Ts v UG

[2023] ACTSC 389

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

TS v UG

Citation: 

[2023] ACTSC 389

Hearing Date: 

13 December 2023

Decision Date: 

13 December 2023

Before:

Mossop J

Decision: 

1.    Appeal allowed.

2.    Set aside the conviction recorded and good behaviour order made on 1 June 2023 and remit the proceedings to the Magistrates Court for hearing and determination according to law.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal – appeal against conviction – third ground of appeal alleged apprehended bias by magistrate – where magistrate made adverse credit findings against appellant in separate proceedings – appellant raised issue of bias at time of initial hearing – magistrate refused to recuse herself – ground of appeal conceded by respondent – matter remitted to the Magistrates Court to be determined according to law

Legislation Cited: 

Crimes Act 1900 (ACT), s 35

Family Violence Act 2016 (ACT), s 149

Cases Cited: 

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Parties: 

TS ( Appellant)

UG ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

K McCann ( Respondent)

Solicitors

Self-represented ( Appellant)

Director of Public Prosecutions ( Respondent)

File Number:

SCA 38 of 2023

Decision Under Appeal: 

[redacted]

MOSSOP J

Introduction

1․These proceedings are an appeal against a finding of guilt made by a magistrate on 6 December 2022. The appellant was found guilty of the offence of stalking, contrary to s 35 of the Crimes Act 1900 (ACT). The appellant was sentenced on 1 June 2023, and placed on a good behaviour order for a period of three years.

2․(The published version of these reasons has been redacted and names anonymised to comply with s 149 of the Family Violence Act 2016 (ACT)).

Overview of the case

3․By way of brief summary, the factual circumstances were as follows. The appellant was estranged from his adult son. Father and son had been estranged for a number of years. The son had day-to-day care of the former family dog, D. D had a health scare. The son was initially told that D may die. He sent an email to his father indicating that she did not have long to live and saying that he could drop her off if the appellant wished to see her. Getting no response to that, he passed a message via his father’s sister to that effect, saying that he was agreeable to allowing the appellant to see the dog.

4․The appellant rang his son and his son agreed to take D to the appellant for a visit. It turned out that D was not about to die. She just had a temporary gastrointestinal problem. She was returned to the son’s care. Notwithstanding being informed that D was not about to die and being told that his son would arrange to let the appellant see the dog, the appellant engaged in what the magistrate described as “a barrage of unwelcome attempts at contact with [his son]”. This occurred between 17 and 23 October 2021. The principal issue at the trial was the appellant’s state of mind and, in particular, whether he had the “intent … to harass” his son within the meaning of s 35 of the Crimes Act.

Grounds of appeal

5․There were three grounds of appeal. The first asserted that the intention to stalk had not been proved beyond reasonable doubt. The second alleged a breach of the appellant’s human rights because he was prevented from seeing his dying dog. For present purposes, it is the third ground of appeal which is of significance:

3.     I told the [magistrate] at the beginning of the hearing that she was the one who chucked me out of my house which i co-owned with my wife with a family violence order. My son then took my dog to his home and i could not prevent that because of the [magistrate’s] FVO. Now when the dog is at the centre of this so called stalking, back comes the [magistrate] for this case.

6․Shortly before the hearing of the appeal, the appellant filed written submissions which clarified the factual circumstances leading to this ground of appeal. Once those became clear, the respondent conceded that this ground of appeal was made out.

7․It is therefore necessary to only briefly outline why I accept that the concession was an appropriate one and consider that the orders made below must be set aside and the matter remitted for determination in the Magistrates Court.

Earlier proceedings before the magistrate

8․There were earlier proceedings before the magistrate involving an application for a Family Violence Order against the appellant. In the course of those proceedings, it was necessary to determine whether or not the appellant or his wife’s version of events should be accepted and whether or not his wife feared for her safety. During the course of the magistrate’s reasons, she assessed the evidence of the appellant’s wife and that of the appellant. Her reasons included:

The applicant [the appellant’s wife] presented as plausible and persuasive and significantly as genuinely afraid of harm from the respondent [the appellant]. Her allegations of specific instances of violence directed toward her and her son are supported by the respondent’s criminal convictions. The respondent accepted some elements of the allegations she made, such as that he in anger broke her musical instrument, an instance of personal property violence. And more recently, that he threw food at her.

The respondent’s evidence tended toward the rambling, was largely self-referential and smacked of an exaggerated sense of grievance. He attributed no significance, even to the acts of violence he accepted having engaged in, evidencing a lack of insight as to the effect of his conduct. His explanation of the applicant’s complaints was that she was overly attached to her children and that she had got all she wanted from him and now, wished to discard him. Neither complaint, even if true, provide any explanation as to why the applicant would go to such lengths to exclude him from her life. Fear of her safety is a more plausible explanation.

9․The magistrate then went on to consider other factors relevant as to whether or not to make a Family Violence Order, including that the appellant would be excluded from a home in which he had a financial interest. She made an order for a period of two years. Appeals from this decision were dismissed by a judge of the Supreme Court and by the Court of Appeal. I was a member of the Court of Appeal in that case. The appellant initially objected to my hearing of the present appeal, but following the indication by the respondent that it would concede the appeal, consented to my dealing with the matter and hence removed the requirement to determine whether I should otherwise have recused myself.

The proceedings below

10․When the proceedings came before the magistrate, the appellant immediately raised an objection to her hearing the matter. He referred to her involvement with the previous Family Violence Order proceedings and her order against him. He said that there was reference to his dog during those proceedings and that the stalking charges arose from him wanting to see his dying dog. It appears that, at that stage, her Honour did not recall having dealt with the appellant previously. She asked whether she had made any credibility findings in the earlier proceedings. The appellant said:

Yes, you were saying things like that I am rambling in your final – yes, what the transcripts and all, it said – you just – everything about the dog also and your final decision also where I talked about this dog. Because this case is only about the dog. There’s no other reason for me to have gone there. And also, you mentioned that I was rambling in your decision against me.

11․After some further discussion, her Honour enquired whether there were transcripts of the earlier proceedings available. The magistrate indicated that she would adjourn and see if she could find a copy of her original findings or a transcript or audio recording of what had occurred. She adjourned for an hour.

12․Upon return, the magistrate did not disclose to the parties what material she had had regard to during the adjournment prior to commencing to give reasons for refusing to disqualify herself. In the course of those reasons, she said:

I have taken the opportunity to review the transcript of an ex tempore decision I made in the Family Violence Order application. I did observe that the respondent’s evidence tended towards rambling, was largely self-referential, and smacked of an exaggerated sense of grievance; and, further, was lacking in insight. I make no adverse findings, specifically, as to his credibility.

13․Her Honour referred to the relevant authorities and concluded:

Despite [the appellant’s] perception, I do not consider that a fair minded lay observer would consider that I am incapable of bringing an unbiased mind to the proceedings before me. The application is refused.

14․The respondent in the present proceedings conceded ground 3 in the Notice of Appeal on three different bases:

(a)First, in determining the application, the magistrate appears to have made a material factual error, namely that she had made “no adverse findings, specifically, as to his credit”. The respondent says that on a proper reading of her reasons, it is clear that her Honour had made a finding as to the appellant’s credit.

(b)Second, having regard to what appears on the transcript in relation to the period prior to the adjournment, it was clear that neither party had possession of the transcript of the Family Violence Order decision prior to the adjournment. After the adjournment, the magistrate did not provide the material to which she had regard prior to delivering her reasons to refuse the application to disqualify herself. The respondent says that this involved a denial of procedural fairness to the appellant.

(c)Third, having regard to the material error identified in the first point, this court would conclude that her Honour’s decision not to recuse herself was wrong. That is because, although there were a number of matters which were not in dispute in the hearing, the appellant’s credibility was likely to be a significant issue in the proceedings. That was the case even if he did not give evidence because he had participated in a recorded interview with police.

15․In my view, it is appropriate to deal with the matter on the basis that the first and third conceded errors are established. It is unnecessary to express a concluded view in relation to the second error.

16․So far as the first error is concerned, the magistrate accurately recorded part of the reasons that she had given in the earlier case, although she did not place the passage in context. Insofar as she characterised those reasons as not involving an expression of a clear view about the credibility of the appellant, that involved a factual error. In the context of the earlier case, there was a clear contest between the evidence of the appellant and his wife. The reasons given for rejecting his evidence, that it was “rambling”, “largely self-referential” and “smacked of an exaggerated sense of grievance”, that he attributed no significance to his acts of violence and lacked insight into the effect of his conduct, plainly amounted to a rejection that he was a credible witness.

17․It was as a result of the identified features of his evidence that the magistrate preferred the evidence given by his wife. The magistrate found that she made “no adverse findings, specifically, as to his credibility”. That is correct in the sense that there is no explicit finding that his evidence was unreliable. However, the features that were explicitly referred to amounted to a rejection of his credibility insofar as he contended that his wife was not seeking an order out of fear for her own safety. The fact of her conclusion that she had not made a finding as to credibility was significant for her ultimate determination as, later in her reasons, she referred to the fact that it is not uncommon for magistrates to deal with the same defendant on numerous occasions. The finding was certainly a material error in her decision.

18․The third point assumes that the earlier decision did involve a credibility finding. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300, the High Court said:

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration of the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.

19․In that case, two of the three members of the Court of Appeal who were hearing the proceedings had, in a previous case involving related parties, already concluded that a particular transaction involved wrongdoing. That was a central issue to be determined by the Court of Appeal in the later case. Similarly, the same two judges had previously made adverse findings about the credit of a particular witness whose evidence was or may be involved in the later case. The High Court said (at 300):

Two members of the Court had, in the previous case, expressed the strong view that [the witness] was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected.

20․In those circumstances, the court was satisfied that a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had expressed in the earlier case might result in the proceedings against the appellant being affected by bias by reason of pre-judgment.

21․So too in the present case. The magistrate had, in substance, rejected the evidence of the appellant in which he sought to explain his own conduct and that of his wife. She did so having made specific reference to his own attitude to his conduct.

22․It is worth noting that the underlying subject matter of the present case was related to the earlier one. The earlier proceedings had arisen out of conduct directed to both his wife and his son. As a result of the making of the Family Violence Order, the appellant became separated from the dog that played a significant role in the present proceedings.

23․For the purposes of the proceeding on the charge of stalking, it was going to be necessary for the magistrate to form a conclusion as to what had happened, as well as in relation to whether or not the acts were done with the intent of harassing the victim: see Crimes Act s 35. The fact that the magistrate had earlier made adverse findings about the evidence given by the appellant would inevitably affect those two central issues in the case: what happened and what was the appellant’s state of mind.

24․In relation to both of those issues, a fair-minded lay observer might reasonably apprehend the magistrate might not bring an impartial mind to the resolution of the question that she was required to decide because she had already formed views in the earlier case about the appellant which were relevant to the determination of the issues in the case before her. Even if there had been no issue about what had physically occurred, the magistrate would need to be satisfied that the acts done by the appellant were done with an intention to harass the victim. Determination of that issue would inevitably raise issues about his state of mind which were specifically dealt with in the earlier reasons.

25․Having regard to the success on ground 3, it is unnecessary and inappropriate to address the other grounds of appeal. The matter must be remitted to the Magistrates Court to be heard and determined by a magistrate who is not disqualified from hearing the matter.

Orders

26․The orders of the Court are:

1.Appeal allowed.

2.Set aside the conviction recorded and good behaviour order made on 1 June 2023 and remit the proceedings to the Magistrates Court for hearing and determination according to law.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 9 January 2024