Shinkawa v Gannaway
[2015] WASC 75
•4 MARCH 2015
SHINKAWA -v- GANNAWAY [2015] WASC 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 75 | |
| Case No: | SJA:1055/2014 | 20 JANUARY 2015 | |
| Coram: | CORBOY J | 4/03/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NOBUYA SHINKAWA CALUM FRANK GANNAWAY |
Catchwords: | Criminal law Single judge appeal against conviction Whether finding that CCTV film had not been edited an error Whether magistrate erred by not adjourning Whether trial conducted in a way that was unfair to the appellant |
Legislation: | Nil |
Case References: | Eley v Town of Victoria Park [2014] WASC 103 Lassock v Seidner [2013] WASC 94 Myers v Myers [1969] WAR 19 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CALUM FRANK GANNAWAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E K LANGDON
File No : FR 5058 of 2013
Catchwords:
Criminal law - Single judge appeal against conviction - Whether finding that CCTV film had not been edited an error - Whether magistrate erred by not adjourning - Whether trial conducted in a way that was unfair to the appellant
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms G A S Bailey
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Eley v Town of Victoria Park [2014] WASC 103
Lassock v Seidner [2013] WASC 94
Myers v Myers [1969] WAR 19
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
- CORBOY J:
The appeal and the result
1 The appellant, Mr Shinkawa, was convicted of the charge that on 21 April 2013 he unlawfully assaulted Mathew Yang Kiaw Sim. He was fined $1,500 and ordered to pay the costs of the prosecution fixed at $265.75.
2 The appellant has appealed from his conviction. He represented himself at the trial and in the appeal.
3 The prosecution case was that the appellant assaulted Mr Sim by spitting on him while Mr Sim was working in a pharmacy. The prosecution tendered at the trial a disc recording film that was taken by CCTV cameras located in the pharmacy. The appellant alleged that Mr Sim had punched him and that the CCTV film played at the trial had been edited to delete footage that captured the assault on him.
4 The appellant alleged by his proposed ground of appeal that:
Gannaway (PD 13969) edited the CCTV footage to shorter version and get rid of the scene that victim Sim Mathew Yang Kiaw tried to assault me first. Magistrate Langdon neglected the appeal that the scene Sim Mathew Yang Kiaw tried to punch me was cut and CCTV is partial and not full footage even though Sim Mathew Yang Kiaw admitted he tried to assault me.
5 A directions hearing was held to further clarify that ground of appeal. The appellant made various allegations at the hearing about the conduct of the trial and the evidence on which he was convicted. An order was made for a further hearing to determine whether the appellant should be granted leave to appeal on any of the following matters:
(a) whether the learned magistrate had erred in finding that the CCTV film played at the trial had not been edited so as to delete footage that would have shown that the appellant had been assaulted by Mr Sim;
(b) whether the learned magistrate had erred by not adjourning the trial;
(c) whether the learned magistrate had erred by not disqualifying herself from continuing to preside over the prosecution of the charge alleged against the appellant.
6 The appellant's submissions at the leave hearing were not specifically directed to those matters. He made submissions generally on why his conviction should be set aside. Those submissions included allegations that the trial had been unfair and that there had been insufficient evidence on which the learned magistrate could have been satisfied that he was guilty of the offence with which he had been charged. I have considered all of the appellant's submissions in reviewing the trial transcript.
7 Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the court is required for each proposed ground of an appeal. The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court of Appeal stated:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].
8 I have concluded that leave to appeal should be refused applying that test and the appeal will be dismissed.
The prosecution case
9 In April 2013, Mr Sim worked as a pharmacist in a pharmacy located in Fremantle. The appellant went to the pharmacy for the purpose of having two scripts filled. There was a disagreement between the appellant and Mr Sim over the quantity of medication that could be dispensed on the scripts. Mr Sim's evidence was that the appellant wanted six months' supply of the medication whereas Mr Sim was only prepared to dispense three months' supply. The appellant did not dispute Mr Sim's evidence on that point.
10 The prosecution case was that the appellant left the pharmacy at Mr Sim's request but returned later that afternoon in an agitated state. He was asked to leave and, as he did so, he abused Mr Sim and then spat in his face. Mr Sim followed the appellant out of the pharmacy. The appellant then spat at Mr Sim twice before entering his car and driving away. A security person employed by the pharmacy, Mr Soomro, assisted Mr Sim in escorting the appellant from the shop.
11 Mr Sim reported the incident to the police and provided them with a CD recording CCTV film that had been taken in the pharmacy. The CD was received as an exhibit (exhibit 1) and played during the trial. Mr Soomro gave evidence that he had burnt the CD from the CCTV film that had been taken in the pharmacy that day.
The CCTV film
12 It will assist in explaining the appellant's case at trial and the gist of his allegations in the appeal to commence with a description of the CCTV film that was recorded on the disc that was exhibit 1. The disc contained five film clips. Each clip was apparently taken by a different camera.
13 The first clip commenced, according to the camera's clock, at 12:54:44 and went for approximately 1 minute 55 seconds. The film shows a service counter and two women serving customers. There is a row of shelves behind where customers stand to be served. The shelving runs parallel with the service counters so as to form an aisle.
14 As the film commences, a person wearing a white coat can be seen standing at the end of the row of shelves. The face of the person is obscured because he is at the top of the camera's range. It quickly becomes apparent that the person is talking to somebody who is obscured by another customer. It can be seen at approximately 17 seconds into the film that the person in the white coat is Mr Sim and the other person is the appellant. Mr Sim can be seen in the preceding seconds to move slightly towards the appellant, apparently to stop him proceeding further down the aisle. Mr Sim extends his hand to apparently give something to the appellant. He twice extends his hand towards the appellant but not in a way that could be described as a punch or as an attempt to punch him.
15 At about 17 seconds onwards Mr Sim and the appellant are seen talking together. The appellant then moves to the service counter and is served by one of the women at the counter. The exchange between the appellant and Mr Sim continues in an animated way. The appellant is seen gesticulating and pointing towards Mr Sim. Mr Sim then moves to the service counter and stands next to the appellant, apparently explaining something about the scripts that he had been asked to fill. They continue to converse in an animated way while the appellant pays for and receives various items. Mr Sim then walks away from the appellant. He is holding at least two sheets of paper. The appellant collects the items that he has purchased and moves in the same direction that had been taken by Mr Sim. He moves out of the camera's range.
16 There is no footage showing the appellant entering the pharmacy or going to that part of the shop where his script was given to Mr Sim or somebody else for the prescription to be dispensed. There is no film showing any interaction between Mr Sim and the appellant prior to what is recorded in the first film clip.
17 The second film clip commenced, according to the camera's clock, at 16:10:05 and went for approximately six minutes and 37 seconds. It first shows the appellant standing in front of an empty counter. The counter is different from the service counter that was shown in the first film clip. At approximately 13 seconds, a man dressed in a pharmacist's white gown (not Mr Sim) approaches and speaks to the appellant. At approximately 1 minute and 8 seconds, Mr Sim joins the two men. Mr Sim is standing on the opposite side of the counter to the appellant. At approximately 2 minutes and 13 seconds, Mr Soomro appears. He takes up a position on the same side of the counter as the appellant. Mr Sim passes some paper to Mr Soomro and after some discussion Mr Soomro gives the paper to the appellant. Mr Sim has left the counter by this time. However, Mr Sim returns to the counter and there is a discussion between himself and the appellant about the paper that has been given to the appellant. It is apparent that the paper is a script. Mr Sim then moves out of the camera's range, but it appears that he and the appellant continue to discuss the script; the appellant also conducts an animated conversation with Mr Soomro. At approximately 5 minutes and 35 seconds, the appellant commences to walk away from the counter and towards the front door of the pharmacy. Mr Soomro moves to follow him, but the appellant turns and comes back to the counter. Mr Sim then returns to the counter and there is a further discussion about the script. At about 6 minutes and 25 seconds, Mr Sim moves from behind the counter and points towards the front door of the pharmacy. He places his hand on the appellant's back to guide him towards the front door. Mr Soomro follows behind. They move out of camera range before reaching the front of the pharmacy. No female staff member is involved in any exchange with the appellant in this clip (indeed, at one point a female staff member briefly appears and is directed away by Mr Sim).
18 The third clip is taken from a camera apparently located inside the pharmacy above the front door. According to the camera's clock, the clip commences at 16:17:14 and lasts for approximately four seconds. It shows the appellant ahead of Mr Sim and Mr Soomro. The appellant is facing Mr Sim, but is side on and is moving quickly towards the front door. Mr Sim and Mr Soomro are hurrying after him.
19 The prosecution alleged that this clip recorded the appellant spitting on Mr Sim. It was difficult to see this due to the quality of the film.
20 The fourth clip is also taken from a camera located inside the pharmacy above the front door. However, the camera is pointing in a different direction to the camera that was used to take the third clip. The camera's clock shows the clip as commencing at 16:17:29; the clip lasts approximately four seconds. It shows Mr Sim guiding the appellant out of the front of the shop. Mr Sim's hands are on the appellant's back but he does not appear to be applying much force. The prosecution alleged this clip also showed the appellant spitting on Mr Sim. The film does show Mr Sim reacting in a way that is consistent with him having been spat on by the appellant.
21 The fifth clip is taken from a camera located immediately outside the front door of the pharmacy. The film is timed as commencing at 16:17:51 and plays for approximately three seconds. It shows the appellant walking past Mr Sim on the footpath. The appellant is looking towards Mr Sim.
The relevance of the appellant's allegations
22 The appellant did not challenge by his proposed ground of appeal the finding that he had spat on and at Mr Sim. He did not deny spitting on Mr Sim when he was given an opportunity in his evidence-in-chief to give his version of what had occurred. However, he stated in cross-examination that he only saw himself shouting in the CCTV film - 'I didn't see any spit or anything. I saw I was talking to him' (ts 55). He also suggested at points in the trial that the prosecution ought to have presented DNA evidence to prove that he had spat on Mr Sim.
23 Chapter XXVI of the Criminal Code concerns 'assaults and violence to the person generally: justification, excuse and circumstances of aggravation'. Section 222 of the Code defines the meaning of the term 'assault'. The act of spitting on a person is an assault within that definition. Section 223 provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. The balance of ch XXVI sets out the circumstances in which an assault may be authorised or justified or excused. Two sections are potentially relevant: s 246 (the defence of provocation) ands 248 (self-defence).
24 Section 246 of the Code 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, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Whether any particular act or insult 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 or insult is done or offered, 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.
25 Section 245 defines the term 'provocation':
The term provocation used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, 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, and to induce him to assault the person by whom the act or insult is done or offered.
26 Section 248(2) of the Code provides that a harmful act done by a person is lawful if the act is done in self-defence unders 248(4). An assault is a harmful act for the purpose ofs 248(2) ands 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.
27 The appellant's primary focus in the trial was not on the issue of whether he had spat on or at Mr Sim. Rather, he was preoccupied with establishing that the CCTV film had been edited and that Mr Sim had punched or attempted to punch him.
28 It is necessary, in reviewing the evidence, to allow for the fact that English is not the appellant's first language and that he represented himself at the trial. However, there is almost nothing in the numerous statements that he made during the trial or in his evidence that suggested that the appellant had spat at Mr Sim in retaliation for being punched. That was consistent with either his denial that he had spat at Mr Sim or his arguments to the effect that the prosecution had not proved that this had occurred.
29 There was only one point in the trial that the appellant raised the possibility that he was defending himself. The prosecutor put to him that he had spat on Mr Sim as shown in the third film clip. The appellant answered, 'he tried - he come to punch me so I've defended' (ts 57). He repeated that assertion shortly afterwards (ts 58).
30 It was not clear whether the appellant was admitting in that part of his evidence that he had spat on Mr Sim but that he had done so in self-defence. If that was the effect of his evidence, it was inconsistent with other parts of his evidence. Most significantly, the following exchange is also recorded at ts 58 in relation to the fourth film clip:
PROSECUTOR: Yes. Thank you. Now, do you agree that you turned and you spat at him?---No, no, no. I didn't - I don't.
I - what my proposition to you is, sir, is that clearly shows - - - ?---Maybe I - it looks like I couldn't so I shout at him.
Listen to me, Mr Shinkawa. Please, sir, that clearly shows you spitting at him?---Okay
Do you agree with that?---Can - can you show me the evidence of my spitting on something please or DNA?
I am asking you - - -?---I didn't.
A question in relation to the video footage I say to you that clearly shows you spitting at him?---It doesn't look that way.
Yes or no?---It looks like he's going to push me and I shout - talk - shouting at him.
31 It is, of course, for the prosecution to prove that the assault that it had alleged was unlawful. However, the learned magistrate was only required to make express findings on the issue of unlawfulness if it was raised by the evidence. In this instance, the 'defences' provided by 246 ands 248 could not arise on the evidence even if Mr Sim had punched or attempted to punch the appellant. That is because the appellant alleged that Mr Sim punched him on the first occasion that he went to the pharmacy. That was approximately three hours before he allegedly assaulted Mr Sim.
32 Contrary to the assertion made in the appellant's proposed ground of appeal, Mr Sim did not admit that he punched or attempted to assault the appellant. However, Mr Soomro stated that Mr Sim attempted to punch the appellant but that was after the appellant had spat on Mr Sim; that is, during the appellant's second visit to the pharmacy (ts 40; it was not entirely clear from his evidence what Mr Soomro meant by an attempt to punch the appellant). The learned magistrate made no finding about that evidence given her understanding that the appellant alleged that Mr Sim had punched him on the first occasion that he had visited the pharmacy (and the appellant had continued to challenge Mr Soomro's evidence as to when the attempt to punch him had occurred). Mr Soomro's evidence does not assist the appellant because the alleged attempt to punch the appellant was, according to Mr Soomro, a reaction by Mr Sim to the appellant's assault.
33 It is difficult to extract from the trial transcript the appellant's version of the incidents that were the subject of evidence given by the prosecution witnesses. It is, therefore, necessary to further explain his evidence and arguments (frequently expressed as interjections in the course of the trial) by which he alleged that he was punched by Mr Sim. However, it is convenient to first note the evidence adduced by the prosecution given the general nature of the appellant's complaints about his conviction and the conduct of the trial.
Mr Sim's evidence
34 The prosecutor called three witnesses: Mr Sim, Mr Soomro and Constable Gannaway.
35 Mr Sim stated in his evidence-in-chief that:
(a) The appellant came into the pharmacy at about 12.50 pm. He had two scripts which he sought to have filled. Each script was for three months' supply of the prescribed medication. However, it was not possible to dispense six months' supply of the medication and so only one script was filled. The appellant was unhappy that both scripts had not been filled (ts 9 - 10).
(b) The appellant returned at about 4 pm. He came back for a script that he had left behind. He was upset and agitated. Mr Sim asked Mr Soomro to request that the appellant leave the pharmacy. He refused to leave. Mr Sim then asked him to leave (ts 11).
(c) The appellant made a racist comment as he started to walk towards the door of the pharmacy. Mr Sim asked him to repeat the comment, which he did, and then he spat on Mr Sim's face. The appellant then ran out of the pharmacy, with Mr Sim following. The appellant spat at Mr Sim from the pavement (ts 12 - 13).
36 The cross-examination of Mr Sim proceeded with some difficulty as the appellant largely attempted to make statements about what he alleged had occurred or sought to raise matters that were rightly regarded by the magistrate as being irrelevant. However, in the course of cross-examination, Mr Sim denied that he had punched the appellant or that he had edited the CCTV film that was provided to the police. The appellant also made statements about when he alleged he was punched by Mr Sim in the course of cross-examination. I will return to those statements later in these reasons.
Mr Soomro's evidence-in-chief
37 Mr Soomro stated that he had not been in the pharmacy when the appellant had first attended for the purpose of having his scripts filled. However, he was present when the appellant returned to the pharmacy later that afternoon.
38 Mr Soomro stated that the appellant argued with Mr Sim about the medication that could not be dispensed and then he and Mr Sim 'pushed' the appellant back towards the front door of the pharmacy. The appellant then spat on Mr Sim's face while they were pushing him towards the front door. He twice spat on or at Mr Sim's face (ts 32). The appellant turned right on exiting the pharmacy but his car was parked on the left-hand side of the front door. He turned around and walked back past the front door. Mr Sim was standing in the front door. The appellant again spat towards Mr Sim as he passed the front door (ts 33). Mr Soomro then advised Mr Sim that he should contact the police.
39 It will be necessary to return to the evidence given by Mr Soomro in cross-examination. However, it is first necessary to summarise the appellant's evidence to further explain the relevance of Mr Soomro's evidence.
The appellant's evidence
40 The appellant commenced his evidence by stating that:
[T]he sequence is wrong probably. The one that the cashier - I will call them the cashier - one of the things when they were talking that was the very beginning before he punched me or something, probably that's messed up because I need to see that footage, the CCTV, because I don't even believe it was one year ago and, yes, anyway (ts 51).
41 The appellant then alleged that Constable Gannaway had edited the CCTV film, knowing that Mr Sim had tried to punch the appellant. He then complained that the police or the court had not obtained the original CCTV film. He asked the magistrate to obtain the film for him. The magistrate then asked if he wished to say what happened on the day that the offence was allegedly committed. The appellant responded:
Okay then. Anyway. I went to the shop and then Mr Sim he made that mistake again. He told me he put three months' time. He'd brought me only one box. I am so surprised he'd made me sick again before … and then I - we had an argument and then he lost temper. He chased me to the cashier, he tried to punch me and I look for the - the security, he disappears. He didn't stop. And then we - me and - and the cashier we are talking. He should have stopped right away but he left (ts 53).
42 The appellant then complained that security had not intervened and that Mr Sim should be charged with assault (ts 53).
43 The appellant raised for the first time at the end of his cross-examination the possibility that he required a translator in order to be able to understand the questions that he was being asked and to properly convey the effect of his answers (ts 59 - 60).
The allegation that Mr Sim punched the appellant
44 It is apparent from the evidence recorded at ts 53 and reproduced immediately above that the appellant alleged that he was punched by Mr Sim when he first attended at the pharmacy: only the first film clip showed the appellant interacting with somebody who could be described as a cashier (the clip shows two women serving customers; the appellant refers to 'they' in the exchange reproduced above); the first film clip shows Mr Sim following the appellant to the service counter where the 'cashier' was located; and the first film clip shows the appellant gesturing towards Mr Sim in a manner that is consistent with the appellant telling him to go away and to go to another part of the pharmacy. This had been made clear earlier in the trial when the appellant accused Mr Sim of punching him in front of two female cashiers (ts 20 and again at ts 21). The appellant then said:
Can I ask you - Magistrate, can I ask you a question? Could you please bring the two lady from cashier - did they witness he tried to punch me (ts 21 and again at ts 22, ts 23, ts 27 and ts 29).
45 Further, the appellant alleged that Mr Sim had made a mistake in filling the script and that he had kept the script to cover up the mistake. Again, it is plain from the CCTV film that this is a reference to what occurred when the appellant first visited the pharmacy. Finally, there was an exchange reproduced below between the appellant and Mr Soomro in which the appellant confirmed that he alleged that Mr Sim punched him during the first visit to the pharmacy.
Mr Soomro's cross-examination
46 As has been mentioned, Mr Soomro stated that he was not present on the first occasion that the appellant visited the pharmacy. Accordingly, he was not sighted in the first film clip - a fact that was acknowledged by the appellant in the following statement made during the cross-examination of Mr Soomro (the reference to 'you' being to Mr Soomro):
When Mr Sim tried to chase me the cashier he tried to punch me, at this - this pause, and that you - you - you then disappear. You seem to make a disappear from shop because you are not anywhere in CCTV and you - I didn't see - I look for you but I didn't see you. I didn't see you anyway. You (indistinct) - I was keep telling him go on move over, move over, go back to the job. I saw him in two minutes time. He said to me - I got my mince in my - in my hand. She - I was only asking him to move, move, move go back to the job. Stay away from me, leave me alone. And he didn't leave me alone because he tried to punch me or something. He stick with me and he came to the outside and I was looking for you to - to move him away from my - from my site?---Well, I was there (ts 35).
47 Mr Soomro's response to the appellant's statement reflected a confusion that applied throughout the cross-examination of Mr Soomro. The appellant and Mr Soomro were at cross-purposes as the appellant did not make it clear to Mr Soomro that he alleged that Mr Sim had punched him on the first occasion that he had visited the pharmacy. Consequently, Mr Soomro thought that he was being questioned about whether Mr Sim had punched the appellant during the second visit - the visit for which he was present. The appellant did not pick up that Mr Soomro was giving evidence under this misapprehension.
48 The following exchange occurred at the commencement of Mr Soomro's cross-examination:
ACCUSED: Yes. The thing is, the cashier and I was talking you should have come to stop the fighting because he was trying - Mr Sim, he was trying to punch me. He chased the cashier and he - you disappear. And you want to - - -
HER HONOUR: Okay. We will let him answer that?---Well, in the CCTV camera it's all apparent. You can see that I was there.
No, he's asking you?---Yes.
What you saw. Did you see him punch Mr Sim?
ACCUSED: No. They - Mr Sim tried to punch me. He then - she left the shop. She was supposed to stop the fighting.
HER HONOUR: Sorry. Did you see Mr Sim punch Mr - - -?---No, no. I didn't see that. I - he - of course, because if - if you spat on someone's face.
ACCUSED: No, no, no. Mr Sim, he was - tried to punch me?---No. He didn't punch you.
He was trying to punch me. You are - are not there. You're not in - anywhere in the CCTV?---But he came further to - - -
You left the shop right away because he not be - he - he didn't want to be there?---He came further to actually, you know, into action but he didn't do that actually because I stopped him.
See he didn't do that that means he tried to punch?---Yes. So what?
Yes. So what. He tried to punch - he tried to assault me?---He didn't assault you.
Yes. But he tried to assault me. He tried to punch me that's why I make a step?---But he didn't. But he didn't.
Yes. He didn't. He tried to punch - he tried to punch customer?---But what do you mean by trying? Of course if a customer misbehaves with you.
He shouldn't - he shouldn't try to punch any customer for any reason?---The next person has a right to actually, you know, defend himself and he didn't do that and - - -
He didn't do that but he - he was trying - he was almost (indistinct) assaulting customers?---What do you mean? You - you just actually, you know, are making reasons (ts 34 - 35).
49 Subsequently, the following exchange occurred:
ACCUSED: Anyway do you admit Mr Sim tried to punch me? ---Sorry, what did you say?
Do you admit Mr – Mr Sim he kind – he didn't punch me but he – he – he intend to punch me?---See, you know, everyone has got a temper. Okay. If you tried to punch – if you tried to do something against me - - -
HER HONOUR: No. Just answer his question?---Yes. He tried but he didn't. Okay. He - he moved forward to do action but he didn't do that. Okay. He didn't do that. Again because you are customer and then he has to report it to police that he didn't do any action against you.
ACCUSED: Anyway. As he said Mr Sim he tried to punch me and then the (indistinct) I was very upset my natural reaction and trying to defend myself and I didn't assault – I didn't hurt anyone?---Okay. So he tried punch you.
Yes?---He tried but he didn't. He tried after you spat on his face. Okay. After you misbehaved with him. See - - -
But it – it miss him.
HER HONOUR: Are you saying he tried to punch him after he spat on his face?---Of course (ts 39 – 40).
50 The appellant then stated 'no no', Mr Sim had tried to punch him twice 'at the beginning of everything' (ts 40).
51 It was suggested that Mr Soomro be shown the third to fifth film clips so that he could identify when it was that he alleged that Mr Sim had tried to punch the appellant. However, the appellant responded, '[n]ot before that - well – well, one o'clock. After he chased me the cashier' (ts 40). The appellant then added, '[s]o he can't be a witness. The only – only thing is that he's – he's – he – you cannot see him in the shop. That mean he's making a story … Because you don't see him in the – in the footage … Because he was out of the shop' (ts 41).
52 The third to fifth film clips were then played but the appellant said, on being invited to question Mr Soomro about those clips, '[n]o, no. My question is - my question is that anyway the first scene he was trying to punch me at the cashier'. He did not want the first clip played to Mr Soomro as 'he was not on the first scene' (ts 42). Accordingly, as has already been explained, it was plain that the appellant alleged that Mr Sim had punched him during his first visit to the pharmacy when Mr Soomro had not been present.
The evidence on the CCTV film
53 Mr Sim gave evidence that the CCTV cameras in the pharmacy had recorded all of the incidents and that he had 'burnt it and … sent it to the police station after work' (ts 13). The appellant mostly sought to make allegations against Mr Sim rather than asking questions in cross-examination. Accordingly, it was the learned magistrate who asked whether Mr Sim had edited the CCTV film. He denied having done so (ts 24).
54 He stated that he downloaded the CCTV film and burnt it onto a DVD disc following the incident. He gave the disc to Mr Sim. Mr Soomro denied that the film had been edited; whatever was captured by the CCTV camera was provided to the police (ts 38). He denied that the film had been edited in any way.
55 The respondent was a police constable then stationed at the Fremantle police station. He was the investigating officer for the complaint made by Mr Sim. He confirmed that he was provided with a copy of CCTV film that had been burnt on a CD disc. He sent the disc to the computer crime division to enable a copy to be made that was suitable for being played in court. He confirmed that there were no differences between the vision recorded on the original disc and the disc provided by the computer crime division.
56 The appellant did not put to Constable Gannaway that he had edited the DVD. However, he alleged that Constable Gannaway had edited the CCTV and had refused to disclose the edited portion.
57 In her reasons for decision, the learned magistrate stated:
I further reject [the appellant's] evidence that Constable Gannaway edited the CCTV footage so as to exclude footage of Mr Sim punching [the appellant]. I have found Constable Gannaway to be a truthful and reliable witness. He was the investigating officer who says that on 21 April 2013 he was given a copy of the CCTV footage from Mathew Sim on a CD.
He says he viewed the footage and then sent the CD to the police computer crime division so that it could be correctly formatted to be played in court. I accept as truthful Constable Gannaway's testimony that he viewed the newly formatted CCTV footage and it was an exact copy (ts 64).
The magistrate's reasons
58 The magistrate accepted the evidence given by Mr Sim and Mr Soomro as being truthful and reliable. Her Honour also found that the CCTV film corroborated their evidence to a 'significant extent'. Her Honour accepted Mr Sim's evidence as to what had occurred on the first occasion that the appellant attended the pharmacy and further found that the appellant returned to the pharmacy later that afternoon to collect his prescription that he had left behind earlier in the day. Her Honour then found that:
Mr Sim presented [the appellant] with a notice banning him from the store and [the appellant] was upset. Mr Sim asked his security guard, Mr Asadullah Soomro, to tell the accused to leave the store and the accused refused to leave. Both Mr Sim and Mr Soomro ushered the accused quickly down the aisle of the store and before leaving the store I find that [the appellant] spat in Mr Sim's face causing saliva to land on Mr Sim's face and the front of his shirt. I find that [the appellant] deliberately spat at Mr Sim while standing in close proximity to him (ts 63 - 64).
59 The magistrate rejected the appellant's evidence that Mr Sim had punched him inside the store, finding that the allegation was not supported by any of the evidence. Her Honour rejected the appellant's evidence that Constable Gannaway had edited the CCTV film, finding that he was a truthful and reliable witness.
60 The magistrate understood that the appellant alleged that he had been punched by Mr Sim in his first visit to the pharmacy. Her Honour noted that the appellant had given evidence that the sequence of the CCTV film was wrong - in particular, that the film did not show when the appellant entered the shop on the first occasion that he visited the pharmacy and did not show Mr Sim chasing him to the cashier and trying to punch him. She rejected that proposition and observed:
Compellingly, the CCTV footage shows Mr Shinkawa pacing backwards the forwards in the store at the cashier's desk, gesturing aggressively with his arms waving in the air towards Mr Sim who is standing close by him. At no stage at the cashier's desk did Mr Sim attempt to punch or strike Mr Shinkawa (ts 64 - 65).
The proposed ground of appeal
61 As the appellant stated, the first film clip does not show him entering the pharmacy. The film commences at a point where Mr Sim is just within camera range. He is standing at the top of the row of shelves that is adjacent to the service counter holding something in his left hand. His right arm appears to be slightly extended from his body. At approximately one to two seconds, a person, who is obscured by another customer, can just be seen close to Mr Sim. It subsequently becomes apparent that the person is the appellant. He is only a step or two from Mr Sim. Mr Sim then moves his arms slightly and it can be seen that he has a prescription in his right hand. He transfers the prescription to his left hand and gestures with his right arm in a manner that suggests that he wants the appellant to stop so that he can speak to him. The gestures made by Mr Sim with his right arm are not punches or attempts to punch the appellant. There appears to be a brief exchange between the appellant and Mr Sim. The appellant does not react as though he has been punched but rather, he takes a few steps past Mr Sim and then turns back towards to him (at 15 seconds).
62 The appellant is, by this time, more than an arm's length from Mr Sim. Mr Sim takes a half step towards the appellant, they lean slightly towards each other and there is a further brief exchange during which neither touches the other. The appellant then moves to the service counter. Presumably, this is the point at which the appellant alleged that Mr Sim chased him to the 'cashier'. However, the film records that Mr Sim commenced to walk back behind the row of shelves. He then stops and there is a further animated conversation between the appellant and Mr Sim with the appellant standing at the service counter and Mr Sim adjacent to the top of the shelving. They are several steps apart, although at one point the appellant moves a few steps towards Mr Sim. The appellant gestures to him to go away; to retreat to another part of the pharmacy.
63 There is no evidence that the film clip had been edited. Rather, it commences at a point when the appellant is about to come within camera range. The time sequence recorded by the camera's clock is continuous. The actions of the various people captured on the CCTV film are also continuous. There was no evidence to suggest that there was another camera that would have captured the appellant and Mr Sim from a different angle. It is very difficult, if not impossible, to see how Mr Sim could have punched or attempted to punch the appellant immediately prior to the film commencing given the position in which Mr Sim was standing and the location of the appellant when the clip started.
64 The magistrate held that Constable Gannaway was a truthful and reliable witness. She accepted his evidence that he had not edited the CCTV film provided by Mr Sim. She was entitled to do so. There was nothing in the CCTV film, in particular the first film clip, that could support an allegation that it had been edited after it was delivered to Constable Gannaway.
65 The magistrate also accepted that Mr Sim and Mr Soomro were truthful witnesses. Mr Soomro was responsible for burning the CD containing the CCTV film and he and Mr Sim denied having edited the film. The appellant has not demonstrated that the magistrate erred as alleged by the ground of appeal proposed in his appeal notice.
66 I would add that there was no basis that I could discern from a review of the trial transcript and repeated viewing of the CCTV film that was exhibit 1 for suggesting that there was substantial injustice - a substantial miscarriage of justice - as a result of the magistrate's decision to allow the trial to commence.
67 Finally, as has already been explained, the appellant would not have had a 'defence' to the charge of assault even if Mr Sim had punched or attempted to punch him on his first visit to the pharmacy. He could not have been acting in self-defence, nor could he have been provoked to spit on Mr Sim some three hours later during his second visit. Moreover, the appellant would not have possessed a defence to the charge on Mr Soomro's evidence as, according to Mr Soomro, Mr Sim made some movement (not recorded on the CCTV film) in an attempt to punch the appellant after he had been spat on.
The application for an adjournment
68 The appellant stated at the commencement of the trial that he had been told that he had to go to Melbourne to get the CCTV film from the main office of the pharmacy chain that employed Mr Sim. The appellant requested that the court obtain the 'full CCTV' (ts 7). He again alleged that the police and the pharmacy chain had edited the CCTV footage so as to exclude footage showing Mr Sim as an employee punching a customer. The learned magistrate stood the matter down briefly to enable the prosecutor to inquire from Mr Sim whether the CCTV film had been edited. The prosecutor subsequently advised that Mr Sim had instructed him that the entire time that the appellant was in the pharmacy had been captured on the CCTV film and that the disc had not been edited. Her Honour then stated:
So I take it, today, you are applying for an adjournment to obtain the full footage of the CCTV. Well, I'm not allowing that application at this stage. Perhaps - I'm not allowing it at this stage on the basis that Sergeant Barker has said that the CCTV footage that has been disclosed to you represents the entire time that you were in the chemist, and you will get an opportunity today to cross-examine the chemist about the footage.
You can ask him about the time that you were in the chemist shop and also once the - I presume the CCTV footage is going to be played to the court - once it has been played to the court, you can contradict the evidence. You can ask the witness any questions about that footage that you wish, and that includes footage that may have been available prior to the times that are played to the court (ts 56).
69 The appellant then asserted again that it was unfair that the prosecution should be permitted to play an edited version of the CCTV footage. The learned magistrate decided that she would make a decision about that as the evidence unfolded.
70 Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless serious injustice would be caused to the other party. It is fundamental to the administration of justice that an accused person must be given a full opportunity to defend a charge. However, whether an adjournment should be granted is a matter of discretion. Accordingly, the principles relevant to an appeal from the exercise of a discretion apply: see, for example, Eley v Town of Victoria Park [2014] WASC 103 [24] (Edelman J).
71 Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily. Hall J observed in Lassock v Seidner [2013] WASC 94 that:
In addition to the question of injustice to the parties it is also necessary for a judicial officer to take into account the public interest in the orderly and expeditious disposition of cases in busy courts. There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account. However, those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success: The State of Western Australia v Sillich [2011] WASCA 135 [37] (Martin CJ) [23].
72 An appellate court will not interfere with a discretionary order of this type unless there is strong reason for believing that an injustice has resulted: Myers v Myers [1969] WAR 19, 21. Further, s 14(2) of the Criminal Appeals Act 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.
73 It has not been shown that the magistrate erred in not adjourning the trial. There was at that point no evidence that the CCTV film had been edited, only the appellant's assertion. There was no proper basis for concluding that the prosecution had film in its possession that was different to that contained on the disc that was exhibit 1 and which it had not disclosed. Indeed, the appellant asserted that the complete version of the film was held in Melbourne. He had not taken steps to have that film produced to the court and there was no evidence that the film was held in Melbourne, other than the appellant's assertion. The appellant did not question Mr Sim or Mr Soomro about the pharmacy's procedures for maintaining CCTV film so as to lay the foundation for a further application in light of the magistrate's comments.
74 Further, and in any event, for the reasons that have already been given the appellant has failed to demonstrate that the magistrate had made any error of fact or law in her findings or that the finding that the appellant was guilty of assault was against the weight of the evidence or that conviction was unsafe or unsatisfactory for any reason.
The conduct of the trial
75 The prosecutor tendered the CCTV film in the course of the evidence of Mr Sim. The magistrate asked the appellant whether he objected to the film being received into evidence. He responded by attempting to give evidence about what he alleged had occurred. The magistrate then admitted the disc containing the CCTV film into evidence, with the appellant stating 'I need to ask that they change the magistrate. It's not fair' (ts 18). That statement was to be understood in the context of the appellant's request that the trial be adjourned so that the CCTV film, allegedly held in Melbourne, could be obtained. As has been seen, the appellant demanded at various points in the trial that the magistrate cause the two women shown in the first film clip to be called to give evidence and he also demanded that the magistrate procure what he asserted was the unedited version of the CCTV film taken in the pharmacy.
76 At the conclusion of the hearing and after her Honour had delivered her reasons for finding that the charge had been proved beyond a reasonable doubt, the appellant asserted that Mr Sim and Constable Gannaway should be charged and that he was not happy about the magistrate's decision on the CCTV film. He then stated, 'My only one question is I know you're not fair so where can I go to - to complain with this? You're not a fair woman' (ts 67).
77 The magistrate found in her reasons that the appellant had conducted himself during the trial in a 'objectionable manner'. She described him as being 'argumentative with the witnesses' and noted that he had to be continually directed to calm himself down (ts 63). A review of the transcript indicated that those observations were well founded. There were times during the trial when the appellant's behaviour interfered with the orderly conduct of the proceedings. He frequently interjected during the evidence or while the magistrate was speaking. He attempted to give evidence when asking questions and to make statements rather than put propositions to the witnesses. It is clear that he was very excitable and the magistrate observed that he was at times angry (see, for example at ts 22).
78 A review of the trial transcript discloses that the magistrate was patient with the appellant and worked diligently at moving through the evidence in a proper and fair way despite the appellant's behaviour. She only rebuked the appellant when it was necessary to preserve order and she explained to him the trial procedures, asked questions of witnesses at times that were intended to assist the appellant in the conduct of his defence and gave him a full opportunity to present his version of what had occurred and his arguments as to why he was not guilty of the charge alleged against him. There is no proper basis for alleging that the appellant did not receive a fair trial or for suggesting that the magistrate had conducted herself in a way that required her to disqualify herself from continuing to hear the charge.
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