SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: / McElholum v Hughes
Citation: / [2016] ACTCA 37
Hearing Date: / 11 August 2016
DecisionDate: / 29 September 2016
Before: / Burns, Elkaim and Ross JJ
Decision: /
  1. The appeal is dismissed.

Catchwords: / APPEAL– JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – appeal against conviction and sentence
Legislation Cited: / Court Procedures Rules 2006 (ACT), r 5606
Crimes Act1900 (ACT), s 26
Crimes (Sentencing) Act2005 (ACT), s 17
Family Law Act 1975(Cth), s 121
Cases Cited: / August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376
Betts v The Queen [2016] HCA 25; 90 ALJR 758
Boughey v The Queen[1986] HCA 29; 161 CLR 10
CDJ v VAJ[1998] HCA 76; 197 CLR 172
Fagan v Metropolitan Commissioner of Police[1969] 1 QB 439
Filippou v The Queen[2015] HCA 29; 256 CLR 47
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
McElholum v Hughes [2015] ACTSC 78
Ngatamariki v R [2016] NSWCCA 155
Nguyen v The Queen [2016] HCA 17; 90 ALJR 595
R v Freeman-Quay(No 1) [2015] ACTSC 262
R v Gabriel [2004] ACTSC 30 (20 May 2004); 182 FLR 102
SKA v The Queen [2011] HCA 13; 243 CLR 400
Parties: / DanielMcElholum (Appellant)
Callum Hughes(Respondent)
Representation: / Counsel
Self-Represented(Appellant)
Mr J White SC(Respondent)
Solicitors
Self-Represented(Appellant)
ACT Director of Public Prosecutions(Respondent)
File Number: / ACTCA 23 of 2015
Decision under appeal: / Court: ACT Supreme Court
Before: Refshauge J
Date of decision: 24 April 2015
Case Title: McElholum v Hughes
Citation: [2015] ACTSC 78

The Court:

Introduction

1.This is an appeal from an appeal. The original decision was made in the ACT Magistrates Court where the appellant faced a charge of assault contrary to s 26 of the Crimes Act 1900(ACT).

2.Section 26 states:

“A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.”

3.The appellant defended the charge.

4.The matter was heard by Special Magistrate Lunney (the “magistrate”) on 30 August and 25 October 2013. The decision was given on 12 February 2014. The appellant was convicted.

5.The appellant was sentenced on 7 April 2014. He was fined $100 and ordered to pay costs of $69, a criminal injuries compensation levy of $50 and a victim’s service levy of $10.

6.The appellant appealed from the decision of the magistrate. The appeal was against both conviction and sentence.

7.The appeal was heard by Refshauge J on 26 June 2014. His Honour delivered his decision on 24 April 2015. The appeal was dismissed.

8.This appeal is from the decision of Refshauge J.

Fresh evidence

9.The Further Amended Notice of Appeal dated 2 March 2016 states that “the appellant will seek to put further evidence before the court”.This issuewas dealt with at the commencement of the hearing.

10.The admission of further evidence is governed by r 5606 of the Court Procedures Rules 2006 (ACT). This rule requires the filing of an application atleast 28 days before the hearing, supported by an affidavit setting out the grounds of the fresh evidence application and stating what will be the fresh evidence. Although the fresh evidence is described in the Further Amended Notice of Appeal, no application was filed in accordance with the above rule.

11.It does however appear that affidavits were delivered to the Court Registry on 3 August 2016. The Registry wrote, by email, to the appellant on 4 August 2016 telling him that an application needed to accompany the affidavit. As the appellant did not respond, the affidavit material was not sent to the respondent.

12.The appellant could not point to any reason that would justify the Court in relieving him of the need to comply with the rules of court. In addition, despite being reminded on more than one occasion (20 August 2015, 18 November 2015 and 16 December 2015) of the need to comply with r 5606, the appellant did not do so.

13.Documents said to constitute the fresh evidence are, however, included in the appellant’s submissions.

14.The fresh evidence sought to be relied upon here falls into three groups: Firstly, evidence that was available at the beginning of the hearing before the magistrate on 30 August 2013. Secondly, there is an email from Ms Tanya Howell dated 16 September 2013 which was available by the second day of hearing, 25 October 2013. Thirdly, there are advertisements or media reports and the appellant’s driving record.

15.The material in the first two groups does not meet the requirements for fresh evidence. These may be described as follows:

(a)The evidence must not have been available, or reasonably obtainable, at the hearing.

(b)The fresh evidence would, or at least may, have produced a different result had it been available (CDJ vVAJ[1998] HCA 76 at 184 and195, Betts v The Queen [2016] HCA 25 at paragraph 10 and August v Commissioner of Taxation [2013] FCAFC 85 at paragraph 119).

16.Applying the tests above, the material cannot be described as ‘fresh’ and its use in the appeal was doomed to rejection.

17.The material in the third group is simply not admissible as evidence either in this court or before themagistrate or Refshauge J.

18.Two documents were identified as not having been dealt before Refshauge J. They area Family Report dated 2 March 2013 and a letter to the Director of Public Prosecutions dated 30 June 2013. The former report may, in any event, have had admissibility restrictions under s 121 of the Family Law Act 1975(Cth). Even if that werenot the case, there was nothing about these documents that enabled them to be dealt with differently to the first group of documents. The Court did however allow the appellant to make submissions about sentence which included reference to media material.

19.There was no basis put forward for the exercise of the discretion to admit fresh evidence in the appellant’s favour. The application was rejected.

Grounds of appeal

20.There are four grounds of appeal against the conviction. They are:

(a)The finding of guilt was, in all the circumstances, unsafe and unsatisfactory.

(b)The learned judge erred in failing to take into account various witness statements and affidavits.

(c)The learned judge erred in the direction that he gave himself as to the test of assault and recklessness.

(d)The prosecution was improperly brought, or alternatively, it was not in the public interest to bring it.

21.There is a single ground of appeal against sentence; namely that the sentence was manifestly excessive in all the circumstances.

Background facts

22.Refshauge J summarised the facts behind the assault, commencing at paragraph 1 of his judgment (AB 32). The summary was in turn a summary of the findings made by the magistrate.

23.In 2012 the appellant was engaged in Family Law proceedingsin the, as then known, Federal Magistrates Court, now known as the Federal Circuit Court. Ms Tanya Howell was his former partner. They were at the court premises in Canberra on 22 August 2012 in relation to the proceedings.

24.Ms Howell had retained solicitors who had in turn instructed counsel. The counsel was Ms Annette Haughton. The Federal Magistrate gave the partiestime to discuss their dispute. Ms Howell, Ms Haughton, a law clerk (Ms Moutrage) and a solicitor (Ms Drayton) were in an interview room at the court premises.

25.The appellant wished to talk to Ms Howell or her representatives. He knocked on the door of the interview room. It was opened by Ms Drayton.

26.The appellant inquired as to whether a proposal that he had put forth had been considered. Ms Moutrage said that more time was needed, about 10 to 15 minutes. The appellant was displeased at the suggestion. Ms Moutrage told the appellant that somebody would speak to him when they were ready. Ms Drayton then attempted to close the door and Ms Haughton came to the door to assist.

27.As Ms Haughton put her left hand on the door handle, the appellant, from the other side of the door, pushed it open with such force that Ms Haughton was pushed back into Ms Drayton who was standing behind her.

28.Ms Haughton then moved to block the now open doorway. The appellant leaned closer and said “Who are you?”. Ms Haughton, now feeling threatened and concerned for Ms Howell, requested security. Security personnel arrived. The appellant then left the area.

29.About half an hour later, Ms Haughton complained of pain in her left wrist.

The appeal against conviction

30.The first ground is that “the finding of guilt was, in all the circumstances, unsafe and unsatisfactory”.

31.In his written submissions, the appellant has addressed this ground through seven sub-headings which are a list of complaints concerning the manner in which evidence was dealt with or the manner in which he was dealt with.

32.The first criticism of this ground, and it is a criticism which infects almost the whole of the appeal, is that the appellant has failed to distinguish between the appeal from the magistrate and the appeal from Refshauge J. The appeal to this Court is concerned with the latter decision and is a rehearing of that decision.

33.An example of the appellant’s incorrect approach can be found at paragraph 1.1.32 of his written submissions. This paragraph states:

This finding is inconsistent with the CCTV footage that shows Ms Haughton moving towards the appellant. The finding is of significance because it demonstrates Justice Refshauge has preferred evidence given by Ms Haughton over that of the appellant, even though the evidence given by Ms Haughton was inconsistent with the CCTV and the evidence of the appellant was consistent with the CCTV footage.

34.Refshauge J did not hear Ms Haughton give evidence. He did not “prefer” her evidence because he did not hear it. What he did do was carefully analyse the magistrate’s treatment of her evidence, and that of the other witnesses, and concluded that no error had been exposed.

35.This is not to say that errors of his Honour cannot be derived from errors arising from his dealing with the decision below him. They must however be errors of Refshauge J.

36.Thus for example, the submissions put from paragraph 1.1.1 attack the reliance on the evidence of Ms Haughton and the interpretation of CCTV evidence. These are all attacks on the hearing in the ACT Magistrates Court and they were all dealt with by Refshauge J.

37.To the extent that it is necessary to examine this ground further, the following comments are made:

38.Firstly it is important to state the role of this Court in the appeal. In SKA v The Queen [2011]HCA 13starting at paragraph 11, French CJ, Gummow and Keifel JJ in the High Court, said:

11.It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated inM v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

12. This test has been restated to reflect the terms ofs 6(1)of theCriminal Appeal Act. InMFA v The QueenMcHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" inMis to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."

13.The starting point in the application ofs 6(1)is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment inMwent on to say:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

14. In determining an appeal pursuant tos 6(1)of theCriminal Appeal Act, by applying the test set down inMand restated inMFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". InM, Mason CJ, Deane, Dawson and Toohey JJ stated:

"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with bys 6(1).The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."

39.This was said in Filippou v The Queen[2015] HCA 29 at paragraph 11:

Beginning with the first limb ofs 6(1)of theCriminal Appeal Act, it is clear from the terms ofs 133(1)of theCriminal Procedure Actthat the effect of the latter provision is to equate a judge's finding of guilt to a jury's finding of guilt "for all purposes". It follows from the natural and ordinary meaning of the words ofs 133(1)that, for the purposes of an appeal against conviction unders 5of theCriminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.

Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce ofs 133(1)of theCriminal Procedure Actthat, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb ofs 6(1)of theCriminal Appeal Actunless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language ofM v The Queen:

"It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

Turning to the second limb ofs 6(1)of theCriminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.

The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.

That leaves the proviso, which in terms is applicable to all three limbs ofs 6(1).It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or heror that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained inBaiada Poultry Pty Ltd v The Queenand more recently noticed inLindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied” the proviso must be applied.