Russell v Green
[2016] WASC 251
•16 AUGUST 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RUSSELL -v- GREEN [2016] WASC 251
CORAM: BANKS-SMITH J
HEARD: 26 JULY 2016
DELIVERED : 16 AUGUST 2016
FILE NO/S: SJA 1019 of 2016
BETWEEN: BEVAN JOHN RUSSELL
Appellant
AND
LEANNE GREEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :AR 3655 of 2015
Catchwords:
Criminal law - Single judge appeal against conviction - Conditional suspended imprisonment order - Supervision requirement - Whether failure to report as directed - Evidence of direction
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14, s 39
Sentence Administration Act 2003 (WA), s 76
Sentencing Act 1995 (WA), s 83, s 84, s 84B, s 84J
Result:
Leave to appeal refused and appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J G Kitto
Respondent: Ms D Van Nellestijn
Solicitors:
Appellant: Kitto & Kitto
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Murphy v Spencer [2013] WASC 256
R v Grassby (1992) 62 A Crim R 351
Senat v Senat [1965] 2 All ER 505
The State of Western Australia v Rayney [2013] WASCA 219
BANKS-SMITH J:
Introduction
The appellant seeks leave to appeal against his conviction in the Magistrate's Court of one count under s 84J(1) of the Sentencing Act 1995 (WA) of breaching a conditional suspended imprisonment order (CSIO) made by the Perth District Court on 5 December 2014 in respect of the offence of perjury, by failing to report for supervision as directed by a community corrections officer (CCO). The supervision requirement was imposed by way of a primary requirement under s 84 of the Sentencing Act.
At the trial on 24 February 2016, the only matter that remained for determination was whether or not the appellant was given a direction by a CCO on 5 February 2015 to report for supervision on 19 February 2015. The learned magistrate was satisfied the direction was given.
The appellant alleged by his proposed grounds of appeal that the learned magistrate erred in law and in fact such that the conviction should be set aside.
The prosecution case
The prosecution alleged that on 5 February 2015, the appellant was directed by senior CCO Rebecca Anthony to attend for supervision at the South‑East Metro Community Corrections office on 19 February 2016. The appellant did not attend on that date.
The prosecution alleged the direction to attend was both oral and written (24 February 2016, ts 7). The prosecution called one witness, being Ms Anthony. Ms Anthony gave evidence that:
(a)She regularly supervises and interacts with offenders (ts 13, 14).
(b)She was the appellant's case manager and was responsible for ensuring he met his CSIO requirements and attended his appointments as directed (ts 14).
(c)On 5 February 2015 the appellant arrived late for his appointment and outside the time for that centre's urinalysis testing, so she gave him two directions (ts 14).
(d)The first direction was to attend the following day at the North‑West Metro Adult Community Corrections Centre at Mirrabooka for urinalysis (ts 15).
(e)The second direction was to attend again at the South‑East Metro Community Corrections office for supervision on 10 February 2015. During examination‑in‑chief, the following exchange occurred:
I also gave him a written and verbal direction to attend again for supervision on 19 February 2015.
So - slow down. And so you also gave him a written direction?‑‑‑A written and verbal direction.
Written and verbal direction to do what?‑‑‑To attend for supervision.
Yes?‑‑‑On 19 February.
Did you tell him where to attend to supervision? ‑‑‑Yes. That was the Southeast Metro office which is Maddington.
So that's in the notice somewhere, is it‑‑‑? Sorry. He was given the first card which had - it was a different centre. We write that centre on there and then the separate card has our address stamped on the front and so he's given that card and - yes - told to return for supervision to the same office (ts 15).
(f)Ms Anthony took a handwritten note during her appointment with the appellant on 5 February 2015 (ts 16).
(g)Ms Anthony also made a case note the day after the appointment (6 February 2015), which she explained she did by entering information on a database (ts 19). She entered the information herself (ts 18). All interactions with an offender are entered on the database by the officer responsible. The data base:
records the content of the supervision, any directions they were given and - yes - how they were directed to attend that appointment (ts 16).
The handwritten note and a copy of the electronic case note (case note) were in evidence (exhibit 4, exhibit 5). The handwritten note said:
SHG left @ home. Holyoake yesterday - Neil. 1st appt. Next one TBA. UA Mirrabooka 6/2 2pm. No changes. No issues. NPC. Next s/v 19/2 10.45.
Ms Anthony explained her abbreviations: SHG (self help guide); UA (urinalysis); NPC (no police contact). She was asked to explain the meaning of 'next s/v 19/2' and said:
That indicates that I've asked him - well, directed him to return on the 19th of February at 10.45am for a supervision interview, your Honour (ts 17).
The case note said:
Client attended as directed; however an hour late
CCO advised that he has arrived too late for a random UA today and directed him to attend NWM 06/02/15 at 2 pm for UA
Address provided. Client indicated his understanding.
Client advised he left his self‑help guide at home and CCO directed him to complete extra pages and return at next SV
Client reported attending Holyoake 04/02/15 ‑ next appt TBA ‑ CCO to confirm.
Nil changes/issues.
Next DTR ‑ 19/02/15 - appt card provided
Ms Anthony said that 'DTR' in the case note means 'direction to report' (ts 19).
The appellant's defence
The defence case was that on 5 February 2015 the appellant was not given a direction to report on 19 February 2015. It was not in issue that the appellant failed to report, but the appellant contended that he had a reasonable excuse in that he was not directed to do so.
The appellant did not give evidence.
Ms Anthony was cross‑examined about the appointment with the appellant of 5 February 2015. This exchange occurred as to the case note:
So you've got no proof at all that you gave him that card?‑‑‑I have my case note which is documented on our database.
Which you wrote one day and three hours later?‑‑‑Yes. I've written 'appointment card provided'.
But you wrote those notes based on your memory of what happened?‑‑‑Correct.
...
[in the second line of the case note it says] ‑ ‑ ‑ and directed him to attend North West Metropolitan, 6 February 2015 at 2pm, for UA?‑‑‑That's correct.
So the crucial words there are 'and directed him to attend'. So you recorded that?‑‑‑Yes.
…
--- Why didn't you write down the bottom there 'next direction to report 19.2.2015 and directed him to attend that'? Well, why the change of language?‑‑‑Because it says 'next direction to report', so that indicates that's a direction I've given him ‑ ‑ ‑
Yes?‑‑‑with an appointment card (ts 23).
There was a further exchange:
Isn't it possible you've written down there that you formed in your mind you had told him to come back on the 19th but it's quite possible you didn't give him any card?‑‑It is possible but it's very rare. It's best practice to give them a card at the end of every single appointment.
...
All right. I put it to you that you could have well forgotten to give him that card - could have forgotten to give him that card?‑‑‑Is that a question you're asking me?
Yes. You've already said it's possible?‑‑‑Well, it is possible but it's doubtful (ts 24).
An appointment card for the urinalysis appointment on 6 February 2016 was tendered by the appellant's counsel (exhibit 6). The handwriting on it (stating the address for the North‑West Metro Centre at Mirrabooka and the date) was consistent with Ms Anthony's evidence.
The magistrate's findings
His Honour delivered ex tempore reasons and assessed the evidence as follows:
(a)Ms Anthony gave evidence on oath that she gave the appellant the card dated 5 February 2015 advising him of the appointment for 19 February 2016 and that evidence was supported by notes produced by her as an exhibit (ts 19).
(b)As to the notes:
That - on those notes, she noted that a card was given to him - in fact, on the - on her handwritten notes, she says next appointment was the 19th of the 2nd at 10.45. So there's that evidence. That there's a note on her handwritten notes that he was advised that his next appointment was on the 19th of the 2nd. The next day, she entered that information into the computer, and in that, there, she said:
Next appointment: 19.2.15. Appointment card provided (ts 29).
His Honour concluded that:
[A]s a result of the evidence given by Ms Anthony, I'm satisfied beyond reasonable doubt that she did give him the card on the 5th of the 2nd to appear on 19.2.15, and I come to that conclusion because I've got no scope to come to any other conclusion. There's no evidence contrary to the fact that she gave him the note on the 5th of the 2nd. So the charge is proven (ts 30).
The proposed grounds of appeal
Ground 1 of the appellant's proposed grounds of appeal alleges:
The Learned Magistrate erred in fact (on 3 separate findings) in finding Ms Anthony's notes corroborated her oral evidence that she directed the Appellant to attend on 19 February 2015, when in fact the notes only record the Appellant's next supervised date was 19 February 2015, not that the appellant was directed to attend then.
Ground 2 alleges:
The Learned Magistrate erred in fact in finding, 'I've got no scope to come to any other conclusion. There's no evidence contrary to the fact that she gave him the note on the 5th of February…' in circumstances where the only evidence was from Ms Anthony who testified that it was possible, though doubtful, she didn't give the appellant a direction (ts 24).
Ground 3 alleges:
The Learned Magistrate erred in law by applying a standard of proof other than the criminal standard, or in the alternative erred in fact in finding the criminal standard of proof was met, by finding Ms Anthony directed the appellant to attend on 19 February 2015, in circumstances where the only evidence was from Ms Anthony who testified that it was possible, though doubtful, she didn't give the Appellant a direction (ts 24).
The principles relevant to the appeal
Leave of the court is required for each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA) (CA Act). Leave must not be given unless this court is satisfied the ground has a reasonable prospect of succeeding: s 9(2) CA Act.
Section 39(1) of the CA Act provides than an appeal court must decide an appeal on the evidence and material that was before the lower court; that is, the appeal is by way of a rehearing on the evidence that was received in the Magistrates Court (subject to s 39(3), s 39(4) and s 40).
The court is obliged to review the whole record of the trial and to make its own independent assessment of the evidence. However, it must make due allowance for the 'natural limitations' in an appellate court proceeding on the record. Those limitations include that the trial judge had the benefit of seeing and hearing the witnesses: Murphy v Spencer [2013] WASC 256 [63] ‑ [64] (Corboy J); The State of Western Australia v Rayney [2013] WASCA 219 [372] ‑ [375].
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: s 14(2) CA Act.
The statutory scheme ‑ direction from CCO
There is no statutory obligation for a direction to an offender to attend for supervision to be given in writing. There are obvious practical benefits in doing so, but it is not a statutory requirement.
By s 83(1)(d) of the Sentencing Act, the offender must comply with s 76(2) of the Sentence Administration Act 2003 (WA), which includes an obligation to comply with lawful directions of any CCO. A requirement by a CCO that the offender must contact the CCO as ordered by a CCO falls within the scope of a supervision requirement: s 84, s 84B(2) Sentencing Act. Section 84J(1) provides that an offender who breaches a CSI requirement (which includes a supervision requirement) without reasonable excuse, proof of which is on the person, commits an offence.
Against that legislative backdrop, it was not in issue that Ms Anthony was a CCO and that she was authorised to issue directions to the appellant to attend for supervision visits by way of his supervision requirements under the CSIO.
It was accepted by the appellant's counsel several times during the hearing of this appeal that a direction could be oral. Indeed, it was said by counsel that had there been a finding that Ms Anthony's evidence as to the oral direction was accepted and a finding that an oral direction had been made, there would have been no complaint about the outcome of the hearing (26 July 2016 ts 2, 3, 8).
Ground 1
As became apparent from the appellant's written submissions, the appellant's complaint was based on three findings, said to be that:
(a)Ms Anthony's evidence that she gave the appellant a card was 'supported by notes produced by her and going into court as an exhibit'.
(b)'On those notes, she noted that a card was given to him'.
(c)'There's a note on her handwritten notes that he was advised that his next appointment was on the 19th of the 2nd'.
The appellant then contends that the handwritten notes do not corroborate Ms Anthony's evidence.
There are two answers to ground 1. First, the reasons reveal no reference to 'corroboration'. The respondent acknowledged the notes did not corroborate the evidence (referring to Senat v Senat [1965] 2 All ER 505, 509 ‑ 510, 512). The magistrate in fact said that the notes (and properly understood the magistrate was not referring to only the handwritten note) 'supported' the oral evidence of Ms Anthony. That finding is sound: the notes are consistent with her oral evidence.
Second, ground 1 is based on the appellant's artificially narrow approach to the magistrate's reference to the 'notes.' The appellant refers only to the handwritten note. The first and second references to 'notes' by the magistrate are properly understood as references to both the handwritten and case notes. The magistrate also deals with the case note in the same passage of the transcript (see [15] above).
The complaint as to the handwritten note ([28(c)] above) assumes the magistrate was quoting that note verbatim. There is no reason to make that assumption, especially as the note uses the word 'supervision' (abbreviated) rather than 'appointment'. It is true that the handwritten note does not contain the exact words, 'he was advised that his next appointment was on the 19th of the 2nd'. However, it does expressly refer to the next supervision on 19 February at 10.45 am. To that extent, it is consistent with the oral evidence. The handwritten note is not in any manner inconsistent with it. The case note records the direction to report, the date of 19 February 2015 and that the appointment card was provided. That information is entirely consistent with the oral evidence.
In my view, there was no error of fact. Even if there was an error of fact in that the magistrate wrongly found the handwritten note recorded that Ms Anthony directed the appellant to appear, then viewing the totality of the evidence, I do not consider such error impacted on the magistrate's conclusion. Accordingly, there was no error such as to give rise to a miscarriage of justice.
The ground does not have a reasonable prospect of success and I would refuse leave on this ground.
Ground 2
The gravamen of the appellant's complaints in grounds 2 and 3 is the same. In essence, it is that there had been a miscarriage of justice as it was not open to the magistrate to have been satisfied that the prosecution had established beyond reasonable doubt that the direction to report had been given and accordingly breached.
The basis for both grounds is the evidence of Ms Anthony under cross‑examination set out above that it was 'possible but very rare' or 'possible but doubtful' that she forgot to give the appellant the card.
It does not follow from a concession under cross examination that something is 'possible' that a court cannot be satisfied beyond reasonable doubt that what the witness said was true. It is for those assessing the witness to form a view as to the significance of the concession. The position was summarised by Mahoney J in R v Grassby (1992) 62 A Crim R 351, 361 as follows:
The significance of 'possible' in such a concession must be assessed having regard to the evidence as a whole and the context in which it is given. 'Possible' may indicate a reasonable doubt by the witness as to whether what he has said is a true account of what happened. It may indicate merely that the witness is not prepared to exclude the logical possibility of another position without in any way indicating doubt as to the correctness of what he has said.
Having had the benefit of seeing Ms Anthony give her evidence, it is the magistrate who was best placed to assess her references to 'possible'. It is apparent from his reasons that he did not consider those statements cast any real doubt on her evidence that she had given the appellant the appointment card.
In addition to reading the notes, the magistrate heard the witness give evidence to the effect that she gave the appellant the card and told him to return for supervision, and that she gave the appellant a written direction to attend (said twice: ts 15). Considering all of the evidence and the absence of any evidence to the contrary, I am satisfied that it was open to the magistrate to conclude that despite Ms Anthony's evidence as to 'possibility', there was no reasonable doubt that she gave the direction to the appellant by way of the card. Accordingly, I do not consider ground 2 has a reasonable prospect of success and I would not grant leave.
Ground 3
The magistrate twice referred to the standard of proof as being 'beyond reasonable doubt' (ts 29 ‑ 30). There was no error of law. The appeal ground overlaps with ground 2 and so for the same reasons, I would refuse leave for ground 3.
Other matters ‑ the oral direction
The magistrate made no finding as to whether there had been an oral direction and confined his reasons to a consideration of whether or not the card was provided to the appellant. During oral submissions, counsel for the appellant also sought to rely on the magistrate's alleged error in overlooking the evidence as to the oral direction and so 'wrongly' confining the case. It was said that the magistrate was in error in failing to address the oral direction and that this error compounded his other alleged errors (ts 29, 30).
The appellant did not seek to formally raise this alleged error as a proposed ground of appeal, but it was addressed in submissions by both the appellant and respondent. It seems to me that even if the magistrate erred in failing to address the oral direction, there was no error such as to give rise to any miscarriage of justice. The evidence of Ms Anthony that she gave an oral direction was uncontested. It was not challenged under cross‑examination. The magistrate, having had the benefit of observing Ms Anthony, accepted her oral testimony as to the card having been given and there is no reason to doubt the veracity of Ms Anthony's evidence that she also gave the direction orally.
In the circumstances, there is no basis for suggesting the outcome for the appellant would have been any different had there been a finding as to the oral direction.
Orders
For the above reasons, none of the appellant's grounds of appeal have any reasonable prospect of success. The application for leave to appeal and the appeal should be dismissed.
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