R v Briggs

R v Briggs - [2019] NSWSC 1600 - NSWSC 2019 case summary — Zoe

[4]

The evidence of Fitisemanu

The evidence of Fitisemanu at the hearing was to the following effect. At about 7.15pm, he received a radio call to attend the level on which the ward accommodating Mr Reznitsky senior was located. Fitisemanu saw the applicant, who was talking to the doctors and nurses in "a boisterous, loud manner". The applicant was asking the staff for more information about what was happening to his father, telling them that "I don't know what's happening, you're not doing the right thing". A doctor was trying to administer an injection to Mr Reznitsky senior, and the applicant was pushing him away, saying "I need to see what you're giving to my father".
By then, Moar and Cowan had also arrived. Fitisemanu asked the applicant, "Sir, can I be of help to you, is there anything you're not understanding?" The applicant ignored him. Fitisemanu asked the applicant, "Sir, why don't you accompany me away from here and maybe I might be able to help you?" Fitisemanu raised his arm towards him and the applicant moved around him, pushing past his arm and continuing to talk to the hospital staff. Fitisemanu understood from the expressions on the faces of the staff that they wanted him to intervene, so he again asked the applicant to come with him. Fitisemanu then put his arm around the applicant, trying to move him away and "giving him a little push". The applicant tried to go back, and Fitisemanu told him that he must accompany him and after he "cool[ed] down", they might ask him to return. The applicant refused, so Fitisemanu applied a "wristlock", which I understand to be a type of hold applied to a person's wrist as a means of physical restraint.
Fitisemanu said that as he and Cowan removed the applicant, he told them that they had no right to arrest or hold him in such a way, and that he needed to get back to his father. Moar gave assistance when the applicant was outside the ward cubicle. Fitisemanu applied a headlock to the applicant and took him to the floor, but the applicant fell on Moar. Fitisemanu noticed that Moar had an injury to his elbow that was bleeding. Fitisemanu said he did not know how that injury was caused, but assumed it was by the applicant falling on Moar.
Eventually the security guards manoeuvred the applicant to the lift lobby area, handcuffed him and placed him into a sitting position on the ground. Fitisemanu told the applicant, "You have caused grievous bodily harm to myself and my fellow officers" and that he had caused concern to the nurses.

[6]

The evidence of Cowan

Cowan's evidence was to the effect that, when the security guards arrived on the relevant floor, a nurse, who was crying, pointed them to the ward and another shouted to them to come down. Cowan could hear other male voices shouting from the ward. When Cowan entered, he saw the applicant, who was shouting in both English and a foreign language, which Cowan assumed to be Russian. The applicant asked the three security guards for their "IDs", which all three produced. There was a male nurse nearby. The applicant pushed him away, saying "Get away from me". Fitisemanu said, "Calm down, step outside so we can find out what the problem is". The applicant refused, and continued to yell and point in an aggressive manner. The applicant was asked a second time to come outside and again refused. Cowan and Fitisemanu grabbed the applicant by his arms and removed him. The applicant pushed Cowan on his chest and Cowan said, "There's no need for that". Cowan and Fitisemanu applied wristlocks to the applicant, and took him outside the room.
As the security guards did so, the applicant's mother scratched Cowan's face, which caused him to lose his grip of the applicant. Nurses grabbed the applicant's mother and kept her away from the security guards and the applicant. The security guards then took the applicant to the lift lobby area and applied handcuffs, because of his continuing resistance.
At one point, the three security guards and the applicant were all on the floor, "wrestling". During the scuffle, Cowan was punched by the applicant. The applicant ended up on top of Moar, who screamed out to Cowan and Fitisemanu to get the applicant off him, saying, "Get him off me". Cowan saw that Moar was on his back, and the applicant was on his right side, lying on top of him with their heads approximately aligned. Cowan told the applicant to get off Moar, but he refused. Cowan warned the applicant if he did not get off, he would "strike [him] with my baton". The applicant did not respond and Cowan gave a second warning and then struck the applicant twice on his left thigh. It had no effect, so Cowan went back to attempting to get the applicant off Moar. Eventually they got the applicant off, and handcuffed him. They then handcuffed the applicant's mother, who was still struggling with the nurses.
Cowan noticed an injury to Moar's elbow that was producing "a substantial amount" of blood, but did not see how Moar received it. Cowan said that he also was injured, bleeding from his face and he had cuts on an arm.

[8]

The evidence of the applicant

The account given in evidence by the applicant was, in essence, as follows. The applicant arrived at the ward and noticed bruises on his father. He wanted to speak to staff about them and approached the nurses' station, elsewhere on the floor. The applicant's mother stayed behind in the ward with his father. There were no nurses at the station, so the applicant waited. The applicant noticed two nurses emerge from a room about 10m from the station and recognised one as a nurse who cared for Mr Reznitsky senior. The applicant asked that nurse to go and look at his father.
The nurses walked away, and the applicant decided to walk back to his father's ward. As he walked down the corridor, an adult male, who the applicant had not previously met, jumped out of a side room and screamed at him, shaking his finger in the applicant's face. They did not touch each other, and the applicant continued on his way towards his father's ward.
The applicant entered the room and stood at the head of the bed. The two nurses that the applicant had seen earlier were already in the room, as was his mother. The applicant asked them, in words to the effect, "Okay, could you please explain what's going on", indicating his father. At that point, the man the applicant had passed in the corridor entered, hysterically screaming at him. The applicant said to the man, "I don't want to talk to you. I've got a problem here, I don't know who you are". Two men in security uniforms then walked into the room. The applicant asked them why they were there. The security guards were silent. A third security guard appeared in the doorway, apparently talking to someone outside that the applicant could not see. The applicant said to the two guards, "Okay, at least show me your licences". The guard at the door then approached the applicant waving an arm while the other two guards "jumped" on him, grabbed his arms and took him out of the room. They then "smacked" the applicant against the corridor wall and tried to handcuff him, while the third guard hit him from behind with a baton. The third guard then put his right arm around the applicant's neck and threw him to the ground, causing him to land on his back. The applicant was handcuffed, each handcuff being connected by a chain which was approximately 50cm in length, to each of the two guards. They then dragged the applicant on the floor to a lift.
In his evidence, Moar identified the type of handcuffs used from a photograph of various types. The handcuffs he identified did not have lengths of chain, but rather only between two and four chain links.
The applicant continued that while waiting for the lift, he was turned over so that he was face-down on the floor, "lying like a cross", with a guard sitting on his face and holding his legs. The third guard hit the applicant a few times with a baton. There were no witnesses nearby and the security guards' attack became "wilder"; the applicant said that, on a scale of ten, the attack was six or seven before and at this point it was ten. One of the guards then jumped on the applicant, landing on him with all his weight and his knee on the applicant's spine. The guard then sat on the applicant with his arm around his neck, stopping his breathing. The guard broke the chains from the handcuffs.
Just then, the applicant's mother arrived, screaming in Russian, "Boris, they'll kill you". The applicant managed to shout "Please call the police". Two guards got up and left, leaving only one of the guards, who held the applicant's right arm and right leg, before jumping up and standing on the applicant's hand.
The applicant said he saw nurses pushing his mother away from the lift area towards a corridor. The applicant called out in English, "Don't touch my mother". The guard holding him down responded, "We don't touch".
Five police officers then arrived, together with a fourth security guard, and did not look at the applicant. One of the guards still had a foot on the applicant's right hand and wrist. The police went straight to the nurses' station and then left. With his left hand, the applicant pushed the guard off his right hand and jumped up.
Whilst giving his narrative as evidence in chief, the applicant said: "There was some blood on my chest, either it was blood from the wound on my wrist or from my right elbow - sorry, or it could have been the blood from the right elbow of the security guard who was holding me, sitting on me."
In evidence through the interpreter, the applicant said that by then, "I wasn't handcuffed, the handcuffs were on my hands but I wasn't handcuffed". A police officer then appeared and without any introduction, told the applicant that he was under arrest. The applicant asked, "What's the charge?" and was told, "assault". The applicant asked what type of assault, and the officer responded: "Look at yourself, your chest is covered with blood". The applicant told the officer it was from a cut on his hand, and asked, "Could you show me the person I assaulted?" There was no response. The applicant's account included conversations he then had with hospital staff who attended after the event. There were no witnesses to the incident.
In cross-examination, the applicant denied that on the evening in question, he had a dispute with hospital staff. He said that only Fitisemanu was present, not Moar and Cowan. The applicant also maintained that Constables Williams and Priest did not attend the hospital. He denied that he pushed a nurse and that any of the guards spoke to him before they took hold of him.
The cross-examination of the applicant took place over four days. On the third and fourth day, the applicant was increasingly unresponsive to questions, repeatedly stating that he required clarification of the incident he was being questioned about. It appears that the applicant's point was that, since he did not accept that Cowan and Moar were present, he was not required to answer questions about the prosecution version of what occurred.
Immediately following the lunch break on the fourth day, being 21 October 2003, the applicant informed the Magistrate that over lunch he had made a complaint with "law enforcement authorities" in relation to "police behaviour", alleging that his father had been "taken hostage by hospital personnel". That being so, he said, he declined to subject himself to further cross-examination because "the evidence given in one matter could affect the outcome of the second matter". The applicant sought an adjournment to the following day, adding, "and then we can proceed having all the legal procedures in place". The application was opposed by the prosecution, submitting that there was no such legislation or regulation that could absolve the applicant from his responsibility to continue to be cross-examined. The Magistrate rejected the adjournment application. The applicant still refused to be further cross-examined. The Magistrate relented and adjourned the matter to the following day.
The following day, the applicant informed the Magistrate that he was unable to point to any authority for not being required to continue to be cross-examined, but that nevertheless such authority existed. Accordingly, the applicant maintained his refusal to be further cross-examined. The Magistrate immediately moved on to hearing further witnesses for the defence.

[10]

The evidence of Ian Ainsworth

Ian Ainsworth was called by the applicant. In evidence in chief, Mr Ainsworth stated that he was the night duty Assistant Director of Nursing. He attended the ward in response to a message to attend to the needs of the nursing staff, who were distressed by the incident. Mr Ainsworth said: "When I got out of the lift I witnessed [the applicant] and three security guards in an attempt by the security guards to restrain [the applicant who] appeared to be resisting that restraint. There was blood on the shirts of the security guards. There was blood on the shirt of [the applicant]. I also observed Mrs Reznitsky senior restrained possibly ten metres away from what appeared to be the end of a struggle for which it appeared evident that all four gentlemen has been on the floor. I also witnessed several nurses in tears and a general scene of chaos in a hospital ward …"
Mr Ainsworth later elaborated that the applicant was both verbally abusive as well as resisting physically. The applicant asked Mr Ainsworth if he knew the security guards, and he responded that he did. The applicant asked Mr Ainsworth for their names and he gave the names of the three security guards who had given evidence of being the guards involved in the incident. Mr Ainsworth was asked to describe the security guards' injuries. He said that Moar had a possible fracture of his elbow and scratches to his face, and the others had soft-tissue injuries. All three guards were examined by doctors after the incident.
Mr Ainsworth said that he spoke to the applicant whilst he was being restrained. The applicant complained about the treatment of his father and of himself. The applicant put to Mr Ainsworth that he did not speak to the applicant. However, later, the applicant put to Mr Ainsworth that he had spoken to the applicant, as he was being led away. Mr Ainsworth agreed that he had spoken with the applicant and that, after doing so, he went with Ms Smoliar to speak to Mr Reznitsky senior. The applicant put to Mr Ainsworth that he did not do that, either.
Mr Ainsworth was asked by the applicant if he recognised any police who were present. He said he recognised Karl Williams. Mr Ainsworth gave evidence that he made notes that evening of his observations. The hand-written notes were tendered by the applicant. In his notes, Mr Ainsworth described the injuries to Moar in the following terms: "… injuries sustained were a laceration to his left elbow requiring 5 sutures … . A split lip, a cut to his back on the left side, grazes and scratches to his arms and right elbow and a torn shirt …"

[11]

Other defence evidence

The applicant's mother, Mrs Reznitsky, gave evidence corroborating the applicant's account and agreeing that she scratched one of the security guards. Mrs Reznitsky alleged that after she scratched a guard, a nurse put her arm around her throat and tried to suffocate her.
Another witness called by the applicant was Greg Urquhart, a nurse who arrived after the incident had occurred. Mr Urquhart's evidence was also irrelevant, going to a medical explanation for the bruises on the applicant's father.
Following the close of evidence, the applicant submitted to the Magistrate certain propositions which, in due course, her Honour rejected in her judgment. Those propositions were as follows:

The Magistrate should disqualify herself for bias and unfairness in her treatment of the applicant;
Moar and Cowan were not present at the scene (only Fitisemanu was present) and therefore Moar could not have been injured;
The police who gave evidence that they were at the hospital were in fact not there;
Fitisemanu and whoever the other two security guards were did not show security cards to the applicant;
There was a conspiracy between the hospital staff and security staff to effectively cover up their maltreatment of Mr Reznitsky senior;
One of the police witnesses (Constable Williams) was giving notes to other witnesses outside the courtroom;
The police who gave evidence (Constables Williams and Priest) were told by other police in court what their evidence should be;
At the police station, police told witnesses what to put in their statements;
Expert medical evidence of the injury should be rejected; and
The fact that the police officer who signed the charge sheet, Constable Ford, did not give evidence (he had been dismissed from the police force) resulted in a defective Court Attendance Notice ("CAN") or a deficiency in the facts relied upon by the prosecution.

The Magistrate found the offence proved. She accepted the evidence of the three security guards that they were all present, that the applicant was concerned about his father's condition, that his aggressive behaviour towards hospital staff necessitated him being removed from the ward, that his pushing of a nurse and physical resistance to being escorted out warranted the use of force and in the melee, the applicant and Moar ended up on the ground. The Magistrate considered that the application of the technique of a wristlock by the security guards was an appropriate degree of force. Implicit in what the Magistrate found, although she did not expressly say so, was that the degree of force applied by the security guards was lawful.
The Magistrate did not specify which injury or injuries constituted the actual bodily harm. There were two obvious ones on the evidence, namely: the split lip which, on Moar's evidence, resulted from the applicant punching him to the face; and the lacerated elbow, which occurred when Moar went to the ground in the course of the scuffle.
Although the applicant had expressly denied he was advancing self-defence, either of himself or in order to protect his father, the Magistrate was of the opinion that she was obliged to consider it as being raised on the evidence. Having done so, she rejected it.

[13]

History of appeals

On 5 February 2004, being two weeks after his conviction and sentence, the applicant filed an appeal against his conviction in the District Court. On 21 February 2005, the appeal was fixed for hearing on 18 April 2005, before Judge Nield. Between 11 March and 5 April 2005, the applicant appeared before Judge Nield on 16 occasions, in relation to various notices of motion he had filed in the matter. On 18 April 2005, his Honour dismissed the outstanding notices of motion and declined an application by the applicant for an adjournment. The applicant left the courtroom and did not return. His Honour handed down judgment the following day, dismissing the appeal on two bases: on the applicant's failure to prosecute the appeal, and on its merits. His Honour's assessment of the merits of the appeal was as follows: "13. … as to the merits of [the applicant's] appeal, [the applicant] believes that he is the victim of a conspiracy involving the nursing and security staff at the hospital, the police at Kings Cross Police Station and the prosecuting authority, but, in all of the evidence before the Magistrate, there is simply nothing to support [the applicant's] belief and everything to confound it. The plain and simple fact is that [the applicant], being concerned for his father's well being, his father having been informed that one of his legs would need to be amputated because of gangrene in the leg, and being worried that his father, who exhibited bruises on the inside of his arms, believed that his father may have been subjected to some undefined abuse by the hospital's nursing staff, and, in that belief, caused such upheaval in the ward, which included his use of physical force upon nursing and security staff, which resulted in his being physically restrained by security staff before being taken away from the hospital by police. 14. The evidence of [the applicant's] assaults upon the nursing and security staff, including, specifically, the complainant, and the evidence of the injuries suffered by the complainant, being an actual injury, but one not serious, life-threatening or permanent, was over-whelming. The Magistrate could not have done otherwise than to find the offence to be proved, particularly after when she had twice enquired of [the applicant] as to whether or not he relied upon self-defence, something that he said that he did not rely upon."
On 7 October 2004, while the applicant was awaiting a hearing date for his appeal to the District Court, he filed an application in the Supreme Court for a review of his conviction, pursuant to the predecessor of the legislative provision under which the current application is brought, namely, s 474D of the Crimes Act. On 24 May 2005, being a month after his appeal to the District Court was dismissed, the applicant filed a summons in the Supreme Court naming Magistrate Quinn as the defendant, referring to his earlier s 474D application and seeking a review of his conviction pursuant to s 52 of the CARA. The following month, on 22 June 2005, the applicant filed an amended summons, naming the New South Wales Police as a second defendant, seeking a review pursuant to s 52 of the CARA in relation to the second defendant and a review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the first defendant.
By letter dated 13 July 2005, the applicant withdrew his s 474D application.
On 22 August 2005, Adams J removed the first defendant, Magistrate Quinn, as a party to the proceedings the subject of the amended summons.
The applicant filed two further amended summons, the latter (the fourth overall), naming ten defendants, the tenth being the state of New South Wales. On 6 March 2007, Studdert J struck out the claim against the tenth defendant. On 3 August 2007, Grove J struck out the claims against the second through to the sixth defendants. The applicant sought leave to appeal the decisions of Justices Studdert and Grove. On 10 December 2007, the Court of Appeal dismissed his application.
On 3 March 2008, the applicant filed a notice of motion seeking summary judgment against the remaining three defendants, the three security guards, but also adding the first defendant, Magistrate Quinn, although she had been removed by Adams J in 2005. On 11 April 2008, the Magistrate was again removed as a defendant. On 13 June 2008 the matter was stood over to 4 December 2008. On that date, the Supreme Court file was closed, presumably for lack of prosecution by the applicant. For reasons that were explained in a judgment of McCallum J concerning the applicant (Reznitsky v Roads & Traffic Authority of NSW & Ors [2011] NSWSC 775), that issue is irrelevant to the nature of this application.
The judgment of McCallum J involved an outstanding penalty that resulted in the suspension of the applicant's driver license. Following the determination of the appeal in the District Court, a notice of penalty was generated in respect of the victim's compensation levy of $30, pursuant to s 79 of the Victims Support and Rehabilitation Act 1996 (NSW). The applicant declined to pay the levy, and the State Debt Recovery Office made a court fine enforcement order pursuant to s 14(1) of the Fines Act 1996 (NSW). On 19 August 2005, an enforcement order was made against the applicant in the sum of $120, which included costs. On 4 March 2011, the applicant's driver licence was suspended for non-payment of the enforcement order.
By summons filed on 22 March 2012 against the RTA, the State Debt Recovery Office and the State of New South Wales, the applicant sought judicial review of the licence suspension. By notices of motion filed on 6 May 2011, the first and third defendants sought an order removing each of them as parties to the proceedings, and the second defendant sought summary dismissal. The summons and the defendants' motions came before McCallum J for hearing on 21 July 2011. In her Honour's judgment delivered the following day, she noted that the applicant disputed his obligation to pay the levy because he did not accept the correctness of the underlying conviction. Her Honour stated: "26 The thrust of [the applicant's] case is that there was no power to suspend the licence. [The applicant] contends that, before action can be taken to suspend a licence for failure to comply with an enforcement order, there must be a final, non-appellable court decision imposing the fine and service of written notice of that decision upon the person. He contends that there has been no such final decision in the present case. He contends that the appeal to the District Court was not properly determined. He further contends that the earlier proceedings in this court challenging the conviction entered in the Local Court have not yet been finalised and that there is no power to suspend his licence in the meantime. 27 In my view, those contentions are misconceived. 28 As to the determination of the appeal in the District Court, the judgment given on 19 April 2005 records that, during the hearing of the appeal and after the Judge had refused an application made by [the applicant] for an adjournment, [the applicant] left the court and did not return. The hearing was concluded in his absence. [The applicant] says that, during the conduct of the appeal from the date it was lodged in February 2004 until the date of the hearing, he came to the conclusion that he did not trust the District Court and did not want to have his appeal heard there. He says, further, that he did not request that the appeal be listed for hearing when it was. 29 At the hearing before me, [the applicant] said that he had made a deliberate decision to remove the appeal from the District Court in its criminal jurisdiction to the Common Law Division of this Court. However, as I endeavoured to explain to [the applicant], his approach to that question (and his decision to leave the District Court during the hearing of the appeal) did not deprive that Court of its jurisdiction to determine the appeal. 30 As to the earlier Supreme Court proceedings, there are several difficulties with [the applicant's] position. First, the relief claimed in those proceedings was directed only to the conviction originally entered in the Local Court. [The applicant's] reliance on the existence of the proceedings as an impediment to the enforcement of the compensation levy ignores the fact that the conviction entered at first instance was later confirmed in the District Court. [The applicant] has not sought to have the decision of the District Court quashed or set aside. 31 Further, even as to the conviction in the Local Court, the claim is manifestly hopeless. 32 As already noted, the Magistrate who entered the conviction at first instance was initially named as first defendant but an order was made removing her as a party. [The applicant's] notice of motion filed in early 2008 seeking summary judgment in the proceedings purported to revive a claim against the Magistrate, again naming her as first defendant, but the application was plainly incompetent in that respect having regard to the earlier order of the Court. 33 Further, except for the seventh, eighth and ninth defendants, [the applicant's] claims as against all other defendants have been struck out. Applications for leave to appeal against the two judgments striking out those claims were dismissed by the Court of Appeal. It follows that, even if the earlier Supreme Court proceedings remain on foot as against the individual witnesses named as seventh, eighth and ninth defendants, there is presently no competent claim before the Court to have the conviction of either the Local Court or the District Court quashed. 34 In addition, although the decisions to strike out [the applicant's] claims against some of the defendants might technically be characterised as interlocutory, the judgment of Studdert J (in substance adopted by Grove J) reveals that his Honour was of the view that there could be no arguable relief claimed against any of those parties under s 52 of the Crimes (Appeal and Review) Act. … 37 In any event, [the applicant's] submissions are based on an inversion of the true position. Whereas he maintains that no action may be taken in respect of the enforcement order so long as his so-called appeal in this Court remains on foot, the true position is that the conviction entered in the Local Court and confirmed in the District Court stands. There is no stay of that conviction, and no obligation of the State Debt Recovery Office to stay its enforcement action brought on the strength of that conviction. … 39 A separate ground relied upon by [the applicant] is that his initial conviction was unlawful since he was entitled to a trial by jury in accordance with section 80 of the Constitution. That ground is also misconceived. [The applicant] was not tried under a law of the Commonwealth. It is beyond dispute that the Magistrate had jurisdiction to hear a charge under s 59 of the Crimes Act 1900: see s 9 of the Local Courts Act 1982 (as it then stood) and ss 7 and 260 and Table 2 to Schedule 1 of the Criminal Procedure Act 1986."

[14]

The present application

On 5 December 2018, the applicant filed this application. The respondent filed submissions in reply on 26 March 2019. The applicant was advised in writing that he had 28 days in which to file further submissions, should he wish to do so. By letter dated 2 April 2019, the applicant replied that he required an extension of time to reply "due to my medical conditions, supported by the medical evidence", although no material as to his health was attached. The applicant concluded: "… I would be not [be] able to file the documents and serve them on NSW Attorney General before 31 July 2019. I can advise you on monthly basis of how the matter is progressing before the end of each month. Please, advise me if there are any objections, and we will take that issue before the court."
On 30 August 2019, the applicant filed an affidavit affirmed on 6 February 2019. Clearly, given the date on which the affidavit was affirmed, it does not respond to the respondent's submissions in reply. Rather, it is effectively an affidavit in support of the application ("the affidavit in support").
The only further communication from the applicant is a brief letter addressed to the President of the Court of Appeal of New South Wales, dated 17 October 2019, in which he stated: "I am required at least two weeks, till the 4th of November 2019, to justify and express my thoughts in writing, in relation to the further conduct of the proceedings."
The applicant has not communicated further with the Court. In view of the age of the matter, the ample opportunity that the applicant has had historically and in relation to these current proceedings to convey his concerns as to the safety of his conviction, in the interests of finality, it is appropriate to proceed to an examination of his application.
The application is a 25 page document which is effectively a submission as much as a statement of the grounds advanced for the application. The affidavit in support is 19 pages with 40 pages of annexures, being a copy of an earlier application, affidavit and notices of motion in this Court. In my view, the affidavit in support does not advance the applicant's case beyond the submissions in the application itself.
The first substantive section of the application is titled "Decisions thought", which clearly is meant to be "Decisions sought". These are: "1. The decision in terms that the court of trial - Downing Centre Local Court in Sydney (Police v B. Reznitsky, LC Case No 20075000/02/2) unlawfully conducted the proceedings against the Applicant under criminal law jurisdiction and made decision about his conviction with NO jurisdiction, with NO jury, with NO authority of the criminal law and with NO fact of offence. Also, the court of trial made the decision about the Applicant's conviction without ANY evidence against the Applicant in place. 2. The decision to set aside all orders confirming the above conviction, if any of such orders ever made in lawful authority of law. 3. Any other decisions that Minister of Justice of NSW or appropriate and independent statutory body/tribunal deems fit, such as: referring the issues raised in this Application to NSW Judicial Commission, and /or to NSW Independent Commission Against Corruption, and/or to NSW Parliament for further injuries of whether conduct of numerous involved into the proceedings the public officers, the judicial officers, the state court services was concurrent to the laws passed the Parliament and if it was concurrent to Commonwealth of Australia Constitution Act 1903 (Cth) and its provisions."
Thereafter, the application advances various issues and submissions, expressed in a way that is sometimes difficult to understand or follow. I will isolate, as best I can, the issues and apparent complaints for consideration.
In my opinion, ten of the complaints are unfounded, and one has substance. I will identify and respond to the issues in that sequence.

[21]

(6) The DPP should have prosecuted the matter

The applicant submitted that the NSW Director of Public Prosecutions should have prosecuted the matter rather than police, because police: "… brought defective witnesses to the proceedings and trained them to make misleading, defective statements on oath against [the applicant]."
The allegation that police primed witnesses was alleged by the applicant at the hearing before the Magistrate and dealt with by her in an appropriate manner. The transcript for 16 May 2003 refers to the Magistrate asking the applicant, as he cross-examined Fitisemanu, why he was standing "right at the edge of the table and turning around, is there some problem that you're worried about?" The applicant responded: "Yes, I'm worried about - because informant, Karl Williams, because he is stand behind my neck and I don't like it. Probably he'll make some signs, I don't know, so I have to watch him …"
The Magistrate assured him that she would keep "a very close eye" on proceedings.
The transcript for 14 July 2003 discloses that the applicant informed the court that at the previous day's hearing, which was 16 May 2003, he and his "witnesses" saw Constable Williams on a few occasions leave the courtroom (Court 4.2 in the Downing Centre) while a witness was giving evidence, go to another courtroom (Court 4.6) make notes, then go over to Fitisemanu and Cowan who were waiting for him outside Court 4.2, give them notes and then return inside Court 4.2. The applicant said he interpreted these movements as Constable Williams giving "instructions" to witnesses on what evidence to give.
The applicant said that further evidence of this subterfuge was that Constable Williams, on earlier hearing dates, had appeared in uniform, but was more recently present in civilian clothes. He also suggested that Constable Williams seemed to be signalling witnesses while they were in the witness box, from where he was seated near the prosecutor.
The prosecutor responded that Constable Williams was permitted to wear civilian clothes and he was aware that on the last occasion, Constable Williams was also required to attend a sentence hearing in Court 4.6. The Magistrate added that from where she sat, she had a good view of the proceedings and did not observe Constable Williams "giving any coaching" to any witnesses. In her judgment, she referred to the relevant witnesses, denying they had been handed notes.
The applicant then submitted that whilst he cross-examined a witness on 16 July 2003 (he cross-examined Cowan and Mr Urquhart on that date), he noticed that the prosecutor, who was different from the prosecutor on 14 July 2003, was making gestures for the benefit of the witness, signalling him on what to say. He described the gestures as the prosecutor putting a hand on his shoe and "holding his pen in the left had touching his mouth", which was a "method of communication" that the Magistrate had been unable to see.
The Magistrate said that she did not think such gestures were suspicious. In her judgment, her Honour again indicated that she rejected the proposition that there was signalling of prosecution witnesses on what to say. Her Honour's reasoning did not display a lack of objectivity or a proper basis. She referred to the relevant witnesses, denying they had been told what to say.

[25]

(10) The applicant submitted that two medical certificates tendered by the prosecution should not have been accepted into evidence

The prosecution closed its case on 16 July 2003, subject to the tender of two expert certificates from medical practitioners that concerned Moar's lacerated elbow. The prosecutor informed the court that the certificates had been forwarded to the applicant, attached to a notice of intention to tender them. One of the certificates was a statement by Dr Harry Thorogood dated 26 April 2002. Dr Thorogood stated that he examined Moar on 21 March 2002. Moar had an "old laceration to his left elbow" which had been stitched and the stitches removed. The second was by Dr William Wilson, dated 10 May 2002. Dr Wilson had examined Moar that day.
The Magistrate viewed the certificates and noted that the prosecutor sought to tender them pursuant to s 177 of the Evidence Act 1995 (NSW), which provided as follows: "177 Certificates of expert evidence (1) Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that: (a) states the person's name and address, and (b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and (c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge. (2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party: (a) a copy of the certificate, and (b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion. (3) Service must be effected not later than: (a) 21 days before the hearing, or (b) if, on application by the party before or after service, the court substitutes a different period - the beginning of that period. (4) Service for the purposes of subsection (2) may be proved by affidavit. (5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence. (6) The expert certificate is not admissible as evidence if such a requirement is made. (7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section."
The applicant informed the court that he objected to their tender "on the basis that there are not any notes from any doctors", apparently referring to them not being notes of doctors who tended to Moar's injuries on the date that they occurred.
The Magistrate noted that the applicant had been given notice pursuant to s 177 of the Evidence Act but had not required the doctors to be called until then. She allowed the tender of the certificate of Dr Thorogood, but not that of Dr Wilson. The applicant has submitted that both were wrongly tendered, but it apparent from the list of exhibits and the photocopies of the exhibits that only Dr Thorogood's was accepted into evidence. Even so, the Magistrate was clearly concerned at the absence of contemporaneity of Dr Thorogood's observations and noted that she would give the certificate what weight it deserved. The Magistrate commented, apparently referring to the injuries described in the certificate, "We don't know where they're from", but noted that Moar had given evidence of the lacerations he suffered during the incident. The Magistrate said, addressing the applicant, "It's not disputed by yourself even that he did not have a laceration". I take it from the context that the Magistrate meant the opposite of this sentence's literal meaning.
The applicant submits that, pursuant to s 282(3) of the CPA, the certificate was inadmissible without his consent. At the time of the Local Court hearing, that statutory provision was s 109(3) of the CPA. Although it was not mentioned by any party or the Magistrate, since the applicant now relies upon the provision, it is appropriate to consider whether it was relevant. Section 109 provided: "109 Medical examinations (1) Unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination. (2) A certificate under the hand of any such person stating: (a) that he or she has made the examination, and (b) the nature of his or her scientific qualifications, and (c) the facts and conclusions he or she has arrived at, is admissible as evidence of the matters stated in the certificate. (3) If such a certificate is tendered by the prosecuting authority, a court may not dispose of the case summarily except with the consent of the accused person."
The section, which was previously s 414(1) and (1B) of the Crimes Act, was introduced by Act No 10 of 1924. Its purpose was explained in debates in the Legislative Council to be to protect the position of a defendant at committal. The tender of a certificate obviated the need for the prosecution to call the doctor for the purpose of establishing a sufficient case for committal of the matter for trial or sentence to the District or Supreme Court. A decision to deal with the matter summarily, which would necessarily mean that the defendant would lose his or her opportunity to cross-examine the doctor, could not be made unless the defendant agreed.
By Act 94 of 1999, the section was moved into the CPA, becoming s 109. By Act 119 of 2001, which commenced on 7 July 2003, the section became s 282 of the CPA. Section 282(3) was repealed by the Crimes Legislation Amendment Bill 2014 (NSW). The explanation for its repeal is consistent with its purpose when it had been introduced, namely, to do with the circumstances in which an indictable matter still in the Local Court could be dealt with summarily instead of being committed for trial or sentence. In the Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 15 October 2014 at 1127, the Attorney General, the Hon Brad Hazzard, explained its repeal thus: "… [it] removes the requirement in section 282 of the Act that a court must obtain the consent of an accused to the summary disposal of the proceedings if a scientific examination certificate is tendered by the prosecution. This is redundant as the New South Wales table offences scheme provides that questions of how an offence is dealt with are determined by the type of offence and not by the nature of evidence tendered."
As I noted earlier, both offences were Table 2 offences. Accordingly, s 109(3) of the CPA was not a relevant consideration to the admissibility of the certificate.

[26]

(11) The Magistrate allowed police to read their statements when they were not made contemporaneously

This complaint is supported by the transcript.
Section 33 of the Evidence Act provides: "33 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. (2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and (b) the police officer signed the statement when it was made, and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer."
The first police witness called by the prosecution was Constable Karl Williams. At the outset, the prosecutor asked the Constable if he had made a statement, being a preparatory question to inviting him to read the relevant parts as his evidence in chief. The following exchange then occurred: "PROSECUTOR: Q. Could you commence reading your evidence on to the record from paragraph 3 please? BENCH: Just before we do that, for the sake of [the applicant], it complies with section 33 does it? PROSECUTOR: In my submission it would comply with section 33, your Worship. The statement is dated 13 April 2002 and the incident occurred on 23 February 2002. BENCH: Thank you. That's just to make sure it was done in the time, all right? [The applicant]: Mm. BENCH: So I'll ask that question on your behalf otherwise you're entitled to object to it. But if it is done in time, then you can't object to it. Do you understand that? [The applicant]: Yes. BENCH: Well, you can object to it but you can't object to it on time because the time is correct. [The applicant]: That's okay, thank you."
The applicant was not advised what the Magistrate meant by "in time", that is, pursuant to s 33(2)(a) of the Evidence Act, "at the time of or soon after the occurrence of the events to which it refers".
In my opinion, in view of the fact that the statement was made seven weeks after the events in question, it is likely that it did not comply with s 33: see R v Briggs (No 4) [2014] NSWSC 853 and the cases therein reviewed.
The second police witness was Constable Ian Priest. When called, the prosecutor informed the Magistrate: "Your Worship, the statement does fall within s 33 of the Evidence Act". Her Honour replied, "Thank you" and nothing more was said on that topic; in particular, the prosecutor did not offer, and her Honour did not inquire, what the date of the statement was. According to the transcript, before the Constable read out his statement, a copy of it was handed to her Honour as an aide memoire. Nothing was said by the Magistrate when she received it. The defendant indicated he had a copy.
In cross-examination by the applicant, it emerged that the statement was dated 21 February 2003, that is, 12 months after the events in question. Clearly the statement did not come within s 33, and the officer should not have been permitted to read it. Nothing was said as to that issue by the Magistrate or prosecutor when the date emerged in evidence.

[27]

Part 7: The relevant legislative provisions and principles

Section 79 of the CARA relevantly provides as follows: "79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J stated the test, at [6], as follows: "The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s 465 and its replacement by the provisions now contained in s79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]." This passage was cited with approval in Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 3) [2017] NSWSC 210 at [7] and Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (No 2) [2016] NSWSC 1301 at [17].

[28]

Conclusion

There was ample evidence to support the finding by the Magistrate that the offence of assault occasioning actual bodily harm was made out beyond reasonable doubt. Her Honour was entitled to accept the evidence of the identity of the three security guards as corroborated by Mr Ainsworth and Fitisemanu (who the applicant accepted was present) and their evidence over that of the applicant and his mother as to the applicant's behaviour when the security guards entered the ward.
There was sufficient evidence for the Magistrate's finding that the guards were entitled by the threat posed by that behaviour to quickly move the applicant out of the ward. Her Honour particularly noted the shoving of the nurse in her judgment.
The applicant gave evidence that at the outset of the incident, he asked the security guards to show him their licences, and that they ignored his request. The guards were obliged to produce their security guard licences when challenged to do so pursuant to the Security Industry Act 1997 (NSW), s 35. Cowan and Moar confirmed that the applicant asked to see their licences or "IDs" and, according to Cowan, they all complied.
Quinn LCM was entitled to conclude that the escalation of force applied by the security guards in order to remove and restrain the applicant was proportionate to the degree of resistance offered by the applicant, and therefore was lawful. In that context, the applicant's resistance by the use of force was unlawful and constituted an assault, including against Moar.
The term "bodily harm" is defined according to its ordinary meaning. It includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent, but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509. Two injuries that Moar alleged he received during the incident, which were witnessed and immediately recorded in a report after the assault by Mr Ainsworth, were a laceration injury to his left elbow that required five stitches, and a cut to his lip.
The evidence was to the effect that the elbow injury was occasioned when Moar went to, or was on, the ground and in that sense was directly consequential to the applicant's violent resistance. Once on the ground, according to Moar, the applicant punched him to the face with a clenched fist causing his split lip, thereby constituting evidence of an assault occasioning an intentional infliction of actual bodily harm.
The failure of the Magistrate to disallow the two police officers reading their statements as their evidence in chief did not affect the integrity of the conviction. Neither officer witnessed the assault and their evidence was otherwise irrelevant as to that issue of fact.
Applying the appropriate test as formulated by Johnson J, I do not have a sense of unease or disquiet in respect of the conviction.
Accordingly, I decline to further deal with the application pursuant to ss 79(3)(a)(i) and (b) of the CARA.

At a glance

Court

Decision date

Before

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (7)

Cited By (1)