Supreme Court of WA|2005-12-13|Before: Hasluck J

Hajinoor v Dench [2005] WASC 274 (13 December 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HAJINOOR -v- DENCH [2005] WASC 274

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Issues of credibility - Sufficiency of Magistrate's reasons - Whether failure to refer to the evidence of a particular witness amounts to an error - Admission of evidence on appeal - Turns on own facts

Matters remitted to Magistrates' Court at Broome for rehearing before a different Magistrate

Beamish v The Queen [2005] WASCA 62

Carden v The Queen (1992) 8 WAR 296

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Easterday v The Queen [2003] WASCA 69

Galea v Galea (1990) 19 NSWLR 263

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Harling v Hall (1997) 94 A Crim R 437

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Lawless v Turner [2005] WASC 254

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149

Pettitt v Dunkley [1971] 1 NSWLR 376

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Skerritt v O'Keefe [1999] WASCA 183

Thompson v Berkley [1999] WASCA 293

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003, 4 December 1980

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Devries v Australian National Railways Commission (1993) 177 CLR 472

Dhu v Ward [2000] WASCA 140

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dodd v Hoogewerf [2002] WASCA 15

Etrelezis v The Queen [2001] WASCA 327

Farmer v The Queen, unreported; CCA SCt of WA; Library No 940626; 19 September 1994

King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993

Powell v Fuller [2005] WASC 91

Sweeney v Wallace [2002] WASCA 248

1 These are two appeals relating to rulings made in the Magistrate's Court in Broome on 27 June 2005. They arise out of an altercation that occurred outside the Nippon Inn Night Club in Dampier Terrace, Broome in the early hours of 23 April 2005.

2 The appellant in the first appeal (SJA 1076/05) is Bradley John Hajinoor. The appellant in the second appeal (SJA 1077/05) is Bradley's brother, Craig Hajinoor. The grounds of appeal are the same in each case with the result that the appeals were heard together. For ease of reference, I will henceforth refer to the appellants as "Bradley" and "Craig".

3 Bradley was charged with disorderly conduct, assaulting a public officer and resisting arrest. As a consequence of his plea of not guilty to these charges the matter proceeded to a hearing before Magistrate McIntyre on 27 June 2005. Craig pleaded not guilty to charges of disorderly conduct, assaulting a public officer and escaping legal custody. The appellants were represented at the hearing by defence counsel, Mr Eagle.

4 A central feature of the prosecution case was an allegation that each of the appellants had assaulted David Paul Dench, a police officer who was said to be performing the duties of his office at the time of the assault.

5 The learned Magistrate heard from various witnesses on both sides. This included evidence from Senior Constable Dench and other police officers on the prosecution side and evidence from each of the defendants. The latter acknowledged that they were present at the scene of the altercation but said that they did not assault Senior Constable Dench or act as alleged by the prosecution. The defence case was supported by a number of other witnesses who were at the scene.

6 The learned Magistrate's reasons for decision are set out at pages 87 to 95 of the transcript. The appellants were convicted of the subject charges and were then remanded in custody to allow time for the preparation of a verbal pre-sentence report.

7 On 1 July 2005 Bradley was sentenced to a term of imprisonment for 10 months for assaulting a public officer and a further term of imprisonment of 3 months for resisting arrest to be served concurrently with the head sentence. He was fined the sum of $250 for disorderly conduct. These sentences gave rise to an effective aggregate term of imprisonment of 10 months.

8 Craig was sentenced to a term of imprisonment of 7 months for assaulting a public officer and a further term of 1 month for escaping legal custody to be served concurrently with the head sentence. He was fined the sum of $200 for disorderly conduct by fighting. It follows that the effective aggregate term of imprisonment amounted to 7 months.

9 It was against this background that each of the appellants obtained leave to appeal against conviction and against sentence. Bradley obtained leave to appeal on 2 August 2005 and was released on bail pending disposition of the appeal. Orders of the same kind were made on 3 August 2005 in respect of Craig. The appellants have been on bail since that time.

10 When the appeals were brought on for hearing counsel for the respective parties placed submissions before the Court directed to both matters (that is, conviction and sentence). Counsel on both sides recognised that if the appeals against the convictions succeeded, it would not be necessary for the Court to address the matters in issue concerning sentence.

11 I will turn to the grounds of appeal in more detail later. In essence, the appellants contended that they were denied a fair hearing, that findings of fact were made which were against the weight of the evidence or unreasonable having regard to the learned Magistrate's reasons for decision, and that new evidence was available to establish that there had been a miscarriage of justice.

12 This brings me back to the evidence presented to the learned Magistrate in the course of the hearing and to the reasons for decision delivered by him prior to convictions being recorded against the appellants.

13 As I have indicated, the prosecution adduced evidence from certain police officers and others who were present at the scene of the altercation. The prosecution witnesses were Senior Constable Dench, First Class Constable Smith, First Class Constable Mayger and Constable Portilano.

14 These witnesses were cross-examined by defence counsel save for Constable Portilano. Each of the appellants gave evidence. In the course of their defence they relied also upon the evidence of William Adair, Brendon Grujcic, Zunaid Anthony and John Stevenson. Mr Adair and Mr Grujcic described themselves as "crowd controllers". These latter witnesses were employed by the night club and their evidence indicated that they were present when the events comprising the altercation occurred outside the night club.

15 The learned Magistrate noted early on in his reasons for decision that the burden of proving each element of each offence beyond reasonable doubt lay upon the prosecution. He referred to a substantial number of people pouring out of the night club into the street at about 4 am in the morning. The essence of the evidence of Police Officers Dench and Mayger was that there was some abuse and yelling between a variety of groups which led to a confrontation between Craig and a man called David Cocks. The police intervened and this led to Craig being placed in a police van. However, on the prosecution case, Craig left the van before the door was closed and at about this time punched Senior Constable Dench to the right side of his face. Dench went on to testify that almost immediately after that he was punched to the left side of his face by Bradley. About 20 minutes later, when Craig was again in the back of the van, Bradley approached Dench, but was then subdued with pepper spray, arrested, and placed in another police van.

16 Having provided this overview, the learned Magistrate proceeded to assess the evidence in more detail. He referred to evidence from Police Officer Mayger that he observed Craig striking Dench in the face but did not say that he saw Bradley strike Dench. Police Officers Smith and Portilano did not speak of Bradley striking Dench.

17 The learned Magistrate referred to evidence from the appellants which established that they were present at the scene and involved in verbal exchanges with the police. However, both appellants denied assaulting Senior Constable Dench as alleged.

18 The learned Magistrate said that a court expects to find discrepancies between the accounts given by witnesses in a situation such as this where the scene is dark and those involved are affected by alcohol. He then said this (at TS 91):

"So having undergone that process of assessment, it seems to me that the three witnesses that have just been called, at the conclusion of the accused's case, that is Grujcic, Stevenson and Anthony, are all suffering from selective hearing and observation. Each of those in my view, is sympathetic towards the accused, and use for example the evidence of Stevenson, who seemed to suggest that Bradley Hajinoor was just standing there and the police unnecessarily sprayed him..."

19 The learned Magistrate went on to say that when Bradley was relating his account in the witness stand, it was so entirely different to that given by Craig "that you are wondering if they're speaking about the same incident". He referred to Bradley being aggressive and abusive, as he himself had admitted in the witness stand, and went on to say that "any attempt on behalf of witnesses who were called on his behalf to minimise his conduct, is in my view, because they are sympathisers".

20 His Honour said further that, in his view, the evidence given by Bradley was totally unconvincing, lacking in substance and lacking in credibility. However, the police evidence was, in his view, given without any form of embellishment or exaggeration. They described an incident which unfolded as they were observing it. They described it in clear and unequivocal terms and without any form of exaggeration.

21 His Honour said that at the end of the day he accepted without reservation the essence of the evidence given by the police officers and, in particular, he accepted the evidence of Dench as honest, truthful and accurate. His Honour then said that he found the following to be the facts (at TS 93):

"Craig Hajinoor and David Cocks were involved in an altercation on Dampier Terrace where they were clearly intending to fight and were in the process of fighting when intervention prevented it continuing. Craig Hajinoor walked to the rear of the police van in the company of police and climbed inside without any form of resisting. When the arrival of his brother gave him the opportunity of doing so, Craig Hajinoor leapt from the police van, in the process he punched Dench to the face. He escaped from legal custody at the time that he did that. So in my view, on the evidence in front of me, Craig Hajinoor is guilty of the three complaints which are laid against him.

To continue with the factual findings, Hajinoor - Craig Hajinoor - leapt out of the police van. As he was about to do so, Bradley Hajinoor punched Dench to the left side of his face, causing him to fall back against the police van. Prior to that point, Bradley Hajinoor had been involved - as he candidly admits - in abusing the police, saying, as I said before 'fucking' this, 'cunt' that."

22 His Honour then concluded that when Bradley returned to the vicinity of the police vehicle about 20 minutes later, and was advised he was under arrest, he became physically and verbally threatening and was guilty of resisting arrest. Bradley was to be found guilty of the three charges against him.

24 It will be convenient to begin by looking at the second ground of appeal being the order in which counsel for the appellants dealt with the grounds of appeal at the hearing before me. This ground of appeal brings under notice the sufficiency of the reasons for decision given by the learned Magistrate, with particular reference being made to the fact that his Honour did not touch upon the evidence given by the defence witness, Mr Adair. Accordingly, it will be useful to look at the legal principles bearing upon an appeal against conviction of the present kind and the reasons to be provided by a judicial officer.

25 Appeals from courts of summary jurisdiction were formally governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 4 of the latter Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.

26 By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

27 In Harling v Hall (1997) 94 A Crim R 437, Anderson J indicated that a Magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision. A finding of guilt was not to be reached simply by rejecting the case put forward by the defendant. There could not be a guilty verdict unless the court accepted, that is, actually and positively believed to the required standard, the evidence presented by the prosecution on matters critical to proof of guilty.

28 The question on appeal will often be not whether the court would have formed a different view, but whether the Magistrate's approach and view of the evidence was defensible: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

29 It follows that if an error in the reasoning or determination below is exposed on appeal, the court is not necessarily obliged to quash the decision. It seems, however, that unless the court is persuaded that, properly informed, the Magistrate would have inevitably have reached the same verdict, the Court of Appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1.

30 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: "M" v The Queen [1994] HCA 63; (1994) 181 CLR 487.

31 It follows from these authorities that a Magistrate is generally required to set out the relevant findings of fact and reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination.

32 In Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 the Full Court was dealing on appeal with findings made by a Magistrate in the Court of Petty Sessions. It is apparent from the reasoning of the Court that in such a case there was no requirement for the learned Magistrate to say why he was impressed with the appellant's evidence. Also, while the learned Magistrate had only referred to the evidence of one prosecution witness, where a second prosecution witness had testified in similar terms, it was implied that the doubt created by the appellants' evidence was sufficiently strong to cause the learned Magistrate not to act on the evidence of either prosecution witness. Moreover, in choosing not to act on the prosecution evidence, there was no requirement for the learned Magistrate to make express adverse findings as to the credibility of the prosecution witness.

33 Owen J observed at par 73 that at common law there was (and is) a duty of a decision-maker required to act judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. He said further at par 74 that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which he had referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained.

34 In Pettitt v Dunkley [1971] 1 NSWLR 376 Moffitt P observed at 387 that there is as much a duty or judicial obligation to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and to hear evidence and admit relevant evidence of a witness. This is a means of preserving and facilitating any rights of appeal from his decision which a party may have.

35 The rationale for such an approach was summarised recently by the Full Court in this State in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 at pars 26 to 29 in these terms:

"26. ...

The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 - 270, 278; and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441. That is because "the duty is a function of due process, and therefore of justice": Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381, per Henry and Laws LJJ and Hidden J. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment: Flannery (ibid); and see Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 at 31. The requirement also furthers judicial accountability: Soulemezis, at 279, per McHugh JA; and Beale, at 442, per Meagher JA.

27 Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

28 Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial Judge should set out findings sufficient to explain why: Beale, at 443. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side", the Judge "must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery, at 382.

29 Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444."

36 The observations I have just referred to were made in the context of a planning case that came before the Supreme Court. A degree of caution must be therefore exercised in applying these observations to decisions delivered in a Magistrate's Court, although there can be little doubt that essentially the same rules must be observed. It is a matter of degree.

37 For example, in Nevermann (1989) 43 A Crim R 347 Malcolm CJ observed at 350 that it is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail.

38 However, it is important to understand that those observations were made in the context of an appeal against sentence. Malcolm CJ went on to say that "it is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reasons for his adoption of the sentence or other disposition he considers appropriate". It follows that care must obviously be taken in applying the Nevermann (supra) approach to an appeal against conviction.

39 In essence, the principle is clear: a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which lends to the ultimate conclusion. But the sufficiency of fact finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183 at [146] - [147].

40 In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J made these observations at 448:

"It is correct that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh: see Wing Luck Foods v Lay Choo Lim [1989] WAR 358."

41 Ipp J went on to say in Vrisakis (supra) at 448 that a decision of a court of summary jurisdiction is not regarded with the same sanctity as the verdict of a jury. If it is argued that there was inadequate evidence to justify a conviction, and the appellant identifies particular findings which, it is submitted, are not warranted by the evidence, it is the task of the respondent to provide, in turn, an analysis of the transcript which refers to the evidence which, in the respondent's submission, bears out the findings: see Carden v The Queen (1992) 8 WAR 296.

42 In Thompson v Berkley [1999] WASCA 293 McKechnie J allowed the appeal in question on the basis that the reasons of the Magistrate were insufficient and ordered that the matter be remitted for trial according to law before a different Magistrate.

43 That was a case concerning a conflict in the evidence in a road traffic matter. McKechnie J observed at par 11 that in the case before him the Magistrate did not reconcile any of the differences or articulate in detail why, notwithstanding the differences, the witnesses' evidence should be accepted. Such an exercise was particularly important. There was no direct evidence of driving. The case depended therefore entirely upon both the honesty and reliability of the evidence of the officers concerned when they said that the appellant had confessed. His Honour went on to say at par 12 that in a case where there are differences in the evidence of the witnesses, it is incumbent on a Magistrate to consider those differences and to articulate why he or she does or does not accept the reliability or credibility overall of the particular witness.

44 Justice Le Miere made these observations in Lawless v Turner [2005] WASC 254:

"26 Where a Magistrate's finding depends to any substantial degree on the credibility of a witness or witnesses, the finding must stand unless it can be shown that the Magistrate has failed to use or palpably misused his advantage of having seen the witnesses give their evidence, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: DeVries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479; State Rail Authority of New South Wales v Earth Line Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 per Gaudron, Gummow and Hayne JJ at [3]. An appellate court is not entitled to reverse a finding of fact upon an assessment of credibility unless it is satisfied that any advantage enjoyed by the Magistrate, by reason of having seen and heard the witnesses, could not be sufficient to explain or justify that finding of fact: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 per McHugh J at 178 (Mason CJ, Deane, Dawson and Gaudron JJ agreeing).

...

30 A Magistrate's duty to provide reasons does not extend to identifying precisely every item of evidence which he has considered: Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998 per Wheeler J at 5 (Malcolm CJ and Kennedy J agreeing); Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 per Meagher JA at 647. Reasons must enable an appellate court to consider and determine whether or not the judgment is erroneous. Each case must depend on its own circumstances but the reasons must show to the litigant and the appeal court why a decision was made. While the reasons must adequately disclose the intellectual process which has resulted in a particular determination that does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submission must be alluded to expressly, or even by implication in the course of giving reasons: Garrett v Nicholson [1999] WASCA 32; 21 WAR 226 per Owen J.

...

49 All of the matters raised in the ground of appeal are matters going to whether the Magistrate should have accepted the evidence of the complainant and Dylan. So far as this aspect of the appeal is concerned, it depends upon a view taken of conflicting testimony. The Magistrate made his findings after seeing and hearing the witnesses. It is not for an appeal court to reverse the Magistrate's findings, merely on the result of its own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case: Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 62 ALR 53 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ at 57. It was open to the Magistrate to accept the evidence of Dylan. The Magistrate made no appealable error in doing so."

45 Let me now return to the circumstances of the present case.

46 The second ground of appeal, being the matter that counsel for the appellants turned to immediately, was to this effect. The learned Magistrate made findings of fact which were against the evidence or the weight of evidence or unreasonable. Various particulars were then provided but counsel chose to focus initially upon an assertion that the learned Magistrate failed to take any account of the evidence of the applicant's main independent witness, William Adair.

47 The particulars included assertions also that the learned Magistrate found the three defence witnesses Stevenson, Anthony and Grujcic to be "sympathisers" of the appellants without giving reasons for such findings, he found the evidence of the appellants themselves to be unconvincing without giving sufficient reasons, and he found the evidence of the police officers to be truthful without giving sufficient reasons for such a finding. The remaining particulars are subsumed within these particulars and the other grounds of appeal.

48 It was common ground at the hearing before me that the learned Magistrate did not refer explicitly to the Adair evidence in his reasons. The appellants' case on appeal was that Mr Adair was the most important defence witness. He was the first of the defence witnesses called after both the appellants gave evidence. He was a crowd controller employed by the night club who was at the scene of the altercation throughout and intervened initially between Craig and another person. He was standing next to Craig when he exited the police van and was present when Bradley came over to the van. Mr Adair said in his evidence-in-chief that he was at the van when Craig jumped out and was telling him to calm down and was there when Bradley appeared. He said, apparently with respect to both appellants, in answer to the question whether at any time he saw punches thrown: "No, at no time did I see a punch thrown - no".

49 Mr Adair was then cross-examined at some length including exchanges as to what happened when Craig stepped out of the van and Bradley came over. Mr Adair said that he did not see Bradley throw a punch. As to Craig, he said that he "Just sort of pushed the door open and just sprung out" of the van because the police had turned their attention to Bradley. When he asked whether he saw Craig punch Constable Dench he responded: "No, I didn't see that, no". He was pressed about this evidence but repeated at page 60 of the transcript that "There were no punches thrown".

50 The appellants' case on appeal was that if Mr Adair's evidence was accepted by the learned Magistrate it was sufficient to raise a reasonable doubt in respect of the offences against Craig of assault and escaping legal custody, and against Bradley in respect of disorderly conduct, assault and resisting arrest. However, in circumstances in which the learned Magistrate made no reference to the Adair evidence in his reasons, it could be inferred that he had overlooked or failed to give sufficient weight to this evidence.

51 In any event, counsel for the appellants submitted, having regard to the principles reflected in the decided cases, his Honour's reasons for decision were clearly insufficient in that, as to an important defence witness such as Mr Adair, he failed to reconcile differences between the evidence of that witness and the evidence of prosecution witnesses, or to articulate in detail why the evidence of the prosecution witnesses (in this case the police officers) should be preferred to the evidence of an apparently independent witness who was at the scene as a crowd controller.

52 Counsel for the respondent acknowledged that the learned Magistrate did not mention Mr Adair by name in the course of his reasons for decision. However, it was clear that his Honour was generally of the view that the witnesses for the appellants were partisan as appears from his observation at page 91 that any attempt on behalf of witnesses who were called on the defence side to minimise the conduct complained of was because they were "sympathisers". His Honour went on to say this:

"My view of the evidence given by the accused, and I mean that in the plural sense, is that it is unconvincing, and I make that comment particularly about Bradley Hajinoor. Totally unconvincing, totally lacking in substance, totally lacking in credibility.

The police evidence in my view, on the other hand, was given without any form of embellishment or exaggeration. The police officers were there, they described an incident which unfolded as they were observing it."

53 It emerges from my review of the decided cases that a court must find sufficient facts upon which to base a decision and it must expose the reasoning which leads to the ultimate conclusion. I accept that the amount of detail to be provided in the reasons will vary with the exigencies of the case and that a Magistrate's duty to provide reasons does not extend to identifying precisely every item of evidence which he has considered: Mount Lawley Pty Ltd v Western Australian Planning Commission (supra) at par 28; Lawless v Turner (supra) at par 30. I recognise also that inadequacy of reasons does not necessarily amount to an appellable error. An appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.

54 However, in the present case, I am of the view that Mr Adair was an important witness in that he was apparently present throughout the altercation and his account directly contradicted the evidence given by the police witnesses in certain significant respects, including the question of whether any punches were thrown by the appellants. He did not qualify his testimony in the course of cross-examination and the relevant exchanges did not expose any particular reason as to why he should be characterised as a "sympathiser" to the appellants. It was certainly open to the learned Magistrate, after utilising his advantage of hearing from all the witnesses, to arrive at an adverse conclusion as to Mr Adair's creditability. However, I do consider that in this case it was incumbent upon the learned Magistrate to be specific as to why the Adair evidence should be discounted. His Honour failed to make his position clear in that regard and thus, to my mind, his reasons for decision were not sufficient. Further, in the absence of persuasive reasoning as to why the Adair evidence should be discounted, the findings made appear to be against the evidence in the sense that, if accepted, the Adair evidence could be regarded as sufficient to raise a reasonable doubt as to important elements of the subject charges.

55 Put shortly, then, the Adair evidence arguably raises a reasonable doubt as to certain ingredients of the prosecution case as to each appellant. Such a doubt will abide unless satisfactory reasons are provided as to why the evidence raising the doubt should be put to one side or displaced by other evidence. Moreover, in the present case, the Adair evidence did not stand alone but was consistent with and supported to some extent by the other witnesses on the defence side including the appellants themselves. The other evidence is not necessarily compelling, having regard to the grave reservations as to credibility voiced by the learned Magistrate, but it adds some weight to the notion that the Adair evidence should have been dealt with specifically in the learned Magistrate's reasons for decision.

56 I am conscious that the doubt raised by the Adair evidence bears principally upon the two charges of assault. However, the assault issue in each case lies at the heart of the charges brought against the appellants and it therefore seems to me that if the assault convictions are to be quashed on the grounds that the learned Magistrate's findings of fact were against the weight of the evidence, having regard to the particulars relied upon by the appellants, there is a basis for quashing the other convictions also due to the inter-relationship between the various matters in controversy.

57 It emerges from my review of the decided cases that if an appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed. This approach applies also to a perceived inadequacy in the reasons for decision. Accordingly, in the particular circumstances of this case, relief should be provided because I am not persuaded that, properly informed, the learned Magistrate would have inevitably reached the same verdict if weight had been afforded to the Adair evidence. I am not persuaded that no substantial miscarriage of justice has occurred.

58 I consider that the appeals should be allowed upon this ground. The proper course is for the three convictions to be quashed and for the matter to be remitted to the Magistrate's Court at Broome for rehearing according to law before a different Magistrate. I am conscious that this conclusion, of itself, is sufficient to dispose of the appeal. However, for the sake of completeness, I am of the view that I should deal with the further grounds of appeal.

59 Counsel for the appellant proceeded next to the third ground of appeal; that is, there has been a miscarriage of justice in that new evidence exists from certain witnesses to the alleged offences who did not give evidence but who have signed statements which materially contradict the police evidence and support the defence case.

60 At the hearing before me reliance was placed upon the affidavits of three persons who were said to be witnesses to the offences charged who were not called to give evidence at the trial. Each of the witnesses in question, being Messrs Francis, Bellotti and Lane, have sworn affidavits annexing a copy of their statements which were obtained by the appellants' new solicitor after trial. It was said that all three persons were willing to give evidence at a new trial. It was said that this evidence substantially corroborated the evidence given by both appellants at the trial and the evidence of other defence witnesses.

61 I note in passing that in the course of the hearing before me counsel for the appellants indicated that no reliance would be placed upon the evidence of Lane as his evidence was not thought to be sufficiently material.

62 Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appeal court may admit any other evidence. In Lawless v Turner (supra) Le Miere J was of the view that the discretion conferred by s 40(1)(e) is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal.

63 His Honour went on to say that fresh evidence is evidence which did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the trial or which could with reasonable diligence, then have been discovered: Beamish v The Queen [2005] WASCA 62 at par 9. In the case of fresh evidence there is a three-stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the appellant at trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be cogent, plausible and relevant. Thirdly, there must be a significant possibility that the finder of fact, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial: Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 per Malcolm CJ at par 58; Beamish v The Queen (supra) per the Court at par 14.

64 His Honour said further that in the case of new evidence, the Appeal Court should only quash a conviction if the evidence either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 per Barwick CJ at 520. The mere likelihood that the finder of fact would have returned a verdict of not guilty is insufficient to set aside a conviction on the basis of new evidence: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 per Mason J at 675.

65 I note also that the discretion to admit new evidence includes a consideration whether a miscarriage of justice may have occurred and whether there is a significant possibility that the jury acting reasonably would have acquitted the accused of the charge if that evidence had been before it. In considering the new or fresh evidence an appeal court must decide on the relevance and credibility of such evidence: Easterday v The Queen [2003] WASCA 69 per Steytler J at pars 207 to 211.

66 In the present case, counsel for the respondent submitted that the evidence of Messrs Francis, Bellotti and Lane was available at the time of the initial hearing and known about by counsel for the accused. However, a decision was evidently made not to call evidence from these witnesses at the hearing.

67 Counsel submitted further that the evidence sought to be led, even without cross-examination, is not impressive. Roy Bellotti, according to his statement, only got to the police van after Craig had got out of the van and was being returned to the van. In other words, Roy Bellotti never saw Craig get out of the van and was not present at the time that it was alleged that Craig and Bradley assaulted Senior Constable Dench. Thus, his evidence is of marginal relevance as is the evidence of Lane (as appears from the concession made by counsel for the appellants). It was said that the statement of Leon Francis is, in so far as it is relevant, entirely favourable to the prosecution. The strength of the evidence that the appellants now wish to lead, which was not led at trial, was not sufficiently strong to justify interference with the verdict upon this ground.

69 It appears from the affidavit of Leon Lawrence Francis sworn 28 July 2005 that Mr Francis was working at the Nippon Inn on the evening in question. Just before closing he saw lots of guys leaving the club and noticed two police vans pulled up on either side of Dampier Terrace. He saw an argument break out at which time the police intervened with a view to keeping the disputants apart. According to Mr Francis his boss, Bill Adair and another colleague Brendon Grujcic tried to calm down Bradley and Craig.

70 Mr Francis said in his statement that as the police were putting Craig in the van Bradley ran across and pushed a police officer with his chest. The police officer did not fall backwards but stepped back a couple of steps. The witness did not see Mr Bradley throw a punch or use his hands. After a while he noticed Craig was in the back of the police van and he later saw Bradley being sprayed with pepper spray. In due course, the police vans left and Bradley left with family members, without having been arrested.

71 Roy John Bellotti said in a statement exhibited to his affidavit sworn 28 July 2005 that he was at the Nippon Inn with Bradley and Craig and saw the police putting Craig inside the police van. Bradley was arguing with what was happening with Craig. He watched Bradley and the tall police officer arguing but never saw any punch thrown. He did not see Bradley hit either policeman but did see the police spray Bradley with pepper.

72 Vincent Lane said in the statement exhibited to his affidavit sworn 28 July 2005 that he was working at the Nippon Night Club. At the relevant time he was inside asking patrons to leave and eventually walked outside and stood on the verandah where he could view the crowd outside. He could see two police vans and noticed that Bradley and Craig looked upset. He did not see Bradley hit a police officer but did see Bradley yelling abuse at the police officers. One of the police officers sprayed Bradley with pepper spray.

73 In the circumstances of this case I am not persuaded that the appeal should succeed on this ground. The indications on the materials before me are that the subject witnesses could have been called by the defence if a decision to that effect were made. The evidence should not be admitted as fresh evidence.

74 Further, I am not persuaded that the evidence of these witnesses should be admitted as new evidence on the basis it would necessarily have changed the outcome. In a case of this kind involving various witnesses speaking as to what they saw at a scene of confusion, the evidence of the two witnesses was not likely, of itself, to be treated as decisive. It will be a matter for counsel on each side as to whether all or any of these witnesses should be called in the event of the matter proceeding to a rehearing.

75 The appellants asserted in this ground of appeal that there was a miscarriage of justice in that the appellants were denied a fair hearing.

76 Particulars provided in support of the ground were to the effect that the learned Magistrate prevented counsel for the appellants from properly conducting the defence case by disallowing unobjectionable questions to be asked of police witnesses in cross-examination and by disallowing unobjectionable questions to be asked of defence witnesses in evidence-in-chief. It was asserted also that the learned Magistrate intervened in the presentation of the defence case by taking over the questioning of witnesses.

77 Counsel for the appellants relied upon various authorities concerning the conduct of trials and interventions by the trial Judge.

78 Kirby ACJ observed in Galea v Galea (1990) 19 NSWLR 263 referred to certain guidelines that have emerged from the decided cases. I will not set out those guidelines in their entirety. However, in summary, the approach to be adopted can be expressed in this way.

79 The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside. A distinction is drawn between the limits of questioning or comments made by a Judge when sitting with a jury and when sitting alone or in a civil trial. This is because a trained judicial officer will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.

80 Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the Judge has closed his or her mind to further persuasion. This assessment must be made in the context of the whole trial. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.

81 It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object of permitting the Judge to better comprehend the issues and to weigh the evidence of the witness concerned.

82 By the same token, the Judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a Judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions. It has become more common for Judges to take an active part in the conduct of cases as a consequence of pressure on court lists and a growing appreciation that a silent Judge may sometime occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. However, the conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements.

83 Counsel for the appellants in the present case took me to various passages in the transcript which suggested that the learned Magistrate had intervened in an unacceptable manner. Counsel submitted that the effect of disallowing unobjectionable questions was that the appellants were prevented from properly being able to test the evidence of each of the prosecution witnesses and to develop inconsistencies between the witnesses. Moreover, requiring counsel to disclose the appellant's account of what happened, particularly in the presence of witnesses being cross-examined, impacted adversely on the defence case.

84 Counsel for the appellants submitted also that there were several instances where the learned Magistrate prevented counsel from asking unobjectionable questions of witnesses called by the defence. There were also occasions when the learned Magistrate intervened to such an extent that the questioning of defence witnesses during evidence-in-chief was taken over by the Court rather than being conducted by counsel. It was said that the cumulative effect of proceeding in this manner resulted in the appellants being denied a fair hearing.

85 Counsel for the respondent submitted that when the transcript was reviewed in its entirety the learned Magistrate did not intervene excessively and it certainly could not be said that he "moved into counsel's shoes". It was important to keep steadily in mind that there was no jury present and so greater latitude in questioning and comment was acceptable as is recognised by the reasoning in Galea's case (supra). There were no clear indications that the conduct of the appellants' defence was affected by the learned Magistrate's comparatively limited intervention.

86 Let me now turn to some of the instances raised by counsel in the course of the hearing before me.

87 Counsel for the appellants cited various passages in the transcript which were said to demonstrate that there had been an unreasonable degree of intervention by the learned Magistrate or, at least, interventions which created a real danger that the trial was unfair.

88 It appears from page 80 of the transcript that the defence witness Stevenson was under cross-examination by the prosecutor. He was being asked questions about the conduct of Bradley and Craig and as to whether he could hear what Bradley was saying to the police. At that moment, the learned Magistrate intervened to say to the prosecutor: "Don't waste too much time on cross-examination". This prompted the prosecutor to indicated that he had no further questions.

89 It was said that this exchange might suggest that the learned Magistrate had made up his mind that Stevenson had little evidence of any use to offer, and that this was significant in view of the fact that the learned Magistrate in his reasons for decision held later that Stevenson was a "sympathiser" and his evidence should be given little weight. The exchange was said to reveal bias.

90 Counsel for the appellants referred also to interventions from the Bench which occurred as defence counsel sought to cross-examine the principal prosecution witness, Senior Constable Dench. For example, at page 10 of the transcript it seems that counsel was cross-examining Senior Constable Dench about Bradley's conduct. He was seeking to establish that Bradley, albeit being verbally abusive, was not showing any indication of striking the police officer. At that point, his Honour insisted that counsel was obliged to put to the police officer Bradley's account of what was said. Counsel proceeded as directed by the learned Magistrate but this arguably had the effect of diverting him from pressing the question of whether Bradley was in a combative position or showed any indication of striking.

91 Soon afterwards, counsel raised the question of whether Senior Constable Dench had fallen down or backwards during the course of the encounter. The learned Magistrate intervened to enquire whether counsel was accepting that the police officer did fall into the van as a result of a confrontation. Defence counsel endeavoured to explain that he was simply seeking clarification of the police officer's evidence.

92 In the transcript at page 26 defence counsel was cross-examining Police Officer Smith as to the circumstances in which Senior Constable Dench allegedly told Bradley that he was under arrest. Counsel asked whether Bradley was "read his rights" at that point. His Honour intervened to ask what the phrase meant and whether it had been picked up on television. Defence counsel appears to have been disconcerted by the query and immediately brought the cross-examination to an end.

93 In the transcript at page 30 defence counsel was leading evidence-in-chief from Craig and was asked whether the police had told him something at that stage of the altercation. His Honour intervened to insist the defence counsel simply ask his client to say what happened next. A little later defence counsel sought to ascertain from Mr Grujcic whether in the course of the altercation there were two individuals who were yelling more than others. His Honour intervened to insist that the witness simply say what happened next. Counsel for the appellants submitted before me that the effect of these various interventions was to divert defence counsel from his chosen course and, in addition, to limit the narrative to a sequential format which possibly interfered with the presentation of the scene in its entirety.

94 On the other hand, in reply, counsel for the respondent drew attention to various instances in which the learned Magistrate arguably sought to assist counsel by asking questions with a view to clarifying what was being said or in order to remind a witness of evidence that had been given previously. Moreover, as appears at page 77 of the transcript, there were certain instances in which the learned Magistrate admonished the Prosecuting Sergeant. For example, his Honour said to he Prosecuting Sergeant at page 77: "Look you could spend the next two hours doing this, going through who said this, who stood where, and it achieves little purpose". Counsel for the respondent submitted also that some of the interventions (such as that at page 30) were arguably aimed at forestalling the receipt of hearsay evidence as to what might or might not have been said in the course of the altercation.

95 I have given careful consideration to the submissions made in support of this ground of appeal. There do appear to have been certain instances in which the learned Magistrate was over-zealous in seeking to ensure that the course of evidence did not wander into possibly irrelevant or circuitous channels owing to the manner in which questions were put to a witness. However, in the end, I am not persuaded that the guidelines enunciated in Galea's case (supra) were infringed.

96 I feel obliged to keep in mind that although the matters in issue arose out of criminal charges the learned Magistrate was sitting alone and was therefore in a position to revise his thinking as the case proceeded and respond to corrective submissions in the closing addresses if necessary. I am not convinced that his interventions created a real danger that the trial was unfair or would be regarded as unfair by a reasonably informed observer.

97 His Honour may have acted in a peremptory manner from time to time but I am of the view that a reasonable observer would conclude that he was simply responding to the constraints of time, and was not biased against the defence case.

98 Accordingly, I am not persuaded that the appeal should be allowed on this ground.

99 I am persuaded that the appeals before me (being SJA 1076/05 and SJA 1077/05) should be allowed upon the second ground of appeal; that is, the learned Magistrate made findings of fact which were against the evidence in that he failed to give sufficient reasons for his findings and thereby apparently failed to take account of the evidence of the appellant's main independent witness, William Adair. The convictions of the appellants will be quashed and the matter remitted to the Magistrate's Court at Broome for rehearing according to law before a different Magistrate. It follows from this conclusion that it is not necessary for me to resolve the issues as to sentencing raised by the appeals. I will hear from the parties as to whether any further orders and directions are required.

Hajinoor v Dench [2005] WASC 274

At a glance

Court

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Before

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Judgment (143 paragraphs)

Hajinoor v Dench [2005] WASC 274 (13 December 2005)

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Legislation Cited (1)

Cases Cited (21)