Rodrigues v Ainsworth
[2014] WASC 101
•28 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RODRIGUES -v- AINSWORTH [2014] WASC 101
CORAM: LE MIERE J
HEARD: 13 MARCH 2014
DELIVERED : 28 MARCH 2014
FILE NO/S: SJA 1071 of 2013
BETWEEN: CLINTON CRAIG RODRIGUES
Appellant
AND
MITCHAL WILLIAM AINSWORTH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M D WHEELER
File No :PE 42997 of 2012
Catchwords:
Appeal - Application for leave to appeal against conviction for assault - No denial of procedural fairness - Whether appellant acted in self-defence - Unnecessary to consider whether complainant's act was lawful or unlawful - Defence of provocation - Magistrate did not assess appellant's response on purely subjective basis - Whether appellant's response was disproportionate to the provocation - Magistrate erred in not considering character evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 246, s 248
Magistrates Court Act 2004 (WA), s 31
Result:
Leave to appeal granted
Conviction set aside
New trial ordered
Category: B
Representation:
Counsel:
Appellant: Mr T F Percy QC & Mr G C R Yin
Respondent: Mr P Lochore
Solicitors:
Appellant: D G Price & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Challis v The State of Western Australia [2014] WASCA 8
Donaldson v The State of Western Australia [2007] WASCA 216
Doust v Meyer [2009] WASCA 65
Francis v Todd [2011] WASC 185
Kozul v The Queen (1981) 147 CLR 221
Low v McLeod [2009] WASC 8
McKay v Commissioner of Main Roads [2013] WASCA 135
Melbourne v The Queen (1999) 198 CLR 1
Scolaro v Shephard [No 2] [2010] WASC 271
Stingel v The Queen (1990) 171 CLR 312
Weiss v The Queen (2005) 224 CLR 300
LE MIERE J: The appellant applies for leave to appeal against his conviction for assault.
Background circumstances
The complainant, a young woman then aged 22, went to a girlfriend's house at about 3.00 pm or 4.00 pm to celebrate the friend's birthday. The complainant had some drinks there and at a tavern before arriving at Carnegie's Hotel at about 9.00 pm with some girlfriends. She met her boyfriend at Carnegie's. The appellant was a licensed crowd controller. He was on duty outside Carnegie's Hotel. The complainant had some more drinks at Carnegie's. Sometime after 11.00 pm the complainant and some girlfriends went outside of Carnegie's Hotel to smoke a cigarette. When they tried to re‑enter the hotel the appellant refused to allow them to re‑enter because of his belief that they had been involved in an incident that had occurred in the hotel earlier that night. The complainant persisted with requests to re‑enter the hotel. She said that her boyfriend was in the hotel and that she could not contact him by telephone. A confrontation, or confrontations, between the appellant and the complainant ensued for more than 10 minutes during which the complainant touched the appellant on several occasions. After the last occasion on which the complainant touched or hit the appellant, the appellant placed his hands on the complainant and pushed her. The complainant fell backwards and landed on her hip. The appellant admitted that he assaulted the complainant by pushing her but denied that his actions were unlawful. The appellant contended that he acted in self‑defence or under provocation.
The evidence
The prosecution adduced evidence from the complainant, three of her friends who were present outside Carnegie's Hotel and two police officers who interviewed the appellant. The appellant gave evidence himself and adduced evidence from Mr Theelen, another crowd controller, who was on duty with the appellant outside Carnegie's. The appellant also called character evidence from three witnesses. The events outside Carnegie's which gave rise to the charge were recorded by closed circuit television. The original CCTV recorded on a CD is exhibit 3. A version of the recording on a DVD is exhibit 1. A large number of photographs consisting of still frames from the CCTV recording were received in evidence. The prosecution also adduced in evidence a DVD of the appellant's record of interview with the police.
Course of trial
The trial took place over two days. The DVD of the CCTV recording was shown to each of the witnesses who gave evidence of what happened outside Carnegie's. Mr Percy QC was counsel for the appellant. In his closing submissions Mr Percy showed the magistrate the DVD. Before the DVD being played Mr Percy said:
[W]hat we say is that you will see the complainant launch out and hit [the appellant]. You'll see his head recoil back like that just to one side in a flinching motion, and you'll see her hand come around shaped in a fist … you'll see the actual recoil of the head as it goes through, an actual flinching consistent with him, we say, having been punched. Then a second afterwards you see the follow through where she's got a fist, we say.
After the DVD was played Mr Percy made further submissions including:
We say she struck him whilst his back was turned, and we rely on that version of events there from the video, and indeed that is captured to some extent in the still version of the photos which are now exhibit 4, photos 82 and 83.
You really need in that photograph 83 to actually construct where the hand would be, because you only can really see up to the elbow. The elbow was up there, the extension of the hand really is going towards the corner of his jaw as he described. Now, what we say is that it is at 23.19.33 … If there was any suggestion that this didn't occur, that she hadn't hit him, it is – it emerges from the evidence of Kelly McDowell, and I put to her what she said to the police.
This is the girl's friend in her statement to police. …:
'Michelle then said "don't touch me" and raised her right arm towards the left side of his neck area, hitting him. The bouncer then pushed Michelle in the chest area, causing her to fall backwards, landing on her hip.'
Now, she probably had as good a view of it as we've got from the video. It's her distinct memory making the statement to the police is that her girlfriend Michelle had actually hit him in the neck area.
Later, in his closing address Mr Percy said:
What we say is that the reasonable inference from the analysis of the video, that she did strike him in the head and that, again, if there was any inference which is consistent with the incident, and we say that one is, it's one which needs to be drawn.
Mr Percy further said:
We say for a while [the appellant] showed admirable and distinct restraint. But everyone has their limit. He was pushed to the limit by the complainant and her friends who were clearly angry, upset, intoxicated and unreasonable. But he was able to contain that until he was actually struck by the complainant, and you will see that his hands are at all times by his side. He was simply not going to be drawn into this until such time as he was attacked from behind. His reaction was instinctive, given that it had come from behind.
He could only surmise that it had been that person, and he pushed it with one hand, as I think we can see from that, which was in all the circumstances, as he believed it to be, we would say, reasonable.
After closing submissions had concluded the magistrate adjourned for a little under three hours. During that time the magistrate viewed the DVD in private on his laptop. The magistrate then delivered his reasons for decision.
Magistrate's reasons
After making some observations about the burden and onus of proof the magistrate made some observations about the evidence. The magistrate commenced by saying that he had the evidence of a number of witnesses. He then referred to the CCTV evidence. The magistrate said that he had viewed the CCTV recording on his laptop and high definition screen in his chambers which was clearer than the CCTV recording that had been shown in court during the trial. The magistrate said that he had also looked at the frame by frame photographs but they were 'more grainy' than the CCTV recording he had viewed on his laptop and high definition screen.
The magistrate then outlined the evidence as follows. The complainant and her friends went out for a smoke. They were not allowed to go back in. The complainant and one of her friends were persistently trying to be allowed to go back in. The complainant said she pushed the appellant in the shoulder. No prosecution witness alleged she punched him to the face. Ms McDowell said that the complainant raised her arm to the left side of the appellant's neck area. She agreed that the complainant hit the appellant but did not concede that the complainant punched the appellant to the face. The CCTV showed an incident when the complainant's hand went up to the appellant's neck area but that was not at the 'actual critical time'.
The magistrate then said that he was only referring to such part of the evidence that is necessary for the purpose of explaining his reasoning and that '[t]he CCTV is going to be extremely determinative in this trial because it is so clear'. The appellant said that the complainant was annoying. She punched him in the face, he felt he was in a threatened situation and reacted. The appellant and Mr Theelen said that the complainant punched the appellant to the face. None of the other witnesses do. The CCTV shows what happened. The complainant placed her hand on the appellant's arm. The complainant at one stage stepped back when a man with a blue shirt came out and the appellant 'came over at her and invaded her space'. The complainant put up her hand to the neck area 'just to stand her ground'. The appellant moved in again. The appellant then went back to the position he had been in at the head of the line. The complainant came up behind him. The complainant pushed the appellant on the biceps below the shoulder. The complainant did not punch the appellant in the face. The complainant backs off a couple of steps and then the appellant advances on her. He was not clearing a space. He made a beeline for her. The appellant then shoves with a high degree of force. The complainant goes through the air. Both her feet leave the ground.
The magistrate found that he was satisfied beyond a reasonable doubt that the complainant did not punch the appellant in the face. She pushed him in the arm. The magistrate said that he specifically disbelieved the appellant on that point.
The magistrate then said that when the complainant put her hand up to the appellant's throat she was 'acting in self‑defence of her position' but it was not necessary to 'worry about it' and it is 'not particularly relevant' to the issues of self-defence or provocation in this case because 'it is a slightly different point where after he goes back and then she pushes him on the arm'. The appellant did not flinch. He raises his arm to shrug her off from pushing his shoulder. Then she starts to back off and the appellant makes a beeline for her and 'basically gives it to her, shoves her with great force'.
The magistrate then addressed the defence of self-defence and said the following. The appellant was not defending himself from the complainant. She did push him on the arm. That is an assault but it is not for the magistrate to determine whether it was lawful or otherwise. The magistrate is satisfied beyond reasonable doubt that the prosecution negatived self‑defence because the appellant was not acting in self‑defence. The appellant did not believe that his act of pushing her was necessary to defend himself. The appellant was not a truthful witness. The appellant's act was not a reasonable response because it was unconnected to being pushed on the shoulder and there are no reasonable grounds for the appellant's beliefs. The defence of self‑defence is rejected. The appellant is a crowd controller. He has previously been subjected to violence in clubs but that played no part in his actions.
The magistrate then turned to the defence of provocation. The magistrate found that the appellant acted out of irritation, frustration and vengeance for being pestered. If the appellant did lose his temper, the force he used was entirely disproportionate to the provocation bearing in mind he is a bouncer, is sober and required to maintain equilibrium and good grace in the face of difficult circumstances. The act of the complainant when done to an ordinary person would not deprive him of the power of self‑control. The prosecution has negatived the defence of provocation beyond a reasonable doubt.
Ground 1
The first ground of appeal is that the magistrate erred in using the vision of the events as viewed on his own equipment to arrive at his findings of fact. The magistrate considered that the vision privately viewed by him on his own equipment was superior to that which had been available to counsel and adopted it as being informative if not determinative of the events in question. The appellant says that the approach adopted denied the appellant the opportunity to consider and make submissions on a critical part of the evidence. As a consequence of adopting this course of action in the fact finding process the appellant was denied procedural fairness and natural justice.
Whether or not the complainant hit the appellant in the head or face immediately before he turned and pushed her is an important factual issue. The appellant's case was that his harmful act in pushing the complainant is lawful because it was done in self‑defence. Criminal Code (WA), s 248(2) provides that a harmful act done by a person is lawful if the act is done in self‑defence under s 248(4). Section 248(4) provides that a person's harmful act is done in self‑defence if:
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The appellant's case of self‑defence was that he believed the act of pushing the complainant was necessary to defend himself from a harmful act, which was the act of the complainant in pushing him then striking him in the face. The appellant says that his act was a reasonable response in the circumstances as he believed them to be, which was that he was struck in the face from behind.
The defendant's defence of provocation was that the wrongful act which provoked him to push the complainant was her act of pushing him and hitting him in the face. The Criminal Code s 246 provides that
[a] person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self‑control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation.
The term provocation is defined by s 245 to mean relevantly
any wrongful act … of such a nature as to be likely, when done to an ordinary person … to deprive him of the power of self‑control, and to induce him to assault the person by whom the act is done.
A lawful act is not provocation to any person for an assault. Whether any particular act is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act is done, and whether in any particular case the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation are questions of fact.
The DVD of the CCTV recording is an exhibit. It is real evidence, tendered to show what it was that was recorded. The result of an examination of the exhibit does not stand in place of the evidence; it is the result of the perception of the evidence itself: Kozul v The Queen (1981) 147 CLR 221, 227 (Gibbs CJ). The magistrate is entitled to prefer the evidence provided by the DVD to that given orally by the witnesses. The magistrate is entitled to view the exhibits, including the DVD, when he is privately considering his decision. A DVD cannot be viewed without the aid of a computer or other device. A magistrate is entitled to view the DVD on the magistrate's computer or other device.
In this case, the issue of natural justice or procedural fairness arises because the magistrate viewed the DVD using a laptop and high definition screen which produced a better picture quality than when the DVD had been viewed by the magistrate and counsel in the courtroom in the course of the trial. The magistrate said that the equipment that he used was better than that used in the courtroom and had enabled him to see the images better. The magistrate said that viewing the CCTV footage on his better laptop had helped him greatly. In reviewing the evidence the magistrate said:
The CCTV is going to be extremely determinative in this trial because it is so clear.
The magistrate's finding that the complainant did not hit the appellant in the face is based upon his private viewing of the CCTV.
In Kozul v The Queen the High Court held that the jury were entitled to examine an exhibit and evaluate the evidence provided by the exhibit. In that case the court held that the jury were entitled to handle the exhibit, a revolver, and pull the trigger of the revolver so that they might judge for themselves how much pressure was necessary to cause it to discharge. In experimenting in that way the jury were doing no more than using their own senses to assess the weight and value of the evidence. Gibbs CJ said that when the experiments conducted by the jury go beyond the mere examination and testing of the evidence and become a means of supplying new evidence they become impermissible.
In this case the magistrate did not do anything to enhance the CCTV images recorded on the DVD, which was the exhibit. He merely viewed it on a laptop and high definition screen, devices which are readily available. He did so at the invitation of senior counsel for the appellant to view the DVD in his chambers on his laptop. The magistrate made no error in doing so.
Indeed, the ground of appeal is not that the magistrate erred by viewing the DVD privately on his laptop and high definition screen but that he erred by not giving the appellant an opportunity to make submissions on the magistrate's perceptions of the DVD. The appellant says that without the advantage of reviewing the higher quality footage, he was denied procedural fairness or natural justice which has resulted in a miscarriage of justice. I do not accept that submission of the appellant. The evidence is the DVD, not the magistrate's perception of the DVD.
Senior counsel for the appellant referred to the course taken by Martin CJ in Scolaro v Shephard [No 2] [2010] WASC 271. In that case Ms Scolaro appealed against her conviction for unlawful wounding. The Chief Justice reviewed the evidence in detail, including reviewing the video images which were tendered in evidence. The Chief Justice observed that in the course of undertaking that review he noted that the magistrate had relied upon the video images to reject the evidence of three witnesses who had described the sequence of events leading up to the wounding of the complainant by a glass striking the complainant's face. The Chief Justice reviewed the video images using a slow motion replay facility that may not have been available to the magistrate or to the parties. After conducting that review it appeared to the Chief Justice that there were images which suggested that the evidence of the three witnesses concerning the sequence of events was partly correct and did not enable one to say that they were wrong. Having formed those tentative views the Chief Justice arranged for the hearing of the appeal to be reconvened, communicated those tentative views to the parties and invited further submissions in light of those matters. At the next hearing the appellant moved to add a new ground of appeal asserting that the magistrate had made errors of fact because the magistrate misconstrued the images recorded on the DVD which was tendered in evidence. The respondent produced and tendered two further DVDs, one containing the images initially received by police and the second containing a version of those images capable of being viewed on conventional computer systems. The second version was played to the court a number of times during the resumed hearing of the appeal. The Chief Justice carefully reviewed the images recorded on the DVD and on the additional DVD which had been tendered in evidence on the appeal, and which showed the images at a higher degree of resolution using a computer which enabled the Chief Justice to view the images very slowly or in frozen frames. The Chief Justice allowed the ground of appeal to the effect that the magistrate had made errors of fact because the magistrate misconstrued the images recorded on the DVD which was tendered in evidence.
In my view the course taken by the Chief Justice in Scolaro v Shephard does not assist the appellant in this case. On viewing the DVD in private it appeared to the Chief Justice that the video images showed that the magistrate had made errors of fact because the magistrate had misconstrued the images recorded on the DVD. That was not a ground of appeal and had not been argued on the hearing of the appeal. It was therefore necessary for the Chief Justice to give the parties an opportunity to make submissions on those matters. In this case the appellant does not argue that the magistrate made errors of fact because he misconstrued the images recorded on the DVD.
In this case, senior counsel for the appellant made submissions to the magistrate about the sequence of events leading up to the appellant pushing the complainant. Senior counsel made submissions to the magistrate about the images recorded on the DVD and what they showed about the sequence of events leading to the appellant pushing the complainant. The magistrate was entitled to make his own evaluation of what the images on the DVD showed using conventional computer systems.
Procedural fairness does not normally require a magistrate to disclose his proposed findings and give the parties an opportunity to make further submissions on them. Procedural fairness may require a judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial: McKay v Commissioner of Main Roads [2013] WASCA 135 [156] (Murphy JA). Questions of procedural fairness ultimately involve matters of degree and judgment. They are not susceptible to hard and fast rules and the forensic context in which such questions fall to be determined is relevant: McKay [158] (Murphy JA).
In this case whether or not the complainant hit the appellant in the face was an issue at trial. Senior counsel for the appellant made submissions on the issue. Witnesses were shown the DVD and cross‑examined about the images on the DVD. Senior counsel for the appellant made submissions to the magistrate about what the DVD images showed and invited the magistrate to view the DVD in the course of reviewing the evidence. The appellant had a fair opportunity to make submissions to the magistrate about the images on the DVD and what they showed about whether or not the complainant hit the appellant on the face. The appellant was not denied procedural fairness. Ground 1 is not made out.
Ground 2
Ground 2 is that the magistrate erred in finding that he was not required to decide whether the complainant had acted unlawfully in assaulting the accused by pushing him on the arm. The respondent submits that in light of the magistrate's findings it was unnecessary for the magistrate to determine whether or not the assault by the complainant was lawful. His Honour's decision on that question would not have impacted his ultimate conclusion regarding the defence and hence regarding the appellant's conviction. Alternatively, the respondent says that even if the magistrate's omission does constitute an error of law, the appeal should still be dismissed pursuant to Criminal Appeals Act 2004 (WA) s 14(2) because the finding of guilt beyond reasonable doubt is undisturbed and so no miscarriage of justice results.
As I have said, Criminal Code s 248(4) provides relevantly that a person's harmful act is done in self‑defence if:
(a)the person believes the act is necessary to defend the person; and
(b)the persons' harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
Section 248(5) provides relevantly that a person's harmful act is not done in self‑defence if it is done to defend the person from a harmful act that is lawful. If one or more of the elements specified in s 248(4) do not exist then the defence of self‑defence is not made out. That is so whether the accused's harmful act is done in response to a harmful act that is lawful or unlawful.
The magistrate found:
(a)the appellant did not believe that his act of pushing the complainant was necessary to defend himself;
(b)the appellant's act in pushing the complainant was not a reasonable response to the complainant pushing him on his shoulder; and
(c)there are no reasonable grounds for the appellant believing that pushing the complainant in the way he did was necessary to defend himself and there were not reasonable grounds for the appellant believing that the complainant had hit him on the face and that he was going to be hit again.
The magistrate found that each of the elements of the defence of self‑defence set out in the Criminal Code s 248(4) had been negatived by the prosecution. Therefore, the defence of self‑defence was not made out. It was unnecessary to consider whether the complainant's act was lawful or unlawful because it made no difference to the finding that the appellant did not act in self‑defence. Ground 2 is not made out.
Ground 3
Ground 3 is that the magistrate erred in his consideration of the defence of provocation by assessing the accused's response to the complainant's provocation on a purely subjective basis.
The magistrate found:
So even if I accept [the appellant] lost his temper from [the complainant] doing that, the force was entirely disproportionate to the provocation, entirely, if there was such legal provocation under section 245, bearing in mind he is a bouncer, he is stone‑cold sober and required to maintain equilibrium and good grace in the face of difficult circumstances. He was clearly not under attack at the time, she just was tapping and pushing his arm, or slapping with an open hand on his – trying to get his attention still, because he was turning away from her. It is entirely disproportionate to what he did.
I should really go to the definition of 'provocation' as well, 'any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self‑control'. Well, no. That act would not, when done to an ordinary person deprive him of the power of self‑control. There are a number of ways of looking at it; on all of them, the prosecution have negatived the defence of provocation beyond a reasonable doubt.
The respondent submits that the magistrate did not assess the appellant's response on a purely subjective basis. The respondent says that the magistrate expressly considered whether the complainant's assault that preceded the appellant's assault was an act that 'would not, when done to an ordinary person, deprive him of the power of self‑control'. Further, the respondent says that in applying the objective test to assess the provocation, the magistrate properly considered the appellant's vocation, and experience in that vocational role, as salient to contextualising the content and extent of the provocation.
In my view the magistrate erred in his finding that the complainant's wrongful act or injury was not of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self‑control and to induce him to assault the complainant by acting in a manner which would encompass the appellant's actions. The magistrate's statement that the act of the complainant 'would not, when done to an ordinary person, deprive him of the power of self‑control' is a statement of conclusion after the magistrate referred to the definition of provocation and must be read in the context of the magistrate's finding that the force used by the appellant was disproportionate to the provocation.
Consideration of the objective element of the defence requires the court to assess whether the wrongful act or insult would have caused an ordinary person to lose self‑control to the extent that the accused did what he did. The magistrate assessed that matter by applying the standard expected of a bouncer who is required to maintain equilibrium and good grace in the face of difficult circumstances. In Stingel v The Queen (1990) 171 CLR 312 the High Court held that personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult. In understanding the implications and assessing the gravity of the wrongful act or insult of the complainant, it is relevant to consider that the appellant was engaged as a crowd controller and the complainant was seeking to be let into the hotel. However, in a case where it is necessary to take some characteristic or attribute of the accused into account for the purpose of identifying the content or gravity of the wrongful act or insult, the objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of self‑control of a hypothetical 'ordinary person' who is unaffected by that extraordinary attribute or characteristic: Stingel v The Queen (332). In this case, the magistrate assessed the effect of the acts or insults of the complainant by reference to the powers of self‑control of a bouncer who is required to maintain equilibrium and good grace in the face of difficult circumstances. In doing so the magistrate applied a higher standard of self‑control than that of a hypothetical ordinary person.
The magistrate found that in pushing the complainant, the force applied by the appellant was 'entirely disproportionate to the provocation'. The defence of provocation under the Criminal Code s 246 does not apply if the force used is disproportionate to the provocation. It may be argued that that is a separate ground for finding that the defence of provocation was negatived. However, the magistrate's assessment of the proportionality of the appellant's act in pushing the complainant is inextricably entwined with the magistrate's consideration that the appellant was a bouncer who was required to maintain equilibrium and good grace in the face of difficult circumstances. I find that ground 3 is made out.
Ground 4
Ground 4 is that the magistrate erred in relation to the question of whether the appellant's response was disproportionate to the provocation by failing to take into account the history of previous assaults on the accused in the course of his career as a doorman at bars and nightclubs.
The respondent submits that the requirement that the mode of retaliation should bear a reasonable proportion to the act of provocation is not a separate element which an accused person must establish, but is absorbed in the application of the test of the effect of provocation upon the ordinary person: Doust v Meyer [2009] WASCA 65 [80]. The respondent accepts that in assessing the effect of the complainant's assault upon the appellant it was appropriate for the magistrate to take into account the appellant's experience of assaults in the course of his career as a crowd controller. The respondent submits that the magistrate considered that matter in the following passage:
I accept that [the appellant] has been subject to violence in clubs, but that is a furphy in this trial, because it bore no part in his actions at all. What he told the police in his record of interview was untrue. Having seen the CCTV footage, he chose to maintain that in court. Not good.
The respondent submits that in the context of the reasons as a whole the magistrate's brief consideration of the appellant's history of previous assaults was sufficient in the circumstances.
The content and extent of the provocative conduct must be assessed from the view point of the particular accused and, in that regard, none of the attributes or characteristics of that accused will necessarily be irrelevant to an assessment of the content and extent of the provocation. Age, sex, race, physical features, personal attributes, personal relationships, past history and even in some circumstances, mental instability or weakness of an accused may be among the relevant attributes or characteristics: Stingel v The Queen at 326. Accordingly, in assessing the content and extent of the provocation, the magistrate should have had regard to the fact that the appellant was a crowd controller, that he was on duty and that the complainant was a past or prospective customer seeking entrance to the hotel. The magistrate should also have had regard to the appellant's history of prior assaults on him as a crowd controller and in particular of being hit from behind. The magistrate had regard to the former but not the latter matter in assessing the content and extent of the provocation. In doing so the magistrate erred. Ground 4 is made out.
The respondent submits that if an error is established the appeal should be dismissed pursuant to Criminal Appeals Act s 14(2) because the magistrate's conclusion in respect of the appellant's defence of provocation remains unaltered and no miscarriage of justice results. I am not satisfied that no substantial miscarriage of justice has occurred on that basis. The magistrate applied the wrong standard in determining the objective element of provocation and failed to have regard the appellant's experience of assaults upon him in determining that the appellant's act in pushing the complainant was disproportionate to her wrongful act or insult. It is necessary to have regard to the whole of the complainant's conduct at the relevant time. Acts which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause an ordinary person to lose his self‑control and act in the way the accused did: Stingel v The Queen at 326. In this case it is not just the conduct of the complainant in touching or hitting the appellant immediately before he pushed her that is to be taken to account. That conduct must be considered together with the conduct of the complainant which preceded it. A finding that the act of the appellant in pushing the complainant would not necessarily be found to be disproportionate to the provocation.
Ground 5
Ground 5 is that the learned magistrate erred by failing to deal correctly or at all with the character evidence called on behalf of the appellant. Three witnesses gave character evidence on behalf of the appellant. Evidence of good character of an accused can have probative significance in relation to both the accused's propensity to commit the crime charged and the accused's credibility generally: Melbourne v The Queen (1999) 198 CLR 1 [30]; Donaldson v The State of Western Australia [2007] WASCA 216 [76] ‑ [79]. Each of the character witnesses knew the appellant through his employment in the security industry. The evidence could be probative both in relation to the appellant's credibility and in relation to his propensity to commit an assault in the course of his duties as a crowd controller.
The only reference made by the magistrate in his reasons to the character evidence is:
He comes to the court as a person of good character. So be it. He is no leaving here in my eyes as the same, that is for sure.
This is not a case where the magistrate may have considered the character evidence but not referred to it. The magistrate referred to the evidence but did not take it into account in assessing the appellant's credibility or the likelihood that he would have pushed the complainant other than in self‑defence or under provocation.
In Melbourne v The Queen the question before the High Court was whether there had been a miscarriage of justice because the trial judge had directed the jury only in relation to one aspect of good character evidence. The trial judge had told the jury that evidence of the good character of the accused could be taken into account on the issue of that person's guilt, but her Honour failed to direct the jury that the evidence could also be taken into account when assessing the accused's credibility. A majority of the High Court held that the trial judge had a discretion whether to give a good character direction in relation to the accused's credibility. The majority held that the character evidence in relation to the accused's credibility in that case did not have such probative significance as to require the trial judge to give a direction.
In the recent case of Francis v Todd [2011] WASC 185, Edelman J considered an appeal from a conviction for unlawful wounding. One of the grounds of appeal was that the magistrate erred in failing to exercise his discretion to take into account evidence of the appellant's good character in assessing whether the prosecution had proved that the appellant was guilty of the offence charged. Edelman J referred to the decision of the High Court in Melbourne v The Queen and observed at [51] that the same reasoning about good character must apply to the legal reasoning in a magistrate's decision, which stands in place of a direction to the jury, but that one qualification is that the exercise of a magistrate's discretion to provide reasons in relation to good character must also be understood in light of Magistrates Court Act 2004 (WA) s 31. Section 31 of that Act requires that a court's reasons for a judgment must identify the facts accepted and the law applied, the reasons for doing so, and the underlying intellectual process behind the conclusion reached. Edelman J observed that s 31(1) has not removed the obligation to consider and refer to good character evidence in cases where, as a matter of law, it would otherwise be concluded that a magistrate's discretion should have been exercised to make that reference. As Edelman J observed in Francis v Todd, in order to determine whether the magistrate was required to exercise his discretion to consider and refer to the good character evidence, it is necessary to consider the significance of that evidence to the case.
The good character evidence adduced by the appellant was potentially relevant to the appellant's case in relation to each of his two defences as well as to his credibility generally. First, the good character evidence supported the defence of self‑defence because it could support the submission that the appellant was not the sort of person who would have committed the harmful act unless he had an honest belief that he would, himself, be subjected to a harmful act. Secondly, the evidence of good character supported the appellant's defence of provocation because it supported a submission that the appellant was not the sort of person who would assault a customer or prospective customer without provocation.
The magistrate rejected the appellant's defence of self‑defence because he did not believe that the appellant believed that pushing the complainant was necessary to defend himself. The magistrate found that the appellant was not a truthful witness. That finding is based upon the magistrate's assessment of the CCTV recording. The magistrate found that the images show the complainant pushing the appellant on the biceps below the shoulder nowhere near the face. The magistrate is entitled to make his own assessment of the images on the CCTV recording. The respondent submitted that it was open on the evidence for the magistrate to favour the direct evidence of the CCTV, the photographs and the complainant, over the evidence of the accused and Mr Theelen. The respondent further submitted that in light of the magistrate's clear findings that the appellant was not punched in the head by the complainant and was not clearing space, but rather advanced on the complainant, it is reasonable to infer that the good character evidence would not alter his Honour's view of the appellant's credibility. Accordingly, the respondent submits that the lack of an express statement by the magistrate as to how, if at all, the character evidence materially altered his assessment of the appellant's credibility was not a substantial omission from the reasons for decision. The respondent says that this case can be distinguished from Low v McLeod [2009] WASC 8 where the Supreme Court found the magistrate to have failed to explain why the character evidence had not relevance to her conclusion.
In my view the magistrate's perception of the CCTV images was not sufficient for the magistrate to disregard, in the sense of not giving any consideration to, the character evidence upon his assessment of the appellant's credibility, whether the appellant believed pushing the complainant was necessary to defend himself and whether the conduct of the complainant provoked the appellant to push her. The DVD recording of the CCTV images was played many times during the hearing of this appeal using a DVD player and large television screen. My perception of the CCTV recording is that the images are not very clear. In the moments immediately before the appellant pushes the complainant there appears to be some contact between the complainant's hand and the appellant. Senior counsel for the appellant maintained that the images were consistent with the complainant hitting the appellant on his head or face. The images are not clear enough to be able to reject the possibility that the complainant's hand made contact with the side of the appellant's lower jaw or neck without consideration of the contrary evidence. In those circumstances the magistrate erred in not considering the character evidence.
The next question is whether the no substantial miscarriage of justice proviso should be applied. I will consider that issue after considering grounds 6 and 7.
Ground 6 and 7
These two grounds are closely related and may be considered together. Ground 6 is that the magistrate erred by finding that the complainant was acting in self‑defence when she pushed the appellant in the throat prior to the assault on her. Ground 7 is that the magistrate erred by finding that the question of whether the complainant was acting in self‑defence when she pushed the complainant in the throat was irrelevant.
The magistrate's finding in relation to these matters is based on his perception of the CCTV recording. The magistrate found as follows. The appellant came towards the complainant, towered above her and acted in a threatening manner. The appellant was pushing into the complainant's personal space and she put up her hand to his neck area to stand her ground and stop him approaching further. In considering the defence of self‑defence the magistrate again referred to the complainant putting her hand up to the appellant's throat. The magistrate said that she was acting in self‑defence but that was not 'particularly relevant' to the issue of self‑defence or provocation because it occurred at a slightly different time where, after the appellant goes back to the front of the line the complainant pushes him on the arm again.
In assessing the defence of self‑defence raised by the appellant, the magistrate paid particular attention to the complainant's action that was most proximate to the appellant's harmful act, that was the complainant pushing the appellant on his arm or shoulder. The magistrate considered the appellant's response to that act and found that the appellant was not acting in self‑defence. The magistrate found that after the complainant put her hand up to the appellant's throat the appellant returned to his position at the head of the line. After that had occurred the complainant then again approached the appellant from behind. The magistrate found that the complainant then hit the appellant on the shoulder or biceps and it was in response to that contact that the appellant pushed the complainant.
I find that the magistrate's finding that the complainant was acting in self‑defence was open. In any event, whether or not the complainant was acting in self‑defence at the time she put her hand to his throat occurred sometime before the appellant pushed the complainant in response to her hitting him on the arm or shoulder. The magistrate's finding in relation to the lawfulness of the complainant putting her hand to the appellant's throat does not alter the magistrate's finding that there were no reasonable grounds for the belief that his act of pushing the complainant was necessary to defend himself or a reasonable response to being hit on the shoulder and the magistrate's finding that the force used by the appellant was disproportionate to the provocation. If the magistrate made any error of law it was not material to this appeal. Grounds 6 and 7 are not made out.
Substantial miscarriage of justice
I have found that grounds 3, 4 and 5 are made out. Criminal Appeals Act 2004 (WA) s 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The proper approach to the application of the proviso was considered by the High Court in Weiss v The Queen (2005) 224 CLR 300. In that case evidence was wrongly admitted which, although irrelevant, was prejudicial in the sense that it may have had an impact upon the jury's verdict of guilty. The High Court held that in relation to the application of the proviso, the task of the Court of Appeal was to consider whether, making due allowance for the natural limitations flowing from its position of having to consider the matter entirely on the record, upon the whole of the evidence, absent that which was wrongly admitted, the guilt of the accused was proved beyond reasonable doubt: [41] ‑ [42]. In Challis v The State of Western Australia [2014] WASCA 8 McLure P recently summarised some of the relevant principles enunciated by the High Court in Weiss:
The principles relating to the proviso are not in dispute. Their application is. The assessment of whether an error of law gives rise to a substantial miscarriage of justice is undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty: Weiss v The Queen (2005) 224 CLR 300 [41].
The appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. There are cases in which it is possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury: Weiss [43]. [50] ‑ [51].
I am required to make my own independent assessment of the evidence. That assessment must be taken on the whole of the record of the trial including the fact that the magistrate found the appellant guilty. There was evidence which raised the defences of self‑defence and provocation. The court may only find there was no substantial miscarriage of justice if it is satisfied that the prosecution negatived the defences of self‑defence and provocation and thereby proved the appellant was guilty beyond reasonable doubt. The appellant gave evidence which if accepted may prevent a finding of guilt beyond reasonable doubt. I am not satisfied that notwithstanding the errors of law made by the magistrate, having regard to the evidence of the complainant and the other prosecution witnesses and in particular the CCTV recording that the appellant's guilt was proved beyond reasonable doubt.
Conclusion
I find that the grounds 3, 4 and 5 of the grounds of appeal are made out. I am not satisfied that notwithstanding the errors of law made by the magistrate there has been no substantial miscarriage of justice. Leave to appeal should be granted, the conviction should be set aside and a new trial ordered.
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