Watson v Vos - [2019] WASC 327

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WATSON -v- VOS [2019] WASC 327
CORAM:   HALL J
HEARD:   6 SEPTEMBER 2019
DELIVERED          :   6 SEPTEMBER 2019
FILE NO/S:   SJA 1008 of 2019
BETWEEN:   SUSAN WATSON
Appellant
AND
GRAHAM PETER VOS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE POTTER
File Number             :   JO 7034 OF 2017

Catchwords:

Criminal law - Appeal against conviction - Whether magistrate erred in relying on inadmissible opinion - Whether inference as to age of damage was available from the evidence relied on - Whether to remit matter to Magistrates Court or enter judgment of acquittal

Legislation:

Nil

Result:

Leave to appeal refused on grounds 1, 2 and 3
Leave to appeal allowed on ground 4
Appeal allowed
Judgment of acquittal entered

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms S Nigam
Respondent	:	Mr J M Carroll

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
R v Anderson (1991) 53 A Crim R 421
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

HALL J:

(This judgment was delivered extemporaneously on 6 September 2019 and has been edited from the transcript.)

The appellant Susan Watson was convicted on a charge of unlawful damage after a trial in the Magistrates Court. The damage in question was a scratch to the wing mirror of her neighbour's car. The value of that damage was estimated to be $100. The appellant seeks leave to appeal against her conviction.
The above introduction is enough to convey that a relatively trivial matter has consumed a disproportionate amount of public resources, being the resources of the police, the Magistrates Court, and now the Supreme Court. That is extremely regrettable and has some significance in how this case should be disposed of.
The appeal is brought on grounds that allege that the learned magistrate fell into error by drawing inferences that were not open. The respondent concedes that an error occurred and that the appeal should be allowed. The real issue is whether, notwithstanding the error, it was open to convict the appellant on the evidence. If so, there is then a question of whether the case should be sent back to the Magistrates Court. I will return to those issues after setting out the evidence, the grounds of appeal and the merits of those grounds.

Prosecution Case

The prosecution case was that the offence occurred in the context of a long-running dispute between the appellant and her neighbours Ronald and Kerry‑Leigh Hapgood-Strickland. They occupy adjacent units which are part of a strata development. There is an area of common property shared by the two units. Due to past incidents, Mr and Mrs Hapgood-Strickland have installed CCTV cameras on their property, which cover an area in front of their unit.
Mr Hapgood-Strickland gave evidence that on 4 June 2017, he was at home in the morning when police attended to make inquiries regarding an allegation of theft by the appellant. The only relevance of this is to place in time the events that followed. The police officers left shortly after 10.00 am and a few minutes later, whilst watching his CCTV, Mr Hapgood-Strickland saw the appellant come out of her front gate and shake a trailer parked near his house. She then went into the carport and lifted out a length of pool fencing, which she dragged across the front of the house before depositing it on the driveway of the Hapgood-Strickland residence.
A recording of the CCTV footage was tendered at the hearing. I have watched it. It confirms the events as described. The piece of fencing is dragged or moved past a Hyundai Getz parked at the front of the house. Although the fence is moved past the far side of the car and no actual contact can be seen, it is apparent that the fencing is moved in very close proximity to the car.
Mr Hapgood-Strickland gave evidence that he went outside after the appellant had left and observed that the passenger side front mirror was folded in and was scratched. He said that he had seen the car last when the police had attended earlier that morning and that the mirror was not folded in or scratched at that time. In cross-examination he accepted that there were other scratches and marks on the car, but maintained that the scratch on the wing mirror was not there previously.
Mrs Hapgood-Strickland gave evidence to the same effect as her husband. She was at home at the time and also watched the CCTV footage and saw the scratch to the wing mirror. She said that the wing mirror was folded in when she saw it and that the scratch was new. She had not noticed any scratch when she had last been in the car two days earlier. There was extensive cross-examination regarding the fractious relationship with Ms Watson, but Mrs Hapgood-Strickland did not resile from her evidence.
Senior Constable Graham Vos attended following the incident. He spoke to the appellant regarding the allegation of damage to the car, but described her as uncooperative and argumentative. He viewed the CCTV footage and took photographs. Constable Matthew Harvey was also in attendance and gave similar evidence.

Defence Case

The appellant gave evidence that she came out of her house and tried to move the trailer because, in her view, it was obstructing her driveway. She was unable to move it because there was a chain securing it. She said that she wanted Mr and Mrs Hapgood-Strickland to know how frustrating and annoying it was to 'have people touch and move your belongings'. This was a reference to other grievances. She decided to move something of theirs, being the piece of pool fence.
She said that moving the fence was hard and was more difficult near the car where the ground was bare sand or dirt. She said that as she was doing this she felt a sharp pain in her back or arm and this caused her to let go of the fence for a second. She said this was involuntary and that she then took hold of the fence again and continued to move it.
She said that she could not recall whether the fence made contact with the car mirror. She accepted that the CCTV footage appeared to support contact with the car, but she said she was not aware of this at the time and did not see any damage. She agreed that after moving the fence the CCTV footage shows her throwing sand, leaves and a piece of wood into the trailer. She said she did this in frustration and annoyance.
The appellant also gave evidence of a number of accidents that she suffered between 1979 and 2009, which she said had left her with continuing pain in her neck and back. She claimed that this pain was exacerbated by stress caused by the ongoing dispute with her neighbours. She produced some x-rays regarding one of these injuries, but there was no medical report or evidence called from a doctor regarding any residual effects.
In essence, the defence case was that the prosecution had not proven that any damage was caused by the appellant because the scratch could not with certainty be proved to have occurred at that time and, secondly, that if the fence did make contact with the car it was due to an unwilled act caused by the appellant's response to a sudden pain. Two character witnesses gave evidence to the effect that the appellant was an honest person who would not intentionally damage another person's property. The relevance of this was limited given that the charge was not one of wilful damage.

Magistrate's decision

The learned magistrate reserved his decision, which was delivered on 11 January 2019. His Honour noted that the appellant was charged with unlawful damage under s 445 of the Criminal Code, not wilful damage under s 444. Accordingly, it was not necessary for the prosecution to prove any specific intent to cause damage. He identified the essential issues as being first, did the appellant cause the scratch to the wing mirror; and secondly, if she did, were her actions excused by law?
As to the second question, the defence had raised two possibilities. First, that the act of dropping the fence was an unwilled act caused by an involuntary response to pain. Second, that the damage was an accident because there was a change to resistance as the fence was pulled from the paved surface to the sand and this was an intervening event.
The magistrate said that the CCTV footage provided clear evidence of the fence being moved by the appellant and that the fence struck the wing mirror and caused it to fold inwards. His Honour then said that the construction of the fence panel explained the fact that the scratch was not continuous, but was in effect three separate scratches. In addition he referred to the evidence of Senior Constable Vos; that the scratch appeared to be fresh, as compared to other scratches on the vehicle. He said that the only reasonable inference to draw from this combination of facts was that the fence panelling struck the mirror with sufficient force for it to fold inwards and cause the scratch or scratches. Thus he concluded that the appellant's actions had caused the damage.
As to unwilled act, his Honour was satisfied beyond a reasonable doubt that it was negated. He came to that conclusion because the appellant's actions on the CCTV were not consistent with her feeling a sudden or severe pain as described by her. He notes that the appellant continued her exertions in shaking the trailer and moving the fence, and only after finishing momentarily touched her back.
As to the claim of accident, his Honour reasoned that the movement of a heavy fence over different surfaces raised an inherent risk of loss of control. He said that the appellant was recklessly indifferent to the reasonably foreseeable consequence of the fence falling and causing damage.

Grounds of appeal

The grounds of appeal are unnecessarily prolix. In essence, they allege:
(1)that it was not open to the magistrate to find that the appellant caused the damage because there was evidence that the car had pre-existing damage;
(2)that the magistrate erred by finding that the pattern of the scratches matched the fence, in the absence of expert evidence; and
(3)that the magistrate erred in finding that the defences of unwilled act and accident were excluded in circumstances where the appellant's evidence as to her medical issues was uncontradicted.
It is, frankly, difficult to see much merit in any of those grounds.
As to the first ground, the fact of pre-existing damage was not an impediment to conviction since there was a proper foundation in the evidence for distinguishing between the scratch the wing mirror and other scratches on the car.
As to the second ground, it is open to interpret his Honour's remarks as being simply an exercise in comparing the appearance of the fence with that of the scratches.
As to the third ground, it did not follow from the appellant's account of her medical history that the magistrate was obliged to accept her claim that she suffered a sudden and severe pain that caused her momentarily to release the fence. Her evidence as to that pain was challenged and the magistrate was clearly entitled to take into account other evidence including the CCTV footage.
However, the respondent submits that the magistrate erred for a reason which differs from those raised in the grounds. The respondent says that the magistrate concluded that the fence caused the scratches by relying on three matters only: that the CCTV footage established contact with the car, that the pattern of scratches is consistent with the construction of the fence and that the scratches appeared to the police officer to be fresh.
The respondent says that any view of the police officer as to the freshness of the scratches was inadmissible opinion. It could not be relied on in coming to a conclusion as to when the scratches were caused. As to the pattern of the scratches, the respondent says that in the absence of expert evidence, the highest that this can be put is that the scratches were not inconsistent with the fence. However, that fact together with the others referred to by the magistrate was not enough to support a conclusion that the scratches were not pre-existing.
Unsurprisingly, the appellant has embraced the respondent's concession and sought to amend the grounds of appeal. I have allowed an amendment to add a ground which is in the following terms:
(4)That the learned magistrate erred in concluding that an inference could be drawn that the appellant caused the damage from the evidence he referred to, namely:
(a)the CCTV footage;
(b)the pattern of the scratches; and
(c)the police officer's opinion as to freshness.
I am satisfied that the respondent's concession is properly made and that leave should be granted and the appeal allowed on this ground.

Disposition - should the matter be remitted?

This then leaves what I described at the commencement of these reasons as the real issues, being the disposition and whether this matter should be remitted to the Magistrates Court. As is apparent from my summary of the evidence, there was evidence available to the magistrate which, if accepted, could support a finding beyond reasonable doubt that the fence caused the damage. That evidence comes, in particular, from Mr and Mrs Hapgood-Strickland as to their observations of the scratches and when they were seen.
In particular, Mr Hapgood-Strickland saw the car immediately before the incident and immediately afterwards. He was certain that the scratch to the wing mirror was new and that the mirror had not been folded in prior to the incident. If Mr Hapgood-Strickland's evidence was accepted, then together with the other evidence, it would provide a proper basis for concluding that the fence caused the scratch. The magistrate made no specific findings regarding the credibility of the prosecution witnesses, but there is no obvious reason why he could not accept that evidence. Whilst Mr Hapgood-Strickland's evidence was challenged, it was steadfastly maintained and is not inherently lacking in credibility.
In these circumstances, the usual orders would be to allow the appeal, set aside the conviction and remit the matter to the Magistrates Court to be determined according to law. Often in such cases, that will mean remitting the matter for a retrial before a different magistrate. This is not because of any suggestion of bias, but to ensure that there can be no such perception.
The orders that can be made on an appeal of this nature are set out in s 14 of the Criminal Appeals Act. The power to order a retrial is discretionary in nature. Where this question is under consideration, there are two broad issues. First, whether the admissible evidence at the trial was sufficiently cogent to support a conviction. Secondly, whether there are any circumstances that might render it unjust to make the accused stand trial again.[1] In R v Taufahema[2], Gummow, Hayne, Heydon and Crennan JJ adopted observations of Gleeson CJ then of the New South Wales Supreme Court in R v Anderson[3] that there is a public interest in the due prosecution and conviction of offenders and that it is desirable, if possible, for the guilt or innocence of an accused person to be determined by, in that case, a jury.
[1] See DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 and Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 at [204] ‑ [210].
[2] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49] ‑ [51].
[3] R v Anderson (1991) 53 A Crim R 421 at 453.
There are a number of factors that are relevant to the issues in this case. First, the appellant was granted a spent conviction by the magistrate and sentenced to a nine month conditional release order. That order has now been almost completely served. In those circumstances, if found guilty after a retrial, and after giving credit for the sentence already served, it is likely that any penalty imposed would be nominal. Indeed, it would be open to make an order under s 46 of the Sentencing Act imposing no sentence if the magistrate thought that that was appropriate.
Secondly, the incident in question could only be described as being at the low end of the spectrum and occurred more than two years ago. It is not the type of matter which very much excites the public interest in ensuring that offences are duly prosecuted and dealt with.
Thirdly, the expenditure of public resources on this matter is wholly disproportionate to its significance. The time and efforts of the police, the Magistrates Court and now this court have been utilised for what can only be described as a relatively trivial matter. Those resources are in short supply and there any many other more important matters competing for them. To remit this matter would be to commit yet further public resources to this case. That cannot serve the public interest.
Fourthly, the charges have arisen in the context of a bitter and prolonged neighbourhood dispute. Furthermore, this was reflected in the manner in which the complainants were cross-examined at the hearing. Counsel for the appellant, no doubt on instructions, took the opportunity to ventilate other incidents, ostensibly because this shed light on the relationship between the parties. However, this meant that the hearing was prolonged and it became a forum for airing of other grievances, some of which seemed merely petty or vindictive. This did not reflect well on anyone involved. Neighbours are free to love or loathe each other, but they cannot always expect the justice system to lend itself uncritically to be used by them to air their disputations.
This leads me to the conclusion that the appropriate outcome is not to remit the matter but to enter a judgment of acquittal. I appreciate that the appellant may view that as some sort of victory over her neighbours. Of course, it is not. It is not a result that flows from a deficiency in the evidence, but is an exercise of discretion.
There remains the question of costs. Normally, a successful appellant on an appeal against conviction from the Magistrates Court is entitled to costs, but this is always discretionary.[4] Factors that are relevant here are that the hearing in the Magistrates Court was, in my view, unnecessarily prolonged by the way in which the appellant's case was conducted, that the grounds advanced by the appellant were without merit and the appeal has succeeded on a ground effectively suggested and conceded by the respondent and that I have decided not to remit the matter for a retrial due to discretionary considerations. In all of those circumstances, I consider that an appropriate order for costs both of the Magistrates Court and in this court should be in the total sum of $5,000.[5]
[4] At least as to the amount, where factors such as those referred to in s 6 of the Official Prosecutions (Defendants' Costs) Act 1973 (WA) are relevant, as here.
[5] A much larger sum was sought.
The orders of the court are therefore as follows:
(1)Leave to appeal on grounds 1, 2 and 3 contained in the notice of appeal is refused.
(2)Leave to appeal on ground 4, the substituted ground, is allowed.
(3)The conviction, sentence and other orders imposed in the Magistrates Court are set aside.
(4)In lieu thereof, I order that a judgment of acquittal be entered.
(5)In respect of both the Magistrates Court proceedings and this court the appellant is entitled to costs in the total sum of $5,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AL
Associate to the Honourable Justice Hall
11 SEPTEMBER 2019