Robinson v Lane
[2011] TASSC 70
•22 December 2011
[2011] TASSC 70
COURT: SUPREME COURT OF TASMANIA
CITATION: Robinson v Lane [2011] TASSC 70
PARTIES: ROBINSON, Emily Jane
v
LANE, Richard (Constable)
FILE NO/S: 734/2011
DELIVERED ON: 22 December 2011
DELIVERED AT: Hobart
HEARING DATE: 18 November 2011
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – The hearing – Generally – Application for hearing de novo.
Justices Act 1959 (Tas), ss107, 110, 111.
Dietrich v R (1992) 172 CLR 292, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: S Nicholson
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 70
Number of paragraphs: 38
Serial No 70/2011
File No 734/2011
EMILY JANE ROBINSON v CONSTABLE RICHARD LANE
REASONS FOR JUDGMENT TENNENT J
22 December 2011
On 9 September 2010, the applicant was charged by police on complaint 9863/10 with two counts of assault a police officer, one count of resist a police officer and one count of stealing. She pleaded not guilty. After a hearing before a magistrate, the applicant was found guilty of the two counts of assault police and one of resist. She was found not guilty of the stealing charge. After obtaining a pre-sentence report, the learned magistrate convicted the applicant and, on 20 July 2011, sentenced her globally to four months imprisonment which was wholly suspended.
The applicant filed a notice to review on 15 August 2011. The order sought to be reviewed was that by which Magistrate Mollard ordered a "Sentence of Imprisonment (Wholly Suspended)" and "Fine of $277". The grounds of review were stated to be:
"Emily Robinson was denied the right to have a lawyer present during the trial even though she suffers from Bi-polar Disorder and has drug issues. He also severely restricted her attempts to examine witnesses (See attached affidavit)"
The affidavit filed with the notice simply stated that the applicant suffered from bi-polar disorder and drug problems, and that her father had been away for several weeks and unable to help her, but was now back. The applicant filed an interlocutory application a few days later by which she sought to extend the time for the filing of her notice. With that was a further affidavit. That affidavit provided:
"Magistrate Sam Mollard refused to adjourn the case so that I could seek legal representation even though I suffer from medically diagnosed severe bi-polar disorder and also have drug problems.
I was denied the opportunity to present a proper defence because the magistrate said that I was not doing so in the correct manner, so I was not able to present my evidence or examine witnesses.
Magistrate Mollard was aware that I had a written letter from a magistrate stating that if he heard the case then no custodial sentence would be given, only fines. On that basis legal aid was denied. M. Mollard should have adjourned the trial and referred me back to legal aid if as he did intend to impose a custodial sentence even if suspended."
There were directions hearings before the Associate Judge and Wood J. In the earlier of those, counsel for the respondent indicated there would be no objection to the extension of time sought by the applicant. I can find no record of any order actually being made extending time. Insofar as an order to that effect is required, I order that the time for the filing of the notice to review in this matter be extended to 15 August 2011. In the second directions hearing, the applicant was alerted to the need to perhaps put some matters on affidavit. She did so on 10 November 2011. The document filed on 10 November was not so much an affidavit containing facts relevant to the review, as an identification of a number of complaints the applicant wished to make about the process before Magistrate Mollard, and her arguments in support of those.
In the directions hearings, one matter which does not seem to have been explored was whether the applicant's review was of the sentence imposed or whether it was, also, the finding of guilt. It was not explored before me as a discrete issue although, having regard to the way in which the hearing unfolded, it is clear the applicant was asserting there should have been no finding of guilt. Another matter which was explored before me as a preliminary matter was whether what the applicant was also seeking was a hearing de novo. In view of the material filed on 10 November, counsel for the respondent agreed that I could hear this matter as if it included an application for a hearing de novo without the need for any formal application or amendment to the notice to review.
What should be clarified at the outset is that the learned magistrate did not impose any fines on the applicant. He imposed a wholly suspended sentence, and ordered the applicant to pay court costs of $217.
Relevant review provisions
The Justices Act 1959, s107(4), provides:
"The grounds set forth in a notice to review shall allege –
(a)an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; …"
Section 110(2) provides that:
"On the hearing of a motion to review, the court shall, upon consideration of the evidence and material adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as it relates to the ground set for the in the notice to review, and thereupon may do all or any of the following things."
There follows the various powers of the Court.
Section 111 provides for hearings de novo. The relevant subsections are as follows:
"(1) Notwithstanding anything contained in section 110 and subject to this section, a person who has filed, or has been served with, a notice to review may apply to the Supreme Court for an order that the complaint to which the notice relates be heard de novo and determined in the Supreme Court.
….
(4) An order shall not be made under subsection (1) unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo.
(5) Without limiting the generality of the provisions of subsection (4), the court may make an order under subsection (1), if –
(a) there does not exist, or it is not practicable to bring into existence, any sufficient account of that part of the proceedings to which any ground set out in the notice to review relates;
(b) at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced; or
(c) the parties to the notice to review consent to the making of an order."
Proceedings before the magistrate
At the hearing conducted before the learned magistrate, the applicant was unrepresented. It is apparent from the transcript that her father was present in court, and available to help her should the need arise. The proceedings had not gone straight to a hearing following pleas of not guilty. The record of proceedings sheet on the complaint records that on 27 January 2011 the applicant appeared before Magistrate Dixon in a contest mention court. On that occasion, the applicant was legally represented. The facts were stated, the applicant's prior matters were put to the court, and a sentence indication was given. The applicant was given a period of time to consider her position, and it is recorded she intended to obtain the services of a private lawyer. The matter went back before Magistrate Dixon on 3 March 2011. On that occasion, the applicant was unrepresented. She indicated she would not accept the sentence indication, and wished the matters to go to hearing. The matters were adjourned for hearing before Magistrate Mollard on 20 May 2011. The hearing was completed on 8 June, at which time the learned magistrate found counts 1, 2 and 3 proved. He dismissed the count of stealing.
The learned magistrate did not proceed immediately to hearing. He adjourned the matter to obtain a pre-sentence report. On 20 July 2011, he had that report available. The learned magistrate enquired of the applicant whether she agreed with the contents of the report. Save for one minor irrelevant matter, she said she did. His Honour noted that the report contained information to the effect the applicant suffered from bi-polar disorder. He asked if the applicant believed that condition was being adequately controlled or treated. The following exchange then occurred:
"HIS HONOUR: Now one piece of information the report does contain is the reference to you suffering from bipolar disorder; is that, in your opinion, being adequately controlled or treated at the moment?
DEFENDANT: Yes, I think it – a lot of things affect it, but yes, I take my medication and I try and sleep and eat well.
HIS HONOUR: And you haven't had any recent –
DEFENDANT: I haven't had any turns, no, not for awhile, because I usually I'll just go to bed for a week or two.
HIS HONOUR: Mm, so you've neither had a high nor a low recently associated – which is typically associated with that condition?
DEFENDANT: I think I'm pretty good at the moment. I've been pretty – I think we're on a level –
HIS HONOUR: Okay, and I take it that you intend to continue with that treatment regime?
DEFENDANT: I have to.
HIS HONOUR: Yeah. Do you have any present plans to wind back, if not cease your current high level involvement with cannabis?
DEFENDANT: Yes, that's an ongoing issue every day, and I think I may have to go back to the Bridge Program, like you know, just the meetings and things and –
HIS HONOUR: Yeah.
DEFENDANT: - just be strong willed really.
HIS HONOUR: Yeah. Well look, it's not for me to try to make you, and I would never try to make a defendant to do such a thing, but I have no doubt that persisting with that level of use of cannabis is counterproductive in relation to the control of your bipolar condition, and I have no doubt that there's a link also, in terms of your ability to control your finances, between that situation and the lack of wellbeing that, if I can put it that way, that I think this report is fairly typical in your life. So I do hope you reach the right decision there.
Is there anything else you want to say about this matter?
DEFENDANT: No."
That is the first occasion throughout the entire hearing before his Honour that the issue of the applicant suffering from bi-polar disorder had been raised. The transcript of the proceedings reveals the applicant made no reference to it at any other stage. His Honour then proceeded to sentence.
Going back to the commencement of the hearing, the learned magistrate explained to the applicant the course of proceedings. She asked to have her father sit with her. His Honour told her he preferred that she did not, but that, if at any stage she wanted his help, she could speak to him to get it. The police prosecutor opened his case, and then led the evidence of Constable Margaret Little. Once her evidence in chief was completed, his Honour then explained to the applicant what her role was. He made it abundantly clear that what she was to do was, where she disagreed with what the Constable had said, put her version of events to the witness to allow the witness to respond to it. After some discussion about what she needed to do, the applicant asked if it was too late to get a lawyer. The following exchange then occurred:
"HIS HONOUR: Well it's pretty difficult, it's twenty to eleven on the day of the trial. In previous proceedings I'm sure there would have been a question asked of you about whether you were going to represent yourself or not and it's a bit disconcerting to say the least to hear you talking about –
DEFENDANT: Honestly, it's just the financial bit,
HIS HONOUR: - getting a lawyer at this stage.
DEFENDANT: - otherwise I'd have a lawyer.
HIS HONOUR: Excuse me, you missed what I finished saying then –
DEFENDANT: Sorry.
HIS HONOUR: - because you started talking over me, so that's not a good idea. What were you wanting to say?
DEFENDANT: You're right, I did miss a bit of what you said, but it's basically just the financial bit, like the lawyer's going to cost me heaps of money and for some reason Legal Aid can't do it.
HIS HONOUR: Well did you apply for Legal Aid?
DEFENDANT: Yes.
HIS HONOUR: And what reason did they give to you as to why they wouldn't do it?
DEFENDANT'S FATHER: The reason was because there was no custodial sentence to be given.
HIS HONOUR: And that's probably right. So are you now telling me that what you want to do is to ask for an adjournment so that you can pay a private solicitor?
DEFENDANT: Is that a lawyer?
HIS HONOUR: Yep.
DEFENDANT: Yes. I think I may have to.
HIS HONOUR: Do you have any idea of what that's likely to cost you?
DEFENDANT: Thousands.
HIS HONOUR: Probably.
DEFENDANT: Do they let you pay them off?
HIS HONOUR: I don't know.
DEFENDANT'S FATHER: Excuse me. When she's asking questions would I be able to – could she defer to me to –
DEFENDANT: I think I need a lawyer.
DEFENDANT'S FATHER: - ask the questions if she needs advice?
HIS HONOUR: I don't want you asking the questions, Mr Robinson, I don't think that's an appropriate thing to do. Your daughter is plainly – I think plainly equipped to be doing that herself. She may need help to formulate the questions, there may be things that you've got some insight into what she should be asking that in the nervousness of her representing herself she might not be able to do. I'm happy for you to prompt her but I repeat, I don't want you asking the questions.
DEFENDANT'S FATHER: Okay, that's fine.
HIS HONOUR: At this stage I'm not going to proceed any further with the suggestion that the matter might be adjourned to get legal advice because I think that we should just see how this goes. If it gets to a point where I think the defendant's being prejudiced in relation to a case that might very well have merit because of the fact that she isn't represented I'll reconsider that position. So Miss Robinson, if you'd like to go ahead."
The hearing proceeded.
Up to that point, the prosecutor had not shown to the court a DVD containing CCTV surveillance footage of an area in the Cat and Fiddle Arcade where the alleged stealing and other incidents had occurred. The applicant, and it appears her father, had already seen it twice, and wanted it played so that she could question Constable Little about aspects of it. His Honour directed it be played, which it was. The applicant then asserted that what was shown to the court was not the version of the footage she had previously seen. After considerable steps were taken by his Honour to clarify whether it was possible a different version of the footage had been shown to the applicant, the applicant accepted that it had not, and that it was probably just that she had been sitting much closer to the footage when she had originally viewed it.
Cross-examination of Constable Little then continued mainly by reference to the surveillance footage. The applicant suggested to her she could not have seen the applicant kick Constable Darke in the groin. The witness said she did, and his Honour commented that it appeared to him certain events were unfolding on the footage which supported what the Constable was saying, and not what the applicant was suggesting. The applicant was however given every opportunity to continue to question the witness if she wished to.
Further witnesses were called. The prosecutor then indicated that his last witness, who related to the stealing charge, was unable to attend that day, and he sought an adjournment to enable her to attend another day. The applicant did not object, saying that in fact it gave her an opportunity to get legal advice. The hearing finished on the next occasion.
Conduct of review
In the normal course of events, any application for a hearing de novo would be dealt with as a preliminary matter, or at least as a separate issue in a decision. However in this matter, issues raised by the applicant essentially on the substantive review are relevant to an application for a hearing de novo.
The applicant was unrepresented before the learned magistrate. Therefore, by reference to the present case, unless the applicant is able to satisfy me that "evidence available at that time amounting to a substantial ground of defence was not then adduced", I should not make an order for a hearing de novo unless the interests of justice require it.
Grounds of review
The applicant's grounds of review were not numbered. I will deal with them in the circumstances just by reference to their content.
The first matter raised by the applicant was that the learned magistrate erred in that he denied the applicant's request for the right to get legal representation "as she had realised that she did not understand anything of what was happening". As part of this complaint, the applicant also asserted that it would have been prudent in a case like this for the magistrate to enquire of her, prior to trial, as to whether there were specific reasons why she could not conduct an effective defence, such as mental illness or drugs. She submitted that it would be virtually impossible for a normal person to conduct the same level of defence that could be expected from a solicitor. She also asserted that his Honour was aware of her bi-polar disorder and extensive drug use at the time of sentencing. While it appears to be expressed as a separate error, the next complaint of the applicant is really part of the same alleged error. The applicant said:
"The Magistrate erred in law by allowing the trial to continue when he stated that my ability to conduct a proper defence was very poor and detrimental to my case: pages 122-123 of the transcript. This situation would have been clearly evident virtually from the beginning of the trial. The effect of continuing the trial without me being able to get a solicitor was to deny me a fair trial."
A transcript of the hearing was available for the purpose of this review. It is apparent from a review of the transcript that the learned magistrate was given no information prior to the trial commencing before him, that the applicant suffered from bi-polar disorder, or that she was a drug user. These issues only came to light when the information appeared in the pre-sentence report. Further, there is nothing in the transcript which supports the assertion that his Honour said that the applicant's ability to conduct a proper defence was very poor and detrimental to her case.
In her oral submissions, the applicant referred to the case of Dietrich v R (1992) 177 CLR 292. That case was one in which the accused was charged with importing into Australia a traffickable quantity of heroin. The charge was without doubt a very serious one and one which would see the defendant serve a lengthy term of imprisonment were he convicted. The accused was unrepresented and the trial lasted for some forty days. The issue of whether the accused was entitled to legal representation at the expense of the public purse, in the circumstances he was facing, came before the High Court. The applicant appeared to quote from this case. However she could not tell me from where she had extracted what she said, save it said after it "per Mason CJ".
The applicant seemed to be submitting that, by reference to Dietrich's case, the learned magistrate should have, at the very least, delayed the trial until such time as she could obtain legal representation. It is useful to quote the headnote of this case. It provides as follows:
"The common law of Australia does not recognize the right of an accused to be provided with counsel at the public expense. However, the courts have power to stay criminal proceedings that will result in an unfair trial. The power to grant a stay extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence. In the absence of exceptional circumstances, a judge faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault is unable to obtain legal representation, should adjourn, postpone or stay the trial until legal representation is available. If the application is refused and, by reason of the lack of representation, the trial is not fair, a conviction must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.
So held, by Mason C.J., Deane, Toohey, Gaudron and McHugh JJ.
Per Brennan J. For the court to declare a common law entitlement to legal aid when the satisfaction of that entitlement depends on the actions of the political branches of government amounts to an unwarranted intrusion into legislative and executive functions. As a matter of constitutional duty, the courts cannot indefinitely adjourn a trial to force the provision of legal aid.
Per Dawson J. An accused has no right to be represented by counsel at public expense. The fact that an accused is unrepresented cannot of itself amount to a miscarriage of justice.
McInnis v. The Queen (1979), 143 C.L.R. 575, considered.
Section 397 of the Crimes Act 1958 (Vic) provided: 'Every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by counsel.'
Held, by Mason C.J., Dawson, Toohey and McHugh JJ., that s. 397 did no more than to give a right to an accused to retain counsel if he had the means to do so or if counsel was otherwise available."
The situation being dealt with in Dietrich was vastly different to that involving the applicant. The learned magistrate's role was certainly to ensure, as far as he was able, that the applicant had a fair trial. For the reasons I will outline, I am satisfied that he did that, and that by refusing the applicant an opportunity to obtain a lawyer he did not err.
Dealing with the facts, the applicant had been represented by a lawyer in the contest mention court. Having been given a sentence indication on 27 January 2011, she sought an adjournment to consider it, and told the court she proposed to obtain the services of a private lawyer. I infer from that, that the lawyer who appeared for her in the contest mention court was from the Legal Aid Commission. At her next appearance, the applicant appeared unrepresented and told the court she did not accept the sentence indication. That was on 3 March 2011. On 29 March 2011, the applicant appeared again unrepresented. On that occasion, the hearing date before Magistrate Mollard was allocated. The applicant therefore had a period of almost four months to seek legal representation. When the hearing before Magistrate Mollard commenced, he outlined in general terms how the hearing would be conducted. The applicant made no request for an adjournment to obtain legal representation for the hearing. The prosecution then called its first witness and her evidence was given. The learned magistrate then gave the applicant a quite lengthy outline of what she needed to do. Discussion occurred, and the applicant interrupted him, asking then if it was too late to get a lawyer. I have set out the exchange which occurred, at par[9]. The applicant did not raise the issue again. The only further reference to the applicant obtaining legal advice was when the trial was adjourned to enable a particular prosecution witness to be called. The applicant said that was good because she could get some legal advice.
The applicant did not articulate the basis upon which she asserted that the learned magistrate had erred in not making an enquiry of her prior to trial about any issues she had. I am not aware of any authority which would have required him to do so. The Magistrates Court deals regularly with unrepresented litigants. In doing so, it is often obvious to a magistrate that a litigant is incapable, by reason of mental illness, lack of education, drunkenness or the like, of representing his or her own interests to such a degree that help for them may be required. It is clearly incumbent on a magistrate to attempt to obtain that help. The rationale behind that is to ensure that an unrepresented litigant is treated fairly within the judicial system and, if there is a trial involved, that it is conducted fairly. It is not incumbent on a magistrate, in my view, where there is no apparent impediment to an unrepresented litigant conducting their case, to make exhaustive enquiries as to possible impediments before a hearing is even embarked upon. If such an impediment becomes obvious during the course of a hearing, the magistrate might then adjourn to address it. In this case, that is what the learned magistrate said he would do if necessary.
It is apparent from the transcript of the proceedings before the learned magistrate, and it was apparent to me on the review, that the applicant is an intelligent and quite articulate young woman. She, at no stage, indicated that the mental condition from which she apparently suffers adversely impacted upon her capacity to conduct her defence and, in fact, she told the magistrate it was being managed. She did not, at any stage, suggest that her drug use adversely impacted upon her capacity to conduct her defence. Indeed, she did not submit either of those things were actual difficulties for her at the trial.
As to her suggestion that a normal lay person would have difficulty presenting the same sort of defence as a lawyer, were any court to decline to hear a matter simply because a litigant was unrepresented and might not present a case in the same manner as a lawyer, would result in the legal system grinding to a halt.
In her actual notice to review, the applicant also suggested that the learned magistrate "severely restricted her attempts to examine witnesses (see attached affidavit)." The applicant did not identify any specific occasions on which this was said to have occurred. A review of the transcript, while showing that there were occasions when the magistrate interrupted the applicant to effectively get her back on track with relevant questions, does not support this assertion.
A review of the transcript of the proceedings before the learned magistrate reveals that he went to great lengths to explain process to the applicant, and to assist her with relevant questions when things seemed to be getting off track. It is also apparent that, at times, he became exasperated with the way in which the applicant was behaving. She frequently appeared not to listen to what she was being told, and interrupted both the magistrate and the prosecutor. However, there can, in my view, be no suggestion that, as a result of anything done or not done by the learned magistrate, the applicant did not receive a fair hearing. As such there was no error in his failing to adjourn the proceedings to enable the applicant to obtain a lawyer.
The next matter raised by the applicant was in the following terms:
"The Magistrate erred in law when he imposed a custodial sentence, albeit, suspended, when legal aid was denied to the applicant on the basis that no custodial sentence would be imposed. A fact I believe he would have been aware of prior to the start of the trial."
This ground of review appears to arise from a misunderstanding by the applicant of the Magistrates Court contest mention system as it sits within the general structure of that court. On the proceedings sheet relating to the complaints being dealt with in respect of the applicant, there is a record that a sentence indication was given to the applicant in the event she was prepared to plead guilty to the charges brought against her. She was represented by a lawyer at the time. The sentence indication itself was not recorded on the sheet. Once the applicant refused to accept the sentence indication, as she was perfectly entitled to do, that was the end of that process. The matters were then listed for hearing before a different magistrate, in this case Magistrate Mollard, who would have no knowledge of the indication that was given, unless the applicant told him. In any event, the sentence indication given by the contest mention magistrate, once refused, has no effect at all, and was in no way binding on Magistrate Mollard.
It may very well be that the Legal Aid Commission has a policy that, if an indicated sentence does not involve actual imprisonment, it will not provide aid for a hearing after that indication is refused. That is not a decision the court has any role in, nor does it any way prevent a hearing magistrate from forming a different view from that formed by the contest mention magistrate. The applicant made reference to a letter, which Magistrate Mollard was said to be aware of, from a magistrate setting out advice that she would only be fined for these matters. No such letter was produced, and there is no indication from the transcript of proceedings before Magistrate Mollard that any such letter was shown to him. I would in any event doubt one exists from my knowledge of the contest mention system. It may be the applicant was advised in writing of the indication by her lawyer at some time.
There is no evidence the learned magistrate was aware of the sentence indication prior to trial or sentence, and, even had he been so, it was not binding on him. The applicant did not articulate any other basis upon which the sentence imposed by the learned magistrate gave rise to an error of law. This ground of review must fail.
The applicant's grounds of review were largely articulated in a document which was attached to an affidavit filed 10 November 2011. In that, starting at the bottom of page one and going through to page four, the applicant deals with each charge levelled against her, and the evidence of Constables Little and Darke and the CCTV footage. In effect her material was a criticism that the learned magistrate could not have made the findings he did on the evidence before him. There was an assertion that his conclusions were based on the evidence of the police and the CCTV footage, and that the allegation that she kicked Constable Darke in the groin was not corroborated by independent witnesses.
Dealing with the CCTV footage, it was shown to me at the request of the applicant. It primarily showed a view of the lower level of the Cat and Fiddle Arcade from towards the Murray Street end. It was extremely difficult to see any detail, and I did not have the benefit, as the learned magistrate did, of having it shown more than once, and having Constable Little questioned about it as it was shown bit by bit. A number of complaints levelled by the applicant in her written material were ones raised at trial, and ones which the magistrate said were not supported by the footage he saw.
As to corroborative evidence, the learned magistrate was not required to have "independent" corroboration. The two shop owners who gave evidence were not specifically asked if they saw a kick to the groin of Constable Darke. The witness called by the applicant, her partner, was unhelpful generally. He was, even on the applicant's evidence at the hearing, well under the influence of alcohol at the time of the incident, and appeared to have little independent memory of detail. The evidence he did give, for example about the applicant putting her finger near Constable Darke's face, was inconsistent with the applicant's. The learned magistrate found that he saw an action by the applicant, and then Constable Darke bend over. In the face of direct evidence from the constable that the applicant had kicked him in the groin, the finding the learned magistrate made was well and truly open to him. He found the applicant's evidence generally to be confusing, and that it seemed largely to be a reconstruction.
The applicant said in her written document:
"In relation to the events just prior to the alleged kick, such as me allegedly trying to get to Constable Little, and the pointing of the finger close to Constable Darke's nose, I need to pursue these events to be able to show an alternative version of events, one that is in conflict with the Police version. This could only be done through a more detailed and thorough examination of the witnesses, which was not done at the original trial. This aspect of the case is important because the prosecution is claiming that I was inciting the situation which ultimately lead [sic] to the alleged kick and violence that followed. The evidence is clear that until the arrival of Constable Darke the situation was calm, this is confirmed by Constable Little's evidence up to clause 10, page 6. The reasons for the situation escalating in the way it did need to be more thoroughly investigated, and I need to be able to put the alterative [sic] version which is that Constable Darke, through his actions, was the one that was the instigator of the violence, which included unlawfully grabbing me by the finger."
As to this material, the applicant had every opportunity to explore what led up to the incident. However, as I said, the magistrate found her evidence confusing, and to be a reconstruction. A further examination in light of the findings by the learned magistrate was unlikely to have produced any further cogent and relevant evidence.
The applicant pleaded not guilty to the charge of assaulting Constable Little by putting her in a head lock. In the course of the trial, she admitted doing it, but said she was just trying to help her partner, who was by that stage involved in a physical altercation with Constable Darke. The applicant asserted that Constable Darke assaulted her partner, and that, as a consequence, he suffered a badly broken arm. The applicant's partner made no such compliant. The learned magistrate was an experienced magistrate. While he made no specific reference to it, I have no doubt he would have been alert to the need to consider whether the applicant was entitled to rely on the Criminal Code, s46, on the basis she was defending her partner. The evidence accepted by the learned magistrate as to how the events unfolded would not have left room for consideration of that section.
Conclusion
As to the application for a hearing de novo, I am not satisfied the applicant has demonstrated that there was evidence available at the time of trial not adduced which would have given rise to a substantial defence of any of the charges in respect of which the applicant was found guilty. I am also not satisfied it would be in the interests of justice that such a hearing be permitted. There has been no material identified by the applicant that was so wrongly dealt with at the hearing as to justify a rehearing. It is a case that, with hindsight, the applicant wishes she had done more at the hearing. That is not a proper basis for a hearing de novo, and that application is refused.
As to the grounds of review generally, the applicant has not satisfied me that the learned magistrate erred in any way alleged. The notice to review is refused.
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