APPEAL AND NEW TRIAL - in general and right of appeal - appeal from Magistrates Court - magistrate using affidavit not read - error in doing so - appeal upheld.

Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 4, 9, 10, 12, 26, 27, 29, 31

Evidence Act 1995 (Cth), ss 43, 128, 103

Human Rights Act 2004 (ACT), s 21

Magistrates Court Act 1930 (ACT), Pt 4.5

Crimes Act 1900 (ACT), ss 22, 24, 26

Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9

Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118

Lane v Lane [2011] ACTSC 53; (2011) 249 FLR 86

Société d'Avances Commerciales v Merchants' Marine Insurance Co [1924] 20 Ll L Rep 140

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Powell v Streatham Manor Nursing Home [1935] AC 243

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Yuill v Yuill [1945] P 15

Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55

R v Esposito (1998) 45 NSWLR 442

Jahree v State of Mauritius [2005] UKPC 7; [2005] 1 WLR 1952

Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492

Barrister's Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On the evening of Anzac Day, 25 April 2004, the appellant, Gary Wilson Kingston, went to the Burns Club in Tuggeranong. Sometime after he arrived, he went to the back wall of the poker machines, sat down and put some money in.

2. He said that shortly after that, he was tapped on the shoulder, turned around and was punched in the mouth. He said that his wife reported the incident to the police.

3. He later made an application for criminal injuries compensation under the Victims of Crime (Financial Assistance) Act 1983 (ACT) (Victims Compensation Act) dated 19 January 2005. That application came before the Magistrates Court on 26 November 2007. After a hearing, the Learned Magistrate dismissed the application.

4. By Notice of Appeal dated 21 December 2007, Mr Kingston appealed against the dismissal of his claim. On 31 July 2008, the appeal came before me for hearing. After some argument and an adjournment, I allowed the appeal and remitted the application to the Magistrates Court to be heard by a differently constituted court. I ordered that the respondent pay the appellant's costs. I said that I would give reasons later. These are those reasons.

5. Mr Kingston gave evidence about the following facts. He went to the Burns Club on 25 April 2004 at around 6.00 pm to 7.00 pm. He purchased a drink and went to play the poker machines. As he walked over to the poker machines, two men in front of him blocked his way; one man had his arm on the other man's waist. Mr Kingston said, "Excuse me" and the two parted so he could walk through, which he did.

6. When he reached the poker machines, he sat down and inserted some money. He felt a tap on the shoulder and turned around, only to be punched in the mouth. He felt pain and a bit dazed and felt blood in his mouth.

7. He grabbed the man who punched him and they fell to the ground, but were shortly after separated. Mr Kingston felt some loose teeth in his mouth but some were gone.

8. He went to the washroom and cleaned himself a little then went to the Club's reception where he asked to use the phone. Permission was given and he called a friend to come to the Club and collect him. He also asked a member of staff to call the police. He told the staff member what had happened.

9. While he was outside the Club, waiting for his friend, a young man approached him with the two front teeth that had been knocked out.

10. It was not clear from the material in the Appeal Book whether police attended at the Club; Mr Kingston did not see them before he left. He spoke to them the next day at his home.

11. Mr Kingston later attended a dentist at Dickson. The two front teeth could not be re-attached and a "vacuum-formed tooth coloured upper denture" was made. For the third tooth, a tooth coloured resin bonded composite was placed on a chipped upper left lateral incisor to replace the missing tooth portion.

12. The costs of these treatments were not disputed by the respondent.

13. Applications may be made under the Victims Compensation Act for financial assistance where a person has been injured as a direct result of a violent crime (s 9). A violent crime includes an offence of assault under provisions such as ss 22, 24 and 26 of the Crimes Act 1900 (ACT). In this case, the offence was likely to have been common assault (s 26) or assault occasioning actual bodily harm (s 24), though one of the others is possible.

14. The Victims Compensation Act establishes the following scheme. Applications are made to the Magistrates Court (s 26). Financial assistance is payable even though no conviction has been recorded (s 29). The civil standard of proof, the balance of probabilities, applies to applications (s 29).

15. To succeed, the applicant must prove that he was injured as a direct result (s 9) of the violent crime (s 9) being committed on him and he may be awarded expenses reasonably incurred by him or on his behalf as a result of the injury, pecuniary loss suffered, the expenses of making the application, other than lawyer's fees and, in certain circumstances, special assistance (s 10). No claim was made by Mr Kingston for special assistance.

16. The injury must have been sustained directly and in the ACT after 30 June 1983 (s 4).

17. The Act provides for certain preconditions to such assistance. These include that no financial assistance is available if the crime was not reported to police (s 12(1)(c)) and that the court must not award assistance if at the time that the injury was sustained, the applicant was engaged in the commission of a serious crime (s 12(2)). A serious crime is defined in the Dictionary to include an offence against the person, an offence relating to property and an offence involving dishonesty.

18. Under s 31 of the Act, the court must take into account, when deciding whether to award financial assistance and the amount, "the behaviour, condition, attitude and disposition" of the applicant and any other consideration the court considers relevant.

19. Mr Kingston made application in the approved form, accompanied by a report from his dentist, a copy of a police report and receipts for the expenses incurred in his medical treatment and obtaining the police report. No statutory declaration, as required by s 27 of the Victims Compensation Act, was attached to the application in the Appeal Book. It may, however, have been on the file and also may have been the document referred to below (at [25]).

20. Mr Kingston gave evidence. His evidence in chief was broadly that set out above (at [5] to [12]).

21. He was cross-examined. He was asked questions about why he did not call the police and he said it was because he asked the Club manager to do so. It was put to him that his wife, who had spoken to police, had told them that he had lost five teeth when it appears he had lost only two teeth and sustained significant damage to a third tooth but he said he did not know that. He agreed he had given two statements to police.

22. It was also put to him that he told the police officer who attended his home that four teeth had been dislodged and he agreed that he could have said that.

23. He said in evidence that three teeth had been knocked out, though one had, in fact, only been significantly damaged or chipped. He maintained that his plate had three teeth in it. He did say that, at the time, he did not know how many teeth had been knocked out but that two had been given back to him.

24. He was also asked about the occasion when the two men were blocking his way. He agreed that he had told police that one of the men had attempted to grab the mobile phone off the belt of the other and he thought that they may have been talking together about the phone.

25. He also said in answer to some questions that he had had only one drink that day and a beer at home about half-an-hour before he went to the Club. An affidavit he was said to have made in 2005, however, appears to have stated that he had drunk four beers that day. He suggested that the statement in the affidavit was false. I note that the Learned Magistrate actually asked that question: "So when you swore that affidavit in 2005, you swore a falsity?" The answer to that question had the capacity to prove that Mr Kingston may have committed the offence of perjury. Despite that, Mr Kingston's lawyer did not object to the question.

26. It seems to me, however, that it is undesirable for a judicial officer to ask a question the answer to which might tend to prove that the witness has committed an offence, at least without warning the witness that he or she may refuse to answer the question unless a certificate is given to him or her under s 128 of the Evidence Act 1995 (Cth).

27. Indeed, his Honour did not stop there but continued to probe about what was said to be a false answer.

28. A judicial officer has a duty to see that the hearing is fair; the right to a fair trial, under s 21 of the Human Rights Act 2004 (ACT), applies to civil trials as well as criminal trials: Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9 (at [38]).

29. Thus, even though Mr Kingston's counsel did not object, his Honour had an overriding duty to ensure that the proceedings were not unfair to Mr Kingston.

30. Mr Kingston was also subjected to cross-examination initiated by the Learned Magistrate about another error based on what was said to have been in the affidavit, in which Mr Kingston appears to have deposed that he drank bourbon and coke when in evidence at the hearing he said he drank bourbon and lemonade. Again, his Honour, without warning him that he could decline to answer, suggested to him that his affidavit was false.

31. The affidavit was never tendered and it is not clear where his Honour obtained a copy of the affidavit which, so far as I could discern, had not been read or tendered or was otherwise in evidence.

32. In further evidence, Mr Kingston said that he did not know the two men who had blocked his way. He agreed that he had told police that one of these men was the one who had punched him in the mouth. He said that he had never seen the men after he had walked between them. It was then put to him that this could not be correct if he had then seen one of them later punching him.

33. While strictly correct, it seems to me that, in the context, it was not unreasonable to consider that "you have never seen either of these men after you walked between them" could have fairly been interpreted by Mr Kingston to be referring to a time after the incident which could be said to include him being punched as it was so contiguous with walking between the men. While in strict logic the punch was thrown after he had walked between the men, the tenor of the question would indicate that the question was referring to a period of time after the whole incident, that is, say, later in the Club after he had been assaulted or on another day. This answer would be a slippery peg on which to hang any significant issue of credibility.

34. There was then further cross-examination and the learned Magistrate, who obviously had a copy of the affidavit, showed it to Mr Kingston and started to cross-examine him about other statements in it, such as that in it he said he had arrived at the Club at about 9.00 pm when in evidence he had said it was earlier, about 6.00 pm or 7.00 pm. His Honour proceeded to cross-examine Mr Kingston quite forcefully, not merely trying to clarify an issue that arose out of the evidence before him, but expressing scepticism about his credibility and challenging it.

35. In effect, his Honour then took over the cross-examination which continued for about two pages of the transcript, traversing matters that had not been raised by either counsel.

36. Later, his Honour interrupted the cross-examination again, suggesting to Mr Kingston that there were matters he had not put in his statement to the investigating police officer though it is not clear from what material his Honour found that they had not been included or from where his Honour obtained a copy of the police statement which was not in evidence. Mr Kingston answered that things had been "very cloudy" for the next two days, perhaps understandable when he had just had some of his teeth punched out. His Honour then recognised that he had been too interventionist, saying "Anyway, I should not be interfering, run the case the way it should be run".

37. Mr Kingston was then asked by the respondent's counsel about other matters that were said to be omitted from his statement to police. It was put to him that the reference to the mobile phone was a recent invention. Curiously, it was then suggested that he had himself unclipped the mobile phone from the belt of one of the two men who then came over and tapped him on the shoulder when Mr Kingston was at the poker machines, but he denied taking the mobile phone.

38. It was put to Mr Kingston that he had fabricated the story because what happened was that he actually took the mobile phone from the belt of one of the two men which was why one of the men came over to him at the poker machines. He denied that. It was then suggested that it was he, Mr Kingston, who had hit the other man by punching him first and he denied that also. It was suggested that he was punched because he had hit the other man first; he denied that.

39. The Learned Magistrate then further intervened, putting to Mr Kingston matters that had come from the police report attached to the application.

40. Mr Kingston was also asked about his relationship with the witness to be called by him, Mr Matthew Harriott, and his contact with him on the night. He also said that Mr Harriott could have handed him a mobile phone when he gave him his two teeth.

41. Mr Harriott was then called. His evidence corroborated that of Mr Kingston. In cross-examination, he agreed that he had told police that he had seen Mr Kingston bump a mobile phone out of the hand of an unknown male. He said that what he had said in his statement to police was correct. He agreed that he also said that Mr Kingston looked like he was apologising to the man when he handed the phone back to him.

42. He denied that Mr Kingston had hit the unknown male first. He also said he had believed he had picked up four teeth as well as a mobile phone near the poker machines, though he subsequently spoke to Mr Kingston and now knew he had only picked up two teeth.

43. He said that Mr Kingston told him to hold on to the phone and he kept it until he handed it to police later. He was also asked some further questions about the mobile phone.

44. He was also asked whether he saw Mr Kingston take the mobile phone out of the belt of the other man and he said he did not. He also denied that he had fabricated his evidence.

45. It appears that Constable Goldschmidt may have then given evidence. I say that because in the transcript there is a reference to Constable Goldschmidt being sworn in. For some reason, however, anything he said in that evidence was not reproduced in the Appeal Book. On the other hand, in his reasons the Learned Magistrate suggested that there had been no evidence given for the respondent.

46. Neither party took any issue about that and at the hearing I was not asked to read that evidence. The parties had both signed the Certificate of Examination as to the correctness of the material in the Appeal Book.

47. It seems to me difficult, if not impossible, to deal with an appeal properly in the absence of some of the relevant evidence but, in the event, the basis on which the appeal was decided ultimately made this irrelevant.

48. The Learned Magistrate dismissed the application.

49. His Honour described Mr Kingston as "an unconvincing witness". His Honour referred to Mr Kingston's admission that evidence in the affidavit was false, referring specifically to the discrepancies in the time of arrival at the Club and the amount of alcohol that he had consumed. His Honour also referred to matters omitted from his statement to the police, such as the alleged intoxicated state of the two men blocking his way.

I found him to be an evasive witness whose demeanour was such as to indicate that he had been found out in untruths in either his sworn evidence or his affidavit. His body language and demeanour was unimpressive.

51. I am mindful of what Lord Aitkin said in Société d'Avances Commerciales v Merchants' Marine Insurance Co [1924] 20 Ll L Rep 140 (at 150):

... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

52. While this passage was cited with approval by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 129; [30]) per Gleeson CJ, Gummow and Kirby JJ, it does not seem to me wholly inconsistent with Lord Atkin's references to "the initial advantage of the judge who saw and believed" in Powell v Streatham Manor Nursing Home [1935] AC 243 (at 255), also cited with approval by the High Court in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 (at 539) per Gibbs ACJ, Jacobs and Murphy JJ.

53. His Honour then went on to consider Mr Harriott's evidence. His Honour said:

The witness Matthew Harriott gave evidence and appeared to be doing his best to give full and frank evidence, in my view. The problem with his evidence is that he has given evidence that accords with that given by the applicant in exact details where there has been admissions now that that is wrong ...

I formed the view that Mr Harriott was doing his best to assist the applicant. I do not necessary [sic] say this by way of criticism but it does taint his evidence.

54. His Honour then said "[t]he respondent called no evidence", which may explain why no transcript of evidence of Constable Goldschmidt was reproduced in the Appeal Book; perhaps, indeed, he gave no evidence.

55. His Honour noted that this meant "there is nothing tangible to rebut the applicant's case" and then concludes:

This does not necessarily mean that the respondent must fail. Having formed the view I have of the applicant and his evidence, and having formed the view that the evidence of Mr Harriott is tainted, having looked at the claim and the particulars there set out and not being satisfied that it has been proved that Robert Leyton Lees was the person who assaulted, I must say that I am unable to find where the truth lies. I am not satisfied that the applicant has satisfied his onus. I therefore dismiss the claim.

56. Mr Kingston, through his lawyers, appealed against this decision. The grounds of the appeal, as set out in the Notice of Appeal, were:

(a) Took into account irrelevant factors in making his decision.

(b) Rules against the weight of the evidence presented.

57. Both parties filed detailed and helpful written submissions on the appeal.

58. Appeals from the Magistrates Court in civil matters are regulated by Pt 4.5 of the Magistrates Court Act 1930 (ACT).

59. So far as such an appeal is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court 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. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned, though this approach must not derogate from the obligation of the appellate court to conduct a real rehearing.

60. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons. The court has power to receive further evidence.

61. The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.

62. The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.

63. See Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 and Lane v Lane [2011] ACTSC 53; (2011) 249 FLR 86.

64. As this appeal was not decided on a ground raised by either party, it is not necessary to examine their contentions in detail.

65. Mr Kingston, through his counsel, submitted that, despite the doubts about Mr Kingston's evidence, there was no challenge to the basic facts entitling him to compensation, namely that there was, after 30 June 1983, an assault, probably amounting to an assault occasioning actual bodily harm, and that Mr Kingston had suffered injury as a direct result of the commission of the offence.

66. He submitted that the credibility issues did not undermine any finding about these matters which were supported by other evidence, that of Mr Harriott and the dental treatment, the costs for which were agreed.

67. There were also submissions about whether the credibility issues were such that s 103 of the Evidence Act 1995 (Cth) was engaged and that, in any event, such issues traversed were of little probative value having regard to the lapse of time since the events involved.

68. The respondent, however, made two fundamental challenges to the appellant's application: that he had stolen the mobile phone and thus committed a crime which disentitled him to financial assistance and, secondly, whether the man who punched Mr Kingston was acting in self-defence, in which case there was no criminal conduct which caused Mr Kingston's injury. These were ambitious submissions in the absence of any evidence from the respondent, though the respondent may have been able to make them out.

69. In any event, as noted above, I do not have to decide them.

70. When it came to the hearing, the real issue became apparent, namely that the Learned Magistrate was reliant on material that was not properly before him.

71. As noted above (at [25] to [36]), his Honour intervened significantly in the cross-examination of Mr Kingston. While I am not called upon to decide whether these interventions meant that the hearing miscarried, it is not inappropriate to note that they did not follow the well-worn path of proper judicial practice. That is to say, his Honour did not refrain from interrupting the respondent's counsel's cross-examination (Yuill v Yuill [1945] P 15 (at 20)), which may have hampered the proper and prepared cross-examination of counsel (Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 (at 65)). Especially are such interventions undesirable where the questioning by the judicial officer amounts to the judge overstepping the fine line between questions designed to clear up equivocal or uncertain answers and cross-examination (R v Esposito (1998) 45 NSWLR 442 (at 472)), especially if that amounts to expressing scepticism of parts of a witnesses evidence (R v Esposito (at 472)) or to appear to be siding with one party (Jahree v State of Mauritius [2005] UKPC 7; [2005] 1 WLR 1952 (at 1959; [21]).

72. The issue on which the appeal had to be upheld, however, was that the Learned Magistrate used material that was not before him. It is a fundamental rule of the adversarial system of the common law under which we operate that a judge should not rely on evidentiary material that has not been tendered by the parties: Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492 (at 495, 508, 517).

73. The propriety of the use by counsel for the respondent of the affidavit (or statutory declaration - there seemed to be some lack of clarity about the document and it was not produced at the hearing or reproduced in the Appeal Book) was not in doubt. It was, it appears, a prior inconsistent statement and s 43 of the Evidence Act was full justification for its use in the hands of counsel as happened in this case. The document need not to have been shown to the witness. Whether the document is ultimately admissible in evidence depends upon the response of the witness to questions about the document and the other provisions of the Act as to admissibility.

74. In any event, it was not tendered in this case. As such, it was not available to the Court and it should not have been used by the Court or relied on except as it had been used by counsel.

75. That it appears to have been on the Court file, for that appears to have been the only way in which the Learned Magistrate could have accessed it, is not sufficient. As Brinsden J said in Barrister's Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65 (at 67):

Evidence is led by affidavit, not by merely filing the affidavit, but by reading it to the court. An affidavit which has been placed on the file does not become part of the proceedings until it is opened to the court (see Manson v Ponninghaus [1911] VicLawRp 49; [1911] VLR 239). A party is entitled to read to the court an affidavit filed on behalf of another party (see Re Margetson & Jones [1897] 2 Ch 314). It is true that in proceedings in the Supreme Court it is often the practice that the affidavits are not formally read to the court, but even if this formality is not carried out, nevertheless the party should indicate upon what affidavits it relies.

77. The respondent was clearly not relying on the affidavit, other than as a prior inconsistent statement, and so not reading the affidavit in the sense used in the passage cited above. Indeed, before Mr Kingston gave evidence, the respondent's counsel expressly disavowed any intention to tender the affidavit. In my view, the affidavit was not before the court and was not available for use by his Honour.

78. Once this issue was ventilated on appeal, the parties agreed that the appeal had to be upheld and I ordered accordingly. These are my reasons for doing so.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Government Solicitor