Criminal law - Assault - Whether magistrate in error - No new principles

1 McKECHNIE J: This is an application for an extension of time within which to appeal and if that is granted an application for leave to appeal. The appellant has outlined the difficulties he had in obtaining the transcript from the Magistrates Court. In all the circumstances, I would grant an extension of time if there are arguable grounds of appeal because I consider the appellant has explained why the appeal took so long to advance, but the question really then is: Are there arguable grounds of appeal? Under the Criminal Appeals Act 2004 (WA) a judge must not grant leave to appeal on any ground unless satisfied there are reasonable prospects of success on that ground.

3 The appellant was charged that on 4 December 2007, he assaulted Thomas Watts a public officer then performing a function of his office. Watts was at the time, although not at the time of trial, a prison officer. The trial eventually proceeded on 12 June and 15 July 2009, following which the appellant was convicted.

4 The appeal was lodged on 2 July 2010, nearly a year after the trial had concluded but, as I say, I am satisfied with the appellant's explanation as to the lengthy delay:

5 On 19 August 2010 a judge made orders on the papers including orders that the appellant:

(c) file an affidavit in support of his application for an extension of within which to appeal; and

(d) lodge and serve amended grounds of appeal which state concisely the reason why the appellant says that the magistrate's decision was 'clearly wrong'.

6 On 14 September 2010, the judge extended time for compliance to 15 October 2010.

7 By letter of 6 September 2010, the appellant wrote to the court stating that he could not file an affidavit because of the non-availability of a JP, and the reason for the delay was the Rockingham Court's refusal to supply a copy of the transcript without a large deposit, despite the fact that he had presented a Healthcare card to prove he was on Centrelink benefits, and he could not afford to pay.

8 He also supplied a written document as an expansion of the grounds of appeal. I will accept that as compliance with the order made that he file amended grounds of appeal. I will accept his reason for not filing an affidavit which relates to the extension of time, which I would grant if there are arguable grounds.

9 I turn to the trial and the evidence at the trial.

10 The first witness was Prison Officer Watts, who gave evidence that on 4 December 2007, he was employed as a prison officer attached to the emergency support group of Hakea Prison, a specialist prison service branch dealing with high security escorts and the like.

11 On 4 December, the appellant was on escort from the District Court in Perth back to Casuarina. Watts gave evidence that at the sallyport at Casuarina, the appellant was in the rear compartment of the escort van in an agitated state verging on abusive. Watts entered the rear of the van, unlocked the rear compartment, the door was pushed open in an aggressive manner. The appellant shuffled forward, restrained in handcuffs and chains linking his ankles. Approximately 7 inches away from Watts' face, the appellant was again very abusive and spat in his (Watts') face.

12 The appellant was pushed to the rear of the cell. Other officers came in to get him out of the van. Watts then had minimum contact with the appellant and went to the control gate and wiped his face. He said the spit was dotted around his forehead and eye region. He washed his face with diluted soap. He consulted a doctor. There were no diseases transferred. He filled in an incident report form on the TOMS system. He explained that the normal process would be to go to a superintendent's hearing, but as the appellant was to be released in approximately two weeks, a police incident report was made.

13 In cross-examination, the appellant called for the medical reports. The prosecutor raised the fact that Mr Watts' personal address was shown. The magistrate ordered that the address be whited out. The reports did not show the presence of saliva, nor did they show the absence of saliva and a sample of DNA was not taken. The appellant cross-examined Watts, but Watts' maintained that he had been spat on as I have outlined. At the conclusion of the witness's evidence, there was an interchange between the appellant and the magistrate and ultimately the magistrate directed that the witness's address be eliminated from the notes which the appellant had been keeping in court.

14 The next prosecution witness was Gareth Bryn Thomas, who gave evidence that he witnessed the appellant spit on Officer Watts. He was also cross-examined as to details and the accuracy of his observations.

15 The prosecution then called Constable Albuquerque, who conducted a record of interview, an abridged version of which was played at the trial and in which the appellant denied the incident.

16 At the resumed hearing on 15 July 2009, the appellant gave evidence on his own behalf. He gave evidence that the air-conditioning was not working in the van and that he was very hot.

17 The appellant told the officer, 'I'm an asthmatic as well and this is unacceptable' and was just pretty much just grabbed by the chains and dragged out of the vehicle, thrown up against the wall, taken to a different cell with the chains removed. The officers left and then he said, 'I went back to my normal prison cell out in the general population.' As to the allegation of spitting, his evidence was:

I have no recollection of spitting in the face or even put to me that I had spat in his face until nine months after I had been released from gaol and the police turned up at my house and arrested me. This was the first time it was alleged to my face that I had spat on him. All the previous allegations had regarded hitting with chains or a door.

18 The appellant denied that the incident happened and said, 'I did not spit on his face.' In cross-examination, amongst other things it was put to him that he may have forgotten the whole incident which was denied by the appellant.

19 At the conclusion of the trial, the magistrate gave an oral judgment. The magistrate looked for corroboration of Watts' evidence and found it in the evidence of Thomas. He quoted the witness, 'I saw it. I saw it happen. He spat in his face. There was no impediment, no impediment to me seeing this. I was behind him. I saw it happen.' He was unmovable in the cross-examination. The magistrate noted there was no DNA evidence but considered that the evidence that Watts went and sought medical treatment corroborated his evidence that he was concerned about ongoing health issues associated with the incident that had occurred.

20 The magistrate was satisfied beyond a reasonable doubt that the offence had occurred.

21 I turn now to the grounds of appeal. The first ground is:

22 The orders of the judge, as I have said, required this ground to be particularised. I take the letter of 6 September as the particulars. In the main, those repeat submissions that were made to the magistrate, but did not ultimately raise in the magistrate a reasonable doubt. This was a factual case of credibility and the matters that were raised were before the magistrate. He took them into account, but ultimately was satisfied beyond reasonable doubt that the event had occurred as alleged, relying as he did on the corroboration of the officer. In my view it was open for the magistrate to reach that conclusion on the evidence, it being a matter for him. Ground 4 is similar in that it says:

1. The public officer alleges he was spat on but did not follow procedure which would have resulted in his face being swabbed for DNA, none of my DNA was found on him when he attended a doctor the next day time some time and distance from the event.

23 Neither ground 1 as particularised nor ground 4 have any reasonable prospects of success and leave to appeal is refused.

1. Fair judicial process was not followed such as cutting out part of my notes by the prosecutor under the magistrate's instructions.

25 I have outlined what occurred. I have to say that the manner of suppression of the personal details of the witness was irregular and the matter should have been dealt with by being raised and the subject of submissions and a ruling made, because suppression of any evidence in a court is a matter of some importance. However, although accepting that the process was irregular, it did not have any affect on the evidence that had been given and does not give rise to any miscarriage of justice. This ground therefore has no reasonable prospects of success.

26 Ground 3 is a ground that deals with the extension of time which I have dealt with.

1. I was to be released in 2007 owing to no parole time or any other court order. In result of taking the charge strait (sic) to the police and outside the court, made no attempt to use the jail justice system allowed the police to keep tabs on me and prevent me travelling interstate etc on bail or suspended sentence
2. May have been a blatant attempt to keep me gaol or re-gaol me because apparently the police fear me greatly for some unknown reason.

I do not need to go into the merits of either of those grounds and whether they are right or not. There was no evidence at trial to support them but neither ground has any affect on the finding of the magistrate. There are no reasonable prospects of either ground succeeding because neither ground would lead to an error of law or a miscarriage of justice.

28 The net result is that had there been reasonable prospects of success on any ground, I would have extended time. As I conclude there are not, leave to appeal is refused.