Stock v Hyde [2006] ACTSC 11 (3 February 2006)

Last Updated: 6 April 2006

DAVID ALLEN STOCK v GEOFFREY DAVID HYDE

[2006] ACTSC 11 (3 February 2006)

APPEAL - assault - summary proceeding - Magistrate expresses firm view on complainant's credibility during committal - accused elects to call no evidence and accepts summary trial - Magistrate convicts on evidence of complainant - procedural fairness.

Human Rights Act 2004, s 21

Human Rights Act 1998 (UK)

Antoun v The Queen [2006] HCA 2

Hon JJ Spigelman AC, The truth can cost too much: The principle of a fair trial (2004) 78 ALJ 29

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 52 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 3 February 2006

IN THE SUPREME COURT OF THE )

) No SCA 52 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DAVID ALLEN STOCK

Appellant

AND: GEOFFREY DAVID HYDE

Respondent

ORDER

Judge: Connolly J

Date: 3 February 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The conviction and sentence be set aside and the matter be remitted to the Magistrates Court.

1. On 3 February 2006 I upheld this appeal and indicated that I would deliver written reasons.

2. This is an appeal following the conviction of the appellant before Magistrate Madden on 20 June 2005 in relation to counts of assault occasioning actual bodily harm, and unlawful confinement. The charges relate to an incident that occurred at the appellant's residential premises on the morning of 3 March 2005 when his former, and occasional, domestic partner (the complainant) attended the premises well affected by alcohol. It seems clear that an argument ensued over some hours.

3. The complainant called police later that day, around midday, and claimed to have been assaulted and unlawfully confined. When the matter came on for hearing on 16 June the complainant gave evidence and it was apparent that there were difficulties in her presentation, recollection and ability to give a narrative of the events of the day.

4. In submissions Mr Archer, for the appellant, made quite strong submissions that the complainant's credibility was such that it was inherently unreliable and that it would be incapable of supporting any conviction. At 119 of the transcript Mr Archer concluded his submissions by taking his Honour to a number of aspects of the evidence and said -

... that also highlights the absolutely inherent unreliability of her evidence in relation to what happened.

5. The learned Magistrate then said -

I don't disagree with you, but that's not the test I've got to do at this stage, assessing her credibility. I don't disagree one little bit, but I'm at a different level. I'm basically at the prima facie level and I don't take into account, and I'm not permitted to take into account, the reliability or credibility of witnesses.

6. Mr Archer makes no complaint about the law that is expressed there because, of course, it is entirely correct. A magistrate on committal is not to form views about credibility but is simply to ask the question whether, if the Crown case went before a jury properly instructed, would the jury be capable of convicting? It is not the role of the magistrate to make assessments about credibility.

7. Mr Archer makes the complaint that his Honour's express agreement on two occasions, "I don't disagree with you. I don't disagree one little bit," with his very adverse submissions as to creditability, has resulted in a procedural unfairness. The reason for that is that after his Honour formed the view, which he expressly did at 121 of the transcript, the prima facie test had been made out and the matter should be committed, and then in accordance with appropriate procedure invited the appellant to form a view as to whether he wanted the matter dealt with summarily or sent to the Supreme Court for trial.

8. Mr Archer, on a number of occasions in the transcript, again referred his Honour to his express endorsement of the adverse submissions as to credibility, and at no point did his Honour raise any suggestion that he had formed a different view. As a consequence, Mr Archer formed the view that, and indeed he says it quite expressly, there would be a considerable waste of public resources if the matter was sent to trial, and it would be more convenient to have the matter dealt with summarily.

9. In forming that forensic view, Mr Archer was entitled to rely on what had been said in relation to credibility. He expressly said at 126 of the transcript, "and in that I adopt what your Honour said in relation to the unreliability of all the evidence", which was in fact the Magistrate endorsing Mr Archer's submissions.

10. There was a difficulty in having the matter dealt with that morning, and so the matter was stood over to Monday morning. When the matter resumed on Monday morning, his Honour went straight into delivering an oral judgment in which he convicted the appellant on both counts. He could only have convicted the accused on both counts if he accepted the credibility of the complainant on the basis that that would exclude reasonable doubt as to the elements of both offences.

11. Importantly, in relation to self-defence, the Magistrate could only have made that finding if he was satisfied that the evidence of the complainant was sufficient to refute self-defence which had been raised in submissions and in cross-examination, where it was put to the complainant that she had in fact assaulted the appellant and that anything he did was in an attempt to restrain her.

12. It seems to me that Mr Archer must be right in his submissions that the process has miscarried. His Honour's very express statements that he endorsed the appellant's submissions in relation to credibility are quite at odds with his finding on the Monday morning.

13. Now there is nothing wrong with the Magistrate reconsidering the matter and forming that view. But if that is what he was going to do, he really should have put the appellant on notice on Monday morning that he had considered the matter, considered the evidence, and that it was open to him to accept the complainant as a credible witness and to say to Mr Archer, "Well what do you want to do?". If his Honour had done that the appellant would have had the option of going into evidence himself to put some positive evidence before the Magistrate in relation to the issue of self-defence, or would have had the option of electing to take the matter to trial.

14. The comments of the Magistrate, which I have referred to, led Mr Archer, quite properly, to the view that the Magistrate was expressing a view that he was agreeing with Mr Archer's assessment of the complainant's credibility. At 121 of the transcript, after his Honour found that a prima facie case had been made out he said -

... the DPP should reconsider it in the light of the complainant's evidence, which I think at some points is very tenuous.

Again that is a very strong flagging to counsel for an accused person that the magistrate had great difficulty with the credibility of the complainant.

15. There is of course nothing wrong with a judicial officer expressing tentative views during the course of a proceeding. In Antoun v The Queen [2006] HCA 2, Kirby J said at [31] that -

... it is preferable (at least in a trial by judge alone without a jury) that the judge should express tentative or preliminary views to the parties so that they might address the judge on such matters. This Court had said as much. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Brennan, Deane and Gaudron JJ observed (at 571) -

[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

16. In this case the Magistrate very expressly endorsed counsel's strong criticism of the credibility of the complainant and made a suggestion to the DPP that, if the matter were to go to trial, they should "reconsider".

17. This clearly indicated a tentative view that the Magistrate did not accept the complainant as a credible witness. Counsel acted on this view. If, after further consideration, the Magistrate was of the view that the complainant was a credible witness and there was sufficient evidence to establish a finding of guilt beyond reasonable doubt, he was of course bound by his judicial oath to give effect to his finding. But having expressed himself in such clear terms with a tentative view adverse to the complainant's credit, it seems to me that the Magistrate should have indicated to counsel that he had changed his mind, to give the appellant the opportunity to consider the future conduct of the matter. By proceeding directly to conviction, it seems to me that he has denied procedural fairness to the appellant in a fundamental manner.

18. In the ACT the common law concept of procedural fairness - the right to a fair trial - is given statutory recognition by s 21 of the Human Rights Act 2004. Chief Justice Spigelman has argued extra judicially that the statutory guarantee of a fair trial found in the UK Human Rights Act 1998 is consistent with the common law principle of the right to a fair trial (Hon JJ Spigelman AC, The truth can cost too much: The principle of a fair trial (2004) 78 ALJ 29).

19. For that reason the conviction and sentence are set aside.

20. Mr Archer argued that, despite having succeeded on that point, the matter should in fact simply be quashed and in effect the appellant be acquitted of this offence. He says that there is an error in his Honour's reasoning in that he has failed to properly consider the question of self-defence and has been led into error in that he made the finding that self-defence was not made out by relying or drawing adverse inference from the appellant's failure to give evidence at the proceeding.

21. I am not satisfied that that is the case. It seems to me that if his Honour formed the view, as he obviously did, that the complainant was a credible witness, the complainant, when it was put to her that this act occurred in self-defence, denied that and said that any scratch or hitting she had inflicted on the appellant only occurred at a time when he was kneeling over her and restraining her, and in effect offering her a level of violence that amounts to an assault.

22. It does seem to me that relying on the evidence that was before him, and not drawing any inferences from the appellant's failure to give evidence, his Honour was entitled to say that on the evidence before him the Crown had refuted self-defence. It seems to me, therefore, that the appropriate course is to set aside the conviction and sentence and remit the matter to the Magistrates Court for further determination. The question of whether it is to proceed before Magistrate Madden or another magistrate is a matter best determined by the magistrate after counsel have had the opportunity to consider the matter.

23. A submission was made by Mr Archer that sending the matter back to the Magistrates Court would be somewhat pointless because, if the appellant gave evidence to the effect that his actions were in self-defence, that evidence could not be contradicted. It was common ground on the Crown case before the Magistrate, that when the police attended the scene the appellant was not affected by alcohol but the complainant was well affected. The complainant admitted she had no recollection of significant periods of time. If the appellant gives evidence that she initiated the violence, self-defence would be made out and it would be impossible for the Crown to refute it.

24. That may well be the way this case develops. But it would be wrong of me to make assumptions as to the way the evidence will be adduced by the Magistrate in this case and the way that evidence might stand up to any cross-examination by the Crown. Given that there is evidence of substantial periods of time when the complainant has no memory of what happened during those times, may mean that the case inevitably flows to one conclusion. But that is not a matter for me. It may be a matter for consideration by the Director of Public Prosecutions. The matter is therefore remitted to the Magistrate.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: February 2006

Counsel for the appellant: Mr K Archer

Solicitor for the appellant: S & T Lawyers

Counsel for the respondent: Ms J Whitbread

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 3 February 2006

Date of judgment: 3 February 2006