Powell v Meers - [2009] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: POWELL -v- MEERS [2009] WASC 103

CORAM: McKECHNIE J

HEARD: 6 APRIL 2009

DELIVERED : 22 APRIL 2009

FILE NO/S: SJA 1002 of 2009

BETWEEN: RODRICK CHRISTIAN POWELL
Appellant
AND
ALEX MEERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J G MUSK
File No  :PE 65510 of 2008, PE 65511 of 2008

Catchwords:

Criminal law - Assault - Whether arguable grounds of appeal - Leave refused

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Samuels v The State of Western Australia (2005) 30 WAR 487; [2005] WASCA 193

McKECHNIE J: This is an application for leave to appeal. Leave to appeal must not be granted on any ground unless I am satisfied the ground has a reasonable prospect of succeeding as explained in Samuels v The State of Western Australia (2005) 30 WAR 487; [2005] WASCA 193 at [55], [56].

The charges

The appellant was charged with unlawful assault and escaping from legal custody. He stood trial on 14 January 2009 and defended himself.
The prosecutor explained to the magistrate that the incident allegedly occurred on 2 November 2008 at the corner of William and Murray Streets, Perth. The appellant conceded he was present.
The first witness for the prosecution was Stephen Paul Pratt, a Detective Senior Constable with the Major Fraud Squad. He was at the Murray Street entrance of the Perth Train Station doing business promotion for a secondary employment . He was in jeans and a shirt with one of his staff, Wendy Chu, the second witness for the prosecution.
He then said:
We were handing out promotional beach balls. We got there about 9.00 and things were fairly quiet initially. 9.30 things picked up and we were, as I say, handing out promotional beach balls to people from the train station as they alighted from the trains and walked through the mall. I spoke with a blonde haired lady and I noticed the accused walking up the mall. At that time he appeared to be unkempt. He approached me after I spoke to the lady, the blonde haired lady. I'd noticed him in my peripheral vision because I'd turned back to the train station to wait for the people alighting from the train. I turned and faced the accused and he said - I said, 'Good morning.' He said, in an aggressive manner, 'What are you doing?' I said, 'We're doing a business promotion'. He said - I said, 'Why's that?' He said, 'Is it for a charity or a fund raiser?' I said, 'No, it's for a catering business'. He said, 'I thought you were giving away something'. I said, 'We are,' and I offered him a beach ball. He - I said, 'Would you like one?' He said, 'No'. I made that - the offer as per everybody else that had come through. I said, 'We're hoping for some good luck today', because it was the Red Bull Air Race and we'd targeted that specific day. I turned to face back to the train station and check on my staff and then I was struck from the side of the head, left‑hand side. I was momentarily stunned by that. My hands were full. The accused said to me, 'You can't tell me to fuck off'. (ts 4, 5)
Pratt then pursued the appellant who had walked away:
I've then followed the accused across Barrack Street along Murray Street. He's - I've called - called upon him saying, 'Police, you're under arrest'. He's been less than a metre - he's turned in what - as it - as a police officer I would regard as a defensive approach.
I need you to explain that for the court please. If you have to stand up? ‑ ‑ ‑?---Okay.
‑ ‑ ‑ and talk yourself through it, by all means?---He's - he's - I've crossed over the street. He's turned back to me and faced me and he's made a stance, he's tensed up.
Mm'hm?---I've pulled my ID out of my wallet and said, 'You're under arrest, police', and then he's continued on. He's yelling, 'I'm not under arrest. You can't tell me to fuck off. I'm not under arrest. I'm not under arrest', and he scurried off up Murray Street.
Okay. So at that time, am I correct that you said one metre?---Yes, yes, because I was still approached. He'd stopped and turned.
Mm'hm, and as you've shown your ID this morning, is that what happened on the day?---Yes.
And the accused clearly stated, 'I'm not under arrest?'---That's correct, several times. (ts 6)
Pratt was unable to locate the appellant for a time. He described the appellant's dress as follows:
He was wearing black track pants, a black t-shirt, his hair was a different colour than it is today, it was black and he had a wispy type beard. When I say wispy it's like somebody that can't grow a proper beard. It's just a few hairs. He was wearing braces with some type of red - red pattern on them. He was wearing black glasses. (ts 7)
During the course of the following week he made endeavours to find the appellant. He eventually did so and the appellant was taken into custody.
In cross‑examination Pratt denied that he raised his arms and told the appellant in an aggressive tone to 'Fuck off'. He said:
No, because I had a beach ball under one arm and my hands were full with the other. If I was going to use that sort of tone I'm quite sure I would have put that gear down and be ready for you assaulting me.
He denied punching the appellant.
Mr Pratt was asked:
I put it to you, Mr Pratt, that you did not show me your badge, nor did you run after me. I (indistinct) that you're telling porkys. (ts 10)
The appellant responded:
The porkys, I assume you're saying lies. No, I'm not. If - and if the other question was the ID, yes, you were shown that. (ts 11).
In cross‑examination it was put to Pratt that he said that he had crossed Barrack Street and he admitted that he had made a mistake. He was asked about appearance:
You say I had black hair?---Yes.
You said I was wearing black glasses?---Yes.
Not the glasses I'm wearing now?---No. (ts 12)
The next witness was Wendy Chu who was with Pratt handing out promotional flyers and beach balls at about 9.30 in the morning. Her evidence was:
Mm'hm?---And I was just talking to them and I saw Steve's glasses just rolling in front of me.
Okay?---So I looked over to him and there was a man standing directly in front of him.
Mm'hm?---And Steve's face was turned to the side and I'm not sure what happened but he just stood there for a second.
Who just stood there for a second?---The man, sorry.
Okay?---Both of them just stood there because I think Steve was a bit stunned.
Okay?---Because he didn't move or anything and - and they the man yelled something at him.
All right. What did the man yell?---Well, I'm not exactly sure but I heard the words, 'Don't' and then, 'Fuck me', or something. (ts 13)
She said she heard Pratt talking just before the incident in a normal kind of tone. His hands were holding the papers. She described it as follows:
All right, and you stated in your evidence you saw Steve's head move to the side?---Yep, and the man's hand was just clenched into a fist on the - on his side.
All right. I need you to say that a little bit louder for me?---Okay. The man's hand was clenched into a fist on the side and Steve's head was turned onto his side.
Okay?---I think it was his left side, or right side, yeah.
Okay, all right, and after this incident did you see Steve's face at all?---Yeah.
And what did you notice about his - - -?---When I walked up to him to return his glasses, - - -
Mm'hm?--- - - - his left cheek was red. (ts 16)
The appellant did not give evidence but wished to call a character witness, which he did. Mr Miffin gave evidence that he was surprised to hear of the recent incident because his first thought was that this sounded so out of character. He said that the appellant's mental and emotional health appeared to be developing significantly for the better; he has become well‑known and well‑liked among the St John's Church members and the support group; he is trusted.

The magistrates decision

The magistrate outlined the evidence noting that Ms Chu did not actually see or hear what happened although her evidence was consistent, to the extent that she can, with the complainant's evidence. She then continued:
So I only have the complainant's evidence, direct evidence, as to what happened at the time of the assault. It's a common assault. It's not alleging there was any bodily harm or anything more serious than one smack to the side of the face and that's not really denied by the accused. Although he hasn't given any evidence his cross‑examination was along the lines that Mr Powell (sic) had said something to him in an aggressive and rude way and he decided to get in first and hit him on the face. So he's raising provocation in effect but he does acknowledge that he was the first one to make any physical contact. In his cross-examination he's suggesting that the officer, who was in plain clothes, of course, was rude to him and that he hit him for that reason and then when he walked away he was caught up with and kept on walking.
So even if what Mr Powell's suggesting that he was told to F off, even if that did happen but it's denied, that would not be sufficient provocation to justify hitting this man across the face. That would be justification for him to walk away and forget about it, not to go up and hit him on the face. So even if it did happen, which I'm not finding is the case, that is not provocation according to the definition of provocation at law. So to that extent the prosecution had negatived that defence and the charge of common assault is proved.
Escaping from legal custody, again shown the police officer's badge, told he's under arrest, walking away saying, 'I'm not under arrest', acknowledging, I suppose, that that had been said and an arrest had been made, it too is proved to the required standard, although I must say it's at the very, very, very bottom of the scale of an escape legal custody.
So I think both of these offences are relatively minor and mitigating factors, although there's no pleas of guilty, associated with Mr Powell's personal difficulties over the years and something that happened on this day must have set him off to the extent that he hit this man on the face. (ts 29, 30).

Grounds of appeal

The appeal notice specified three grounds of appeal:
The Magistrate erred in law, ie did not take into account self‑defence and provocation.
The prosecution did not prove their case without a shadow of doubt.
The said victim, Stephen Paul Pratt, perjured himself on Oath.
The appellant wished to add a fourth ground of appeal at the hearing to the effect that he was denied trial by jury as provided in the Constitution. I refused leave to amend to add this ground on the basis that the ground has no reasonable prospects of success for two reasons. First, the Constitution s 80 extends the right of trial by jury only to trials on indictment. The appellant was not facing trial for an indictable offence. Secondly, s 80 applies only to an offence alleged against the law of the Commonwealth. The appellant was charged under a law of the State.

The Magistrate erred in law, ie did not take into account self‑defence and provocation

There was no evidence of self‑defence. Nor was there evidence of provocation, although by his cross‑examination the appellant raised it for consideration. The only evidence was that of Pratt whom the magistrate accepted as a witness of truth, and on his evidence there was no act of provocation. The magistrate clearly considered the question of provocation in her reasons. She rejected it.

The Prosecution did not prove their case without a shadow of doubt

It was not denied by the appellant that he had struck Pratt. Once provocation had been negatived, as the magistrate found, the only conclusion open was that the appellant had assaulted Pratt.
The magistrate found that the appellant had said: 'I'm not under arrest'. This acknowledged that an arrest had been made and the offence was proved to the required standard, namely proof beyond reasonable doubt.
There is no reasonable prospect of this ground succeeding at appeal.

The said victim, Stephen Paul Pratt, perjured himself on Oath

The appellant, in the course of argument, drew my attention to two things in particular. They were the description of his hair and glasses given by Pratt. The appellant said he had never had black hair in his life and also that he had not had black glasses for over a year. The difficulty facing the appellant is that there is no evidence of that. The appellant also drew my attention to the officer's description of the location of the offences, including Barrack Street. However, this was corrected by the officer and his mistake acknowledged.
I have read the transcript and there is nothing to suggest that the officer perjured himself. There is no material inconsistency in his evidence giving rise to that possibility and there is no evidence to the contrary.
This ground does not enjoy reasonable prospects of success.

Conclusion

As none of the grounds singly, or in combination, have reasonable prospects of success the application for leave to appeal is refused.