Darryl Andrew Hanel v Joel Shoemark [2010] ACTSC 67

Supreme Court of the ACT|2010-07-15|Before: Refshauge J

2. The conviction and sentence of the Magistrates Court made on 13 October 2009 be confirmed.

1. Darryl Andrew Hanel, the appellant, appears for himself as he did at the trial before the learned Magistrate of the charge against him of damaging property.

2. While he is, of course, entitled to do so, the presentation of his case may be hampered by him doing so. The court is obliged, and rightly so, to ensure that the trial is fair but can rarely make up for deficiencies caused by matters such as lack of evidence that may assist the litigant's case, lack of effective cross-examination to weaken or undermine the case for the other party or case preparation with an appropriate case theory that can assist in the effective presentation of the case at trial.

3. Here, Mr Hanel was emphatic that he had not caused the damage that was the subject of the charge against him, but the strength of the assertion of that belief can only take his case so far.

4. The basic facts around this case were not substantially in dispute, though I will summarise the evidence later.

5. The street in which Mr Hanel lives is not really a cul-de-sac but, at one end, the street goes straight into his driveway with, it appears, two car parks beside it. It is not, therefore, what might be called a "through street", a street connecting at its end with another street. The neighbouring house has a driveway to the left of Mr Hanel's driveway.

6. On the night in question, 5 November 2008, the complainant visited her friends who lived in the neighbouring house. There were already four cars in two rows parked in that driveway and she parked behind the right-hand side line of cars. It appears that her parked car did obstruct, or may have obstructed, Mr Hanel's driveway.

7. Mr Hanel came out, saw the car and became very upset. He expressed himself in strong language, swearing and using obscenities. He had been drinking alcohol. He explained his use of language in the written submission on appeal as follows:

A person with respect for other peoples rights already would not be there, a person with no respect for other peoples rights is just as likely to tell you to f*** off as not. So using language that a person of that ilk can easily understand is the most probable [sic] to get a satisfactory outcome, ie the vehicle shifted.

8. He also hit the car with his hand. The complainant came out and moved her car so that it was not obstructing Mr Hanel's driveway. She later came out and had a look at her car and noticed a dent in it at the rear passenger side which had not been there before.

9. After consulting her friends, the complainant went to see Mr Hanel. There was a conversation, which is in part disputed. Having not obtained satisfaction, the complainant called the police who later attended. Mr Hanel was then arrested and charged with damaging property contrary to s 116(3) of the Crimes Act 1900 (ACT). It renders him liable to a maximum penalty of 50 penalty units (at the time, a fine of $5,000) or imprisonment for six months or both.

10. The court hearing ultimately took place on 28 September 2009. The prosecution called three witnesses and Mr Hanel then gave evidence.

11. The learned Magistrate briefly but adequately reviewed the evidence. His Honour noted Mr Hanel's denial and assertion that the complainant's car was not dented when he left it. He described the evidence of the prosecution witnesses as "cogent, consistent and believable". He also noted that Mr Hanel was affected by alcohol.

12. His Honour was satisfied that the offence was proved. He made a good behaviour order for eighteen months with security in the sum of $500.00 and a probation condition and ordered Mr Hanel to pay $847.00 compensation within 28 days with security in the sum of $200.00 to the satisfaction of the Deputy Registrar for the payment of it.

13. Mr Hanel commenced his appeal on 13 October 2009. He purported to appeal against the whole of the order of the learned Magistrate. The only ground specified was:

My Court Documents and witness Statements where (sic) not in My Possession due to Circumstances Beyond my Control.

14. The order sought was "Acquital (sic) of Conviction".

15. At the hearing, Mr Hanel did not appear to wish to challenge the sentence imposed.

16. In his written submissions, Mr Hanel did not address the ground of the appeal set out in his Notice of Appeal. He did not address it either in his oral submissions before me.

17. The complaints he wished to agitate seemed to be:

(1) the court was over-influenced by his consumption of alcohol;

(2) the court refused to allow him to show how he could hit his own vehicle without damaging it; and

18. Part 3.10 of the Magistrates Court Act 1930 (ACT) bestows jurisdiction on the Supreme Court to hear and determine appeals from the Magistrates Court in cases where appeals are in the criminal jurisdiction. Thus, Div 3.10.2 applies to appeals specified in s 208(1) of that Act. Such appeals include "an appeal, by a person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act" by virtue of either Pts 3.6 or 3.7 or s 375 of the Crimes Act 1900 (ACT).

19. I pause to note that the learned Magistrate did not actually articulate that he was convicting Mr Hanel. The bench sheet has, in his Honour's hand, the word "Convicted" followed by the letters "GBO" which clearly refers to the good behaviour order imposed. The formal order of the court does note the conviction entered. I am not sure that anything turns on the learned Magistrate's failure to mention the conviction.

20. The appeal is by way of rehearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, I described such a rehearing in the following terms (at [78]):

Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

21. In this context, I note what the High Court has said, where in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 126 -7, [25]), Gleeson CJ, Gummow and Kirby J held that:

... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).

22. As Rares J commented in Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 (at 6 [21]):

And, although the appeal is by way of rehearing, the appellate Court does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.

The evidence

23. The complainant gave evidence that she had taken her boyfriend to the airport at about 6.30 pm and then driven to her friend's place in Gungahlin. At that time, there was no panel damage to her vehicle. She parked her car directly behind two cars which were parked in a line in front of her and adjacent to two other cars beside them. According to a drawing she made, Mr Hanel's driveway came up to where her car was parked.

24. Sometime later, she thought about 7.15 pm, she said that she and her friends heard "a man going crazy out the front of the house" he was "[y]elling offensive language". She and her friends looked out from the balcony of the house and thought the man was expressing his concern at the complainant's car. Then the alarm in the car was activated.

25. The complainant then said that she and her friends went outside and confronted the man who was Mr Hanel. He made it clear in colourful language that the complainant's car should be moved. The complainant went back to get her keys and then moved her car. Mr Hanel walked off while the car was being moved.

26. About twenty minutes later, according to the complainant, one of her friends said that Mr Hanel had gone back over to her car and suggested they should "check it out". The complainant said that they did. They saw a palm tree branch over it and when the complainant moved it she saw a dent in the rear passenger's side. Two photographs of the dent were tendered and included in the Appeal Book.

27. After some consideration, the complainant went with her friends to speak to Mr Hanel. According to the complainant, the conversation was as follows:

Well, he was first walked out saying "What the fuck do yous want?" and we were like - my friend said to him "Well, we know that you've dinted my friend's car, we've just seen it. It wasn't there before." He's like, "Fuck off, I don't care." Just language, language, language. And then we're like, "Well, either we can sort it out or I'm going to have to call the police." And he said, "I'm not paying for all of it, I'll pay for half of it because I don't - because you were parked in the wrong spot so it pretty much deserved to happen, but I'm not giving you any money now, I'll get your details." And I said, "I'm not giving you my details, I'm not from Canberra. If you don't want to do something I'm going to have to call the police."

29. In cross-examination, the complainant said that she had not seen any cars parked in Mr Hanel's driveway. She also said that she formed the view that Mr Hanel was very intoxicated.

30. A quote for the repair of the vehicle in the sum of $847.00 was tendered.

31. The next witness was a neighbour of the complainant's friend. She said that at about 7.30 pm she was in the upper level of her house when she heard yelling in the driveway that, it appears, she shared with the complainant's friend. She said she looked out and saw a man standing in the driveway yelling toward her neighbour's house. Her description of his language was consistent with the evidence of the complainant. She said he was becoming increasingly violent in his mannerisms, pacing up and down and becoming more vocal. She then saw him punch the car on the passenger side.

32. She said that she changed, grabbed her phone and saw the complainant and her friends talking to Mr Hanel. When he had gone, she went downstairs, she said, to talk to the girls to ensure they were alright. She said she heard some more yelling from the direction of Mr Hanel's house.

33. Police later attended and she made a statement to them. In cross-examination, she confirmed that she had seen Mr Hanel hit the car.

34. One of the police officers, Acting Sergeant Houlihan, gave evidence. He was called to the scene and when he arrived he said Mr Hanel, in quite an agitated state, asked him to move his car. Mr Hanel, he said, appeared to be drinking from a plastic cup and seemed well affected by intoxicating liquor.

35. Acting Sergeant Houlihan tried to calm Mr Hanel down but said he could not do so and he just said words to the effect "Just lock me up then". Acting Sergeant Houlihan then arrested Mr Hanel for breach of the peace. He then placed him in a police caged vehicle that had been requested.

36. There was some cross-examination of Acting Sergeant Houlihan but it does not seem to me to be particularly relevant.

37. Constable Joel Shoemark next gave evidence. He said that he attended at the scene shortly after 8.00 pm on 5 November 2008 following a call about a disturbance.

38. He spoke to the neighbour of the complainant's friend and then to the complainant, he said. He also said he spoke to the complainant's friend and another member of their party.

39. Constable Shoemark looked at the car, he said, and then spoke to Mr Hanel. He said that Mr Hanel said to him "You're going to lock me up, you cunts just lock me up". He described Mr Hanel as waving his arm around, that he jumped on the ground and did a couple of push ups and that he was intoxicated and drinking at the time.

40. Constable Shoemark corroborated the evidence of Acting Sergeant Houlihan. He noted that, when they returned to the Police Station, he did not interview Mr Hanel because he was too intoxicated.

41. In cross-examination, Mr Hanel put some of his version of the events of his arrest to Constable Shoemark, with some of which he agreed but, again, none seemed to affect the issue before the court.

42. One of the other police officers who attended was Constable Stevenson. The learned Magistrate, on hearing her name, asked the prosecution not to call her as she was his wife's niece. The prosecution did not call her. Mr Hanel made no complaint about this, though he was not expressly asked to state a view.

43. It seems to me that the decision of the learned Magistrate was wise. Although no police officer was present when the offence was said to have occurred, and the cross-examination did not challenge the police on any central issue, it was preferable that a close relative not give evidence in these circumstances. The prosecution did not think that her failure to give evidence was prejudicial to the prosecution case. I cannot see any evidence that the police officer could reasonably have given that would have been helpful to Mr Hanel's case. In any event, Mr Hanel did not raise it as a ground of appeal in the Notice of Appeal, his written submissions or his oral submissions.

44. Mr Hanel then gave evidence. He said that a bit after 7.00 pm on 5 November 2008 he had come home with three "longnecks of beer" which he was drinking at home from a plastic cup. He said he "became aware" of a car parked directly across his driveway. His evidence was that although he knew three girls lived next door, he had not spoken to them. He expressed concern that the driver must have seen that by parking there the car was blocking his driveway.

45. He admitted that he went out and yelled in the obscene, swearing terms that had been already given in evidence. He said he did not knock on anyone's doors because he did not know whose car it was.

46. He continued by saying that when no-one came out, he thought he would attract attention by hitting the car with his open hand. He denied that in doing so the car was damaged.

47. Mr Hanel then offered to show the learned Magistrate that he could hit a car and not dent it. He again offered to the learned Magistrate "to come out and listen to me hit a car" an offer that was declined.

48. Mr Hanel stated that the car was not damaged when he left. He stated that "there was time for someone else to come and dint that vehicle and have me as the culprit". He also denied offering to pay half the damage for the car. He stated that he had had two and a half "longnecks" of beer which he said was about equivalent to five stubbies of beer.

49. He also stated that he disputed the police evidence but did not give details of the dispute. He said that only two male police officers and no female police officer had attended the scene.

50. No additional evidence was sought to be tendered on the appeal by either party. Mr Hanel submitted that he had not damaged the car.

51. In his written submissions, Mr Hanel made four points:

(a) he justified his use of language by submitting that in the circumstances it was reasonable for him to have concluded that the car was likely to have been driven there by a young male;

(b) while he had been drinking alcohol, he says he would have acted in the same way if he had been sober, in a way that he regards as standing up for his rights;

(c) the learned Magistrate should have allowed him to undertake his "experiment" of showing how he could hit a car without damaging it; and

(d) there was ample time for another person to have damaged the vehicle between when he hit it and when the damage was discovered.

52. Unsurprisingly, given the only ground of appeal in the Notice of Appeal, the respondent addressed in the written submissions the provision of the prosecution brief to Mr Hanel and the course of the pre-trial proceedings. In the circumstances, I do not need to address these matters. The respondent's submissions then referred to the appellants written submissions and continued:

As the Appellant is self represented on the appeal I propose to make the rest of my submissions orally in response to both the Appellant's document and oral submissions in the course of the appeal.

53. While a respondent may wish to reserve his, her or its position in relation to written submissions which travel beyond the ground of appeal in a Notice of Appeal, it is not clear to me that it is helpful to an appellant or to the court not to address an appellant's written submissions which are wider than the Notice of Appeal merely because an appellant is unrepresented.

54. In oral submissions, Mr Hanel pressed the grounds set out in his written submissions. He was, additionally, critical of the costs of repairs set out in the quotation. He was insistent that he had not damaged the car.

55. In response, Mrs S Jowitt for the respondent, submitted that the issue of whether Mr Hanel caused the damage was squarely before the learned Magistrate who had seen and heard the witnesses.

56. Mr Hanel made it abundantly clear that he firmly believes that when hitting the car he did not damage it. He said that he would have pleaded guilty if he had done so, but because of his firm belief in the fact that he had not caused the damage, he was pleading not guilty.

57. In one sense, Mr Hanel had an advantage on the appeal because I was able to hear him and assess his demeanour. He was voluble and passionate and did not deviate from his firm conviction in his innocence of the charge. I did not, of course, see or hear the other witnesses, especially the complainant and what might be called the "independent" witness, being the neighbour of the complainant's friend. It is true that this witness only saw Mr Hanel hit the car, she did not see the damage done.

58. There was no dispute on the facts that Mr Hanel had hit the car. He did not even suggest, nor was it put to the witness who saw him hit the car, that it was hit at a place other than where the dent was later discovered.

59. There was no evidence, however, to suggest that other people were present at the scene or passing by. It was not suggested to the complainant that she or one of her friends had gone out deliberately and damaged the car.

60. So far as Mr Hanel's challenges are concerned, the issue of the language he used has no particular relevance to the appeal. It amounted, as the learned Magistrate observed during the course of the trial, to "using obscene language in a public place" but his Honour did not place any particular reliance on it in the hearing. In his Honour's decision, he merely described it, accurately, as "totally intemperate and inappropriate".

61. As to the consumption of alcohol, it does not seem to me that reference to it was used to suggest that Mr Hanel was disinhibited by the alcohol and so behaved in the way he did because of his consumption of alcohol. Rather, it may have affected Mr Hanel's perception of what he did, his memory of what he said or the credibility of his evidence. In this sense, it was clearly relevant. If one had to consider whether to accept the evidence of a witness who was sober at the time of the events being recounted or who was then intoxicated, a court can properly consider that the evidence of the witness who had been intoxicated should be treated with more caution than that of the other, especially if the witness who had been intoxicated had also been highly emotional.

62. The offer to show the learned Magistrate how he could hit a car without creating a dent, as his Honour properly observed, would prove nothing. The question is not whether Mr Hanel could hit a car without denting it, but whether he did so. Clearly one can hit a car and make a dent. That it is possible for Mr Hanel to hit a car and not make a dent does not show that he did so on 5 November 2008. It only shows that it is possible. The learned Magistrate did not hold that it was impossible to hit a car without denting it. The demonstration would not have helped his Honour to decide the question his Honour had to decide.

63. The final point that someone else could have made the dent is problematic for Mr Hanel as there was no evidence to support that. There was no evidence that people were walking around the street at that time and the layout of the street makes that unlikely. There was no evidence and no suggestion that the complainant or her friends did the damage themselves. They were never asked about that. The learned Magistrate was entitled to assess the credibility of the complainant and the evidence that she gave.

64. In my view, the learned Magistrate was entitled to accept the evidence of the witnesses for the prosecution. There was no challenge to the fact that Mr Hanel hit the complainant's car. Although he denied doing the damage, it was reasonably open to the learned Magistrate to find that he did. Given Mr Hanel's error in failing to recall that there was a female police officer present, combined with his intoxication, it was not unreasonable for his Honour to reject the evidence of Mr Hanel.

65. In addition, the learned Magistrate relied on, and was entitled to rely on, what the complainant said that Mr Hanel had said when confronted by her after she had discovered the damage to the car. His offer to pay for half the damage amounts to an admission that there was such damage and that he had caused it.

66. Supporting this, though not expressly relied upon by the learned Magistrate, is Mr Hanel's response to the police when they arrived, after he had refused to pay for the damage. After asking the police to move their car, Mr Hanel said to the police "Just lock me up then" which might be taken to infer that Mr Hanel knew he had done something wrong, the only wrong could reasonably have been the damage.

67. I can find no error in the reasoning or decision of the learned Magistrate.

69. I will hear the parties as to any other orders to be made.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the appellant: Mr D Hanel (Self represented)

Solicitor for the respondent: Director of Public Prosecutions (ACT)

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