Roberts v Rhodes
[2014] ACTCA 20
•20 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Roberts v Rhodes |
Citation: | [2014] ACTCA 20 |
Hearing Date(s): | 12 May 2014 |
DecisionDate: | 20 June 2014 |
Before: | Murrell CJ, Burns, Ross JJ |
Decision: | Appeal dismissed |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Nature of appeal from magistrate to Supreme Court – Whether error of law or fact must be established APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Meaning of “unsafe and unsatisfactory” verdict – Whether appeal judge erred in finding factual error – Whether appeal judge erred in finding legal error rendered verdict unsafe and unsatisfactory – Whether appeal judge incorrectly applied “reasonable hypothesis consistent with innocence” test |
Legislation Cited: | Federal Court of Australia Act 1976 (Cth) pt 2A, s 21 Crimes Act 1900 (ACT) s 21 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Allesch v Maunz (2000) 203 CLR 172 Fox v Percy (2003) 214 CLR 118 R v Hillier (2007) 228 CLR 618 |
Parties: | Glyn Evan Roberts (Appellant) Benjamin Rhodes (Respondent) |
Representation: | Counsel: Ms M Jones (Appellant) Mr S Gills (Respondent) |
| Solicitors: ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (ACT/NSW) (Respondent) | |
File Number(s): | ACTCA 52 of 2013 SCA 40 of 2012 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Higgins CJ Date of Decision: 29 July 2013 Case Title: Roberts v Rhodes Citation: [2013] ACTSC 145 |
THE COURT
On 1 May 2012 a magistrate found Mr Rhodes guilty of intentionally wounding Mr Webber on 11 August 2011, contrary to s 21 of the Crimes Act 1900 (ACT).
Mr Rhodes appealed to a single judge of this Court (the appeal judge), arguing that, upon the whole of the evidence, the verdict was “unsafe and unsatisfactory”, in part because the magistrate erred in the manner in which he dismissed the evidence of the witness Ms Williams on the basis that it lacked credibility. Ms Williams was Mr Rhodes’ partner. She had been called by the prosecution but she gave evidence favouring Mr Rhodes.
On 29 July 2013, the appeal judge upheld the appeal and substituted an acquittal: Rhodes v Roberts [2013] ACTSC 145.
The appellant appeals from that decision, claiming that the appeal judge erred in the manner in which he approached the test of “unsafe and unsatisfactory” and erred in finding that the magistrate’s verdict was unsafe and unsatisfactory. The appellant contends that:
(a)The appeal judge erred in finding that the magistrate made a factual error in relation to the timing of a triple zero (000) telephone call made by Ms Williams.
(b)The appeal judge correctly identified a legal error made by the magistrate (that the evidence of Ms Williams was unreliable because it was uncorroborated), but his Honour erred in finding that the error rendered the magistrate’s verdict unsafe and unsatisfactory.
(c)The appeal judge erred because he failed to apply the correct legal test; his Honour erroneously applied the “reasonable hypothesis consistent with innocence” test applicable to circumstantial evidence cases when the subject case was a direct evidence case.
Nature of this appeal
The appeal is before the Court pursuant to s 37E of the Supreme Court Act 1933 (ACT) (Supreme Court Act). Part 2A of the Supreme Court Act was introduced by the Supreme Court Amendment Bill 2001 (ACT), which established the Court of Appeal of the ACT. Prior to the introduction of pt 2A, the intermediate appellate function in the ACT was discharged by the Federal Court pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).
The appeal regime under pt 2A of the Supreme Court Act is broadly similar to that under the Federal Court Act. In terms that have been described by the High Court as “spare”, pt 2A sets out the duties and powers of the Court on appeal: R v Hillier (2007) 228 CLR 618 (Hillier) at [25]. Section 37N provides that the Court must have regard to the evidence given in the proceeding at first instance, permits the Court to draw inferences of fact from that evidence, and provides that the Court “may receive further evidence” orally or in other ways. Section 37O sets out the powers of the Court, including the power to confirm, reverse, or amend the order on appeal, the power to give any order that the Court considers appropriate, and the power to set aside the order and remit the proceedings to the court at first instance.
The nature of an appeal by way of rehearing was discussed at length in Fox v Percy (2003) 214 CLR 118 and Allesch v Maunz (2000) 203 CLR 172, and has been considered many times by this Court. Recently, it was considered in Gaunder v Hogan [2014] ACTCA 4.
On this appeal, the arguments of both parties assume that the rehearing before the appeal judge was to be approached in the same way as a rehearing by the Court of Appeal under pt 2A.
Nature of the appeal from a magistrate to a single judge
There is little doubt that a criminal appeal from the Magistrates Court to the Supreme Court is an appeal by way of rehearing, but what is not entirely clear is whether error has to be established before the appeal judge can intervene.
An appeal is a creature of statute and the nature of an appeal is a matter of construing the relevant statutory provisions. The provisions pertaining to this matter do not expressly state the nature of the appeal. Rather, this is to be inferred from the provisions and relevant authorities. No party contended that, even in the absence of demonstrated error, the appeal judge could intervene. On this occasion, it is unnecessary for us to determine whether such an approach is open. For the purposes of this appeal, the Court accepts that the appeal judge was required to approach his task in the manner described in Lukatela v Birch (2008) 223 FLR 1 (Lukatela), first inquiring whether there was an “error” by the magistrate.
Uncontentious facts
On 11 August 2011, Mr Rhodes and his partner, Ms Williams, lived in the same apartment complex as Mr Webber and his flatmates, Mr Whitney and Mr Mikelhager. Mr Rhodes and Ms Williams lived on the level above Mr Webber. The electricity supply to Mr Webber’s apartment had been cut off, and he and his flatmates were using electricity transmitted from Mr Rhodes’ flat via a power cord. Mr Whitney had agreed that the occupants of his apartment would pay for the use of the power.
On the evening of 11 August 2011, Mr Rhodes and Ms Williams were involved in a motor vehicle incident. As a result, Ms Williams consumed substances that made her feel angry and intoxicated. She went downstairs to Mr Webber’s apartment, where he was asleep. She banged on the door and demanded that he pay money to her. In response to the commotion, Mr Webber’s flatmates woke him up.
Mr Webber deduced that Ms Williams was concerned because he owed her $30 in relation to a phone charger. He went upstairs to her apartment with $30 in his hand. There was an altercation between Mr Rhodes and Mr Webber just inside the front door of Mr Rhodes’ apartment. Mr Webber was stabbed twice in the rear upper shoulder area by Mr Rhodes, causing a punctured lung. Mr Rhodes was punched in the face by Mr Webber. Ms Williams was present.
Ms Williams called triple zero (000). The voice of Mr Rhodes can be heard in the background of the call, saying: “Try to stab me ... You try and stab me you piece of shit”.
Mr Webber fled to his apartment, where his flatmates telephoned triple zero (000).
Later, Mr Rhodes had a telephone conversation with his mother (which was recorded) in which he asserted that Mr Webber had refused to contribute to the power bill and had then “come flying” through the door holding a knife with which he attempted to seriously injure Mr Rhodes. Mr Rhodes asserted that Mr Webber dropped the knife and began to punch Mr Rhodes. Mr Rhodes picked up the knife and stabbed Mr Webber below the shoulder blade as Mr Webber was gripping Mr Rhodes around the throat.
In another out-of-court statement, Mr Rhodes asserted that he had asked Mr Webber to contribute to the power bill and that Mr Webber had then come to his unit and attacked him.
The knife was not recovered.
The proceedings before the magistrate
The issue before the magistrate was whether there was a reasonable possibility that Mr Rhodes was acting in self defence when he stabbed Mr Webber.
The evidence that was directly relevant to this issue came from three sources: Mr Webber, Ms Williams and the out-of-court statements of Mr Rhodes. Mr Webber said that he was injured in an unprovoked attack. Ms Williams said that Mr Webber had failed to adhere to an arrangement to pay a share of a $1,000 electricity bill. He then came to her apartment armed with a knife, assaulted her and attacked Mr Rhodes with the knife. The out-of-court statements made by Mr Rhodes were tendered in evidence, but Mr Rhodes did not give evidence at the hearing.
The magistrate directed himself correctly regarding the onus and standard of proof. He concluded that he should accept the evidence of Mr Webber, whom he found to be a truthful witness whose evidence was supported by other evidence, including evidence that Mr Webber was in possession of three bloodstained $10 notes shortly after the incident.
To the extent that Ms Williams’ evidence was contrary to that of Mr Webber, the magistrate rejected it. His Honour nominated nine reasons for rejecting her evidence. His Honour’s ninth reason was the absence of evidence corroborating aspects of Ms Williams’ evidence. In particular, His Honour criticised the evidence of Ms Williams because it was uncorroborated in so far as she asserted that she had received a $1,000 electricity bill. His Honour said that, had there been corroboration, he may have found Ms Williams to be a more reliable witness.
On this appeal, the appellant concedes that the absence of corroborative evidence should not have been taken into account when the magistrate considered the reliability of Ms Williams’ evidence.
In the course of his remarks, the magistrate made passing reference to the fact that, when heard in the background to Ms Williams’ triple zero (000) call made “after the events in question”, Mr Rhodes “was in a considerable state of agitation”. In the context in which this observation was made, it seems that the magistrate found that the agitation of Mr Rhodes was consistent with the allegations that he behaved aggressively on the night in question (supporting the prosecution case).
The magistrate noted that Mr Rhodes had not given evidence but that there was some evidence of his version of events. His Honour’s reasons do not state what he made of that version; he must have disbelieved it.
The approach of the appeal judge
The appeal judge identified a factual error and a legal error in the magistrate’s decision:
(a)The magistrate’s criticism of the lack of corroboration of Ms Williams’ evidence of a large electricity bill amounted to a reversal of the onus of proof. The error may have materially affected the outcome; the magistrate expressly stated that, had there been corroboration, he may have found Ms Williams to be a more reliable witness.
(b)The magistrate failed to consider and analyse the relevance and reliability of the out-of-court statements by Mr Rhodes, particularly the statement made in the background to the triple zero (000) call. The appeal judge considered that the background statement was significant because it occurred while “the events in question were continuing and not in the past” and that the agitation in Mr Rhodes’ voice was consistent with his version of events (that he was being attacked at the time) and did not necessarily support the prosecution case that Mr Rhodes was in an aggressive frame of mind on the night in question.
The approach of first identifying errors was consistent with the approach endorsed in Lukatela.
Having identified what he considered to be significant errors, his Honour went on to conduct a review of the case. In so doing, his Honour found that the evidence “[did] not exclude the hypothesis that the incident occurred as stated by [Mr Rhodes] in his phone call to his mother”, and that Mr Rhodes’ version was “reasonably possible, particularly given the evidence of blood deposits” and was “consistent with self-defence”. His Honour determined that the finding of guilt was “unsafe and unsatisfactory”, set aside the conviction and sentence and substituted a verdict of acquittal.
Ground 1: Error of fact concerning the timing of the triple zero (000) call by Ms Williams
Given the sequence of events, it is a distinct possibility that his Honour did err in finding that the statements of Mr Rhodes that could be heard in the background of the triple zero (000) call were completely contemporaneous with the incident. However, even if his Honour did err in that regard, the error does not undermine the manner in which his Honour reasoned. On any version, the background statements were made within minutes of the incident, and Mr Rhodes’ agitation was consistent with his version of events.
Ground 2: Erroneous finding that reversal of the standard of proof in relation to corroboration of Ms Williams’ evidence was material
The error relating to reversal of the standard of proof applied to only one of nine reasons that the magistrate gave for rejecting the evidence of Ms Williams. In combination, the other eight reasons were compelling. However, the magistrate expressly identified the impugned reason as one that, taken in isolation, affected his assessment of the reliability of Ms Williams. Consequently, the appeal judge did not err when he found that the associated error (reversal of the standard of proof in relation to corroboration) was material; it may have been crucial to the outcome.
Ground 3: Erroneous approach to standard of proof
The case against Mr Rhodes was a direct evidence case, not a circumstantial evidence case; it depended upon an assessment of two critical witnesses who were present at the incident, in the context of Mr Rhodes’ version of events. There was some circumstantial evidence, but it was peripheral.
The criminal standard of proof (beyond reasonable doubt) applies to any criminal case, subject to statutory modification. Because of the nature of a circumstantial evidence case, in such a case the criminal standard of proof is usually expressed in the negative; as requiring the exclusion of “reasonable hypotheses” consistent with innocence or the exclusion of the “reasonable possibility” of innocence. But this is just another way of expressing the criminal standard of proof.
As a very experienced criminal trial judge, his Honour could not have failed to consider the critical question; whether the prosecution case was proved beyond reasonable doubt. The subject case was a direct evidence case, and it would have been more appropriate to express the criminal standard of proof in the affirmative rather than the negative, but the failure to do so was not an error of law. Similarly, the expression “unsafe and unsatisfactory” is ordinarily used in the context of a jury verdict, but nothing turns on his Honour’s use of that expression.
The appeal should be dismissed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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