Reynders v Brennan
[2007] WASC 28
•8 FEBRUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: REYNDERS -v- BRENNAN [2007] WASC 28
CORAM: HASLUCK J
HEARD: 30 JANUARY & 8 FEBRUARY 2007
DELIVERED : 8 FEBRUARY 2007
FILE NO/S: SJA 1113 of 2006
BETWEEN: HUUBERT REYNDERS
Applicant
AND
KOLINA SUE BRENNAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :PE 35483 of 2006
Catchwords:
Criminal law - Appeal - Magistrates' Court - Assault - Evidence and matters relating to proof - Whether assault unlawful - Plea of self-defence negatived by evidence to required standard of proof - Conflict in evidence - Assessment of credibility of witnesses - Findings not inconsistent with established facts - Leave to appeal refused - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 222, s 223, s 248, s 249, s 317(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Ms T M Weston
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Harling v Hall (1997) 94 A Crim R 437
Liberato v The Queen (1985) 159 CLR 507
Pickett v The State of Western Australia [2004] WASCA 291
Samuels v The State [2005] WASCA 193
Skerritt v O'Keefe [1999] WASCA 183
HASLUCK J:
Application for leave to appeal
The applicant, Huubert Reynders, seeks leave to appeal against a conviction after trial in the Rockingham Magistrates' Court.
The question raised by the proposed appeal is whether the learned Magistrate erred in his assessment of certain matters of fact and law, whether he applied the rules concerning burden of proof correctly, and whether he gave sufficient weight to the evidence underlying the defence case.
The application for leave is opposed by the respondent who is represented by counsel instructed by the State of Western Australia.
The application for leave to appeal was brought on as a matter of urgency on 30 January 2007 having regard to the fact that the term of imprisonment imposed pursuant to the conviction appealed against might be served before the appeal was disposed of. It seems that for this reason also the application for leave was accompanied by an application for bail pending appeal.
I will turn to the details of the sentence and the term of imprisonment imposed shortly. However, I note in passing that at the initial hearing on 30 January 2007 it became apparent that the applicant had not been provided with submissions made by the respondent opposing the application for leave and the application for bail. Further, it was apparent that the exhibits tendered during the course of the hearing before the Magistrate, including a video record of interview, were not available and had to be obtained.
For these reasons, the applicant agreed that the matter should be adjourned so that he could be provided with the respondent's submissions and so that the exhibits in question could be obtained from the respondent. The matter was then adjourned to a further hearing to be held on Thursday, 8 February 2007. In the course of the relevant exchanges about these matters I exercised the power allowed to me by s 9 of the Criminal Appeals Act 2004 (WA) to direct that the parties should attend the further hearing ready to argue all aspects of the matter, including leave to appeal and the merits of the appeal itself, so that any judgment handed down after the hearing could address all matters in issue. I will deal with the application for bail separately.
The hearing
The applicant was charged that on 21 June 2006 at Shoalwater he unlawfully assaulted David Graham Hughes and thereby did him bodily harm. The charge arises under s 317 of the Criminal Code.
The matter was brought on for hearing before Magistrate Lawrence at Rockingham on 25 October 2006. The applicant entered a plea of not guilty to the charge but was not represented by counsel.
The prosecution case at the hearing was supported by the evidence of the complainant, Mr Hughes. The complainant gave evidence to the effect that he was walking his dog in a park in the early evening and heard the applicant speaking loudly and unpleasantly. He remonstrated with the applicant and this led to an altercation in which the applicant assaulted the complainant. According to the complainant, he suffered serious injuries including injuries to the left side of his face and his left eye.
I pause here to note that s 317(1) of the Criminal Code provides that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable upon summary conviction to prescribed penalties including imprisonment.
I note in passing that by s 222 of the Criminal Code a person who strikes, touches or moves or otherwise applies force of any kind to a person of another, either directly or indirectly, without his consent is said to assault that other person. The term "bodily harm" is defined by s 1 of the Criminal Code to mean any bodily injury which interferes with health or comfort.
The prosecution case was supported by the evidence of certain police officers who arrived at the scene shortly after the altercation and observed the complainant's injuries. They also saw the applicant at the scene and heard him saying loudly: "God is coming to get you", these being the words the applicant alleged the complainant had been saying shortly before the incident. The evidence of the police officers tended to corroborate the complainant's account of what occurred.
The applicant gave evidence at the hearing to the effect that on the day in question a man approached him aggressively and the applicant was then obliged to defend himself. The evidence of the police officers weighed against his account. This raised a question as to whether there was any evidence in support of the applicant's account of what occurred.
The applicant contended also that the complainant who gave evidence in Court was not the male person present at the park on the night in question.
At the conclusion of the hearing the learned Magistrate provided reasons for decision. He began by referring to the nature of the charge and the burden upon the prosecution to satisfy him beyond reasonable doubt of each element of the subject offence.
It is apparent from the reasons for decision that the Magistrate, having regard to the rules concerning burden of proof, felt obliged to resolve a conflict between the two contrasting accounts of what occurred. He made findings as to credibility which favoured the account provided by the complainant and characterised the complainant as a convincing witness. This finding as to credibility was said to be supported by the evidence of the two police officers called by the prosecution.
The learned Magistrate was satisfied beyond reasonable doubt that the prosecution evidence was sufficient to negative or rule out the plea of self‑defence raised by the applicant.
His Honour held further that, in any event, the force used by the applicant was excessive, with the result that the plea of self‑defence was not sufficient to exclude liability in the circumstances of the present case.
The outcome of the hearing
On 25 October 2006 the applicant was convicted after trial of one count of assault occasioning bodily harm contrary to s 317 of the Criminal Code.
On or about 27 October 2006 the applicant was sentenced to an immediate term of imprisonment of 13 months backdated to commence on 24 October 2006. The applicant was granted eligibility for parole.
Subsequent events
By an appeal notice dated 19 November 2006 the applicant applied to the Supreme Court for leave to appeal against the conviction. The grounds of appeal are set out in the appeal notice in a summary form. In essence, it is said that the Magistrate erred in his assessment of matters of fact and law.
The application for relief includes an application for bail pending appeal. The application for leave to appeal is supported by the affidavit of the applicant sworn 21 November 2006 and the transcript of the hearing and related exhibits. I have also had access to a transcript of the applicant's video interview with the police after the incident and have viewed the video. Photos adduced in evidence were before me and established that the complainant suffered a severe injury to the left eye and forehead. This was consistent with his account of being struck by the applicant.
Legal principles
I will look at the grounds of appeal in more detail later. In the meantime, it will be useful to begin by noting that appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA).
The present application was brought under the Criminal Appeals Act. Section 9 of the Act provides that leave of the Supreme Court is required for each ground of appeal. By s 9(2) after an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
In Samuels v The State [2005] WASCA 193 it was said that ([55] ‑ [61]) leave to appeal must not be granted unless the Court is satisfied that a ground has a real prospect of success, bearing in mind that the purpose of the provisions is to weed out unmeritorious appeals.
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.
The question of whether each ground has a real prospect of success requires that some consideration be given to additional provisions and principles.
By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
However, in the case of a busy court it is not always practicable or necessary for a full or detailed statements of reason to be given in every case. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion: Skerritt v O'Keefe [1999] WASCA 183 at 146.
A failure by a decision‑maker to mention a matter expressly does not reasonably give rise to an inference that it was not considered. It is to be assumed that the decision‑maker has taken all relevant matters into account: Pickett v The State of Western Australia [2004] WASCA 291 at [10].
Where there is a conflict in the evidence, if the tribunal of fact prefers the evidence for the prosecution, it must not convict an accused unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
The question on appeal will often be not whether the Court would have formed a different view, but whether the Magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
I referred to the elements of the offence dealt with by s 317 and the nature of an assault in earlier discussion. I note also that s 317 of the Code requires that the assault complained of be unlawful. Section 223 of the Code provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
This is followed by certain provisions concerning self‑defence which define circumstances in which it will be lawful to use force against another.
It is clearly these provisions that the learned Magistrate had in mind in assessing the line of defence being relied upon by the applicant in the subject proceedings.
By s 248 the general principle is that the accused person may use such force as is reasonably necessary to make effectual defence against an assault. An objective test is to be applied as to whether the force used was reasonable.
Section 249 concerns the situation in which the accused person has initiated the conflict by provoking an assault. It emerges that he may still rely on self‑defence where there is a prospect of death or bodily harm or that is apprehended.
It was with these provisions in mind that the learned Magistrate addressed the issues before him.
The present case
Against this background, let me now make some general observations about the present case that will be of use in determining whether leave to appeal should be granted in respect of each of the grounds of appeal upon the basis that the ground in question has a real prospect of success.
First, this was a case in which the Magistrate was clearly conscious of the burden upon the prosecution to prove its case and to negate any defence relied on beyond reasonable doubt. He enunciated that rule and purported to apply it.
Second, the Magistrate clearly preferred the credibility and thus the evidence of the principal prosecution witness and gave persuasive reasons for doing so. It follows from the decided cases that in these circumstances an Appeal Court will be slow to interfere with the Magistrate's findings of fact.
These general observations bring me to the specific grounds of appeal and a number of issues raised at the hearing before me.
The Magistrate's reasons for decision show that he looked at the evidence presented by the prosecution carefully. In my view, it cannot be said that he misused the advantage he had of seeing the witnesses or made any findings that were inconsistent with facts clearly established by the evidence taken as a whole.
I pause here to note that at the hearing the applicant did not, by cross‑examination, challenge the evidence of the police officers. This evidence supported the complainant's account and served to corroborate and establish that, contrary to the applicant's assertions at trial, and on appeal, that the complainant, David Hughes, who gave evidence at the trial was the man who was injured after his encounter with the applicant in the park on the day in question.
In the course of the hearing before me the applicant referred to evidence he gave that the complainant aimed a kick at him from 1½ metres to 2 metres away. In his reasons for decision the Magistrate summarised this evidence, and spoke of a kick at approximately 2 to 3 metres. I put the emphasis here upon the word "approximately". I do not consider that any perceived discrepancy in the Magistrate's reasons led to error because this evidence was concerned with whether the applicant was threatened with assault and was obliged to defend himself. The applicant accepts that the alleged kick did not connect, irrespective of the distance at which the kick was allegedly thrown.
I am of the view that the Magistrate was entitled to prefer the credibility and evidence of the principal prosecution witness for the reasons given by him. The Magistrate cannot be said to have erred in his assessment of the evidence. I do not consider that the applicant has a real prospect of success on appeal in respect of that ground. Put shortly, having preferred the credibility and the account given by the prosecution witnesses it was open to the Magistrate to find, and he did find beyond reasonable doubt, that the applicant was the assailant and used considerable force as evidenced by the severity of the complainant's injuries. It followed from this that the elements of the offence had been made out and the plea of self‑defence negatived or rebutted to the required standard of proof. The Magistrate specifically held that in any event the force used was unreasonable and excessive and this too was sufficient to rebut the plea of self‑defence.
It follows from the conclusion I have arrived at I am not prepared to grant leave to appeal because the grounds relied upon do not have a real prospect of success. The appeal will be dismissed. The appeal having been disposed of means that the application for bail pending appeal must be refused. As the applicant is unrepresented, he is advised that he has a right of appeal against this ruling, but it is a right which must be exercised within 21 days by a written application in the manner prescribed by s 17 of the Criminal Appeals Act.
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