Vidovic v Hotchkis
[2018] ACTSC 47
•26 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Vidovic v Hotchkis |
Citation: | [2018] ACTSC 47 |
Hearing Date: | 26 February 2018 |
DecisionDate: | 26 February 2018 |
Before: | Elkaim J |
Decision: | The appeal is dismissed |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against conviction – whether there was a failure to properly consider, rule or otherwise deal with matters of law and procedure |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D |
Parties: | Aviv Vidovic (Appellant) Chris Raymond Hotchkis (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms R Christensen (Respondent) |
| Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 56 of 2017 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 23 June 2017 Case Title: Hotchkis v Vidovic Court File Number: CC 2119 of 2016 |
ELKAIM J:
On 23 June 2017, the appellant was found guilty of an offence of common assault in the ACT Magistrates Court. He was convicted and released upon entering into a Good Behaviour Order for a period of 12 months.
The appellant appeals against conviction. The single ground of appeal advanced is:
There was a potential miscarriage of justice arising from a failure to properly consider, rule or otherwise deal with matters of law and procedure.
The appellant is legally represented. Unfortunately, he was not legally represented before the Magistrate.
The original charge before the Magistrate was one of common assault, concerning an alleged assault on a Ms X on 14 February 2016.
The proceedings before the Magistrate commenced with an application by the appellant to adduce propensity evidence. The evidence sought to be adduced was that the complainant had a propensity to be violent, engage in deceptive conduct and be a stalker.
Although the propensity application faced some immediate difficulties in relation to the proper giving of notice, the Magistrate dealt with the application by finding that the subject material was not relevant to the prosecution for common assault.
This finding gave rise to the primary complaint made by the appellant. Included in the list of facts forming the application was this assertion:
14 February 2016 - assault and battery of the defendant by the complainant
The date of the assault that was the subject of the charge was 14 February 2016. This entry was, therefore, unlike all other entries that referred to events before this date as well as one after the date. It was submitted that it should have been obvious to the Magistrate that the above assertion should be treated differently from the others because it might impact upon the defence that was to be run by the appellant.
Further, the explanations given by the Magistrate to the appellant were not such as to allow him to distinguish between the reasons for the rejection of the application and the relevance of evidence that might go towards a defence of self-defence.
The appellant submitted that, by rejecting the above assertion, the Magistrate was indicating to the appellant that he could not adduce evidence consistent with the allegation. Moreover, the appellant could not provide to the Magistrate a transcript of a conversation between the complainant and the police in which she plainly says that she was a prime motivator in the argument, including the use of physical force by her, which preceded her falling to the ground.
Further, the appellant submitted that, had the Magistrate made it plain to the appellant that he was entitled to raise the issue of the complainant’s conduct, it may have had an effect on his cross-examination of the complainant, such that the overall assessment of the evidence could have been more favourable to the appellant. The appellant also submitted that the reliability of the two independent witnesses could have been affected by the weight that might have been given to the complainant’s conversation with the police.
It was pointed out to me that their reliability was already at issue because of the time the event occurred (4:00 am), the lighting and the distance of the witnesses from the apparent assault.
The first point that arises is whether or not the Magistrate should have gone beyond the face value of the propensity application to decide if it was confined to propensities, or tendencies, or there was some other significance to the entry about 14 February 2016. The strength of the submission lay in the appellant being unrepresented. Had he been legally represented there would not have been any obligation on the Magistrate.
However, because he was not represented, it was submitted that the Magistrate should have, in effect, taken an interest in the 14 February entry going beyond its inclusion as a particular of a propensity.
The obligations on a judicial officer when dealing with an unrepresented accused are high and in particular include a necessity to assist the accused person to put forward whatever defence that person has indicated that he intends to rely upon.
I do not, however, think that the obligation extended to the Magistrate having to dissect the propensity notice and treat it as if it was a pointer to the nature of the evidence that the appellant wished to rely upon. This is particularly the case here, where the appellant had stated in terms that he denied assaulting the complainant at all (Transcript 17.6).
In case I am wrong on this point, there are a number of other impediments to the appellant’s success. Firstly, the complainant did give evidence to the effect that she had at least provoked the appellant before she fell to the ground. At Transcript 95.36, in answer to the question: “Ms X, were you trying to hit Mr Vidovic while he was holding your arms restraining you?” she answered: “Yes”.
Secondly, the evidence given by the independent witnesses was accepted by the Magistrate as credible and reliable.
Thirdly, the appellant’s argument has this fundamental flaw: the evidence coming from the complainant, whether orally or through the record of her conversation with the police, was concerned with the events prior to the assault that was the subject of the charge.
The relevant assault occurred when the complainant was lying on the ground and being kicked by the appellant. It did not include the dispute immediately prior to her falling to the ground. It does not matter how physically involved she may have been in that dispute.
Most importantly, even if the Magistrate had accepted that the complainant had been instrumental in agitating the appellant to an extent that he caused her to fall to the ground, such a finding would not have established the basis for self-defence in respect of the assault as described by the independent witnesses.
In summary, I do not accept that there was any error on the Magistrate’s part and, even if there was, it was not productive of any miscarriage of justice.
There is another argument that was put forward by the appellant that I should deal with.
As can be seen from the transcript, the brief questioning of the complainant by the appellant was conducted through the Registrar. This was because it was apparently assumed that questioning through the Registrar had been made necessary by s 38D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
The appellant complained that there had not been any formal enquiry as to the applicability of this section and, in addition, if it should not have applied then an unfair fetter had been placed on his capacity to cross-examine the complainant. This was because he had been told it was necessary for any questions he wished to ask of her to be written down.
I think there probably should have been a more formal approach taken to the request of the Registrar to participate. This might have included explaining to the appellant the terms of s 38D and asking him if he wished to dispute the application of the section.
It was further submitted that, had he been able to cross-examine without the use of the Registrar, the appellant could have more freely asked questions of the complainant without the constraints that had been imposed upon him.
There are two difficulties with the argument: firstly, it is evident from the transcript that the appellant said that he only had one question for the complainant and secondly, not only was the question asked, but as seen above, the answer was favourable to the appellant.
Accordingly, this argument is rejected.
I make the following order: the appeal is dismissed.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 5 March 2018 |
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