Kweifio-Okai v Magistrate Heather Spooner and Ors [2001] VSC 351

Supreme Court of Victoria|2001-09-14|Before: Ashley J

JUDICIAL REVIEW - proceeding under O. 56 of Chapter 1 - failure to bring appeal under s. 92, Magistrates' Court Act 1989 within time - Kuek v Victorian Legal Aid [2001] VSCA 80 - whether exceptional circumstances - whether conviction so unreasonable that it could not stand.

By the proceeding, the plaintiff seeks an order in the nature of certiorari on the following grounds: "That the firstnamed defendant, Her Honourable Magistrate Heather Spooner, erred in law, misapprehended the facts and made a wholly erroneous assessment of the relevant issues in finding that the charges against the plaintiff under Act 7405.24.2 and Act 7405.23 were proven beyond reasonable doubt." The error complained of, then, is error of law on the face of the record.

The formulation of the ground suggests that the plaintiff's complaint is that the Magistrate's determination was utterly unreasonable in the Wednesbury sense. For the purposes of considering such a case, the record consists of the charges that were laid, a certified extract of the orders, and by the operation of s.10 of the Administrative Law Act 1978 so much of the affidavit material as discloses the Magistrate's reasons. Those reasons, pronounced orally, are noted in the affidavit of Edward Graham sworn 29 June 2001 to include findings that the alleged victim, a man named McGowan, gave credible sworn evidence, and that an allegedly independent witness, a man named Hough, was a believable witness. I am prepared to treat the Magistrate's reasons as incorporating the evidence given by those witnesses. I will assume in the circumstances that it is proper to refer not simply to the report of the Magistrate's reasons, but to the evidence that was given by the particular witnesses.

What the plaintiff has done is to bring a proceeding under Order 56 outside the time within which a proceeding might have been brought in this court under s.92 of the Magistrates Court Act 1989. It further appears that the matter sought to be agitated by this proceeding is a matter that could have been agitated on appeal under s.92. The matter is thus one which is similar to the situation which arose in Kuek v. Victoria Legal Aid[1], where J.D. Phillips, JA. for the court concluded that, save in the exercise of a discretion which would rarely be exercised, it depending upon exceptional circumstances, an Order 56 proceeding should not be entertained, or at least not entertained successfully.[2]

In the present case, the plaintiff appeared unrepresented in the Magistrates' Court and has appeared unrepresented today. At all times in the interim he has been unrepresented. Very plainly he is a highly educated man, but he is not a lawyer. He sought, very soon after the decision in the Magistrates' Court, detailed written reasons from the Magistrate, and also a transcript of the proceedings conducted before the Magistrate. He was told that the Magistrate was under no obligation to provide detailed written reasons, but that he should be able to obtain a transcript of the proceedings taken from a tape recording. It was not until after the time for appeal under s.92 of the Magistrates' Court had expired that it became apparent that no tape-recording of the hearing was in fact available. So no transcript could be obtained. No doubt the plaintiff could then have sought leave to appeal out of time under s.92. No doubt also it was open to the plaintiff to have brought a general appeal in the County Court. Neither of those steps were taken.

It is, I think, doubtful indeed whether exceptional circumstances have been demonstrated as should lead the court to consider the merits of this present proceeding. But in the particular circumstances I think that I should do so.

The proceedings before the Magistrates' Court concerned an assault which had allegedly taken place on 19 August 1999. On that day, according to the prosecution case, the plaintiff had unlawfully assaulted McGowan, and had unlawfully assaulted him by kicking.

Evidence at the hearing was given by McGowan, the allegedly independent witness Hough, and the informant, Mr Tainton. The plaintiff cross-examined each of those witnesses. The plaintiff had been interviewed on 7 October 1999. A tape-recording of that interview together with a transcription thereof, said by the plaintiff to be not accurate, were also put into evidence. It seems, though just how it occurred is not quite clear, that there also went into evidence the medical report of a Dr Edwards, whom McGowan had consulted on the day of the alleged incident, wrongly described in the report as 18 August 1999. It appears that some of the cross-examination of the prosecution witnesses had reference to that medical report.

There is no doubt that there was a sharply defined issue between the prosecution and the defence in the Magistrates' Court. The present plaintiff admitted that he had met McGowan on the day of the alleged assault, but he denied that there had been any assault. That denial was revealed in part by the plea of not guilty, and in part by cross-examination of the prosecution witnesses.

According to the affidavit of Mr Graham, the witnesses McGowan and Hough were called and gave evidence in accordance with statements exhibited to the present plaintiff's affidavit. Since the Magistrate, as I have concluded, adopted the evidence of McGowan and Hough as reliable, I should refer briefly to those statements.

McGowan's evidence, in short, was that at about 3.15 pm on 19 August 1999 the plaintiff came to his office. There was some conversation between them. He asked the plaintiff to leave. The plaintiff refused. He, McGowan, turned to leave his office to call security, left his office and was attacked. He was pushed and punched to the right side of his body, and was made to fall to the ground. He thought that the plaintiff had punched him in the chest. Whilst he was on the floor, the plaintiff had kicked him in the chest and on the back of his head using the heel of his boot. From the attack he sustained a bruise of his head and either a bruised or fractured rib.

According to the statement made by Hough on the afternoon of 19 August 1999, whilst in his office, he heard a voice from the foyer of the building yelling and calling for some person to get security. He walked into the foyer and saw McGowan lying on his side curled up in a ball with his hands covering his head. He saw a man of African appearance stomping and kicking McGowan with the sole of his right foot. The blows appeared to be to the rib area of the body. He approached and, as he did so, the man walked away. It was not suggested otherwise than that the assailant, if Hough's evidence was to be believed, was the plaintiff.

According to the plaintiff's first affidavit sworn 11 May 2001, McGowan admitted in his evidence that the alleged assault was trivial and said that he brought the charges because, as a union official, that would have been his advice to any union member who reported a similar experience. McGowan also said that the witness, Hough, came to his office to offer himself as a witness in case he was needed, and that this happened very soon after the incident. Further, according to the plaintiff's affidavit, the witness Hough gave evidence that he was uncertain whether it was the plaintiff or McGowan who was wearing glasses at the time; and that he could not confirm the date upon which his statement had been taken - that is, according to the statement itself, 7 October 1999.

The plaintiff's first affidavit also contains material referring to the evidence of the informant, Tainton. So far as I can see the Magistrate's reasons said nothing about that evidence. However, the Magistrate, in finding that McGowan and Hough had given credible evidence, may be assumed to have taken into account cross-examination of Tainton, and so I will briefly refer to it.

According to the plaintiff, he raised issues in cross-examination concerning the apparently late revelation that Hough had allegedly witnessed the incident, and concerning an apparent disparity between McGowan's account of the incident and the observations and later conduct of the attending doctor, Dr Edwards. The gist of the cross-examination was doubtless to suggest that Hough had not been a witness to the assault, whose occurrence was denied; and that the doctor's observations were inconsistent with an assault having taken place.

It is common ground that the Magistrate took time to listen to the tape recording of the plaintiff's interview with the police officer, an interview which had taken place in October 1999, and a copy tape of which the plaintiff had had since that time. If it be accepted that the transcription of the tape recording was not wholly accurate, it does not follow that the Magistrate, having listened to the tape itself, as it appears, would have been misled. Moreover, I have been told that the tape was either wholly or for the most part exculpatory, and so it seems improbable that any variation between the tape and the transcription could have misled the Magistrate adversely to the plaintiff.

I have already said something of what Mr Graham deposes to have been the Magistrate's reasons for decision. I should amplify the reasons as noted by Mr Graham. Evidently in some part they addressed the question of penalty. They are said to have included reference to these matters: the present plaintiff denied the assault; the victim, that is McGowan, gave credible sworn evidence; the independent witness, that is Hough, was believable; the plaintiff had been mistaken as to the events; the plaintiff had been under considerable stress at the time due to concerns over his finances and the possibility of having to sell his house; the plaintiff was agitated and angry; he showed no remorse for his actions; he had declined to give evidence.

It seems to me that the finding of the Magistrate that the two charges were proved could not by any stretch of the imagination be said to be wholly unreasonable, such that no reasonable Magistrate might have arrived at. It is of course true that the Magistrate, to find the charges proved, must have found that they were established beyond a reasonable doubt. But the questions that arose for consideration were essentially of an evidentiary kind. Two witnesses had given evidence of circumstances which, if they were believed, thoroughly made out the charges. There was a doctor's report which the Magistrate might have concluded was compatible with the evidence given by McGowan, notwithstanding the plaintiff's submission to me today to the contrary. There were matters, it seems, pertaining to the emergence of Hough as a witness, which required the Magistrate to carefully consider whether the man's evidence ought be accepted. But in the end, her Worship was faced with the situation of there being evidence supporting the prosecution case, and an absence of any evidence other than by cross-examination, to contrary effect.

It was, of course, necessary to carefully bear in mind the fact that the plaintiff was under no obligation to give evidence. That does not necessarily mean that his failure to give evidence might not have been held against him in the Magistrate's reasoning process. But in fact there is no suggestion that it was used in such a way. It was literally correct for the learned Magistrate to say, as she apparently did, that there was a body of evidence which pointed in a particular direction, and that the plaintiff had not given evidence. That pointed up the circumstance, deposed to by Mr Graham, that attempts by the plaintiff to give evidence from the Bar table did not constitute evidence in the case.

I said earlier that the Magistrate was noted to have said that the plaintiff was under considerable stress at the time due to concerns about his finances and the possibility of having to sell his house. The plaintiff told me today that in the course of cross-examination he sought to make it clear that there was no immediate problem that could have provoked an outburst by him at the time, although there had been some step taken, or letter written, concerning possible repossession of his home some weeks earlier. There was, in the event, an absence of evidence that this was so. Even had there been such evidence I think that the Magistrate would not have been disentitled to conclude that the plaintiff may have been upset, notwithstanding that pertinent events had not occurred within the days preceding the alleged assault. It appears that there had been a long history preceding the alleged assault, a history which apparently to some extent emerged in the course of the hearing, a history which could have been thought quite likely to have engendered considerable bitterness on the plaintiff's part towards McGowan.

In the event, as I said a little earlier, I think it is an impossible task for the plaintiff to persuade me that the decision of the Magistrates' Court was so unreasonable that it could not stand. The burden that is faced by a plaintiff seeking to persuade a court of such a matter is very great. It needs to be emphasised, and I do emphasise, that the question is not whether on the evidence I would have decided the case in the same way.

In the course of the hearing today, the plaintiff raised certain matters to which he had adverted, at least for the most part, either in his first affidavit or in a supplementary affidavit sworn 20 July 2001. I think that those matters were not in fact comprehended by the originating motion. But I should deal with them nonetheless, because it is undesirable that the plaintiff should leave this court without knowing that each of the matters which he raised have been carefully considered. Moreover, in several instances at least they might have been the subject of a claim for prerogative relief.

Let me then go through those matters. Concerning the provision of a transcript of his record of interview, the plaintiff said that he received such transcript only on the day of the hearing. He said that he was in a way disabled from conducting his defence. In particular, he drew attention to what he said was an error at the end of the transcript. The informant was noted to have said that he, the plaintiff, might be prosecuted. The tape showed that what was said was that he would not be prosecuted.

I am not at all persuaded that the plaintiff was disabled from adequately advancing his case by reason of the late provision of the transcript. He had had, as I earlier noted, a copy of the tape itself for many months - indeed, for more than a year. Moreover, the particular error in the transcript does not seem to me to lead anywhere. Whatever the informant said about the probability that a charge would or would not be laid must yield to the conclusion of the prosecuting authority. Further again, as I said earlier, the Magistrate was provided with a copy of the tape, and apparently listened to it.

Another matter raised by the plaintiff was his submission that the Magistrates' Court was a court of record; and that as such it had been obliged to keep a record of the proceeding which could be accessed by a prospective appellant. Yet here there was no such record.

The Magistrates' Court is not a court of record. It is the fact that as a matter of practice in recent times tape recordings of proceedings have been made by that court. But the fact that no tapes were available in this case, whilst regrettable, and whilst theoretically it might have impeded the plaintiff in advancing this proceeding, does not mean that the proceeding in the Magistrates' Court was vitiated.

A further matter raised by the plaintiff concerned procedural aspects of the hearing in the Magistrates' Court. In essence, he claimed that he had been denied a hearing. He first deposed that he had been precluded from fully cross-examining the prosecution witnesses. It seems clear that objection was indeed taken to various questions that he asked, for the most part questions of a medical nature asked of lay witnesses. I do not say that every question to which objection was taken was a question to which objection should successfully have been taken, but it does not seem to me that overall the plaintiff was inhibited from properly presenting his case.

The second procedural complaint made by the plaintiff was that he was denied an opportunity to sum up. A summing up in this case, looking at the matter realistically, must have been a summing up on factual matters. There is no absolute right to sum up on such matters in the Magistrates' Court.[3] In the event, it seems to me, no point could be made that the plaintiff had been denied a hearing because he had not been able to sum up on the facts.

Another issue raised by the plaintiff, as I understood it, was that there had been a delay in issuing process against him, the significance thereof being that it showed that the informant had no faith in the case brought against the plaintiff. That chain of reasoning could not possibly be a matter leading to a successful outcome to this proceeding.

There are two further matters to which I should refer. They are in a sense related. The plaintiff is a highly qualified academic, African by birth, who has lived in this country for many years. The background to the incident which occurred in August 1999 involved a dispute with his then employer, a dispute concerning which the relevant union had taken a position. McGowan was a union official. It seems to me clear that the plaintiff has a deep belief that the prosecution was inspired by that dispute. Inter-related with that is what I understand to be the plaintiff's strong belief that courts in this country, and the population generally, have treated, and continue to treat, Africans in a very unfair manner.

The prosecution fell to be determined according to the evidence which was given. The nature of the background to the alleged incident could have explained false allegations being made. But the falsity of those allegations was a matter to be determined at the hearing of the prosecution. I have no reason to believe that the Magistrate did not conscientiously attend to her task. For the Magistrate to arrive at the decision which she did, having regard to the evidence that was given, seems to me to have been quite unexceptional. It is regrettable indeed that the incident which the Magistrate found was proven led to the plaintiff being convicted and fined. Particularly that is so in view of his age, qualifications and occupation. But on the evidence before her Worship the conviction and penalty imposed were themselves unremarkable.

The second and last matter to which I should refer is this: the plaintiff's affidavits, particularly the second of them, contained a great deal of material concerning the alleged corruption of the judiciary in this country, and the attitude of other Australians to Africans. In the ordinary course of events, an application could have been anticipated seeking to have such matter struck out, or to have the affidavit containing it removed from the court file on the grounds of its irrelevance and its scandalous character. But that course was not sought here by Mr McArdle or those instructing him. I think that the course that was taken showed considerable understanding of the plaintiff's position, and that far from being criticised, if criticism there was by the plaintiff, it should have been appreciated.

There must be an order dismissing the proceeding.

MR McARDLE: If the court pleases. Your Honour, I seek costs on behalf of the first defendant.

HIS HONOUR: I won't make an order for costs, Mr McArdle.

[3] See Schedule 2 s.2(3) to the Magistrates' Court Act 1989. See also Chu v. Henham [1999] VSC 139; (1999) 105 ACR 528.

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