The applicant was charged with common assault in that on 2 July 2013 at Ulverstone he grabbed Stacey Taylor by the throat and held a knife up and pointed it towards her throat. A second charge of breach of a family violence order refers to the same alleged conduct as amounting to a breach of the order.
The prosecution case consisted of the evidence of the complainant, the complainant's mother Tracie Mott, some text messages between the complainant and the applicant, and the applicant's police interview. The applicant was the sole witness for the defence. The complainant and the applicant had been in a relationship and were estranged. He had moved out of the family home a few days beforehand. The prosecution case was that the applicant had attended the family home to retrieve money taken from his bank account by the complainant and, in the kitchen, had assaulted her. The complainant gave evidence as follows.
On 2 July the complainant received a text message from the applicant asking if she had taken money out "of his bank account" and she replied, "Yes", and later, that she did so because he took her canvasses.
Shortly after that text the applicant "turned up". She opened the door and he barged in. He asked where his money was and began going through her bag and wallet. He called the complainant a slut.
The applicant picked up their young child and took her to her bedroom.
He came storming back, grabbed a knife and came up to her, and was leaning over the kitchen bench. He held the knife up and held her throat and said, "I want to put this knife to the back of your throat." He held the knife approximately 3-4 inches away from her neck. He had hold of her in that position for probably 15 seconds.
The complainant said she was scared and was trying to calm him down. He stayed most of that afternoon and they argued the whole time.
Her mother arrived at the house and stayed for a few minutes. During that time she mouthed, "Are you okay?" to the complainant.
The complainant received text messages from the applicant later that evening.
Later, the complainant had a conversation on the phone with the applicant's sister, Melinda, during which she told Melinda what had happened and that a knife had been held to her throat. The complainant's mother overheard that conversation. The complainant had a conversation with her mother about what she had said on the phone.
In cross-examination it was suggested to the complainant that the applicant did not come to her house that day and did not hold a knife to her throat. She disagreed. The complainant's mother, Tracie Mott, gave evidence that on 2 July in her lunch hour, she went to her daughter's house. The applicant was at the house and the complainant had been crying, her eyes were red. Ms Mott whispered, "Are you okay?" to the complainant. One to two weeks later, she overheard her daughter having a telephone conversation. Afterwards, she asked what had happened and the complainant said that the applicant had held a knife to her throat on 2 July. In cross-examination it was suggested that her evidence about the incident on 2 July was a fabrication and she had conspired with her daughter in giving a false account. She disagreed.
In the applicant's record of interview on 31 July 2013 the allegation regarding the knife was posed, with the suggestion that it had happened on 3 July. He denied going to the house on that day, and said he had not been back to the house except for one occasion to take his belongings.
The applicant gave evidence and agreed that there had been an exchange of text messages regarding money being taken from his account for the canvasses. He denied going to the house that day.
The magistrate gave an ex tempore decision after the evidence closed. Essentially, his reasons were as follows. The central issue was whether he could be satisfied beyond reasonable doubt of the accuracy and truthfulness of the evidence of the complainant and that the incident occurred. He was so satisfied because:
the complainant gave evidence in a persuasive and convincing way which was not undermined by cross-examination; and
her evidence was corroborated by:
her mother, who gave an internally consistent account; and
the text messages which strongly suggested that the applicant was at the house and there had been interaction on 2 July, and were consistent with the incident described by the complainant.
The applicant was convicted and sentenced to a term of 8 months' imprisonment. He was admitted to bail pending the filing of a notice to review and has been on bail since.
[2]
The applicant relied on three affidavits in order to demonstrate that a rehearing was in the interests of justice. One of the affidavits was from the applicant, one from his sister, Melinda Batten (referred to as Melinda Coppleman in the particulars of this ground of review), and one from his father, Ross Coppleman. The legal practitioner representing the applicant at the hearing filed an affidavit in response. All affidavits were admitted de bene esse and the deponents were not cross-examined. The respondent's counsel agreed to the affidavits being admitted on that provisional basis, with the rider that he reserved his position as to whether, at a rehearing, some of the evidence may be objected to as inadmissible.
It is evident from the applicant's affidavit that the substantive complaint was that he had informed his legal practitioner that his father and sister were available as witnesses, but they had not been called. There was a grievance about text messages and the transcript of his police interview not being made available to him in advance of the hearing. He did not assert any particular consequence arising from the failure to provide him with the transcript of the police interview, such as a lost opportunity to object to it being admitted. He said that, when he was cross-examined, he found it difficult to follow the text messages because he had not been provided with a copy prior to court. In the applicant's affidavit, he said that he showed his lawyer a video recording of his sister speaking to the complainant. Further, he said that he arranged for his father and sister to both attend court on the day of the hearing.
The applicant's sister, Melinda Batten, gave details in her affidavit of a phone call from the complainant, alleging that her brother had held a knife to her throat. She said that, during that call, the complainant said that, "Paul will learn respect", that she would send him to gaol and that, "Paul fucking did hold a knife" to her and that this occurred at Jungle Gyms. Later in this conversation, the complainant said that the applicant held a knife to her at her house over a kitchen bench, and later, said it was while she was leaning back over a couch. Part of the conversation was recorded by Ms Batten's daughter using her mobile phone. She arranged for a copy of that recording to be sent to the applicant. She attended court on the date of the hearing but was not spoken to by the applicant's lawyer.
The applicant's father provided an affidavit in which he gave an alibi account. He stated that there was an occasion when his son was upset that the complainant had taken all of his money from his bank account. They had a conversation about the applicant speaking to the police. The applicant was at his house for a few hours from a time before 12 noon on that date. On a different date, he had gone with his son to the complainant's home to help him collect his property, and the complainant was not present. He was not spoken to by the applicant's lawyer when he attended court on the date of his son's hearing.
The legal practitioner provided an affidavit in which he stated that he remembered receiving instructions, but could not recall the detail of them, and he did not make many notes. The applicant had shown him a mobile phone with a video recording of his sister and the complainant. He could not recall whether he was instructed to call the two witnesses, Melinda Batten and Ross Coppleman. He stated that, as best he could recall, he decided not to call Melinda Batten because it was contrary to the applicant's account, being a denial of holding a knife to the complainant's throat. He formed the view that her account only reinforced the police case. In his affidavit he did not mention her assertions that the complainant gave inconsistent versions about the incident.
In his affidavit, the legal practitioner did not explain why he did not call Ross Coppleman as a witness at the hearing. I note the particulars of the two charges in original form provided that the date of the alleged assault was 3 July. In preparing for the hearing, the practitioner had made inquiries with another alibi witness with respect to the applicant's movements on 3 July, but that was unproductive. On the morning of the hearing, the particulars were amended to 2 July. In his affidavit, he did not suggest that he considered calling Ross Coppleman as a witness, or that he was aware he could give alibi evidence, or knew that he was available at court to give evidence. As for the text messages, he stated that he rang the applicant about the text messages after they were delivered, but he did not go through them in detail before they were tendered to the court. It was unclear on the affidavit whether he went through them at all.
[3]
In relation to the decision made by the legal practitioner not to call Melinda Batten as a witness, there is limited detail in the affidavit material about what was disclosed to him about the evidence she could give to enable a scrutiny of that decision. There is an apparently rational reason for not calling her, although, depending on the full circumstances, minds may differ about that decision. As for the text messages, it seems that the defendant was not as well prepared for cross-examination as he might have been if he had had the chance to consider the messages. However, in the circumstances of this case, I do not regard that as an irregularity of the kind that could have given rise to a significant possibility of a miscarriage of justice.
The potential alibi evidence falls into a different category. There is the prospect that, if accepted, and if regarded as accounting for the applicant's whereabouts and providing an alibi covering the relevant period when the applicant was said to have been at the complainant's house, it would lead to an acquittal. The impact of this evidence would, of course, turn on the court's assessment of it and considerations such as the detail of the witness' evidence regarding his observations and the credibility and reliability of the witness. All of these matters are best considered in the context of the hearing of the complaint, rather than in these proceedings.
The applicant's legal practitioner did not give consideration to the alibi evidence and calling Ross Coppleman as a witness. Whilst there may be a reason for his failure to consider this evidence, given the late amendment to the complaint and that he may have been taken by surprise, the situation is that he did not make a decision about the alibi evidence, rational or otherwise, or even advert to it. I regard this as being an omission by counsel which carries with it the significant possibility that it affected the outcome of the trial. The case may have been conducted in a way that was productive of injustice. In these circumstances, I am satisfied that it is in the interests of justice that the application for a hearing de novo be granted.
[4]
An order that the complaint be heard de novo shall be made. The orders of conviction and sentence ought to be quashed to enable that hearing to proceed. Further, pursuant to s 111(8), I consider it expedient that the complaint be reheard by a magistrate, rather than take place in this Court.
Accordingly, I make the following orders: that the orders of conviction and sentence made against the applicant on complaint 53074/13 be quashed. Further, that the complaint be reheard de novo by another magistrate on a date to be fixed.
Parties
Applicant/Plaintiff:
Coppleman
Respondent/Defendant:
Godfrey [2014] TASSC 60
Legislation Cited (3)
Review Act 2000
Appeals Regulation Act 1855
Justices Procedure Act 1919
Cases Cited (16)
Coppleman v Godfrey [2014] TASSC 60 (14 November 2014)
I proceed on the basis that the ground of unsafe and unsatisfactory in this case, dependent as it is on extraneous material and amounting to a grievance about the conduct of the trial by counsel, falls outside s 107(4). It does not explicitly or impliedly assert an error of fact or law on the part of the learned magistrate. There are two reasons why the ground in this case falls short of such an assertion. The ground of unsafe and unsatisfactory on its face does not coincide with the statutory test that governs the review in s 107(4), because it does not contain an assertion of an error or mistake of fact or law: Hadju v Brown[2007] HCATrans 245 (24 May 2007); Phillips v Arnold[2008] TASSC 6; (2008) 17 Tas R 199. Nevertheless, it is acknowledged that "unsafe or unsatisfactory" considerations may still be relevant to the ultimate question of whether the magistrate was in error: Smith v McDonald[2010] TASSC 26. There is a further difficulty with meeting subs (4) in that, as I mentioned, the ground is dependent on extraneous material not before the learned magistrate. There is compelling authority for the proposition that error that is disclosed by such material is not "an error or mistake on the part of the justices": Green v Fletcher [1988] Tas R 59, Webster v White[1991] TASSC 75, per Zeeman J at [15], Traynor v McCullagh(2011) 218 A Crim R 177. This kind of error, sometimes referred to as "unwitting error", is not captured by s 107(4). The applicant has not raised any matters of principle or referred to any authorities that would cause me to doubt that well established proposition. This leaves two questions for determination.
In Webster v White (No 2)[1991] TASSC 80, Zeeman J considered an application seeking an order pursuant to s 111 that the same complaint be heard de novo. His Honour was concerned with three grounds of review which alleged an error in law and/or in fact. At least two of the grounds relied on the materials before the magistrate and not unwitting error. Zeeman J at [1] provided:
Counsel for the respondent relies on the statement of his Honour that "It is a prerequisite for validity that the notice to review set forth as a ground an allegation of the type referred to in s107(4)" as being a definitive statement of the effect of the legislative scheme.
In H v Williams[1995] TASSC 33, Zeeman J considered an application for an order that there be a hearing de novo. He set out the history of the legislative scheme and made remarks about the effect of the scheme and the linkage between ss 111 and 107(4):
I note for completeness that a recent decision of Blow CJ in BCD v Secretary, Department of Health and Human Services[2014] TASSC 53 considered an application for a hearing de novo pursuant to s 111, but the notice to review asserted errors on the part of the magistrate falling within s 107(4) and there was no reason to examine the issue that arises here.
The applicant relies on a judgment of Tennent J in a decision of this Court in Nilsson v McDonald[2009] TASSC 1 at [2] and on appeal to the Full Court, the judgment of Blow J (as he then was) in Nilsson v McDonald[2009] Tas R 173 at [62]. Tennent J considered the application for a hearing de novo in a case involving unwitting error, being incompetence of counsel and the failure of counsel to tender documents. Her Honour resolved the application on the basis that the case did not require an exercise of discretion in favour of the application. Blow J assumed, for the purposes of the appeal that such a ground could be a sufficient basis for a judge to order a hearing de novo. The applicant might draw some comfort from the approach taken in each instance, but notably, the point was not decided. The assumption was made without reference to the contrary line of authority and the ground of unwitting error was one of a number of grounds of review; there were others that fell within s 107(4). At least, the point can be made that the notion that s 111 may operate in a way that is detached from s 107(4), while not determined, was not rejected out of hand. However, the contrary line of authority seems to stand in the way of such a conclusion and I now consider that in more depth.
In construing the provisions I should have regard to the ordinary and grammatical meaning of the words in the section, noting their context and the legislative purpose. Context has a wide meaning and includes matters such as the mischief which the statute was designed to overcome: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[2009] HCA 41; (2009) 239 CLR 27, per Hayne, Heydon, Crennan and Kiefel JJ at [47], and per French CJ at [4]. Inconvenience or improbability of result may assist the court: CIC Insurance Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384 at 408. I am conscious of the statutory direction to prefer a construction that would promote the underlying purpose and object of the section in question: Acts Interpretation Act1931, s 8A.
I begin by noting that the language of the statute does not suggest that compliance with s 107(4) is a pre-condition to the operation of s 111. The words of s 111 do not expressly require compliance with s 107(4). All that is required is a notice to review.
A consideration of the text reveals with clarity that s 111 caters for grievances that are not recognised by s 107(4). It is evident from these provisions, particularly s 111(5)(b), that error that is disclosed on materials that were not before the magistrate may, depending on the facts, be sufficient to warrant an order. The effect of s 111(5)(b) is that if the applicant was not represented by counsel, and evidence available at the time amounting to a substantial ground of defence was not then adduced, the court may make an order for a hearing de novo. As such, s 111, in its sphere of operation, can apply beyond the reach of s 107(4). The purpose of s 111 is not harmonious with an interpretation that compliance with s 107(4) is a pre-condition to its operation. Requiring an assertion of error is at odds with s 111, which identifies broader concerns of the interests of justice.
An interpretation that s 107(4) is not a prerequisite to an application under s 111 is not at odds with the mischief identified in the second reading speech, of affording flexibility to allow a notice to review to be converted to an appeal by way of rehearing. It accords with the statutory purpose of retaining the right to an appeal by rehearing, once absolute, and now allowed if required in the interests of justice.
I adopt the same approach, that the interests of justice test is met if a miscarriage of justice has been shown.
In Braslin v The Queen[2000] TASSC 133, Blow J (as he then was) considered whether there had been a miscarriage of justice under the Criminal Code, s 402(1), and a ground of appeal concerning the performance of defence counsel. His Honour at [6] referred to the judgment of Gleeson CJ in R v Birks(1990) 19 NSWLR 677 at 685 summarising the principles relevant to such appeals:
Blow J went on to note that it is well settled that those principles are applicable in Tasmania: Philpott v The Queen[1996] TASSC 57; Blake v The Queen[1997] TASSC 30.
The High Court has emphasised that the question of whether there was flagrant incompetence by defence counsel or egregious error or some other reason for the omission is relevant but as a subsidiary question to the ultimate question of whether what occurred or did not occur at the trial led to a miscarriage of justice: TKWJ v The Queen[2002] HCA 46; (2002) 212 CLR 124, per Gaudron J at [31], McHugh J at [75], [79] and [97]. If the court concludes that, despite the wide discretion that resides with counsel in conducting the trial, a material irregularity has occurred, and if there is a significant possibility that the irregularity affected the outcome, then a miscarriage of justice will have occurred: per McHugh J at [77] and [97]. In this context the question of whether the interests of justice require a rehearing should be answered in the affirmative if, as a consequence of the conduct of the defence, there was some material irregularity and there is a significant possibility that the outcome of the hearing was affected.
The respondent does not consent to a hearing de novo but submits that the Court will need to be satisfied that the alleged incompetence of the legal practitioner was to the degree as discussed in Braslin per Blow J at [6].
(2002) 212 CLR 124
(2008) 17 Tas R 199
(1998) 194 CLR 355
(2009) 239 CLR 27
(1987) 187 CLR 384
(1990) 19 NSWLR 677
On the related matter of whether non-compliance with s 107(4) leads to invalidity of the notice to review, I note that the legislative scheme allows for flexibility and wide powers of amendment. On the hearing of a motion to review, the Court has comprehensive power to amend grounds, including a power to strike out and add new grounds: s 108. This suggests that the legislative concern is with enabling the Court to deal with the application despite formal defects. A notice that does not identify error within s 107(4) can be amended and thus, it would seem, formulation of the grounds is not critical to validity of the notice.
The requirement for error in s 107(4) is not a mere threshold criterion for the bringing of a motion to review. It provides the statutory test of error of fact or law that governs the review: Phillips v Arnold (above) at [10]. This test is heavily laden with authority. On a review, the question is whether, upon the evidence, the magistrate might, as a reasonable person, come to the conclusion to which he or she did come: Richardson v Shipp[1970] TASStRp 6; [1970] Tas SR 105, Burbury CJ at 117. It is to be contrasted with an appeal by way of rehearing: Phillips v Arnold (above) at [10]; Australian Securities and Investments Commission v Hosken (No 2)[2000] TASSC 12, per Cox CJ.
The interpretation that compliance with s 107(4) is essential to the operation of s 111 leads to an improbable result. The consequence is a complete disconnect between the requirement in s 107(4) to assert error of fact or law, or lack of jurisdiction, and the practical outcome of an application for a de novo hearing when a new hearing of the complaint results and the issues are at large. The requirement would be for an assertion which, upon rehearing, disappears and is not ever determined. It is both pointless and unsatisfactory. The result would be a statutory scheme that would require identification of a specific error but not lead to a resolution of the identified grievance. I am most reluctant to attribute that intention to Parliament without clear words, which, in my view, are not present.
Further, the potential consequences for applicants of invoking s 107(4) in this way are arbitrary and unjust. An aggrieved party who files a notice to review with an unmeritorious assertion of error of fact or law, and a meritorious assertion of unwitting error, may apply for a hearing de novo, but not an applicant who files a notice to review with only a meritorious assertion of unwitting error.
Finally, if it is thought that s 107(4) provides a filter to a second contested hearing, then it is a filter of most dubious benefit. A mere assertion is not an effective filter, for the reasons identified by Zeeman J in H v Williams (above). In any event, there is an entirely effective and robust filter residing with the Court, and that is the interests of justice.
It is plain, in my view, that for the purpose of an application for a hearing de novo pursuant to s 111, compliance with s 107(4) and identification of a ground or grounds of the type specified within that provision, is not a prerequisite. In this case, therefore, there has not been non-compliance with an essential statutory requirement. It follows that the fact that the grounds of review do not amount to an assertion of error on the part of the magistrate within the terms of s 107(4)(a) could not, and do not, render the notice invalid.