Whitehead v Procopis

[2005] WASCA 249

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WHITEHEAD -v- PROCOPIS [2005] WASCA 249

CORAM:   PULLIN JA

HEARD:   25 NOVEMBER 2005

DELIVERED          :   25 NOVEMBER 2005

FILE NO/S:   CACR 180 of 2005

BETWEEN:   MICHAEL JOHN WHITEHEAD

Appellant

AND

BENJAMIN JOHN PROCOPIS
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :HASLUCK J

Citation  :WHITEHEAD -v- PROCOPIS [2005] WASC 195

File No  :SJA 1031 of 2005

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 18

Result:

Application dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr N J Mullany

Respondent:     No appearance

Solicitors:

Appellant:     Lewis Blyth & Hooper

Respondent:     State Director of Public Prosecutions

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

Gardner v Caporn [2005] WASCA 153

Samuels v The State of Western Australia [2005] WASCA 193

Case(s) also cited:

Nil

1. PULLIN JA: This is an application for leave to appeal against a judgment of Hasluck J dismissing an appeal from a decision of Mrs Musk SM who convicted the appellant of assault occasioning bodily harm. Section 18 of the Criminal Appeals Act 2004 (WA) applies division 2 to this appeal, and it is therefore necessary for the appellant to obtain leave to appeal in respect of each ground of appeal. The Court has directed not to give leave to appeal on a ground unless satisfied it has a reasonable prospect of succeeding. This phrase is discussed in Samuels v The State of Western Australia [2005] WASCA 193.

2. This case involved the complainant, a 59‑year‑old man who was at home gardening, and the appellant, who was aged 30 and driving his vehicle in the complainant's street.  The complainant considered that the appellant was driving too fast and motioned for him to slow down.  The appellant's unwarranted and aggressive response was to draw his car to a halt, leave his car and then assault the complainant, during which the complainant received an injury to his back amounting to bodily harm.

3. The complainant gave evidence describing an assault which consisted of a number of blows, kicks and a push which caused the complainant to fall over a low wall on the boundary of his property and to injure his back.  At the end of all the evidence in the case senior counsel for the appellant made submissions contending that the Magistrate was obliged to consider whether the bodily harm was caused by one of the kicks.  Her Worship then found the appellant guilty and, persuaded by senior counsel's submissions, considered the issue about whether the bodily harm was caused by one of the kicks.  The Magistrate found that it was.

4. This was not a case where the matter was conducted on some agreed basis.  The complainant was left to describe the whole of the assault without any objection being taken, and a witness who observed it also described the assault consisting of blows, kicks and pushes.  I entirely agree with Hasluck J's conclusion that the Magistrate was not bound to find that it was a kick in particular that caused the bodily harm.  The appeal to Hasluck J was on three grounds.  All the grounds of appeal before Hasluck J were dismissed.

5. During the course of his reasons Hasluck J found that the Magistrate should have found that there was doubt that a kick caused the back injury, but applying the provisions of s 14(2) considered that there was no miscarriage of justice because the assault, consisting of the whole array of blows, kicks and pushes, caused the complainant to fall and sustain the injury to his back which amounted to the bodily harm which had been particularised.  The appellant now seeks to appeal against Hasluck J's decision on the following grounds:

   "1.The learned Judge erred in finding that it was open to the learned Magistrate to view the prosecution case as follows: there was a series of events initiated by the Appellant involving punching, pushing and kicking which amounted to an assault and these events caused the bodily harm complained of in that the complainant would not have received a lower back injury but for the conduct of the Appellant.

   2.The learned Judge erred in finding that the only particulars binding upon, and thus limiting the prosecution case, was the acceptance by the prosecution at the conclusion of the first day of the trial that the bodily harm mentioned in the charge comprised an injury to the lower back area.

   3.Having found that the finding of the learned Magistrate that the injury to the lower back area was caused by a deliberate kick by the Appellant was against the weight of the evidence adduced, the learned Judge erred in concluding that the conviction of the Appellant did not give rise to a substantial miscarriage of justice."

6. The first ground is that the learned Judge erred in fact and law in finding that it was open to the prosecution to advance a case that the assault complained of consisted of a cluster of acts or events, carried out in quick succession, initiated by the accused which caused the bodily harm which would not have occurred but for the actions of the accused.

7. In my opinion, this was the case advanced by the prosecution, namely, that the assault consisted of the whole array of blows and kicks and pushes.  This was the evidence given by the complainant and an independent witness and not objected to.  To argue this ground, in my opinion, is to ignore the decision of the Court of Criminal Appeal in Gardner v Caporn [2005] WASCA 153. In my opinion this ground has no reasonable prospect of succeeding.

8. Ground 2 contends that the learned Judge erred in law in finding that the only particulars binding upon the prosecution was the acceptance by the prosecution that the bodily harm comprised an injury to the lower back area.

9. The appellant's outline of submissions claims that there was particularisation requiring the prosecution to prove the kick caused the bodily harm.  As I have already said, this arose entirely out of submissions made by senior counsel for the appellant after all the evidence had been led before the Magistrate.  What senior counsel said about the case after all the evidence had been led cannot produce the result that the prosecution was confined to proving that the bodily harm was caused by a kick which was just one aspect of the assault.

10. The appellant contends that, as a result of discussion which took place after all of the evidence had been given, submissions were not made by counsel for the appellant about defences that might have existed.  It is said that submissions might have been made about provocation or self‑defence.  The judgment which is under appeal here is not the decision of the Magistrate but the judgment of Hasluck J and at that stage the opportunity was open to make those submissions because nothing would change so far as the evidence was concerned.  The discussion which had taken place before the Magistrate was one which occurred after all the evidence was in.  In my opinion this ground has no reasonable prospect of succeeding. 

11. The third ground is that the learned Judge erred in law in having found (correctly) that the Magistrate erred in that it was against the weight of evidence that the injury to the lower back area was caused by a kick by the accused, there was no substantial miscarriage of justice.  The appellant submits that counsel for the defence proceeded on the understanding that the prosecution case would not be made out if the court was to find that the injury had occurred by way of a push causing the complainant to fall against the wall and sustain injury. 

12. Reference was made in the written submissions and during oral submissions to the transcript of argument after all the evidence had been completed and after the close of the appellant's case.  The only proceedings which took place after the senior counsel's discussion with the Magistrate and discussion with the prosecutor was the closing address of each of the parties.  It did not lead to any difference in the evidence which was led.  In my opinion Hasluck J's decision on this point was correct.

13. His Honour was correct to conclude that the assault consisted of the whole attack and that the bodily harm was caused by this attack and that in consequence the appeal should not succeed, even though the Magistrate was wrong to find that the kick or a kick caused the bodily harm.  His Honour correctly concluded that there was no miscarriage of justice despite that error.

14. As a result, it is my opinion that this ground has no reasonable prospect of succeeding. 

15. The application for leave should be dismissed with the consequence that the appeal should also be dismissed.