Klewer v Walton

Supreme Court of NSW|2002-07-02|Before: Mr P

CITATION : Klewer v Walton [2002] NSWSC 809 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10266/2002 HEARING DATE(S) : 2 July 2002 JUDGMENT DATE : 6 September 2002

Lucy Klewer (Plaintiff) PARTIES : Ian Walton (Defendant) JUDGMENT OF : Master Harrison

Ms L Klewer (Plaintiff in person) SOLICITORS : Hannigans (Defendant) CATCHWORDS : Quash Magistrate's decision - private criminal prosecution - The Local Court proceedings - Evidence Act 1995 (NSW) - Admission Crimes Act 1900 - ss 61, 314, 547B LEGISLATION CITED : Justices Act 1902 Evidence Act - ss 33(1), 32, 38 DECISION : (1) The Magistrate's decision of 10 December 2001 is affirmed; (2) The appeal is dismissed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (Quash Magistrate's decision; private criminal prosecutions) 1 MASTER: By summons filed 9 January 2002 the plaintiff seeks an order that the decision of O'Keefe LCM (the second defendant) dated 10 December 2001 at Coffs Harbour be quashed and the decision declared void. The plaintiff relied on her affidavits sworn 4 January 2002 and 26 April 2002. She appeared unrepresented although she has obtained a law degree. The second defendant filed a submitting appearance. The critical issues in this appeal are whether a prior written statement made by a police officer should have been admitted as evidence and whether that officer should have been treated as an unfavourable witness. 2 On 10 December 2001 the plaintiff was the unrepresented informant in a private summons matter against the first defendant. The case against the first defendant was for offences under ss 61, 314, and 547B of the Crimes Act 1900 and was heard in the Local Court at Coffs Harbour before O'Keefe LCM. After a contested hearing the Magistrate dismissed the informations and ordered that the informant pay the defendant's professional costs assessed at $10,504 within 14 days. The plaintiff submitted that had the statement been admitted into evidence, it would have proved she had been assaulted and that evidence would form the basis by which the two other charges would have been proved. 3 At the hearing the plaintiff provided an outline of submissions. She submitted that the Magistrate denied her a fair opportunity to present her case by refusing to allow the plaintiff to cross examine Sergeant Levey in circumstances where firstly, Sergeant Levey had to be compelled to attend to give evidence by the issue of a subpoena; secondly, Sergeant Levey had prepared a witness statement with a view to being a witness against her in criminal proceedings arising out of the same circumstances which gave rise to these proceedings; thirdly, Sergeant Levey had made a prior inconsistent statement; fourthly, Sergeant Levey's demeanour and evasive replies made it apparent that he did not wish to assist the plaintiff's case; and fifthly, Sergeant Levey was not apparently making a genuine attempt to give evidence. According to the plaintiff the Magistrate failed to apply the provisions in s 38 of the Evidence Act and further denied her a fair opportunity to present her case by refusing to allow her to have a police officer read the contents of a statement as evidence in chief for the prosecution, contrary to s 33. The plaintiff submits that the statement and evidence of Sergeant Levey were crucial for her case. Further in the notice of appeal the plaintiff alleges that the statement of police officer Levey contained an admission of guilt by the first defendant; and secondly, that the Magistrate's determination was erroneous at law. 4 The list judge referred this matter to me for hearing. Section 104(2)(b) and (c) of the Justices Act 1902 states that an informant may appeal under this Division to the Supreme Court on a ground that involves a question of law alone against an order made by a Magistrate in summary proceedings dismissing an information or complaint, or an order for costs made by a Magistrate in summary proceedings. 5 The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or confirm, quash, set aside or vary the conviction, order or sentence appealed against or any part of it; increase or reduce the sentence appealed against; make such other orders as it thinks just; or remit the matter to the Magistrate who made the conviction or order, or impose the sentence, to hear and determine the matter of the appeal (s 109). The plaintiff indicated that while she wanted the dismissal quashed, she did not want the matter remitted to the Magistrate.

The Local Court proceedings 6 As previously stated the plaintiff launched private criminal prosecutions against the defendant and laid three informations in relation to ss 61, 314 and 547B of the Crimes Act 1900. The defendant Ian Walton was the headmaster of John Paul College at Coffs Harbour. The plaintiff's son was a pupil at that school. 7 Section 61 states: "Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years." 8 The information stated: "1.30p.m. On the 7th March 2001, the defendant did grab the informant by the left arm and move her from one end of the admin desk at John Paul College shortly after he interrupted her from calling the local police. The informant was at the time attempting to call police after she was called to attend JPC in relation to an incident in which her son sustained a head injury." 9 Section 314 states: "False accusations etc A person who makes an application intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years." 10 Section 547B states: "Public Mischief (1) Any person who, by any means, knowingly makes to a member of the police force any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a member of the police force, shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 12 months, or to a fine of 50 penalty units, or both. (2) …" 11 The informations which give the particulars of the charges pursuant to ss 314 and 546B were not put in evidence before this court. 12 At the Local Court hearing the plaintiff called as her first witness Sergeant Levey who had investigated the events surrounding the alleged assault on her son by another student. The plaintiff and her son also gave evidence in support of the plaintiff's cases. The son was not present in the area where the alleged assault took place. At the hearing after the plaintiff closed her case she sought to call the defendant as her witness but the Magistrate ruled against this course of action. The Magistrate then stated that there was no evidence to satisfy the court sufficiently beyond a reasonable doubt that the defendant had committed the offences pursuant to ss 314 and 547B of the Crimes Act. These charges were dismissed (t 42). The defendant presented his case. The defendant gave evidence as did Leon Paul Walsh, the Deputy Principal. At the conclusion of the hearing the Magistrate gave reasons for his decision. The Magistrate stated that on the plaintiff's version of events she went to the school and: "spoke to him [her son] briefly outside, the Principal's office, and then spoke to the Principal, and she alleges that an assault took place on her when she attempted to use a phone, it was removed from her, and she says that she was taken by the arm and forcibly removed, that she was pulled down the corridor in the process, by Mr Walton, in the process of him wanting her to leave, and that this constituted an assault." 13 The Magistrate continued: "Now Mr Walton and Mr Walsh, the Deputy Principal, have given evidence that in fact he did not, Mr Walton did not in fact put a hand on her or pull her in the matter that she suggested. Certainly he indicated to her that she should leave if she was going to continue behaving in the fashion that he alleges she was behaving at the time. And the evidence, his evidence, and supported to some extent by that of Mr Walsh, is that she was using a raised voice and using words like "moron" and so on at the time, and that there were other, there were students in the area." 14 The Magistrate concluded: "Mrs Klewer, really has a very weak case, it seems to me. And bearing in mind the denial on oath by Mr Walton and Mr Walsh that any physical act had occurred, this complaint must fail, that she has failed to prove the matter beyond a reasonable doubt, which is what she must do, and, therefore, THE CHARGE IS DISMISSED." 15 As previously stated, the plaintiff chose to call Sergeant Levey as her first witness. The plaintiff asked Sergeant Levey to read page 8 of his statement to the court (t 4). Before Sergeant Levey could do so the defendant's legal representative objected. The Magistrate ruled that he could not read from the statement but give the best evidence, namely oral evidence. The plaintiff then asked Sergeant Levey if he was going to be a hostile witness. The defendant's legal representative objected to this question. The Magistrate pointed out that the witness had only had by that stage the opportunity to give his name and address. 16 The plaintiff then sought to have the witness declared hostile because he may be a witness in a case where she is the defendant and she perceived that there was a conflict of interest. On 28 April 2001 Sergeant Levey made a statement in proceedings which have been taken by the police against Lucy Klewer. At page 11 of the transcript the Magistrate asked the defendant's legal representative whether he had any objection to Sergeant Levey recounting the conversation he (Sergeant Levey) had with the defendant Mr Walton by telephone. The defendant had no objection. That conversation is recounted at paragraph 8 of Sergeant Levey's statement. The transcript reads: "Q. Can you give us the conversation? A. I phoned Mr Walton in relation to the matter of the boys, and there was also conversation about the behaviour of Mrs Klewer in the office, and that she had to be ejected from the office due to her swearing and her yelling out, which could be heard right across the school. Q. Now this, about Mrs Klewer being ejected from the office, are you talking about the office at the school, is that the case? A. Yes. INFORMANT: Q. Can you describe "eject" - the way you described what you now say "ejection", those words you used - that Mr Walton used at the time, what were the actual words? A. The words - at no time did Mr Walton say that he touched you or used any force on you. Q. I'm asking what words he used in that conversation? A. That conversation was in March of this year, the exact words he used I can't recall, however at no stage did he say to me that he touched you or used any force on you. INFORMANT: Q. Okay. Your Worship, if he can't recall can I seek to show him the statement to refresh his memory? BENCH: Yes. INFORMANT: Q. Paragraph 8? A. Yes. Q. Can you tell the Court what words he used? A. No, that, that paragraph there is a, a sentence in brackets, which doesn't use any first person. Q. Can you, can you say what's in brackets please? O'CONNOR: Object. INFORMANT: It, it relates to-- BENCH: Well he can only refresh his memory from that, and you're asking him to say what Mr Walton said. INFORMANT: That's right. BENCH: And that's - he's now refreshed his memory, he's had a look at it and he can read - ask him again. Q. Now that you've looked at that statement do you recall what Mr Walton said to you? A. No your Worship, it's still the same. They're along the lines of that she had to be ejected from the office due to her behaviour, and at no time do I recall him saying that he had to touch her or use any force on her. INFORMANT: Your Worship he's lying under oath. BENCH: This witness is your witness, and you-- INFORMANT: He's a reluctant witness your Worship. BENCH: --you can't, you can't cross-examine him, you - and he's given his evidence, and that's where we're at. Anything further from the witness? INFORMANT: Not at this stage your Worship." 17 Paragraph 8 (with the exception of a sentence in parentheses) of that statement states that he (Sergeant Levey) "later made a telephone call to Mr Ian Walton at John Paul College Coffs Harbour. I made inquiries with Mr Walton in relation to the incident involving the young person Robert Klewer. Mr Walton also informed me of an incident between staff at the College and Mrs Lucy Klewer." 18 The critical last sentence of paragraph 8 reads: "…(That she had to be physically removed from the Office area due to he (sic) yelling abuse at staff and using foul language which could be heard all around the school)." (the critical sentence) 19 At this stage it is appropriate to examine the quality of the evidence contained in the statement. Paragraph 8 of that statement contains the only evidence that could be relevant to the plaintiff's allegation of assault. Sergeant Levey does not purport to have precisely recorded the words used by Mr Walton. It reflects Sergeant Levey's summary of what he understood that Mr Walton had told him. More importantly the critical sentence does not specifically identify who physically removed the complainant from the office area. Nowhere does it say that it was he, Mr Walton, who removed the plaintiff from the office area.

Evidence Act 1995 (NSW) 20 The plaintiff submitted that the Magistrate should have admitted this sentence into evidence pursuant to ss 32, 33, 36 or 81 of the Act. Paragraph 8 may have been considered relevant evidence had it constituted an admission by Mr Walton.

Admission 21 The plaintiff submitted that the critical sentence in paragraph 8 of Sergeant Levey's statement should have been admitted into evidence because it constituted an admission. Sections 81, 82, 86, 88 and 90 of the Act relate to admissions. Further there are general discretions to exclude evidence contained in Part 3.11 such as s 135, may have been applicable. 22 "Admission" is defined in the dictionary contained in the Act as:

"a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding." 23 Sections 81 and 82 provide: "81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. 82 Exclusion of evidence of admissions that is not first-hand Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a) it is given orally by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made." 24 The defendant submitted that there is no relevant representation made by the defendant and Sergeant Levey's statement put at its highest contains no more than an aside which calls for some amount of explanation. The defendant submitted that paragraph 8 of Sergeant Levey's statement was not admissible on the basis that it contained only hearsay material. However, s 81 provides that the hearsay rule does not apply to an admission. At no stage during Sergeant Levey's evidence did the plaintiff especially draw to the Magistrate's attention that she was saying that the critical sentence constituted an admission and as such should be admitted into evidence. 25 As previously stated, it is the prior statement by Sergeant Levey (and not the defendant) which is the subject of the evidential inquiry. The evidence sought to be admitted is a précis of what the police officer was told by the defendant. It does not constitute an admission because it is not recorded that he (the defendant) physically removed the plaintiff from the office. The statement did not attempt to record verbatim what the police officer had been told by Mr Walton rather it records that the plaintiff had to be physically removed from the office area due to her yelling abuse and using foul language. Later Mr Walton was cross examined by the plaintiff in relation to the critical sentence. Mr Walton gave evidence that he did speak with Sergeant Levey (t 49) and that he recalled saying to him that the plaintiff created a scene in the front office (t 51). Mr Walton was asked whether he told Sergeant Levey that he (Mr Walton) had to physically remove the plaintiff from the school. He did not recall using that language (t 58). His evidence was that no-one physically removed the plaintiff from the office. The Magistrate's decision was correct. 26 If the critical sentence did not constitute an admission, it is unclear as to how it is relevant to these proceedings. The plaintiff submitted that the Magistrate should have required Sergeant Levey to read paragraph 8 into evidence. 27 The relevant portion of s 32 reads: "Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

(2) … (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) ..." 28 Section 33(1) reads: "Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer." 29 Both these sections are permissive and not mandatory. The police officer may give evidence by reading from this statement. The Magistrate may give leave for the police officer to do so. There is no error of law in relation to s 32 because the Magistrate gave leave to Sergeant Levey to refer to his statement to revive his memory. Sergeant Levey after reading the critical sentence in the statement to revive his memory gave evidence that he could not recall the actual words used by Mr Walton. 30 Before 33(1) operates one of the pre-conditions contained in s 33(2) has to be satisfied. The person charged has to have been served with a copy of the statement within a reasonable time before the hearing. It is not known if Mr Walton had been served with a copy of Sergeant Levey's statement. In any event, the Magistrate permitted Sergeant Levey to read paragraph 8 of his statement. As previously stated, the reading of the critical sentence did not cause Sergeant Levey to recall the actual words used by Mr Walton during the telephone conversation. The operation of ss 32 and 33 do not convert inadmissible evidence contained in an out of court statement into admissible evidence. 31 The plaintiff also submitted that Sergeant Levey should have been considered an unfavourable witness by the Magistrate. 32 Section 38 reads: "Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or

(b) matters of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b) the party is a witness in the proceeding." 33 "Prior inconsistent statement of a witness" is defined in the Dictionary as "a previous representation that is inconsistent with the evidence given by the witness". "Representation" is defined to include: "(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(d) a representation that for any reason is not communicated."

34 While the plaintiff did submit that Sergeant Levey should be regarded as an unfavourable witness she did at the earliest opportunity say that he was a reluctant witness and later referred to Sergeant Levey as being a hostile witness. The Magistrate ruled that she could not cross examine him. In other words, the Magistrate did not grant leave pursuant to s 38. By that time Sergeant Levey had provided an explanation as to why there was an inconsistency between the words "physically removed" contained in the statement and the word "ejected" given in evidence. His explanation was that the conversation occurred nine months previously and he could not recall the exact words but he did not recall the words "touch her" or "use any force on her" being used. The decision to give leave pursuant to s 38(1) is a discretionary one. Even if on the evidence of Sergeant Levey it may be considered that he made a prior inconsistent statement it was open to the Magistrate in the exercise of his discretion to conclude that Sergeant Levey was not an unfavourable witness. The Magistrate was not obliged to grant leave pursuant to s 38(1). There has been no error of law. 35 Further as the plaintiff agreed, if the assault charge was not proved the other charges would fail. There was no evidence from any police officer or other person to support the informations concerning s 314 of the Crimes Act or s 547B(1). Even if the Magistrate had allowed the critical sentence to be admitted into evidence, it would have been afforded little weight. It was a précis of what Sergeant Levey understood Mr Walton to have told him. There are no errors of law apparent in the Magistrate's orders dismissing the three charges at the summary hearing on 10 December 2001. The Magistrate's decision of 10 December 2001 is affirmed. The appeal is dismissed. The summons is dismissed. Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(1) The Magistrate's decision of 10 December 2001 is affirmed.

(4) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

Last Modified: 09/09/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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