Upton v Cowling [2002] FCAFC 134

FEDERAL COURT OF AUSTRALIA

Upton v Cowling [2002] FCAFC 134 CRIMINAL LAW – onus of proof – proof of elements of the offence - whether correctly applied – defences – where defence not suggested on the evidence before the tribunal – whether tribunal obliged to address defences not raised or suggested during trial EVIDENCE – fresh evidence – discretion of appeal court to allow the admission of evidence reasonably available prior to trial at first instance – where evidence clearly related to matters before tribunal at first instance Crimes Act 1900 (ACT) s 556A(1) HAROLD SCOTT UPTON v MERVYN LAURENCE COWLING A 74 OF 2001 SPENDER, O'LOUGHLIN & DOWSETT JJ 16 MAY 2002 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 74 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN: HAROLD SCOTT UPTON

APPELLANT

AND: MERVYN LAURENCE COWLING

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN & DOWSETT JJ

DATE OF ORDER: 16 MAY 2002

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 74 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN: HAROLD SCOTT UPTON

APPELLANT

AND: MERVYN LAURENCE COWLING

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN & DOWSETT JJ

DATE: 16 MAY 2002

PLACE: CANBERRA

REASONS FOR JUDGMENT

SPENDER J: 1 I agree with the reasons of Dowsett J.

O'LOUGHLIN J: 2 I also agree.

DOWSETT J: 3 On 6 March 2001, a Magistrate sitting in the ACT Magistrates Court found that a charge of assault against the appellant was proven but, without proceeding to conviction, ordered, pursuant to s 556A(1) of the Crimes Act 1900 (ACT) that the appellant be discharged upon giving security in his own recognisance in the sum of $5000 that he would be of good behaviour for a period of six months and that he pay court costs and a criminal injuries levy in the sum of $100. From that decision, he appealed to the Supreme Court of the Australian Capital Territory where the appeal was heard by Miles CJ. His Honour dismissed the appeal, and the appellant now appeals to this Court from that decision. The relevant evidence appears in pars [8] – [14] of the reasons given by Miles CJ in dismissing the appeal as follows: "[8] The following is a summary of the evidence before the Magistrate. However, it must be emphasised that, despite the brevity of the events in question, they were the subject of much detailed evidence which in turn has been the subject of much dissection and analysis. Not surprisingly, the evidence of the various witnesses can be shown to contain discrepancies, omissions and conflicts. [9] The appellant was in the business of storing and selling fireworks at a shop in Fyshwick. The alleged victim, Ms Read, was a Dangerous Goods inspector. They were well known to each other. Ms Read went there on the afternoon of 24 December 1999 in the company of two colleagues, Mr Fabbo and Ms Plovits, and two police officers. [10] The only persons in the shop upon their arrival were two employees, Ms Anderson and Mr Seetoh. Ms Read showed Ms Anderson a card identifying herself. Ms Anderson asked Ms Read to leave. Ms Read declined to do so. [11] After about 5.30 pm, the appellant arrived at the shop. At that stage, Ms Read and Mr Fabbo were standing in the shop, opposite the entrance door and approximately in a position where access was to be gained from the shop itself to a rear office. Although the Magistrate made no finding on the matter, it may be inferred from the circumstances that there was an invitation to members of the public to enter the premises for the purpose of purchasing fireworks and allied purposes. However it is unlikely that the invitation extended to entering the office. At any rate, the place where Ms Read and Mr Fabbo were standing was referred to in evidence as the entrance to the office. [12] The entrance area was about 1.2 metres wide, and the distance between Ms Read and Mr Fabbo was less than that, possibly as little as 30 centimetres. Any person wishing to go into the office would have had to go between them. [13] Upon the appellant entering the shop, he went to enter the office in order to get a camera with which he intended to record what was going on. [14] The events that then occurred did so over a short space of time, no more than a few seconds. The evidence of Ms Read and of the appellant, in particular, is in conflict in important respects. Ms Read said that the appellant pushed the right side of his upper body against her right shoulder causing her to be forced backwards against the counter and also causing pain in the shoulder. The appellant's evidence was that as he moved between Ms Read and Mr Fabbo, his feet unintentionally became entangled and he tripped, accidentally colliding with Ms Read. Both witness agreed that the appellant said "Excuse me - I said 'Excuse me' ", but disagree on whether he said those words before or after he came in contact with Ms Read." 4 To this extract from the reasons of Miles CJ, we would add only two references to the evidence as summarised by the learned Magistrate. Firstly, she said of the evidence of Domenic Fabbo: "He did not see the defendant enter the shop. The first time he was aware of the defendant was when he became aware of his clothing in front of his face. The defendant collided with his right shoulder with minimal force. Mr Fabbo reacted to this by moving back and to the left slightly. The defendant then took his place, his upper torso moved forward and he took a sideways step in Ms Read's direction - it was like a shoulder charge with his right shoulder. The defendant collided with Ms Read's right shoulder and the force of the collision threw her against the counter. At that time Ms Read's feet were evenly balanced." 5 The Magistrate said, regarding the evidence of Constable Cowling: "The defendant entered the shop, he did not stop but headed toward the back of the shop. The Constable did not see the defendant make contact with Mr Fabbo but he did see Mr Fabbo move back as if to make clearance for the defendant. The Constable said that there would have been enough room for the defendant to pass between Mr Fabbo and Ms Read. He demonstrated in Court the movement which he recalled the defendant taking when his right shoulder came into contact with Ms Read's right shoulder. He demonstrated what was clearly a deliberate movement. Constable Cowling stated that he saw a look of surprise or shock on Ms Read's face. He did not hear anything but he yelled out "Hey". He then went to Ms Read." 6 The learned Magistrate, in a carefully reasoned judgment, initially directed herself as to the elements of the offence and as to the onus of proof. She said: "Assault for the purposes of the charge consists of the striking, touching or application of force. This must be without consent, it must be intentional, that is not accidental, and without lawful excuse. The prosecution must prove each of the elements of the offence beyond reasonable doubt." 7 Her Worship then went on to deal with the case, more or less upon the basis that the principal issue was whether or not the application of force had been deliberate. She concluded: "I am left in no doubt that the defendant's action was deliberate." 8 That conclusion was clearly based upon a careful examination of all of the evidence. 9 At the beginning of the appeal today, the appellant sought to lead further evidence. We declined to allow him to do so. It is not necessary to say anything more about our reasons for that decision, save that the evidence clearly related to matters which were in issue before the Magistrate, and that there was no suggestion that the evidence was then unavailable. The proposed evidence is not fresh. 10 Turning to the grounds of appeal, grounds 2 and 5 relates to an assertion which is now made that the appellant was, at the time at which he applied force to the complainant, seeking to overcome her obstructing his entry to his office, she then being, as it is alleged, a trespasser. There is little basis for the assertion that she was a trespasser, but it may be assumed for the present purposes that she was. It may also be assumed that in some circumstances, an occupier of premises may lawfully apply force to a trespasser who seeks to obstruct the former's lawful use of the premises. I make those assumptions not because I necessarily believe them to be correct, but because it is not necessary to challenge their correctness in order to dispose of the grounds of appeal. The appellant gave evidence in these proceedings. At no time did he suggest that the assault had come about as a result of any attempt by him to overcome obstruction by Ms Read or anybody else. His defence was that the contact was accidental, a version which the Magistrate expressly rejected. Had the appellant made any conscious attempt to overcome obstruction by Ms Read, he would surely have said so in evidence. 11 In some cases a trial judge may be obliged to leave for the jury's consideration, defences which have not been expressly raised by the accused. A magistrate determining summary proceedings has a similar duty to consider any such defences, even if they are not raised. However it has long been established that such a defence must at least be suggested on the evidence before the relevant tribunal is obliged to address it. It cannot be said in the present case that any such defence was raised on the evidence. In those circumstances, there is nothing in grounds of appeal 2 and 5. 12 It is also asserted that Miles CJ erred in finding that the Magistrate had applied the correct onus of proof. I can see nothing in the Magistrate's reasons which would suggest otherwise. As I have pointed out, she directed herself as to the onus and eventually recorded her conclusion that she had no doubt as to the deliberateness of the act. There is nothing in that point. 13 It is submitted that his Honour erred in finding that the appellant's actions were deliberate. His Honour, in doing so, merely reflected the conclusion of the Magistrate at first instance, seeing no reason to differ from her. On the evidence, such a view was fairly open, and the Magistrate had observed the witnesses. This ground also fails. 14 Finally, it is pointed out that whereas the Magistrate described as "aggressive" the tone of voice used by the appellant on a tape recording of the events in question in these proceedings, his Honour formed a different view. This is a trivial matter and in no sense amounts to an error, either on the part of the Magistrate or on the part of Miles CJ. It is merely a matter of opinion. No grounds are demonstrated for departing from the order of Miles CJ. I would dismiss the appeal.