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[2012] NSWSC 1596
Supreme Court of NSW
2012-11-12
Hulme J, Johnson J
Original judgment source is linked above.
DECISION 1HIS HONOUR: Mr Stephen John Allan has applied for an inquiry into convictions recorded against him at the Downing Centre Local Court on 15 November 2010. He was convicted of being armed with intent to commit an indictable offence (s 114 Crimes Act 1900) and three offences of assault (s 61 Crimes Act). 2The convictions followed a defended hearing before her Honour Barkell LCM. Mr Allan was represented by Ms Daniels of counsel and the prosecution was represented by a police prosecutor, Sgt Arnold. 3Her Honour convicted Mr Allan on all four counts. For the s 114 offence she ordered that he enter into a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 and for each of the offences of assault imposed a fine of $400 with court costs of $79. 4Mr Allan appealed to the District Court against his conviction. The appeal was heard by his Honour Judge Finnane QC on 28 March 2011. Mr Allan represented himself on this occasion. The prosecution was represented by a solicitor from the Office of the Director of Public Prosecutions. Mr Allan was granted leave to tender further documentary evidence. He made submissions to which the prosecution solicitor was not called upon to respond. The appeal was dismissed and the convictions and sentences were confirmed. 5The application is brought pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001. The relevant provisions are to be found in s 78 and 79. The terms of those provisions, together with a summary of principles that apply to the making and consideration of such an application, were usefully set out in detail in the judgment of Johnson J in Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4]-[19]. I have had regard to those provisions and principles and there is no purpose to be served by restating them here. 6The prosecution case was, in very broad terms, that on the evening of Saturday 27 March 2010 at about 9.15pm Mr Allan approached a sex worker, Ms Ashley Montabello, in the vicinity of Bourke and Burton Streets in Darlinghurst. He sought to engage her services but did not have sufficient money and was rebuffed. 7Ms Montabello said that after she turned the man down, he remained standing near her being a nuisance. She could smell on his breath that he had been drinking. She asked him to move on but he did not and she formed the view that he was scaring her potential customers away. 8Two youth workers approached the scene, Ms Hannah Jamal and Ms Zoe Humphreys. Ms Jamal knew Ms Montabello and heard her say to a man standing nearby, "I said no". Ms Jamal thought this was unusual and called Ms Montabello over. Ms Montabello told her that the man had been hassling her and would not leave her alone. Ms Jamal went over to the man and told him to move on or else she would call the police. She said that he started screaming at her so she stepped back. The man then grabbed her by the arms and shoved her backwards twice. She stumbled backwards and then ran back quickly to Ms Montabello and Ms Humphreys. She said the man was screaming obscenities. Ms Jamal also smelt that the man had been drinking but said that he appeared to be walking alright. 9 When Ms Jamal rejoined Ms Humphreys and Ms Montabello the man turned and walked away along Bourke Street towards William Street. Ms Jamal rang the police on her mobile. At some point the man turned and started to return quickly to the three women. As he approached it was observed that he had a knife in his hand. The three women then ran. There was evidence that the man chased the women up and down Bourke Street. Ms Jamal was still on the phone to the police while this occurred and reported that the man had a knife. The police upgraded the urgency of their response and uniformed police officers were soon in attendance. The man was seen to turn into Burton Street and that fact was drawn to the attention of the police. When the women turned into Burton Street they observed that a man had been apprehended. Ms Jamal said that she pointed at the man and said to the police, "That's him. That's him." 10Constable Julie Moulden was one of the first officers to arrive. She said that she was flagged down by Ms Jamal who said, "he went that way," and "he was wearing a blue long sleeve shirt, black long pants and he was old". Constable Moulden looked along Burton Street and saw Mr Allan, who she did not at that point know, wearing the clothing that had been described walking away from Bourke Street. She said that there was no one else around who remotely matched the description. The police vehicle was driven up to Mr Allan and stopped. The officers alighted and Mr Allan was asked if he had a knife. He responded, "Yes, I do, a Swiss Army knife. I carry it all the time with me. It's in my right pocket." Mr Allan was searched and a knife was found in his pocket and he was arrested. When cautioned Mr Allan said, "I haven't done anything wrong. Those girls were harassing me." 11Mr Allan gave evidence. In broad terms his version of events was that he had caught a bus to Darlinghurst from Double Bay at around 9pm, after consuming about six beers. He was walking along Bourke Street about 30 metres south of Williams Street when he was approached by a woman who threatened him by saying, "my friends are going to mug you and do you over if you walk up Bourke Street". He told her to leave him alone and took a few steps back. The woman approached him again and so he pushed her away from him by her shoulders to keep her at arms length. He said to her, "I'm not going to be intimidated by you or your friends because I'm carrying a Swiss Army knife." The woman remained undeterred and asked him to show her the knife. Mr Allan said, "I took her threats very seriously because I've had previous experiences in the area of armed robberies, criminal groups like this who operate not individually, but in gangs, and so I chose to show her the knife to, because I thought that it would, it would diffuse a more dangerous situation because she would've been aware that her gang could not be able to intimidate me and would be more than likely to not approach me as I walked up Bourke Street." 12After showing the woman the knife, Mr Allan said that she turned and jogged towards a group of women about 50 metres away. There were three other women there. The woman had a brief discussion with them and they walked off towards Oxford Street. Mr Allan said that he continued on his way up Bourke Street and turned into one of the streets on the left at which point he was arrested. 13Mr Allan's case in the Local Court and on appeal in the District Court was not to deny that there had been an incident such as was described by the three women. Rather it was a denial that he was the man involved. For example, in her closing address Ms Daniels said, "It is clearly the defence case that the three complainants were assaulted in the manner described on 27 March of this year. It was not Mr Allan who was the perpetrator." 14The learned Magistrate concluded that Mr Allan's explanation "seems to me totally incredible and I do not accept [it]". His Honour Judge Finnane, although expressing himself in different terms, clearly came to the view that Mr Allan's account did not represent a reasonably possible version of events. 15It is immediately apparent from the foregoing summary of the competing cases that there were significant problems for Mr Allan in persuading a court to accept his version. He would have it that there were two incidents in Bourke Street Darlinghurst at the same time, both involving a man in a long sleeved blue shirt, both involving that man pushing a woman in the upper torso, and both involving that man being armed with a small bladed knife. There was the further coincidence that both men then walked into Burton Street. But the police only found Mr Allan there; no one else remotely matching the description given by the complainants was seen. 16Mr Allan has formulated six "Grounds for Inquiry and Appeal" and I propose to deal with each of them.
Ground 1: A wrong decision of a question of law had been made by the court by giving greater weight and credibility to the testimony of an accuser that that of the defendant in an issue of fact about an alleged relationship.
Fresh conclusive evidence is also available. 17The ground is concerned with evidence given by Ms Montabello. Towards the end of her cross-examination by Ms Daniels, it was suggested that the man she was talking about was not Mr Allan. Ms Montabello responded, "Yeah, it was him. I seen him a couple of times. I seen him before as a client." Ms Daniels did not challenge that evidence. In re-examination Ms Montabello explained that she had seen Mr Allan in the past, "a couple of times actually". She referred to him having a car. She elaborated that she had talked to him for about five minutes on one occasion and on the other occasion she had sat talking with him in his car for about 15 minutes. I note that no further cross-examination was sought. 18Mr Allan gave the following evidence: Q. Now, in court, you may have heard Ms Montabello state that she's met you before the incident on 27 March this year. Now, what do you have to say about that? A. It is a possibility because my understanding is that she's a street walker and at the time of the incident, I was a local resident for six years and do walk up Bourke Street fairly regularly simply because it's a main pedestrian route in the area. I do see and can recognise quite a number of the street walkers but I don't recognise her. 19The evidence of Ms Montabello on this subject was not referred to at all and appears to have formed no part of the Magistrate's reasoning. 20In the hearing of the appeal in the District Court, Mr Allan was permitted to tender a letter from the Roads and Traffic Authority which indicated that he had never been recorded as the "operator of a vehicle in New South Wales". Finnane DCJ did not regard that as a matter of any significance as it did not indicate anything about Mr Allan having access to vehicles. 21In the material annexed to his application for an inquiry Mr Allan has included that letter from the RTA, as well as the lease for the premises he was renting at the relevant time in Elizabeth Bay and a letter from City of Sydney Council indicating that he had not been issued with any parking permit. It was submitted that this evidence established beyond a reasonable doubt that he had not been in a car with Ms Montabello and that she had "given false evidence in an attempt to convict an innocent person". 22In my view this evidence does nothing to undermine the credibility of Ms Montabello. It says nothing about whether Mr Allan ever had access to or use of a motor vehicle in the past. The point is, in any event, of relatively slight significance in the assessment of the overall effect of the evidence of the three complainants.
Ground 2: Findings of the court about the perception of the defendant's hair colour are scientifically incorrect. 23This is a reference to the evidence of the three complainants which was to the effect that the colour of the man's hair was grey. It seems to have been common ground that when he appeared in court his hair was a reddish blond colour. Within the material annexed to the application there is a photograph of Mr Allan said to have been taken several months before the incident which shows that his hair was a reddish colour rather than grey. Also attached is a document of a scientific nature dealing with the basic concepts of lighting. 24The issue as to the description of the man's hair colour, grey according to each of the complainants but apparently in reality a reddish colour, was considered by both the Magistrate and the judge on appeal. Both dismissed it as having no significance given that the observations were made at night with street lighting. The material now provided does not raise anything of significance in relation to this issue.
Ground 3: The court made a wrong decision of a question of law in allocating criminal intention to the lawful possession of a Swiss Army knife and moderate intoxication. 25The submission in support of this ground is to the effect that Finnane DCJ erred in rejecting a submission that no motive to commit the offences had been established and that there was no basis to conclude that his intention in possessing the pocketknife was to commit an offence. 26This is a matter which was considered by his Honour and rejected. That rejection was open to his Honour and this ground is insignificant.
Ground 4: Important evidence was withheld by the prosecution resulting in a substantial miscarriage of justice. 27Mr Allan submitted in support of this ground that there had been "a substantial miscarriage of justice" because a police recording of the triple 0 call made by Ms Jamal had been "withheld by the prosecution". 28It is the case that there was evidence in the cross-examination of Constable Moulden that triple 0 calls are routinely recorded. She said there was "no reason" why a recording of the call had not been produced. 29It is a matter of sheer speculation that the recording, assuming it still exists, would contain material that would be in conflict with the evidence given by any of the complainants. It is also of some significance that no attempt has been made by or on behalf of Mr Allan to have a copy of the recording produced. It is also of some significance that the nondisclosure of a recording of a triple 0 call was not the subject of any submission made by counsel for Mr Allan in the Local Court. There was no suggestion of any unfairness. There is no merit in this ground.
Ground 5: The findings of the court as to the credibility [presumably of the complainants] cannot be supported by the evidence resulting in an unreasonable and unsupportable verdict. 30A variety of matters were raised by Mr Allan in support of this ground. I have given consideration to the submissions and the evidence to which they relate. I do not intend to refer to any of them individually. 31It is significant that many, although not all, of these matters were raised in either the Local Court or the District Court of both. Some of the points that are now raised were matters that could have been the subject of cross-examination if counsel thought they were significant. 32I note that in the course of her closing submissions Ms Daniels said that she agreed with the prosecutor's characterisation of the complainants' evidence. She said, "they were forthright and I would have to concede that it is entirely open for your Honour to accept their evidence." The prosecutor's submission had been generally to the effect that each of the complainants had given honest and credible evidence. 33The Magistrate noted the concession by the defence of the complainants having given credible evidence. Clearly she was of the view that their evidence should be accepted notwithstanding some differences in their recollections. Finnane DCJ came to the same view, saying "each of those women gave evidence and gave it in what appears to me to have been an entirely credible way. The fact that there were differences between them is of no importance, because human beings will always differ when they given evidence of things that have happened to them, that is a common human experience". 34Having considered each of the matters raised in the submissions by Mr Allan under this ground, both individually and in their cumulative effect, I have no reason to doubt the correctness of the conclusion of the Magistrate or the judge on appeal.
Ground 6: The verdict is unreasonable and cannot be supported, having regard to the evidence because the case for the prosecution has not been proved beyond reasonable doubt and the case for the defence has been proved on the balance of probabilities. 35In support of this ground Mr Allan referred to some of the points that he had raised earlier in his submissions. There is no additional material relied upon. This ground does not add any force to his application.
CONCLUSION 36Having considered all of the material provided in support of the application, including Mr Allan's submissions, I am of the view that there is no doubt or question as to his guilt in respect of any of the offences for which he was convicted. I have no unease or sense of disquiet in allowing the convictions to stand. I decline to direct an inquiry be conducted or refer the case to the Court of Criminal Appeal. 37The application is refused.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2012