Kuvanci v Scott [2004] ACTSC 16 (7 April 2004)

Last Updated: 1 February 2005

HUSEYIN KUVANCI v SHANE SCOTT

[2004] ACTSC 16 (7 April 2004)

APPEAL - conviction by Magistrate - recklessly inflict grievous bodily harm.

EVIDENCE - hearsay - admissibility under Evidence Act 1995 (Cth) - out of court representation to police officer - evidence admissible - Evidence Act, s 66(2).

Evidence Act 1995 (Cth), s 59, s 66

Crimes Act 1900, s 20

R v Tillott (1995) 38 NSWLR 1

R v Esposito (1998) 45 NSWLR 442

Turrise v R [2003] ACTCA 23

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 75 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 7 April 2004

IN THE SUPREME COURT OF THE )

) No SCA 75 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: HUSEYIN KUVANCI

Appellant

AND: SHANE SCOTT

Respondent

ORDER

Judge: Connolly J

Date: 7 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction and sentence be dismissed and the Magistrate's orders be confirmed.

1. This is an appeal against conviction and sentence from a decision by Magistrate Campbell on 10 November 2003 to convict the appellant, Huseyin Kuvanci, of one count of recklessly inflict grievous bodily harm, and to sentence him to 18 months imprisonment with a non-parole period of 12 months.

2. The appellant was charged that in the early hours of the morning of Sunday, 3 November 2002 he recklessly inflicted grievous bodily harm on Kidane Belay, a taxi driver, outside the premises situated at 57 Franklin Street, Manuka. The prosecution case was that the appellant and a friend, Mr Paul Fiorenza (the co-accused), travelled in Mr Belay's taxi from a Civic nightclub to the premises at 57 Franklin Street, Manuka where they were staying, and that an argument developed between the taxi driver and the appellant over whether or not the appellant and his friend had spat in the taxi. The prosecution case was that the appellant then struck Mr Belay who fell to the ground and sustained a serious head injury.

3. The incident occurred shortly after Canberra Cabs had installed photographic devices in taxis. Some days after the attack The Canberra Times published photographs of the two passengers who were last in the taxi before Mr Belay was found lying in the street. The appellant says that his employer called him into the site office the following Wednesday and showed him the photograph in the newspaper, identifying him and his friend, and that as a consequence he and his friend went to the police to clear their names. He acknowledged that he was a passenger in the taxi, but denied any wrongdoing. He said that they travelled from Civic to Manuka, then paid the fare and departed.

4. There are four grounds of appeal -

(i) The simultaneous conduct of administrative and judicial proceedings resulted in a miscarriage of justice.

(ii) The evidence did not support a finding of guilt beyond reasonable doubt.

(iii) Her Worship erred in admitting evidence of a hearsay representation.

(iv) The sentence imposed was manifestly excessive.

Ground 1 - The claimed confusion between administrative and judicial proceedings

5. This ground of appeal goes to what is claimed to be an error in the way the learned Magistrate dealt with evidence that was ruled to be admissible in the committal proceedings but inadmissible in the hearing, going to recovered memory by the victim of the assault, Mr Belay.

6. The matter commenced in the Magistrates Court on 24 June 2003 by way of a joint committal proceeding involving the appellant and Mr Fiorenza. Both were represented by counsel and both were charged with recklessly inflicting grievous bodily harm. On the first day of the committal, evidence was called from the informant, Constable Scott, which showed that Mr Belay had originally had little memory of the events of the night, but that after attending a pre-hearing conference at the Magistrates Court, where he observed the two accused, he had a dream in which he says that the events of the night were further revealed, and his memory significantly improved. After reporting this dream to the police, the police arranged for Mr Belay to be hypnotised by a forensic psychologist, and this procedure was video-taped.

7. The evidence sought to be led from Mr Belay following his observation of the two accused and his subsequent memory improvement following a dream and following hypnosis was, understandably, challenged by counsel for both accused. The learned Magistrate, in her reasons on the voir dire delivered orally on 11 July 2003, made the finding (Transcript, 11 July 2003 at 5), which was not challenged in this appeal, and which seems to me to be correct, that -

While the hypnosis session seems to have precipitated some improvement in relation to certain details, the pivotal incident in refreshing, reviving or creating Mr Belay's memory was the dream he had after seeing the two defendants in court.

8. The learned Magistrate found that the hypnosis session was conducted in a manner consistent with the requirements laid down by the New South Wales Court of Appeal in R v Tillott (1995) 38 NSWLR 1. She, correctly it seems to me, formed the view that all of this material, being the memory following the dream precipitated by the observation of the two accused, and the memory following the hypnosis, was prima facie relevant and so admissible under the provisions of the Evidence Act 1995 (Cth) (the Evidence Act), and she correctly reminded herself that (Transcript, 11 July 2003 at 9-10) -

although the essential nature of the committing magistrate's function is administrative, that magistrate must act judicially in making determinations and it is possible therefore to infer the existence of a discretion to exclude otherwise admissible evidence as on a trial. However it also appears to be very well accepted that ordinarily a magistrate would not exercise their discretion to reject such evidence except in circumstances which clearly demand it.

At the present time I am of the view that the evidence is relevant and as such is admissible. The exercise of any discretion or of any judgment akin to a discretion should be withheld until consent to jurisdiction is given or the matters proceed to hearing in the Supreme Court.

9. At the time her Worship gave this oral ruling on the voir dire, neither accused had indicated that he would consent to the matter being finalised within the jurisdiction of the Magistrates Court, and so the matter proceeded as a committal. The matter recommenced before the learned Magistrate on 15 September 2003, when counsel for the accused indicated that they would consent to jurisdiction, and the matter proceeded as a hearing.

10. The first ground of appeal is that the simultaneous conduct of administrative and judicial proceedings resulted in a miscarriage of justice, and counsel for the appellant indicated that this in effect went to the danger that the learned Magistrate may have allowed in evidence in the hearing that, while properly admissible for a committal proceeding following the ruling on the voir dire, should not have been admitted at trial. It seems to me, however, that this ground is not made out, as the learned Magistrate, properly and carefully, set out in her reasons her decision to exclude for the purposes of the hearing the recovered memory material that she had allowed in for the purposes of the committal.

11. The learned Magistrate in her reasons of 25 September 2003 (at AB 7), reminded herself of the discretion in s 137 of the Evidence Act, which provides that -

In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

She reiterated her finding (AB 8) that Mr Belay -

had regained his additional memory of the incident in a dream after attending court and seeing the defendants.

She continued at AB 9 -

It is clear that Mr Belay firmly accepts the content of his dream as being his recollection, but I cannot say with sufficient certainty whether his dream is a genuine recollection or partial recollection and partial fantasy or even total fantasy.

As his memory was awoken after the dream and in the absence of any expert evidence to assist me I'm of the view that whilst he may have a complete conviction as to his memory's accuracy, it may be that gaps in his memory were filled in, in such a way as to make a coherent and logical pattern to him that nevertheless what he has testified to very firmly and convincingly are not actual memories but rather a fabrication or a recreation of what he believed must have occurred.

She concluded (AB 9) -

Therefore, there is a danger that what he supposedly recollected in hypnosis was no more or less than the contents of the dream. There was the danger that the recovered memory in hypnosis is simply a reinforcement or a recovery of something which may not be based on an actual recollection.

There is no rational and sound basis on which I could be satisfied that it is appropriate to accept it as anything more than that. In my view, the danger of unfair prejudice to the defendants, to the evidence that he's dreamt and repeated in the hypnosis session, exceeds the probative value and therefore must be excluded.

She then excluded the evidence.

12. It seems to me that the learned Magistrate has properly and correctly excluded the recovered memory material flowing from the dream which occurred some days after Mr Belay observed the two accused at court and that, in exercising her discretion to exclude this evidence as being prejudicial, she has carefully avoided any confusion between her role in conducting a committal proceeding and her role in conducting a hearing. The first ground of the appeal is not made out.

Ground 2- The claim that the evidence did not support a finding of guilt beyond a reasonable doubt.

13. The evidence the Magistrate had regard to in determining that she could be satisfied beyond a reasonable doubt that the appellant was guilty of the offence comprised the evidence admitted at the hearing, but not the recovered memory evidence material of the victim. The evidence included statements by an ambulance officer, Mr JA Hockley, and a statement by the police informant, Constable Scott. Constable Scott's statement contained a hearsay statement which is the basis of the third ground of the appeal, and during the course of the appeal Mr Livingston, for the appellant, properly it seems to me, made the concession that, if this material was properly before the Magistrate, then she did have sufficient evidence to establish guilt beyond reasonable doubt. Ms Whitbread, for the Director of Public Prosecutions, made a similar, proper concession, that if this material was not before the Magistrate, then there would not have been sufficient material for her to have been satisfied beyond reasonable doubt.

14. It is not in dispute that the appellant and his co-accused were the last passengers collected by Mr Belay, and that he drove them to the address at 57 Franklin Street, Manuka. Mr Belay gave evidence at the hearing on 15 September 2003 that he picked up "two blokes" in Civic at about 2.45 am and drove them to Manuka. He says that they directed him to turn into Franklin Street. He says that during the trip he heard one of the passengers spit, and that when he stopped outside 57 Franklin Street he turned the light on so that the passengers could clearly see the fare on the meter. He said that when the light was on he could see spit on the rear seat, and that an argument developed over the spit, with the men denying they had spat in the taxi. This evidence, it seems to me, was properly admissible, and was not contaminated by the problems of the recovered memory.

15. There was also the evidence of Mr Hockley, an ambulance officer who attended the scene and examined Mr Belay and took him to hospital. Mr Hockley made a statement that during the course of the trip to Canberra Hospital "he stated to me that he had been assaulted by the people that had been in his cab" (AB 380). This evidence was admitted at the trial without objection, but of course it does not go so far as to say which of the two men struck him.

16. There was also very accurate evidence as to timings of certain events. There was evidence that Canberra Cabs' computerised despatch system logs all calls on a central computer, and that the equipment installed in taxis which records the meter being turned on and off is also linked to the central timing device. Another device times images from the security cameras, and it is apparent that there is some discrepancy between the two timing systems. The Magistrate found that at 2.55.19 am Mr Belay turned his meter off (AB 15). On his evidence, this would have been when he was outside 57 Franklin Street. Mr Belay was found lying on the road by a second taxi driver, Mr P Stavropoulos who, according to the records, left Manuka with his fare at 2.57.41 am, and radioed the base at 3.00.46 having observed the empty cab with its engine running and Mr Belay lying on the road. There is thus a very short period between the meter being turned off in Mr Belay's taxi, at which point, it is common ground, the appellant and his co-accused were still with Mr Belay, and the second driver reporting what he had found to the base. There is photographic evidence of the appellant standing next to the driver's door of the taxi for about three minutes. This, on Mr Belay's evidence would have occurred after he turned off the meter. This makes for an even shorter period between the appellant leaving the taxi and Mr Belay being found by the second taxi driver. Passengers in Mr Stavropoulos' taxi, police who arrived quickly at the scene and the driver himself gave evidence that they did not see anyone else in the vicinity.

17. This evidence, it seems to me, would go to show that Mr Belay sustained his injuries by way of an attack from one or both of the passengers whom he took to 57 Franklin Street, but it would not allow the Magistrate to determine, beyond reasonable doubt, which passenger struck Mr Belay. In the absence of any recovered memory material, the prosecution relied on the tender of a statement by Constable Scott. This was tendered as exhibit FF at the hearing, and was not objected to by either counsel for the two accused men (AB 315). The statement says that he attended at the Canberra Hospital at 2 pm on 4 November 2002 and had a conversation with Mr Belay, notes of which were contained in an identified page of his official police notebook. The statement relevantly provides -

Mr Belay could only speak to me for a short time and in this conversation Mr Belay said to me the following that I recorded in point form:

He had picked up a fare from Alinga Street about 2.45 am.

He dropped them off about 3.00 am in Franklin Street, near St Christopher's.

2 males who he described as one being solid between 20 and 30 and one being slim between 20 and 30.

Both males were mucking around, play fighting and opening the windows. He heard the sound of spitting from the male with the beard. When he pulled up in Manuka he looked around and saw spit on the centre of the rear seat. The fare had been paid and he got out of the taxi and spoke to the solid male about the spit. The male denied that anything had happened. He then asked the male to clean the spit to which the solid male stated "No, and if you ask me again I will hit you".

After providing this information Mr Belay had to undergo further medical treatment and I stated I would obtain a further statement after his release from hospital.

18. It was common ground that the appellant is a more solid man than his co-accused. The Magistrate said in her reasons (AB 11) -

I note that the video images retrieved from the taxi confirmed that the bulkier passenger appeared to be the one engaged in some form of communication with Mr Belay.

19. The Magistrate also had regard to a taped police record of interview with the appellant. She noted that at questions 83 and 86 he said that all he could remember was that he got out of the cab, gave the driver the money for the fare, and then walked up to Manuka. At question 122 he said -

... that's all I can remember. I know there's photo's there with me outside whatever but I don't remember any of that.

20. At question 123 he was asked, "So could it be possible that you had some conversation with the taxi driver?" and he answered "According to the photos, yeah, probably".

21. The photographic evidence from the taxi camera (which appears to have a slightly different timing device from that of the radio logs and meter logs) shows the larger man, which the Magistrate properly found to be the appellant, standing outside the taxi and near the driver's door for a period of about three minutes (referred to at AB 16).

22. The Magistrate's reasoning process by which she made the finding that she was satisfied beyond reasonable doubt that the appellant was the assailant is contained at AB 16 as follows. She made the observation that the only hypothesis consistent with the innocence of both accused is that an unknown assailant struck Mr Belay. This, it seems to me, was appropriate, given the medical evidence that Mr Belay had injuries to his eye socket and skull consistent with being punched and then falling to the road and striking the rear of his skull on the road surface. She rejected that hypothesis, noting that robbery was not a motive, as Mr Belay's money was still in the taxi, and that no one in the area saw any person fleeing the scene. She said (AB 16) -

The photographic evidence from the taxi indicates Mr Kuvanci is out of the taxi but present near the driver's door for approximately three minutes, much longer than could possibly be necessary for the simple payment and receipt of change which Mr Kuvanci told police is all that occurred.

In my view, much more was occurring between the two men, than Mr Kuvanci either referred to in his statement of interview or indeed possibly can remember. I'm satisfied that at this time Mr Belay was indeed remonstrating with him about spitting. Within a few short moments Mr Belay was, I am satisfied, punched with considerable force in the face and fell to the ground fracturing his skull.

Mr Belay's evidence was that the defendant, Mr Kuvanci, was troublesome in the taxi and that there was an argument between him and Mr Kuvanci in relation to spit. He made a statement to the police the day after the incident that the bulkier of the men, that is Mr Kuvanci, made a threat of violence to him.

In my view, the irresistible inference is that it was Mr Kuvanci who assaulted Mr Belay. I am satisfied beyond reasonable doubt that the offence of recklessly inflict grievous bodily harm has been proved against him.

23. The learned Magistrate then dismissed the charge against the co-accused, saying (AB 17) -

What Mr Fiorenza's involvement in the matter was, is a matter of conjecture. One may have suspicions that he was complicit in his friend's conduct but in light of my rulings in relation to certain of Mr Belay's evidence I could not be satisfied beyond reasonable doubt that he was engaged in a joint enterprise with Mr Kuvanci.

24. It seems to me that this reasoning process discloses no appellable error, and indeed is a finding I would myself make, on the evidence referred to by the Magistrate. Accordingly, I would dismiss this ground of appeal. The real question then is whether the evidence that Mr Belay was able to identify the larger man, the appellant, as having made a threat to hit him, should have been before the Magistrate. Ms Whitbread properly conceded that, absent his evidence, there would be nothing to link either accused to the actual assault.

Ground 3 - Her Worship erred in admitting evidence of a hearsay representation

25. The crucial material which formed the link between the appellant and the assault was, in the Magistrate's reasoning which I have found to be unimpeachable, the evidence that the larger of the two men, which it is common ground is the appellant, said to Mr Belay when he was arguing with him about whether there was spit in the cab "No, and if you ask me again I will hit you". This evidence was contained in the statement of Constable Scott, which was admitted in the hearing as exhibit FF, without objection by counsel for either accused.

26. It is now argued on appeal that this statement should not have been admitted, as it is a hearsay statement. Constable Scott's statement of what Mr Belay said to him at the Canberra Hospital the day after the attack is, on its face, a hearsay statement. Section 59 of the Evidence Act contains the primary rule that -

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

27. However, there are exceptions to the rule, and the relevant provision here is s 66, which provides -

66 Exception: criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made;

if when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

28. Mr Belay was available and gave evidence at the hearing. It is common ground that the hearsay representation here, being Constable Scott's record of what Mr Belay said, would qualify under s 66(2) as being a representation made when the occurrence of the asserted fact was fresh in Mr Belay's memory. The argument presented by the appellant on the appeal is that the statement should not have been admitted because it is a representation which falls within s 66(3), being a representation "made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding".

29. In R v Esposito (1998) 45 NSWLR 442, the Court of Appeal held that evidence of a police officer of out of court representations by a witness who had witnessed a killing and assisted in removing property from the deceased, and who volunteered the representations for the purpose of indicating the evidence he was willing to give against a co-accused, was not admissible under s 66(3).

30. Wood CJ at CL agreed with Adams J that the person who made the statement was offering the police the version of events that he would give at trial if called as a witness. He thus agreed with Adams J that the representation was made for the purpose set out in s 66(3), and was accordingly inadmissible. He continued (at 450) -

In coming to this conclusion, I do not mean to suggest that s 66(3) will absolutely exclude as inadmissible, hearsay evidence from a witness of all representations made to him by another person who is available to give evidence, and which relate to matters other than identity.

In each case, the question will turn upon the purpose for which the representations were made by that other person. Clearly on one side of the dividing line will be a statement, prepared in the form of a proof of evidence, crystallising the product of one or more interviews with him. On the other side of the line will be the product of routine investigations, where it is not known whether the person spoken to and making representations is a suspect, or a potential witness.

The present case crosses the borderline, only because the witness made it expressly clear, from the outset, that he was making the representations for the purpose of disclosing the evidence that he would be able to give, in a prosecution of the principal offender, and referred to himself more than once, in the course of the discussion or interview, as a "witness".

31. Ms Whitbread, while accepting Esposito as good law, being a decision of the New South Wales Court of Appeal on the equivalent provision in the New South Wales Evidence Act, stressed that the statement here should be seen to be a statement taken in the course of the preliminary investigation, and is not to be seen as a proof of evidence. It is clear from Constable Scott's statement that he commenced investigations into the assault of Mr Belay who had been found lying on the road in Manuka. He says that he was told that Mr Belay had been taken to Canberra Hospital, and he had his first conversation with Mr Belay at the hospital. The statement records that "Mr Belay could only speak to me for a short time and in this conversation Mr Belay said to me the following...". The statement then records what Mr Belay said, and concludes with (AB 652) -

After providing this information Mr Belay had to undergo further medical treatment and I stated I would obtain a further statement after his release from hospital.

32. It seems to me that, far from being in the nature of a proof of evidence, the notes Constable Scott took from what was clearly a preliminary and short conversation with the apparent victim of an assault, falls closer to the description used by Wood CJ at CL of "the product of routine investigations". Mr Belay did not indicate this would be the evidence that he would be able to give at a later hearing, which was the factor that seems to have swung the balance in Esposito.

33. It seems to me that the hearsay statement contained in Constable Scott's statement falls within the exclusion to the hearsay rule in s 66(2), and does not fall within the provisions of s 66(3). It was not in any sense a proof of evidence or a statement "made for the purpose of indicating the evidence that the person who made it" would provide to a court hearing. It was the preliminary and short conversation between Mr Belay and the police officer, made before the formal statement setting out what Mr Belay's evidence would be. Such a formal statement, which would normally fall within s 66(3), was taken on a later attendance, on 12 November 2002.

34. It seems to me therefore that the statement was admissible, and I would dismiss this ground of appeal on the basis that the statement was admissible pursuant to s 66(2) of the Evidence Act, and did not fall within the provisions of s 66(3), on the test set down in that provision and explained in R v Esposito.

35. Mr Belay gave evidence at the hearing, and in this evidence he described picking up the passengers, and the dispute over the spitting. He said it was mainly "the bulky guy" who was arguing with him (AB 192). This is consistent with the hearsay statement contained in Constable Scott's evidence, and was not the subject of cross-examination. This evidence, it seems to me, has not been contaminated by the subsequent memory recovery, and it was admitted in Mr Belay's evidence-in-chief without objection. While this does not go as far as the hearsay statement in Constable Scott's evidence, it does identify the appellant as the person who was arguing with Mr Belay, and is consistent with the photographic evidence. That Mr Belay gave evidence generally consistent with the hearsay statement further weakens the argument that the statement should have been excluded pursuant to s 66(3). Even if the point had been taken at trial, and had the Magistrate been minded, contrary to what I think is the correct view, to exclude the hearsay statement on the basis of the test laid down by Wood CJ at CL in Esposito, her attention would no doubt have been drawn to his Honour's further remarks in that case at 450 that -

I do not regard s 66(3) as having the effect of precluding examination or re-examination of a witness in the position of Mr Ross upon any prior statement, containing the relevant representation, if ground is properly laid, under s 38 or 108 of the Evidence Act, for leave to do so, or of preventing that witness from reviving his memory by reference to such a statement under s 32 of the Evidence Act, again where ground is shown for the grant of leave to do so.

Mr Belay, reminded of his statement, may then have amplified the evidence he gave in chief.

36. I should add that there is an additional problem here in that this point was not taken at the hearing, and experienced counsel (not being the counsel appearing on the appeal) allowed the statement to go into evidence without objection. This issue arose recently in the Court of Appeal in Turrise v R [2003] ACTCA 23, where counsel for the appellant sought to amend the grounds of appeal to argue a point that was not argued during the trial. Counsel for the accused had not sought to lead certain evidence at the trial, and on appeal it was argued that failure to lead this evidence meant that the accused did not receive a fair trial. The Court of Appeal (Crispin P, Connolly and Gyles JJ) declined to allow the amendment, noting at [6] -

A forensic choice had to be made with advantages and disadvantages to be considered. The mere fact that a judge or judges later think that a better choice could have been made does not establish any ground for appellate intervention.

37. There is always a difficulty for counsel on appeal to argue a point that evidence should have been excluded at the hearing when, at the hearing, different but experienced counsel allowed the evidence in without objection. As Gleeson CJ observed in Crampton v The Queen [2000] HCA 60; 206 CLR 161 at 172-173 -

... it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court.

38. I dismiss the third ground of the appeal against conviction, and confirm the conviction.

Ground 4 - Appeal against severity of sentence

39. The appellant was convicted of the offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900. This is an offence for which the legislature has imposed a maximum penalty of imprisonment for 10 years. The learned Magistrate imposed a penalty of imprisonment for 18 months with an order that he be released after 12 months imprisonment upon him entering into a recognizance to be of good behaviour for a further 12 months with a surety of $2,000.

40. In coming to her decision of sentence the learned Magistrate had before her a victim impact statement from Mr Belay, which indicates that he has been unable to return to taxi driving since the assault. There is no question that the injuries were very serious. She also had before her a pre-sentence report and the appellant's criminal antecedents, which indicated an extensive history of driving related offences (including offences of driving while disqualified and failing to appear in court for driving related matters). These types of offences indicate a general disregard for court orders. The appellant also had previous convictions for assault police in 1997 and 1999.

41. It seems to me that in the light of these factors a custodial sentence was inevitable. The Magistrate also noted, correctly in my view, that not only is a Court bound to impose a punishment on behalf of the community which demonstrates that society does not tolerate violence, but the authorities make -

it clear that people in the position such as taxi drivers are in a vulnerable position and it is important that the courts do what they can to ensure their safety by denouncing crimes against people such as taxi drivers. (AB 20)

This was a very proper factor to take into account. The community expects that taxi drivers, working alone, will pick up passengers at any hour of the day or night. Those passengers may have been drinking, and indeed the community makes a particular effort to encourage persons who may have been drinking to catch a taxi home rather than drive. Taxi drivers working alone are thus particularly vulnerable, and assaults on taxi drivers should be taken very seriously. The learned Magistrate properly reminded herself of this.

42. The learned Magistrate also noted that there was to be no discount for an early plea, or for any demonstrated remorse. It seems to me that the sentence she imposed can in no way be said to be manifestly excessive in all the circumstances, and I dismiss the final ground of the appeal against sentence.

Orders

43. The appeal against conviction and sentence is dismissed and the orders of the Magistrate are confirmed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 7 April 2004

Counsel for the appellant: Mr R Livingston

Solicitor for the appellant: Hill & Rummery

Counsel for the respondent: Ms J Whitbread

Solicitor for the respondent: ACT Director of Public Prosecutions

Dates of hearing: 25 and 26 March 2004

Date of judgment: 7 April 2004