Smith v Foley
[2007] WASC 2
•9 JANUARY 2007
SMITH -v- FOLEY [2007] WASC 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 2 | |
| Case No: | SJA:1082/2005 | 6 NOVEMBER 2006 | |
| Coram: | SIMMONDS J | 8/01/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed New trial ordered | ||
| B | |||
| PDF Version |
| Parties: | GRANT TRAVERS SMITH JULIE CHRISTIE FOLEY |
Catchwords: | Criminal law Appeal against conviction Assault occasioning bodily harm Issues of credibility Whether self-defence was raised Appeal allowed |
Legislation: | Criminal Code (WA), s 248, s 249, s 250 |
Case References: | Penn v The Queen (1989) 44 A Crim R 131 Small v Evans [2001] WASCA 343 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 De Vries v Australian National Railways Commission (1993) 177 CLR 472 Director of Public Prosecusions v Walker [1974] 1 WLR 1090 Glennon v The Queen (1994) 179 CLR 1 Hajinoor v Dench [2005] WASC 274 Harling v Hall (1997) 94 A Crim R 437 M v The Queen (1994) 181 CLR 487 Rosenberg v Percival (2001) 178 ALR 577 Van den Hoek v The Queen (1986) 161 CLR 158 Woolmington v Director of Public Prosecutions [1935] AC 462 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
JULIE CHRISTIE FOLEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE F CULLEN
File No : PE 26243 of 2004
Catchwords:
Criminal law - Appeal against conviction - Assault occasioning bodily harm - Issues of credibility - Whether self-defence was raised - Appeal allowed
Legislation:
Criminal Code (WA), s 248, s 249, s 250
(Page 2)
Result:
Appeal allowed
Conviction quashed
New trial ordered
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr C G Astill
Solicitors:
Appellant : D G Price & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Penn v The Queen (1989) 44 A Crim R 131
Small v Evans [2001] WASCA 343
Case(s) also cited:
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
De Vries v Australian National Railways Commission (1993) 177 CLR 472
Director of Public Prosecusions v Walker [1974] 1 WLR 1090
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
M v The Queen (1994) 181 CLR 487
Rosenberg v Percival (2001) 178 ALR 577
Van den Hoek v The Queen (1986) 161 CLR 158
Woolmington v Director of Public Prosecutions [1935] AC 462
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
(Page 3)
- SIMMONDS J:
Introduction
1 This is an appeal against a conviction on a charge of assault occasioning bodily harm.
2 Following a trial on 7 June 2005, before his Honour Magistrate Cullen in the Perth Magistrate's Court, the learned Magistrate, on 8 June 2005, convicted the appellant and sentenced him to a fine of $5,000.00 and costs of $68.45.
3 The conviction was on the complaint of the respondent, dated 26 May 2004. The complaint was that, on 29 February 2004, the accused, Grant Travis Smith, unlawfully assaulted the person referred to in the hearing before me as the complainant, Rafael Hartog Niesten, and thereby did him bodily harm.
4 At the trial the appellant's case was conducted on the basis that the accused, a crowd control (or security) officer, at a hotel function being promoted at the hotel by the complainant, had assaulted the complainant causing him the bodily harm complained of while the accused was acting in self-defence or aiding in the defence of others.
5 At the trial the accused did not give evidence. However, a video record of his interview with police was admitted into evidence. In his reasons for decision the learned Magistrate indicated that he took a view adverse to the accused's credibility. The learned Magistrate also indicated he took a view of the evidence of the only defence witness which was adverse to the credibility of that witness.
6 On 25 August 2005 the Honourable Justice McKechnie granted the appellant leave to appeal on three grounds. The first of these grounds listed three findings of fact by the learned Magistrate said to be in error, and itemised matters of evidence in relation to each finding. The second of these grounds was that the findings of fact in the first ground contributed, it was said, to the learned Magistrate making findings as to "the credibility of the appellant's case" as well as "the availability of self-defence to the appellant". The third ground listed two errors of law by the learned Magistrate "in relation to the issue of self-defence".
7 Since then, the matter has had a somewhat complicated history.
8 The appeal was first listed for hearing before the Honourable Justice Hasluck on 12 December 2005. Without objection from the respondent
(Page 4)
- the matter was adjourned as the transcript of the hearing before the learned Magistrate had not been obtained. The matter was again listed, to be heard on 7 February 2006; however, the hearing was adjourned by consent. The matter was listed for hearing on 19 April 2006, but that hearing was vacated because of the unavailability of the assigned Judge.
9 On 20 June 2006, the matter came on before the Honourable Justice Templeman.
10 At that hearing, his Honour, without objection from the respondent, gave leave to amend the first ground of appeal by adding a fourth asserted error in the learned Magistrate's findings of fact, under which were itemised matters of evidence in relation to that finding. Counsel for the appellant also referred to an additional item of evidence in support of the first asserted error in the findings listed under the first ground of appeal, although it is not clear from the transcript that his Honour gave any needed leave to amend the grounds of appeal in that respect.
11 In my reproduction of the grounds of appeal, below, I incorporate both sets of changes to the grounds of appeal, as I did not understand the respondent to object to the second.
12 The hearing before Templeman J was ultimately adjourned because of the unavailability, to the Court and to counsel, of the video record of interview with the accused or a transcript of it.
13 The matter then returned for hearing, before me.
14 The matter raises issues in the application of the well understood approach to trial Judges' findings as to credibility of evidence, and the bearing of such findings on the availability of defences to what would otherwise be crimes.
15 I begin by providing a brief background as to the facts of the matter. I then set out the grounds of appeal as amended in the ways I have described. I then review the applicable law as to appellate review of findings of credibility, before considering each of the grounds of appeal, in their various parts, as applicable.
Background to this matter
16 On 29 February 2005 Niesten had been at the Leederville Hotel since about 4 pm as a manager for radio station "Groove FM", promoting a function at the Hotel, as I have indicated earlier. The incident in question occurred at about 7 pm that night. Over about the same period of 4 pm to
(Page 5)
- 7 pm that day the appellant was also working at the Hotel as a crowd control officer. Niesten was not wearing any identification or anything else to indicate he was from the radio station. He was known to a number of persons within the hotel, although not to the appellant.
17 At some time about 6.15 pm or 6.30 pm Niesten and Joseph Paul Carreno left the Hotel to go to an adjacent restaurant to eat. Carreno was an assistant manager of the radio station.
18 Not long afterwards Niesten and Carreno left the restaurant and went back to the Hotel. There was evidence from Niesten, Carreno and Alicia Tania Mule that Niesten had been contacted by telephone with respect to a need for change for a till then being operated by Mule. Mule was also working for the radio station that night. The till was being used for the purposes of admission of people to the Hotel on payment of a cover charge. The learned Magistrate referred to Niesten's evidence that he was carrying $200 for use as change in the till, although he does not appear to make a finding in relation to that matter.
19 Entry to the Hotel was through a doorway. The path to the doorway was divided into an entry line and an exit line. There was a large queue of persons in the entry line. Niesten went up the exit line. Carreno was a short distance behind him.
20 Niesten was then met by at least two crowd control officers working at the Hotel that night, the appellant and Scott William Patrick. The learned Magistrate referred to evidence of an initial exchange between Niesten with one of them and of Niesten then continuing into the hotel past the till. Shortly thereafter Niesten was on the ground in a hold around his "neck/shoulder area" (Decision, 8 June 2005, TS 5) placed on him by the appellant. Patrick at least was also on Niesten.
21 There was medical evidence that on examination after the incident Niesten was observed to have suffered "bilateral sub-conjunctival haermorrhages" which were "consistent with a raised veinous pressure" due to being "put in a headlock and choked" (TS 5). The learned Magistrate found these injuries were caused by the pressure placed on Niesten's neck, and were "bodily harm" within the Criminal Code (WA).
22 The learned Magistrate identified as "a fundamental difference" in the evidence relied upon by the prosecution and by the defence that relating to (Decision, 8 June 2005, TS 2 – TS 3):
(Page 6)
- " … the aggression on the part of Mr Niesten and an attempt by him to strike one of the crowd control officers, not the accused. That was allegedly Mr Patrick. The accused relies upon a defence of self defence, in that the complainant attempted to strike Mr Patrick and continued when restrained to cause a threat to not only his but their safety collectively, the security controllers, who were in the vicinity at the time."
23 Although the learned Magistrate referred to self-defence throughout his reasons, there are of course the two defences, in Code, s 248 and s 250, respectively self-defence against unprovoked assault and aiding in the defence of another. Nothing turns on this, in my view, nor was the contrary put to me. The latter provision, in the context of this case, authorises the aider to use the force it would be lawful for the person aided to use for the purposes of self-defence. The argument in the appeal rightly centred on the application of the provision for self-defence.
24 At the trial on 7 June 2005, the prosecution called Niesten, Carreno, and Mule, as well as three other witnesses. They were a police officer who conducted an interview of the appellant the subject of the video record of interview with him; Scott Simpson, the general manager of the company that provided crowd control services to the Leederville Hotel on the night in question, and that employed the appellant, Patrick and another crowd control officer who was working at the Hotel that night; and that other crowd control officer, Danijel Kebo.
25 The defence called only one witness, Patrick.
The grounds of appeal as amended
26 The grounds, as amended in the circumstances I described at the beginning of these reasons, are elaborate.
27 They are as follows (emphasis in original):
"1. The Learned Magistrate erred in making the following findings of fact:
a. There was no evidence of anyone other than security personnel attempting to pull the appellant off the complainant [finding of fact in the decision at Decision p 7 paragraph 3), D8 para 4 and D9 para 2]
- i. This finding of fact was contrary to the evidence of the Police witness Mule who said 'I saw a bunch of bouncers on top of him. It was a big group, probably about six or seven guys all on top of him. And then I saw a few of the guys that I knew that were Raf's [Raf is a reference to Niesten] mates that were there on the night trying to get them off' (Transcript 3)
His Honour's finding of fact that there was no evidence of anyone other than security personnel attempting to pull the appellant off the Complainant is also contradicted by the evidence of Patrick (T11) where he said:
'Mm? --- at that time frame a few of his friends –
Yeah?-- - - - then suddenly came over and started trying to pull us.'
'Yeah?--- Trying to pull me off, you know.'
- b. That the Defence witness Patrick had given evidence of a conversation between himself and the complainant when the complainant first entered the hotel [D7, para 4]
i. This finding was contrary to the evidence of the witness Patrick who said that he had overheard a conversation between the complainant and the appellant [T7]
ii. This finding of fact was used by His Honour to find adversely in relation to Patrick's credibility as a witness and
- therefore the credibility of the appellant's case as a whole compared to the credibility of the Police case [D8, para 1].
- c. That the appellant had indicated that the complainant was in his view affected by 'alcohol or drugs or both' [D7, para 3]
i. This finding was contrary to the evidence that the appellant gave on his video record of interview where he indicated one three [sic] occasions that he thought the complainant was affected by drugs not did not [sic] mention alcohol (transcript not available).
ii. This find of fact was used by His Honour to find adversely in relation to the appellant’s credibility in that there was no other evidence that the complainant had consumed alcohol. (D3, para 3)
d. That there was no aggression or attempt to strike by the complainant [D9 para 2]
i. This finding was contrary to the evidence of both the appellant and the appellant's witness Patrick.
ii. The finding was also unsupported by the evidence of the prosecution witness Mule (who did not give evidence on this issue) and the evidence of the prosecution witness Carreno (T35) who said 'I didn't have a clear view to be able to say to you, you know, how many punches Raf threw if any at all or what he did' and at (T27) 'Well I know that Raf didn't swing. I know that Raf didn't take the first swing'
iii. This finding was of [sic] fact was a large part of His Honour's rationale for rejecting the appellant's defence of self defence.
- 2 The findings of fact set out above contributed to His Honour finding adversely in relation to the credibility of the appellant's case and the availability of self defence to the appellant. As a consequence of those decisions in relation to credibility and self defence the appellant was convicted and a miscarriage of justice has resulted.
3 His Honour erred in law in his decision in relation to the issue of self defence in two ways:
a. Firstly His Honour found that the appellant had not met his evidentiary burden [D9, para 5] when in fact the issue had been appropriately raised on the evidence of the appellant, his witness Patrick and the evidence of the witness Mule as noted above. The errors of fact noted above also contributed to this decision in relation to self defence.
b. Secondly, if the defence was appropriately raised, then the onus is on the police to rebut the defence beyond a reasonable doubt. His Honour appears to have erred in reversing the onus of proof in relation to the issue of self defence:
'There is no possible way that my findings of fact could enable the Defendant to rely upon the defence of self-defence' [D9, para 5]."
29 In the hearing before me, there were also references to pages from the transcript of the trial hearing on 7 June 2005 other than those annexed to appellant's affidavit. The pagination from the two sources is not in sequence. Therefore, when I make references to trial transcript, I will need to indicate whether or not the page references are to those annexed to the appellant's affidavit. I will not need to so indicate with respect to the transcript of the learned Magistrate's reasons for decision.
(Page 10)
30 I should also note that the spelling of Niesten’s name in the transcript of the decision of the learned Magistrate is incorrect. I do not correct that spelling in the extracts from that transcript below.
31 It will be evident from the grounds of appeal that the central issues in the appeal are the learned Magistrate's findings as to the credibility of the evidence of the appellant and Patrick, and the bearing of such findings on the learned Magistrate's determination of guilt.
The law of appellate review of credibility findings
32 There is a most useful review of the approach to be taken by a Court on appeal in relation to a trial Judge's findings as to credibility in Small v Evans [2001] WASCA 343, Hasluck J, at [33], [34] and [35]:
"If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed. 'M' v The Queen (1994) 181 CLR 487.
However, where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. De Vries & Anor v Australian National Railways Commission (1993) 177 CLR 472 at 479.
Nonetheless, this approach does not preclude a Court of Appeal from concluding that, in the light of other evidence, a primary Judge had too fragile a base to support a finding that a witness was unreliable, especially where documentary evidence provides significant support for allegations made by a principal witness. State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588."
33 His Honour later said that, in considering evidence in respect of which it may be apparent the trial Judge has made an error, a question that arose in his case was (at [45]):
(Page 11)
- " … whether the learned Magistrate was simply trying to reconstruct the relevant chronology for the sake of clarity and as a background to the question he had to decide, or whether he was attempting to draw out of the sequence of events some factor that might be thought to have a bearing upon the credibility of the two principal witnesses."
34 As will become apparent, the respondent in this case placed considerable reliance on the last quoted part of his Honour's judgment.
Ground of appeal 1a: erroneous findings of fact as to those attempting to pull the appellant and Patrick off Niesten
35 There were a number of references in the evidence to persons who were friends of Niesten physically intervening to pull the appellant off him or otherwise dissuade him from continuing his hold of Niesten. There were, as well as those in Ground 1a, four relevant references in the video record of interview of the appellant, two to "friends" of Niesten punching the appellant while he had Niesten in a hold (video record of interview, TS 28 and TS 29), one to such persons grabbing and punching him (TS 45) and one to such persons hitting him and trying to pull him off Niesten (TS 56).
36 It was put to me in oral argument by counsel for the appellant that the evidence on these matters, including, it may be noted, not only the evidence of the appellant and Patrick but also of the prosecution witness Mule, was significant, not only in relation to the learned Magistrate's credibility findings as to the first two, but also as itself evidence sufficient to discharge the evidentiary onus with respect to self-defence and aiding in the defence of another. I return to that onus later in these reasons.
37 I deal with the last aspect of the submissions as to Mule's evidence first.
38 I cannot agree that the evidence on the matter in issue in the present part of ground 1 was itself sufficient to discharge the evidentiary onus. The case at trial was fought on the basis of the appellant acting, by placing Niesten in a lock in the neck/shoulder area, initially in response to threats posed by him or to action of his, not of him acting in conjunction with friends of his. Nor was I directed to any evidence that would indicate any such joint actions. The relevance of subsequent conduct by friends of his to the matter of Niesten's threats or action would, on the evidence referred to, at most, in my view, go to the necessity of continuing to restrain Niesten if he continued to pose a threat or otherwise to engage in
(Page 12)
- an assault, but not to the matter of whether or not Niesten was posing a threat or otherwise so conducting himself. There was no suggestion that, as a result of placing the accused into a hold, the position of the appellant changed, from a person engaged in defence against an unprovoked assault, to defence against a provoked one, of such violence as to cause reasonable apprehension of death or grievous bodily harm (Code, s 249).
39 It might be suggested, however, that the actions of Niesten's friends might be seen to reflect on the actions of Niesten, by showing the aggression which those on his side were displaying that night. However, it seems to me that there is an important difference between actions taken after an assault has started that threatens the safety or comfort of one of their number and actions taken before any such assault. The actions here would it seems to me have no significant bearing on the latter sorts of action.
40 In relation to the relevance of the evidence to the learned Magistrate's credibility findings as to the appellant and Patrick, I first note those findings, and then I note the way in which his Honour dealt with the present matter.
41 His Honour's findings as to the credibility of the appellant and Patrick appear most clearly from the following (Decision, 8 June 2005, TS 8 – TS 9) (my emphasis):
"I recall that during the interview [on the video record of interview], Mr Smith [the appellant] on numerous occasions attempted to justify what he had done with regards to immobilising Mr Neisten with the hold around the neck and it appeared to me that the more that he protested with regards to the way in which he had performed the act, he conflicted with his previous indication of what he did and he certainly conflicted in relation to certain aspects of the way in which he [from the context, Niesten] was held on a number of occasions. His evidence, that is the accused's evidence of that, and Mr Patrick's evidence as to what transpired in relation to this hold on Mr Neisten was, in my view, concocted by them to alleviate difficulties which Mr Smith would encounter in relation to any further action that might be taken against him.
I accept the evidence of Mr Neisten and that of Mr Carreno and Miss Mule as to what transpired on the 29th of February of last year. I also am of the view that there was no aggression or an
(Page 13)
- attempt to strike Mr Patrick or anybody else by Mr Neisten, nor was there any attempt to - - to strike Mr Patrick by Mr Neisten, and nor was there any attempt to - - by anybody at that point to get Mr Smith off Mr Neisten. Once he had the choke hold on him, it would appear as though the time at which he was released was when there was a protest by the hotel manager as to letting Mr Neisten to his feet."
42 I was also referred to evidence his Honour's note of the following evidence (Decision, 8 June 2005, TS 6):
"Mr Simpson's evidence that Mr Patrick was terrified and that he'd left the venue because of the threats that were made, were not supported by Mr Patrick's evidence. He left, it would appear for other reasons."
43 It was accepted before me that the words I have emphasised from the quoted passage before last are not easy to square with Mule's evidence quoted in Ground 1a, to which I will shortly return.
44 I further note the learned Magistrate's remarks earlier in his reasons (at TS 7) as follows (my emphasis):
"She [Mule] says that she ran up and saw that there were, as she put it, six or seven bouncers on top of him. But there was other evidence to suggest that there were three men, three original security officers including the accused who were on top of him [Niesten], and other officers were trying to get the three off and, of course, the hotel manager shouted to let Mr Neisten [sic] up."
45 It seems that his Honour's reference to "other officers" was to other "security officers", for which there was also evidence from Mule, as will shortly appear.
46 It seems that his Honour had overlooked a part of Mule's cross-examination to which he appeared to be referring. Part of that cross-examination is set out in ground 1a of the appeal. In somewhat greater part, that cross-examination was as follows (affidavit of the appellant, examination-in-chief of Mule, 7 June 2005, TS 3, my emphasis):
"Just restrict your evidence to what you saw, not what you believe people thought? --- Okay. Yeah. No problem. And so
(Page 14)
- I ran up. I saw a bunch of bouncers on top of him. It was a big group, probably about six or seven guys all on top of him. And then I saw a few of the guys that I knew that were Raf's [Niesten's] mates that were there on the night trying to get them off. Hutchy [Mr Hutchinson, a manager of the Leederville Hotel] from the Leederville was getting the guys off Raf as well and - - and that's about it from what I actually saw."
47 Counsel for the respondent put it to me that the learned Magistrate's error in the description of the evidence in relation to the attempts of others than other security personnel, and a hotel manager, to get the appellant off Niesten, were matters of background or context, which I understood to be a reference to Smith (supra), Hasluck J, at [45], from which I quoted above. That erroneous description was not part of a process by which the learned Magistrate was seeking "to draw out the sequence of events some factor that might be thought to have a bearing upon the credibility of the two principal witnesses" (Smith at [45]).
48 I cannot agree. I consider the erroneous description did indeed form part of the process just referred to.
49 Unlike the corresponding evidence in Smith (supra), the reference in this case to the matter of evidence as to the efforts of others than other security personnel and a hotel manager to get the accused off him appears several times in his Honour's reasons for decision, as I will shortly indicate. Furthermore, one such reference, not the last he makes, is in connection with the second paragraph I quoted from the passage describing his Honour's credibility findings for the appellant and Patrick, in which – as I read his Honour's reasons – he is describing part of his overall findings of fact.
50 Counsel for the respondent further put to me that the matter was, in fact, of no significance to his Honour's findings as to the credibility of those two, which his Honour rested on three principal bases. The first two of these go to another part of the present ground, as I will shortly explain.
51 The first basis was the difficulty in explaining why Niesten would have, as the appellant's and Patrick's evidence was that he had, "swung a punch at Patrick" before the appellant responded (Decision, 8 June 2005, TS 8).
(Page 15)
52 The second basis was the difficulty of explaining why, when Patrick was "the larger of the two", Niesten in such a "position" would do any such thing (TS 8).
53 The third basis was that I have previously quoted, the conflicts in the video record of interview in the appellant's account of "what he did" and "in relation to certain aspects of the way in which he [Niesten] was held on a number of occasions".
54 I further note the inconsistency between the evidence of Simpson and Patrick described in the learned Magistrate's reasons.
55 However, I also note his Honour's references to the matter of attempts to get the men off Niesten in his reasons for decision, apart from those already quoted, as follows (TS 7, TS 8), as well as his overall conclusion on the issue of who was aggressive or attempted to strike another during the incident in question (TS 9, as follow after the passages from TS 7 and TS 8).
56 The paragraph first quoted below appears next after the passage I last emphasised above (TS 7, my emphasis below):
"And the evidence of Miss Mule is significant because she says that when Mr Neisten was allowed to his feet, she described him that he looked dazed, confused and out of it. That, of course, was in stark contrast to the evidence of the two security men [the appellant and Patrick]. There was no evidence from her that there were - - were any other people other than security and the hotel manager, pulling security men off the complainant. As I've said, that is, in stark contrast to that of the accused and Mr Patrick. First of all, the accused told the police that he believed, as I've said earlier, that Mr Neisten was affected by alcohol or drugs or both. He stated that Mr Neisten was aggressive and his aggression was such that he did not, once he had him in the head hold, want to let him go for fear of what he might do to the three security men that were there."
57 Shortly afterwards in his reasons, his Honour says this, referring in particular to the evidence of Patrick, and contrasting it with that of Mule (TS 8) (my emphasis):
"It was also put that some friends of Mr Neisten had come along to try to pull off the security men and Mr Patrick says that he pushed them away. However, the evidence of Miss Mule is that
(Page 16)
- there were security men who were pulling off the security people from Mr Neisten and it's put by both the defendant and Mr Patrick that the complainant was still struggling whilst being restrained in this head hold whilst on the floor of the hotel. Mr Neisten's evidence was that he was rendered unconscious for, he believes to be, twenty or thirty seconds."
58 His Honour's overall conclusion on who was aggressive during the incident in question was as follows (TS 9):
"The aggression which resulted in the injury to the complainant, Mr Neisten received were - - the aggression was all on the part of the security operatives towards Mr Neisten."
59 The learned Magistrate's reasoning is not altogether easy to follow. If the second "stark contrast" reference, a reference I emphasised (from Decision, 8 June 2005, TS 7), is to a prior description in his reasons of evidence from the appellant (in his video record of interview), or of Patrick, on the same matter, then there is no such prior description. He first describes such evidence subsequently, in the passage concerning the evidence of Patrick (TS 8) I quoted above. Indeed that second "stark contrast" reference might be read to be to another matter altogether, what the appellant said to the police about Niesten being affected "by alcohol or drugs or both" (TS 7).
60 However, I draw from the three passages just quoted that the learned Magistrate concluded that the concoction he discerned in the evidence of the appellant and Patrick included an account of attempts by friends of Niesten to pull the appellant off him, as well as struggling by Niesten even after the choke hold was put on him, to show that others associated with Niesten and Niesten himself were acting in an aggressive manner, to all of which the appellant was responding. The learned Magistrate so concluded by reference to, among other things, the lack of any other evidence to support any part of it, including that part relating to the intervention of others, and in particular the lack of any evidence from Mule to support it. It seems he would have expected her to provide such support had she any such evidence to give. The lack of such support provided important support for his Honour's conclusion that it was the appellant and Patrick, not Niesten, who were the aggressors on the night in question.
61 It seems to me that his Honour lost sight of the way in which the evidence of Mule, which he accepted, did indeed provide support for a
(Page 17)
- part of Patrick's evidence, and that of the appellant in the video record of interview. That part was one of importance to his Honour in coming to his conclusions on the credibility of their evidence. In my view, this shows that, in the terms of Smith (supra), his Honour failed to properly consider other evidence he accepted in his determination as to credibility.
62 His Honour found, as I will shortly explain, that there was no evidence apart from that of the appellant and Patrick that Niesten had been aggressive or attempted to strike any of the security officers on the night in question. The lack of any evidence of such aggression or an attempt that he did not disbelieve was critical to his conclusion that self-defence was not raised. Thus, the credibility determinations in issue were for his Honour critical to whether or not self-defence was raised.
63 I accept that it is not clear from his Honour's own reasons that, had he not lost sight of Mule's evidence in the present respect, he would have come to different credibility determinations. There were the other matters relevant to those determinations to which I have referred. However, in view of the importance his Honour appeared to ascribe to the matter, and to his acceptance of the evidence of Mule, I consider that an important part of the foundation for his conclusions as to credibility represented an error. I conclude his credibility determinations were thereby rendered unsafe as a basis for determining that self-defence was not raised.
64 I can more shortly deal with the three other aspects of ground 1a.
Ground of appeal 1b: erroneous findings of fact as to a conversation between Patrick and Niesten
65 The appellant appeared to be contending that the learned Magistrate's had made an erroneous finding as to the evidence given by Patrick in this respect and that this error had contributed to his conclusion as to the credibility of Patrick's evidence. Patrick's evidence, it was said, was in fact not of any conversation involving himself and Niesten. The learned Magistrate's error in finding Patrick had given evidence of such a conversation contributed to his conclusion as to Patrick's credibility because Patrick had also given evidence he had not said anything to Niesten, and that it was the appellant who had engaged with Niesten, and yet it was at Patrick that Niesten had swung.
66 In fact, I do not consider this part of ground 1 correctly characterises Patrick's evidence, which I consider the learned Magistrate adequately described.
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67 In his examination-in-chief, Patrick gave evidence that when Niesten entered the venue he and the appellant "stood in front of him" (appellant's affidavit, Trial, 7 June 2005, examination-in-chief of Patrick, TS 6). Then the appellant "put his arm out" and told Niesten to go back outside. At that point, Patrick testified, "we'd spun in front of him" (TS 7). Niesten said "[l]ook, you don't know who the fuck I am" or words to that effect (TS 7). Neither the appellant nor Patrick was swearing at him at that time, "not at all" (TS 7).
68 Then Niesten took a step closer to the appellant, going "nose-to-nose", and saying (TS 7):
"Oh, get out of my way. You don’t know who you're fucking with."
69 On Patrick's evidence, the appellant replied he did not know "who I'm fucking with but, sir, you need to go back outside" (TS 8).
70 At that point, Patrick's evidence continued, Patrick (TS 8):
" … grabbed him [Niesten] on the arm or tapped him on the arm, to turn him around, as if to say 'Look, I'm here. Turn around.'
Yes?--- And as he's turned, he's swung at me.
Okay? --- Just out of the blue. There was --
Yeah?--- There was certainly nothing involved with it."
71 The learned Magistrate, in the portion of his reasons referred to under the present part of ground 1, said this, apparently about this body of evidence (Decision, TS 7 – TS 8):
"Mr Patrick described the entry of Mr Neisten and the challenge by the security men as to his entry and he says that Mr Neisten had said to him, 'You don't know who the fuck I am. You don't know you're fucking with.' They are the words of Mr Patrick. At that point, Mr Patrick said that he had not said anything - - it would appear - - I'm sorry, it would appear at that point that Mr Patrick had not said anything directly towards Mr Neisten, nor had he done anything towards him because it was, in fact, Mr Smith who, as they say, changed positions from the first challenge to when the incident commenced, where it was Mr Smith who placed his arm out front of Mr Neisten. And yet,
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- the evidence from Mr Patrick and Mr Smith is that Mr Neisten swung a punch at Patrick. For what reason nobody would know. And also, it would appear physically Mr Patrick is the larger of the two. One would have to ask the question, why would somebody in Mr Neisten's position be doing something like that."
72 It seems to me that his Honour has with sufficient accuracy described Patrick's evidence up to the point of the blow directed at Patrick. The evidence of Patrick is of remarks, except perhaps for the final remark, directed at both the appellant and himself. Patrick in the passage referred to – and I was directed to no other – does not testify to any words he said to Niesten. At the same time, as his Honour notes, the physical confrontation was between Niesten and the appellant, save for that part of the encounter, not referred to by his Honour, involving Patrick grabbing Niesten's arm or at least tapping it. It should be noted that Patrick himself in his evidence appears to ascribe no particular significance to that aspect of the encounter. Yet on Patrick's evidence Niesten directed his swing at Patrick, not at the appellant.
73 I do not consider the learned Magistrate made an error as to Patrick's evidence in the respect referred to in this part of ground 1.
Ground of appeal 1c: erroneous findings of fact as to Niesten being affected by alcohol or drugs or both
74 The appellant contended that the learned Magistrate had made an erroneous finding as to the evidence of the appellant in his video record of interview. The error it was said contributed to his finding as to credibility because no was no other evidence that Niesten had consumed alcohol.
75 The error was that the appellant had (Decision, TS 7):
" … told the police that he believed, as I've said earlier, that Mr Neisten was affected by alcohol or drugs or both."
76 In fact, as the transcript of the video record of interview records, the appellant said this, in material part (TS 21, TS 27, TS 58):
"You know, like I don't have much experience in - - in illicit drugs, but I would assume that he was under the influence of some sort of - - I don't think it was amphetamine at the time. I actually thought he was on cocaine [there is a transcriber's question mark at this last word].
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- …
The gentleman was quite agitated. I - - assumed that he was under the influence of drugs or certainly not - - he was very hot-blooded.
…
Now, if I'd been able to actually change the hold … so that it would actually be less excessive on the gentleman, I would of, all right? But what I'm trying to say is this guy is quite large, the guy is agitated, the guy is aggressive. I felt that the guy was on drugs at the time, all right? Now, in your experience you would know - - you would know that a medium sized gentleman who maybe is insane or under influence of drugs can take up to six people to restrain."
77 It will be noted there is no mention of alcohol in those passages. No other relevant passage was brought to my attention.
78 However, I conclude that the learned Magistrate's error did not contribute to his credibility determination. I do so because earlier in his reasons for decision he correctly described the appellant's evidence, in the passage relied upon in the present part of ground 1 as being his Honour's use of the relevant evidence to make a credibility determination. That passage in full read as follows (Decision, TS 3):
"Mr Neisten had not been drinking on the day. He stated in his evidence he had not been drinking and there was no other evidence at that - - except that of the defendant who when interviewed by the police made reference to his belief that Mr Neisten was affected by drugs. There was no other evidence, from any other person, neither Neisten himself, Mr Carreno or, Miss Mule as to his behaviour on this particular day. Nor was it, of course, put to him that he was affected by drugs in any way. And, of course, the defendant relies upon his interview by the - - with the police as his evidence on this hearing."
79 At the hearing counsel for the appellant appeared to put to me that in fact this passage was part of his Honour's description of the background preliminary to making his determinations as to credibility, which appear at the later part of his reasons referred to in the present context. Counsel for
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- the respondent also characterised the material in the earlier part of the judgment as going to background.
80 However, in the context I have described, it seems to me his Honour's later reference to "alcohol or drugs" is in fact a conflation of the evidence as to the absence of alcohol of others and the appellant's evidence as to drugs, as indications or the lack of such that Niesten's behaviour had been of a sort indicating substance abuse. I do not consider that his Honour's error in that conflation could be said to have contributed to his credibility determination, which, even if regarded as made in the later passage, can be seen, when it is read with the earlier passage, to have drawn on a correct understanding of the appellant's evidence.
81 I do not find the present part of ground 1 made out.
Ground of appeal 1d: erroneous findings of fact as to there having been no aggression or attempt to strike by Niesten
82 The appellant contended that the evidence referred to in this part of ground 1 was that Niesten had been aggressive and had attempted to strike or should have been understood by the learned Magistrate to be to that effect. Had his Honour properly appreciated that evidence, he would not have come to the conclusion he did as to aggression and attempt to strike. The matter of who was aggressive was one of considerable importance to his Honour, as I indicated in relation to the first part of ground 1. His finding in that regard, as I will further explain, was of central importance to his finding that there was no evidence to raise self-defence.
83 As the present part of ground 1 indicates, and the respondent did not contest, there was indeed evidence from the appellant and of Patrick that Niesten had been aggressive and had swung at Patrick. I have already referred to evidence of the latter in that regard. However, it was the credibility of their evidence which was, of course, at issue in the present connection. If that evidence was to be disbelieved, as his Honour did, then there was no evidence from them that would support a finding of aggression or an attempt to strike.
84 Of greater significance to the present part of ground 1 is the evidence of Carreno. His Honour made what may have been a reference to the evidence of "Carrenso [sic]" in this connection in the passage from his reasons as follows (Decision, TS 8, TS 9: the latter is part of a larger passage I quoted in relation to the first part of ground 1):
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- "The evidence of Miss Mule and Mr Carrenso … (on tape) … is, of course, as I've said, in stark contrast to the evidence of the defendant and Mr Patrick. Mr Patrick described Mr Neisten in terms, 'He just went wild. He went crazy. He was put to the ground.'
…
I accept the evidence of Mr Neisten and that of Mr Carreno and Miss Mule as to what transpired on the 29th of February of last year. I also am of the view that there was no aggression or an attempt to strike Mr Patrick or anybody else by Mr Neisten, nor was there any attempt to - - to strike Mr Patrick by Mr Neisten, and nor was there any attempt to - - by anybody at that point to get Mr Smith off Mr Neisten. Once he had the choke hold on him, it would appear as though the time at which he was released was when there was a protest by the hotel manager as to letting Mr Neisten to his feet."
85 His Honour does not in these passages – and no other ones were cited to me in this regard – indicate the nature of the evidence as to aggression he understood to have been given by Carreno.
86 However, I consider that Carreno's evidence, as relied upon by the appellant in the present connection, in fact does not support the evidence of the appellant and Patrick as contended. I am not satisfied his Honour should have understood that Carreno's evidence, which his Honour indicated he accepted, provided support for the evidence of the appellant and Patrick, which he did not accept.
87 Carreno's evidence, part of which appears in the present part of ground 1, in fuller form was as follows (trial, examination-in-chief of Carreno, TS 27; cross-examination, TS 35):
"Did you see the initial part of this altercation?---From what I remember yeah, it was just like - - I was looking over the shoulder of the bouncer that was in front of me talking to me and then all I saw was as swing and that was it.
All right. Who - - ? --- That was it.
I realise - - I realise it's difficult, because you've never given evidence before, but when you're saying things like that - - ? --- Yep.
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- You can go into a little bit more detail than - - ? --- Well I know that Raf didn't swing. I know that Raf didn't take the first swing.
All right. What - - what - - ? --- I saw a - - a guard take a swing and hit him – him like not on the front of the head, but on - - on the backish kind of the head like here kind of thing.
…
MR PRIOR: And I take it you meant that because the first punch if like, was the guard hitting him to the back of the head?---Yes.
So did Raf then throw a punch at some stage? --- I don't recall.
All right. Well why did you say Raf hasn't thrown the first punch? --- Because I could see that a guard threw the first punch.
Okay. Is it the case that punches were thrown by Raf after that as [sic] some stage? --- I didn't see, so I don't know.
All right. So your answer to that, is you couldn't - - you hadn't a clear view of what was going on, who was doing what? --- I didn't have a clear view to be able to say to you, you know, how many punches Raf threw if any at all or what he did."
88 It will be noted that Carreno's only recollection is at odds with the evidence of the appellant and Patrick as to the throwing of the first punch. Beyond that, Carreno's evidence is that he was not in a position to say, because he "didn’t have a clear view".
89 I do not consider that the present part of ground 1 to be made out.
90 I should not leave the present part of ground 1 without referring again to the evidence of Mule relied upon in relation to the first part of ground 1. This evidence was not invoked in relation to the present part. However, had it been invoked, I consider it would not have offered the present part any support, as I indicated in the other context.
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Ground 2: the contributions of the learned Magistrate's errors to his credibility determinations, and thereby to a miscarriage of justice
91 I have already indicated that, of the parts of ground 1 relied upon, only the first part was, in my view, made out. That part went to matter that, on my view, made a significant contribution to his Honour's determinations adverse to the credibility of the evidence of the appellant and of Patrick with respect to aggression shown by Niesten.
92 The evidence of the appellant and Patrick was of signal importance to self-defence being seen to be raised on the evidence before his Honour. He found there was no other evidence of Niesten having been aggressive or attempting to strike one of the security officers, or struggling after being placed in a choke hold by the appellant, and indeed there was evidence to the contrary, from Niesten himself, to which the learned Magistrate referred (Decision, TS 4). The only other evidence of aggression or an attempt to strike in that regard to which my attention was drawn was said to be that of Mule and Carreno. I have previously dealt with their evidence in that respect.
93 As I will shortly explain, I am satisfied his Honour's determination that he did not believe the evidence of the appellant and Patrick as to Niesten having been aggressive or attempting to strike meant the matter of self-defence was not raised.
94 I will return to the matter of how it might be said a miscarriage of justice, referred to in the present ground, arises in relation to his Honour's credibility determinations after dealing with the remaining ground of appeal.
Ground 3a: error of law in finding self-defence not raised
95 I have already indicated how it was the learned Magistrate came to the conclusion this defence had not been raised. As I explained, his determination that he could not believe the only evidence he considered he had before him of aggression or an attempt to strike by Niesten meant he concluded had no evidence which raised self-defence. On that basis, in my view, his conclusion that the defence was not raised was not erroneous.
96 I have noted the reference in the present part of ground 3 to the evidence of Mule as well as that of the appellant and Patrick. I understood this to be a reference to other evidence the learned Magistrate
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- had before him of aggression by Niesten that night. However, as I explained in relation to the first part of ground 1, her evidence does not in fact go to the matter of aggression by Niesten. Rather, as I explained, her evidence goes to whether the evidence of the appellant and of Patrick should be believed or it should be dismissed as a concoction of events that night.
Ground 3b: error of law in reversing the onus of proof on self-defence
97 I can be brief with respect to this ground. I consider there is no indication in his Honour's judgment that he committed the error complained of.
98 I begin by noting that his Honour, earlier in his reasons (Decision, TS 2), had indicated he appreciated need for proof to the "standard of beyond reasonable doubt with regards to each and every one of the elements of the offence", and later on the same page, noted "the assault has to be unlawful, that is, not authorised, justified or excused by law".
99 I consider that, read in its context, the passage from his Honour's reasons quoted in the present part of ground 3 does not indicate he committed the error complained of. I set out that passage in its immediate context (Decision, TS 9):
"The issue of self-defence which was raised by the defendant is not, in my view, properly raised on the finding of fact which I have made in relation to the events on the 29th of February. It could not be justified on my findings that he was acting in self-defence. As assault, of course is not unlawful when it is caused when a person acts in self-defence in certain circumstances. There is no possible way that my findings could enable the defendant to rely upon the defence of self-defence.
The accused, on my findings, attacked the complainant [Niesten]. Mr Neisten acted properly at all times. He was not the aggressor. The accused was - - and Mr Neisten did not, as I have said earlier, attempt to strike anybody. I accept the evidence of Mr Neisten and the other witnesses produced by the Prosecution with regards to the events at this particular time."
100 It is of course trite law that self-defence must be negatived beyond a reasonable doubt if there is at least a "scintilla" of evidence capable of supporting the defence: Penn v The Queen (1989) 44 A Crim R 131, per Wallace J, at 133, and authorities there referred to. That evidence would
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- discharge the evidentiary onus required to be met for the defence to be raised.
101 I consider it quite clear from this account that his Honour found the evidentiary onus to raise self-defence or aiding in the defence of another, as I have explained, was not discharged. Although he does not so express himself, it is clear, from his reasons for decision in the respects I have dealt with in relation to ground 1, that the learned Magistrate proceeded on the basis he had, by reason of his credibility determinations, rejected the only evidence which, if not disbelieved, was capable of raising the defence.
102 I do not consider this passage offers any support for the view that his Honour confused evidentiary onus with final onus, or otherwise improperly reversed the onus to negative the defence beyond a reasonable doubt if on his determination the defence had been raised on the evidence.
Conclusion and orders
103 I have concluded only ground 1a has been made out. This makes it necessary for me to return to the question, raised by ground 2, of the outcome of this appeal.
104 My conclusion means the learned Magistrate ought to have considered, with the evidence from the appellant and Patrick in addition to the other evidence in this case, whether or not he was satisfied beyond a reasonable doubt that the appellant had not acted in self-defence, or aid of the defence of another.
105 I do not doubt, from the passage from his decision quoted in relation to the second part of ground 3, that the learned Magistrate considered he did not have any reasonable doubt the appellant had not acted in such defence. However, my conclusion means he had not properly taken into account the evidence of Mule as supporting a part his Honour found to be an important part of the evidence of Patrick and the appellant concerning what the appellant was responding to, even although that part did not directly go to either defence. On my view, as I have indicated, his error in that respect meant there was a fatal weakening of the foundation for his credibility determinations.
106 It follows from that analysis that I am not satisfied that the proviso in Criminal Appeals Act 2004 (WA), s 14, is met. That is, I am not satisfied no substantial miscarriage of justice has occurred in this case.
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107 I would thus allow the appeal, quash the conviction of the appellant, and order a new trial before a different Magistrate.
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