Prior v Kemp P66/2001 [2002] HCATrans 528 (24 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P66 of 2001

B e t w e e n -

GRAEME BRUCE PRIOR

Applicant

and

WILLIAM JAMES GREGORY KEMP

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 12.30 PM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Hylton Quail)

MS C.J. THATCHER: If the Court pleases, I appear for the respondent. (instructed by the Crown Solicitor for the State of Western Australia)

GAUDRON J: Yes, Mr Grace.

MR GRACE: If the Court pleases. If I could deal first with the issue of duplicity. It is the applicant's submission that the problems of adjudication in this case flowed from the - - -

GUMMOW J: This is a late entrant into the story, is it not?

MR GRACE: We would submit it is not really a late entrant, as I will draw your Honours' attention to shortly, but the problems in adjudication essentially flowed from the latent duplicity of the charge.

GAUDRON J: Tell me exactly what you mean by that. Do you mean question whether there was one or two assaults and they should have been separately charged?

MR GRACE: Yes.

GAUDRON J: It was charged as one assault, was it not?

MR GRACE: There were two elements to the assault charge or, to put it more accurately perhaps, two distinct physical acts separated by time. The consequence was that the applicant had to successfully run two defences to be acquitted. The first offence was that he was provoked into slapping Mrs Prior.

GAUDRON J: Slapping?

MR GRACE: Yes.

GAUDRON J: "Assaulting" will do.

MR GRACE: The second offence was that he used reasonable force in attempting to remove her as a trespasser. The matter is in fact highlighted in the submissions made by the respondent before his Honour Justice Hasluck in the Supreme Court at first instance. Could I take your Honours to page 43 of the application book to line 42 on that page, where my learned friend Ms Thatcher said on behalf of the respondent:

In the sequence of factual events as they unfurled on this particular occasion there was a meeting between the appellant and Mrs Prior and the first matter complained of that occurred was the slaps and thereafter the dragging of Mrs Prior out of the house. Those two matters were dealt with as the one charge, however your Honour may ultimately conclude that each stand alone could sustain the conviction.

Then at page 45 his Honour Justice Hasluck at line 21, in reply to Ms Thatcher's submission, says:

Your position put shortly there is the slapping occurred first. That is a distinct assault in its own right and the question of reasonable force or otherwise is something that arose subsequently, so on your case if the provocation defence is disposed of as you would contend for, one is still left with an assault . . .

This being because the course of conduct had, if you like, two separate aspects which gave rise to two separate types of defence.

The matter is then raised in the judgments of the various members of the Full Court. Could I take your Honours firstly to the judgment of Justice Murray at page 76, where at paragraph 2 on that page at line 20 his Honour Justice Murray, the presiding member of the court, said:

Like Templeman J, I propose to devote no attention to the suggestion that in the case presented to the Court of Petty Sessions on the complaint which charged one count of assault there was latent duplicity. The whole incident of the application of force to Mrs Prior was treated as one assault, although on one view of it there were two assaults committed, one at least by slapping Mrs Prior and the other by dragging her forcefully from the place where she had been seated towards -

and so on.

GAUDRON J: I do not understand this. You are really saying you should have been charged with two assaults?

MR GRACE: Yes.

GAUDRON J: But what difference would it make? The factual issues were clear, the defences upon which you were relying were clear. All that happened is that you had to raise a reasonable doubt with respect to each of the matters upon which you relied to avoid conviction. Why does that make it duplicitous or in any way unfair?

MR GRACE: Because it offends the - - -

GAUDRON J: If that is what also would have been required if two separate assaults have been charged.

MR GRACE: Because even a successful defence to one of the incidents being accepted would not have resulted in an acquittal; it would have resulted in a conviction.

GAUDRON J: Exactly, and the same would have been true if two assaults had been charged. The raising of a separate defence in respect of one would have still resulted in a conviction on the other.

MR GRACE: Yes, but only in respect of one incident, not two.

GAUDRON J: This was a magistrate's decision. There was nothing in the nature of the way the matter was charged or conducted which would have prevented the magistrate having a finding in respect of one incident only.

MR GRACE: That is true. However, that is not the way in which the magistrate reached her decision.

GAUDRON J: She did not accept either of the matters upon which you relied.

MR GRACE: Yes, and in fact it was treated as if it was one continuous course of conduct, both by the magistrate and by his Honour Justice Hasluck. It is difficult to perceive, your Honours, of any tactical advantage whatsoever on the part of the applicant in seeking to proceed in this way and failing to take exception before the magistrate and before Justice Hasluck. As Justice Kirby pointed out in paragraph 8 on page 109 of his judgment in Walsh v Tattersall (1996) 188 CLR 7:

There are many cases . . . where the accused has been permitted to raise the point -

a complaint -

for the first time on appeal -

about latent duplicity.

GAUDRON J: Of course, but it would have to have some practical consequence or it would have to be shown that it could have had some practical consequence in the way things happened.

MR GRACE: We say that it was clear that the defence to the first act of assault, which was the slapping, was provocation.

GAUDRON J: Yes, and you raised it.

MR GRACE: Yes, and it required - - -

GAUDRON J: You gave evidence about it.

MR GRACE: Yes. It required proof by the Crown that the force used was disproportionate to the degree of provocation.

GAUDRON J: That was required if the act of provocation was established.

MR GRACE: Yes, of course, assuming that.

GAUDRON J: You failed on the first issue, did you not? The act of provocation was not established.

MR GRACE: Yes, we failed on the first issue but the defence to the second act was that reasonable force was used. Both Justice Hasluck and the learned magistrate found that the licence of the victim had not been revoked, so therefore in effect that second defence was not raised or did not arise on the facts. When one comes to the decision of Justice Templeman in the court below, one sees that his Honour merged the two assaults together to give rise in effect to one continuous course of conduct and he regarded, as the learned magistrate had done earlier, the issue of slapping as being part and parcel of the use of reasonable force to remove the victim from the house. So there was a merger on the part of a number of the judicial officers who considered this matter in considering whether there was one or two assaults. The applicant was deprived of the benefit of having adjudication on the two separate acts in accordance with the facts and in accordance with the defences that had been raised.

GUMMOW J: Do you have other grounds, Mr Grace? You are spending a lot of time on duplicity.

MR GRACE: We say that the problems in relation to the other grounds arise directly from the duplicitous nature of the charges. The second matter I wanted to raise, your Honours, concerned the application of section 199 of the Justices Act. That section is replicated, as your Honours would be aware from the table that I have provided to the Court, together with the attached legislation, in similar form in some but not all jurisdictions in Australia. At page 57 of the application book at paragraph 34, Justice Hasluck referred to section 199 and the subsection he referred to was in a generic sense subsections (1)(b) and (3) by way of combination. At paragraphs 36 and 37 on page 58 his Honour discusses in effect section 199(3).

Justice Steytler in his reasons in dissent in the Full Court took the view at paragraph 21 on page 80 of the application book that the judge below had found that the conviction could be upheld pursuant to section 199(1)(b). That is the standard form proviso section, given that it was accepted that Justice Hasluck and the learned magistrate had operated under a misconception as to the revocation of licence, bearing in mind that the police had conceded that there had been a revocation of licence. The only issue was whether reasonable force had been used.

So when one gets to the application of either section 199(3) or 199(1)(b), we have what appears to be an interchangeable use of those subsections by the various members of the court. At paragraph 21 at page 80 of the application book, Justice Steytler assumes that Justice Hasluck upheld the conviction pursuant to 199(1)(b). When one goes to Justice Templeman's judgment, one finds that he upheld the conviction pursuant to 199(3). They are not interchangeable. Section 199(3) does not allow a dismissal of the appeal.

GUMMOW J: How does this found a special leave case?

MR GRACE: Because, your Honour, there has been a substantial miscarriage of justice in this case, by the wrong application of the proviso in the circumstances of the case. If I could move on now to the two substantive defences of provocation and reasonable force. In reality, the submissions of the applicant replicate the reasons for decision in dissent by Justice Steytler. If one is to go to paragraph 16 to 20 inclusive on pages 79 and 80 of the application book, the gravamen of the complaint is in effect set out.

It is submitted that Justice Steytler was correct in finding that the learned magistrate erred by failing to take into account all relevant considerations, and I would particularly refer your Honours to paragraph 16 on page 79, and furthermore, that the learned magistrate was certainly and simply not justified on her factual findings to have concluded that the defence of provocation had not been made out. It was a process of determination which Justice Steytler identified, and if I could draw particular attention to what his Honour said at paragraph 16 on page 79, where his Honour said this:

So far as the defence of provocation was concerned, the fact that the appellant's behaviour had been hostile and aggressive towards his wife from the outset does not mean that he could not have been provoked into an even more hostile and aggressive act, of a sudden and before his heightened passion had time to cool. However the magistrate made no finding as regards this last issue which was, of course, one of fact, requiring findings in respect of the competing versions offered by the appellant and his wife respectively.

Then at paragraph 17, his Honour said:

So far as the defence under s 254(2)(b) of the Code was concerned, it had been conceded that the appellant had revoked his wife's licence to be in his house by requiring her, on many occasions, to leave and that she should have left. That being so, it matters little whether or not she had achieved the purpose of her visit. The licence having been "well and truly revoked", as Murray J has put it, she wrongfully remained in the appellant's house.

So when one gets to the conclusion of Justice Steytler, particularly encapsulated in paragraph 22, and how the two defences linked into the complaint about duplicity, one sees that issue becoming apparent. At paragraph 22, Justice Steytler said:

I have earlier mentioned that it is at least doubtful whether the slapping and the dragging of the appellant's wife could be said to have constituted one incident. That being so, I do not consider that it was open to the Magistrate, or to his Honour, to have been satisfied that the slapping amounted to the use of excessive force for the purposes of s 254(2) of the Code. The evidence, on my reading of it, fell short of establishing that the slapping took place in the course of the forced removal of his wife, by the appellant, from his home. Rather, the evidence of each of the appellant and his wife was to the effect that it preceded the forced removal and was distinct from it.

So we would submit, your Honours, it was the vice of the duplicity in the charges that, in the end, led to the confusion - or, rather, the misunderstanding - of the fact that there were two separate incidents, two actus reus. That failure has infected the judgment of Justice Templeman who found one continuing episode, and it is highlighted in his Honour's reasons. It is highlighted in his Honour's reasons at paragraph 138 and 139, and if I could just conclude by referring your Honours to those paragraphs, where his Honour Justice Templeman said:

I have referred earlier to the concession made by leading counsel for the appellant that his client had to run two successful defences if he was to be acquitted. It must follow that the appellant was rightly convicted of the admitted assault if the defence of provocation was not open to him.

The appellant could not maintain a defence to the charge solely on the basis that he used no more than reasonable force in attempting to remove Mrs Prior from his house. The appellant raised that defence in relation to the force used to carry or drag Mrs Prior from the kitchen to the front door. The defence was not raised in relation to the slapping, which, I repeat and emphasise was a part of the overall conduct on which the complaint was based.

This defect in pleading, it is submitted, falls squarely into the defects identified by Justice Kirby in Walsh v Tattersall, and previously identified by this Court in Johnson v Miller and other cases. For those reasons, it is submitted that the applicant was essentially denied a fair trial according to law, with the result that a substantial miscarriage of justice has occurred.

GAUDRON J: Ms Thatcher, we think we will hear from you at 2.15, if that is appropriate, thank you. The Court will now adjourn until that time.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAUDRON J: Yes, Ms Thatcher.

MS THATCHER: May it please the Court, the respondent considers in this matter that it is inappropriate that special leave be granted. Two of the grounds of appeal are grounds that relate to the application of defences in particular cases. The dispute in the Full Court relates to interpretation of the magistrate's reasons, not any difference of view as to the opinions, the manner in which the principles of law are applied, or, indeed, any difference in relation to the principles of law that do apply.

The third ground of appeal relates to the application of section 199 of the Justices Act. My learned friend has endeavoured to develop an argument about the way in which that provision was used in the present case. That provision allows an appellate court to do two separate and distinct things. In section 199(3), the court is entitled to make a finding of fact in the event that the magistrate and the Court of Petty Sessions did not make that finding.

That provision may be utilised, in certain circumstances, and was indeed utilised in the present case where the magistrate having wrongly found that the licence for Mrs Prior to remain on the applicant's premises was not revoked failed to go on to consider the question of whether or not the force used to remove her was reasonable. That was an appropriate application by the single judge and further by the Full Court of that provision in the particular circumstances of the case.

Section 199(1)(b) is the catch-all "no miscarriage of misjustice" provision which the respondent would again say was correctly applied here. If there is any difficulty or error found in relation to the reasoning process of the learned magistrate or of the intermediate courts one is required to consider what would have occurred if the correct process had in fact been taken and that is of course a matter that arises in relation to the fourth ground, the ground of duplicity.

The charge is said to be duplicitous because it deals with two distinct acts, two distinct applications of force. That is by no means a clear-cut consideration as it may be entirely legitimate to have one charge in the event that the acts are linked in some way.

GAUDRON J: It was the defence case that there were two assaults, I take it, or to the extent that that was an issue that was a defence issue.

MS THATCHER: One would have to say that the prosecution led evidence of the entirety of the event, yes. The defences raised appear to relate separately to different aspects of that event.

GAUDRON J: On the prosecution case, if provocation had been made out, would that have covered the entirety of it?

MS THATCHER: If provocation had been made out in relation to the slapping and the dragging then, yes, it would have. Perhaps I need to explain to the Court or to confirm what my learned friend says and that is that the Supreme Court took the view that any defence raised had to be successfully raised in relation to the entire subject matter of the charge which as the question of duplicity had not been raised earlier would appear to be the correct approach.

I must say, however, that it was suggested by me as counsel for the respondent at first instance, that to look at the matter another way, if one had been called upon to elect and had elected, no difference in the outcome would have occurred. One would have then been left with one instance, one potential defence, as it appears the defences were run, and in view of the evidence of the magistrate's findings and the Full Court's conclusions in relation to the magistrate's findings the end result would have been the same the conviction for one part of - if that is the way of putting it - of the offence rather than the two parts and of course the respondent says the result, in terms of penalty, would have been identical.

The point not having been raised previously, this Court is not in a position to say whether there is any sufficient debate as to views of the application of this principle sufficient to warrant this Court's attention. At this moment in time the resolution of the issues in this matter in the various grounds raised will not contribute in any way to the statement or a development of the law.

GUMMOW J: Yes.

GAUDRON J: Yes. I think we need not hear you further, Ms Thatcher.

MS THATCHER: Thank you.

GAUDRON J: Anything in reply, Mr Grace?

MR GRACE: No, your Honour.

GAUDRON J: The applicant seeks special leave to appeal to challenge what are essentially factual findings made against him in proceedings in the Court of Petty Sessions of Western Australia. Although there are legal issues intertwined with those factual findings, including whether there was one or two assaults, they are issues upon which the law is well settled and they give rise to no question of general importance. That being so, the present matter is not an appropriate case for the grant of special leave.

Now, there is some issue about costs. One would ordinarily treat this as a criminal matter. Why should we not?

MS THATCHER: Yes, indeed. Matters of this nature are dealt with in the civil jurisdiction of the Supreme Court and at each level of the Supreme Court proceedings and indeed at first instance there is not only a power to award costs but costs were awarded to the successful prosecution in the initial stages and then to the successful respondent to the appeals. That is the reason why it is suggested that this is a matter that has a different history to the other criminal matters that may come before this Court that do not have costs awarded in that instance.

MR GRACE: Yes, the application - - -

GAUDRON J: Yes. We are not minded to award costs in this case. The order is simply that the application is refused.

MR GRACE: If the Court pleases.

GAUDRON J: We will adjourn briefly to reconstitute for the next matter.

AT 2.24 PM THE MATTER WAS CONCLUDED