Parfenova v Diss
[2019] WASC 363
•9 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PARFENOVA -v- DISS [2019] WASC 363
CORAM: HALL J
HEARD: 9 OCTOBER 2019
DELIVERED : 9 OCTOBER 2019
FILE NO/S: SJA 1073 of 2019
BETWEEN: IRYNA NIKOLAEVNA PARFENOVA
Appellant
AND
HAYDEN DISS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : PE 52177 of 2018
Catchwords:
Criminal law - Appeal against conviction - Public nuisance offence - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms A Ishak |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
HALL J:
(This judgment was delivered extemporaneously on 9 October 2019 and has been edited from the transcript.)
The appellant, Ms Parfenova, was convicted after a trial in the Magistrates Court of an offence of acting in a way as to cause a nuisance to persons on a conveyance contrary to reg 13 of the Public Transport Authority Regulations 2003 (WA). She was fined $200 and ordered to pay costs. She seeks leave to appeal against her conviction.
The prosecution case
The prosecution case was that on 3 August 2018, Ms Parfenova had boarded a train at the Wellard train station. It was alleged that she walked along the carriages until she found a woman, Ms Mieko Cowap, with whom she had previously had an interaction. She then told Ms Cowap to, 'Get off my train.' This was said repeatedly and loudly, it was alleged. She then took a small bottle from her bag and began shaking it in the direction of Ms Cowap. As she was doing this she was speaking a foreign language. Ms Cowap was frightened and moved to another seat. She called her husband who contacted transit security. The train stopped at Perth train station and Ms Parfenova was met by transit officers. She gave them her own account of what had happened.
The evidence
At the trial Ms Cowap gave evidence that there had been an altercation with Ms Parfenova on the previous day, 2 August 2018. She said that she had been at the Wellard train station that day and that Ms Parfenova had pushed past her. There had been an angry exchange of words as a result. Ms Cowap said that this had included a racial insult, directed at her by Ms Parfenova.[1]
[1] ts 8.
Ms Cowap said that on 3 August she was again at the Wellard train station and saw Ms Parfenova. She said that Ms Parfenova took her photograph as she, Ms Cowap, was tagging-on, by which I assume she means validating her SmartRider card. Ms Cowap's husband was with her at the station and he approached Ms Parfenova and told her to stay away from his wife.[2]
[2] ts 9.
A short time later both women boarded a train to Perth, getting into different carriages. Ms Cowap said that soon after she sat down she saw Ms Parfenova coming towards her and sit down opposite her. She said that Ms Parfenova said something in a foreign language and then repeatedly said, 'Get off the train' or 'Get off my train.' Ms Cowap said that this was said in a very loud voice. She said that Ms Parfenova then took a small bottle from her bag and started shaking it in her direction whilst again speaking in a foreign language. Ms Cowap said that she was scared and moved to another seat and called her husband. She saw transit officers at Perth station and explained what had happened.[3]
[3] ts 10 ‑ 11.
In cross-examination Ms Parfenova put to Ms Cowap that she, Ms Cowap, had blocked her passage on the platform on the previous day and on other days. Ms Cowap denied this. It was also put that Ms Cowap had made insulting remarks, which she also denied. She did admit having taken a photograph of Ms Parfenova on 2 August, after Ms Parfenova had made a racial insult. This was, she said, so that she could report it to the transit security office. She said that Ms Parfenova had pushed her and taken photos of her over the previous three months. It was also suggested that Ms Cowap's husband had aggressively threatened Ms Parfenova, but this too was denied.[4]
[4] ts 12 ‑ 26.
Ms Emma Weber also gave evidence. She was a passenger on the train. She does not know either Ms Parfenova or Ms Cowap. She referred to them as the Russian and Japanese ladies respectively, but it was clear who she meant. She was already on the train when they both got on at Wellard, getting into different carriages. Ms Weber was in the carriage that Ms Cowap entered. She noticed them because she had observed an altercation between them the day before.[5]
[5] ts 34.
On this day, 3 August 2018, Ms Weber saw Ms Parfenova walk into her carriage and sit opposite Ms Cowap. She said that the women yelled at each other. She heard Ms Cowap say, 'Why are you harassing me? Please leave me alone.' She said that Ms Parfenova was shaking something in Ms Cowap's face, but she was not entirely sure what it was. She said that Ms Parfenova was yelling things like, 'You're disgusting. Get off my train. You don't belong here.' Also, other things in a language Ms Weber could not understand. She saw that Ms Cowap was getting quite upset and got up and moved to another seat. Ms Parfenova then laughed and remained where she was until the transit guards got on the train.[6]
[6] ts 35 ‑ 38.
In cross-examination it was put to Ms Weber that Ms Parfenova did not move from a different carriage and that Ms Parfenova did not speak to Ms Cowap. Ms Weber maintained her evidence in these respects.[7]
[7] ts 38 ‑ 46.
Piers McCarney, a transit officer, gave evidence that he boarded the train at Elizabeth Quay, located Ms Parfenova and spoke to her. They both got off at Perth station and he continued to speak to her and took an account of what she said had happened. He then told her that she would be charged and would receive a summons.[8]
[8] ts 47 ‑ 48.
Ms Parfenova gave evidence using an interpreter. She said that for the previous '236 days', prior to 3 August 2018, Ms Cowap had 'forced in a demonstrative way all the passengers to go through the narrow spot on the platform.'[9] She felt that this was unsafe. She said Ms Cowap had large bags and took up too much space. She said that on 2 August there was a verbal altercation and that Ms Cowap had insulted her and then taken photos of her.[10]
[9] ts 53.
[10] ts 54.
Ms Parfenova said that on the following day she had decided to take a photograph of Ms Cowap and that she was then confronted by Ms Cowap's husband, who she said threatened her with violence. She said he walked with her to the train and that she said that they could deal with the issue between them in the courts. Ms Parfenova said that she was not really chasing Ms Cowap, but because her husband had threatened her she decided to take a photograph of Ms Cowap and send it to her friends. She said Ms Cowap did not like her photograph being taken and got up and moved.[11]
[11] ts 55 ‑ 56.
In cross-examination Ms Parfenova denied yelling at Ms Cowap or telling her to get off the train. She denied having the ability to say in English some of the things that were attributed to her. She agreed that she had a bottle in her hand and that she had waved it around, but said that this was to distract Ms Cowap or to reduce the tension. She denied any intention to intimidate.[12]
[12] ts 59 ‑ 60.
The only other evidence at the trial was CCTV footage from the platforms and the train. This footage generally confirms the movements of the various people concerned, but there is no audio. As to what was said the evidence came from Ms Cowap, Ms Weber and Ms Parfenova.
In closing submissions Ms Parfenova denied yelling, insulting or threatening Ms Cowap with the bottle. She maintained that she had been the victim of mistreatment by Ms Cowap and her husband for much of the previous year.[13]
[13] ts 65 ‑ 66.
The magistrate's decision
The learned magistrate gave oral reasons for his decision. He noted that whilst this was not the most serious of offences, laws of this nature are put in place to ensure that society runs smoothly. He said, in any event, as a criminal charge the onus was on the prosecution to prove it beyond reasonable doubt.[14]
[14] ts 66.
His Honour reviewed the evidence and noted the existence of an independent witness, Ms Weber, who he found to be an honest witness, in contrast with Ms Parfenova. He found that Ms Parfenova's evidence, in regard to whether she spoke to Ms Cowap on the train, and as to what she had done with the bottle, was inconsistent and lacked credibility. He also said that he did not accept Ms Parfenova's account of how she came to be sitting where she was on the train. He noted that she could have sat somewhere else and that she sat where she did and shook the bottle in order, he found, to frighten Ms Cowap.[15]
[15] ts 67 ‑ 68.
His Honour said that while there may be cultural differences between people, it was important for travellers on public transport to be tolerant. However annoying Ms Parfenova may have found Ms Cowap, she was not entitled, his Honour found, to make a nuisance of herself. Ms Cowap was, like other travellers, entitled to a quiet, uninterrupted journey. His Honour said that whilst this was not the worst case of an offence of its type, he was satisfied that it was proved beyond reasonable doubt.[16]
[16] ts 69 ‑ 70.
The grounds of appeal
The grounds of appeal are set out in the appeal notice filed by the appellant. They are, and I quote:[17]
1.Failed to give proper reason.
2.Without proper evidence.
3.Wrongly stopped evidence being given.
4.Cut and shut evidence.
5.Fresh evidence.
[17] Notice of Appeal filed 31 May 2019.
It is not entirely clear what each of these grounds mean. I assume that they refer to an inadequacy, in the appellant's view, of the evidence that was given at the trial to prove the charge against her, and to complaints about the way in which the trial proceeded.
In regard to the reference to fresh evidence, there was an affidavit filed by the appellant on 10 June 2019. It refers to some material which is annexed, which appears to be notes of Ms Parfenova prepared after the event. I have read those notes, but it is plain that they do not constitute fresh evidence. They are simply argument from Ms Parfenova in regard to her case.
One of the things referred to in the affidavit is the notes taken by the transit officer when he spoke to her. There appears to be a misconception on the part of Ms Parfenova that there was a miscarriage of justice because those notes were not produced. In fact, the transit officer concerned (Mr McCarney) gave evidence of what Ms Parfenova had told him, albeit that that was arguably not admissible evidence, it being a self-serving out-of-court statement by the appellant. In any event, she can have no complaint in that regard, because that evidence was admitted and it only favoured her.
Ground 1 - failure to give adequate reasons
In respect of the alleged failure of the magistrate to give adequate reasons for his decision, as I have noted the magistrate gave oral reasons for his decision immediately following the trial. That is not unusual, particularly in a matter of this nature and for a trial that was a relatively short one. The issues at trial were simple.
Section 31 of the Magistrates Court Act 2004 (WA) states that the reasons for judgment need only identify the facts that the court has accepted, and the law that the court has applied in coming to its decision and give the reasons for doing so. The reasons need not canvass all of the evidence given in the case, or all of the factual and legal issues that arise.
Having read the transcript of the reasons given by the magistrate, it is my view that they are entirely adequate. They set out the evidence that was given at trial, and the reasons for accepting the evidence of the prosecution witnesses and as to why the appellant's evidence was not credible.
Ground 2 - did the magistrate fail to have regard to the evidence?
As to the next ground of appeal, which is expressed as being 'without proper evidence'. It appears this is intended to be a reference to the magistrate not having proper regard to the evidence. It must also fail. It is plain from the magistrate's reasons that he took into account all of the evidence that was given, including the history that was adduced by the appellant of her grievances against the complainant, Ms Cowap.
Ground 3 - did the magistrate prevent the appellant from adducing relevant evidence?
In regard to the suggestion that there was an interference by the magistrate in the adducing of evidence, it is common for magistrates to have to deal with self-represented litigants. They pose particular problems, in that they are often unfamiliar with the way in which court proceedings are conducted. Those problems are compounded where the litigant does not understand English and requires an interpreter. It is incumbent on a judicial officer in those circumstances to carefully advise the litigant of the way in which the proceedings will be conducted. Sometimes it is also necessary to clarify questions that have been asked to ensure that the witness understands what is being put to them and can fairly answer the contention.
I have read the whole of the trial transcript and it seems to me that the magistrate in this case behaved in an exemplary fashion. His Honour carefully conducted the proceedings to ensure that they were entirely fair to Ms Parfenova. The only times he interfered were to ensure that a question was clarified or put in proper form. He ensured that the appellant had every opportunity to put her case and to give evidence to explain her version of what had occurred. There is no merit whatsoever in this ground of appeal.
Other issues
During the course of oral argument on this appeal, Ms Parfenova raised a number of issues that do not clearly fit within any of her grounds of appeal, but I will address them.
She suggested that the CCTV video footage was inconsistent with the evidence of the witnesses. In particular, she said that there was a time at which she is alleged to have responded to one of the parties, which she has measured as being 12 seconds and said that it was impossible for her to have said what was alleged in that period of time, having timed herself saying the relevant words at home. It is not entirely clear to me which part of the evidence that she was referring to. It would appear that she was referring to the exchange between herself and Ms Cowap's husband on the platform. In any event, the evidence of the witnesses who were present at the relevant time, in particular Ms Cowap and Ms Weber, is the significant evidence in this regard, and it is difficult to see how Ms Parfenova's contentions have any impact on that evidence.
Ms Parfenova also alleged that it would be impossible for her, from a seated position, to have spoken loudly when she was on the train. She says that it is a physical impossibility to speak loudly from such a position. I do not accept that contention. There is evidence from both Ms Cowap and the independent witness, Ms Weber, that Ms Parfenova did indeed speak loudly. How loudly, I do not know, but it was described by both of them as being loud, and they were both consistent as to what it was that was said.
Ms Parfenova also says that the facial expressions as seen in the CCTV footage of the people concerned, and other passengers, are inconsistent with there being any abuse. I do not know what ability Ms Parfenova brings to bear in being able to read people's facial expressions. It is not something that I think I can give any particular weight to. What she says has to face the direct and clear evidence from the witnesses I have referred to.
Ms Parfenova also alleged that the video evidence was edited, or at least that some relevant parts of it were not included. In particular, she says that there should have been evidence which showed her being physically assaulted and abused by Ms Cowap's husband. No such evidence has been produced on this appeal. It is simply Ms Parfenova's assertion that such things occurred, or that such video exists. It is impossible for me to speculate in that regard. There is certainly no evidence that the CCTV footage was edited. In any event, even if there was evidence that Ms Parfenova was the subject of some abuse on the platform immediately prior to these events, that would not excuse or provide a defence for her conduct on the train. It might be relevant in imposing sentence, but as I said the sentence here was a fine of only $200[18].
[18] and there is no appeal against sentence.
Ms Parfenova has also raised in submissions that the infringement, as she has described it, related to conduct on the platform in Perth and that the video evidence shows people milling on the platform but that no dispute occurred there. She says that the only thing that occurred in Perth was that the transit officer asked to speak to her, and she quietly complied. I think Ms Parfenova misunderstands the nature of the infringement. It was quite clear that it related to Perth in the broader sense when it nominated a place for the offence. It was also clear, from the allegation put and the evidence called at the trial, that the conduct in question was the conduct that occurred on the train, not conduct on the platform.
Another matter raised by Ms Parfenova in her oral submissions was that she claims that the witness who was called by the prosecution, and I assume this is a reference to Ms Weber, was a false witness or, as she said at one stage, a 'paid witness'. There is no evidence to substantiate this claim whatsoever. The only thing that Ms Parfenova refers to is that she observed the prosecutor 'being friendly' with witnesses outside court. Nothing can be drawn from that observation, even if it is true.
The final matter that Ms Parfenova raised in her submissions was that she said that it was unfair that the prosecution chose to charge her, but did not use video evidence of conduct on other occasions which would, she claimed, have shown obstruction of the platform and abuse of her, including what she described as attacks or assaults on her, in order to charge other people.
It is not the role of this court to answer questions as to whether other people could have been charged for other conduct and, if so, why they were not. That is not the issue that is raised on this appeal. Whether there is any evidence to support Ms Parfenova's allegations, I am unable to say. Even if there was, it would not provide a defence or answer to this charge, which of course relates to her conduct on the train on 3 August 2018.
Conclusion
For those reasons, I have come to the conclusion that there is no merit in any of the grounds of appeal.
The Criminal Appeals Act 2004 (WA) provides that unless the court is satisfied that there is a reasonable prospect of a ground succeeding, leave to appeal must not be granted. Unless the court gives leave to appeal on at least one ground, the appeal is taken to be dismissed. I am not satisfied that any of the grounds have a reasonable prospect of succeeding, and therefore I refuse leave in respect of the grounds and the appeal is dismissed.
The orders of the court will be:
(1)Leave to appeal on all grounds is refused.
(2)The appeal is dismissed.
(3)The appellant will pay the respondent's costs fixed in the sum of $500.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall11 OCTOBER 2019
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