Lina Faris(Appellant) v Lesley Maree Coulon

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ
• Judgment Date: 18 May 2017
• Docket Number: File Numbers: SCA 48 of 2016
• Date: 18 May 2017

[2017] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Numbers: SCA 48 of 2016

Lina Faris

(Appellant)

and

Lesley Maree Coulon

(Respondent)

Representation:

Counsel

Mr H Ford (Appellant)

Ms T Skvortsova (Respondent)

Cases Cited:

Eastman v R [2015] ACTCA 24 ; 295 FLR 426

R v Kneebone [1999] NSWCCA 279 ; 47 NSWLR 450

Ryan v Vizovitis [2017] ACTCA 3

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 5172

Evidence Act 2011 (ACT) ss 12, 13, 38, 165A(1)(a)

Magistrates Court Act 1930 (ACT) ss 208, 214

APPEAL — CRIMINAL APPEAL — Appeal against conviction — Assessment of witness credibility by trial judge — Assessment of competence of child witness by trial judge — Allegations of actual or apprehended bias by trial judge

Murrell CJ

1 After a defended hearing before Magistrate Doogan (the Magistrate), the appellant was convicted of the offences that on 11 October 2014 she assaulted Sergeant Coulon and Constable Shoemark.

2 On 14 June 2016, the appellant was sentenced. For the offence of assaulting Sergeant Coulon, the appellant was required to enter a good behaviour order for 18 months. In relation to the second offence, she was fined.

3 The appellant appealed against the convictions on the grounds that:

• (a) The Magistrate failed to give any weight to the evidence called by the appellant.

• (b) The Magistrate found the evidence of the prosecution to be credible and reliable, despite inconsistencies within the evidence.

• (c) The prosecution failed to call all relevant evidence. In particular, the prosecution failed to call evidence from a neighbour who would have contradicted the prosecution case.

• (d) The Magistrate erred in assessing the credibility of the appellant and the appellant's witnesses, rather than focusing on the evidence of prosecution witnesses.

4 The appellant abandoned an appeal against the sentences.

5 On 28 February 2017, the prosecution submitted that the appeal should be struck out as incompetent pursuant to r 5172 of the Court Procedure Rules 2006 (ACT) (CPR) on the basis that the appellant had taken inadequate steps to obtain the transcript of the proceedings before the Magistrate on 26 February 2016, the date when the prosecution witnesses gave their evidence.

6 I doubted that failure to obtain a transcript could render an appeal ‘incompetent’. In any event, I considered that it was inappropriate to strike out the appeal. I adjourned the matter and made directions.

7 On 28 February 2017 I refused the appellant's application to call evidence from a potential child witness, M, who is now 13 years old. No reason was given as to why M was not called at the hearing. I decided that the appellant should not be permitted to rerun her case. I was also cognisant of the difficulties of calling a witness to speak for the first time about events more than two years earlier and of the undesirability of calling a 13-year-old child who was only 11 years of age at the time of the incident.

The appeal

8 The appeal to the Supreme Court is pursuant to s 208 of the Magistrates Court Act 1930 (ACT) (MCA). The appeal is by way of rehearing and the Supreme Court must conduct a review of the evidence before the Magistrates Court. Pursuant to s 214 of the MCA, the Supreme Court has power to draw inferences of fact. An appellant will succeed if they can establish an error of law or fact or a manifestly wrong exercise of discretion.

9 The principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge are well settled and were recently repeated by the Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [132]. There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge's factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find that the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.

Prosecution evidence

10 In the Magistrates Court, the prosecution called evidence to the following effect.

11 In response to 000 calls from the appellant, at about 3:40 pm on 11 October 2014, Sergeant Coulon, Constable Shoemark and Constable Nikias attended the residence of the appellant and her husband, Mr Faris at Howmans Street, Harrison.

12 The appellant had rung the 000 number seven times to complain about her neighbours, the Bruzgas. After listening to the calls, the Magistrate described them as ‘extremely aggressive, agitated and hysterical’ and commented that the appellant's husband, Mr Faris could be heard in the background making ‘extremely offensive remarks’ to the person who answered the calls.

13 When the police arrived, the appellant was very agitated. She opened the front door and began to shout at the police. She was joined by Mr Faris, who also yelled aggressively.

14 The police began to walk towards the Bruzgas' residence to ask them what had occurred.

15 When the police were halfway down the appellant's driveway, the appellant ran towards them, yelling. The appellant pushed Sergeant Coulon in the chest. Sergeant Coulon reacted by raising her right arm. She pushed the appellant away and stepped backwards. The appellant again lunged towards Sergeant Coulon. Constable Shoemark stood between the two and grabbed the appellant by the top of her arms, in the shoulder area, pushing her back to prevent her from contacting Sergeant Coulon. The appellant flung her arms and clenched her fists as though she was going to punch Constable Shoemark. He caught the appellant's forearms and guided her backwards, away from Sergeant Coulon. Constable Shoemark told the appellant that he would release her if she calmed down, but the appellant continued to struggle.

16 This incident occurred in the vicinity of a tree. Police did not dispute the possibility that, in the course of the incident, the appellant was accidentally scratched by a twig.

17 Immediately prior to the incident, Constable Nikias was standing to the right of Constable Shoemark, who was standing to the right of Sergeant Coulon. Although Constable Nikias did not observe any physical contact between the police and the appellant, his observations of the surrounding events were consistent with the description of physical interaction that was given by Sergeant Coulon and Constable Shoemark.

18 Mr Faris came forward, wrapped his arms around the appellant's upper body and tried to drag her away from the police. Constable Shoemark released the appellant.

19 Mr Faris continued to drag the appellant away from the police, towards the front of the premises. The appellant yelled ‘[h]e assaulted me, you assaulted me, I'll kill them’ and ‘[h]e called me a Jordanian slut’. He pulled her inside and shut the door. The appellant continued to yell out.

20 The police proceeded to the Bruzgas' home in Harrison, which was directly behind the appellant's residence. There, they located Constables Hull and McClintock. They spoke to Mr Bruzga. He stated that, prior to police attending, water had been sprayed accidentally over his back fence onto the appellant's property. The appellant and her husband had become irate and had accused Mr Bruzga of deliberately spraying their property. Because Mr Bruzga was fearful, he had called the police.

21 All five police returned to the appellant's residence. The appellant opened the door and tried to exit but Mr Faris pulled her back inside and shut the door. From inside, she shouted at the police. Mr Faris complained that the police should do something about the neighbours, asserting that the police were racist for failing to do so.

22 To avoid inflaming the situation, the police decided to leave. Constable Hull said that, at one point, Mr Faris became aggressive and he placed his hand on Mr Faris and pushed him away.

23 On 17 December 2014, Sergeant Coulon and Constable Shoemark returned to the appellant's residence and offered her the opportunity to participate in a digital record of interview. The appellant asserted that the police had assaulted her, verbally abused Sergeant Coulon, and slammed the door in her face.

Defence evidence

24 The appellant gave evidence that originally three police officers, including Seargeant Coulon and Constable Shoemark attended her residence. They declined to come inside, ignored the appellant, and were rude to her husband. The police were yelling. Sergeant Coulon pushed the appellant and then Constable Shoemark grabbed her by the wrists and arms and dragged her outside, where he deliberately rammed her into a tree. As a result, the appellant sustained a minor cut or cuts to her neck. She tendered photographs of the cut. The appellant said that her husband came outside and she ran back inside.

25 The appellant denied that she had rushed at Sergeant Coulon and pushed her.

26 Later, two police officers returned and the appellant reported that she had been assaulted.

27 She called the emergency line again. In response, two further police officers attended.

28 Mr Faris gave evidence largely corroborative of his wife's evidence, although he agreed that he had come outside to grab the appellant and take her inside from the driveway. He also said that only two groups of police...