Quinlivan v Lumpkin
[2008] WASC 120
•23 JUNE 2008
QUINLIVAN -v- LUMPKIN [2008] WASC 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 120 | |
| Case No: | SJA:1015/2008 | 17 APRIL 2008 | |
| Coram: | McKECHNIE J | 23/06/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | LYNETTE PATRICIA QUINLIVAN ANDREW DAVID LUMPKIN |
Catchwords: | Application for leave to appeal Whether arguable grounds Criminal law s 22 Whether evidence No new principles Criminal law identifying people Reasonable excuse No new principle |
Legislation: | Criminal Code (WA), s 22 Criminal Investigation (Identifying People) Act 2002 (WA), s 16 |
Case References: | Hounslow v Woodward [2007] WASC 27 Pearce v Pascov (1968) WAR 66 R v Walsh (1984) 2 QdR 407 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
ANDREW DAVID LUMPKIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE J R PACKINGTON
File No : PE 31770 of 2006, PE 31772 of 2006
Catchwords:
Application for leave to appeal - Whether arguable grounds - Criminal law s 22 - Whether evidence - No new principles
Criminal law identifying people - Reasonable excuse - No new principle
(Page 2)
Legislation:
Criminal Code (WA), s 22
Criminal Investigation (Identifying People) Act 2002 (WA), s 16
Result:
Application refused
Category: B
Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Ms N Eagling
Solicitors:
Appellant : Beau Hanbury
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hounslow v Woodward [2007] WASC 27
Pearce v Pascov (1968) WAR 66
R v Walsh (1984) 2 QdR 407
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
- McKECHNIE J:
Introduction
1 This case is about hibiscus bushes and poisonous neighbourly relations. Had a modicum of commonsense prevailed, a way other than the instigation of criminal proceedings would have been found. However, the magistrate had no choice. Once the matter came before him he was obliged to hear and determine it.
2 The appellant, a solicitor, was charged with unlawfully damaging three hibiscus bushes and failing to supply evidence of correctness of her personal details, namely her date of birth She was also charged with assault. She pleaded not guilty to all charges.
3 The trial in the Magistrates Court stretched over three years commencing on 8 December 2006 and concluding with a reserved decision on 4 February 2008. There were nine hearing days with a further day for the reserved decision. The evidence took six days. The magistrate acquitted the appellant of assault. The magistrate convicted the appellant of the other charges. The magistrate found the unlawful damage charge proved in respect of two hibiscus bushes. In respect of the unlawful damage to the hibiscus bushes he imposed a 12 month conditional release order. For failing to supply her date of birth, he imposed no penalty. The magistrate made spent conviction orders.
4 The appellant now seeks leave to appeal on grounds which are particularised. During the course of the hearing there were several attempts to have the magistrate disqualify himself. On each occasion he declined. However, grounds relating to his refusal to disqualify himself and an allegation that he prejudged the guilt of the defendant before hearing the whole of the case have now been abandoned.
5 On 17 April 2008, I heard an application for leave to appeal. The application was opposed by the respondent. The trial transcript runs to over 560 pages and was not presented to the court in any coherent order. The transcript was not paginated. There was no index provided. Nor was the argument on the grounds of appeal articulated with any clarity or crisp identification of any point at issue. On the other hand, the respondent provided a comprehensive and useful written outline of submissions. Applications are to be judged on their merits not on their presentation but a judge's task is made more difficult and time consuming if the application is presented in a haphazard manner.
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6 As a result it has been necessary to plough through the transcript with reference to the grounds of appeal to see whether any ground discloses an arguable case.
7 The test to be applied at this stage of the proceedings is that set out in the Criminal Appeals Act 2004 (WA) s 9(1). This was considered in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473:
Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
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. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper. ([55], [56])
8 As the court continued:
The requirement for leave and the statutory test explained above call for a single Judge of this court on such an application to give consideration to the merits of each proposed ground of appeal. That will not be a detailed consideration of all the evidence nor the issues in the case; it will be confined to the ground of appeal as particularised - but it must, of course, be a full consideration of that which is advanced in the appellant's case in support of the application. [60]
9 Unfortunately, due to the way in which the matter was advanced on the hearing of the application, it has been necessary for me to undertake a reasonably comprehensive review of the issues and the evidence at the trial below.
10 The transcript discloses that relations on both sides of the fence were poisonous. It should be borne in mind, however, that despite the length of
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- the case and the number of issues said to have been important, at its heart, this was a very simple case involving a conflict of evidence which had to be resolved by the magistrate by application of the criminal standard of persuasion.
11 Ground 1 of the appeal does not challenge the magistrate's finding of fact except insofar as it is alleged that the magistrate failed to apply or consider certain matters. The magistrate's findings can therefore be accepted by me. Unusually perhaps, I will set them out in full in relation to ground 1 because in addition to accepted findings they explain the background:
The accused lives at number 4 Ferndale Street in Floreat Park. Her neighbours at number 6 Ferndale Street are a Mr and Mrs Norris. They have lived there since 2002, as I understand the evidence. On their property, number 6, there is a bore, or perhaps I should describe it as a bore and well for the sake of technical accuracy. Now, I just said that it is on their property. According to the evidence that I have heard, as explained by a survey commissioned by the accused, the bore itself protrudes across where the boundary should be, by a few millimetres. That is the actual casing or liner of the bore, as I understand it, although the cover protrudes further over the airspace of number 4 and although it is rather hard to understand and may well be in dispute, there is also evidence of a valve which is said to be a little way into number 4 Ferndale Street.
The bore was put down a long time ago, obviously long before Mr and Mrs Norris lived in Ferndale Street, and as I understand the evidence, even before Ms Quinlivan became the registered proprietor of number 4. There have been deeds of covenant between the respective registered proprietors of number 4 and number 6 which have been protected by caveats on the title to number 6. Indeed, there is a caveat on the title at present which refers to a deed of covenant entered into by the accused and the predecessors in title to the Norrises.
That is to say, Mr and Mrs Keys, who sold their place, number 6, to the Norrises. The deed of covenant relates the rights and obligations of the parties in relation to the shared bore. I have heard a lot of evidence about that deed and about the purported rights and obligations of the parties under it and there are items of correspondence which are exhibits in this case, all referring to the deed. (ts 2 - 3)
…
The situation as a matter of fact is complicated by the fact that when the accused wants to use the bore to water her garden, she has to turn on the power to operate the pump at the bottom of the bore. She does that by turning on a switch at her house. A power cord runs from that switch across the boundary to the Norris's house to their meter box and the power
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- to run the pump when it is pumping water onto the accused's garden goes through the Norris's meter box. That was not always the case. There used to be two meter boxes, but in circumstances which are not agreed, the Norrises - well, perhaps I should say Mr Norris, who seems to have had the carriage of the matter, his house was being renovated and he needed a new meter box in any event.
He says he accepted the recommendation of an electrician and he replaced the two meter boxes with one meter box. The accused says that she never agreed to that and certainly it seems to me that the arrangement or discussion about what should happen about the meter boxes was rather vague. I say that purely on the basis of the evidence that I have had in this case. A number of other differences have arisen and so although for the first couple of years whilst, I am told, the relationship between the parties as far as the bore was concerned went along all right, eventually there were a number of differences and the relationship, I think I can safely say, between the accused and the Norrises, has become poisonous. (3 - 4)
…
The facts of this matter, or at least of the charge of damage and the charge of assault, are as I mentioned earlier, quite easy to state, and they really depend on the evidence of Mrs Norris and the accused. Neither Mr Norris nor any of the other prosecution witnesses was present when the matters complained of by Mrs Norris took place. She gave evidence that on Friday, 28 April, having returned from an interstate trip at around about 7 or 7.30 pm, she had arrived home. Her husband was already at work. Mr Norris is a firefighter, or fire officer might be the proper term. He works shifts and he had gone to work on night shift coincidentally at the nearest fire station to Ferndale Street, Floreat Park, where he happened to be relieving at the time. He was normally based at that time at the Perth fire station, but he was relieving at Daglish.
Anyway, he had gone to work. Mrs Norris came home. She was getting ready to go to bed when at around about 9 pm she heard noises at the front of her house. She went out there and she saw the accused digging up plants in the Norris's garden, that part of the garden adjacent to number 4 Ferndale Street. Mrs Norris asked her to stop. There was an exchange of unpleasantries between the two women but the accused did not stop. Mrs Norris went into the house and got a camera. She came back out and started taking photographs. They are in evidence, they are exhibit 9. In the course of that, at some point she accidentally activated the audio feature on her camera and also in evidence as exhibit 10 is a very short recording of the accused calling Mrs Norris "common", which she says twice.
There has been considerable argument about whether those photographs can show how close Mrs Norris was to the accused, and there is mention of a zoom and a power of a flash. I would not enter into that sort of debate without any sort of scientific evidence about the type of camera and its
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- capabilities and so on, and there was none. The photographs show the accused, apparently with her feet on her side of the boundary, bending over the bore cover and plants in the Norris's flowerbed. She is apparently digging them up and one taken from more of a distance shows that she has - well, it shows that some plant material and dirt is on the front lawn on the Norris's side of the boundary.
As Mrs Norris took the photographs, she said the accused ripped out an hibiscus bush and threw it at Mrs Norris. The accused had a shovel in her hand, as is shown in the photos. Mrs Norris said that the accused then got a shovel load of dirt and threw it at Mrs Norris and some of the dirt hit her on the upper part of her body. Mrs Norris says that the accused then held the shovel in a threatening manner and said, "I know where you work." The charge of assault is based in the prosecution's submission on that course of conduct, ie throwing a hibiscus bush at Mrs Norris, throwing a shovel load of dirt, holding the shovel in a threatening manner and saying, "I know where you work."
Mrs Norris went inside and called police. She said that after that she heard objects being thrown against the side of the house and she could still hear the accused yelling abuse, and when she looked out she could see the accused was still digging in the garden. She said the police arrived approximately half an hour later when in a few minutes the accused was at the Norris's front door, demanding to know if these were the Wembley police to whom she had made a complaint earlier in the day. The police asked the accused to return to her own home and asked Mrs Norris to call Mr Norris to come home from the Daglish fire station.
A short time afterwards Mrs Norris heard the fire truck pull up outside. She went outside and saw Mr Norris shining a torch on the accused and speaking to her by the flowerbed. She says that the police told the accused to go to her, the accused's house, and the Norrises and the police went back inside the Norris's house. That really is the primary evidence of the prosecution with regard to the assault and the damage charge. I have described the elements of the assault charge relied upon by the prosecution. The damage is obvious, or the element alleged by the prosecution with regard to the damage is obvious. The accused pulled up a bush from the Norris's flowerbed and threw it onto their lawn.
Now, to some extent - to a very small extent, evidence of other prosecution witnesses supports that. Mr Norris gave evidence about the bushes that he had planted in the flowerbed and the spacing of them and how they were designed to be eventually a hedge, and in the face of much argument about a hole in the ground and whether a plant had been taken out by him and put back or taken out again and so on, he simply said that he was positive that two bushes had been pulled up.
He took photographs of the area that night in the presence of police according to him and the police, by the light of their torches, and they appear to show a variety of plant matter strewn across the Norris's front
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- lawn. The police officers also gave evidence that when they attended they saw plant matter and dirt strewn across the lawn, and that evidence was also supported by a Mr Claffey, ie that there was plant matter and dirt strewn across the front lawn.
Mr Norris's evidence about his attendance at the house from the Daglish fire station in response to his wife's telephone call was that he came in a fire truck driven by a fellow fire fighter, Mr Claffey. They had to come in the fire truck because they were both on duty and on call and they had to be prepared to respond should they be called out, and they were given permission to go to Mr Norris's house on that basis, so I can't see anything sinister about the fact that he attended in a fire engine or fire truck as it was described.
Anyway, both Mr Norris and Mr Claffey gave evidence that as they came into Ferndale Street from the southern end, in their headlights - or at least in the headlights of the fire truck, they could see the accused still scrabbling around in the flowerbed, or over perhaps the flowerbed adjacent to the bore. Mr Claffey says that he pulled up to let Mr Norris get out. He saw Mr Norris get out, obviously, and saw him approach the woman that he had seen, who was clearly the accused. He drove the truck up the road, turned it around and came back again so he was facing south, and he saw plants on the front lawn and a pile of soil.
When he came back from turning the truck around, Mr Norris was standing with the police and presumably the woman that he had seen as he approached had by then left. That certainly was Mr Norris's evidence that as he got out of the truck, he walked across, he exchanged words with the accused. He then left and went back towards her house. Now, considerable attempts were made - considerable unsuccessful attempts were made during cross-examination to characterise Mr Claffey as some sort of close friend or associate of Mr Norris's, but it seems to me that Mr Claffey can be regarded as an independent witness, and he struck me as a perfectly sensible one also.
His evidence was that while he had been aware of Mr Norris's existence as a fellow fire officer for a considerable length of time, he did not socialise with him and he had never been inside Mr Norris's house or assisted him with any work at Mr Norris's house in Ferndale Street, although a long time before he had done some work on a house owned by Mr and Mrs Norris in Inglewood, apparently. Anyway, I accept Mr Claffey as an independent witness.
I should add that there was some attempt to demonstrate that the statement that he had made to police was either prepared by police or by Mr Norris on the basis it was set out in the form of an official statement. Mr Claffey said that he had in a previous life been a health surveyor, but in any event there was no evidence that there had been any collusion with the preparation of his statement and I am still disposed to accept him at face value as an independent witness, and as I said earlier, a sensible one.
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- Mr Norris's evidence, insofar as it is relevant to these matters, I suppose I have really already covered. He says that as he and Mr Claffey pulled into Ferndale Street they could see the accused bent over the garden bed at the side of the bore, digging with a shovel, so this of course is after the police have arrived and after she had been to the front door of the Norris's house to ask if these were the Wembley police. Mr Norris, with Mr Claffey's concurrence, says that he walked up to her and spoke to her. He says that he asked what she was doing. She said something about having a right to use the bore. There was some short further discussion.
Mr Norris says the police and Mrs Norris came out and that's certainly supported by Mrs Norris, and asked Mr Norris to go inside the Norris's house and the accused to go back to hers. That's not actually borne out by the police evidence, but that's the evidence of Mr and Mrs Norris. Really, the only other thing of note that Mr Norris had to say was that after the police officers had been across to the accused's house, they came back and then using his camera with a flash on it and police torches, he took some photographs and those photographs are in evidence. (ts 5 - 8)
…
Anyway, the officers arrived at the Norris's house. They say that they were equipped with torches. Many years of listening to cases involving police officers attending premises at night-time would incline me to be very, very surprised if they were not equipped with torches and if they did not take their torches with them to the Norris's house. The accused says that they didn't have torches. Lumpkin suggested at one stage that he may possibly have left his torch at some stage on the table inside the Norris's house.
Mr Norris's evidence is that they or one of them had a torch which assisted him to take the photographs, which he did, of the plant matter and dirt on the lawn. Anyway, they say they took their torches with them, went to the Norris's house. They saw, in Officer Lumpkin's words, 'Shrubs and whatever scattered across the Norris's front lawn.' Shortly afterwards the accused appeared at the Norris's front door as they were speaking to Mrs Norris. They told her to go home. They heard the truck pull out, they went outside, they saw Mr Norris, in Officer Lumpkin's words, 'Stood in his front garden by the flowerbed.'
They had a discussion with Mr Norris. They observed again dirt and shrubs over the front lawn and holes dug in the flowerbed. They went back inside with Mr Norris and had a conversation, and then went next door to speak to the accused who showed them various things, notably that the power switch wasn't working. What they were expected to make of that, I do not know, and Officer Lumpkin decided that they were not there for a civil dispute. He wanted the accused's personal details on the basis that she might be summonsed for these matters. (ts 9)
…
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- Now, the accused gave evidence. It is not for her of course to have to prove anything. She didn't have to give evidence, she doesn't have to establish anything, and the burden of proof is of course on the prosecution and that burden is beyond a reasonable doubt. Now, with regard to the events described by Mrs Norris, the accused says simply that they didn't happen. That is to say, she didn't throw a bush at Mrs Norris, she didn't throw dirt at her, she didn't hold a shovel in a threatening manner, and she gave what struck me as a somewhat specious explanation of the words, "I know where you live."
The accused says that on 28 April, a Friday, a culmination of a week during which Mr Norris had been working in that front garden, digging trenches, digging around the bore, she says pulling up plants and replacing them. He says he didn't have to disturb the plants. She says at the culmination of that week, which seems to have caused her some complaint in any event because Mr Norris was moving a retaining wall further back on his property to appease her, as he put it. She complains that the components of the concrete retaining wall had been lined up on her side of the boundary therefore he moved it back into position and that some disturbance to her rose bushes had been caused and she was concerned that he had been on her property. Although it is difficult to see how he could have done it without being on her property.
She was also of the view that he had during the week been on her property interfering with the power cord that runs from the switch on her house across to his house. She thought she had seen him with something white in his hand. He said it was a tape measure. Certainly he had been lining up strings and posts and so on, some of which can be seen in the photographs. At the culmination of this week she seems to have been concerned with his activities in the front garden, during which on the Monday she said he squirted her with a hose and called her a fucking idiot, which is denied by Mr Norris.
On the Friday when the accused came home she said she found that the power was not working and she could not water her garden from the bore. A neighbour came in to see her. A neighbour who had been in a vehicle accident and wanted some legal advice and needed a drink came in to see her at about 5.30 and was there until about 8.30, and that after that the accused decided to investigate what had been done around the bore to see if the power cord had been damaged, and that was what she was doing when Mrs Norris came out and found her with her feet inside her boundary. That is to say, on 4 Ferndale Street, digging in the flowerbed.
She agrees that there was an exchange of words. She says that when she said, 'I know where you work,' her actual words were, 'I know where you work and no-one I know will ever use that business,' and that Mrs Norris must have missed that last bit, having turned away. I have already said that sounds specious to me. Certainly there seems to have been a variety of other unpleasant comments backwards and forwards. The snippet of audio I suppose bears out the unpleasant nature of the exchange, but as far
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- as throwing a hibiscus bush, throwing a shovel load of dirt and brandishing the shovel in a threatening manner, the accused says simply it did not happen. She doesn't say that it happened by accident, she doesn't say that she was provoked into doing any of those things, she just says that it did not happen.
Now, my finding of fact on the evidence that I have heard with regard to what the accused did in the flowerbed and what she did with items that were in the flowerbed, is that I find as a matter of fact that she did dig up two bushes. I accept Mr Norris's evidence as being the most reliable about what had been there before. The photographs seem to me, generally speaking, not terribly helpful at least as to specifics of number of plants and so on, and Ms Quinlivan, the accused's own photograph, she said in cross-examination that she was not sure when they were taken. She said she thought she took some photos on that date but she can't be sure when she took them and she didn't get them developed for some weeks.
The evidence of the police officers, of Mr Claffey, and of Mr and Mrs Norris all show that there was plant matter and dirt scattered across the front lawn of the Norris's place and the evidence clearly shows that that was done by the accused. She is of the view that somebody came back later and tried to make it all look worse, but really there is no evidence of that and the evidence of the witnesses that I have mentioned, I think establishes sufficient at the time. That is to say, by the time Mr Norris and Mr Claffey got back, for that to have been the case then.
It was put to me that in the absence of a botanist's scientific evidence, [I] could not be satisfied that the bushes in question were hibiscus bushes, although they were identified as such by Mr Norris, who planted them. It was put to me that there were not two of them, there was only one, and only a little piece of that had managed to find its way on to the lawn. I accept Mr Norris's evidence as to the number of hibiscuses or hibisci missing. He, as I said, was the one who had planted them. The evidence about a plant appearing and disappearing and reappearing all seems far too vague to me and in any event Mr Norris's evidence was that he had gone to work by 5.30 on the evening in question. It seems to me he would have had very little time in which to replant a plant which the accused said was missing earlier.
In any event, the evidence of Mr Norris and Mr Claffey is that the accused was still at the garden bed even after the police had arrived and gone inside to talk to Mrs Norris. Now, I regard the identification of the bushes as hibiscus bushes in any event as a particular. Clearly they were bushes owned by Mr Norris. They were not the property of the accused, they were the property of Mr and Mrs Norris. They were on the Norris's land, they were pulled up and thrown onto the Norris's lawn and can safely, in my view, been said to have been thus damaged.
Accordingly, I would find the charge of damage proved to my satisfaction beyond reasonable doubt and I reject the accused's suggestion that she
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- carefully removed a bush that could have been replaced had she been allowed to proceed to do so or had anybody else sought to do so. Clearly bushes were thrown onto the Norris's lawn and in a state of some bedragglement. (ts 10 - 12)
12 Following those findings, the matter proceeded to submissions on sentence during the course of which the magistrate remembered something that he meant to incorporate within his reasons and added:
I made some fairly inconclusive remarks about the effect of the deed of covenant and so on, and completely forgot to say, which I meant to say, that while in my view the caveat and the deed of covenant could indeed give rise to an honest claim of right which was a matter relied upon by the accused, it is in my view simply the case that in terms of clause 10 of the deed, to go on to the other party's land - and I accept that the accused says at all times she had her feet on her own land, but obviously she was interfering with the Norris's land and going onto it in the sense that certainly a shovel in her hands was disturbing the land and digging up shrubs to do that at 9 pm, without notice.
It was not a reasonable exercise of the right bestowed upon her by the deed to enter upon the Norris's land at all reasonable times for the purpose of effecting repairs or maintenance. She had just simply been in there digging around to see what was going on at 9 o'clock at night without notice, so I should have incorporated that finding in my reasons and I add it now. (ts 17)
13 With these uncontested findings in mind I turn to ground 1:
Ground 1 - In regard to the conviction on the charge of unlawful damage under s 445 of the Criminal Code the Learned Magistrate erred in law by:
14 As I have indicated, particulars relating to bias and prejudgment - grounds (a) and (g) have been abandoned.
Ground 1(b) - Reversing the onus of proof; and Ground 1(d) - Failing to apply the correct standard of proof for criminal charges
15 It is convenient to deal with each of these grounds together.
16 The submission advanced by the appellant is that in the course of the hearing the magistrate said: 'Prima facie I would have thought she shouldn't have been there doing that and if she has damaged some plants doing that then the argument to that effect is made out, prima facie'.
17 When asked the context in which this remark was made counsel for the appellant said: 'I can only say, your Honour, that this came up in the context of a no case to answer submission, but generally throughout the
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- trial there were periods of just general discussion about matters.' In fact, the context was that counsel for the defence was seeking to tender a letter. What the magistrate said was:
HIS HONOUR: Yes, but I don't see how we are concerned with that. We have had precious little evidence it seems that has anything to do with anything so far. What I have heard so far is that, Mr Norris's evidence, that your client was digging around the meter, around the bore, sorry, on his property, it being a fixture - I accept of course that your client says she wasn't doing that or she was somewhere else or something like that, but the evidence so far is that she was digging around bore at the peripheral - evidence, if I can put it that way, it was something to do with pipes or something to do with the bore that was causing her concern in that regard.
Prima facie I would have thought she shouldn't have been there doing that because it's a fixture on Mr Norris's property. If she didn't have his agreement, she shouldn't have been doing that, and if she has damaged some plants doing that, then the argument to that effect is laid out prima facie. Isn't the defence to the charge of damage just simply a legal matter which could be addressed by drawing my attention to the - - -
MUHLING, MS: No, because I have already put to him that we don't accept a lot of what he says.
HIS HONOUR: Yes, but look, what you're putting to me is that you don't accept what he has instructed his solicitor to put to your client's solicitor. (ts 68 - 69)
Ultimately the letter was admitted.
18 The observation was one made by the magistrate. Even if it could be characterised as loose language it does not display any error at the time that the magistrate made it. He was yet to hear the defence.
19 Counsel put forward a further example where the magistrate said: 'Then isn't her defence just based on the provisions of the Property Law Act?'.
20 Counsel also drew attention to a comment by the magistrate: 'Well I think I understand what the defence is. I'm waiting to see if it gets played out. You're claiming an honest claim of right for Ms Quinlivan to go burrowing around if she did go burrowing around, but I haven't drawn any conclusions about that'. Counsel also quoted selectively a further portion.
21 An examination of the relevant transcript puts an entirely different slant on the comments by the magistrate. They arose during the cross-examination of Mr Norris. Mr Norris had been examined shortly on his observation from about 9.45 pm on 28 April 2006 during the course of
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- which he tendered four photographs. His examination appears to have started at about 10.50 am on 8 December 2006 and covers seven pages of transcript. Cross-examination of Mr Norris then continued for the rest of the day concluding shortly after 4.00 pm. Late in the day counsel for the appellant at trial moved her cross-examination to the topic of locks on the lid of the bore. After some time the prosecutor objected on the basis of relevance. The magistrate allowed the cross-examination to continue. Eventually, after some cross-examination about a sign 'shared bore' that was put up, a question was asked: 'Why did you bother', to which the witness answered: 'Why did I bother. I take pride in my house'. At that point the magistrate intervened:
HIS HONOUR: Come on, Ms Muhling. I mean, this is getting ridiculous.
MUHLING, MS: I think the whole thing is ridiculous, that my client is here being charged with assault and pulling out a plant, two plants, I'm sorry, your Honour.
HIS HONOUR: Yes, exactly. I would like to get to the assault if we ever can.
MUHLING, MS: We will, but - - -
HIS HONOUR: It all seems to be to do with the damage, as far as I can make out.
MUHLING MS: If your Honour has already drawn conclusions that we don't have a defence on the damage, then I would have to ask you to - - -
HIS HONOUR: I didn't say that. I didn't say that at all. I have said I understand that the - well, I think I understand what the defence is. I'm waiting to see if it gets played out. You're claiming an honest claim of right for Ms Quinlivan to go burrowing around, if she did go burrowing around, but I haven't drawn any conclusions about that - - -
MUHLING MS: I think the history, the acrimony between - - -
HIS HONOUR: - - - but I would like to get on to it. You see, I think it's a legal argument and I think this could all have been settled just by reference to some documents and some sections of the Property Law Act, but - - -
MUHLING MS: Your Honour, the police are very familiar with the history to this matter and they haven't declined to - decided to discontinue the damage charge. Half of the police force in WA knows about his covenant and the caveat and the squabble between the Norrises and Ms Quinlivan.
- THE PROSECUTOR: To answer that, sir, I found [out] about this yesterday afternoon when I took the case on, so - - -
HIS HONOUR: Whether the police should or should not prosecute is nothing to do with me.
MUHLING, MS: I agree, but I don't agree that necessarily it would have been discontinued if the police had been sent documents by me or some other lawyer or Ms Quinlivan saying, 'Look at this, there's a caveat, there's an agreement. She thought this - - -'
HIS HONOUR: No, what I'm suggesting is, you know, it still seems to me that ultimately I'm going to have to see the deed and the caveat I'm being referred to and the provisions of the Property Law Act.
MUHLING MS: Yes, I'm sure that you certainly will be, your Honour. I do wish to ask Mr Norris a few more questions about the locks.
HIS HONOUR: As I understand it, Mr Norris rightly or wrongly has put padlocks, a padlock, I don't know if he put more than one on?---Two padlocks, your Honour.
He put one on and then he had to put another one on and he bolted down the lid of the bore.
MUHLING MS: Yes. (ts 85, 86)
22 In the circumstances the magistrate's intervention was a fair intervention on the question of the relevance of particular cross-examination doing his best to remind counsel what the issues were. Seen in context the statement cannot in any way be read as displaying a misunderstanding of the burden or standard of proof. On the contrary, the magistrate indicated that he was keeping an open mind until the conclusion of the evidence.
23 However, the complete answer to grounds (b) and (d) is to be found in the magistrate's reasons when he came to summarise the accused's evidence and correctly set out the burden and standard of proof. It is not suggested by the appellant that this summation was in error.
24 In dealing with this particular, counsel endeavoured to introduce a further error said to have been made by the magistrate.
25 As part of his argument, counsel submitted that the magistrate 'doesn't summarise the appellant's evidence at all we say'. The transcript continues:
McKECHNIE J: Well, that might be right, but that's not this point.
(Page 16)
- HANBURY, MR: No.
McKECHNIE J: I'm just not quite sure what point you're making. In the course of summarising Norris's evidence he interposes some other people.
HANBURY, MR: Yes.
McKECHNIE J: But so what?
HANBURY, MR: He doesn't refer to her evidence at all.
McKECHNIE J: Anywhere?
HANBURY, MR: No. We say he completely ignores or disregards - well, he just ignores her evidence to the contrary.
McKECHNIE J: How can you say that, because at page 10 he starts off, 'Now, the accused gave evidence,' and then summarises her evidence.
HANBURY, MR: Yes.
McKECHNIE J: So I don't know what point you're making.
HANBURY, MR: The point that we're making, sir, is that he just summarises the evidence but he makes no findings as to her evidence.
McKECHNIE J: That's a different point. You just told me that he didn't deal with her evidence at all. He did, he summarised it. (ts 4 - 5)
26 After further interchange counsel finally reached the position as follows:
[H]e does summarise her evidence but he doesn't make a finding as to whether or not her evidence is truthful. He simply says, 'I rely upon the evidence of the prosecution witnesses,' having summarised their evidence, but he doesn't say why he's relying upon it or why he's not relying or why he is disregarding the evidence of the appellant. We say that's an appeal ground because he was required in this case to make findings of fact and credibility. (ts 6).
27 That is also not correct. After summarising the evidence the magistrate expressly found that the appellant did dig up two bushes. He accepted Mrs Norris's evidence as being the most reliable and obviously considered there was support for it from the evidence of the police officers, of Mr Claffey and of Mr Norris. He accepted Mr Norris's evidence as to the number of hibiscus bushes missing and explained in brief terms why he specifically rejected the accused's evidence that she had carefully removed a bush.
(Page 17)
28 I have considered this submission even though it does not relate to a pleaded ground of appeal but there is no substance in it.
29 In my judgment there is no reasonable prospect of success in respect of grounds 1(b) and 1(d).
Ground 1(c) - Failing to consider properly or at all whether the alleged damage was unlawful
30 Counsel did not address this ground in argument.
31 In findings which have not been contested, the magistrate found that Mr Norris had planted the bushes in a flower bed on his side of the property and that he was positive two bushes had been pulled up. As clearly emerges from his evidence on 8 December 2006 the appellant did not have authority or justification to take out the bushes. Unless s 22 operated to excuse criminal liability, in the circumstances the damage must inevitably be unlawful.
32 The issue of honest claim of right is addressed in ground 1(e) following. That ground apart there is no reasonable prospect of success on this ground.
Ground 1(e) - Failing to consider properly or at all the defence of honest claim of right under section 22 of the Criminal Code; and Ground 1(f) Failing to consider the subjective element in regard to the defendant's belief as to her honest claim of right
33 If the appellant's understanding of the deed of covenant had a relevance to the factual issues in the case as resolved by the magistrate, then clearly the magistrate erred in his comment that it was not a reasonable exercise of the right bestowed upon her by the deed to enter upon the Norris's land. Section 22 is not about the reasonableness of a claim of right but about the honesty of such a claim. The focus of attention is on the state of mind of the person not on the reasonableness of the action cfCriminal Code s 24.
34 It may be that all the magistrate meant in his reasons was that having regard to the appellant's reliance on the covenant and the fact that her actions were not a reasonable exercise of the right, there was no evidence that her claim was in fact an honest claim of right. However, he did not say this and for the purposes of considering an application for leave to appeal I proceed on the basis that his statement is arguably wrong.
(Page 18)
35 However, the property in question was two hibiscus plants. There was no evidence that the appellant did any act with respect to those plants in the exercise of an honest claim of right. The appellant's evidence was that she did not do anything with the two plants. She specifically denied touching them or uprooting them. There was no evidence of any claim of right requiring the prosecution to negative such claim beyond reasonable doubt. The right, under s 22, must be a right relating to the property to which the charge refers: R v Walsh (1984) 2 QdR 407, 408.
36 Because there was no evidence that the appellant did the act of damage with respect to the hibiscus bushes in the exercise of an honest claim of right, it follows that there is no reasonable prospect of these grounds succeeding.
Ground 2 - In regard to the conviction on the charge of failing to supply personal details under Section 16(6) of the Criminal Investigation (Identifying People) Act, The Learned Magistrate erred in law by; (a) failing to make the necessary findings of fact; and (b) failing to consider the element of the offence that the failure to supply the personal details requested be 'without reasonable cause'.
37 The magistrate's reasons in respect to this ground are as follows:
They had a discussion with Mr Norris. They observed again dirt and shrubs over the front lawn and holes dug in the flowerbed. They went back inside with Mr Norris and had a conversation, and then went next door to speak to the accused who showed them various things, notably that the power switch wasn't working. What they were expected to make of that, I do not know, and Officer Lumpkin decided that they were not there for a civil dispute. He wanted the accused's personal details on the basis that she might be summonsed for these matters.
It is clear on the police evidence that the accused gave her full name. She didn't give her address but she said, "This is where I live, and in fact this is where I've lived for," I think she said 20 years, certainly a very long time, and, "I live here with my young son," and she slammed the door on the officers and would not give them her date of birth. Now, had they been officers from the Wembley police station you might well think it would have been ridiculous for them to be asking her who she was, but of course they weren't from the Wembley police station.
Her attitude then, and I think still, is that she is the only legal practitioner in Western Australia by the name of Lynette Patricia Quinlivan. She was on the premises where she lived and there was no doubt about who she was, and if they wanted to know how old she was, they could make some inquiries. It remains the fact that she would not give them her date of birth and I'm not sure what being a legal practitioner has to do with it. The Law
(Page 19)
- Almanac does not disclose practitioners' dates of birth, and the fact remains that she did not give them her date of birth, as a result of which the third charge was laid. (ts 9, 10)
…
The charge of failing to comply with the request of the officer to provide her date of birth, although I must say that it - that I questioned whether it is a matter that really required the intervention of the criminal law, it is abundantly made out on the evidence and I find that charge proved also. (ts 13)
38 The Criminal Investigation (Identifying People) Act 2002 (WA) provides by s 16:
(1) In this section -
'personal details', in relation to a person, means -
(a) the person’s full name;
(b) the person’s date of birth;
(c) the address of where the person is living;
(d) the address of where the person usually lives.
(2) If an officer reasonably suspects that a person whose personal details are unknown to the officer —
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person’s personal details.
…
(6) A person who, without reasonable excuse, does not comply with a request made under subsection (2) or (3) commits an offence.
Penalty: Imprisonment for 12 months.
39 Constable Lumpkin asked the appellant for her personal details. He did not know the appellant.
(Page 20)
40 The magistrate found:
Senior Constable Lumpkin and Constable Ackerer … had never met the accused before and they had never met the Norris's before. (ts 8)
41 The appellant's evidence:
Officer Lumpkin then asked for my particulars and I told him my full name, spelt my surname for him, advised him I was a solicitor, that I had lived at 4 Ferndale Street for over 20 years and that I lived there alone with my baby son.
So that is what you said to which officer?---Officer Lumpkin. Well, both of them were outside the screen door but Officer Lumpkin had the note book and was taking the notes.
So after you said what you have just told the court was anything further said by anyone?---He said, 'What's your date of birth?' I said, 'Why do you need that? I've already told you my full name, my address, that I am a solicitor, that I have resided at 4 Ferndale Street for over 20 years and that I reside here alone with my baby son.
Was anything else said after you said that?---Well, they didn't respond. I asked them again, 'Why do you require my date of birth? What good reason do you have for requiring my date of birth?' He then said, 'Well, I might just arrest you and your kid', and I shut the door,'
Who said that to you, the last thing you said?---I'm a hundred percent sure it was Officer Lumpkin. He had the note book and he was taking notes and he was the one asking all the questions.
So why did you shut the door?---Because they had a paddy wagon and I thought it was completely unreasonable for them to even suggest they would arrest myself and my son in a paddy wagon.
Presumably, they did not arrest you?---Because I shut the door. (ts 65)
42 She said that was the end of her dealings with the police.
43 There is no question that the police had reasonable grounds to suspect that the appellant fell within s 16(2)(a) or s 16(2)(b) or both. On the magistrate's findings there was clear evidence as to that.
44 Section 16(1) defines 'personal details' as including the date of birth. Constable Langton did not know those personal details.
45 The submission in support of the ground which counsel would seek to make is as follows:
(Page 21)
- HANBURY, MR: We would seek to argue, sir, that 'without reasonable cause' includes this situation, that as much as can be said was that she might be charged, even if the policeman had a reasonable belief that she had committed an offence. The way it came out on the evidence, it seems, is that she might be charged, and we would say that somebody who might be charged is not under any obligation to supply their details. Certainly if they are going to be charged, then they must supply their details, including their date of birth. (ts 11, 12)
46 The difficulty with this submission is that it is not supported by the language of the Criminal Investigation (Identifying People) Act 2002 (WA). Once an officer reaches a state of reasonable suspicion (as defined in s 4) then the officer is empowered to make the request for any or all of the person's personal details. A person who, without reasonable excuse, does not comply, commits an offence. In another case it may be a question whether this section imposes a positive burden on a person subject to a request to establish a reasonable excuse on the balance of probabilities or whether, there being some evidence of a reasonable excuse, a prosecution is obliged to disprove it beyond reasonable doubt. The reason that question can wait another day is because there is simply no evidence of any reasonable excuse and counsel's submissions on the point do not advance one. A submission that a person who might be charged is not under any obligation to supply their details is untenable. All the evidence establishes is that the appellant thought the request was unreasonable.
47 The Criminal Investigation (Identifying People) Act was dealt with in detail in Hounslow v Woodward [2007] WASC 27 by Johnson J. Her Honour analysed the position of a police officer holding a reasonable suspicion from [46] to [52]. With respect, I agree.
48 She dealt with the issue of reasonable excuse from [96]. I adopt, with gratitude, and apply her Honour's analysis of the expression within the meaning of the Criminal Investigation (Identifying People) Act.
49 My one qualification, with respect, is the question I leave for another day in relation to the burden and standard of proof.
50 There remains in this case no evidence of a reasonable excuse. The appellant was asked to supply a particular personal detail: her date of birth. Neither her evidence nor any other evidence gives rise to any excuse, whether reasonable or not, as to why she declined to comply. In consequence, this ground has no reasonable prospect of success. However, I should not leave it at that. I do consider in the passages I have
(Page 22)
- set out that the magistrate did make the necessary findings of fact and necessarily from those findings rejected any element of excuse.
Conclusion
51 Although the whole unseemly dispute would have been better left to the civil law rather than the criminal law, the maxim that the law does not concern itself with trifles has no application to the criminal law: Pearce v Pascov (1968) WAR 66, 73, 74. Although Virtue J supported part of his reasoning by reference to the now repealed Criminal Code s 669, the reasoning remains valid by reference to the Sentencing Act s 46. In any event, the consequences of a conviction for any person could not be described as a trifle even if there is a release without penalty and a spent conviction order made.
52 My judgment that there are no reasonable prospects of success is confined to the grounds of appeal specified in the notice, counsels' arguments in support and in opposition to them and the transcript of the hearing, including the magistrates reasons.
53 Leave to appeal is refused.
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