Reynders v Brennan [No 2]

[2008] WASCA 62

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   REYNDERS -v- BRENNAN [No 2] [2008] WASCA 62

CORAM:   MARTIN CJ

WHEELER JA
MILLER JA

HEARD:   12 MARCH 2008

DELIVERED          :   12 MARCH 2008

PUBLISHED           :  19 MARCH 2008

FILE NO/S:   CACR 15 of 2007

BETWEEN:   HUUBERT REYNDERS

Applicant

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:

Appeal - Application for leave to appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 222, s 249, s 317
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application for leave to appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr J Mactaggart

Solicitors:

Applicant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Liberato v The Queen (1985) 159 CLR 507

Reynders v Brennan [2007] WASC 28

Reynders v Brennan [2007] WASCA 188

1. JUDGMENT OF THE COURT:  At the conclusion of the hearing of this appeal, the Court announced that the application for leave to appeal would be dismissed for reasons to be published in due course.  These are those reasons.

2. The applicant, Mr Reynders, was convicted in the Rockingham Magistrates Court of unlawfully assaulting David Graham Hughes on 21 June 2006 at Shoalwater, thereby causing him bodily harm, in contravention of s 317 of the Criminal Code (WA).

3. Following his conviction, Mr Reynders sought leave to appeal.  His application for leave was heard by Hasluck J on 30 January and 8 February 2007.  On the latter occasion, Hasluck J dismissed the application and refused leave to appeal because the grounds of appeal which had been identified by Mr Reynders did not have any prospect of success.

4. Mr Reynders applied for leave to appeal from that decision.  In support of that application, Mr Reynders prepared a large number of lengthy and detailed grounds of appeal.  On 10 May 2007, Miller AJA ordered that Mr Reynders comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). Following that order, Mr Reynders produced 19 proposed grounds of appeal. He also applied for a number of orders relating to the evidence to be adduced in support of his application for leave to appeal. His application for those orders was considered by Wheeler JA, and refused in accordance with reasons delivered on 14 September 2007 (Reynders v Brennan [2007] WASCA 188). In that decision, Wheeler JA has recounted the history of the proceedings in the Magistrates Court, the decision of Hasluck J and has described the issue which arose in the course of the hearing before her in respect of the authenticity of the photographs of Mr Hughes which were tendered in evidence in the Magistrates Court. Reference can be made to [2] ‑ [19] of her Honour's reasons, which set out the context for the most recent hearing, and which need not be replicated here.

The photographs

1. Mr Reynders has deposed that the photographs that he was shown in the hearing before Wheeler JA are not the photographs which were adduced in evidence at his trial, and that the photographs which were adduced as evidence in the course of his trial showed only an injury in the form of an 'elongated scratch above the right eye of the male person [depicted] in those photographs', together with 'small slight bruising under the right eye' of that person.

2. Upon the resumed hearing of the application for leave to appeal, Mr Reynders was asked whether he wished to adduce further evidence on this issue.  He declined the invitation.  The State then adduced evidence from the police officer in charge of the investigation, and two clerical officers who served at the Rockingham Magistrates Court on the day of Mr Reynders' trial.  Mr Reynders cross‑examined those witnesses.  The police officer in charge of the investigation testified that he had caused to be taken the photographs which had previously been shown to Mr Reynders in the course of the hearing before Wheeler JA, and which were produced before us.  He testified that the photographs depicted the face of the victim whose assault he had investigated, and who is Mr David Graham Hughes.  He further testified that he was in court when Mr Hughes gave evidence and was cross‑examined by Mr Reynders.  His evidence was that the person who gave evidence was the person depicted in the photographs.  The two court officers who gave evidence identified the photographs which were produced in the hearing before us as the photographs which were tendered in evidence in the Magistrates Court during the course of Mr Reynders' trial.

3. In the light of that evidence, we are satisfied beyond any doubt that the photographs which were shown to Mr Reynders during the course of the hearing before Wheeler JA, and which were produced again to us, are the photographs which were tendered in evidence during the course of Mr Reynders' trial, and depict the face of David Graham Hughes, who is the person Mr Reynders was convicted of assaulting.

4. We turn now to the proposed grounds of appeal.  The previous description of those grounds as prolix, vexatious in the legal sense, incomprehensible and plainly erroneous remains accurate.  They can be dealt with briefly.

Ground 1

1. This ground suggests that Hasluck J erred when, during the course of his reasons he said, 'I will turn to the details of the sentence and the term of imprisonment shortly' ([5]).  It is submitted that the sentence and terms of imprisonment were irrelevant to the appeal, which was an appeal against conviction.  They did not form part of his Honour's reasons for dismissing the appeal.  Those references were merely part of the background to the applicant's appeal.  They would have been relevant to the application for bail, had the appeal not been dismissed.  There is nothing in this ground.

Ground 2

1. This asserts that Hasluck J erred in referring to s 222 of the Criminal Code (WA) (see Reynders v Brennan [2007] WASC 28 at [11]), which defines an assault. It is submitted that that is because the applicant was charged pursuant to s 317 of the Code and that therefore only that section is relevant. However, s 317 deals with assault, and therefore must be read together with the definition of 'assault'. Again, there is nothing in this ground.

Ground 3

1. This asserts that Hasluck J was in error in accepting that the photographs taken of the complainant tended to corroborate the complainant's account.  The photographs, which showed injuries to the complainant's face, clearly did tend to corroborate his account of the nature of the attack upon him.  His evidence was that they were photographs of his face, showing his injuries, taken while he was in hospital.  That does not seem to have been challenged.  This ground has no substance.

Ground 4

1. This asserts that Hasluck J erred in saying in his reasons that photographs adduced in evidence, which his Honour had inspected, established that the complainant suffered a severe injury to the left eye.  The submissions assert that that injury is shown to the right eye.  The photographs plainly show a severe injury to the left eye.  This ground must fail having regard to the findings we have made in respect of the photographs. 

Ground 5

1. This ground complains of Hasluck J having noted (in [28]) that s 14 of the Criminal Appeals Act 2004 (WA) permits the Court to dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, notwithstanding that a ground of appeal has been decided in favour of an applicant. This is what s 14 says. In any event, Hasluck J did not purport to dismiss the appeal on the basis that no substantial miscarriage of justice had occurred. On the contrary, his Honour correctly noted (in [26]) that that was not an issue to be addressed at the stage of an application for leave to appeal.

Grounds 6 and 7

1. So far as can be deduced from the submissions, these grounds raise the same issue as ground 4.

Ground 8

1. This ground relies upon Liberato v The Queen (1985) 159 CLR 507. However, Hasluck J correctly set out and applied the law at [33] of his reasons. It is plain from the Magistrate's reasons in the present case that he did not determine the matter simply by deciding whether he had a preference for the evidence of the complainant or the applicant.

Grounds 9 and 10

1. These grounds assert that the conclusions reached by the Magistrate were 'glaringly improbable'.  There is no support for that bare assertion, save for another reference to the issue raised in ground 4.

Ground 11

1. This ground complains of the reference by the learned Magistrate to s 249 of the Criminal Code, which is concerned with self‑defence against a provoked assault.  The applicant's contention appears to be that this is inapplicable since the applicant did not 'initiate the conflict'.  The Magistrate's finding was to the contrary and was a finding clearly open to him.

Ground 12

1. This ground asserts that Hasluck J was in error in saying that the Magistrate was clearly conscious of the burden of proof upon the prosecution.  The only support for this assertion appears to be the issue raised by ground 4.

Ground 13

1. This appears to be no more than a restatement of a number of the earlier grounds.

Ground 14

1. This ground asserts that Hasluck J 'committed errors, in both fact, and law' in stating, as his Honour did in [45], 'These general observations bring me to the specific grounds of appeal and a number of issues raised at the hearing before me'.  How this purely introductory observation could constitute an error of either fact or law is a mystery.  The resolution of that mystery is not assisted by the applicant's submissions.  Those submissions appear to restate a variety of other matters raised in relation to the earlier grounds, with the additional assertion that the applicant's evidence at trial was truthful.  It was for the Magistrate to assess whether the applicant's evidence at trial was truthful.  The Magistrate rejected that evidence for good reason.  There is nothing in this ground.

Ground 15

1. This ground asserts that it is 'obvious' that the learned Magistrate did not look at the evidence presented by the prosecution carefully.  That is supported by bare assertions about the truthfulness of the applicant and the untruthfulness of the complainant which, for reasons already given, cannot be sustained.

Ground 16

1. This ground appears to assert that the Mr Hughes who gave evidence at trial was not the person who was injured after his encounter with the applicant in the park.  No intelligible reason is given for this assertion.   The magistrate considered, and rejected, an assertion to like effect made at trial.  No reason for disturbing that finding has been suggested.

Ground 17

1. This ground is concerned with an issue explored by Hasluck J in  [48] of his reasons.  It appears that the applicant's evidence at trial was that the complainant aimed a kick at him from one and a half to two metres away, while in his reasons for decision the Magistrate summarised the evidence by referring to a kick at approximately two to three metres.  It is not possible to deduce from the applicant's submissions why this minor discrepancy in referring to what was, in any event, only an approximate measurement can have any significance.  It was appropriately dealt with by Hasluck J.

Grounds 18 and 19

1. These grounds appear to be to similar effect.  In reliance upon the issue raised by ground 4, they attack Hasluck J's conclusion that the learned Magistrate was entitled to prefer the evidence of the principal prosecution witness, and that the grounds of appeal did not have a real prospect of success.  Because of our view of the issue raised by ground 4, these grounds are doomed to fail.

2. To the extent that the applicant's submissions challenge Hasluck J's conclusions of law, the applicant is in error.  To the extent that they challenge Hasluck J's conclusions that the findings of the learned Magistrate were open to him, the applicant's grounds consist either of bare assertions to the effect that the applicant's version of events should be preferred, or erroneous assertions that the photographs of Mr Hughes' injuries show an injury to the right rather than to the left eye.  None of the grounds has any prospect of success whatever.  For these reasons, at the conclusion of the hearing, the application for leave to appeal was dismissed.