Greenwood v Barlee

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop J
• Judgment Date: 05 February 2018
• Neutral Citation: [2018] ACTSC 46
• Date: 05 February 2018
• Docket Number: File Number: SCA 34 of 2017

[2018] ACTSC 46

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number: SCA 34 of 2017

James Greenwood

(Appellant)

and

Cassandra Barlee

(Respondent)

Representation:

Counsel

J Keys (Appellant)

K McCann (Respondent)

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472

Allied Pastoral Holidings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Burridge v Chief Magistrate [2016] ACTSC 332 ; 317 FLR 26

DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 ; 67 NSWLR 402

Eastman v The Queen (1997) 76 FCR 9

Faris v Coulon [2017] ACTSC 114

Fox v Percy [2003] HCA 22 ; 214 CLR 118

Peverill v Crampton [2010] ACTSC 79

R v Birks (1990) 19 NSWLR 677

R v Costi (1987) 48 SASR 269

Ryan v Vizovitis [2017] ACTSC 114

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3 ; 73 ALJR 306

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 5052

Crimes Act 1900 (ACT), s 24

Evidence Act 2011 (ACT), s 46

Magistrates Court Act 1930 (ACT), ss 25, 28, 37, 141, 141(3), 142, 208(1)(b), 214, 214(3), 214(3)(a)(i), 214(3)(a)(ii), 214(3)(a)(iii), 214(3)(b), 214(4), 214(4)(a), 214(4)(a)(i), 214(a)(ii), 214(4)(b), Pt 3.9

APPEAL — CRIMINAL LAW — Appeal from Magistrates Court — appeal against conviction — conviction for assault occasioning actual bodily harm — whether magistrate made minute or memorandum of conviction — whether magistrate erred by excluding the statement of facts and failing to consider statement of facts and all documentary evidence — whether magistrate erred in finding victim evidence impressive and consistent, relying on victim's evidence and rejecting the appellant's evidence — whether magistrate erred in finding rule in Browne v Dunn applied to victim cross-examination — appeal grounds not made out — appeal dismissed — conviction confirmed

Decision:

See [102]–[103]

Mossop J

Introduction

1 This is an appeal from a conviction of the appellant upon a charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). He was convicted after a defended hearing which took place over three days before a special magistrate (“the magistrate”). On 28 April 2017 the magistrate found the offence proved. On 2 May 2017 the magistrate convicted the appellant and required him to enter into a good behaviour order for a period of 12 months with 25 hours of community service.

Nature of the appeal

2 The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (MC Act). Such an appeal is by way of rehearing. The principles to be applied upon such an appeal are set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24] as follows:

24

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows: 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong. 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal. 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court. 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses. 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal. 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice. 7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

3 In determining such an appeal, the Court must have regard to the significant benefit that the magistrate at first instance has by reason of having seen and heard the evidence during the course of the trial: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25].

4 The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].

5 It will be necessary to have further regard to the statutory provisions regulating the conduct of an appeal later in these reasons because the appellant sought to have evidence that was not before the magistrate admitted as evidence on this appeal.

Application to amend notice of appeal

6 By application filed 30 January 2018, the appellant sought leave to file a further amended notice of appeal. Having regard to the amendments made in that document, it was appropriate to grant leave to make that amendment and I ordered that the draft further amended notice of appeal be taken to be the further amended notice of appeal.

Grounds of appeal

7 The grounds of appeal set out in the further amended notice of appeal are as follows:

• (a) In convicting the Appellant, a minute or memorandum was not made and signed by [the magistrate] in contravention of section 141 of the Magistrates Court Act 1930, in circumstances when a record of the decision on 28 April 2017 was demanded by the Appellant on 2 May 2017 for the purposes of this appeal, under section 142 of the Act.

• (b) In the reasons given on 28 April 2017 for finding the offence of ‘assault occasioning actual bodily harm’ proven, the Magistrates Court erred–

  • (i) in failing to take account of the Statement of Facts and excluding the Statement of Facts from the appeal papers;

  • (ii) in finding the evidence of Abdul AQEL and Hassan ALI to be impressive and articulate, and “consistent with each other” (Transcript 28 April 2017 page 6 lines 17–26);

  • (iii) in relying on the evidence of AQEL and ALI in preference to the Statement of Facts and documentary evidence, specifically CCTV footage from taxi TX 309 (Exhibit “P 7”— also see Camera 1/Driver and Camera 2/Passenger being Exhibits “D2” and “D3” respectively), and Aerial Taxi's Shift Report 18 February 2015 from 22.24–06.30 (Exhibit “D5”), as well as their written statements dated 27 February 2015 and 8 July 2016 respectively;

  • (iv) in rejecting the Appellant's evidence;

  • (v) in finding that AQEL would have to have been cross-examined “under the rules of Browne v Dunn” in relation to the proposition that “his injury may have been sustained as a result of his use of the ice block on his eye” (Transcript 28 April 2017 page 7 lines 34–38); and

  • (vi) in failing to consider that the Statement of Facts and all documentary evidence did not establish beyond reasonable doubt that the Appellant assaulted Abdul AQEL at about 1am on 19 February 2015, and by the assault, occasioned actual bodily harm to Mr AQEL.

The proceedings below

8 On 19 February 2015, Mr Abdul Aqel, a taxi driver, received a booking for a pick up on Wattle Street in Lyneham, ACT. Mr Aqel was driving a taxi with registration TX309. Upon arrival at the pick-up location, Mr Aqel observed two males in a driveway. As he approached, one of the males walked away, while the other, the appellant, got into the taxi. The appellant stated to Mr Aqel: “Take me to Franklin”. The informant alleged that an argument ensued, and the appellant struck Mr Aqel twice in the left eye with his right fist.

9 The appellant was summonsed to appear in the ACT Magistrates Court on 29 September 2015. On that date, the appellant entered a plea of not guilty and the matter was adjourned to 6 May 2016 for hearing. On 6 May 2016, the appellant did not appear and a warrant was issued. After a number of adjournments, the appellant appeared on 11 October 2016 and the hearing proceeded before the magistrate over the course of 11 October 2016, 14 February 2017 and 6 March 2017.

10 The evidence given at the trial may be summarised as follows.

Day 1: 11 October 2016

Abdul Aqel

11 The victim, Abdul Aqel, was the first witness called by the prosecution. He gave evidence that he was employed as a taxi driver, and had been driving taxis since about 2008. He stated that on 19 February 2015 at around 12:30am, he received a booking via his on-board computer system for a pick up near Macarthur House. As he approached and brought his taxi to the pick-up location, he observed two males. One of the males (the appellant) walked towards him, got into the taxi and sat in the front passenger seat. The appellant stated “Take me to Franklin”. An exchange then occurred between Mr Aqel and the appellant in which Mr Aqel asked for a deposit of $20. The appellant refused and told Mr Aqel he would pay him in cash once at his destination. Mr Aqel then proceeded to drive the taxi along Northbourne Avenue. The appellant began shouting and acting aggressively towards Mr Aqel, who began to fear for his safety. He then activated the duress alarm.

12 Eventually, the taxi came to a stop and the appellant exited the vehicle. Mr Aqel's evidence was that the appellant got out of the taxi, turned around and struck him twice on the left eye with a closed fist. He stated his vision became...