circumstances which justify such a course and there are no such special circumstances here. I am therefore satisfied that the appeal against sentence must succeed to the extent of quashing the order requiring the appellant to pay the fine of $500 as a condition of the order suspending the sentence of imprisonment and there will be an order accordingly. The appeal is otherwise dismissed.
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