Song v McLennan - [2021] ACTSC 275

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Song v McLennan
Citation:	[2021] ACTSC 275
Hearing Date:	21 July 2021
DecisionDate:	22 October 2021
Before:	Mossop J
Decision:	See [203]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction – appeal by way of rehearing – offence of intentionally and unlawfully choking, strangling or suffocating – whether finding of guilt was unreasonable or cannot be supported by the evidence – whether magistrate misapplied the Liberato direction – whether there was a miscarriage of justice – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), s 28(2)(a) Criminal Code 2002 (ACT) Evidence Act2011 (ACT), s 38 Magistrates Court Act 1930 (ACT), Div 3.10.2
Cases Cited:	De Silva v The Queen [2019] HCA 48; 268 CLR 57 M v The Queen (1994) 181 CLR 487 MWJ v The Queen [2005] HCA 74; 80 ALJR 329 Peverill v Crampton [2010] ACTSC 79 R v Andrews [2010] SASCFC 5; 107 SASR 471 R v Goncalves (1997) A Crim R 193 R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 R v Macfie (No 2) [2004] VSCA 209; 11 VR 215 R v Walton [1999] NSWCCA 452; 113 A Crim R 308 Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Parties:	Xiowei Song ( Appellant) Ross McLennan ( Respondent)
Representation:	Counsel M Jones ( Appellant) K McCann ( Respondent)
Solicitors Kamy Saeedi Law ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 10 of 2021
Decision under appeal:	Court: Magistrates Court of the ACT Before: Special Magistrate Campbell Date of Decision: 8 February 2021 Case Title: McLennan v Song Court File Number: CC 7999 of 2020

MOSSOP J:

Introduction

This is an appeal from a decision of the Magistrates Court. On 9 February 2021, at the conclusion of a two-day hearing, a special magistrate (the magistrate) found the appellant guilty of a single count of intentionally and unlawfully choking, strangling or suffocating another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). On 12 March 2021 the magistrate convicted the appellant and required him to enter into a good behaviour order for a period of 18 months.

The appeal is an appeal by way of rehearing. The principles to be applied to appeals under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) are well known: see for example, Peverill v Crampton [2010] ACTSC 79 at [24].

Grounds of appeal

The grounds of appeal set out in the Notice of Appeal dated 17 March 2021 are as follows:

(a)The conviction was unreasonable or cannot be supported by the evidence.
(b)The learned magistrate misapplied the Liberato direction leading to a miscarriage of justice.
(c)The rejection by the learned magistrate of evidence given by the complainant in court on 8 February 2021 insofar as that evidence was contrary to the complainant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Song v McLennan

Details

AGLC: Song v McLennan [2021] ACTSC 275
Case: [2021] ACTSC 275
Decision Date

CaseChat Overview and Summary

Song v McLennan involves a legal dispute where the appellant, Song, challenges the outcome of a criminal case in which he was convicted. The appellant argues that there were errors in the handling of evidence during the trial, which he claims prejudiced his right to a fair trial. The case was heard by the NSW Court of Criminal Appeal, which was tasked with reviewing the trial's procedural fairness and the admissibility of evidence.

The court was required to determine whether the magistrate made an error by not recalling the complainant to further clarify inconsistencies in her testimony and the accounts given by other witnesses. The appellant's contention was that the prosecutor should have applied to recall the complainant for further cross-examination to address these inconsistencies. The court needed to assess the extent to which the trial process allowed for the exploration of these inconsistencies and whether the appellant's right to a fair trial was compromised.

The Court of Criminal Appeal found that the trial process did not unfairly prejudice the appellant. The court held that the limitations on cross-examination did not prevent the exploration of relevant inconsistencies. It was noted that while there were some apparent inconsistencies between the complainant's evidence and that of other witnesses, these were adequately explored in the trial. The court also highlighted that the appellant's counsel did not seek to recall the complainant for further cross-examination, which limited the scope of potential inquiry into the inconsistencies. The court concluded that the magistrate did not err in considering the evidence as presented and that there was no unfairness in the trial process.

The NSW Court of Criminal Appeal upheld the conviction, finding no merit in the appellant's claims of procedural unfairness and evidentiary error.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence of Ms Y and Ms O: The third complaint alleges that the prosecutor ought to have made an application to recall the complainant after Ms Y and Ms O “gave evidence that contradicted [the complainant’s] evidence”. In relation this complaint, it is important to recognise the limitations on cross-examination of the relevant witnesses and hence upon the answers given. In relation to the GP visit, Dr Zahedpur had said that although he could not remember whether he was given information about medication by the complainant or the person assisting with the translation, he said that he was convinced the information was reliable. It was not suggested to him in cross-examination that there was no complaint of being grabbed by the throat. There was no suggestion that he had not conducted a physical examination of the complainant or that there was any inaccuracy in his record that she was “Moderately tender in the upper rim of thyroid cartilage” or the other records that he made on examination. In cross-examination of the complainant, she was asked about the translation and gave the somewhat ambiguous answer “Right and she did all the talk. She did all the talk.” She agreed with the suggestion that she didn’t really understand what was conveyed to the doctor, saying that she was confused. However, the issue was not explored further and left hanging. She was not asked about any of the specific complaints that the doctor had recorded. It was not suggested to the complainant that she did not say any of the things recorded in the doctor’s notes, that he did not conduct an examination of her or that any particular thing recorded in the notes was inaccurate. Similarly, in relation to the visit to the hospital, the evidence of the complainant in cross‑examination was as follows: This answer was only partially responsive to the question. It was not definitive. The issue was not pursued in the cross-examination. When Ms Y gave evidence, she explained that at the hospital she filled in the gaps about technical terms. In cross-examination it was suggested to her that she assisted with the translation. There was no suggestion that she had done all the talking. There was no suggestion that anything in the hospital records came from her and not the complainant. There was no suggestion that anything in the notes was inaccurate. There was no application by counsel for the appellant to recall the complainant for further cross‑examination. The evidence that she gave was entirely consistent with the contemporaneous record of a social worker of the hospital “patient reporting that English is good, however friend assists to ‘fill in the gaps’.” In relation to the evidence of Ms O and Ms Y, there remained some apparent but undeveloped inconsistencies between their evidence and the evidence of the complainant and between the evidence of the complainant and other witnesses. Those were matters which the magistrate was obliged to consider. The manner in which those inconsistencies emerged at trial and the manner in which they were addressed in submissions gave rise to no complaint at trial. Having regard to the way in which these issues emerged at trial, there was no unfairness to the appellant in the magistrate considering them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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