Ramalingam v McCue
[2019] ACTSC 114
•8 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ramalingam v McCue |
Citation: | [2019] ACTSC 114 |
Hearing Date: | 18 April 2019 |
DecisionDate: | 8 May 2019 |
Before: | McWilliam AsJ |
Decision: | See [106] |
Catchwords: | CRIMINAL LAW – APPEAL – Evidence – appeal against conviction – common assault and damage to property offences – whether Magistrate erred in admitting a non-related previous decision as relationship evidence – appeal granted and matter remitted to Magistrates Court |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 116, 381, 382 Evidence Act 2011 (ACT), s 91 Magistrates Court Act 1930 (ACT), ss 53, 208, 208, 216 |
Cases Cited: | Dietrich v The Queen (1992) 177 CLR 292 Faris v Coulon [2017] ACTSC 114 Wyper v R; R v Wyper [2017] ACTCA 59 |
Parties: | Shankar Ramalingam (Appellant) James Christopher McCue (Respondent) |
Representation: | Counsel Self-represented (Appellant) M Howe (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 10 of 2019 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Cook Date of Decision: 21 September 2018 Case Title: McCue v Ramalingam Court File Number: CC No 11082 of 2017 |
McWilliam AsJ:
On 21 September 2018, Mr Shankar Ramalingam (the appellant), was found guilty in the Magistrates Court of the Australian Capital Territory (the Magistrates Court) on three charges of common assault and one charge of damaging property arising out of an altercation between the appellant, his wife and his son.
On 15 March 2019, I granted the appellant leave to appeal the decision of the Magistrates Court out of time, with the substantive appeal heard on 18 April 2019. Pursuant to s 216 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), the sentence imposed by the magistrate, a one-year Good Behaviour Order, has been stayed pending the outcome of this appeal.
As set out below, there are ultimately five issues for determination on appeal. The two of most significance to the outcome of this appeal are whether there was insufficient evidence to justify the convictions and the admissibility of relationship evidence that was tendered in the court below.
The parties each filed written submissions: the appellant on 11 April 2019 and 23 April 2019; and the respondent on 17 April 2019.
The respondent, through the Director of Public Prosecutions (Director), conceded that there was an error with respect to the admission of the relationship evidence, the consequence of which was that the matter ought to be remitted to the Magistrates Court for further hearing and determination.
The appellant sought to better that outcome for himself by arguing for a complete acquittal of all charges on appeal, on the basis that there was simply insufficient evidence to justify the convictions entered.
In order to understand the detail of the grounds of appeal, some knowledge of what transpired in the court below is of assistance.
Hearing in the court below
The hearing in the court below took place over three separate days, with the substantive hearing taking place on 26 March 2018, closing submissions delivered on 15 June 2018 and the decision of the Magistrates Court handed down on 21 September 2018. There was a further hearing on 15 November 2018, at which the magistrate confirmed that the sentence was stayed pending the outcome of the appeal.
The following six charges were pressed at the hearing:
(1)CC17/11082 – a common assault occasioned on the appellant’s wife;
(2) CC17/11084 – damaging property (not exceeding $5000);
(3) CC17/13342 – common assault occasioned on the appellant’s son (inside the house);
(4) CC17/13343 – common assault occasioned on the appellant’s son (outside the house);
(5) CC17/13346 – possessing an offensive weapon with intent; and
(6) CC17/11087 – possessing a knife without reasonable excuse in a public place.
The three alleged common assault charges were said to be contraventions of s 26 of the Crimes Act 1900 (ACT) (the Crimes Act), with each charge carrying a maximum penalty of up to two years’ imprisonment.
The damage to property not exceeding $5000 was in alleged contravention of s 116(3) of the Crimes Act, the maximum penalty for which is a fine of up to 50 penalty units, or imprisonment for two years, or both.
The charge of possessing an offensive weapon with intent was in alleged contravention of s 381 of the Crimes Act, which carries a maximum penalty of a fine of $2000, imprisonment for one year, or both.
The charge of possessing a knife without reasonable excuse in a public place was in alleged contravention of s 382(1) of the Crimes Act, which carries a maximum penalty of 10 penalty units, or imprisonment for six months, or both.
The appellant pleaded not guilty to all six charges.
The prosecution’s case
The prosecution’s case in the court below was as follows:
(1)That on 7 October 2017, the appellant and the appellant’s wife got into a verbal argument in their family home. The appellant’s wife alleged that the appellant kicked her in the thigh and threw a bowl of curry towards her, hitting the wall behind where she was standing (CC17/11082).
(2) Not long after that altercation, the appellant took possession of a knife from the kitchen bench and exclaimed to his wife that if their son returned to the house, he would “kill him”. Using the knife, the appellant then stabbed the nearby leather lounge, causing a 4cm cut in the upholstery (CC17/11084).
(3) Sometime after, the appellant’s son returned home after receiving a text message from his mum (the appellant’s wife) referring to his father and stating in part “I will come and jump into your car. He has gone crazy. Do not come inside”. Upon returning to the house, the appellant’s son sat with his mother in his bedroom. The appellant then, once again holding a knife, opened the curtain partition to his son’s bedroom, and brandished the knife in front of the son and wife exclaiming to the son, “I’m going to kill you” (CC17/13342).
(4) The son and wife then left the bedroom and the house, and went outside onto the driveway. The appellant then also left the house, and while his son and wife were in the driveway he brandished the knife at them, telling his son “I’m going to kill you” (CC17/13343).
(5) The appellant’s son and wife then got into their car, with the appellant continuing to gesture at them with the knife through the window. The appellant followed them down the street as they drove off (CC17/13344 and CC17/11087).
Evidence in the court below
At the hearing a number of witnesses were called to give evidence. These included: the appellant’s wife, the appellant’s son, Senior Constable James McCue (the respondent) and Constable Nicholas Xuereb (one of the other officers who attended the scene with the respondent).
The charges were characterised as falling into the category of family violence. As the appellant was self-represented at the hearing, he was assisted by a Deputy Registrar to cross-examine the two complainants (the appellant’s son and wife) at the hearing.
A number of other statements and documents were tendered as evidence at the hearing, including:
(1)Statements from Detective Sergeant Peter Mellor and Sergeant Christopher Ball.
(2) The judgment of R v Shankar Ramalingam [2011] ACTSC 86 (R v Ramalingam), a wholly separate case involving the appellant.
(3) An evidence-in-chief police interview and the transcript of the interview between police and the appellant’s wife.
(4) An evidence-in-chief police interview and the transcript of the interview between police and the appellant’s son.
(5) A number of photographs of the scene.
(6) An emergency services phone call transcript.
(7) Service and viewing forms for evidence-in-chief interviews.
Findings in the court below
The detail of the Magistrate’s findings will be discussed in the context of each ground of appeal below. The appellant was found guilty of the three common assault charges and the damage to property charge. He was found not guilty with respect to possessing a knife with intent and possessing a knife without reasonable excuse in a public place.
As stated, the appellant was sentenced to a Good Behaviour Order for a period of one year.
The present appeal
The notice of appeal filed by the appellant on 20 March 2019 contained seven grounds. During the hearing before this Court, and through discussions with the appellant who was again self-represented, the appellant reduced the number of grounds of appeal to five.
The grounds pressed and the appellant’s arguments may be summarised as follows:
(1) Insufficient evidence to justify the four convictions (Ground 1). The appellant argues that the magistrate should not have made the findings of guilt as the evidence put before the court below did not meet the criminal standard of proof, that standard being “beyond reasonable doubt”. The appellant pointed to potential inconsistencies in the evidence. He expressed particular concerns at the hearing in relation to the alleged conflicting accounts of the incident involving the throwing of a bowl of curry (CC17/11082), and the assault that took place outside the house on the appellant’s son (CC17/13343).
(2) Allowing inadmissible evidence (Ground 2). The appellant argues that the relationship evidence adduced by the prosecution of a 2008 incident involving the appellant, his wife and son should not have been admitted as evidence. In particular, he argued that the earlier decision of R v Ramalingam, which related to the events in 2008, should not have been tendered or admitted into evidence.
(3) Failure of the Prosecution to discharge the criminal burden of proof (Ground 3). The appellant argues that the Director failed to acknowledge that the prosecution, and not the appellant, bore the onus of proof and states that the Director failed to discharge it. Additionally, the appellant argues that the magistrate was wrong in ruling that the post-arrest record of interview should not be admitted as evidence, in circumstances where the interview-in-chief of his son and wife were played to the court. The appellant says he was not asked whether it should be admitted, and further, that had the record of interview been admitted, the evidence would have reasonably supported a finding that he acted in self-defence.
(4) Lack of proper legal representation (Ground 4). The appellant argues that the duty solicitor provided to him on the day of the hearing was not up to standard, resulting in him receiving a harsher sentence than he might otherwise have received. The appellant also argued that he lacked appropriate representation in the lead-up to the hearing due to a dispute he had with his former representative form Legal Aid. As a result of this dispute, his grant of aid was terminated.
(5) Denial of procedural fairness in relation to cross-examination (Ground 5). The appellant argues that as it was the Deputy Registrar who conducted the cross‑examination on his behalf at the hearing, he was disadvantaged by the restraints placed on the Registrar in that capacity. He would have liked the Registrar to ask follow up questions during the cross-examination but did not feel that he had the opportunity to ask the Registrar to put further questions to his wife and son.
Principles applicable on appeal
The principles applicable on appeal are well established, but as the appellant was self-represented, it is appropriate to explain them again here. The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act and the applicable principles were set out in Peverill v Crampton [2010] ACTSC 79 by Refshauge J at [24] as follows:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seems to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making decisions which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should not determine the correct judgment for itself and only order a retrial if it cannot.
These principles have been cited in a number of authorities since, including Greenwood v Barlee [2018] ACTCA 62 at [7], Holloway v Thurgar [2016] ACTSC 32 at [4] and I have more recently referred to them in Muench v McCue [2019] ACTSC 20 at [29].
Due consideration must be given to the advantages of the magistrate in hearing the original proceeding. In Faris v Coulon [2017] ACTSC 114, Murrell CJ stated at [9]:
There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge’s factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find that the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.
(Emphasis added)
The principle has significance for the present appeal, as a number of the grounds argued by the appellant go to the factual findings made by the magistrate based on the evidence of witnesses before the court below.
Evidence on appeal
The entirety of the evidence that was before the magistrate (set out above) is before this Court on appeal. The complete transcript of the hearing and the remarks of the magistrate in handing down his decision on conviction are also before this Court on appeal and I have read them in full.
The transcript of the post-arrest police interview conducted with the appellant was not before the court below. However, by consent and with the Court’s leave, it was admitted on the appeal.
Ground 2 – Did the magistrate err in relying upon inadmissible evidence?
Ground 2 should be dealt with first as the respondent has conceded an error was made in respect of this complaint.
On 23 March 2018, at the commencement of the hearing in the court below, the prosecution sought to lead relationship evidence relating to a previous series of incidents that occurred in 2008 involving the appellant, his wife and his son. The respondent submitted that the apparent purpose of this evidence was to provide the magistrate with some context to the nature of the appellant’s relationship with his wife and son.
The prosecution handed up the previous decision of the ACT Supreme Court, R v Ramalingam. This case related to four common assault charges against Mr Ramalingam (the incidents occurring in the family setting), for which he was found guilty.
At the hearing, the appellant was given the opportunity by the magistrate to object to the evidence being adduced. The appellant exercised his right to object, stating:
It was very long ago, and also I – it’s not similar to what happened here. It was – it has no relevance, actually, to what happened here.
After hearing the appellant’s objections and some further brief submissions from the prosecution, the magistrate then gave brief extemporised reasons and allowed the evidence to be adduced.
Importantly, when giving oral evidence, neither the wife nor son of the appellant were asked about the events in 2008. Indeed, there was no evidence in the evidence-in-chief interviews referring to the facts that were the basis of the previous case.
After Senior Constable James McCue provided his answers to the examination-in-chief, the magistrate formally tendered the previous court decision and marked it as an exhibit, explaining as follows:
…the first thing I’ll tender, because [the prosecution is] relying upon his evidence, is The Queen and Shankar and Ramalingam [2011] ACTSC. I’ll mark it as an exhibit because of the purpose of relationship evidence that [the prosecution wants] to establish.
As neither party said anything at the time the magistrate made his remarks, it is clear that the prosecution intended the judgment to be tendered and relied upon, rather than leading viva voce evidence from the witnesses.
The question whether a previous decision of a different court can be used to prove the existence of a fact in another case is dealt with in s 91 of the Evidence Act 2011 (ACT):
(1) Evidence of the decision, or a finding of fact, in an Australian or overseas proceeding is not admissible to provide the existence of a fact that was in issue in the proceeding.
(2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.
Note Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
The magistrate relied upon the decision of R v Ramalingam in formulating his reasons, stating:
I considered the evidence carefully, having regard to the relationship evidence established out of the Supreme Court in 2011, where the defendant was found guilty of common assault against his daughter and his son. His son, being the same complainant in these matters in these circumstances where the mother was also present…
…I am satisfied that material underpins and established a basis as to why the complainants would have feared for their [safety], having seen the aggressive nature of their father in the past.
…I am further satisfied, through the relationship evidence tendered by the prosecution, of similar events in 2008, the complainant had a proper basis for holding a fear about your actions, having regard to your actions in the past…
As the 2011 decision was used by the magistrate to directly assist in proving the existence of certain facts in the proceeding before him, such use clearly falls within the remit of s 91. Therefore, the evidence was inadmissible. The magistrate erred in admitting the evidence.
From the extract set out above, the error was plainly material to the magistrate’s reasoning process. Further, the magistrate’s reliance on such evidence in coming to his decision was not confined to the assault charges, but instead, infected the entire reasoning process including that which related to the damage to property conviction.
Accordingly, the concession was properly made by the respondent. The reliance on inadmissible evidence by the magistrate led to a miscarriage of justice with respect to each of the convictions.
As to the appropriate remedy, due to the nature of the error, the proper course (accepted by the respondent) is to quash the convictions and have the matter remitted back to the Magistrates Court. It is not a case where this Court on appeal may simply substitute particular findings of fact which would necessarily result in an acquittal. The question of an element of the offence of common assault – apprehension of fear – is one that must be determined having regard to admissible evidence, but the nature of that evidence may well have been different if the previous decision of this Court was not tendered in the court below.
For example, it was open to the respondent to lead evidence to directly prove the facts contained in the previous judgment, rather than simply tendering the judgment, and for the witnesses to be cross-examined on any such evidence. An appeal is not the forum in which to undertake what are more properly trial procedures.
The remaining grounds
As the appellant has succeeded on appeal, the remaining grounds may be dealt with only briefly, save as to Ground 1. I have considered Ground 1 in greater detail, as, if the error alleged is established, he may be entitled to an acquittal, which is a preferable result for the appellant over remitting the matter for rehearing in the Magistrates Court.
Ground 1 – Was there sufficient evidence and reasons to support the convictions?
There are two limbs to the appellant’s argument on this Ground:
(1) The sufficiency of the evidence to support the conviction, and
(2) The sufficiency of the reasons provided by the magistrate to support the conviction.
In dealing with the first limb, the appellant’s written and oral submissions argued that there were a number of discrepancies in the evidence relied upon by the magistrate, and the fact that such discrepancies exist demonstrated that the prosecutors in the Magistrates Court failed to prove a number of facts beyond reasonable doubt.
The alleged discrepancies raised by the appellant were:
(1) The location of the appellant’s son at the time of the assault in the house. The appellant claims that there is some inconsistency between the account given by his wife and his son.
(2) The nature of the appellant’s gestures and whether he was stationary or moving towards his wife and son at the time of the second alleged assault outside the house.
(3) Inconsistencies between the evidence given by the appellant’s wife and the appellant’s son as to how much of the curry ended up on the appellant’s wife when the appellant threw the plate in her direction.
(4) Inconsistent evidence as to whether the appellant threw the plate at his wife or just in her general direction.
The respondent submitted that this was a case where there was direct evidence given by the complainants. The mere fact that there may be discrepancies in the evidence in some respects does not mean the court was unable to satisfy itself that the charges were proved beyond reasonable doubt.
The relevant test for this Court in determining whether there was sufficient evidence to support each of the convictions is set out in Wyper v R; R v Wyper [2017] ACTCA 59 at [1]. In essence, the Court on appeal must consider whether upon the whole of the evidence it would have been open to a jury to be satisfied beyond reasonable doubt that the accused was guilty. The test applies similarly when the fact finder is a judge rather than a jury.
The discussion that follows only deals with the case as it was put below – without any argument about self-defence.
Whether there was evidence sufficient to establish the elements comprising the offence of common assault beyond reasonable doubt in respect of the three charges will be considered first. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147.
Set out below is the evidence adduced by the prosecution in support of each of the charges of assault.
CC17/11082 – Common assault on appellant’s wife inside the house
Part of the evidence for the prosecution included the evidence-in-chief interview with the appellant’s wife. An extract that was relied upon as evidence of the assault was as follows:
…And he got angry because I asked him “Why did you take the food?” Then he’s – he’s – he was getting angry and he – he said, ah “oh, why are shouting at me?”. I didn’t even shout, I just asked him. And then he, ah, coming on – on and on again and he said, ah, he came and kicked me and he took the food from the fridge and he threw all – all – all over me. Ah, and he said that, ah, oh, kicked me in the thigh…
Later in the interview played to the court below, further evidence was provided by the appellant’s wife in support of the charge:
McCue: Are you able to show me where the food is?
[Appellant’s wife]: yeah, it – it from my head though – yeah. It’s like, fell down. The kitchen. So you can see all the marks. It’s my curry. Potato curry. So, I think I would have grabbed – crossing my head sort of thing, I would have grabbed from my head to the – it came like that. Yeah. All over, yeah.
McCue: Okay. You also mentioned that at some point he’s kicked you.
[Appellant’s wife]: Yes.
McCue: Can you show me where he’s kicked you?
[Appellant’s wife]: I, ah, in my thigh. I think was there in there – the same place as the front of the fridge.
McCue: Yep.
[Appellant’s wife]: And first he kicked me and then only threw the food all at me. Took – took the food and, ah, threw. So, first he came and kicked me with his leg. To my thigh. Somewhere here. No injury but, ah, he kicked me.
McCue: The – when you’ve been kicked, have you felt pain?
[Appellant’s wife]: Slightly, because he – slightly I’ve got pain, but not, ah, not really. Now I don’t have the pain. That time I have a slight pain. Then – because I – I didn’t expect him to kick me. And how – I was really got a shock.
McCue: With the kick, where you standing or sitting at the time?
[Appellant’s wife]: I am standing.
McCue: Okay.
[Appellant’s wife]: I was standing.
McCue: And how did the kick effect you? Did you remain standing or - - -
[Appellant’s wife]: No I just slightly moved – moved.
Additionally, at the hearing in the court below, the appellant’s wife was cross-examined. The following exchange occurred, with the Deputy Registrar asking questions for the appellant:
[Deputy Registrar]: Was the curry thrown at you or was it thrown at the wall behind you?
[Appellant’s wife]: Thrown at – to me. Are you - - -
His Honour: Sorry, which one? It needs clarification?
[Appellant’s wife]: It was thrown on to me.
His Honour: There were two throws. On was a container and one was a plate?
[Appellant’s wife]: Plate. Yes. Both – all to me. Because that’s - - -
His Honour: Hang on. Stop.
[Deputy Registrar]: In relation to the plate, was that thrown at you or was that thrown at the wall behind you?
[Appellant’s wife]: It was thrown at to me.
Contemporaneous and corroborative evidence in support of the complainant’s claims was also put before the court below. This included the text message from the appellant’s wife to her son at about the time the events took place and first-hand witness evidence of the respondent and of Constable Xeureb regarding the appearance of the appellant’s wife not long after the events took place.
In cross-examination of the appellant’s son, the following exchange occurred:
[Deputy Registrar]: So when you got your mother’s text message, why did you come to the house?...Were you not fearful?
[Appellant’s son]: Simply because that’s the first text message my mum has ever sent. She’s never sent a text message before. And I didn’t even know she could text message. And I had multiple missed calls from her. I was – I was playing cricket at the time, so I didn’t have my phone on me. There were multiple missed calls. She’s never sent a text message before and it was the first text she [sent] and it was alarming in nature. So – so I was – I was fearful for her.
The inference that the appellant’s wife was afraid was open from the contents of the text message, combined with the evidence that she rang her son multiple times and even contacted him via a communication method that was unusual for her.
Constable McCue gave the following oral evidence at the hearing as to his observations of the appellant’s wife’s physical appearance immediately after the events took place:
[The prosecutor]: now what happened after the frisk search and the discussions with the [appellant]?
McCue: One of the other police had gone to speak with the occupants at the base of the driveway…I then left the defendant with Detective Sergeant Ball and Constable Xuereb and I went and spoke with the two occupants of the car who I determined to be [the appellant’s wife and son].
[The prosecutor]: And did you make any observations as to their person?
McCue: [The appellant’s son] was sitting in the driver’s seat, [the appellant’s wife] was sitting in the passenger seat. I observed that [the appellant’s wife] had, looked like food stains on her forehead and on the top of her clothes and then discussed with them individually what had happened that afternoon prior to our attendance.
I accept the respondent’s submission that the direct evidence of the appellant’s wife was corroborated by additional contemporaneous evidence, such as the text message to her son and the victim’s appearance upon the arrival of police.
I do not consider the alleged discrepancies about how much curry ended up on the victim or whether the plate was thrown directly at the appellant’s wife as opposed to in her direction are sufficiently material to impugn any of the elements of the offence. An apprehension of unlawful violence may arise whether a plate is thrown directly at a person or just near them, and whether the plate had food on it or was completely clean.
It was open to the magistrate to accept the evidence referred to above, including, in particular, the direct evidence of the appellant’s wife, as establishing the elements of the offence of common assault beyond reasonable doubt.
There was no discernible error in the magistrate accepting such evidence.
CC17/13342 and CC17/13343 – common assault on appellant’s son, both inside and outside the house
The emergency call at 6.09pm records the appellant’s son reporting that his father had a knife at Wanniassa, that he was walking outside and that the appellant’s son and mother were in the car. The police emergency operator asked what had happened, what was going on. The appellant’s son responded:
…He’s just…I’ve gone into the house, um, he’s got a knife, he’s just threatening me and, ah, my mum with a knife…
The appellant’s son then confirms that his father is outside on foot while he and his mother are in the car. The emergency call then records the appellant’s son saying:
…Put your knife away, put your damn knife away.
The interview with the appellant’s son, tendered as evidence-in-chief, was as follows:
I just came in and I just sat on the couch and I just sat there. .… I just wanted to see what was happening, so I just sat down. And then, um, that sliding door came open, um, with force and my dad was just standing there and he was holding, um, one of our steak knives (indistinct) … and, um, he was just holding it like that and he told me there, “Go get another,” to go get a – a knife and to fight. … and that’s when I started panicking.
Later in the interview, the appellant’s son states as follows:
…he was standing behind the gate of the driveway and I was in front of the gate and, um, he had the knife. And he was – he was telling me to go get – to go into the kitchen and get a knife and to fight him. Um, he said I was a woman if I didn’t. Um, and he said he was going to kill me. Said he wanted to finish this. … the comments I made then was, um, that I was going to call the police. This was his last opportunity to – to go back in the house, put the knife away.
The appellant’s wife also gave evidence of the assault against her son, as follows:
And then after some – and we were talking and we were,… talking and then he came – came, ah, out of his room. Opened the door and with his knife – that knife. And he told my son, “…take another knife and come and, ah, fight with me.”
The interview with the appellant’s wife continued, with the appellant’s wife saying:
…when my son…went to speak with him…I say – he took the knife from the bag and then I came running from the car because I knew he was going to do something and then I came…out. Then [the appellant] took the knife from the – the green colour bag and he – he was trying to throw – throw at him like that and then my son, ah, like, ducked – ducked it and I – I thought…[the appellant] threw the knife, … I went that other side and then went to see, … [the appellant was still] holding the knife … and I said, “Let’s go and we’ll…inform the police.
These extracts of direct eye witness accounts of the appellant’s conduct demonstrate that the finding of common assault beyond reasonable doubt against the appellant’s son, both inside and outside the house, was open to the magistrate.
The appellant’s written submissions accept that he raised a knife and showed it to his son. The appellant argues that if he son thought that he was going to throw the knife at him, this was his son’s problem, not his. However, that submission mistakes the nature of the offence. A lack of intention on the part of the appellant does not mean that a common assault has not occurred.
The discrepancies raised by the appellant, such as precisely where people were standing when threats were made, or whether the appellant was stationary as opposed to moving towards his son, do not materially affect the evidence that in the circumstances of the appellant’s earlier behaviour known to the son through the text message and speaking with his mother, the appellant’s conduct in brandishing a knife and threating to fight or kill his son was conduct of such a nature that it caused his son to panic or apprehend fear of unlawful violence, which lead him to make an emergency call to the police.
CC 17/11084 – damaging property (not exceeding $5000)
The elements of the offence under s 116(3) of the Crimes Act are set out in the section. What is required for the person to commit an offence (relevantly here) is that the person causes damage to property; the property belongs to the person and someone else; the person intends to cause damage or is reckless about destroying or causing damage to the property; and the damage to the property does not exceed $5,000.
The evidence in relation to the damage to property not exceeding $5000 was also given directly by the appellant’s wife. She said the following:
…Before my son came. …[the appellant] took the knife from the – sorry, I will tell that. When he came from the kitchen, he came with the knife and he said, ah, “ok I am going to stab your son.” … And he stabbed here. And see, that’s a stab mark. It’s a nice couch. This is where he said he’d stab…
The appellant’s wife also gave evidence about the ownership of the couch:
[The prosecutor] Could you please tell his Honour who owned that couch? Who was the owner of that couch?
[Appellant’s wife] It’s our couch. … When we were married, we bought the couch…Together.
The appellant argued on appeal that he paid for the couch and therefore it was only owned by him. Again, the fact that there may have been inconsistent evidence does not mean that the above direct evidence was insufficient.
Photographs were tendered corroborating the damage to a black couch. The appellant contested whether a mark or tear on a couch proved the conduct, but I consider that the damage to the couch combined with the direct account given by the appellant’s wife as to who owned the couch and what happened is sufficient evidence to make the finding that the elements of the offence had been proven beyond reasonable doubt open to the court below.
The amount of damage caused was plainly small and does not appear to have been contested, having regard to the size of the stab mark on the couch.
Sufficiency of reasons
As the respondent accepts that the convictions for the charges just discussed must be quashed for other reasons, it is not necessary to give detailed consideration to the adequacy of the magistrate’s reasons. Even if that aspect of the appellant’s complaint had succeeded, and the Court had exercised its discretion to quash the convictions, the outcome would not have resulted in the further relief of an acquittal through the dismissal of all of the charges. The appropriate remedy for any failure to give reasons would have been to remit the matter to the magistrate who heard the case for further consideration, not to dismiss the charges in their entirety.
Ground 3 – Was the prosecution misconducted, or the burden of meeting the criminal standard of proof discharged?
The appellant complains that the prosecution ‘purposely misstated the law of evidence’. However, it transpired from the submissions of the appellant, and was further clarified with him at the hearing, that the complaint was not about any misconduct of the prosecution, deliberate or inadvertent. Rather, it was that the prosecution never proved the elements of the offences with which he was charged beyond reasonable doubt and did not appear to acknowledge that the onus was theirs to prove.
I do not accept that argument, as the prosecutor in his closing address stated:
The prosecution has the onus of proof in this matter. He [the appellant] is entitled to the presumption of innocence and the prosecution have to rebut that presumption and the presumption is beyond a reasonable doubt.
Any alleged failure to discharge the burden to the criminal standard has been addressed in the reasons above with regard to Ground 1.
A further aspect of the appellant’s Ground 3 related to the non-admission of the transcript of the appellant’s record of interview, which potentially raised self-defence.
The reason the interview was not admitted before the magistrate was because during the interview, the appellant asked for a lawyer no less than 11 times. It is curious that in such circumstances the police interviewer continued the record of interview, but I am not concerned here with police conduct.
As accepted by the respondent, it is a prosecutor’s duty to fairly and impartially place before the court all relevant reliable evidence: R v Smith [2007] QCA 447; 179 A Crim R 453 at 463-464.
I have accepted that whatever form the evidence ultimately took, the prosecutor may have been obliged to fairly raise the issue of self-defence for consideration by the magistrate and it does not appear to have been something that was canvassed at all.
However, any success in respect of Ground 3 does not result in an outcome different from that which the appellant has already obtained in respect of Ground 2, for similar reasons as those given in relation to Ground 2. This Court on appeal cannot have regard to statements made in the transcript of the record of interview, without giving the prosecution an opportunity to address the issue. For example, if the issue of self-defence was properly raised before the magistrate, that may have changed what questions were asked of other witnesses.
Accordingly, if I had accepted that Ground 3 had been established in part, then the appropriate remedy would nevertheless have been to quash the convictions and remit the charges to the Magistrates Court, so that the issue of self-defence could also be properly ventilated.
Ground 4 – Was the appellant denied access to adequate legal representation?
An accused may represent himself and conduct his own case (see s 53(2) of the Magistrates Court Act), although the disadvantages facing a self-represented accused were discussed in Dietrich v The Queen (1992) 177 CLR 292 at 302.
During the hearing, the appellant explained that the reason he ended up being self-represented was due to a clash with his lawyer from Legal Aid, which resulted in his grant of aid being terminated.
The lack of legal representation did not disclose any particular error by the magistrate. It was not submitted, for example, that the magistrate failed to do anything in particular so as to ensure the self-represented accused received a fair trial.
The respondent has pointed to parts of the transcript to demonstrate that the appellant was afforded a number of opportunities to seek an adjournment. The appellant accepted that he could have requested an adjournment to attempt to obtain alternative legal representation, but that he did not ask for an adjournment. The reason he did not do so was that time was of the essence for him. Given the conditions of his bail, he was not allowed to live in his own house, and this resulted in him being homeless. He was not allowed to leave the country so as to attempt to find cheap residential accommodation elsewhere. From his own experience with the proceeding, he was of the view, that any adjournment might have meant a delay of approximately three months and he was ‘frantic’ to conclude the hearing.
The consequences for parties of delays in bringing matters to trial are of real concern, and the position adopted by the appellant due to his personal circumstances is entirely understandable. However, what the appellant did in representing himself was to make a forensic or strategic choice to press on with the hearing self-represented, having regard to his own personal circumstances. Without more, it amounts to a legitimate choice made by the appellant, not a failure of the magistrate to ensure a procedurally fair hearing or any broader denial of natural justice.
Ground 5 – Was the appellant denied the right to adequate cross-examination?
This complaint concerned a denial of the appellant’s right to cross-examine his wife and son. The respondent argued that the magistrate had no discretion to allow the cross-examination directly from the appellant. That is why a Deputy Registrar of the court below was appointed to conduct the cross-examination on behalf of the appellant.
I will explain the special procedure adopted for the cross-examination by reference to the current procedure set out in the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Evidence (MP) Act), although when the trial commenced in the court below, an earlier version of the Evidence (MP) Act applied. The equivalent of s 43 set out below was then s 38D. Subsections 38D(4)-38D(6) were in almost identical terms to ss 48(1)-(3) of the current version of the statute. For the purposes of this appeal, nothing turns on other distinctions between the two versions of the legislation, as the real complaint of the appellant is the consequences of adhering to the procedure for his ability to properly cross-examine the witnesses, rather than whether the procedure should have applied to his trial.
Under the current version of the Evidence (MP) Act, s 48 provides as follows:
(1) A witness in a relevant proceeding must not be examined personally by the accused person but may be examined instead by—
(a) the accused person's legal representative; or
(b) if the accused person does not have a legal representative—a person appointed by the court.
(2) If the accused person does not have a legal representative, the court must, as soon as practicable, tell the person—
(a) about the terms of subsection (1); and
(b) that the person may not present evidence from another witness in relation to a fact in issue to contradict the evidence of the witness in relation to the fact if the fact in the other witness's evidence intended to contradict the witness's evidence has not been put to the witness in cross-examination.
(3) A person appointed by the court for subsection (1) (b) may ask the witness only the questions that the accused person asks the person to put to the witness, and must not independently give the accused person legal or other advice.
A family violence proceeding is a ‘relevant proceeding’: s 38 Evidence (MP) Act. As the offences alleged involved either violent or threatening behaviour against members of the appellant’s family, they are classified as family violence offences: Dictionary, Family Violence Act 2016 (ACT).
Accordingly, s 43 (which lists the proceedings to which s 48 applies), combined with s 48, prohibited the appellant’s wife and son from being examined by their self-represented husband and father in a proceeding which involved allegations of violence.
Adherence to the procedure set out in s 48 of the Evidence (MP) Act or s 38D of the earlier version may be accepted, but the complaint by the appellant was that his cross‑examination was hampered by the procedure adopted by the Deputy Registrar. The appellant complains that he would have liked to ask follow-up questions from the answers that the witnesses were giving in cross-examination. He was not given the opportunity to discuss with the Deputy Registrar what was occurring during the cross-examination. The Deputy Registrar was not allowed to do anything other than read out the appellant’s questions, which he had written prior to the cross-examination commencing. He therefore feels that he was denied procedural fairness.
The respondent submitted that the provisions of the Evidence (MP) Act do permit flexibility, in that there is nothing to prevent a court-appointed person from pausing the cross-examination and taking further questions from the appellant. The respondent also accepted that it is very important that the Deputy Registrar does so.
From the transcript of the hearing in relation to the appellant’s wife, it does appear that the Deputy Registrar checked with the appellant whether there were any further questions, and that there were further questions asked as a result of consultation with the appellant. However, it is also clear that the Deputy Registrar did not consult the appellant in relation to whether there were any further questions to be asked of the appellant’s son.
Given the concession with regard to Ground 2, it is unnecessary to determine whether there was any denial of procedural fairness in the process adopted and as applied to the appellant in the court below. This is because even if I found in favour of the appellant on Ground 5, again the nature of any error established is such that the remedy would be to remit the proceeding for further hearing according to law. The Magistrates Court is the appropriate forum in which to give the appellant the opportunity to ask the questions he considers appropriate of the witness, through a court appointed Deputy Registrar.
What is the appropriate remedy?
The result is that the appeal will be allowed and the convictions will be quashed. As the prosecution submitted and as briefly alluded to above, although this Court has the discretion to determine the matter for itself or to remit the proceedings, the nature of the error conceded by the prosecution is such that the proceedings must be remitted. The reason is that the entire trial may be conducted differently. Different questions will need to be asked of the witnesses in cross-examination, such that the Court cannot simply determine the proceedings on the evidence available in the rehearing.
The remitted charges should be heard and determined by a magistrate different from the original magistrate, due to the fact that the reasoning depended, in part, upon factual findings based on credibility of witnesses and a conclusion reached beyond reasonable doubt.
I am also mindful that the appellant was very reluctant to have the proceedings return to the Magistrates Court, due in part to the time that it takes for criminal proceedings to come to a resolution. During the time it took for the appellant’s matter to proceed to final hearing, he was placed on bail conditions that he says rendered him homeless, for at least a period of time. Such a consequence does appear to me to be unsatisfactory and the issue may need to be specifically addressed in any future proceedings, but that is a matter for the discretion of the Magistrates Court upon the facts that are presented to it at the relevant time.
Conclusion
For the above reasons, the Orders of the Court are as follows:
(1) The appeal is allowed.
(2) The convictions of the appellant in respect of charges CC 17/11082, CC 17/11084, CC 17/13342 and CC 17/13343 are quashed.
(3) The charges are remitted to the Magistrates Court for further determination according to law.
| I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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