Bugden v Maddocks [2005] ACTSC 30 (5 April 2005)

Last Updated: 11 May 2005

ANDREW PHILLIP BUGDEN v PETER RODNEY MADDOCKS

[2005] ACTSC 30 (5 April 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 74 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 April 2005

IN THE SUPREME COURT OF THE )

) No. SCA 74 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ANDREW PHILLIP BUGDEN

Appellant

AND: PETER RODNEY MADDOCKS

Respondent

ORDER

Judge: Higgins CJ

Date: 5 April 2005

Place: Canberra

THE COURT ORDERS THAT:

1. In relation to the first matter, the appeal be allowed, to the extent that the penalty imposed is varied by ordering the defendant be convicted but that no fine be imposed and the court costs and CIC levy be remitted.

2. The respondent pay the appellant's costs of and incidental to the appeal.

3. The question of quantum be reserved.

1. I will express my view as articulately as I can without fully describing the facts and circumstances. I will deal with the second matter first because in one sense that is a little easier. It's easier because, it seems to me, on the evidence which Ms Devonport gave, the appellant grabbed her by the arm in order to attract her attention towards and to propel her towards (I presume) their daughter, Jessica, who was on the phone, and to get her off the phone. This is something which Ms Devonport, in the apparent account of the conversation that was given in evidence of police communications, was certainly not unwilling to do.

2. It is true that if one took Jessica's account of what occurred, there was a prior assault before she went to find her mobile phone and to make the 000 call. That is clearly inconsistent with Ms Devonport's evidence. While I am sure that everybody was a bit apprehensive about what Mr Bugden might do when he came in, particularly having regard to the time of the day, I suspect that Jessica's evidence was somewhat coloured by her own anxiety. In any event, it is of no significance because his Worship, as he obviously was entitled to do, took Ms Devonport's evidence to be that upon which he would either act or not act, accepting or not accepting, as the case may be - and of course his Worship did accept it.

3. But it does seem to me that in all the circumstances it was not open to find that that act was done with a hostile intent towards Ms Devonport; clearly it was not. In those circumstances, for that reason, it was not appropriate to find an offence of assault proved, and it should have been dismissed.

4. I uphold the appeal and dismiss that charge accordingly and of course set aside the penalty imposed.

5. That leaves the previous matter in respect of which the evidence as I understand it boils down to this, that there was a disputation, according to Ms Devonport, between herself and Mr Bugden which escalated to violence in the sense that Mr Bugden took hold of her throat and lifted her or at least applied considerable pressure to it. This act was proved beyond reasonable doubt; it certainly constituted an assault in the circumstances.

6. He denies that took place. The other evidence which would tend to support it are her complaints of this pain and discomfort as a result. This itself could not be corroborated otherwise, because although one might have expected some sort of mark to be left on Ms Devonport's neck, there was none. That is not conclusive one way or the other but that is just the fact of the matter.

7. There was also a statement made to a neighbour following and a statement made to police. They were relied upon by his Worship as supporting Ms Devonport's account of that which took place. Whether or not that was appropriate, it is certainly arguable that those two pieces of evidence were admissible.

8. The effect of that should have perhaps been confined to the question of whether there was a recent invention by Ms Devonport as to what had occurred or not; a view which in the circumstances as they were related would not have arisen in any event.

9. But his Worship was quite correct to say, however, that the issue really was whether he could accept what Ms Devonport said as credible, and if credible, credible to a sufficient level that if it stood alone, could be accepted beyond reasonable doubt, and then to ask himself whether the defendant, having given evidence, that the conclusion could be made in all those circumstances.

10. The reasons his Worship gave, some of which have been criticised by Mr Gill, suggest that his Worship's conclusions in that regard were not logically supportable. I will just indicate some of the criticisms he made. One was that Mr Bugden's account was given in testimony before his Worship in a barely audible voice, which was regarded by his Worship as not consistent with yelling.

11. It has to be said as to that, that he did admit that he yelled, so how that could be inconsistent is not clear. In any event his Worship, I suppose, was saying that he seemed to be putting on some sort of an act, a matter which could only be determined, in my opinion, by looking at the demeanour of the witness. To that extent I cannot completely reject his Worship's statement, although the criticism made, that it is quite consistent with the actual testimony of Mr Bugden, is a fair comment.

12. The incident at the hotel was a peripheral incident and his Worship was entitled to say well it does sound somewhat extraordinary, not that one would reject it simply for that reason. It would be a mistake for his Worship to have rejected it simply because other persons present were not called by the appellant as witnesses.

13. Whether that was what his Worship actually did is not entirely clear to me and the alternative criticism was made, that in relation to the second matter, that there were persons present in the backyard and the caravan who might have been called but were not. So I suppose it cuts both ways in that sense.

14. The third question was the statement by Mr Bugden, which he admitted he made, when referring to his (I presume now former) partner as a "slut". The problem with that is using that against him, by reference to what Mr Sharman put: that it wasn't denied by him. Whether Mr Sharman was mistaken in putting it as absolutely as he did is another question but it cannot be attributed to the appellant.

15. Indeed it was not explored to the extent that it could have been in

cross-examination of Mr Bugden. That could not have been, of itself, a reason for not accepting Mr Bugden as a witness of truth.

16. The 000 call was admitted, again, without objection. That is a situation which, on one view of it, was certainly not inconsistent with any evidence which Mr Bugden gave, and so perhaps it is safe to say that it did support a view that Mr Bugden's behaviour prior to the 000 call being made gave young Jessica cause for concern. It would certainly corroborate that and, indeed, it would have been reasonable so to conclude.

17. That was again not inconsistent with his own evidence that he shouted at the people in the backyard. That might well have caused young Jessica to be anxious and concerned.

18. The fifth matter was that the account given by the appellant that his only agitation or expression of agitation was when he saw the people in the backyard or became aware of them. It is certainly fair to comment that his very presence at 3 o'clock in the morning would have been more consistent with him being to some extent agitated before that had occurred, whether or not he was expressing it in terms of shouting. So that was not something which his Worship was disentitled to consider and that is coupled then with the very fact that he journeyed to Gungahlin from Civic at 3 o'clock in the morning. Was he doing that for; just a cup of coffee?

19. His Worship was entitled to take that into account, it seems to me, and by and large, much depends firstly on his Worship's assessment of Mr Bugden's demeanour before him. I do not have the advantage of having had Mr Bugden give that evidence before me. Some of the criticisms made of the assessment of his evidence, of course, are valid. But none of them meet the difficulty that his Worship had the opportunity to see and hear Mr Bugden to make an assessment either as a witness of the truth or otherwise, as indeed he had the opportunity so to do in relation to Ms Devonport.

20. So I am left in a position where I really cannot say that his Worship's acceptance of the testimony on the occasion in question, even disregarding the allegedly corroborative statements, was in error.

21. So if I was deciding whether or not to dismiss the information on the basis of the evidence before his Worship, I would not be moved to say that his Worship was mistaken in accepting it.

22. If I cannot say his Worship was mistaken, I must say no error has been demonstrated and it cannot be said to have been an incorrect decision.

23. There is however then the question of the result which followed, that is, conviction and fine.

24. I am somewhat disturbed by the fact that this prosecution was not pursued for a period of a little over 2 years. It is not appropriate that prosecutions are left simply pending to hang over someone's head unless there is some good reason for that.

25. One good reason may be, of course, if a proposed defendant absconds from the jurisdiction and cannot be found for a time. That would certainly be a reasonable reason why it is that a prosecution might be delayed.

26. But it is, and has been since 1215, the rule that prosecutions should be pursued without delay. As I say, I am somewhat disturbed by the fact that this prosecution was not pursued for 2 years and I would have, myself, in the circumstances, been inclined if I was coming to this point to which I have come in the reasoning process, to have directed either at the outset or otherwise that the prosecution be stayed.

27. If it be the fact, as may well be so, that there was an initial request by Ms Devonport not to pursue the matter which was accepted to the extent of no action being taken for 2 years, then I think a certain result should follow.

28. I do not find any error in the way the magistrate approached the actual task of adjudication. The question is whether the appropriate response is to set aside the whole result, save for the finding of guilt, which precedes the conviction of guilt. I just say I do not see much practical difference in the two consequences, save this, that Mr Bugden's record, in respect of prior matters, is pretty significant. It would be pretty unlikely that he would ever get a situation where he qualified for the application for s 402 of the Crimes Act 1900.

29. There has been no particular complaint made up till now about the delay. I do not know of any particular deleterious consequences that would follow from it, apart from those I can assume. But it does seem to me unreasonable to prolong the proceedings any further.

30. If there were to be an application to stay the prosecution, for example, the question of why there was a delay and where it sprang from may be relevant. It was not raised at the time when it ought to have been raised, which is before the prosecution hit the Magistrates Court for hearing. So that is a discretionary matter, which would militate against permitting such a matter to be raised now.

31. The next question then is, granted it was not raised then, and has come to light now, what should the response be? As I say, I do not see any error in the way the Magistrate approached the finding of guilt in relation to the first count. But there is, to my mind, a question of the response that ought to be made to that, having regard to the delay, which appears to be systemic. I understand what Mr Lundy is putting. In the courts, in my experience, too, there seems to be a lack of resources to be able routinely to execute those warrants which are to be executed - and that includes people who have just failed to turn up in court, I might add. I have had several matters where people have been remanded to appear in this court, failed to appear and it is only when they are discovered somewhere doing something else, that they are actually apprehended and brought to court. It really is not good enough, in my opinion.

32. Whether or not the delay has been so significant, and will have justified a stay of proceedings at the outset, I have not ruled on, of course, and one would need more evidence than I have got to be able to do so.

33. I think a conviction is inevitable.

34. In relation to the first matter then, I allow the appeal, to the extent that the penalty imposed is varied by ordering the defendant be convicted but that no fine be imposed and I remit the court costs and CIC levy. Which means, there will be a conviction recorded but no penalty, including the court costs and/or criminal injuries compensation levy.

35. That leaves the matter of costs of the appeal and/or of the court below.

36. I might say my inclination at the moment is to order that the appellant has the costs of the appeal, but not of the proceeding before the magistrate.

37. I will make an order that the respondent pay the appellant's costs of and incidental to the appeal which would, of course, include some allowance for the extent to which the respondent was successful, albeit both orders favourable to the appellant were made in each case, to some extent.

38. I will reserve the question of quantum.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 5 April 2005

Counsel for the Appellant: Mr s Gill

Solicitor for the Appellant: Hill & Rummery

Counsel for the Respondent: Mr J Lundy

Solicitor for the Respondent: Office of Director of Public Prosecutions

(ACT)

Date of hearing: 5 April 2005

Date of judgment: 5 April 2005