Starling v Edmunds
[2012] WASC 14
•13 JANUARY 2012
STARLING -v- EDMUNDS [2012] WASC 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 14 | |
| Case No: | SJA:1016/2011 | 27 OCTOBER 2011 | |
| Coram: | McKECHNIE J | 13/01/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions quashed New trial ordered | ||
| B | |||
| PDF Version |
| Parties: | KARL JAMES STARLING MATTHEW EDMUNDS |
Catchwords: | Criminal law and procedure Courts and judges Extraneous material taken into account |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MATTHEW EDMUNDS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE JONES
File No : FR 4982 of 2010, FR 4983 of 2010, FR 4984 of 2010
Catchwords:
Criminal law and procedure - Courts and judges - Extraneous material taken into account
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Convictions quashed
New trial ordered
Category: B
Representation:
Counsel:
Appellant : Ms M M In De Braekt
Respondent : Mr M Seaman
Solicitors:
Appellant : Megan In De Braekt
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
- McKECHNIE J:
How this matter comes for trial
1 On 31 March 2010 the appellant came into contact with police outside a Fremantle hotel. As a result, he was charged with assaulting Anthony David Whittaker, a public officer then performing a function of his office. When requested by Matthew Edmunds, a police officer, to supply personal details, namely, name and address, refused to do so, and obstructed Matthew Edmunds, a public officer, in the performance of the officer's function.
2 After a one-day trial on 29 November 2010, the magistrate reserved his decision. On 9 December 2010, the magistrate delivered reasons convicting the appellant. The appellant seeks leave to appeal on ten grounds.
A note on procedure
3 The court's practice direction on outlines of submissions state:
The outline of submissions is to be in point or summary form, rather than being a complete exposition of the contentions advanced. It should not normally exceed five pages in length in the case of an interlocutory hearing, 10 pages in the case of a trial and 20 pages in the Court of Appeal (2.1 8).
4 The submissions prepared by Ms in de Braekt were 41 pages long and consisted of 257 numbered paragraphs. The respondent's submissions complied with the Practice Direction and numbered five pages.
5 The appeal was heard on 27 October 2011. It was a very short hearing. After some minor procedural matters wherein Ms in de Braekt enquired what I had read (which was everything) she said:
[The appeal] relies on 10 grounds of appeal, although depending on how your Honour views the first few grounds of appeal, some of the others, especially the first one, may fall away as a result of that. I won't repeat the submissions that are provided there but perhaps I will respond to my learned friend's remarks. Thanks you.
6 Mr Seaman said:
I stand on my written submissions at the moment, your Honour.
(Page 4)
7 I said:
Very well. There appears to be nothing to respond to, Ms in de Braekt. I will reserve my decision.
8 Subsequently, my Associate was contacted by Ms in de Braekt who later sent an email:
I respectfully request leave from the court, to file, & serve a very brief, further written outline of submissions on behalf of the Appellant, by tomorrow, (I appreciate tomorrow is officially a public holiday), containing the points I had intended to make orally today in Court in response to the respondent's submissions, which have not yet provided a response to.
9 I declined the invitation. Mr Seaman's submissions were filed over a week before the hearing. Ms in de Braekt might have used the time in oral submissions by responding but did not do so.
10 An outline of submissions is intended to be just that: an outline. If a party does not comply with the practice direction and instead files a comprehensive written brief of argument, there is usually little point in lengthy oral submissions. When both parties are content for the judge to decide the matter on the basis of written submissions then they have chosen not to elucidate their submissions any further.
Disposition of the appeal
11 The evidence in support of each of the charges was largely given by police officers. They were cross-examined as to similarities in their statements and as to whether they had colluded in making their statements. This was a matter that had to be resolved by the magistrate. Unfortunately, he did so by taking into account material that was not evidence before him and which may or may not be right. What he said was:
During cross-examination and during submissions it was submitted by the defence that firstly during the cross-examination there were highlighted various similarities in relation to words used by the police, length of statements and what was subject of various paragraphs of the police statements. That is the coincidences that some of the police statements were the exact length, same length and some subjects were put in the same paragraph of two separate police officers.
More particularly what was being said is that a couple of the police used the term particularly about Mr Jordan Moor, that he was stood in the middle of the street and others where they were stood somewhere. I have
(Page 5)
- to say that there's been, in my understanding, quite an influx of ex UK policemen to the Western Australian police service or police force. The English language has corrupted some of our police, I have to say. There is a common way that police - English people talk. They used the term he was stood in the doorway, he was stood in the roadway, he was stood here.
Even Jamie Lee Bainbridge the young police constable said the same thing. It seems that - and there's many UK policemen here in Fremantle. Their way of speaking may well have corrupted our pure Australian way of speaking so I don't take much notice in relation to the terminology 'He was stood'. In relation to the similarities between the length of statements, that was purely coincidental. They did agree in their statement in their cross-examination that they had - many of them discussed the incident prior to making their statements but there was some suggestion of some sort of collusion.
I find that I cannot find along those lines and that I find that the evidence given by the police was independent with their own independent recollections. There were some, quite significant in some areas, differences between their evidence-in-chief between the police and so therefore I find that I can accept their evidence as their pure and own recollections (ts 16, 17).
12 Mr Seaman valiantly tried to justify these comments by the magistrate as a matter of judicial notice.
13 He submitted that this may have been a state of local affairs, although he carefully conceded that it is wise to advise the parties that local knowledge would be used so they may comment on it - a reference to Cross on Evidence ch 2 [3065] footnote 12.
14 The submission cannot be accepted. The magistrate's comments go well beyond matters of which judicial notice can be taken. They are in effect his own views on a subject which, if admissible, would probably require expert evidence on sociolinguistics. There is no evidence in the case as to how people speak or the background of any of the individual officers.
15 The language used by police officers, whether influenced by English police officers or otherwise, is not a matter upon which judicial notice can be taken, whether part of local conditions or not. If it is going to be relied on it is something that must be in evidence before the court can have regard to it.
16 There was a miscarriage of justice in the magistrate's reference to language:
(Page 6)
- • First, there is no evidence to support his conclusion.
• Second, there was no opportunity for either party to deal with the matter by way of submission.
17 Mr Seaman submitted that in the event the magistrate erred, the error is one to which the proviso should apply. However, that is not possible. This case turned upon the credibility of the various witnesses. The magistrate misused his position of advantage in hearing and seeing those witnesses by taking into account extraneous considerations about which there had been no evidence. These considerations were an essential part of his reasoning to a conviction. The whole case turned on findings of credibility. I cannot make such findings solely from the printed page.
18 There has been a substantial miscarriage of justice and the only proper course is to allow the appeal, set aside the convictions and remit the matter for retrial before another magistrate.
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