HODDER -v- BALL [2012] WASC 350 (20 September 2012)

4 Mr Hodder resides in a set of Homeswest flats in Subiaco. On the same floor of the flats an elderly lady, Maria Ruffell, also lives. There had been a dispute between them and Mrs Ruffell had obtained a violence restraining order.

5 Mr Hodder was served with the order on 4 August 2011 by a police officer who explained its terms. One of the terms was that Mr Hodder was not to go within 20 metres of Mrs Ruffell. He was also not to go within 20 metres of the external boundaries of her flat.

6 There are lifts at either end of the floor on which both Mr Hodder and Mrs Ruffell live. The effect of the order was to require Mr Hodder to use the lifts at his end and thereby avoid passing or being near to Mrs Ruffell's flat.

7 The prosecution case was that on 18 September 2011, whilst the violence restraining order was still operational, Mr Hodder breached the order by standing at Mrs Ruffell's door. The prosecution evidence in that regard was as follows.

8 Mrs Ruffell said that at approximately 10.20 am on 18 September 2011 she was at home. Her friend, Mrs Pamela Hardy, was with her at the time. Mrs Hardy got up to leave and opened the front door of the flat. Mrs Ruffell said that she then saw Mr Hodder standing outside with his arms folded. Mrs Ruffell was sitting on a couch approximately one and a half to two metres away, facing the door. She said that Mrs Hardy said, 'You are not supposed to be here. What are you doing?' Mrs Ruffell said that Mr Hodder then made a gesture with his hand and said something which she did not catch, as he walked away (ts 4).

9 Mrs Hardy was also called as a witness. She said that she was at Mrs Ruffell's flat on 18 September 2011 and that as she went to leave she opened the door and saw Mr Hodder. She said that she was taken aback and said to him, 'You are not supposed to be here, it's against the restraining order.' She said that he then walked away towards his own flat, uttering expletives. She confirmed that Mrs Ruffell was seated on the couch in the room nearby. Mrs Hardy said that she called the police soon after. She said she noted that the time when the incident occurred was 10.20 am by her watch.

10 Both Mrs Ruffell and Mrs Hardy were crossexamined by Mr Hodder. They maintained their evidence. One point put by Mr Hodder was that the violence restraining order was not subsequently confirmed when it came on for hearing on 3 October 2011. That would appear to be so, however that date was after this incident was said to have occurred. There seemed to be no doubt that as at 18 September 2011 the violence restraining order was operative.

11 Mr Hodder also suggested to the witnesses that neither of them had complained of the alleged incident of 18 September 2011 when the final hearing occurred on 3 October 2011. This was clearly intended as a challenge to the credibility of those witnesses, but there was no evidence one way or the other as to exactly what had occurred at the 3 October 2011 hearing. What was clear was that a complaint had been made to the police.

12 There was also police evidence as to the serving of the violence restraining order and as to admissions made by Mr Hodder when police attended to arrest him on 26 September 2011. One of the police witnesses was a Senior Constable Alan Ball. He said that on 26 September 2011 Mr Hodder had commented to him that he had walked past Mrs Ruffell's flat because it was raining on that day and he had bought a newspaper. This was in response to the allegation that Mr Hodder had breached the restraining order on 18 September 2011.

13 Evidence was also led from Constable Frazer Munroe. He said that when Mr Hodder was arrested on 26 September 2011 he said, 'I just walked past. How else was I supposed to get home?' and went on to say that it was raining outside on the day of the incident and he had to walk past Mrs Ruffell's unit (ts 32).

14 Mr Hodder gave evidence in his defence, and I will return to the circumstances in which that occurred shortly. In his evidence he said that he had left home at 9.00 am, on Sunday, 18 September 2011, with a friend Sue Stringer, who was also called as a witness. Mr Hodder said that Ms Stringer had picked him up and they went to a takeaway food store in Belmont. He said they had an early lunch and that after lunch Ms Stringer had dropped him off at the football. He said that that was at Lathlain Park and that he had been dropped off just after 11.00 am; or between 11.00 am to 11.30 am.

15 The implication of Mr Hodder's evidence was that at 10.20 am, when the incident was said to have occurred, he was not in the area and was in the company of Ms Stringer. In effect it was alibi evidence. He also maintained that he had been seen by many people at the football and that it would have been impossible for him to have been at the flats in Subiaco at 10.20 am and get to Lathlain Park by 11.00 am.

16 There was some inconsistency in Mr Hodder's evidence in regards to timing. He was crossexamined in regards to his attendance at the football. He was asked what time it started that day. He said:

The reserves, about - I can't actually fully remember because they had an under 18 game on first and that went for a while. Then the reserves [came] on after that. So it would've been one or two o'clock (ts 38 39).

Something like that, it might have been a little bit before, I am not quite sure.

18 Ms Stringer was called to give evidence and said that she knew Mr Hodder and could recall having been with him on a day. She was asked, 'What day?' and said:

I'm not sure what day, okay, but I know it was Saturday or Sunday or something like that. Because during the football game I always take Mr Hodder to the match.

So what football game are we talking about? What day are we talking about?

I'm not sure, 17 or 18, because you know, the football game is sometimes Saturday, sometimes Sunday and I ...

17 or 18 of what?---September.

Yes, all right. What happened on that day?---On that day I have to take him to - because he cannot drive, he has no licence so every time he ask me to take him to the football match. I remember that day. I took him to the football match in Lathlain, left home around 9.00 or 9.30, something like that and then we stopped at the KFC in Belmont Forum (ts 44 45).

21 Ms Stringer said that Mr Hodder had wanted something to eat, so they had left earlier, but she said the game was 'not played until one o'clock or 12 o'clock or something like that' (ts 45). She said that after she dropped Mr Hodder off, she went to the casino. She said that she would usually pick Mr Hodder up, but on that day she could not so Mr Hodder caught the train back home.

22 Mr Hodder has raised on the appeal a number of ways in which he suggests that the trial before the magistrate was unfair. Firstly, he says that it was unfair because the magistrate required him to give evidence before calling his witness, Ms Stringer:. The evidence in this regard appears on page 36 of the transcript:

HIS HONOUR: ... [N]ow it is your opportunity to go in the witness box and give us your view.

HODDER, MR: I've got one witness.

HIS HONOUR: Sorry?

HODDER, MR: I have got one witness.

HIS HONOUR: Yes, well she can give her evidence after you have finished.

HODDER, MR: What, sorry?

HIS HONOUR: She will give her evidence after you have finished your evidence.

HODDER, MR: Me first?

HIS HONOUR: Yes. Why, is there any problem with that?

HODDER, MR: I'd sooner she give her evidence.

HIS HONOUR: Sorry?

HODDER, MR: I'd sooner she gives hers first.

HIS HONOUR: Well the requirement is that you give your evidence first.

HODDER, MR: But I mightn't need to give any evidence after what she gives.

HIS HONOUR: You can give your evidence or not, I don't care.

HODDER, MR: Let her give the evidence.

HIS HONOUR: No. If you don't give evidence - so you don't want to give evidence.

HODDER, MR: Okay, I'll give evidence then.

23 It is apparent from that exchange that the magistrate, on being told that Mr Hodder had a witness, said to him that if he was going to call a witness and also give evidence himself, he would have to give evidence first. That is, of course, a correct account of the requirement which is contained in s 144(4) of the Criminal Procedure Act 2004 (WA):

If the accused intends to give evidence as a witness, he or she must give evidence before any other witness is called by the accused, unless the court permits otherwise for a good reason.

24 The only reason Mr Hodder gave as to why he should not give evidence first was that he may not need to after Ms Stringer had given evidence. I infer from this that Mr Hodder hoped that Ms Stringer's evidence would be sufficiently clear and conclusive that there would be no need for him to give evidence. That, however, does not appear to me to be a good enough reason for the magistrate to have allowed a variation from the usual procedure. That procedure exists for good reason. One of these is to prevent an accused person having the advantage of hearing their own witnesses give evidence before committing to their own account on oath. This minimises the risk of an accused person seeking to adjust their account to conform with that of the other defence witnesses or to meet deficiencies in the evidence of those other witnesses.

25 Mr Hodder also complained that what he understood the magistrate was doing was requiring him to give evidence in circumstances where he may not have wished to do so. It is, however, apparent from the exchange that the magistrate was saying only that if Mr Hodder wished to give evidence, he had to do so first, not that he was obliged give evidence in his defence. No other interpretation is reasonably open on an examination of that exchange.

26 The second aspect of unfairness that Mr Hodder points to relates to the evidence of Ms Stringer. He says that Ms Stringer's evidence was commenced by the magistrate asking her questions and that after the magistrate had asked questions, the witness was then crossexamined by the prosecuting sergeant and that only after that was Mr Hodder given an opportunity to ask questions in reexamination. That is not immediately apparent from the transcript, but having read the questions closely, I am prepared to accept that the first series of questions asked of the witness was indeed asked by the magistrate. It would also appear that Mr Hodder was not afforded an opportunity to ask questions of the witness before the prosecuting sergeant crossexamined.

27 The procedure followed was unusual and it is not in accord with the practice that should generally be followed in cases of this type. Sometimes a selfrepresented person will be assisted by a judicial officers asking questions that focus on the real issues. The way to frame questions and adduce evidence will often be something that selfrepresented litigants struggle with. However, Mr Hodder is a person with some familiarity with court procedures. He had crossexamined the prosecution witnesses (albeit some of his questions were argumentative). There might well have been a need for the magistrate to have assisted, but what occurred was that Mr Hodder was not given an opportunity to ask his witness questions before the witness was exposed to crossexamination.

28 There was no objection from Mr Hodder to the procedure adopted by the magistrate. That might not be thought to be very significant in the case of a selfrepresented person, but, as I have noted, Mr Hodder has some experience of courts. It is also noteworthy that he objected to the prosecutor asking repetitive questions. He was not a meekly compliant litigant or one who was likely to be overawed by the setting or the magistrate. He was, furthermore, invited to ask questions in reexamination and used that opportunity to seek clarification of the evidence (without success).

29 Mr Hodder has said that the opportunity to reexamine was not sufficient to undo any unfairness because, had he been given an opportunity to ask questions in chief, he could have focused the witness on the issues which were of concern to him, and the witness may have been more settled before being exposed to crossexamination. This appropriately brings the focus back to whether the procedure followed by the magistrate actually resulted in unfairness in the circumstances of this case.

30 When asked by me what impact on the trial this had had, Mr Hodder suggested that there may have been other questions that he would have asked the witness that were not asked by the magistrate. The questions that he suggested were as to the day, date and time that Ms Stringer collected him and they were together. An examination of the transcript reveals that those questions were in fact put by the magistrate, and put in a non-leading way that allowed the witness to give her own account of the events. There was nothing aggressive or confusing about the magistrate's questions. Importantly, the answers were only to the benefit of Mr Hodder. In particular, the magistrate asked questions in regards to whether Ms Stringer had picked Mr Hodder up, what day that had occurred, what time that had occurred and what else had happened on that day.

31 At the conclusion of the evidence Mr Hodder made oral closing submissions. He relied strongly on the evidence of Ms Stringer and submitted that she was a credible and reliable witness. There was no suggestion that Ms Stringer's evidence given in response to the magistrate's questions was anything less than Mr Hodder had wanted from her. Nor was there anything to suggest that he had been in any way prejudiced by the procedure that had been followed. The only reasonable conclusion that can be drawn is that he had no difficulty or concerns about that procedure at the time.

32 In these circumstances it is difficult to see what unfairness in fact resulted from the course of events. As I say, the evidence that Ms Stringer gave was exactly the evidence that it would seem Mr Hodder wished to obtain from her (vague though it was). The critical point at the end of the day was whether that evidence was believed or raised a reasonable doubt. If not, the issue was whether the evidence of the prosecution witnesses was believed and satisfied the magistrate beyond reasonable doubt that the offence had been committed.

33 There was some vagueness about Ms Stringer's evidence, but insofar as there needed to be any clarification, Mr Hodder had an opportunity to clarify those issues in reexamination. He did ask some questions, but not many. He clearly decided that he had nothing to gain and stopped quite quickly. Given the way in which Ms Stringer answered, which was to the effect that he was only asking her questions that she had been asked before and her answers remained the same, it is understandable why he did not persist. Thus insofar as there was any vagueness about Ms Stringer's evidence it does not appear to be vagueness that could have been corrected had a different procedure been adopted.

34 The third matter that Mr Hodder has raised by way of unfairness is that he could have brought other witnesses to court who had seen him at the football and that these witnesses may have assisted his case. There are references in the course of the transcript to Mr Hodder saying that there were many witnesses who could say he was at the football. The fact is, he did not seek to call them at the trial. The reason for that would appear to be that at the transcript page 44 the following exchange occurred. The magistrate asked:

Well, you just keep saying you can get a hundred witnesses to say you were at the football?---Yeah, they can't say where I was at 10.20, I admit that.

Well, that's what we are talking about?---But they would say I was at the football.

No one disputes you were at the football?---Okay.

35 As the magistrate was quite correctly pointing out, the issue was not whether Mr Hodder had been at the football on 18 September but where he was at 10.20 am on that day.

36 Mr Hodder has also complained that the reasons of the magistrate were deficient. In particular he referred to a passage that appears at page 54 of the transcript:

I heard the evidence of the two ladies, Mrs Ruffell and Mrs Hardy, who were adamant about what they had seen. They were adamant that it was Mr Hodder who was there and as a result of seeing him there they said they rang the police. And they did ring the police because the police came around and took their statement.

I am satisfied that Mrs Ruffell and Mrs Hardy would not have conspired together on this morning and decide to get Mr Hodder into trouble by fabricating the account that they gave. And having seen the two ladies in the witness box, as I said I am satisfied that the account they gave is the correct account.

I am unable to believe the account given by Mr Hodder or the account given by Ms Stringer in relation to the fact that he had gone from the units there by 9.30. So the charge is proven.

37 Mr Hodder's complaint about that passage is that the magistrate did not explain why it was he had preferred the evidence of the prosecution witnesses to that of the defence witnesses, being himself and Ms Stringer, and why it was that he was satisfied by the prosecution witnesses beyond reasonable doubt. He says that more detailed reasons for the magistrate's conclusions should have been given and that he has been denied any opportunity to understand how that decision was made.

38 On an examination of the reasons, it is clear that the magistrate did indeed prefer the evidence of the prosecution witnesses Mrs Ruffell and Mrs Hardy, but he did not say so without explanation. He said that they were adamant as to what they had seen. This is clearly an indication that he found their evidence to be certain in its terms. He said that, as a result of what they saw, they contacted the police. This seems to be a reference to the consistency of their actions. He says that he was satisfied that they had not conspired together on the morning, and I infer from that that he found it relevant that their evidence was to the same effect and that they therefore corroborated each other.

39 In those circumstances there were reasons given as to why the magistrate accepted the evidence of the prosecution witnesses. If, as is apparent, he accepted their evidence beyond reasonable doubt, it necessarily followed that he must reject that of Ms Stringer and Mr Hodder. It is true that he does not give detailed reasons for why he says he is unable to believe the account of the defence witnesses, but he did detail in his reasons the nature of that evidence, and it is clear that there was some vaguenesses about it (particularly as regards timing).

40 In proceedings in the Magistrates Court it is often necessary for magistrates to give oral and brief reasons for their decision. It has to be borne in mind that the Magistrates Court is a busy court dealing with many matters. Whilst those matters are often important to the parties involved, the seriousness of them does not always necessitate lengthy reasons. This was a short trial (it started at 11.19 am and finished at 3.11 pm) and related to a single simple offence. It was not necessary that the magistrate's reasons be long or needlessly detailed. What was necessary was that they be an adequate explanation of why it was that the magistrate reached the conclusion that he did: Bennett v Carruthers [2010] WASC 5.

41 In this case the matter resolved to a simple issue. Did the magistrate accept beyond reasonable doubt the evidence of the prosecution witnesses that Mr Hodder had been outside Mrs Ruffell's flat at 10.20 am on 18 September 2011? It was clearly a question that went to the issue of credibility. He had the benefit of seeing all of the witnesses involved and he referred to that fact in his reasons. Clearly he had to take into account the defence witnesses and consider whether he either accepted their evidence or, more to the point, whether they caused him to have reasonable doubt.

42 This was not a case where the magistrate had expressed a view that the defence evidence was truthful and then, inexplicably, preferred that of the prosecution witnesses: Douglass v The Queen [2012] HCA 34 [13]. Rather it was a case where, having considered all of the evidence, including that called for the defence, the magistrate concluded that he was satisfied beyond reasonable doubt that the offence was proved. His reasons in that regard, taking into account the circumstances of this case, were adequate.

43 There was also an issue raised by Mr Hodder on this appeal as to fresh evidence. This was not a matter raised in his grounds of appeal. At the hearing he referred to being in possession of a letter which was received by him some time after the trial and that he says is relevant to the general credibility of Mrs Ruffell and Mrs Hardy. He did not suggest that it positively disproved their evidence of what occurred on 18 September 2011. He filed no affidavit in respect of that matter and made no application to adduce fresh evidence on the hearing of this appeal. Nor did he seek an adjournment to do so. In these circumstances there was no basis upon which the letter could be received.

44 The next matter raised by Mr Hodder was that the guilty verdict was unsafe or unsatisfactory. When an appellate court is asked to conclude that a decision is unsafe or unsatisfactory, the question is whether upon the whole of the evidence it was open for the decision-maker to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question, the appellate court must give consideration to the fact that the decision-maker has had the benefit of seeing and hearing the witnesses: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.

45 I have referred earlier to the evidence that was adduced in this case. It is clear that it was open to the magistrate to accept the evidence of the prosecution witnesses and, if he did so, for him to reach a conclusion that the prosecution case had been established beyond reasonable doubt. I take into account in that regard that not only was there the evidence of Mrs Ruffell and Mrs Hardy, but also evidence of the police officers who said that Mr Hodder had made admissions to them when he was arrested, as to being in the near vicinity of Mrs Ruffell's flat on 18 September 2011. Accordingly, the assertion that the verdict was unsafe or unsatisfactory is untenable.

46 The final matter raised by Mr Hodder related to the sentence imposed. The appeal notice stated that the appeal was also against sentence, but there were no grounds relating to the sentence. On the hearing of the appeal, Mr Hodder said he wanted to appeal against the sentence. He said that his submission was that the fine was too high because it did not take into account that he had spent two days in custody.

47 The maximum penalty for an offence of breaching a violence restraining order contrary to s 61(1) Restraining Orders Act is a fine of $6,000 or imprisonment for 2 years or both. It is not clear whether the magistrate took into account time spent in custody. There was no reference to it by Mr Hodder when asked by the magistrate if he wanted to make submissions on sentence. In any event, the penalty was a modest one and, even assuming the appellant did spend two days in custody before being bailed, it is not one that could be said to be manifestly excessive.

48 In those circumstances it was my view that leave to appeal must be refused and the appeal dismissed, and I so ordered.