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[2013] NSWDC 157
District Court of NSW
2013-08-19
Mason P, Windeyer J, Whealy J, McHugh JJ
Original judgment source is linked above.
Judgment 1The appellant appeals against two convictions for possessing and/ or using a prohibited weapon, to wit oleosorin spray and one count of assault. The appeal proceeded on my examining the transcript of the evidence and the exhibits and my considering the reasons of the learned magistrate.
The Law 2The law relating to appeals from a magistrate concerning conviction is to be found in sections 18 and 19 of the Crimes (Local Courts Appeal and Review) Act, 2001 and Charara v the Queen [2006] NSWCCA 244 and in particular at paras 20- 22 per Mason P). "20 In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-9 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms: The rule ... provides that all appeals shall be 'by way of rehearing'. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred....[A power to draw inferences of fact and to give any judgment that ought to have been given] does not ... curtail the recognition or respect that an appeal should accord to the decision of a trial judge. 21 These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220). 22 The appellate role of the District Court in the present context is further reinforced by the references to "appeal" in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any "fresh evidence" that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the "natural limitations" stemming from proceeding wholly or substantially on the transcript record." 3In Harmer v Hare ([2011] NSWCCA 229)Whealy J.A, speaking of the duty of an appellate court reviewing factual findings of another court said this: "165. I am not persuaded that any of the challenges to the factual findings have been made good. This court has the obligation to reverse primary findings of facts where those findings are not supported by the evidence, or where the inferences drawn by the primary judge are not available (see Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479 per Brennan, Gaudron and McHugh JJ). It is not, however, the task of the court to reverse findings of fact where those findings were open on the evidence, or where equally available inferences are available as to the probabilities of the occurrences found. In particular, where findings have been made regarding the credibility or reliability of witnesses based on their demeanour (and this extends to experts as well as lay witnesses), the court will be reluctant to intervene unless the findings are glaringly improbable. 4An appellate court must also look at the substance of what is said and not get into minute exercises of parsing and analysis. See Gommesen v R [2012] NSWCCA 226 esp at para 37 per Garling J "37 It is necessary, in considering these submissions, to keep in mind, as this Court has often said, that it is inappropriate to take an overly critical approach to reasons contained in ex tempore judgments. What is relevant is the substance and essence of the Judge's remarks, rather that the result of any exercise of parsing and analysing closely, in an unduly technical way, the words and phrases used in the Remarks on Sentence"
Evidence Before the Magistrate 5The learned magistrate was required to make findings of fact and to indicate correctly the legal tests he was to apply to those facts as he found them. 6The learned magistrate was required to apply correct tests and to direct himself correctly when he came to consider the evidence. In my opinion he did that. 7The learned magistrate had to consider facts of what occurred on 20th July 2010 at 105 Oakland Avenue, the Entrance. The house at this address was next to the Reef Resort Hotel. The two premises were divided by a quite high steel fence. On the premises at 105 Oakland, a tree stump stood near the fence. 8The appellant was at the time a police officer who was not on duty and was present at the hotel with friends. The evidence showed clearly that he had been consuming alcohol heavily during the day before the incident that caused him to be charged and brought before the court. 9He had in his possession a canister of capsicum spray. Canisters of this type are issued to police officers for use in the course of their official duties. They are prohibited weapons and are not allowed to be carried by officers except when on official duty. He used the canister on 4th July in the course of his duties. He was then required to hand the partly used canister in at the police station and get a fresh issue of another canister. He did not do this, but kept the partly used canister in his possession until he used it on 20th July to spray Mr Lee Hannan, a man who was present at the premises adjacent to the hotel. 10The appellant claimed in evidence that he acted in self defence when he sprayed the victim with the capsicum spray. He claimed that he was standing near the fence dividing the two properties at a point near a water pump, that the victim standing on the other side of the fence threatened him, leaping up on the fence and putting him the appellant in fear of being struck. 11The learned magistrate believed Mr Hannan and regarded him as a truthful witness. Mr Hannan said he was standing on the stump to which I have referred with his hands on the fence and denied moving the stump or jumping up on the top of the fence. 12He found that the events occurred some distance from the water pump and that the victim was standing on a wooden stump. That stump was later weighed by the police at more than 135 kg. It took three police officers to move this stump.
Conclusions 13The evidence to which I have referred of the weight of the stump supports the version given by the victim. Furthermore, as the learned Magistrate found, the appellant and his friend Mr Gambin both claimed that they were near the water pump but Mr Gambin gave no evidence of seeing the appellant using the spray although, later on, he saw the appellant throwing it in a fire and admitting that he had used it. 14Moreover, the learned magistrate was entitled on the evidence to believe the version given by the victim. That being so, self defence did not arise, since he found that the victim did not threaten the appellant at all.He also made findings of fact that clearly rejected the evidence given by the appellant of self defence, because he rejected the appellant's claim that he was near the water pump. He had regard in assessing the appellant's credibility the lies he told to police who came to investigate the incident, as well as other lies told to investigating officers subsequently. 15The learned magistrate correctly stated the test that applied where a defence of self defence was raised. 16At the time the spraying incident occurred there is no doubt that the appellant was heavily intoxicated. 17Even if the incident had occurred as he claimed, in my opinion, the evidence would have enabled the Crown to rebut self defence beyond reasonable doubt because even if the appellant subjectively believed he was entitled to defend himself, his response was not reasonable and his state of intoxication could not be used by him as a basis for claiming that he may have believed he was acting reasonably. At best for him, he was defending himself against a man standing on the other side of the fence, who was armed with nothing and was acting in a threatening way by jumping up and waving his fist around. There could be no justification in law for his use of the canister in the circumstances of the night. 18The learned Magistrate was entitled also to rely on the evidence given by Mr Fowler and Ms Waddington, as well as the evidence of phone calls made to 000. The sound recording of the phone calls supports the evidence given by Ms Waddington of shouting, the throwing of objects, offensive language coming from those in the motel, including the appellant and what it was that Mr Hannan was doing. 19I have read the transcript myself and I found the evidence of Mr Hannan, Ms Waddington and Mr Fowler to be impressive and acceptable and I can well understand the learned Magistrate accepting all of it. 20The appellant claimed that he had forgotten he had the canister in his possession after 4th July. The learned magistrate did not believe this. He was entirely justified in refusing to believe this. The appellant returned the other weapons in his possession into the correct place in his locker at the police station to which he was attached. He had used the canister to subdue a man whom he arrested. It beggars belief that he simply forgot that he had this object on him until sometime on the day of the spraying incident. He could have placed it in safe custody at the nearest police station. He was cross examined about this and agreed that he could have done this when he realised that he had it, but he did not do so. He claimed that he did not put it in a bag in his room, because he feared it could be stolen. That lacks credibility, since he left a mobile phone in the same room getting charged. 21It has been submitted that the learned magistrate failed to consider a defence under sec 6(2) of the Weapons Prohibition Act, 1998. I do not agree. The issue was clearly put to the appellant that he did not forget and submissions were made by the solicitor prosecuting for the Crown that he did not forget. The learned magistrate did not believe the explanation given by the appellant and found that he consciously removed the canister and took it with him when he went on leave. 22At no time on 20th July was he acting in accordance with his duties. He did not spray Mr Hannan, while he was acting in the course of his duties. 23The learned magistrate's findings of fact are supportable and indeed, inevitable. They were also correct and he was correct in fact and in law in finding the offences proved.
Order 24I dismiss the appeal. I find the offences proved beyond a reasonable doubt
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Mark Jonathan Wright
Regina