Burnett v Gowing [2003] ACTSC 89 (10 November 2003)

Last Updated: 24 November 2003

GERALDINE PATRICIA BURNETT v GARRY ANDREW GOWING

[2003] ACTSC 89 (10 November 2003)

APPEAL AGAINST CONVICTION - challenge to adequacy of Magistrate's reasons -whether Magistrate failed to take into account statement to police said to be exculpatory - statement did not address element of offence of common assault - no error of reasoning.

EVIDENCE - Evidence Act 1995 (Cth), s 60 - police statement admitted into evidence in prosecution case - statement by accused is evidence of the truth of its assertion.

APPEAL AGAINST SEVERITY OF SENTENCE - sentence not excessive.

Evidence Act 1995 (Cth), s 60

Crimes Act 1900, s 23

Adam v The Queen [2001] HCA 57

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Odgers, Uniform Evidence Law, 5^th ed 2002

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 48 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 10 November 2003

IN THE SUPREME COURT OF THE )

) No SCA 48 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GERALDINE PATRICIA BURNETT

Appellant

AND: GARRY ANDREW GOWING

Respondent

ORDER

Judge: Connolly J

Date: 10 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction and sentence be dismissed.

1. This is an appeal against conviction and sentence from a decision of Magistrate Fryer, who on 22 July 2003 convicted the appellant on a charge of assault and released her on a recognizance self in the sum of $500 to be of good behaviour for twelve months.

2. The appellant was charged that on 29 June 2002 she did assault Celia Walsh. The circumstances of the assault were said to be that the appellant, Ms Burnett, and Ms Walsh were neighbours in a unit complex at Yarralumla and shared a common driveway. On the morning of the assault, Ms Walsh had experienced problems with her plumbing and had called a plumber, Mr Johnson, who in attending her unit had parked his vehicle in the driveway. He heard a car horn and saw the appellant in her car, which was blocked by his vehicle. There was an exchange of words and he moved his vehicle. Ms Walsh says that after Mr Johnson moved his van, she stood in the driveway to speak to the appellant. The appellant drove her vehicle towards her and she had to jump out of the way, but was nevertheless struck by the appellant's vehicle. Mr Johnson, who at this time had taken his vehicle out on to the street, gave evidence that he observed the appellant drive towards Ms Walsh, saw Ms Walsh try to get out of the way, and saw the appellant hit Ms Walsh. Ms Walsh gave evidence that she had a clear view of the appellant driving towards her, looking at her, and that the appellant drove at speed. The appellant did not give evidence.

3. The Magistrate heard the evidence on 21 July 2003, and reserved her decision, delivering reasons on 22 July 2003. It was common ground that in her reasons (AB 7) she correctly identified the test for a charge of common assault, saying -

The issue then is whether I can be satisfied beyond a reasonable doubt that the defendant intended that consequence [causing Ms Walsh to apprehend immediate physical harm]. I do not have to be satisfied that the defendant intended to actually run Ms Walsh over or to cause injury to the complainant, simply that she either intended to cause the apprehension that Ms Walsh felt, or that she adverted to the possibility that Ms Walsh would have that apprehension and yet proceeded nonetheless.

4. In her findings, the learned Magistrate said (AB 6) -

This is not a case where there was difficulty in clear vision. Accordingly I find that the defendant, at the time she was proceeding to drive down the driveway, knew that Ms Walsh was standing there in front of her vehicle. No other finding can rationally be made on the evidence. Although I have previously found that the complainant's evidence concerning the actual speed the car was being driven towards her cannot be accepted as reliable, what I do find is that the car was driven towards the complainant at a sufficient and consistent speed that caused her to jump out of the way. There is no evidence to the contrary.

5. The appellant's argument is that the Magistrate was in error in stating that there was no evidence to the contrary, because it fails to take into account what is said to be an exculpatory statement being a statement that the appellant made to investigating police and which was tendered in the prosecution case. Counsel for the appellant submitted, correctly, that such a statement is now, pursuant to s 60 of the Evidence Act 1995 (Cth) (the Evidence Act), evidence of the truth of what is asserted, and so where an exculpatory statement is admitted into evidence it must be expressly dealt with by the Magistrate.

6. It is undoubtedly now the law following the Evidence Act that such a statement, which would under common law have been mere hearsay, is now admissible pursuant to s 60, and so is evidence of the truth of what is asserted. This is confirmed in Adam v The Queen [2001] HCA 57 and the authorities set out in the commentary to s 60 in Odgers, Uniform Evidence Law, 5^th ed 2002. So even where a defendant chooses not to give evidence, if there is a police statement tendered in the prosecution case which records the defendant denying the charge, that statement by the defendant is now evidence, and so it would be an error to proceed on the basis that the only evidence in a case is that given by prosecution witnesses. This is said by Mr Everson to be the error that the Magistrate fell into, and Mr Everson urged that the correct course would be to remit the matter to the Magistrates Court to be dealt with appropriately.

7. Ms Whitbread, for the respondent, accepted that this is the effect of s 60, but made the submission that the statement that is said to be exculpatory needs to be carefully examined before it can be said that the Magistrate was in error in stating that "there is no evidence to the contrary".

8. In her statement to the police officer the appellant at first said that she did not remember any incident, but when told that there was a person who had to move his car, referring to Mr Johnson, she said -

I'm sorry if I hit her, but I didn't mean to. I didn't know that I did. It's sometimes difficult to turn in the driveway as it is very narrow. I sometimes have trouble seeing Ms Walsh's dogs.

9. This statement amounts to a denial that there was any intent to hit Ms Walsh with the car. That would be evidence exculpatory of a charge of assault with intent to inflict actual bodily harm contrary to s 23 of the Crimes Act 1900 (the Crimes Act), but of course this was not the offence charged. The appellant was charged with common assault contrary to s 26 of the Crimes Act. The mental element of common assault is not, as the learned Magistrate correctly reminded herself in her reasons in the passage referred to above in par [3], an intention to strike or hit or cause actual harm. Rather, to utilize the oft cited definition from Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 per James LJ at 444 -

An assault is any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence...

10. The statement to the police officer would, it seems to me, have been exculpatory evidence which the learned Magistrate would have had to have dealt with expressly if she was considering a case of assault with intent to inflict actual bodily harm, because the statement asserts that the appellant did not mean to hit Ms Walsh. But in a charge of common assault, it was not necessary for the prosecution to prove any intent to actually hit Ms Walsh. Rather, as the learned Magistrate said, it was necessary for her to be satisfied beyond reasonable doubt that the appellant intended to cause the apprehension that Ms Walsh felt, or that she adverted to that possibility and yet proceeded. The police statement does not say that the appellant did not know Ms Walsh was in the driveway, or that she did not see Ms Walsh in the driveway. It simply states that the appellant did not intend to hit Ms Walsh.

11. The learned Magistrate, it seems to me, was thus correct in assessing the evidence and coming to the conclusion that the appellant drove her car towards Ms Walsh at a sufficient and consistent speed that caused Ms Walsh to jump out of the way in apprehension that she would be struck by the car, as indeed she was. The learned Magistrate was correct in saying that there was no evidence to the contrary, because, it seems to me, the statement to the police officer merely asserts a lack of intention to actually hit Ms Walsh, which was not an element necessary to be made out in a charge of common assault. There was no error in the learned Magistrate's reasoning.

12. The appeal against conviction is dismissed.

13. The appeal against sentence was based on the ground that the sentence was manifestly excessive. Mr Everson submitted that the appropriate course would have been to decline to record a conviction, or to impose no penalty. Mr Everson acknowledged that he faced the difficulty that on appeal the role of the appeal court is not exercising its fresh discretion on sentencing, but looking to see whether an error occurred. The principle is well stated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, where at 671-672 the Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) said -

... a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

14. The sentencing remarks of the learned Magistrate are set out in the appeal book at pages 8-9. It is clear that it was urged on the learned Magistrate that she should not record a conviction, and she said -

... it's my view that this was not a trivial matter, that the actions were quite drastic and indeed could have had much more serious consequences and much more serious outcomes than in fact did happen.

15. It seems to me that this discloses no error in principle, and indeed I would go further and state that I respectfully agree with what the learned Magistrate said. This charge clearly did arise from some ongoing neighbour dispute, but the use of a motor vehicle to express anger or frustration is clearly not a trivial matter. Road rage, or in this case driveway rage, can indeed have serious consequences. The appellant was only charged with common assault, although in fact she did hit Ms Walsh, and could well have caused serious injury. The appellant had prior relevant convictions, and it seems to me that the learned Magistrate acted appropriately in recording a conviction and imposing a good behaviour bond on the appellant.

16. I dismiss the appeal against sentence.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 10 November 2003

Counsel for the appellant Mr C Everson

Solicitor for the appellant: Saunders and Company

Counsel for the respondent: Ms J Whitbread

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 6 November 2003

Date of judgment: 10 November 2003