Citation : SMART -v- ALBUQUERQUE [2010] WASC 323

Criminal law - Leave to appeal against conviction - Assaulting a public officer - Appellant spat in the face of a prison officer - Whether judge hearing appeal should have disqualified himself due to actual or apprehended bias - Whether verdict unsafe or unsatisfactory - Whether a miscarriage of justice occurred

Criminal Appeals Act 2004 (WA), s 9(2)

Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429

Chin v Legal Practice Board of Western Australia [2011] WASCA 110

Harvey v Matthews [1999] WASCA 58

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Rasoolifard v Nicol [2001] WASCA 180

Smart v Albuquerque [2010] WASC 323

Smart v Scott [2007] WASC 295

Smart v The State of Western Australia [2010] WASCA 218

The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

1 On 15 July 2009, the appellant was convicted by his Honour Temby SM, after trial in the Rockingham Magistrates Court, of one count of assaulting a public officer who was performing a function of his office, contrary to s 318(1)(d) of the Criminal Code (WA). In essence, his Honour found that on 4 December 2007, the appellant, who was then a sentenced prisoner, spat in the face of a prison officer.

2 The appellant appealed against his conviction. That appeal was heard by McKechnie J. He refused leave to appeal and dismissed the appeal: Smart v Albuquerque [2010] WASC 323. The appellant now seeks leave to appeal against McKechnie J's decision.

3 The appellant is not legally trained and is acting for himself. Leave to appeal cannot be granted on a ground unless the ground has a reasonable prospect of success: s 9(2) of the Criminal Appeals Act 2004 (WA). The appellant's appeal notice sets out five proposed grounds of appeal. His appellant's case sets out what he asserts are 22 errors which were allegedly committed by the magistrate. Of course, this is an appeal from McKechnie J's decision, and the appellant needs to establish error on his Honour's part.

4 It appears from a consideration of the appeal notice, the appellant's case and the appellant's oral submissions that he alleges:

1. McKechnie J should have disqualified himself from hearing the appeal due to actual or, alternatively, apprehended bias (ground 1);
2. McKechnie J erred by concluding that on the evidence before the magistrate it was open for him to find the appellant guilty of the offence (grounds 2 - 5); and
3. that miscarriages of justice occurred when the matter was before the Magistrates Court.

The allegation that McKechnie J should have disqualified himself

5 At the outset of the appeal before McKechnie J, the appellant applied for McKechnie J to disqualify himself. His Honour declined to do so. The relevant exchange is brief and is in these terms:

SMART, MR: I'm concerned that it's in front of you because you got my bail application so badly wrong and it's affected a subsequent application and I have to appeal your original decision so it concerns me that I've already got one of your decisions under appeal and you are potentially going to make another one.

McKECHNIE J: Yes. I don't propose to disqualify myself in respect of that. This is an entirely different matter: 29 October 2010, ts 2.

6 Before this court, in oral submissions, the appellant submitted that McKechnie J should have disqualified himself because he had been a prosecutor (his Honour was the Director of Public Prosecutions prior to his appointment to the Supreme Court in 1999) and because he had refused the appellant's application for bail in respect of charges unrelated to the present case, namely one count of stalking and one count of making a threat with intent to cause detriment. The refusal to grant bail was upheld on appeal: Smart v The State of Western Australia [2010] WASCA 218.

7 As it was not clear from the appellant's submissions whether he was alleging actual or apprehended bias, we will assume that he is alleging both forms of bias.

8 The test for determining whether a judge should be disqualified on the basis of actual bias of the kind of which the appellant complains was expressed by Newnes JA in Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] as follows:

Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].

9 The test to be applied in determining whether a judge should be disqualified for apparent bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:

[T]he observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' [12]. (footnotes omitted)

This test has recently been affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429 [78] - [84], [132], [139].

10 Nothing raised by the appellant is capable of establishing either actual or apparent bias. There is nothing to show that, because of his earlier position as a prosecutor and/or because of his refusal to grant the appellant bail, McKechnie J had prejudged the appeal before him, nor would these factors cause a fair-minded lay observer to reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to the proceedings. There is no evidence that the appellant had any dealings with McKechnie J as a prosecutor, or that his Honour said or did anything in the bail proceedings capable of sustaining any allegation of actual or apprehended bias against the appellant in the hearing of the appeal. Merely because his Honour had been a prosecutor and had refused a bail application is insufficient to ground an allegation of bias; as to the latter point, see Smart v Scott [2007] WASC 295 [53].

Did McKechnie J err in finding that it was open to the magistrate to find the appellant guilty?

11 In his reasons, McKechnie J summarised the evidence before the learned magistrate: [10] - [20]. He then concluded at [22]:

This was a factual case of credibility and the matters that were raised [by the appellant] were before the magistrate. He took them into account, but ultimately was satisfied beyond reasonable doubt that the event had occurred as alleged, relying as he did on the corroboration of the officer. In my view it was open for the magistrate to reach that conclusion on the evidence, it being a matter for him.

12 The appellant's complaint is that McKechnie J erred in finding that it was open to the learned magistrate to convict him. The appellant says, in effect, that the conviction was unsafe or unsatisfactory.

13 The test for whether a verdict is unsafe or unsatisfactory is whether, upon the whole of the evidence, the appellate court finds that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. In making its assessment, the appellate court must not disregard or discount the consideration that the finder of fact, in this case, the magistrate, was entrusted with the primary responsibility of determining guilt or innocence, or that the magistrate had the benefit of having seen and heard the witnesses. On the contrary, the appellate court must pay full regard to these considerations: M v The Queen (493).

14 In M v The Queen, the majority explained the application of the test in the following terms:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)

15 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

... whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt [M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 493]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis)

16 In The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44], Buss JA (with whom McLure P and Mazza J agreed) said that these principles applied by analogy to a trial by judge alone or before a magistrate. See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; and Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [78] - [79]. It is clear enough from [22] of McKechnie J's reasons that he understood and applied these principles.

17 In examination-in-chief, Officer Watts described what happened when the prison truck arrived at the sally-port at Casuarina Prison as follows:

We entered the sally-port, the prison reception sally-port[,] and upon opening the rear of the compartment, there is two compartments to our escort van. [The appellant] was in the rear compartment. He was in an agitated state, he was quite verbal and abusive. I entered the rear of the van, unlocked the rear compartment and let the locking bar fall, the door was pushed open in an aggressive manner and [the appellant] shuffled himself forward. The [appellant] at this time was restrained in handcuffs and chains linking his ankles, a standard escorting procedure. He was approximately seven or so inches away from my face and again was very abusive and spat in my face: 4 June 2009, ts 11.

18 After the incident, Officer Watts said that other officers got the appellant out of the van and took him to prison reception: 4 June 2009, ts 11. Officer Watts said that there was spit dotted around his forehead and eye region. He said that he went to the control room and washed his face. He then returned to Hakea Prison, where he contacted prison medical staff and completed an incident report: 4 June 2009, ts 12. Subsequently, he consulted his general practitioner and underwent blood tests. These tests revealed nothing untoward.

19 Officer Watts testified that normally the matter would have been dealt with by the internal prison justice system, but as the appellant was due for imminent release, the matter ended up being referred to the police. Consequently, an internal prison charge that had been laid against the appellant was withdrawn: 4 June 2009, ts 13.

20 In cross-examination, the appellant highlighted that no saliva sample was taken from Officer Watts with a view to obtaining DNA evidence which may have confirmed that the appellant had spat on him. The appellant also disputed where he had been positioned in the prison truck when Officer Watts entered the vehicle.

21 Officer Watts said that when he opened the door to the compartment in which the appellant was being kept in the truck, another officer was standing at the base of the stairs to the truck looking through. In other words, Officer Watts' evidence was that he was the only prison officer in the truck at the time the compartment door was opened: 4 June 2009, ts 21. Officer Watts explained that once he had got out of the way of the door, there was a view from the bottom of the steps to the truck which would have enabled someone there to see what was going on: 4 June 2009, ts 24.

22 Officer Watts agreed that he did not tell the officers at reception that he had been spat on, but he said that he believed that another officer would have done that: 4 June 2009, ts 30.

23 Officer Thomas testified in examination-in-chief that he was working with Officer Watts when the appellant was returned to Casuarina. He confirmed Officer Watts' evidence that the appellant spat on him. He said that he was inside the prison vehicle when the incident happened: 4 June 2009, ts 34.

24 In cross-examination, Officer Thomas said that he actually climbed inside the vehicle with Officer Watts. He confirmed that he saw the appellant spit in Officer Watts' face: 4 June 2009, ts 35.

25 The final witness for the prosecution was the investigating police officer, Sanjeev Anthony Albuquerque. He testified that in October 2008, the appellant was arrested and taken to the Morley police station for a video record of interview. The video record of interview was played to the magistrate: exhibit 3.

26 The appellant gave evidence in his defence, and called three other witnesses, all prison officers.

27 The appellant testified that the prison truck in which he travelled from the Magistrates Court to Casuarina Prison was hot, and that his requests for the air vents to be opened or the air-conditioning to be turned on had been refused. He explained what happened when he got to Casuarina Prison as follows:

I got back to Casuarina. I was sweating profusely. It was running down my face. It had soaked my clothes. The officers opened up the truck as usual, and as the officer was checking the chains I was vocally making my opinion known about the preceding half-hour trip, that it was too hot, and, 'Why didn't you open the vents?' and, 'Why didn't you turn on the airconditioning? Can't you see I'm hot? Can't you see the sweat streaming down my face now?' I said, 'I'm an asthmatic as well and this is unacceptable,' and was just pretty much grabbed by the chains and dragged out of the vehicle, thrown up against the wall, then taken to a different cell, where the chains were removed, and the officers left, and then I went back to my normal cell out in the general population: 15 July 2009, ts 5.

28 The appellant denied spitting on Officer Watts and said that the first he knew about the allegation was when Detective Albuquerque came to his house in October 2008: 15 July 2009, ts 6.

29 The magistrate asked if, while he was speaking to the officer in an agitated state, some spittle could have accidentally come from his mouth and landed on Officer Watts' face. The appellant said that he did not believe that happened: 15 July 2009, ts 8.

30 In cross-examination, the appellant disputed Officer Watts' evidence as to where he had been seated in the truck. He disputed Officer Thomas' evidence that he was in the truck with Officer Watts.

31 The appellant called Officer Holt, who was on duty at the reception area at Casuarina Prison on 4 December 2007. Officer Holt said that no-one presented to him claiming to have been spat on on that day: 15 July 2009, ts 22.

32 In cross-examination, he said that if an assault takes place which he sees, he would report it, but on the occasion in question he was sitting in the reception area and was unable to see anything going on in the sally-port: 15 July 2009, ts 23. He said that if an incident occurs that he did not witness, he would normally be informed of what occurred, but, as a matter of procedure, it was not something that he had to know: 15 July 2009, ts 23 - 24.

33 Officer Mills was called to give evidence, but said in examination-in-chief that he did not recall being at Casuarina prison reception on 4 December 2007. Officer Mills volunteered in cross-examination that the appellant's usual forms of aggression involved things other than spitting: 15 July 2009, ts 28.

34 Officer Foster testified that although records indicate that he was on duty on 4 December 2007, he did not have any particular memory of the events of that day: 15 July 2009, ts 29.

35 The appellant's written and oral submissions to this court reflected the submissions he made to the magistrate and to McKechnie J. He says that the principal witnesses for the prosecution, Officers Watts and Thomas, were untruthful and should not have been believed. His essential submissions in support of this proposition were:

1. There was no medical or forensic evidence, including DNA evidence, that the appellant had spat on Officer Watts.
2. The evidence supports another conclusion, namely that the appellant's sweat inadvertently landed on Officer Watts' face.
3. There was no evidence from Officers Holt, Mills or Foster to the effect that they heard about anyone being spat on.
4. Based on the evidence of Officer Mills, 'it was not [his] form to spit on officers': appellant's written submissions [8].
5. No report was made of the incident at Casuarina Prison.
6. The evidence of Officer Watts and Officer Thomas was inconsistent as to where Officer Thomas was at the time Officer Watts was spat on.
7. Officer Thomas was not in a position to see the appellant spit on Officer Watts.
8. He was not dealt with under the prison justice system, and the first he heard about an allegation that he had spat on Officer Watts was when he was arrested by Detective Albuquerque. Further, there was a considerable delay between the incident and the police laying the charge against him.

36 We have carefully considered the transcript of proceedings, the appellant's submissions and his various criticisms of the evidence.

37 It is not surprising that there is no medical or forensic evidence, including DNA evidence, given Officer Watts' evidence that he had gone and washed the spit off straight after the incident.

38 In light of the evidence of Officers Watts and Thomas that they saw the appellant spit at Officer Watts, an action distinct and different in nature from sweat inadvertently landing on him, this alternative hypothesis was not reasonably open.

39 While there was a contradiction between Officer Watts and Officer Thomas as to whether Officer Thomas was in the truck at the time the incident occurred, it is not of great importance. The real point is whether Officer Thomas was in a position to see the appellant spit on Officer Watts. Officer Watts' testimony was that the incident occurred in the truck at a position which enabled someone at the rear of the truck to see what was going on inside it. Officer Thomas gave clear evidence that he saw the incident. It was entirely open to the magistrate to find, as he did, that Officer Thomas was in a position to see the appellant spit on Officer Watts.

40 The evidence of the prison officers called by the appellant was not of any real assistance to him. Two of the officers, Officers Mills and Foster, had no recollection of the day in question. Officer Mills' opinion about the appellant's usual forms of aggression was a double-edged sword which the magistrate apparently gave no weight to, one way or the other.

41 Officer Holt had a recollection of the day in question, but he was on duty in reception and did not see the incident. The fact that he did not hear of any incident does not mean that an incident did not occur. As Officer Holt said, an incident sometimes occurs and he does not hear of it.

42 Officer Watts explained that when the incident occurred he thought that another officer would have informed the relevant staff at Casuarina Prison of what had occurred. It is clear from his evidence that he was understandably more intent on washing his face. Further, Officer Watts reported the incident when he returned to Hakea Prison.

43 The fact that the allegation was not dealt with internally and that there was a considerable delay between the occurrence of the incident and the police laying the charge give us no cause to doubt the verdict.Whether the prosecution had proved its case beyond reasonable doubt depended very much upon the credibility of the three main witnesses, Officers Watts and Thomas, on the one hand, and the appellant on the other. The learned magistrate had the advantage of seeing and hearing the witnesses. Bearing this in mind, our review of the evidence has left us with no reasonable doubt as to the appellant's guilt. The verdict was open on the evidence. McKechnie J's assessment of the evidence was correct.

44 These matters were not pursued by the appellant before McKechnie J. They were, however, raised by Mr Smart in this court.

45 The appellant alleges that he suffered a miscarriage of justice because, he says, the magistrate did not allow him to inspect a Department of Corrections file which he had subpoenaed.

46 On 25 May 2009, the appellant applied to adjourn the trial, which was listed on 4 June 2009. The transcript of proceedings for that day reveals that the appellant had summonsed 'the file' from the Commissioner of Corrective Services:

... to prove that the suggestion that I spat on him [Officer Watts] was never even put to me at that time, and there's no record of that in the files, and also to get these officers from Casuarina reception, who didn't know what was going on, and certainly no officer indicated to them that he had been spat on: 25 May 2009, ts 4.

47 The magistrate refused the adjournment. In doing so, his Honour noted that the appellant had already received disclosure from the prosecution. His Honour said that when the file that the appellant subpoenaed arrived at the court, he was at liberty to inspect it: 25 May 2009, ts 6.

48 The allegation that the magistrate did not allow him to inspect the file is contradicted by the record as a whole. Moreover, we have requested a copy of the transcript of the proceedings on the morning of 4 June 2009 (which had not been previously transcribed), which confirms that the appellant expressly acknowledged that he had been allowed to look at the files he had subpoenaed: 4 June 2009, ts 2. At one point that morning, the learned magistrate adjourned for a brief period to allow for discussion between the appellant and the prosecutor. The appellant asked for, and was given, permission by the magistrate to have the files present during those discussions.

49 The appellant also complains that witness statements were not signed. Whether they were, or were not, does not give rise to a miscarriage of justice.

50 Finally, the appellant alleged that the magistrate 'deliberately provoke[d]' him during closing submissions when he pointed out documents in the files he had subpoenaed and said 'they are on the file that you subpoenaed, presumably the file that you have read, Mr Smart': 15 July 2009, ts 37. There is nothing provocative in what the magistrate said.

51 McKechnie J made none of the errors complained of by the appellant. There has been no miscarriage of justice. We would not give leave to appeal. There is simply no reasonable prospect of any of the grounds succeeding. The appeal must be dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.