Assi v R

LUNCHEON ADJOURNMENT

1. HIS HONOUR: The question of the nature of the appeal from the Local Court to this Court was more recently considered in AG v DPP (NSW) [2015] NSWCA 218 at [5], Basten JA pointed out that a judge on appeal is bound to observe the "natural limitations" which arise when appeal is conducted by reference to a documentary record. There appears to be little dispute about that requirement. This authority makes it clear that principles such as those enunciated by the High Court of Australia in Fox v Percy [2003] HCA 22; 214 CLR 118 apply.
2. It is perhaps appropriate to go back to consider what fell from McHugh J in Abalos v The Australian Postal Commission (1990) 171 CLR 167. Commencing at 178 his Honour said: "In SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, Lord Sumner pointed out that: 'not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher ourt ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend upon question when a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms in any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone'. Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas [1947] AC 484 at 488. In the present case, the learned trial judge's decision on the issue of supervision was based on the evidence of Mrs Archer. In addition to hearing Mrs Archer giving evidence, her Honour had the great advantage of seeing both a video cassette of Mrs Archer operating the coding machine and the in-court demonstrations of her operating the keyboard. She did not refer to the evidence which Professor Ferguson had given on the issue of supervision. The learned trial judge formed the view that, for a person who performed the work in the manner which Mrs Archer demonstrated, the risk of injury was minimal. Her Honour was not bound to accept the whole of Professor Ferguson's evidence concerning supervision even if it had the effect which the Court of Appeal thought it had. She accepted his evidence concerning the risk of injury which was inherent in the system and his evidence that he had communicated his views to representatives of the defendant. But she made no express findings about the rest of Professor Ferguson's evidence or his general reliability as a witness. If there is any inconsistency between Professor Ferguson's evidence and her Honour's findings concerning supervision, then she must be taken to have rejected that evidence. Certainly, she seems to have rejected his evidence that the postures adopted were partially dictated by the visual demands of the task and partly by the action required of both hands. As I pointed out in Jones v Hyde (1989) 63 ALJR 349 at 351, where a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue".
3. More recently that authority and similar authorities were reviewed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. At [26] Gleeson CJ, Gummow and Kirby JJ said: "After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by the impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v The Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decision was simply a reminder of the limits under which appellate judges typically operate when compared with trial judges. [27] The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellant decision-making throughout Australia." McHugh JA revisited the issue at considerable length. His Honour commenced that discussion at [65]. His Honour then said this: "[66] Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission where Brennan and Gaudron JJ and myself said [(1993) 177 CLR 472 at 479]: 'More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has improperly misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.' [67] There was nothing novel about these statements. They derive from principles in decisions of this Court and the House of Lords stretching back over the best part of a century." Between [68] and [89] his Honour then considered those authorities. His Honour then said this: "[90] It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellant court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 73 ALJR 306, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it. [91] Legal doctrine is most likely to command the respect of the profession and, consequently, the public when it evolves by processes of induction and deduction on the experience of decided cases and the application of established legal principles to cover new situations. To now reject the doctrines to which Abalos and Devries in effect would be a revolutionary, not an evolutionary step."
4. I ask myself in the current application, is there anything that points decisively to error on behalf of Magistrate Still and to that question I answer, no. Indeed the extended view of the facts into which I entered earlier in these reasons points me to exactly the same conclusion as that reached by the learned Magistrate. Furthermore there was nothing in my view improper or unacceptable in the learned Magistrate referring to the fact that he did not believe the current applicant was "inexperienced" in either the commercial sense or as regards the law. Clearly the appellant had spent either five, and on another view of his evidence, 6 years working with and under Mr Lazar in various commercial undertakings and the appellant's own experience of the criminal law points to his having an understanding of the whole process, as indeed significantly does the email of 11 August 2014 upon which both the learned Magistrate and I relied.
5. There is no suggestion that his Honour misdirected himself in point of law. Those directions he commenced towards the end of his judgment at p 26 line 8 of the transcript of 3 October 2014. I myself have recently had to consider the same law in Hollingsworth v Bushby [2014] NSWDC 101 from which there was an unsuccessful appeal to the Court of Appeal. I reviewed the relevant legal principles between [24] and [26]. It is to be borne in mind that the onus lies upon the applicant to demonstrate that leave should be granted to him to withdraw his plea of guilty. The applicant must establish a good and substantial reason for the Court taking the course of granting him leave to withdraw his plea of guilty. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection. The authorities which are cited in particular are the restatement of principles contained in R v Rae (No 2) [2005] NSWCA 380 clearly refer to the situation, which here obtains, of a party agreeing to plead guilty in order to obtain a lesser sentence. The Magistrate accepted the evidence of Ms Manolakos that the applicant decided to enter a plea of guilty knowing what it involved in order to obtain a discounted sentence. There is nothing to suggest that the decision made by the applicant was not initially made consciously with the prospect of perceived advantage, nor does the evidence as accepted by the Magistrate suggest that the applicant did not entertain a genuine consciousness of guilt. Indeed, Ms Manolakos said that he did acknowledge that he was guilty.
6. The assertion by the applicant that he thought he was guilty merely because he had been told by Ms Manolakos that he was guilty because he had received the benefit of money, appears with the utmost respect to be ex post facto rationalisation, and such can be implied from what the learned Magistrate said.
7. The applicant has the onus of proving error in the decision of Magistrate Still. As found by the learned Magistrate, his decision was made freely and voluntarily. That was the evidence of the solicitor which his Honour accepted. No real grounds had been established to warrant the interference of this Court in the decision reached by the learned Magistrate. The application for leave to appeal is accordingly dismissed.

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