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[2014] VSC 640
Supreme Court of Victoria
2014-12-17
McDONALD J
Original judgment source is linked above.
[2014] VSC 640 First Revision: 17 December 2014
JUDICIAL REVIEW - Conviction and fines for unlawful assault and use of carriage service contrary to s 474.17(1) of Criminal Code Act 1995 (Cth) - No opportunity for plea in mitigation - Denial of procedural fairness - Adequacy of reasons where no express consideration of mental element of offence - Grounds for ultimate conclusion disclosed by reasons for judgment.
1 On 22 December 2011, the plaintiff was charged with the following offences:
(1) The plaintiff, at Melbourne, on 15 July 2011, did stalk another person, namely Anna Kalisperis, in that the plaintiff did follow the victim or another person.
Such offence is contrary to s 21A(1) of the Crimes Act 1958.
(2) The plaintiff, at Springvale, on 23 July 2011, did, without lawful excuse, recklessly cause injury to Anna Kalisperis.
Such offence is contrary to s 18 of the Crimes Act 1958.
(3) The plaintiff, at Springvale, on 23 July 2011, did unlawfully assault Anna Kalisperis.
Such offence is contrary to s 23 of the Summary Offences Act 1966.
(4) The plaintiff, at various locations in Victoria, on 26 July 2011, did stalk another person, namely Anna Kalisperis, in that the appellant did telephone, send electronic messages to, or otherwise contact, the victim or any other person.
Such offence is contrary to s 21A(1) of the Crimes Act 1958.
(5) The plaintiff, at a large number of various locations in Victoria, the last being in Western Gardens, Victoria, on 26 July 2011, did use a carriage service in a manner in which a reasonable person would regard as being harassing, namely Kalisperis.
Such offence is contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995.
(6) The plaintiff, at various locations in Victoria, on 26 July 2007, did use a carriage service in a manner in which a reasonable person would regard as being offensive, namely Kalisperis.
Such offence is contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995.[1]
2 On 14 March 2013, at the Dandenong Magistrates' Court, the plaintiff was found guilty in relation to each charge. In relation to Charges 1, 2, 3 and 4, he was convicted and sentenced to a Community Corrections Order involving unpaid community work, supervision, treatment and rehabilitation and in particular, a Men's Behaviour Change Program. In relation to Charges 5 and 6, he was convicted and sentenced to an aggregate fine of $1,200.
3 The plaintiff appealed to the County Court on both conviction and sentence in relation to all charges.
4 The hearing took place over three days: 30 January 2014, 3 February 2014 and 14 February 2014. Written judgment setting out the reasons for judgment[2] ('Reasons') was delivered on 7 March 2014. The trial judge found the plaintiff guilty of the charges of: unlawful assault; use of a carriage service to harass; and use of a carriage service to offend.[3] The trial judge dismissed the charges of recklessly causing injury and the charge of stalking on 15 July 2011.[4] His Honour proceeded to sentence the plaintiff. It is not in dispute between the parties that there was no sentence hearing and no opportunity was provided for the plaintiff's solicitor to enter a plea on his behalf. The trial judge recorded a conviction and imposed a fine of $250 in respect of the charge of unlawful assault.[5] In respect of Charges 5 and 6 - use of a carriage service to harass and use of a carriage service to offend - the trial judge recorded a conviction on each Charge and fined the plaintiff an aggregate sum of $1,500.
5 By an amended originating motion dated 3 December 2014, the plaintiff seeks the following relief:
(a) an order in the nature of certiorari quashing the convictions and sentences recorded and pronounced by the Honourable Judge Parrish sitting at the County Court of Victoria on 7 March 2014, whereby his Honour:
- (i) convicted the plaintiff of unlawful assault Charge 3;
- (ii) convicted the plaintiff of using a carriage service to harass contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) Charge 5;
- (iii) convicted the plaintiff of using a carriage service in an offensive manner contrary to the said s 474.17(1) Charge 6;
- (iv) ordered the plaintiff to pay a fine in the sum of $250 in respect of Charge 3; and
- (v) ordered the plaintiff to pay an aggregate fine in the sum of $1,500 in respect of Charges 5 and 6.
(b) Alternatively to (a), the sentences pronounced by his Honour Judge Parrish on 7 March 2014 be set aside.
(c) The charges the subject of this application be remitted to the County Court to be heard according to law by a different judge.
(d) The defendant pay the plaintiff's costs of this proceeding.
(e) Such further or other order as the court deems fit.
6 Both the plaintiff and the first defendant filed written submissions in advance of the hearing before me on 3 December 2014. The submissions of the first defendant conceded that punishment in the form of conviction should not have been recorded in respect of both Charges 5 and 6. The first defendant submitted that the conviction for using the telephone service in a harassing manner encompassed all of the conduct which was relied upon in respect of Charge 6. During the course of oral submissions before me on 3 December 2014, Mr Kidd SC, who appeared for the first defendant, further conceded that the sentences by way of the recording of conviction and the imposition of a fine in respect of Charges 3, 5 and 6 should be set aside because the plaintiff had been denied the opportunity to make submissions before the trial judge before these sentences were imposed. This concession was properly made.[6]
7 As a consequence of the concessions made by counsel for the first defendant, together with certain refinements made by Mr Nash QC, who appeared with Mr Hancock on behalf of the plaintiff, the questions which fall for the determination are as follows:
(a) was it open to the trial judge to find the plaintiff guilty of Charge 3, unlawful assault? and
(b) should the conviction on Charge 5 be quashed on the ground that the Reasons are inadequate in that they do not address whether the plaintiff intended to harass the Complainant or was reckless as to that fact?
8 The plaintiff submits that the Reasons disclose an error of law on the face of the record, namely that the trial judge made a finding that he was satisfied beyond reasonable doubt that the plaintiff unlawfully assaulted the Complainant. Mr Nash submitted that this finding constituted an error of law, namely that it was not open to the trial judge on the evidence before him. In particular, Mr Nash submitted that the finding was not open because it relied upon evidence of the Complainant, whose evidence had been expressly found by the trial judge to be unreliable.
9 The relevant findings contained in the Reasons are as follows:
After a consideration of all of the evidence, and in particular what I consider to be the unreliability of the Complainant's evidence given her assertions in the third statement, and the requirement that it be proved beyond reasonable doubt that there be established 'a pattern of conduct evidencing a continuing of purpose', I am not satisfied that the prosecution has proved Charge 1.
However, considering that:
(a) the Complainant's injury occurred a short time prior to her making her statement;
(b) clear details were given to the informant on 26 July 2011;
(c) that there is objective evidence supporting the occurrence of injury given the photo taken by the informant, I am satisfied beyond reasonable doubt that the prosecution have established that the accused did unlawfully assault Kalisperis on 23 July 2011, contrary to s 23 of the Summary Offences Act 1996. In this respect, I expressly do not accept any evidence given by the appellant as to the occurrence of the marks on the Complainant's arm.[7]
10 The trial judge's reference to 'assertions in the third statement' is a reference to a statement of the Complainant which was tendered in evidence in the proceedings before the trial judge. The statement is set out at para 15 of the Reasons as follows:
STATEMENT
My name is Anna Kalisperis and my date of birth is 21.06.1971 and I live at 36 Bertha St. Springvale 3171.
I want to make the following statement and I am doing so with my own free will and not under any pressure or intimidation.
I have already withdrawn my complaint and have made numerous attempts to convince the police involved to not to take any further action, but it has fallen on deaf ears. I request the Hon'ble Court to not to proceed further with this matter with the hope that Hon'ble Court will understand that doing such would ruin my peace, my happiness and will effect my relationship in very adverse manner regardless of the outcome.
I understand that I made a complaint against Paramdeep Singh on 26.07.2011 but I want to inform the Hon'ble Court about some important aspects of my statement.
After explaining this I would strongly hope the Hon'ble (sic) Court would consider to drop any proceedings in regards to the matter.
Regards
Anna Kalisperis
11 If a finding of fact is made by a trial judge in circumstances where the finding is not open on the evidence before the court, the finding will constitute an error of law. In S v Crimes Compensation Tribunal,[8] Phillips JA stated:
Whether centred on a finding of fact based upon acceptance of direct evidence or on an inference of fact based upon other facts of which there is direct evidence, the question is whether that finding or that inference was open to the Tribunal.[9]
13 In Myers v Medical Practitioners Board,[12] Warren CJ cited with approval the following passage from the judgment of Kirby P in Azzopardi v Tasman UEB Industries Ltd:
The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge against the weight of evidence.[13]
14 It must be borne steadily in mind that the current proceeding is by way of judicial review, as opposed to an appeal by way of rehearing. It is no function of the court to embark upon an assessment of whether the trial judge erred in placing too much weight upon particular evidence in reaching the conclusion that the prosecution did establish that the plaintiff unlawfully assaulted the Complainant. Rather, for the purpose of determining whether the Reasons disclose an error of law, the question is whether there was evidence which could support the trial judge's finding at para 45 of the Reasons, which is set out above. If there was some evidence capable of supporting this finding, the finding was open to the trial judge and does not disclose an error of law.
15 Mr Nash submitted that the finding at para 45 of the Reasons was not open to the trial judge, because it could not have been made absent reliance upon the evidence of the Complainant, who was found by the trial judge to be an unreliable witness. First, this submission effectively challenges the weight which the trial judge accorded to the evidence of the Complainant. It is a submission which could legitimately be advanced in an appeal by way of rehearing but not in judicial review proceedings. Second, the submission proceeds from the false premise that the trial judge's finding at para 44 of the Reasons, relating to his conclusion that the prosecution had not proved Charge 1, precluded him from having any regard to the Complainant's evidence in finding that Charge 3 was proved. It is clear from the matters set out at para 45(a) to (c) of the Reasons that the trial judge was prepared to have regard to the Complainant's statement in respect of the assault charge given the existence of supporting evidence.
16 I accept the submission advanced on behalf of the first defendant by Mr Kidd that the quality of the evidence with respect to Charge 3 was stronger than in respect of Charge 1. Unlike Charge 1, proof of Charge 3 did not depend entirely upon the word of the Complainant. There was supporting evidence of the occurrence of an injury, comprised of a photograph taken by the informant of the bruising on the Complainant's arm. That photograph was taken on 26 July 2011, three days after the alleged incident and was tendered in evidence. The Complainant had provided specific details of the assault in her signed statement of that date, noting that a bruise had developed where the plaintiff had grabbed her and that the bruise was still present.
17 It is clear from the terms of para 45 of the Reasons that the trial judge did not simply rely upon the evidence of the Complainant in her first statement regarding the circumstances in which the alleged assault occurred. He also relied upon the three considerations set out in para 45(a) to (c) of the Reasons. There was evidence before the trial judge which supported the finding at para 45 of the Reasons that the plaintiff was guilty of unlawfully assaulting the Complainant. Accordingly, para 45 of the Reasons does not disclose an error of law on the face of the record. There is no basis for setting aside the trial judge's finding of guilt in respect of Charge 3. However, consistent with the concession made by Mr Kidd during the course of the proceedings before me, the sentence in respect of Charge 3 comprised of the recording of a conviction and the imposition of a fine of $250 will be set aside and the plaintiff will have to be re-sentenced on Charge 3.
Charges 5 and 6: use of a carriage service in a manner which a reasonable person would regard as being harassing/offensive
18 It was an agreed matter between the plaintiff and the first defendant that for the purposes of Charges 5 and 6 the requisite mental element of the offence is that, objectively viewed, the conduct was harassing/offensive and that the plaintiff either intended that it be so or was reckless as to that fact. Mr Nash submitted that the Reasons in respect of Charges 5 and 6 disclosed no consideration of the mental element of the offence. The relevant parts of the Reasons are at paras 47 and 48:
I am also satisfied that the prosecution have proved beyond reasonable doubt that Charges 5 and 6, that on 26 July 2011, the appellant did use a carriage service in away (whether by the method of use or the content of a communication, or both, that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
In this respect, the telephone records in evidence would indicate that the appellant continually attempted to communicate with the Complainant (that being known by his number flashing up on her telephone) or in fact did communicate with the Complainant over that day on a vast number of times. Furthermore the evidence of the informant was that the phone of the Complainant was ringing continuously during the course of the interview with her. I formed the view that reasonable persons would regard such activity as being, in all the circumstances, both harassing and offensive.
19 Both Mr Nash and Mr Kidd accepted during the course of the proceedings before me that the principles governing the circumstances in which inadequacy of reasons will constitute an error of law are as set out in the judgment of the Court of Appeal in Ta v Thompson.[14] As in the present proceedings, the hearing at first instance in Thompson was a hearing de novo of a summary prosecution in the County Court. At para 62 of Thompson Osborn JA (Beach JA concurring) stated:
In the present case the decision of the County Court was not subject to a right of further appeal. It was necessary that the reasons be adequate to enable this Court exercising powers of judicial review to see whether the decision involved an error of law but not to provide a basis for an appeal by way of rehearing. Thus the reasons needed to explain the process of reasoning of the County Court judge and to state the grounds of the decision sufficiently to enable the Court to see whether the judge's decision did or did not involve an error of law.
20 The statement of principles set out above is supported by a considerable body of authority, referred to earlier in the judgment of Osborn JA in Thompson.[15]
21 The fact that reasons for judgment do not expressly address the mental element of an offence does not automatically result in an error of law on the face of the record. So much is clear from the judgment of the Court of Appeal in Perkins.[16] In Perkins the Court of Appeal rejected a submission that there was error on the face of the record where a County Court judge did not canvass the question of intent. In this case, Buchanan JA (Phillips and Charles JJA agreeing) held that the findings stated by the County Court judge did adequately disclose the basis on which he founded his ultimate conclusion and the law which he applied in doing so.[17] Buchanan JA concluded that the appellant's mens rea was 'at least constituted by recklessness.'[18]
22 In Yendall v Smith Mitchell & Co Ltd[19] Sholl J stated:
In considering, on order to review, whether a magistrate did or did not in fact consider certain matters, the true principle must be, not that everything relevant that a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to the matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw that inference.
23 Applying the principles set out above, the question for determination is whether the Reasons disclose the grounds for his Honour's ultimate conclusion that the plaintiff was guilty of Charges 5 and 6. Further does the nature of the decision permit me to draw an inference that the trial judge did not turn his mind to the question of whether the plaintiff intended or was reckless as to whether, objectively viewed, his conduct was harassing.
24 The plaintiff advanced two defences to Charges 5 and 6. First, he contended that he may have been under the influence of an unspecified drug as a result of having attended a building where drugs had been used.[20] The trial judge concluded that this defence was 'inherently unlikely'.[21] Second, he contended that his reason for making so many calls on 26 July 2011 was to try and ascertain the identity of a person who had racially abused him.[22] The trial judge concluded that the plaintiff was a very unimpressive witness and that much of his evidence was inherently unlikely.[23] He did not accept the plaintiff as a witness of credit and put very little weight on his sworn evidence.[24] Those findings are consistent with the trial judge having rejected the second defence.
25 In light of the matters set out above, together with the trial judge's findings at para 48 of the Reasons, I have concluded that it is not a proper inference that the trial judge did not turn his mind to the mental element of the offence. The trial judge's rejection of the two defences proffered by the plaintiff as to why he called the complainant on so many occasions on 26 July 2011 combined with the finding of fact that on 26 July 2011 the plaintiff communicated with the complainant on a vast number of times, provides the grounds for a finding, at least, that the plaintiff was reckless as to whether his conduct would be viewed by a reasonable person to be harassing/offensive. The Reasons disclose the grounds for his Honour's ultimate conclusion that the prosecution had proved Charges 5 and 6 beyond reasonable doubt. The fact that the Reasons do not expressly address the issue of intent/recklessness does not lead to the conclusion that there is error on the face of the record.
26 For the reasons set out above, the Court will make the following orders. In respect of Charge 3, the order of the County Court dated 7 March 2014, that the plaintiff be convicted and ordered to pay a fine in the sum of $250, is quashed. The plaintiff is to be re-sentenced on this charge. In respect of Charges 5 and 6, the order of the Court that the plaintiff is convicted and ordered to pay the aggregate sum of $1,500, is quashed. The plaintiff is entitled to be re-sentenced on Charge 5. Consistent with the first defendant's concession as set out in para [6] above, the plaintiff will not be re-sentenced in respect of Charge 6.
27 Mr Nash submitted that Charges 5 and 6 were duplicitous and should not have been laid in the form in which they were, and a finding of guilt was not open in respect of both of them. No such submission was advanced before the trial judge. Certiorari is a discretionary remedy, and in circumstances where this submission was not advanced before the trial judge, I am not prepared to entertain it.
28 It is appropriate that the proceeding be remitted to the County Court for re-sentencing in respect of Charges 3 and 5 by a judge other than the Honourable Judge Parrish. The trial judge's findings of guilt in respect of Charges 3, 5 and 6 have not been set aside by this judgement.
29 An order will be made that the Chief Commissioner of Police pay the plaintiff's costs of and incidental to the amended originating motion dated 3 December 2014.
[1] Charge Sheet and Summons filed 22 December 2011 in the Magistrates' Court of Dandenong.
[2] Grewal v Di Camillo (Unreported, County Court of Victoria, Parrish J, 7 March 2014).
[6] See R v Majors (1991) 27 NSWLR 624, 627; Wilson v DPP [2005] VSC 517; CMG v R [2013] VSC 243 [29]-[30] (Warren CJ), [132] (Redlich JA); Heitane v R [2012] VSCA 173 [7]-[11] (Bongiorno JA); Weir v R [2011] NSWCCA 123 [64]-[73] (Garling J).
[11] Bakar v Gruma Oceania Pty Ltd [2014] VSC 206 [13] (Williams J); O'Connor v County Court and Anor [2014] VSC 295 [38][39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614 [18] (Hargrave J).
[13] (1985) 4 NSWLR 139, 151.
[14] [2013] VSCA 344 ('Thompson').
[15] See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 282 (McHugh JA) [271] (Mahony JA); Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 273-74 (Buchanan JA) ('Perkins').
[16] Perkins [2000] VSCA 171; (2000) 2 VR 246.
[19] [1953] VicLawRp 53; [1953] VLR 369. See also Agar v McCabe [2014] VSC 309 [91] where T Forrest J concluded that a Magistrate did not turn his mind to the matters raised by the principles of proportionality and consistency.
Grewal
Di Camillo [2014] VSC 640
(1991) 27 NSWLR 624
(2007) 18 VR 48
(1985) 4 NSWLR 139
(1987) 10 NSWLR 247
(2000) 2 VR 246