Wirth v Fitzgerald
[2006] WASC 288
WIRTH -v- FITZGERALD [2006] WASC 288
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 288 | |
| Case No: | SJA:1055/2006 | 30 OCTOBER 2006 | |
| Coram: | HASLUCK J | 17/12/06 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JULIE ANNE WIRTH MATTHEW JAMES FITZGERALD |
Catchwords: | Criminal law Appeal against conviction for aggravated assault occasioning bodily harm Question of adequacy of findings of fact and reasons for decision Basis for assessment of credibility of witnesses when no independent witness available Alleged inconsistencies in evidence Whether all elements of charge proved beyond reasonable doubt Whether findings adequately disclosed the intellectual process to support conclusion No explicit finding as to whether relevant circumstance of aggravation had been established by the evidence Whether issues raised by defence were sufficiently negated Allegation by defence counsel of procedural unfairness amounting to a miscarriage of justice Finding on appeal that judicial officer proceeded fairly Appeal dismissed |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Criminal Code (WA), s 221, s 244, s 248, s 254, s 317(1) Criminal Procedure Rules 2005 (WA), r 67 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Browne v Dunn (1893) 6 R 67 Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 62 ALR 53 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1994) 179 CLR 1 Hajinoor v Dench [2005] WASC 274 Harling v Hall (1997) 94 A Crim R 437 Jones v Dunkel (1959) 101 CLR 298 Liberato v The Queen (1985) 159 CLR 507 M v The Queen (1994) 181 CLR 487 MWJ v The Queen [2005] HCA 74 Nevermann (1989) 42 A Crim R 347 Skerritt v O'Keefe [1999] WASCA 183 TKWJ v The Queen (2002) 212 CLR 124 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Allen v Gittos (1995) 13 WAR 560 Chamberlain v MacLachlan [2003] WASCA 200 Ciminata v Reynolds [2000] WASCA 97 Gardner v Caporn [2005] WASCA 153 Lloyd v Faraone [1989] WAR 154 Mraz v The Queen (1955) 93 CLR 493 R v McDonald [2000] WASCA 336 Rosenberg v Percival (2001) 205 CLR 434 Simic v The Queen (1980) 144 CLR 319 Smits v Roach [2006] HCA 36 Thompson v McIntyre SM [2006] WASC 218 Vakauta v Kelly (1989) 167 CLR 568 Van Der Laan v Warchot [2006] WASC 229 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MATTHEW JAMES FITZGERALD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J McINTYRE
File No : MH 2777 of 2005
(Page 2)
Catchwords:
Criminal law - Appeal against conviction for aggravated assault occasioning bodily harm - Question of adequacy of findings of fact and reasons for decision - Basis for assessment of credibility of witnesses when no independent witness available - Alleged inconsistencies in evidence - Whether all elements of charge proved beyond reasonable doubt - Whether findings adequately disclosed the intellectual process to support conclusion - No explicit finding as to whether relevant circumstance of aggravation had been established by the evidence - Whether issues raised by defence were sufficiently negated - Allegation by defence counsel of procedural unfairness amounting to a miscarriage of justice - Finding on appeal that judicial officer proceeded fairly - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 221, s 244, s 248, s 254, s 317(1)
Criminal Procedure Rules 2005 (WA), r 67
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J G Kitto & Mr J R Ludlow
Respondent : Mr S M Stocks & Ms C C L Noonan
Solicitors:
Appellant : Kitto & Kitto
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Browne v Dunn (1893) 6 R 67
Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 62 ALR 53
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
Jones v Dunkel (1959) 101 CLR 298
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
MWJ v The Queen [2005] HCA 74
Nevermann (1989) 42 A Crim R 347
Skerritt v O'Keefe [1999] WASCA 183
TKWJ v The Queen (2002) 212 CLR 124
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Case(s) also cited:
Allen v Gittos (1995) 13 WAR 560
Chamberlain v MacLachlan [2003] WASCA 200
Ciminata v Reynolds [2000] WASCA 97
Gardner v Caporn [2005] WASCA 153
Lloyd v Faraone [1989] WAR 154
Mraz v The Queen (1955) 93 CLR 493
R v McDonald [2000] WASCA 336
Rosenberg v Percival (2001) 205 CLR 434
Simic v The Queen (1980) 144 CLR 319
Smits v Roach [2006] HCA 36
Thompson v McIntyre SM [2006] WASC 218
Vakauta v Kelly (1989) 167 CLR 568
Van Der Laan v Warchot [2006] WASC 229
(Page 4)
- HASLUCK J:
Introduction
1 The appellant, Julie Anne Wirth, obtained leave to appeal against a conviction arising under provisions of the Criminal Code (WA). The grounds of appeal are directed to the adequacy of the learned Magistrate's findings of fact and reasons for decision.
2 The appellant was charged pursuant to a prosecution notice that on 11 March 2005 at Pinjarra she unlawfully assaulted one Simone Ruby Keele and thereby did her bodily harm in circumstances of aggravation, namely, whilst a child was present, contrary to s 317(1) of the Criminal Code. Such a charge is usually described as a charge of aggravated assault occasioning bodily harm.
3 Section 317(1) of the Criminal Code provides that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime and is liable upon summary conviction, if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine. Circumstances of aggravation are defined by s 221 of the Criminal Code to include circumstances in which a child was present when the offence was committed.
4 I note in passing that by s 222 of the Criminal Code a person who strikes, touches or moves or otherwise applies force of any kind to a person of another, either directly or indirectly, without his consent is said to assault that other person. The term "bodily harm" is defined by s 1 of the Criminal Code to mean any bodily injury which interferes with health or comfort.
The hearing
5 The matter was brought on for hearing before Magistrate McIntyre in the Magistrates' Court at Mandurah on 30 March 2006. The appellant was represented by counsel and entered a plea of not guilty to the charge.
6 The matters in controversy arose out of an altercation at a residential property in Pinjarra occupied by the appellant. The appellant was at the property on the day in question with her male companion, Liam McNamara.
7 It is apparent from the evidence given at the hearing, and in any event it was common ground at the hearing before me, that Ms Keele drove to the property with the three children of the former relationship
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- between her and Mr McNamara. She had with her as a passenger Mr Rozman who had previously been in a relationship with the appellant. In other words, the adult persons at the scene of the altercation were two separated couples, each of whom had formed a relationship with the estranged partner of the other.
8 It was common ground also that Ms Keele and Mr Rozman drove to the property with a view to dropping off the three children in the vehicle (ranging in ages from nine to three years of age) pursuant to access arrangements, although there was an issue at the hearing before me as to whether this could be characterised as a matter of routine. I understand that at the property there were three children of the former relationship between the appellant (Ms Wirth who was at the property of Mr McNamara) and Mr Rozman (who arrived in the car driven by Ms Keele).
9 In the course of her evidence-in-chief the complainant, Ms Keele, said that prior to Sunday, 11 March 2005 the access arrangements were that every Friday at 5 o'clock she and Liam McNamara met at a named hotel or Amgas Petrol Station in Pinjarra so that their three children, being two boys and their daughter "S" (the youngest child) could be dropped off. However, on the day in question, her mother had passed on a message from Mr McNamara that the children were to be dropped off at the property in Pinjarra Road.
10 The appellant said in evidence at the hearing that when she pulled up at the house, she got out of the car, took S out of the restraining car seat in the back and handed her over to Liam. The two boys got out of the passenger side of the car and went towards the house. When Liam confirmed that he would be dropping the children off on 5 pm on Sunday she got back in the car. At this stage Julie (the appellant) approached the passenger side of the vehicle and began talking to Mr Rozman about maintenance matters. Liam intervened, so Ms Keele put her hand up and asked him to come over to the driver's side of the car. She then said in her evidence-in-chief (TS 7):
"And as he came out or came around, he had [S] in his arms and he came around and I got out of the car. And I said to Liam that 'this has nothing to do with you, it's between Julie and Phil."
11 Ms Keele went on to say in her evidence-in-chief that when Julie noticed that Liam was being talked to she (Julie) accused Ms Keele of
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- spreading rumours and when on to say that she hated Ms Keele and was "going to fucking kill you". Ms Keele then said this in evidence (TS 7):
"And with that, she stormed quite angrily around the vehicle from the passenger side around the front of the vehicle to the driver's side. And suddenly also Liam was back around the passenger side. And I thought that Julie was just going to eyeball me and have a go at me, but I got a fist, a really good fist in the face instead."
13 Ms Keele said that she did not know who pulled Julie off her but she looked at her boy "K", who had a look of horror on his face, and said to him that he was to get his brother and get in the car. However, Liam told K to stay where he was. S was running towards her screaming and that is when Ms Keele noticed that she (Ms Keele) had blood pouring down her face. As she bent down to pick S up, Liam let go of Julie again who came at Ms Keele a third time.
14 Eventually, after some further verbal exchanges, Ms Keele got back in the car and Mr Rozman drove her to the Pinjarra Police Station and then to the hospital.
15 I pause here to observe that Ms Keele's description of her injuries (which were verified by photographs and included a black eye) were found by the learned Magistrate to amount to bodily harm, and there appeared to be no controversy as to this aspect of the matter at the hearing.
Cross-examination of the complainant
16 It will be apparent from this summary of the complainant's evidence-in-chief that if her account of what took place was accepted in its entirety then this would amount to sufficient evidence to substantiate the charge. In other words, the evidence for the prosecution was that after getting out of the car a second time in order to talk to her former partner Liam, Ms Keele was suddenly assaulted by the appellant in the presence of a child, being the complainant's daughter S who was being held by
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- Liam when the assault commenced. I feel obliged to present the scene succinctly in this way because the grounds of appeal were directed to alleged inadequacies in the prosecution case having regard to what was brought out in cross-examination of Ms Keele and by the evidence of other witnesses.
17 Under cross-examination Ms Keele agreed that Mr Rozman was drinking "Wild Turkey and Dry" when they drove up. They were going out to dinner. She was the one who was driving when they arrived but Mr Rozman drove away after the altercation. Ms Keele said that Ms Wirth did not tell her to leave the property before the alleged assault. It was in this context that when Ms Keele was asked how many times she had got out of the car that she responded: "Once". She got out of the car because she had beckoned to Liam to come around to her side of the car and she wanted to speak to him. This exchange then occurred (TS 13):
"Okay. So you deny that you got out of the vehicle twice and moved to the front of the vehicle?---I deny that, yes."
18 Ms Keele denied striking or punching Julie Wirth at any stage, or pushing her backwards. She was challenged about certain inconsistencies between what she had said to the police and the evidence given in Court. She agreed that she had yelled to K across the front lawn to get in the car. She said nothing further to K when he stayed where he was in response to his father's instruction.
Other prosecution witnesses
19 Mr Rozman gave evidence in support of the prosecution case. He confirmed that Ms Keele was driving and that he was in the passenger seat. He said that Ms Keele got back into the car after speaking to Liam initially but after Julie had come to Mr Rozman's side of the vehicle Ms Keele got out of the driver's side again to speak to Liam. It was then that Julie marched to the front of the car and proceeded to start punching and swinging at Ms Keele.
20 Under cross-examination Mr Rozman said (TS 29) that when the fight first started: "Liam had hold of her [S] at the front". He could not recall Julie Wirth asking Simone Keele to leave before the former assaulted Simone. He did not see Simone Keele retaliate. She just put her arms up to try and shield herself from getting hit.
21 A police officer stationed at the Mandurah Police Station gave evidence to the effect that on the day in question he saw the complainant
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- sitting in the front passenger seat of a vehicle bleeding profusely and later spoke to her about her injuries and the incident.
The appellant's evidence
22 The appellant, Ms Wirth, gave evidence in response to the prosecution case against her. She said that she was living at the property with her three children. Liam McNamara was living at a farm nearby. She said that the arrangement for the dropping off of Liam's three children was for them to be dropped off "out the front" but not at her house. Ms Wirth said that when she approached the vehicle being driven by Simone Keele she noticed that Mr Rozman was drinking. She said that she found it unusual that the car had driven down to the house "because the children often get dropped off at the front of the property" (TS 40). She commenced talking to Phillip Rozman on the passenger side of the vehicle.
23 The appellant went on to say that Liam got S out of the car and was holding S. The appellant said that Simone got out of the car and was taunting her. Simone pushed her and she (the appellant) shoved her back (TS 42). She retaliated by pushing Ms Keele. The latter hit out and connected with the side of the appellant's jaw whereupon the appellant said "How dare you" and punched her on the left side of the face. In the course of her evidence she said that when she had finished her conversation with Mr Rozman she had said: "Just leave. Just go."
24 I pause here to note that it is not entirely clear whether these words were directed simply to Mr Rozman or to both visitors. I mention this because there is an issue before me as to whether an implied licence to enter the property (if any) was withdrawn prior to the physical encounter between the appellant and Ms Keele.
25 The appellant went on to say that Ms Keele was going to get back into the car but did not. Liam had S "In his right arm and me in his left" but, according to the appellant, Simone Keele did not stop fighting and would not leave (TS 44). She said that eventually Mr Rozman got Ms Keele in the car. The appellant said that she was left with a scratch down her chest, a bruise to the left side of her cheek, and scratches under her eyes and across her lips. She thought her finger was broken. She said that the fight "happened very quickly, I would say 8 to 10 seconds at most." (TS 45).
26 Under cross-examination Ms Wirth said that she was not upset before they arrived. She did not know that Mr Rozman was coming. She
(Page 9)
- was under the impression that Simone Keele was going to drop the children off at the gate. She could not say whether Phillip Rozman had been with Ms Keele when the children were dropped off before. Simone was the only person that had been there to drop the children off "and never with me around, it was just Liam" (TS 45). This exchange then occurred (TS 46):
"Alright. So you don't know whether she's dropped them off out the front on the verge or whether she's ever driven up in the driveway before do you?---She's never driven up on the driveway, because she never wanted to go to the property.
Well you just said that you'd never been there on other times?---I've been at the house, but never at the drop off or pick up point. The drop off or pick up point has never been at the house ever."
Mr McNamara's evidence
28 The appellant's testimony at the hearing was supported by that of Mr Liam McNamara. He said that at about 6 pm he was waiting for his children to be delivered by Ms Keele and that she and Phillip Rozman drove up to the carport of the house that Julie Wirth was renting. He said that he went around and got S out of the retraining seat. While the appellant spoke to Mr Rozman, Mr McNamara noticed that Ms Keele had been drinking. He was informed by her that they were going out to dinner. He kept S on his hip as they chatted.
29 Mr McNamara said that "After Simone got back in the car I went around to the passenger side of the car where Julie was talking to Phil in relation to custody" (TS 55). This conversation went on for three or four minutes, whereupon Ms Keele began taunting the appellant. He said that (TS 55):
"She opened the door of the car and stood in the open doorway and leaned over the roof and was verbally abusing Julie over the roof of the car. I then decided that I would walk around with [S] in arm around the front of the car and said to Simone 'Look
(Page 10)
- just get back in the car, it's nothing to do with us, just let them sought it out. Just get in there and get going'."
30 I pause here to note that this evidence appears to confirm that one way or another, shortly after arrival, in the course of S finishing up in the arms or on the hip of Mr McNamara, Ms Keele got out of the vehicle, returned to the vehicle while verbal exchanges took place between the appellant and Mr Rozman, then got out of the vehicle again. In other words, Ms Keele got out of the vehicle twice. Moreover, S was present throughout, being held by Mr McNamara.
31 Mr McNamara went on to say that as Ms Keele was getting out of the car "just abusing Julie" (TS 56) Julie told her to get in the car, "go away and leave us alone". He then said (TS 56):
"Simone obviously didn't like that, took a lunge at Julie and pushed Julie back, which then Julie retaliated with another push and as you know now, the fight goes on and on."
32 Mr McNamara said that while all this was going on he was standing at the front of the car with S. He intervened after the third blow. Mr Rozman was still sitting in the car. K appeared briefly but was told by Mr McNamara to get back inside, so both the boys ran back inside. Soon afterwards "Phil put Simone in the passenger … side of the vehicle and they both left." (TS 58).
33 Mr McNamara said that Simone pushed Julie first and that was at a time when he (Mr McNamara) still had his daughter in his arms. "Julie pushed her back, then Simone clocked Julie with a right hand swing" (TS 64).
Closing addresses
34 The prosecutor spoke briefly in his closing address. He submitted that the prosecution witnesses were forthright and credible, and should be believed. If they were believed, the prosecution case had been made out.
35 In the course of his closing address defence counsel submitted that the learned Magistrate should take into account s 244 to s 248 and s 254 of the Criminal Code. He invited his Honour to take account of inconsistencies in the accounts provided by the prosecution witnesses including a supposed denial by Ms Keele that she got out of the car twice.
36 His Honour intervened at that point to observe that this was not so. Ms Keele "agreed she got out of the car twice" (TS 71). His Honour went
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- on to say to defence counsel that the detail of the appellant's evidence had not been put to Ms Keele "so that she didn't have the opportunity of responding to your client's assertions, that in fact it was she who initiated any form of physical contact, that it was she who struck out, that it was she who did a variety of things" (TS 72).
37 Defence counsel responded by saying that it had been clearly put to Ms Keele that she had acted in a provocative way. It was inappropriate to keep confronting the witness with the same allegation as to who struck who first. His Honour observed that he was well and truly aware of the rule in Browne v Dunn (1893) 6 R 67 and its application in criminal proceedings.
38 Defence counsel submitted that it came down to a question of whether defences of provocation, defence to home invasion, defence to repetition against insult and all the other defences he had cited by reference to the provisions of the Criminal Code had been disposed of. The onus was upon the prosecution to disprove those defences. He submitted that they had not done so.
Reasons for decision
39 The learned Magistrate adjourned the hearing for a short period and then provided ex tempore reasons for decision. He commenced by reminding himself that the prosecution was obliged to prove each element of the offence beyond reasonable doubt and to negate any defence arising under the Criminal Code in respect of which there was credible evidence. He observed that no real attempt had been made by defence counsel to relate the provisions of the Criminal Code cited to him to the evidence adduced at the hearing, although the most viable defence would seem to be that relating to self-defence.
40 His Honour summarised the evidence given by Ms Keele and the appellant. He noted that the former's account was supported by the evidence given by Mr Rozman; the latter's account was supported by the evidence given by Mr McNamara. His Honour noted that he was unable to draw upon the evidence of an independent witness with the result that the outcome was likely to depend upon his assessment of the witnesses before him.
41 His Honour noted that according to the evidence of Mr McNamara, Ms Keele was well dressed and was going out to dinner. She was "simply dropping the children off in a practised routine" (TS 76). He said that there was no reason why she should be angry or aggressive in those
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- circumstances. His Honour went on to say that, on the other hand, the accused was clearly the person who first introduced any element of overt animosity into the situation, in that it was she who challenged Rozman about the children and maintenance and challenged Ms Keele about small town rumours and lies.
42 His Honour expressed the view that Ms Keele was an articulate individual who appeared to have a clear recollection of the incident. She was spontaneous and she was open in the responses which she gave. He indicated that, in his view, the lack of specificity in the cross-examination of Ms Keele meant that her account was not undermined by the cross-examination. "It was not put to the witness in a clear and unequivocal way that the defence was based solely on the proposition that it was she, Keele, who struck the first blow" (TS 77. In his view it was incumbent on counsel to put matters in detail so that the Court could fully assess the witness's response to specific allegations.
43 His Honour said that the appellant (Ms Wirth), in his view, was unimpressive in the witness stand. Her evidence was punctuated by a number of pauses. She gave the impression that she was thinking her way through the script. She gave a number of very guarded responses to questions which were asked of her. Her evidence was completely lacking in the spontaneity that is the hallmark of an open and honest witness with a good recollection. She took every opportunity that presented itself to denigrate and exaggerate with respect to the other parties.
44 His Honour then said that after careful assessment and analysis he accepted Keele and Rozman as witnesses of truth and accuracy and rejected the accused's account that she was attacked. He accepted that the appellant had injuries which were witnessed by Police Officer Fitzgerald but in his view, they were sustained in the course of an altercation which was initiated by the accused. He said that he rejected the evidence of the accused and McNamara as witnesses of truth. He did not believe them.
45 His Honour proceeded to make findings to the effect that Keele and Rozman went to the property for the sole purpose of dropping off the children. Keele got out of the car, released the younger child, she got back in the car. She then got out of the car for the purpose of speaking to her husband. She was then attacked in that the accused came around the front of the vehicle and struck a substantial blow to Ms Keele's left eye, causing bruising and the cut which was shown in the photograph. The accused was the initiator and the aggressor.
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46 His Honour said that in his view a reliance upon self-defence was not available and that all other forms of defence to which reference had been made had been negated beyond reasonable doubt. He concluded that the charge of assault occasioning bodily harm had been proven beyond reasonable doubt.
47 I note in passing that the learned Magistrate in the course of his reasons for decision did not appear to make any explicit finding as to whether the relevant circumstance of aggravation had been established by the evidence, namely, that the assault complained of occurred while a child was present, although the evidence of Ms Keele and Mr McNamara strongly suggested that the child was being held by Mr McNamara at all material times, and therefore present throughout. I will look at this aspect of the matter in more detail when I turn to the grounds of appeal.
Appeal
48 The last day for filing an appeal notice was 28 April 2006. However, as appears from the affidavit of Johnson Gray Kitto sworn 9 July 2006 in support of an application for an extension of time to file appeal notice, certain difficulties stood in the way of initiating an appeal promptly including a need to obtain a transcript of the hearing. In the end, an appeal notice was filed on 8 June 2006 and an extension of time was obtained. The appeal notice included notice to the respondent in the usual way that the respondent was required by the Criminal Procedure Rules 2005 (WA) to lodge a Form 22 within 7 days of being served with the notice in order to take part in the appeal.
49 I digress briefly to note that this obligation arises under and by virtue of r 67 of the Criminal Procedure Rules. More particularly, r 67(4) provides that if a respondent does not lodge a Form 22 within the 7 days or any extension of that period ordered by the Court, the respondent is not entitled to take part or be heard in the appeal and is not a party to the appeal for the purposes of these Rules. This provision clearly contemplates that an extension of time can be allowed where a sufficient explanation is provided and the circumstances justify the grant of an extension.
50 It was common ground at the hearing before me that the respondent failed to comply with r 67, with the result that an extension of time was required. It emerges from the affidavit of Matthew James Fitzgerald sworn 19 October 2006 in support of the respondent's application for an extension that the appeal notice was received at his office on or about 12 June 2006. He was on leave until 15 June 2006 and did not return to
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- work until the afternoon of Friday, 16 June 2006. He was not familiar with the required appeal procedures and had to obtain advice in that regard. He sent the required documentation to Peel Prosecuting at sometime between Monday, 19 June and Thursday, 22 June 2006 prior to taking further weekly leave.
51 It appears from the affidavit of Lucas Daniel Neri, who was employed by the Director of Public Prosecutions, that on either 28 or 29 June 2006 he received a letter dated 27 June 2006 from Peel Prosecuting instructing the DPP to act on the respondent's behalf in this matter. In accordance with those instructions he caused a Form 22 notice of respondent's intention to be filed without delay on 29 June 2006.
52 It is regrettable that there was a failure to comply with the Criminal Procedure Rules in this matter. However, the delay was not inordinate, and I consider that a sufficient explanation has been provided as to how the lack of compliance came about. Accordingly, I consider that an extension of time should be granted to the intent that the respondent is at liberty to participate in the appeal.
The appeal notice
53 The appeal notice contains six grounds of appeal which are principally directed to the adequacy of the learned Magistrate's review and assessment of the evidence adduced at the hearing and as to the sufficiency of his reasons for decision.
54 The fifth ground of appeal raises issues concerning the learned Magistrates impartiality and capacity, and his application of the rules of evidence.
55 I will look at the grounds of appeal in detail later. However, for the time being, it will be sufficient to note that on 15 June 2006 the appellant was granted leave to appeal in respect of all grounds.
56 It will be useful now to look at the statutory provisions and legal principles bearing upon an appeal of this kind and the grounds of appeal save for the fifth ground of appeal. I will deal with the principles bearing upon that ground of appeal separately and at a later stage.
Statutory provisions and legal principles
57 I must begin by noting that appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt II of the Criminal Appeals Act 2004 (WA).
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58 By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
59 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
60 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
61 However, in the case of a busy court such as a Court of Petty Sessions it is not always practicable or necessary for a full or detailed statement of reasons to be given in every case: Nevermann (1989) 42 A Crim R 347 at 350. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion. The sufficiency of fact-finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183 at [146] – [147].
62 In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J observed at 448 that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh.
63 The finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
64 Where there is a conflict in the evidence, if the tribunal of fact prefers the evidence for the prosecution, it must not convict an accused
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- unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507.
65 Where a finding of fact is inconsistent with the evidence of a witness, the judicial officer at first instance must be taken to have rejected the evidence of the witness: Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 62 ALR 53 at 56; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.
66 The question on appeal will often by not whether the Court would have formed a different view, but whether the Magistrate's approach and view of the evidence was defensible: Chamberlain v The Queen(No 2) (1984) 153 CLR 521.
67 It follows that if an error in the reasoning or determination below is exposed on appeal, the Court is not necessarily obliged to quash the decision. It seems, however, that unless the Court is persuaded that, properly informed, the Magistrate would have inevitably have reached the same verdict, the Court of Appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen (1994) 179 CLR 1.
68 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: M v The Queen (1994) 181 CLR 487.
Provisions of the Criminal Code
69 I noted in earlier discussion that in the present case defence counsel at the hearing before the learned Magistrate referred to various provisions of the Criminal Code containing matters that might excuse an assault that would otherwise be unlawful.
70 Section 317 of the Code requires that the assault complained of be unlawful. Section 223 of the Code provides that an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law.
71 This is followed by certain provisions concerning self-defence which defines circumstances in which it will be lawful to use force against another. By s 248 the general principle is that the accused person may use such force as is reasonably necessary to make effectual defence against an
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- assault. An objective test is to be applied as to whether the force used was reasonable. The second part of the provision concerns circumstances where the person being assaulted has a reasonable apprehension of death or grievous bodily harm. I do not see that as applying here.
72 Section 249 concerns the situation in which the accused person has initiated the conflict by provoking an assault. It emerges that he may still rely on self-defence where there is a prospect of death or bodily harm or that is apprehended. Again, that does not seem to apply here.
73 I note also that by s 254 it is lawful for an occupant who is in peaceable possession of any place to use such force as is reasonably necessary to remove a person who wrongfully remains on or in the place provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
74 I pause here to say that in the circumstances of the present case, and having regard to the issues raised by the grounds of appeal, I do not see a need to explore the application of these provisions at length. It is clear that the crucial finding made by the learned Magistrate was his finding that the appellant initiated an attack upon Ms Keele by suddenly assaulting her. This finding led to the Magistrate's conclusion that the appellant was not acting in the course of self-defence or to protect herself from a person whose licence to enter the premises had been withdrawn.
75 It is the finding that it was the appellant who was the aggressor which is under challenge in the present appeal. If it becomes apparent that the evidence before the learned Magistrate was not sufficient to make such a finding, or that his assessment of the witnesses was flawed, then that, it is said by the appellant, will be sufficient for the conviction to be set aside.
76 Accordingly, in my view, it is not necessary for me to embark upon a discussion as to how these statutory provisions might be applied to the circumstances of the present case. If it be held, upon a close analysis of the evidence, that the learned Magistrate was justified in finding that the appellant struck the first blow as alleged by the complainant, and was the aggressor, then, as the learned Magistrate found, the lines of defence reflected in the statutory provisions including especially self-defence are simply not available to the appellant.
77 I digress briefly to say also that, in any event, I can see no basis in the evidence which would justify reliance by the appellant on s 254 of the Criminal Code as a matter of excuse. There was some evidence from the
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- appellant and Mr McNamara that the visitors had been told to leave before the altercation commenced. However, even if their evidence had been preferred as to that matter, there was no evidence before the Magistrate, as I perceive it, that any blows struck by the appellant were in an attempt to remove the visitors after withdrawal of the implied licence or because they were trespassers. As the learned Magistrate correctly observed, the only credible matter of excuse was that of self-defence, but in the circumstances of the present case that depended upon a crucial finding of fact being made as to which party was the aggressor, and struck the first blow.
78 With these principles and observations in mind, I must now turn to the various grounds of appeal.
The first ground of appeal
79 The first ground of appeal is that the Magistrate erred in fact in his recollection of the evidence to such an extent his reasoning was unreliable and unsafe.
80 As to this ground of appeal, the appeal notice included a schedule or table in which the Magistrate's observations or findings with respect to certain factual issues were contrasted with passages of evidence (with cross-references to the transcript) which were said to reveal that the reasoning of his Honour was flawed. Counsel for the appellant submitted that these various instances had to be viewed collectively, and when viewed in that light they amounted to a distortion of the evidence which not only favoured conviction but also may have led to adverse findings being made against the credibility of the appellant and her witness, Mr McNamara.
81 Counsel for the respondent submitted that upon a close analysis of the evidence in question it became apparent that each of the contentious findings were defensible in that the appellant's table did not always accurately reflect the nature of the finding or the full range of evidence bearing upon the issue. Further, when the matters complained of were seen in context any shortcomings in his Honour's review of the evidence were minor and did not add up to a miscarriage of justice. Counsel relied to some extent upon the precept that if the Court considers that no substantial miscarriage of justice has occurred in respect of an appeal of this kind, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
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82 The first matter complained of arose out of an exchange between his Honour and defence counsel (that is, counsel for the appellant at the hearing before me) in the course of the latter's closing address. It is clear from the exchange (TS 71) that on his Honour's appreciation of Ms Keele's evidence she said that she had got out of the car twice.
83 This view of the matter is reflected in the summary of Ms Keele's evidence provided by the Magistrate earlier on in his reasons for judgment (TS 75). His Honour echoed her graphic account of getting out of the car initially to remove the youngest child from the restraining seat and pass her to Mr McNamara, returning to the car for a period, and getting out of the car again as the verbal exchanges that preceded the physical encounter escalated. It will be apparent from earlier discussion that this summary corresponds with my own summary of her evidence-in-chief. The only factor that weighs against this view of the matter are two short answers given by Ms Keele in the course of cross-examination in which she appeared to say that she got out of the car once and, in response to a question as to whether she "got out of the vehicle twice and moved to the front of the vehicle", she denied that this occurred.
84 To my mind, the answers given by Ms Keele under cross-examination are slightly ambiguous because the cross-examiner was focused upon her movements immediately prior to the physical encounter. Moreover, the second of the two questions contains two discrete propositions concerning the nature of her movements at that time, and thus it is not entirely clear whether her denial is directed to getting out of the vehicle twice or whether it is directed to moving to the front of the vehicle.
85 I am of the view that the learned Magistrate was entitled to rely principally upon the clear and coherent account of her movements given by Ms Keele in her evidence-in-chief, and to prefer that to the slightly ambiguous answers given in cross-examination. Accordingly, I am not persuaded that the learned Magistrate erred as to this matter or that his reasoning can be regarded as unreliable and unsafe. I note in passing that the learned Magistrate's view of the matter, namely, that Ms Keele got out of the car on two occasions, was supported by the evidence of Mr Rozman and of Mr McNamara.
86 The second matter complained of is the learned Magistrate's assertion in the course of his reasons for decision that there was no reason for Ms Keele to be aggressive because she was simply dropping the children off in a practised routine "that's happened before many times
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- from the sound of it" (TS 76). Counsel for the appellant submitted that this finding was inconsistent with evidence to the effect that the normal arrangement for the children's access changeover was at a named hotel or petrol station in Pinjarra and that Ms Keele had never before come to the house.
87 I am not persuaded to the appellant's point of view concerning this issue. To my mind, his Honour was referring in general terms to the practise of dropping off, rather than to the precise location, and there can be little doubt on the evidence that a routine had been established in that regard which was generally carried out at the named hotel or petrol station but clearly allowed for variations to it as indicated by the evidence of the appellant herself and as a matter that could be inferred from the actions of Mr McNamara in arranging for the children to be driven to the house and from the equanimity with which he waited for them to arrive.
88 Further, and in any event, the learned Magistrate's line of reasoning was focused not upon the location of the drop off but upon the presence of a weekly routine which made it unlikely that Ms Keele, who was on her way to dinner, would act aggressively. Accordingly, as to this matter also, I am not persuaded that the Magistrate erred.
89 The third matter complained of is the learned Magistrate's assertion that it was the appellant who first introduced a note of animosity by challenging Mr Rozman about the children and maintenance and so on. To my mind, there is no substance in this complaint. This was essentially a matter of impression. If his Honour was eventually minded to prefer the evidence of Ms Keele (as he was) it was open to him to arrive at this conclusion. Moreover, it is a conclusion which appears to be consistent with the evidence given by the other witnesses including the appellant herself, for the appellant confirmed that she entered into a discussion with Mr Rozman and it was this that set the scene for the physical encounter later.
90 The next matter complained of was the learned Magistrate's perception that Ms Keele appeared to have a clear recollection of the incident and there was nothing in her cross-examination that undermined her account. As to this, counsel for the appellant referred to a passage in Ms Keele's evidence-in-chief in which she said that she had "gone a bit blank" as to the exact sequence of certain verbal exchanges. Counsel referred also to Ms Keele's supposed contradictions about how many times she got out of the car and to certain discrepancies between her police statement and her sworn evidence. Again, I proceed from the
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- premise (which is allowed for by the decided cases) that where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472 at 479. See also Vrisakis (supra).
91 It is not necessarily fatal for a witness new to the court situation to say that their mind has momentarily gone blank. This may simply be due to a moment of nervousness or to the fact that what is being described is an altercation which, on any view of the matter, consisted of a flurry of blows and verbal exchanges in a short space of time. It is for the judicial officer to look at the demeanour of the witness overall and to consider her evidence in its entirety. I dealt with the supposed discrepancy concerning Ms Keele's evidence about getting out of the car in earlier discussion, and I am therefore not inclined to give weight to the notion that her evidence was inconsistent or unconvincing as to that aspect of the matter. Accordingly, I do not consider that the Magistrate erred.
92 The next two matters complained of concern the learned Magistrate's adverse appraisal of the appellant, an appraisal which was arguably affected to some extent by his observation that the appellant took every opportunity to denigrate and exaggerate with respect to the other parties. It was said that there was no evidence to support the adverse appraisal.
93 Again, having regard to the decided cases mentioned earlier, I consider that a court hearing an appeal cannot judge these matters on the basis of the transcript and should not interfere. The learned Magistrate was in a good position to judge the appellant's demeanour and the transcript does not suggest that he misused his opportunity to judge her credibility. Further, the transcript suggests that to some extent the appellant was minded to denigrate and exaggerate in that she referred to Ms Keele telling lies to "everybody" (TS 49). It was open to the learned Magistrate to conclude that her description of her injuries was overstated or melodramatic.
94 The appellant challenged the learned Magistrate's conclusion that only self-defence was viable and that and all other forms of defence had been negated beyond reasonable doubt. It emerges from my earlier observations about the law and relevant statutory provisions that, in my
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- view, once the learned Magistrate had arrived at the crucial finding that the appellant was the aggressor, it was open to him to hold consequentially that matters of excuse had been negated. This meant that there was no need for elaborate discussion about the application of the lines of defence reflected in the statutory provisions, bearing in mind that the matters of excuse in question had only been touched upon in a rather cursory way.
95 The final matter complained of was the learned Magistrate's remarks about certain passages of the appellant's evidence in which (on the learned Magistrate's account) the appellant claimed that both parties were substantially affected by alcohol (that is, Rozman and Keele), a claim that was said to be supported in material respects by Mr McNamara. This was said to reveal a faulty recollection by the learned Magistrate in that the appellant had said that she did not see Ms Keele drinking and Mr McNamara did not give evidence that Rozman was affected by alcohol at all.
96 I am not persuaded by this. The appellant gave evidence that Mr Rozman was slurring his speech and that in her experience that was what occurred when he consumed alcohol. She agreed that he smelt of alcohol and she gave evidence that she presumed Ms Keele had been drinking. Thus, in general terms, it can be said that the tenor of the appellant's evidence was to raise a query about the state of the visitors' sobriety. Accordingly, even if it be thought that the learned Magistrate had not accurately summarised this part of the defence evidence, I cannot see that the error (if any) was of sufficient gravity to affect his appraisal of the defence witnesses.
97 It follows from all of this that I am not persuaded that the appeal should be allowed upon the first ground of appeal.
The second ground of appeal
98 The second ground of appeal is that the Magistrate erred in law by finding the charge proven but failing outright to consider or even mention an element of the charge, namely, the presence of a child when the offence was committed.
99 It was common ground at the hearing before me that the learned Magistrates' reasons for decision do not contain an explicit finding that a child was present. As I have indicated, in my review of the relevant legal principles, it is certainly true that a Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision.
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- The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (supra). A magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision: Harling v Hall (supra).
100 I digress to say that there is, of course, an issue as to whether in the circumstances of the case the presence of a child, being an allegation directed to what was essentially a circumstance of aggravation, should be regarded as an element of the offence of assault occasioning bodily harm. If it be not so regarded, then it cannot be said that the learned Magistrate failed to make or articulate a finding as to one of the elements of the offence. However, this aspect of the matter was not fully argued before me. Accordingly, I will put that issue to one side, and proceed upon the assumption that the presence of a child was a matter which had to be proved by the prosecution to the required standard, namely, proof beyond reasonable doubt.
101 Counsel for the appellant submitted that this was a live issue at the hearing before the Magistrate and his Honour was therefore required to make a positive finding as to whether or not a child was present and, if so, having regard to the circumstances of the case, to identify the child in question.
102 It was said further on behalf of the appellant that the evidence before the learned Magistrate did not necessarily support a conclusion that a child was present. There was evidence that the two boys in the car moved away from the vehicle early on and evidence from Mr McNamara that he removed S, the youngest child from the restraining seat, and that she may not have been present at the time of the alleged assault, as illustrated by evidence that Ms Keele had to run to the house to retrieve her daughter after the fight. Counsel for the appellant submitted that all of this would have been enough to create a reasonable doubt in the mind of a jury as to whether the girl was present throughout, and thus should be sufficient to create a doubt in the mind of a court hearing the matter on appeal.
103 In addressing this issue, let me begin by noting that particulars were not sought prior to the hearing as to the identity of the child said to be present. Further, it is apparent from the way in which the matter was contested before the Magistrate that the parties did not place particular weight upon this issue. It was a live issue but not an issue given particular prominence by defence counsel in his closing address. His final observations consisted of a reminder to the learned Magistrate that the burden lay upon the prosecution to negate the lines of defence reflected in
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- the statutory provisions mentioned earlier. In other words, counsel for the appellant did not run the defence case in a manner which suggested that the presence of the child was a element of the offence in dispute.
104 To my mind, there was persuasive evidence before the Court, having regard to the learned Magistrate's findings in favour of Ms Keeley as to credibility, that Ms Keele's youngest daughter, S, was certainly present when the altercation commenced, and probably present throughout.
105 I noted in earlier discussion that Ms Keele said in her evidence-in-chief that she took S out of the restraining car seat in the back and handed her over to Mr McNamara. On her account, as Mr McNamara came around to her side of the car, immediately prior to the commencement of the alleged assault, he had S in his arms. Mr McNamara gave direct evidence that he had S on his arm when he intervened in the fight (TS 58) and would not put her down (TS 66). Mr Rozman gave evidence that Mr McNamara put S down when the fight broke out (TS 28).
106 Against this background, in the absence of any real controversy at the hearing concerning this aspect of the matter, I consider that the learned Magistrate's final observation in his reasons for decision that the charge was proven beyond reasonable doubt brings with it by implication a finding that all the necessary elements of the charge had been established, including the allegation that a child was present, and that matters of excuse raised by the appellant had been negated.
107 Further, and in any event, in a case in which the evidence of Ms Keele as the principal prosecution witness was clearly preferred, and that evidence, as I have indicated, established that her daughter S was present when the fight commenced, I am not persuaded that there has been a miscarriage of justice. Section 14(2) of the Criminal Appeals Act provides expressly that even if a ground of appeal might be decided in favour of the applicant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. I will apply that precept in the present case.
The third ground of appeal
108 The third ground of appeal is that the Magistrate erred in law by failing outright to assess the evidence of McNamara, not giving any weight to the evidence of McNamara, or failing to give any reason for rejecting the evidence of McNamara all of which evidence was highly exculpatory, or favourable to, the accused.
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109 It was said by the appellant that the outright failure of the Magistrate to critically assess the evidence of Mr McNamara or Mr Rozman, but to then give the former no weight and the latter full weight, without any reasons whatsoever, represented an incurable and fundamental miscarriage of justice.
110 As I have indicated, a Magistrate's reasons should be generally sufficient to disclose the reasoning process leading to a decisive conclusion. However, the decided cases do not suggest that the Magistrate is required to allude to every piece of evidence and specifically address every submission advanced by counsel. Moreover, it is necessary to look at the reasons for decision as a whole, for something which appears at first glance to be a material omission may be adequately explained when viewed in that light: Hajinoor v Dench [2005] WASC 274 at [31] - [33].
111 In the present case the reasons for decision reveal (importantly for present purposes) that in the estimation of the learned Magistrate both Mr McNamara and Mr Rozman were partisan witnesses with the result that, ultimately, his Honour was likely to be influenced largely by his appraisal of the credibility of the principal prosecution witness, Ms Keele. It is apparent that he approached the matter in that light, and one can then see why he was not inclined to embark upon an extensive and detailed analysis of the evidence given by the two partisan witnesses. However, consistently with the final thrust of his reasoning, he was of the view that the visitors who had called at the property simply to drop off the children, were not likely to be in an antagonistic frame of mind, and this and other factors seem to have inclined him towards giving some weight to the evidence of Mr Rozman.
112 It emerges from my review of the decided cases that an appellate court should generally be wary of reversing a finding of fact upon an assessment of credibility unless it is satisfied that any advantage enjoyed by the Magistrate, by reason of having seen or heard the witnesses, could not be sufficient to explain or justify the finding of fact in question.
113 Accordingly, I am not persuaded that the appeal should be allowed upon the third ground of appeal.
The fourth ground of appeal
114 The fourth ground of appeal is that the Magistrate erred in law, first, by failing outright to assess the evidence of Rozman; second, by giving apparently full weight to the evidence of Rozman in circumstances in
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- which his evidence was contradicted by all the other witnesses (both defence and prosecution); third, by failing to give any reason for accepting the evidence of Rozman as a witness of truth; all of which evidence was unfavourable to the accused.
115 The observations I have just made with respect to the third ground of appeal cover this ground of appeal also, with the result that I am not prepared to allow the appeal on the fourth ground of appeal.
The sixth ground of appeal
116 The sixth ground of appeal is that the Magistrate erred in law in failing to consider a s 254 Criminal Code defence.
117 As to this ground of appeal, counsel submitted that the evidence before the learned Magistrate required that consideration be given to s 254 of the Criminal Code. In essence, that provision makes it lawful for a person who is in peaceable possession of any place to use such force as is reasonably necessary to remove a person who wrongfully remains on or in the place provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
118 It was said on behalf of the appellant that the conduct of the parties before the alleged assault clearly indicated that the appellant had revoked any implied licence to Ms Keele to remain on the property, and she was therefore obliged to leave forthwith. Instead, she chose to get out of her car and apparently remain on the appellant's property. It was then said that s 254(2) entitled the appellant to use such force as was reasonably necessary to remove Ms Keele. However, although the Magistrate made passing reference to s 254, it is said that the reasons for decision do not suggest that he gave careful consideration to this defence.
119 My response to this ground of appeal is reflected in earlier discussion concerning the legal principles applicable to this case. The learned Magistrate, in the findings he made towards the end of his reasons for decision, rejected the assertion that Ms Keele attacked the accused and proceeded to make the crucial finding that the appellant was the aggressor. These findings, and the findings in favour of Ms Keele and her witness Mr Rozman as to credibility, clearly brought with them a rejection of the evidence given by the appellant and Mr McNamara that Ms Keele had been told to leave before the altercation commenced. It followed from this view of the matter that the notion that the licence to enter had been withdrawn had been negated. To my mind, it would be wrong for an appeal court to overturn that finding without any clear indication that the
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- learned Magistrate had failed to make proper use of his opportunity to see and assess the witnesses.
120 Further, and in any event, as I noted also in earlier discussion, even if I be wrong in the view I have just expressed, the submission made by the appellant in regard to this matter is not compelling. Section 254(2) clearly presupposes that force is being used in an endeavour to effect the removal of a person whose implied licence to enter has been withdrawn. The evidence given by the appellant and by her supporting witness does not suggest that any force applied by the appellant to Ms Keele was applied for that purpose. On the appellant's account of what occurred, Ms Keele was the aggressor, and any blow struck by the appellant was a blow struck essentially in self-defence, not a blow struck with a view to effecting a removal of the visitors from the premises. Thus, even on the appellant's case, I cannot see that this line of defence or excuse was available. I do not consider that the learned Magistrate erred in failing to deal with this matter at length, especially when it had not been pressed by counsel for the appellant.
121 It follows that I am not prepared to allow the appeal on this ground.
Impartiality and other issues
122 The fifth ground of appeal was that the Magistrate demonstrated such bias, procedural unfairness, misunderstanding of the rules of evidence, confusion, errors of law and interference with the conduct of the defence that there has been a miscarriage of justice.
123 Particulars provided in support of the fifth ground of appeal were lengthy and I will not traverse them in their entirety. They were directed to building up a case that the learned Magistrate, by various interventions, had been overly officious in attempting to control the flow of evidence and had thus improperly influenced the course of the hearing in a manner that worked to the prejudice of the appellant. It was said also that certain of his interventions revealed a misunderstanding of the rules of evidence which led to errors of law.
124 For example, it is said in the particulars that the Magistrate insisted on questions being put in the form: "I put it to you." It is said that he allowed leading questions to be put by the prosecutor in re-examination but was rigorous in preventing any such questions in re-examination by the defence. It is said that he made discourteous and facetious remarks to defence counsel and prevented defence counsel asking Mr Rozman about
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- the order of events following the appellant's first appearance at the incident by stating: "I don't need to go through that again".
125 It is alleged in the particulars (par 11) that the Magistrate confused the rule in Browne v Dunn (supra) to the point that even though Ms Keele completely denied striking or punching or pushing the appellant, the Magistrate expected the cross-examination of her by defence counsel to be "more detailed". Further, even though Ms Keele completely denied provoking the appellant or even retaliating, the Magistrate implied that it was somehow incumbent on the defence to explain to her that the defence was based solely on the proposition that Ms Keele struck the first blow.
126 It is said (par 14) that the Magistrate effectively reversed the onus of proof by implying the defence was defective because counsel had not questioned the police officer as to whether the appellant offered an explanation to the police, and further, that this somehow again deprived the Magistrate of testing the testimony of the defence witnesses.
127 It is said that the learned Magistrate rejected the evidence of Mr McNamara (without giving any reasons for doing so) in circumstances in which Mr McNamara had apparently been misled by the prosecution (who summonsed him as a witness) to sit in the Court despite an order being made requiring witnesses to remain outside the Court.
128 The particulars touched also on certain matters that were relevant to the other grounds of appeal. For example, it was suggested (par 16) that the Magistrate acted improperly in finding that because the drop off of the children was a regular event, there was no reason why Ms Keele should become angry, but inexplicably, the Magistrate found that the appellant had become angry and commenced the aggression.
129 It was suggested that the Magistrate acted improperly in finding against the appellant because she (allegedly) was slow to answer questions, when in fact she was not; he found against the appellant because she (allegedly) gave guarded responses, when in fact she did not; he found against the appellant because counsel did not cross-examine the police officer as to his concerns about Rozman's alcohol consumption. In fact (according to the particulars), the defence case involved the issue of the prosecution witnesses consuming alcohol, not to suggest it affected their memory, but to show inconsistency between those witnesses. It is said that this was clearly spelt out to the Magistrate but he still
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- (erroneously) maintained that the defence had asserted the prosecution witnesses were affected by alcohol.
Issues concerning the fifth ground of appeal
130 In reviewing the issues concerning the fifth ground of appeal I must begin by noting as a matter of record that, unlike the other grounds of appeal, this ground of appeal was argued on behalf of the appellant by a practitioner other than the defence counsel who had represented the appellant at the hearing before the learned Magistrate. This step was taken, quite properly, to provide an appropriate degree of objectivity in addressing the issues raised by this ground of appeal.
131 Before attempting to resolve the issues, I must briefly review some of the decided cases bearing upon the issues in question.
132 In MWJ v The Queen [2005] HCA 74 the High Court recently had occasion to look at the application of the rule in Browne v Dunn (supra) in criminal cases. Gummow, Kirby and Callinan JJ observed at [38] that the rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness's credit. One corollary of the rule is that Judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule. A further corollary is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her.
133 The same members of the High Court went on to say at par 40 that reliance on the rule in Browne v Dunn (supra) can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case,
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- and to present or make available all of the relevant evidence to an accused, the course suggested is one that should be able to be adopted on most occasions without injustice.
134 It emerges from the reasoning in MWJ (supra) that the rule in Browne v Dunn (supra) can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel (1959) 101 CLR 298. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.
135 Put shortly, where the evidence given by a witness is challenged, fairness ordinarily requires that the basis of that challenge be put to the witness during cross-examination. However, in criminal cases the consequences of failure to cross-examine in relation to an issue may need to be considered in light of the nature and course of the particular proceedings.
136 As to the manner in which a trial is conducted by a presiding judicial officer, Kirby ACJ observed in Galea v Galea (1990) 19 NSWLR 263 that the test to be applied is whether excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the Judge has closed his or her mind to further persuasion. This assessment must be made in the context of the whole trial.
137 Kirby ACJ observed also that it is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion. Moreover, it has become more common for Judges to take an active part in the conduct of cases as a consequence of pressure on Court lists. There is a growing appreciation that a silent Judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. However, the conduct at criminal trials, particularly with a jury, remains subject to different and more stringent requirements.
138 TKWJ v The Queen (2002) 212 CLR 124 was a case in which the High Court was concerned with the competency of counsel. McHugh J
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- expressed the view at [97] that whether there has been a miscarriage of justice is the ultimate issue that the Court must decide. If the Court concludes that a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. If it does, a miscarriage of justice will have occurred and the conviction must be quashed.
139 As to impartiality, counsel for the appellant referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 in which it was said that subject to qualifications relating to waiver or necessity, a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done.
Conclusion as to fifth ground of appeal
140 It emerges from my review of the decided cases that at the hearing of charges in respect of criminal offences a judicial officer must be careful to preserve an atmosphere of fairness at all times and, in doing so, must respect the entitlement of defence counsel to question witnesses freely and with an eye to the entitlement of the accused himself to have the prosecution case presented fully before deciding whether to give evidence. Consideration must also be given to the accused's entitlement to remain silent if he wishes to do so. Thus, care must also be exercised in the application of the rule in Browne v Dunn (supra). Moreover, it follows from all of this that it is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution.
141 Nonetheless, the realities of the legal system in the modern world are that Magistrates are expected to deal with the matters before them expeditiously, for justice delayed can be justice denied. Likewise, the burden of legal costs makes it inevitable that fine points of law cannot be explored too zealously, in courts of summary jurisdiction, otherwise the lay client may be penalised indirectly and unreasonably as a consequence of the time taken to dispose of such matters. A sense of proportion is required by all those participating in the process, and it seems to me that issues of the kind raised by the fifth ground of appeal must be viewed in this light.
142 In the end, I am not persuaded that the appeal should be allowed on this ground. It may have been preferable for the learned Magistrate to have let counsel question his witness freely and it might be thought that, upon a rigorous analysis of the relevant exchanges, the Magistrate was
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- overly insistent that cross-examination of the prosecution witnesses by defence counsel be conducted in such a way that the full particularity of the appellant's version of events would be presented to the opposing witnesses.
143 However, I am not persuaded that the Magistrate's interventions amounted to an irregularity sufficient to affect the outcome or a miscarriage of justice. In earlier discussion I have endeavoured to demonstrate that some of the alleged shortcomings in the Magistrate's reasons for decision, such as the question of how many times Ms Keele got out of the car, cannot ultimately be characterised as flaws, if it be accepted that the Magistrate had a sufficient basis for concluding that Ms Keele was a more forthright and credible witness than the appellant. It follows from this and similar approaches to disputed sections of the evidence, that a fair-minded lay observer might not move too readily to the conclusion that the Magistrate had not brought an impartial mind to the resolution of the questions to be decided. Such an observer might simply conclude that there was a conflict between the testimony of the principal witness on each side and that there was a basis for the Magistrate arriving at his final conclusion in the way that he did.
144 It follows from this that I am not persuaded that there was a lack of impartiality on the part of the learned Magistrate or an insufficient appreciation and application of the evidentiary rules. To my mind, the way in which the hearing was conducted was consistent with a determination to proceed expeditiously, and this serves to explain a number of the interventions and vigorous exchanges with counsel which have now become the subject of the matters complained of in the fifth ground of appeal. I do not consider that this robust approach can be characterised as improper or as an irregularity in the context I have described. Experienced counsel learn how to take the rough with the smooth at all levels of the legal system. This is allowed for, and often turned to the client's advantage, by the subtle art of the advocate.
145 In my view of the matter, as appears from earlier discussion, the reasons for decision handed down in the present case were sufficiently related to the evidence adduced by the prosecution to justify a conclusion that the charge had been established beyond reasonable doubt. This, of itself, is a persuasive indication that the matters raised by the fifth ground of appeal are without foundation.
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Summary
146 The respondent will be granted an extension of time pursuant to r 67 of the Criminal Procedure Rules to lodge a Form 22 notice so that it can participate in the appeal. The appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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