Reynders v Brennan
[2007] WASCA 188
•14 SEPTEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: REYNDERS -v- BRENNAN [2007] WASCA 188
CORAM: WHEELER JA
HEARD: 7 JUNE & 24 AUGUST 2007
DELIVERED : 14 SEPTEMBER 2007
FILE NO/S: CACR 15 of 2007
BETWEEN: HUUBERT REYNDERS
Appellant
AND
KOLINA SUE BRENNAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
Citation :REYNDERS -v- BRENNAN [2007] WASC 28
File No :SJA 1113 of 2006
Catchwords:
Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 5
Criminal Appeals Act 2004 (WA), pt 2
Result:
Application for bail granted
Applications otherwise dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr C Williams
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Reynders v Brennan [2007] WASC 28
WHEELER JA: These applications arise out of an application for leave to appeal from a decision which Hasluck J made on 8 February 2007 dismissing the appellant's appeal from a decision of a magistrate (Reynders v Brennan [2007] WASC 28). His Honour held that none of the grounds of proposed appeal had a reasonable prospect of success. His Honour also refused the appellant's application for bail pending appeal.
The trial in the Magistrates Court
Before I turn to the current applications, it is desirable to set out briefly the background. On 25 October 2006, the appellant was convicted after trial on a complaint alleging that, on 21 June 2006 at Shoalwater, he unlawfully assaulted one David Graham Hughes and thereby did him bodily harm. The facts were very simple. The prosecution case at the hearing consisted of the evidence of Mr Hughes and of two police officers. Mr Hughes gave evidence to the effect that he was walking in a park in the early evening in June. It was just dark. He heard the appellant speaking loudly and unpleasantly. He raised his hand in order to attract the appellant's attention and briefly remonstrated with him. After he and the appellant had stood looking at each other for a moment, he turned to leave, and the appellant assaulted him, commencing with a king‑hit from behind and continuing the assault while Mr Hughes was lying upon the ground. Mr Hughes suffered serious injuries, including injuries to the side of his face and to his eye. Photographs of those injuries were produced to the magistrate.
So far as the police officers were concerned, they gave evidence that, shortly after a complaint had been made to them about the assault, they went to the park in question and their attention was attracted by the appellant, who was yelling and waving his arms about. Although much of what he said was not intelligible, they made out the word 'fuck' and an expression something like, 'God is going to get you'. Their account of the appellant's demeanour was consistent with the complainant's account.
The appellant's evidence was to the effect that he was in the park at the relevant time and a man approached him aggressively, yelling out something like, 'God is coming to get you right now'. That person approached him in a way which he perceived as threatening, and so the appellant took off his jacket. When the man had approached to about a metre and a half to two metres away, the man raised his left foot in what the appellant described as a 'round‑house kick' and at the same time punched towards the appellant with his right fist.
The appellant then essentially described an incident in which he was defending himself against the man who had attacked him. As the magistrate pointed out, there was some variation in that account during the course of the appellant's evidence, he saying that he had hit and punched the man in the head 'about eight to a dozen times' during his evidence‑in‑chief, but during his cross‑examination asserting that it was six times. The appellant said that the injuries he sustained were swollen knuckles, and a minor injury to his thorax where the man had grabbed him by the throat. Although it is not entirely clear what he was saying about the issue, it appears that the appellant conceded in cross‑examination that he may have said words to the effect of the words heard by the police officers, but asserted that he was doing so in "retaliation".
Importantly, it was also his evidence that the person who had given evidence in court - Mr Hughes - did not resemble the person whom he recalled as having attacked him in the park. While, again, it is not entirely clear, there seems to be some suggestion that Mr Hughes was not the person involved in the incident with the appellant at all.
The learned magistrate's reasons contain the following points:
•the photographic evidence clearly demonstrated that Mr Hughes had suffered severe injuries;
•the appellant had changed his evidence during the course of the hearing about the number of times that he had hit Mr Hughes;
•the only injuries suffered by the appellant were swollen knuckles and a slight problem to the throat;
•the magistrate found Mr Hughes to be 'a most convincing witness';
•the appellant's assertions that a person 'of the stature of Mr Hughes' could carry out the actions described by the appellant was, in the magistrate's view, 'beyond belief'.
In his extempore reasons, the learned magistrate rejected the account of events given by the appellant as 'fanciful' and was satisfied beyond reasonable doubt that the appellant's actions amounted to a totally unprovoked and unjustified attack. He went on to conclude beyond reasonable doubt that, even if the appellant had an honest belief (which his Honour did not accept) that it was necessary for him to defend himself, that belief was totally unreasonable. He further was satisfied that, even if he held such a belief, the action taken by him was totally unnecessary.
The findings made by his Honour the learned magistrate plainly depended significantly upon the advantage which he had in viewing the witnesses. Not only did his Honour have the advantage of seeing the demeanour of the witnesses in order to determine the question of credibility, but it also appears that there was something about Mr Hughes' 'stature' or physical appearance which his Honour regarded as relevant. Having regard to the evidence which I have outlined, the factors to which his Honour referred were relevant and the findings which he made were plainly open to him and appear to have proceeded from what was, with respect, entirely logical reasoning.
Hasluck J's decision
Hasluck J, in the reasons to which I have referred, briefly set out the relevant factual background, and accurately summarised the legal principles relating to questions of leave to appeal, relating to the adequacy of reasons required to be given by a decision‑maker such as a magistrate, relating to the way in which conflicts in the evidence must be resolved, and relating to the circumstances in which an appellate court will interfere with findings of fact which are to any significant extent based upon the credibility of witnesses. Applying those principles, his Honour reached the conclusion that this was a case in which the magistrate was clearly conscious of the burden of proof upon the prosecution, and in which the magistrate clearly preferred the credibility and therefore the evidence of the principal prosecution witness, and gave persuasive reasons for doing so. Hasluck J briefly reviewed the magistrate's reasons and concluded (at [49]) that the magistrate was entitled to prefer the evidence of the principal prosecution witness, for the reasons given by him. His Honour concluded that it was open to the magistrate to find, as he did, beyond reasonable doubt, that the appellant was the assailant and used considerable force. It followed from that that the elements of the offence had been made out and the plea of self‑defence negatived or rebutted. It was for that reason that Hasluck J concluded that the appeal had no reasonable prospect of success.
The appellant's grounds; the hearing of the leave application
In attempting to demonstrate some error in Hasluck J's decision, the appellant has produced 19 proposed grounds of appeal. They are in substitution for much lengthier and more detailed grounds of appeal. They were produced because Miller J, on 10 May 2007, ordered the appellant to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). Even as significantly abbreviated in that way, the grounds of appeal are prolix. Many are also vexatious in the legal sense. Some of them cannot be understood at all.
When I first reviewed the grounds of appeal therefore, I proposed to refuse leave in relation to all of them and to dismiss the appeal on the basis that none of the proposed grounds had any prospect of success. In order to afford the appellant natural justice, the matter was listed for hearing and the appellant attended by video link.
In order to understand the course which the hearing then took, it is necessary to mention briefly some of the grounds of appeal, to the extent that they can be understood. Grounds 3, 4, 6, 7, 9, 10, 12, 13, 18 and 19 all appear to raise, one way or another, a single issue. That issue is whether or not Hasluck J erred in saying in his reasons for decision that the photographs adduced in evidence in the court below, which his Honour had inspected, established that the victim of the assault suffered a severe injury to the left eye. The submissions in support of these grounds assert that the injury shown is an injury to the right eye. It also appears to be asserted that the injury was not 'severe'.
In preparation for the hearing on 7 June 2007 of the application for leave to appeal, I had inspected the photographs produced from the Magistrates Court to this court, which bore markings identifying them as exhibits tendered in the trial of the appellant. Those photographs plainly showed a severe injury to the left eye of the person depicted in them. The injury depicted is on the right side of the photograph as one looks at it, that being, of course, the left side of the person depicted in the photograph.
It appeared that the appellant must have made some simple error in relation to the photographs. It was not clear to me how such an error could have occurred, and so I showed the appellant a selection of the photographs. It was, of course, not easy for the appellant to see them without the assistance of a document camera, but he asserted that he was, over the video link, able to see them reasonably well.
It was then the appellant's assertion that the photographs which I showed him depicted a person he had never seen in his life. It was his assertion therefore that the person depicted in the photographs was not the person who had given evidence before the magistrate as the victim of the assault. It followed from his assertion that he had never seen the person depicted in the photographs before, that the person could not have been the person whom he admittedly assaulted on 21 June 2006 at Shoalwater. That allegation raised an issue of fact, which it was necessary to deal with on notice to the respondent. I therefore adjourned the matter so that the respondent could be advised. I also directed that inquiries be made at the Magistrates Court concerning the management of exhibits.
I have received from the Rockingham court, a letter from the clerk the of court, describing the system for dealing with exhibits. It says that exhibits are handed to the judicial support officer, who stamps them and records the exhibit number on the exhibit, that an exhibit receipt is prepared by the judicial support officer, and that the exhibits are entered into an exhibit register, which records the date, description of the exhibit and date of disposal or return. The clerk of the court says that he or she has reviewed the appropriate exhibit receipts and the register, and can confirm that the exhibits tendered in this case were handled in accordance with the procedure outlined.
An affidavit of Constable Brennan, who attended at Shoalwater and spoke to the complainant on 21 June and who took digital photographs of the complainant, annexes a series of photographs and deposes that they are photographs which she took of the complainant. Although the quality of the photocopy is not good, the photographs annexed to the affidavit appear to be identical with the photographs which are marked as exhibits from the Magistrates Court.
There is also now filed in this matter an affidavit of the appellant, deposing that the photographs which I showed him on 7 June are not the photographs which were adduced as evidence at his trial, and describing the photographs which he alleges were adduced as evidence.
That is a dispute of fact which should not be resolved on affidavit evidence only. I have therefore referred the appellant's application for leave to be heard together with the appeal by the Court of Appeal. It is necessary, however, to deal with some interlocutory applications in this matter.
The appellant's evidentiary applications
By an application filed 18 June 2007, the appellant seeks an order that he be subjected to a supervised polygraph test. It appears to me at present that there is no basis for that application. That is, there is no material before me which would suggest that a polygraph test conducted upon the appellant would assist the Court of Appeal in resolving the issue which arises concerning the photographs. However, I have referred the application to the Court of Appeal hearing the application for leave and the appeal, which can then deal with that application in the light of whatever evidence and whatever submissions may be adduced before it.
There is also an application filed 17 August, seeking a number of other orders. Proposed orders 1 to 5 concern an application that the person named as the victim of the assault be required to appear and provide a sample of his voice for audio recording, and for that audio recording to be the subject of a forensic comparison with the audiotapes of the trial of the appellant. I would refuse those applications. The State advises that it is proposed to adduce, on the appeal, evidence from Constable Brennan and from the proper officer of the Magistrates Court concerning the taking of the photographs, and custody of the exhibits, respectively. Those persons will be available for cross‑examination by the appellant, who will also be able to give evidence if he wishes to maintain the assertion that the photographs do not depict the person the subject of the assault by him. For reasons which I will shortly discuss, it appears to me that the appellant's allegation concerning the photographs is far‑fetched, fanciful, and unlikely to be accepted. It does not seem to me at present that the interests of justice require that the complainant in this matter be subjected to any further inconvenience or distress by being required to attend court.
Applications 6 and 7 seek orders for the production of security recordings of the Rockingham Magistrates Court on the day of the appellant's trial. The short answer in relation to those applications is that, as I understand it, those recordings have since been destroyed. Applications 8 and 9 relate to the production to the appellant of a videotape of the record of interview between himself and the investigating officers. The DPP copy of that interview has been provided to the appellant by the court. Application 10 seeks an order that that record of interview be subjected to computerised analysis. The appellant will, of course, be able to make such arrangements in relation to his copy of the interview as he sees fit.
Applications 11 to 14 inclusive seek that audio recordings of the appellant's trial and of various of his appearances in this court be subjected to analysis and checking against the transcript of each of the various proceedings of which they are a record. So far as the audio record of the appellant's trial is concerned, there is at present nothing in the appellant's grounds which appears to me to suggest that there is any material inaccuracy in that transcript which would require it to be checked. So far as the other applications in this court are concerned, not only is there not any material suggesting any relevant inaccuracy, but it is also difficult to see how the transcripts of those occasions could, in any event, be relevant to the issues in the appellant's appeal.
Finally, I would note that to the extent that it is asserted by the appellant that his recollection of what occurred on each of the various occasions in the Magistrates Court and in this court is not consistent with the transcript, there is reason to believe that it may be the appellant's memory which is at fault. Shortly after the most recent directions hearing before me on 24 August, a person describing herself as the appellant's mother contacted my associate and advised my associate that the appellant was concerned that there were inaccuracies in the transcript of that appearance. Those inaccuracies were said to take the form of both omissions of things which had been said by me and by the appellant, and the addition of material which had not, in fact, been said. On 10 September, the court received a letter from the appellant, to broadly that effect. I have reviewed the transcript of that occasion, and it accords with my memory of the hearing. I am unable to discern any material omission. There are occasions upon which it appears that what was said either by me or by the appellant was indistinct. As I explained to the appellant during the course of that hearing, there was some static through the microphone which, on occasion, made it difficult to hear, and which, no doubt, made it difficult for the transcribers. I am not able to see any addition of material which did not occur.
For the reasons given above, I would dismiss the applications made in the document filed on 17 August.
The application for bail
Although there does not appear to be any formal application for bail now before the court, Justice Hasluck having dismissed the application which was made in connection with the application for leave before him, on 24 May 2007, Justice Miller ordered that the appellant's application for bail be referred to the judge hearing the application for leave to appeal. The respondent did not take issue with the want of formality, in the sense of the absence of any formal application or affidavit in support.
The State quite properly pointed out that it appears from sch 1 pt C cl 5 of the Bail Act1982 (WA) that a person in the position of the appellant, who has instituted an appeal against his conviction pursuant to pt 2 of the Criminal Appeals Act 2004 (WA), is to be treated as a person unconvicted and awaiting an appearance in court, rather than as a person who has been convicted. The presumptions against bail after conviction, and the restrictive approach taken to the granting of bail pending appeal, therefore do not apply to the appellant. This is, in some ways, a curious result, in a case of an appeal such as that brought by this appellant. As I have noted, his application for leave has already been dismissed by one judge of this court on the basis that it has no reasonable prospect of success. Subject to the resolution of the question concerning the photographs, it would be my view that his present appeal from that decision also has no prospect of success.
To the extent that the appellant's grounds of appeal assert that the photographs produced from the court below are not the photographs adduced at his trial, that is, as I have noted, a somewhat implausible assertion. It is implausible in the light of the letter from the clerk of the court and the affidavit from Constable Brennan (although those are, of course, presently untested). Its implausibility is heightened when it is recalled that the appellant appeared to assert at the trial before the magistrate that the person there giving evidence was not the person whom he admitted to having assaulted. That is, on the appellant's account, he did admittedly assault a person at Shoalwater, but, at his trial, a different person for some unknown reason appeared and gave evidence on oath that that person had been assaulted by the appellant. Photographs were tendered, presumably of the person who gave evidence, but there was at some time and in some inexplicable way substituted for them photographs of yet a third person, who also was a person previously unknown to the appellant. This is a remarkable and unlikely series of events. And, as I have noted, the appellant does, in any event, admit to having assaulted a person at Shoalwater, although, he says, in circumstances involving either self‑defence or provocation. Nevertheless, he is to be treated as an unconvicted person.
The State opposes the grant of bail on a variety of bases. It is suggested that the appellant's record, which includes convictions in other States, and apparently outstanding warrants from other States, does not engender confidence that he will answer to his bail. However, he has, it is conceded, always answered to his bail previously in relation to this offence. A strict reporting condition could further reduce the risk that he might not answer to his bail.
It is suggested by the respondent that, having regard to his record, he may commit further offences. However, his record is not so serious, and his offending is not so frequent, as to suggest that there is such a substantial risk of offending that bail should be refused.
It is submitted that there is reason to suppose that the appellant may suffer from some psychological or psychiatric disorder. That submission appears to be reasonably well‑founded, even if regard is had only to the appellant's submissions made before me. However, it does not follow, even if the appellant does suffer such a disorder, that he is therefore either unlikely to answer to his bail or to commit further offences, or to interfere with witnesses, or that he requires to be kept in custody for his own protection. Many people in the community who appear to have psychological disorders of one kind or another are, nevertheless, able to organise their lives on a day‑to‑day basis, and, relevantly for present purposes, answer to their bail and refrain from offending.
In my view, therefore, the appellant's application for bail must be allowed, and the appellant granted bail, albeit subject to conditions. Those conditions would be a $5,000 personal undertaking and a $5,000 surety, the surety to be approved by a Justice of the Peace, a condition that the appellant reside at Unit 2, 2 Irene Street, Northbridge, and that he report daily, between the hours of 9 am and 4 pm to the officer‑in‑charge at the Perth Police Station, 60 Beaufort Street.