Greenwood v Barlee

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Burns,Loukas-Karlsson,Charlesworth JJ
• Judgment Date: 14 December 2018
• Docket Number: File Number: ACTCA 4 of 2018
• Date: 14 December 2018

[2018] ACTCA 62

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Burns, Loukas-Karlsson and Charlesworth JJ

File Number: ACTCA 4 of 2018

James Greenwood

(Appellant)

and

Cassandra Jayne Barlee

(Respondent)

Representation:

Counsel

Ms J Keys (Appellant)

Ms R Christensen (Respondent)

Cases Cited:

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

Faris v Coulon [2017] ACTSC 114

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

McElholum v Hughes [2016] ACTCA 37

Peverill v Crampton [2010] ACTSC 79

Wyper v The Queen; R v Wyper [2017] ACTCA 59

Legislation Cited:

Crimes Act 1900 (ACT) s 24

Magistrates Court Act 1930 (ACT) ss 25, 37

APPEAL — CRIMINAL LAW — Appeal from ACT Supreme Court — primary judge dismissed an appeal from a conviction recorded against appellant in the Magistrates Court — offence of assault occasioning actual bodily harm — proceedings before primary judge — present appeal — whether appellant demonstrated error by primary judge in present appeal

Decision:

See [36]

THE COURT:

1 This is an appeal from a decision of Mossop J made on 5 February 2018 dismissing an appeal from a conviction recorded against the appellant in the Magistrates Court on 2 May 2017 for an offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).

2 The charge arose out of an incident that occurred around 1 am on 19 February 2015. On the prosecution case the victim, Abdul Aqel, a taxi driver, received a booking for a pick up on Wattle Street in Lyneham in the Australian Capital Territory at about 12.30 am that morning. He drove to the designated pick up location, and observed two males in a driveway. As he approached, one of the males walked away, while the other, the appellant, got into the taxi. He directed Mr Aqel to drive him to Franklin. An exchange then occurred between Mr Aqel and the appellant in which he asked for a deposit of $20. The appellant refused and told Mr Aqel that he would pay him in cash at his destination. Mr Aqel then began to drive away with the appellant in the taxi, but the appellant began shouting and acting aggressively. Mr Aqel feared for his safety and activated the duress alarm in the taxi. The taxi came to a stop and the appellant got out of the taxi, turned around and struck Mr Aqel twice to the area of his left eye with a closed fist. Mr Aqel drove away and stopped at a nearby bus stop. He noticed that his eye was swollen and he could see blood in the corner of his eye. He retrieved an ice pack from the boot of the taxi and held it to his eye. He suffered swelling to his eye which recovered over a number of days. He then drove his taxi to the suburb of Nicholls where he was met by police who took photographs of his face.

3 Another taxi driver, Hassan Ali, gave evidence that he was driving a taxi in the same area on the morning of 19 February 2015 and he had seen a person punching Mr Aqel while Mr Aqel was in his taxi on Macarthur Avenue. The assailant then ran away. Mr Ali said that he stopped his taxi and went and spoke to Mr Aqel. He noted that Mr Aqel appeared distressed and that one of his eyes was watering.

4 The appellant was identified as the alleged assailant. On 24 February 2015 he participated in a recorded interview with police in which he claimed to have little recollection of the early hours of 19 February 2015 due to intoxication. He said that he had gone to Civic where he and a number of friends had consumed alcohol. He told police that he believed he walked from Civic to his home in Franklin and that “I don't know where the taxi comes into it”. When shown photographs of the alleged assailant captured by a security camera in the taxi, the appellant agreed that he was the person shown in the photographs, but continued to claim that he had no recollection of any involvement with a taxi in the early hours of 19 February 2015.

5 A summons was issued to the appellant requiring him to appear in the Magistrates Court with regard to a charge of assault occasioning actual bodily harm. On 29 September 2015 the appellant pleaded not guilty to the charge and the matter ultimately proceeded to a hearing before a Magistrate on 11 October 2016 with an estimate of three hours. Sadly, and for reasons that are not clear, that estimate was erroneous. The hearing extended over four days between 11 October 2016 and 6 March 2017. In the course of that hearing the appellant gave evidence that after his interview with police he was able to remember the relevant events. He denied punching Mr Aqel and said that all that occurred was a brief scuffle when Mr Aqel grabbed the appellant's arm as the appellant attempted to get out of the taxi. On 28 April 2017 the Magistrate found the offence proved, and on 2 May 2017 she proceeded to convict and sentence the appellant.

The proceedings before Mossop J

6 The appellant appealed to the Supreme Court against the conviction. Leaving aside grounds concerning technical issues, on which the appellant was unsuccessful and from which no appeal has been brought in this Court, the grounds of appeal in the proceedings before Mossop J effectively alleged that the Magistrate had erred in accepting the evidence of Mr Aqel and the eyewitness, Mr Ali, and in rejecting the evidence given by the appellant. The appellant argued before Mossop J that, on the totality of the evidence, the Magistrate should have entertained a reasonable doubt as to his guilt.

7 In dismissing the appeal, Mossop J correctly identified the principles which governed the hearing of the appeal. His Honour referred to the following passage in the judgment of Refshauge J in Peverill v Crampton [2010] ACTSC 79:

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.

8 Mossop J also stated that in such an appeal, the Court must have regard to the significant benefit that the Magistrate at first instance had by reason of having seen and heard the evidence during the course of the trial: Fox v Percy [2003] HCA 22; 214 CLR 118 ( Fox v Percy) at [25].

9 Despite having previously told police in the course of his interview that he had no recollection of any involvement with a taxi on the morning of 19 February 2015, the appellant gave evidence in the proceedings before the Magistrate that was consistent with his innocence. He told the Magistrate that there had been an argument between himself and the taxi driver over the taxi driver demanding $20 before commencing the journey. The appellant said that he then told the taxi driver “[n]o, I'll walk”, and started to get out of the taxi. He said that the taxi driver then grabbed him by his right arm, and after a short scuffle he got out of the taxi.

10 Mossop J noted that the Magistrate found the evidence of Mr Aqel and Mr Ali to be credible. It was common ground that none of the photographs taken by the taxi security cameras had captured photographs of any assault, although they did support Mr Aqel's evidence that after the alleged assault he got out of the taxi, obtained an icepack, and then applied it to his eye. Mossop J observed that it was uncontroversial that there was a period of three and a half minutes during the relevant period where there were no photographs available. The general manager of Aeriel Taxis gave evidence before the Magistrate concerning the security cameras located within the taxi, and said that he was not able to explain why there was a three and a half minute gap in the photographs. We should note that it was accepted that Mr Aqel could not have in any way manipulated the closed circuit camera system so as to remove these photographs.

11 A ground of appeal in the proceedings before Mossop J alleged that the Magistrate had erred in finding that the evidence of Mr Aqel and Mr Ali was consistent. His Honour observed that it was important to note that the acceptance of the evidence of these witnesses involved consideration of a combination of the substance of their evidence and the manner in which they gave it. His Honour then referred to the following passage of the judgment of Murrell CJ in Faris v Coulon [2017] ACTSC 114 ( Faris v Coulon), regarding the principles applicable to the review of findings of fact on appeal (at [9]):

The principles governing the circumstances in which an appellate court may set...