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[2009] WASC 383
General information, not legal advice.
Supreme Court of WA
2009-12-11
McKechnie J, Johnson J, Kechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WRAGG -v- BOND [2009] WASC 383
Consolidated by Order of McKechnie J on 23 May 2009
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Courts and judges - Constant intervention - Whether a fair trial
Agostinelli & Lewis (1995) 82 A Crim R 326
Carley v Sheppard [2004] WASCA 80
Hobbs v C T Tinling and Co Ltd [1929] 2 KB 1
Michael v The State of Western Australia [2007] WASCA 100
R v Hircock [1970] 1 QB 67
1 On 12 September 2008 Mr Wragg was working as a security officer at the Brighton Hotel in Mandurah. He ejected a drunken customer. It was alleged that he beat the customer up outside the range of a security camera. There was a young woman in a position to observe things. Mr Wragg was charged with assault occasioning bodily harm. He was entitled to a fair trial before the magistrate. He did not get one. It was as if there was a second prosecutor in the room. The magistrate's interventions took him metaphorically off the bench and into the battle. The appeal must be allowed and a retrial ordered so that Mr Wragg can secure justice according to law whatever the result of the retrial.
2 At the hearing of the appeal I said I would obtain the audio record of the trial and compare it with the transcript. The number and nature of interventions by the magistrate shown on the transcript were such that I doubted whether the transcript was accurate. I have since listened to the entire trial. Any transcription errors are immaterial.
3 No objection is taken by Mr Wragg to a number of interventions by the magistrate for the purposes of clarification, obtaining formal details and the like. So I ignore them.
4 However, the picture is clear. The magistrate made minimal intervention during the evidence-in-chief of the prosecution witnesses. During cross-examination of the prosecution witnesses he made considerable interventions, sometimes in a partisan way. He asked counsel questions that were plainly inappropriate and adversarial. When the defence called evidence the magistrate largely led Mr Wragg and his witness through their evidence-in-chief and later complained of repetition when counsel attempted to go into more detail. During the cross-examination of Mr Wragg the magistrate intervened and asked some plainly cross-examining questions of Mr Wragg.
5 Mr Wragg's case is not that the magistrate was biased but that the magistrate's conduct led to a miscarriage of justice because there was an unfair trial. The general principles are gathered together in Michael v The State of Western Australia [2007] WASCA 100 [63] and [76]; Agostinelli & Lewis (1995) 82 A Crim R 326; Carley v Sheppard [2004] WASCA 80. That last case concerned the same magistrate. Johnson J concluded:
I consider that there was a disquieting and unnecessary level of intervention in this hearing which impacted more particularly on the defendant's case. Ultimately, I am left with a real concern that counsel's ability to develop all issues relevant to the accused's defence was significantly curtailed by the regular intervention on the part of the Magistrate. [63]
6 Johnson J allowed that appeal. It is not, of course, a binding authority because the facts are different. But I am left with the same concern five years on.
7 In R v Hircock [1970] 1 QB 67 Lord Justice Widgery said:
There is in our judgment a very important distinction between conduct on the part of the presiding judge which may be regarded as discourtesy and may show signs of impatience - and the conduct which cannot be commended in any way but which does not in itself invite the jury to disbelieve the defence witnesses and conduct which positively and actively obstructs counsel in the doing of his work. (72)
8 The magistrate's conduct actively obstructed counsel. Lawyers who appear in court should not be shrinking violets and should be robust enough to pursue their case with vigour, if necessary, against a degree of antagonism from the bench. Judicial officers after all are human and occasionally slip. Sometimes there is little counsel can do to deflect a judicial officer: Hobbs v C T Tinling and Co Ltd [1929] 2 KB 1. This was such a case.
9 The case against Mr Wragg depended largely on the evidence of the independent eyewitness. If her evidence is accepted, the prosecution case was a strong case. Mr Astill for the respondent, while acknowledging the inappropriateness of some interventions, pointed out that many were non-leading in nature. He gamely argued that, in the end, the eyewitness was a good witness and there was no miscarriage of justice. The argument is seductive but there is no better answer to it than Sankey LJ in Hobbs v Tinling when dealing with an argument that the result was correct and we need not look too strictly upon the means by which the result was obtained:
With this I profoundly disagree. It is not admissible to do a great right by doing a little wrong. The inequalities of life are not so dangerous in a State whose subjects know that in a Court of law at any rate they are sure to get justice, and it is not sufficient to do justice by obtaining a proper result by irregular or improper means. (53)
10 I will give some examples from the trial to illustrate why the interventions were excessive, prevented counsel doing his job, and gave rise to a real sense of unfairness in the process.
11 The prosecutor tendered eight photographs described as photos of the victim taken on 15 September 2008 at Mandurah forensic office (ts 7). When the victim later gave evidence, he recognised only three as photographs of him. When this became apparent the magistrate said:
On the basis of what has just been said and the question that was raised in cross-examination, it appears there's some sort of error. It's not material as far as I'm concerned. The photographs A1 to 8 now become A1 to 3. (ts 15)
12 The prosecutor had not asked for the other photographs to be withdrawn from tender.
13 Counsel asked that the photographs be left in evidence because what had occurred was that the police officers identified the wrong person. Counsel said, 'Well, he has identified this person as being a victim. I don't want to go into his evidence at this point in time, because the witness is in court, but I would certainly seek to address you'.
HIS HONOUR: Well, if you want the witness recalled I might consider that issue if you want to try and resolve it.
WALLS, MR: I don't need to recall him, your Honour, just I would submit that he was in error.
HIS HONOUR: Well then I don't understand precisely what you are speaking of. Just conduct your cross-examination of this witness if you want to, and then I will deal with this issue.
Interventions in the victim's cross-examination
14 Cross-examination then continued for a time until the magistrate interrupted again, this time with a question about the others who were with the victim, their ages, their occupations. He asked, 'What was your reason for going out to dinner? Did you have one or was it just a Friday dinner?' (ts 20).
15 This interrupted counsel's sequence and was unnecessary.
16 When counsel was cross-examining as to whether the victim was yelling abuse at the bouncers the witness answered, 'No'. The magistrate intervened and asked counsel:
HIS HONOUR: This witness? Him personally?
WALLS, MR: Yes. You or your members of your group were yelling out the words 'Tough cunts'?
HIS HONOUR: Well, make up your mind whether you are saying it's him or members of the group. (ts 20)
17 After a couple more questions, counsel asked, 'Were you challenging? Were you at the bottom of the steps challenging the doorman to fight?---No, mate' (ts 20 - 21).
HIS HONOUR: Is this prior to leaving?
WALLS, MR: This is at the bottom of the stairs when they are out - they have been motioned outside, your Honour.
HIS HONOUR: Yes. Before they ever left the hotel?
WALLS, MR: The doors - they have been pushed out of the doors, they have gone down to the bottom of the stairs. There's a doorman at the top of the stairs and they are at the bottom?
HIS HONOUR: It is said you were motioning to fight?---No. No, your Honour.
What does that mean?---I have said challenging, threatening to fight.
What does it mean? What is he supposed to have done?
WALLS, MR: Calling out that you wanted to fight the doorman?---No, that's incorrect.
WALLS, MR: Do you recall Mr Marshall behaving in an aggressive manner and pointing his finger?---No, I don't.
...
HIS HONOUR: What is said to be aggressive? The pointing of the finger is it?
WALLS, MR: No, just aggressive.
HIS HONOUR: Right. Anyway, the witness doesn't recollect.
19 These interventions were unnecessary and no doubt distracting to counsel. However, worse was to follow. The general tenor of the witness's evidence was that after he was hit he had no recollection of any matter. Counsel was putting a version of events to him, arguably in conformity with the rule in Browne v Dunn (1893) 6 R 67 HL, when the magistrate intervened:
HIS HONOUR: Look, what is the point of this? Are you suggesting that by saying he can't recollect that he is not telling the truth?
WALLS, MR: Just need to get down to the specifics. I am not saying he is not being truthful.
HIS HONOUR: Right, well if he says he can't recollect he can't recollect. What is the point of putting propositions to him if he can't recollect? If you accept that he can't recollect then that is what it is, he can't recollect. (ts 23)
20 Counsel should not have been asked at that point to specify what his ultimate submission as to the witness's evidence might be. He was in the middle of a cross-examination and entitled to explore the issue of the witness's lack of recollection.
21 A young lady of 18 was an independent eyewitness to the events in question. She gave her evidence clearly in examination-in-chief. The cross-examination barely commenced when the magistrate started interrupting:
HIS HONOUR: Don't recall what?---Well, basically I saw what I saw and I am giving direct evidence.
Yes, that is all you are required to do, okay. Just listen to the question. If you've got any doubts about what the question means get it clarified before you answer.
WALLS, MR: You are - - -
HIS HONOUR: Speculating means you are guessing?---No.
(indistinct) suggesting you are just guessing?---No, I am not guessing in this case, your Honour.
WALLS, MR: So, are you guessing from the blood on the face that there were a number of punches, or did you specifically see a number of punches at the bottom of the stairs?---I specifically saw a number of punches at the bottom of the stairs.
Okay. How many punches did you see at the bottom of the stairs?---I don't know.
HIS HONOUR: If you were given a choice say between one and two, or six or eight, or 10 or 12. You know, have you got some idea?---Well, because he was punching basically like that, so he was doing right to left. He was doing a combination hit, I would guess to begin with, on the bottom of the stairs, around 12 at least. (ts 31 - 32)
22 Counsel was not given any opportunity to explore this lack of knowledge and the reasons for it before the magistrate jumped into the fray, asked a very leading question and rehabilitated the witness in advance of any cross-examination on point. In her examination-in-chief the witness had said, 'There was more punches than kicks, but I can't tell you how many' (ts 29).
23 Counsel asked, 'That was prior to being dragged away off the video?---That's correct':
PROSECUTOR: I would ask - - -
HIS HONOUR: No, no. That is not so. It's not a fair comment.
WALLS, MR: With respect this witness.
HIS HONOUR: Yes, this witness can only tell you what she observed.
WALLS, MR: Yes, yes. I am confirming that that is prior to being dragged off the video.
PROSECUTOR: This witness wouldn't know when?
HIS HONOUR: That's correct. That's the very point that I am making. Sorry, what is that performance all about, Mr Walls?
PROSECUTOR: Your Honour, the answer is being suggested to the witness.
HIS HONOUR: Mr Walls - just a minute please. Just a minute please. You as counsel want to raise an issue, then raise it properly. I don't want to see pens thrown on desks and histrionics. It's not appropriate for counsel to do that. Now, I raised the issue, in my view quite properly, because this witness is probably totally unaware of what the video shows. She speaks about the bottom of the stairs. That is something that may well need to be clarified.
WALLS, MR: Your Honour, for the purposes of the transcript - - -
HIS HONOUR: Now, don't interrupt me, Mr Walls.
WALLS, MR: I apologise, I thought [you] had finished.
HIS HONOUR: So, if you want to show the witness the video then that will be done. If you want to ask the witness questions she can respond. Now, what is your problem?
WALLS, MR: I would point out, your Honour, with the greatest respect, that it was an entirely fair question for me to ask the question and to confirm that those 10 to 12 punches were prior to being dragged off round the corner.
HIS HONOUR: You agree with that don't you?---Look, to begin with, yes. Then he - - -. (ts 32 - 33)
24 The magistrate's intervention was not only unnecessary, it was wrong. This became clear later in the cross-examination. The witness had seen the surveillance footage at the police station after giving her statement. So her answer to the question, 'That's correct' was an answer that she was capable of giving. The magistrate then continued:
HIS HONOUR: If I raise an issue for clarification I don't expect to be challenged in a sense by you. Is that understood?
WALLS, MR: I am not challenging your Honour.
HIS HONOUR: Right, thank you. Now, when we get round to asking questions just listen to the question. Assert if there is anything you need clarified. Ask for it to be clarified?---Yep.
Or cleared up before you respond to the question. So what is your next question, Mr Walls?
WALLS, MR: I think it's been clarified already, your Honour. I think the witness accepts that that was prior to my client purportedly dragging the victim around the corner. (ts 33)
25 The magistrate blurred the meaning of clarification when addressing counsel. A judicial officer taking notes and absorbing testimony might ask a question to clarify some matter for their own benefit. Then again, if a judicial officer observes that a witness is obviously confused by a question, there might be an invitation to counsel to clarify the question for the witness. In this case, the answer suggested the witness clearly understood the question and had responded appropriately to it. She seemed a capable witness and quite able to look after herself in court. The cross-examination was well within the bounds of propriety.
Intervention after the security footage was shown
26 After the security footage was played, counsel asked:
When you referred in your evidence to Mr Wragg dragging the victim were you referring to the point of time when he goes from the surveillance footage to off the surveillance footage? (ts 35)
27 The witness started to answer but, before she could complete her answer, the magistrate interrupted saying:
[I]n fairness put the videotape on again ... Then the witness might understand precisely what you mean. (ts 35)
28 The magistrate then told the witness what to concentrate on. There was nothing unfair in counsel's question. As the witness did not have a chance to answer, no one can tell if she wanted the security footage replayed to clarify anything. The magistrate simply took over the cross-examination yet again and asked several questions before counsel was able to continue. Counsel asked:
Do you agree as the victim is leaving the screen that the person is getting up to their feet? It appears as though the person is getting up to their feet and that Mr Wragg has hold of them by two hands? (ts 35 - 36)
29 The witness gave a non-responsive answer and counsel said:
WALLS, MR: Just listen to the question.
HIS HONOUR: She just answered it, I thought. (ts 36)
30 Counsel asked a question which could possibly have grounded a submission in due course as to partiality by the witness. The question concerned a break-up of a relationship with a young man. The prosecutor started to intervene but the magistrate said:
HIS HONOUR: Well, I don't know what this has to do with things, but sergeant, I will wait for another couple of questions?---It was actually mutual.
Okay. So how long prior to this was this bit of a break up?---To be honest, I don't think the break-up was anything to do with what happened that night.
Neither do I?---No. (ts 38)
31 Counsel then suggested that the witness never saw the assault occur and that she was making it up. After a negative answer was given, the magistrate said:
HIS HONOUR: I presume you are suggesting she is making it up because of the break-up with the boyfriend?
WALLS, MR: Yes, your Honour. Also in relation to you are a partner of a Cody Nicholls. Is that correct?---No. That is wrong.
Were you?---I was back - - -
At around this time?---No.
HIS HONOUR: What does partner mean to you? What is a partner?---A partner to me is a boyfriend. Cody Nicholls, I was seeing him actually when I moved to Mandurah a year ago. I started seeing him for about around five months. We were on and off. I know that Adam - - -
I have no intention of listening to questions of this kind.
32 The magistrate then appears to have changed his mind because he said:
[P]erhaps I should let you ask a few more questions if you suggest this is an issue of real importance. It appears to me that it's not, but if you suggest it's a matter of real importance then put the propositions to the witness. (ts 39)
33 While the magistrate allowed counsel to continue, he had clearly signalled to the witness and Mr Wragg his view on the irrelevance of the material. The effect of his constant interruptions was to distract counsel from the orderly flow of a cross-examination. There was another unnecessary comment:
WALLS, MR: Now, Ms Hollins, you have seen this video?---Yes.
HIS HONOUR: Today. Of course she's seen it today. (ts 39)
WALLS, MR: The question I need to ask - the proposition I need to put to you is that from where you were seated you can't see down the street to where you say Mr Wragg was?---I stood - there is a railing and they've got the little - wires there. I stood up to look over. I looked over and you can see me standing there on the surveillance. I had full view of what was happening, because there's - if I was sitting there I couldn't see as much as I could. I didn't see the contact at the top of the stairs. All I saw was him - - -
HIS HONOUR: You have answered the question, I think.
WALLS, MR: Your Honour, if we can perhaps just play the video. I just want to - - -
HIS HONOUR: For what reason?
WALLS, MR: I just want to have the witness explain where she says that she was peering over the top of.
HIS HONOUR: You are suggesting to the witness that as - this is part of the you didn't see it. You are making it up scenario, is it?
WALLS, MR: No, this is that she didn't have a view, as she described it being - - -
HIS HONOUR: She says she did?---I told you I didn't see the contact at the top of the stairs.
(Video played)
Okay. So we walk up.
WALLS, MR: Yes?---No, that is not - yes that is us, sorry. That is me walking back. I sit down with my sister. Then I move towards - my sister walks down the steps. I move towards over there to get a full view of what I was seeing.
...
HIS HONOUR: All right. So any questions on that, Mr Walls?
WALLS, MR: Do you agree that you remained at the top of the stairs?---Yes.
Okay. You - - -
HIS HONOUR: Obviously you didn't stay there for the whole of the incident, did you?---No.
WALLS, MR: At the point in time the victim was dragged off around the corner, you were viewing this from the top of the stairs?---That's correct.
HIS HONOUR: So, are you again suggesting she wasn't able to see what she claims she saw?
WALLS, MR: Yes. Your Honour, if I can just please - if I can just have the opportunity to put the question I would.
HIS HONOUR: Well, you appeared to be going on to other things. You appeared to me to have left that entirely.
WALLS, MR: No.
HIS HONOUR: If you want to ask further questions then off you go. (ts 42 - 43)
35 The magistrate's comment 'You are suggesting to the witness that as - this is part of the you didn't see it. You are making it up scenario, is it?' is an entirely inappropriate comment at that stage of the proceeding. Also it seldom helps a trial for counsel to be cross-examined from the bench as to the direction counsel is going. These are matters for submission at the conclusion of the trial. A judicial officer might then accept or reject the submission. However, justice is more likely to be done if a court sits quietly letting the evidence unfold and be absorbed rather than second guessing counsel at every step.
36 Mr Astill conceded that if I made a finding of fact that the magistrate's interventions allowed the witness to rehabilitate herself in relation to the inroads that counsel made or was attempting to have made into her credibility then the prosecution would concede a miscarriage occurred by virtue of that fact.
37 I do make that finding together with a further finding that the intervention gave rise to a real unfairness. The cross-examination was repeatedly interrupted by the magistrate for no good purpose.
38 Mr Wragg's evidence had barely started when he said, 'Through the night we were informed, by waitress staff, that - - -'
HIS HONOUR: It doesn't matter what you were informed, what did you do as a result of what you were told?---Pardon, your Honour. (ts 47)
39 A judicial officer is trained to ignore the irrelevant and inadmissible. By itself, the intervention may have been harmless but it must be seen as part of the conduct of the magistrate and with what came next. Counsel then asked:
WALLS, MR: What occurred next?---The defendants tried to gain entry to the bar, which they were told, or refused to enter.
HIS HONOUR: Who told them?---One of the bouncers.
Were you there?---I was part of the group, but I had to maintain the door.
HIS HONOUR: Well, will you make sure, please, your client confines himself to telling me what he did as distinct from what he has been told by others. Because clearly to this point in time he seems to be talking more about what others did than he did.
WALLS, MR: Your Honour - - -
HIS HONOUR: Well, you know what I've said.
WALLS, MR: May I submit to your Honour that he can - - -
HIS HONOUR: Just elicit his evidence, please.
WALLS, MR: Yes, of course.
HIS HONOUR: If it appears to me that he is reliant upon what others tell him I will certainly intervene. (ts 48)
40 The magistrate gave counsel no opportunity to make a submission about the evidence. Mr Wragg may have overheard the bouncer speaking directly to the victim. No one can know because of the magistrate's precipitous intervention. Significantly, there was no objection raised by the prosecutor. The magistrate took it upon himself to object to the evidence and uphold the objection.
41 What then happened is remarkable. The magistrate took over the examination-in-chief. Counsel asked, 'What did you hear in relation to what was in the bar?' and then the magistrate started eliciting evidence (ts 48 - 50):
42 This last question led to a lengthy answer and counsel was able to regain control of his witness.
HIS HONOUR: You say that he ran away?---I can see what - when he got knocked down.
But I made a note of what you said earlier. You said, 'He ran away'?---I don't know, he must of. (ts 56)
WALLS, MR: You participated in an interview with him?---Yes.
Is what you told him the truth?---Yes.
HIS HONOUR: Hardly much point in putting a proposition like that is there?
45 This last intervention, like many others, was unnecessary and formed part of the general impression that Mr Wragg must have had about the unfairness of his trial.
46 At the start of cross-examination the prosecutor set the scene that there were four gentlemen having a meal and as a result a security guard, Mr Marshall, approached them. The prosecutor then put a long question with three propositions:
PROSECUTOR: I put it to you that that is incorrect and, in fact, the person that was approached by your security staff was the gentleman by the name of Lincoln Simmonds. He was the one that was grabbed by one of your staff and started to be escorted out of the premises?---Yes. (ts 57)
47 Instead of intervening to ask the prosecutor to rephrase the question as he had done when defence counsel was cross-examining, the magistrate compounded the ambiguity by asking: 'Well, do you agree or don't you?'
48 The magistrate had earlier stopped Mr Wragg from giving hearsay evidence about what one of the waitresses told him. However, the prosecutor opened up the issue in cross-examination:
PROSECUTOR: Well, I'd suggest that was - only one person was told and that was Mr Lincoln Simmonds, because he was the one that was approached by your staff, and he was the one that was grabbed by the arm?---He was the one that was approached at that time, but he was not the one told prior, in the restaurant. The whole group was told.
You don't know that for a fact, do you?---I do know that for a fact.
Well, you didn't do it?---I didn't need to do it. One of us - one of our guards was asked to by one of the waitress staff.
HIS HONOUR: Which means you saw nothing in the restaurant did you?---I didn't see nothing in the restaurant.
You didn't hear anything in the restaurant, did you?---No, but we were told.
All right, then. That is exactly the point. Yes. (ts 57 - 58)
50 The prosecutor was doing fine by himself. He did not need assistance from the bench.
PROSECUTOR: It is your evidence that Mr Marshall and Mr Simmonds, and I will get to Mr Simmonds in a minute, were, by their body language, indicating to you that they wanted to have a fight. To take you on?---Yes.
You are saying that the body language was hand gestures?---Facial expressions. Verbal assault.
Well, let's deal with the hand gestures. You are saying that by the hand gestures. The video footage that we have just seen prior to Mr Marshall coming up the stairs the second time, show not only Mr Marshall but Mr Simmonds with their hands in their pockets, down here.
HIS HONOUR: Do you agree with that or don't you?---I don't agree. Can I see the footage again?
Well, I saw it and it's plain as day that Marshall has his hands in his pockets at the bottom of the stairs. I can't say, of course, for what period of time. But do you accept he had his hands in his pockets or don't you?---At a point in time, yes. I accept it.
PROSECUTOR: I put it to you that at that point in time, in between the time of Mr Marshall coming down the stairs and then going back up the stairs, Mr Simmonds has his hands in his pockets as well. So, where do you say this body language came from?---From what I saw. They may have had their hands in their pockets at a point in time, but at other points in time fingers were pointed.
HIS HONOUR: Simmonds doesn't have his hands in his pockets all the time. You can see he makes a hand gesture. (ts 59)
52 At the conclusion of cross-examination the magistrate asked the prosecutor:
Can you just take him through what Hollins said, please? It's just left up in the air, basically. I know you put it in general terms. I want you to put it a little more specifically. (ts 63)
53 At the end of Mr Wragg's testimony, the magistrate raised an issue about a comment made on the DVD. He said that Mr Wragg had made the comment, 'First defence is attack' (ts 65). Mr Wragg denied it. The DVD was played.
HIS HONOUR: Mr Walls, you have had an opportunity of listening to the tape, I believe?
WALLS, MR: Please, your Honour, I have.
HIS HONOUR: So that was my question, what does that mean? First defence, attach [sic]?---I don't understand.
Well, those are the words you used. I heard you say them, that is why I wrote them down. Counsel heard you say it?---I just don't understand what context it was in. I don't - - -
You were watching the video and - - -?---What did I say after?
You said, 'First defence, attack'?---Attack. Did I continue on with the sentence, because I - - -
It was a comment made. Clearly the other parties didn't hear it.
WALLS, MR: It was - - -
HIS HONOUR: Hang on, please. I don't want to be interrupted. You said those words. So, does it mean anything to you?---No. I don't understand what that was all said. (ts 66)
54 There is no question that if the magistrate thought he heard something on the surveillance footage that he regarded as important, he should have raised it with counsel. However, the way in which it was raised and dealt with by the magistrate precluded any realistic opportunity for the witness to consider or explain.
55 Mr Prout was a defence witness. Hardly had his evidence commenced when the magistrate took control of the examination again with the following questions (ts 67 - 68):
56 In the course of cross-examination the following occurred:
PROSECUTOR: If I was to put it to you that that person that was being argumentative and actually had to be physically removed from the premises, he wasn't one of the two gentlemen that came back to the Brighton an hour later, was he?---No, that's right.
I put it to you that the other gentleman, or as you say, the other two, and I put it to you that there was three, all they really wanted to know as - - -
HIS HONOUR: You are putting to him there were four?
PROSECUTOR: Pardon, sir?
HIS HONOUR: Three. You said three.
PROSECUTOR: He believes there are three but I am saying there are four.
HIS HONOUR: Yes. You put it to him there were three. So [you] made an error. (ts 70)
57 If the witness was unclear, he could have asked the cross-examiner to clarify. Instead the magistrate helpfully pointed out the prosecutor's mistake so he could correct it.
58 The magistrate did not stay out of the fray for long:
HIS HONOUR: Okay. You just said they were aggressive before anyone was touched. So what were they doing that was aggressive?---Excuse me? I said that they became aggressive once we were removing him.
No, you said they were aggressive and then you went on and said, 'We began to remove one by taking hold of him. They then began to intervene and got aggressive'?---Yes.
You said they were aggressive before anybody - - -?---The individual that was removed. I said earlier that he became aggressive. That is why he was forcibly - - -
(indistinct)?---Refusing to leave. Become rowdy. Making a scene. (ts 71)
59 Judicial officers, lawyers and police prosecutors might understand the subtle rules governing examination and cross-examination of witnesses. They might observe that the examinations of Mr Wragg and Mr Prout by the magistrate were non-leading questions in neutral form. So much can be accepted. However, the impression of the trial must be gleaned from the point of view of an impartial lay observer and also from the view point of the person whose trial this was.
60 They both would have heard repeated interruptions when defence counsel was cross-examining the prosecution witnesses, 'interspersed with questions addressed to the witness to clarify matters'.
61 They would have heard the magistrate take over the questioning of the defence witnesses from counsel and pose questions in cross-examination appropriate from a prosecutor but partisan from a judicial officer. Neither an independent lay observer nor Mr Wragg could have reasonably felt this was a fair trial.
62 An appeal court is slow to set aside a conviction because the trial was in some respects less than fair. But there is a duty to do so when the conduct of a judicial officer has so skewed the balance that justice miscarried. Regrettably, this is what happened.
63 The conviction is quashed, the fine set aside, and the matter remitted to the Magistrates Court for retrial.
Browne
Dunn