Upton v Cowling [2001] ACTSC 116

2. I was not told whether the appellant entered into the recognizance. If he had, the recognizance would have expired before the hearing of the appeal.

3. The notice of appeal filed on 27 March 2001 contains 20 grounds of appeal and the hearing of the appeal involved lengthy submissions in support of those grounds.

4. The case provides refutation, if any be needed, that the courts are about dispute resolution. They are not. They are required, in accordance with the judicial oath, to do justice to all according to law. The appellant's case is that he is entitled to have the adverse finding of an offence proved against him overruled, regardless of the decision of the Magistrate not to record a conviction. If he is so entitled, the Magistrate's orders will be set aside.

5. The first ground of appeal is that the finding that the offence was proved is against the weight of evidence and is unsafe and unsatisfactory. However, those grounds are not available in appeals from Magistrates. It is more than well established that an appeal to which s 214 of the Magistrates Court Act applies is a re-hearing on the evidence before the Magistrate, subject to the reception of further evidence in accordance with the tests laid down by that section and subject to this Court according proper weight to the findings of the Magistrate which depend upon the advantage of seeing and hearing witnesses. An appeal on the ground that the decision is "against the weight of evidence" lay against the verdict of a jury in a civil case at nisi prius for the purpose of ordering a new trial: Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430. There has never been such an appeal in this Territory. An appeal on the ground that a conviction is "unsafe and unsatisfactory" developed from the statutory power of a court of criminal appeal to set aside a conviction based on a jury's verdict of guilty where there has been a miscarriage of justice. It is doubtful whether it applies to a conviction following a trial by judge alone; see Massey v The Queen [2001] FCA 1558. It is inappropriate to an appeal from a Magistrate by way of re-hearing.

6. These above remarks are subject to the anomalous provisions of s 20 of the Supreme Court Act 1933 which give the Supreme Court all appellate jurisdiction necessary to do justice in the Territory; see Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101. However, nothing was said about that case in the present appeal and I do not propose to say anything more about it in this judgment.

7. The second ground of appeal is that the Magistrate erred in law in applying the test "[was] [the appellant] aware of what he was doing and did he mean to do it? Or ...was whatever contact there was accidental?" The 18 remaining grounds of appeal are a miscellany of alleged errors of fact and law. They amount to a contention that on the evidence the Magistrate was bound to find that there was a possibility that the act of the appellant alleged to constitute the assault occurred by accident. It is necessary to refer to the relevant evidence.

8. The following is a summary of the evidence before the Magistrate. However, it must be emphasised that, despite the brevity of the events in question, they were the subject of much detailed evidence which in turn has been the subject of much dissection and analysis. Not surprisingly, the evidence of the various witnesses can be shown to contain discrepancies, omissions and conflicts.

9. The appellant was in the business of storing and selling fireworks at a shop in Fyshwick. The alleged victim, Ms Read, was a Dangerous Goods inspector. They were well known to each other. Ms Read went there on the afternoon of 24 December 1999 in the company of two colleagues, Mr Fabbo and Ms Plovits, and two police officers.

10. The only persons in the shop upon their arrival were two employees, Ms Anderson and Mr Seetoh. Ms Read showed Ms Anderson a card identifying herself. Ms Anderson asked Ms Read to leave. Ms Read declined to do so.

11. After about 5.30 pm, the appellant arrived at the shop. At that stage, Ms Read and Mr Fabbo were standing in the shop opposite the entrance door and approximately in a position where access was to be gained from the shop itself to a rear office. Although the Magistrate made no finding on the matter, it may be inferred from the circumstances that there was an invitation to members of the public to enter the premises for the purpose of purchasing fireworks and allied purposes. However it is unlikely that the invitation extended to entering the office. At any rate, the place where Ms Read and Mr Fabbo were standing was referred to in evidence as the entrance to the office.

12. The entrance area was about 1.2 metres wide and the distance between Ms Read and Mr Fabbo was less than that, possibly as little as 30 centimetres. Any person wishing to go into the office would have had to go between them.

13. Upon the appellant entering the shop, he went to enter the office in order to get a camera with which he intended to record what was going on.

14. The events that then occurred did so over a short space of time, no more than a few seconds. The evidence of Ms Read and of the appellant, in particular, is in conflict in important respects. Ms Read said that the appellant pushed the right side of his upper body against her right shoulder causing her to be forced backwards against the counter and also causing pain in the shoulder. The appellant's evidence was that as he moved between Ms Read and Mr Fabbo, his feet unintentionally became entangled and he tripped, accidentally colliding with Ms Read. Both witnesses agreed that the appellant said "Excuse me - I said `Excuse me'", but disagree on whether he said those words before or after he came into contact with Ms Read.

15. The Magistrate set out at some length and sequentially the legal principles to be applied, a summary of the evidence of each of the witnesses for the prosecution and for the defence, together with an assessment of the evidence of each witness in turn, followed by some five pages of conclusions. The conclusions may be summarised as follows:

(ii) The evidence of the appellant could not be lightly rejected;

(iii) The appellant did not seek to justify his actions on the ground that he was using reasonable force. The submission was rejected that the appellant's actions were justified on the ground that he was entitled to move freely around his shop and thus entitled to move Ms Read out of his way if she obstructed that movement;

(iv) The real nature of the appellant's case was that in trying to move past Ms Read, he stumbled accidentally and that the subsequent bodily contact between himself and Ms Read was also accidental;

(v) The tone of the voice of the appellant as heard on a tape recording in evidence was aggressive and loud and inconsistent with his claim that he was being careful and cautious in his movements and that he was anxious to avoid conflict;

(vi) The words "Excuse me - I said `Excuse me'" were spoken after the incident, not before or at least so late in the incident that the appellant gave no one time to move out of his way;

(vii) The appellant was in an angry mood following proceedings in this Court earlier in the day and at seeing inspectors yet again at his premises;

(ix) The combined effect of the evidence and of the prosecution witnesses was compelling and credible, and the outward circumstances of the appellant's conduct was such as to give rise to an inference that the appellant's conduct was deliberate; and

(x) The inference that the appellant's conduct was deliberate was thus proved beyond reasonable doubt.

16. The appellant's case on appeal was summarised under three headings in a written outline of submissions. It is convenient to proceed accordingly.

17. Under this heading it was submitted that the Magistrate did not address the issue whether the Crown (sic) had negatived beyond a reasonable doubt that the appellant's conduct was justified.

18. This ground does not challenge the finding that the appellant's action was deliberate. It relies on the obligation of the prosecution to exclude the possibility in an appropriate case that the appellant's conduct, being an assault, was justified and therefore lawful.

19. The only way in which the assault could conceivably have been justified was by the appellant using reasonable force to remove or move a trespasser. But, as already indicated, the Magistrate found that the appellant was not acting in that way or for that purpose. His own evidence did not permit of a finding that he assaulted Ms Read acting in the knowledge that she had refused a request to leave, or otherwise in the belief that she was a trespasser, and that it was necessary to do so in order to remove her from the premises or simply in order to remove her from obstructing his way.

20. It may well be the law that the right to remove a trespasser from premises encompasses the right to remove the trespasser from one part of the premises to another and also encompasses the right to use reasonable force to prevent the trespasser from obstructing the occupier's use of the premises. However, no authority was cited to support those propositions. In any event, the issue was not agitated before the Magistrate. In my view, reading the evidence for myself and accepting the finding of the Magistrate as to the primary facts as to what happened, the evidence does not permit of a conclusion that the appellant acted in pursuance of any right to take action against a trespasser. The law does not permit an occupier simply to push a trespasser out of the way and that is what the Magistrate rightly found the appellant did.

(B) Finding that the conduct in question was not accidental

21. Under this heading it was submitted that, leaving aside the evidence of Ms Read, the only witness who gave reliable evidence on this issue was Mr Seetoh. None of the other witnesses saw the feet of Ms Read and of the appellant at the time they might have become entangled. It was further submitted that the Magistrate had no legitimate reason for rejecting the evidence of Mr Seetoh and thus was not entitled to reject the proposition that in fact there was an accidental entanglement of the feet of the appellant either between themselves or with those of Ms Read or both.

22. However the Magistrate did not accept that the evidence of Mr Seetoh was as reliable as the submission contends. Nor did the Magistrate consider that the evidence of the other witnesses, including the police, shed no light on the issue. In my view, the Magistrate was entitled to approach the evidence that way. Mr Seetoh did not see or describe exactly what happened at the crucial moment. That he may have been in a position where he had a direct line of vision to the feet of the parties does not necessarily mean that he became consciously aware of everything in his line of sight. That the line of sight of the police was restricted to the upper halves of the bodies of Ms Read and the appellant is not inconsistent with the observation of movements which, on a proper assessment either by the Magistrate or this Court, have the features of deliberate action.

23. An audio tape-recording was recorded during some of these events by Ms Read. The recording was in evidence. In it, above the general commotion, the voice of a male person can be heard to say "Excuse me - I said `Excuse me'". There is a very small time lapse from the time the words "Excuse me" are spoken for the first time to the words "I said, Excuse me". The entirety of the words is delivered as if in one sentence. Unless the speaker is referring to some earlier point of time at which he said the words "Excuse me", the impression is given that the speaker leaves no time between the first uttering of the words "Excuse me" and the following uttering of the repetition "I said `Excuse me'" during which the person to whom the words were addressed can excuse whatever it was that needed to be excused. This rapidity of speech, together with the tone in which the words are uttered, suggests that the words are spoken with sarcasm or irony, which is consistent with their being spoken by a person pushing past another, not genuinely seeking to be excused at all.

24. Both the appellant and Ms Read gave evidence that the pushing occurred in that short space of time between the appellant first saying "Excuse me" and then proceeding to repeat himself. That evidence is entirely consistent with the content of the tape recording. The Magistrate concluded, somewhat tentatively, that the pushing occurred before the words were used, but added that even if that were not so, the tape is inconsistent with an appreciable space of time.

25. The Magistrate thought that the words were spoken aggressively and loudly. I would not have characterised the manner of speaking in that way. As I have said, they were loud enough to be heard over the general commotion. But the Magistrate's assessment of them being spoken aggressively is a very insubstantial ground on which to find that the Magistrate was wrong in finding that the contact did not occur accidentally as the appellant claimed.

26. Generally in relation to both headings above, it was submitted that the Magistrate misused the advantage of seeing and hearing the witnesses. Alternatively, or in addition, it was submitted that this Court should not exaggerate the advantage, if any, and should undertake the responsibility, as far as it may, of deciding the facts for itself as constitutionally required of a court of appeal that entertains an appeal by way of re-hearing. Reliance was placed on the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306; (1999) 160 ALR 588 in which the High Court emphasised that the solemn duty of a court of appeal is not discharged by taking refuge in the perceived advantage of a trial court in seeing and hearing witnesses, and that such an advantage, if it exists, is "too fragile a basis" for upholding the decision appealed against.

27. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd appears to have been a case in which documentary evidence of an "objective" and reliable kind was not given sufficient weight by the trial judge or by the intermediate court of appeal. With proper weight given to the documentary evidence, the High Court considered it should overturn the decisions below and substitute its own findings.

28. However, in my view, this is not such a case. The only evidence in respect of which the Magistrate did not have an advantage was the tape. I have listened to the tape and weighed up what was heard with the Magistrate's finding that the accused spoke loudly and aggressively, and, as I have said, although I would not agree the tone should be characterised as aggressive, I do not think there is sufficient reason to interfere with the Magistrate's finding. There is nothing in the tone of the voice which prevents a finding that the action was deliberate.

29. As I understand it, the submission under this heading was that the way in which the Magistrate expressed the test to be applied on the issue of whether the appellant's conduct was accidental reveals an error about where the onus lay. It is trite to say that the test could have been expressed differently. If the Magistrate was required to prove beyond reasonable doubt to the satisfaction of the appellant that the correct test was applied, it would have been better to acknowledge that the onus lay on the prosecution to exclude any reasonable possibility that the conduct was accidental. At one point the Magistrate formulated the issue in terms now relied upon by the appellant as revealing error, namely "[Was] the appellant aware of what he was doing and did he mean to do it? or ... [was] whatever contact there was accidental?" If that was the test applied, it leaves the matter of onus unaddressed. But, in my view, the words so quoted do not imply that the onus was on the appellant to prove that he was not aware of what he was doing or that he did not mean to do it or that the contact was accidental. A reading of the remarks of the Magistrate taken as a whole leaves the reader in no reasonable doubt about whether the Magistrate knew where the onus lay. There is no way in which the Magistrate's quoted words may be read in context to suggest that the reasoning process began from an assumption or presumption that an onus lay on the appellant to prove anything, or that any such misconception somehow crept into the reasoning process along the way.

30. Reliance was placed upon a body of caselaw including the decision of the High Court in Plenty v Dillon (1988) 50 SASR 407 in which ancient authorities are discussed, including Semayne's case [1572] EngR 333; (1604) 5 Co Rep 91a; 77 ER 194, the case responsible for the idea that "an [English] man's home is his castle". Plenty v Dillon established that a police officer is not authorised to enter a farm in order to serve a summons upon a person present on the premises. It has little to do with the present case. Whether Ms Read and her colleagues entered the appellant's shop, which was open to the public, unlawfully does not need to be decided. Whether they became trespassers upon being asked to leave does not need to be decided either because the appellant made no claim of justifying his deliberate conduct in order to exercise his right to move or remove a trespasser.

31. The general complaint is that there was no evidence to prove beyond a reasonable doubt that the appellant did not trip, did not get his legs entangled or did not stumble and further that the only evidence, apart from that of the appellant and Ms Read, from anyone who could see the appellant's feet was that of Mr Seetoh. However, the Magistrate found that Mr Seetoh could not see the whole of Ms Read or of the appellant, only what was visible over the top of the counter and above. Mr Seetoh saw the appellant approach them through the shop. Mr Seetoh then turned away, heard the words "Excuse me", turned back, but the incident was over. By then, what Mr Seetoh saw was that the appellant was past the two officers "almost tripping over on his way back to the shop". The Magistrate concluded that Mr Seetoh's evidence was of little assistance in determining exactly what occurred at the critical moment. As the Magistrate's remarks indicate, neither Mr Seetoh nor Ms Anderson claimed to see the feet of either Ms Read or the appellant and so were unable to corroborate the appellant's claim that his feet became entangled, either with each other or with those of Ms Read.

32. The Magistrate considered that Ms Read was a coherent and capable witness who gave a clear account unaffected by comprehensive and vigorous cross-examination. On the other hand, the Magistrate found that the appellant appeared upset upon his arrival at the shop following proceedings in the Supreme Court earlier in the day and that his anger or annoyance at the presence of inspectors in his shop provided a motive or explanation for him to push Ms Read out of the way as he went to the back of the shop to get his camera to record what was going on. I do not think that it is necessary to discuss any of the other factual errors alleged. There is nothing amongst the several findings which was not open to the Magistrate and there is nothing to justify this Court finding the facts differently or interfering with the ultimate finding that the offence was proved or with the order that the appellant be discharged without conviction upon entering to a recognizance.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Solicitor for the respondent: ACT Director of Public Prosecutions