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PICKING -v- MYREN [2020] WASC 482 (23 December 2020)

Last Updated: 8 January 2021


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : PICKING -v- MYREN [2020] WASC 482

CORAM : ARCHER J

HEARD : 23 DECEMBER 2020

DELIVERED : 23 DECEMBER 2020

FILE NO/S : SJA 1018 of 2020

BETWEEN : JYE GERHARD PICKING

Appellant

AND

JOSEPH MYREN

Respondent

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Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S MALLEY

File Number : AR 6013 of 2019


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Criminal law - Appeal against conviction - Unfair trial - Failure to cross‑examine


Legislation:

Nil

Result:

Extension of time within which to appeal granted
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant
:
E R Zillessen
Respondent
:
G N Beggs


Solicitors:

Appellant
:
Legal Aid Western Australia
Respondent
:
Director of Public Prosecutions (WA)


Case(s) referred to in decision(s):

ARCHER J:

(This judgment was delivered extemporaneously on 23 December 2020 and has been edited from the transcript.)

Overview
  1. The appellant was found guilty after trial of assaulting a public officer, contrary to s 318(1)(d) of the Criminal Code (WA). The trial occurred on 9 December 2019 before Magistrate Malley. His Honour delivered his decision convicting the appellant extemporaneously.
  2. The appellant seeks an extension of time within which to appeal, and leave to appeal, against the conviction. The application for an extension of time was not programmed, but I heard it at the same time as hearing the appeal. The application for leave to appeal was ordered to be heard at the same time as the appeal.
  3. Initially, the appellant was unrepresented. The progress of the appeal has been very slow, primarily due to the appellant's difficulties in assembling the necessary materials to support his grounds of appeal, his failure to appear in breach of his bail and my concerns as to his capacity to properly represent himself in view of his mental health issues. Fortunately, the appellant has now been able to secure legal representation. I gave his lawyer leave to amend his grounds of appeal. The sole ground of appeal is that:
There was a miscarriage of justice because the failure of the defence to cross-examine prosecution witnesses and the lack of assistance provided to the self-represented accused by the learned Magistrate resulted in an unfair trial.
  1. This appeal was listed for mention only today. However, after securing representation, the appellant filed his proposed amended ground and submissions. Counsel for the respondent filed responsive submissions on Monday of this week, 21 December 2020. Given the delays in the proceedings, my associate asked counsel if they wished the mention listing to be transformed into a hearing of the appeal. Both indicated that they did.
  2. Further, due to the delay, it was highly desirable to deliver this decision today.
  3. For the reasons that follow, I would allow the appeal.
The trial
  1. The officer alleged to have been assaulted was a prison officer, conducting a muster and cell inspection. The appellant was an inmate of the prison. The learned magistrate found that the appellant had punched the officer on the chin. The punch caused no visible damage and no structural damage. The officer's chin was tender for two or three days.
The failure to cross-examine
  1. The appellant helpfully summarised the course of the evidence, as follows.[1]
Potential Forensic Disadvantage and Loss of Forensic Advantage
  1. The evidence adduced by the prosecution comprised:
    1. The sworn evidence of the complainant Prison Officer Mendis;
    2. Photographs of Officer Mendis' face after the alleged assault showing no external or visible injury;
    1. The sworn evidence of eye-witness Prison Officer Kynoch;
    1. The sworn evidence of Police Constable Pearson;
    2. The video recorded interview of the accused.
  2. The evidence of the complainant and the other prison officer was substantially similar in content and reasonably brief (T2 ‑ 8).
  3. At the conclusion of the complainant's evidence in chief, the following exchange occurred between the Magistrate and the accused:
HIS HONOUR: Yes, Mr Picking, you have the opportunity to ask questions of the witness.

ACCUSED: Questions for the witness.

HIS HONOUR: Questions. Any questions you wish to put to him. He has given his course - evidence in relation to the events on a particular day, what he says happened. If there is anything in his statement that you disagree with then you should put to him what you say occurred bit by bit and then see how he responds. It doesn't matter whether he agrees or disagrees with you. You just have to - anything that you think he has left out or that you disagree with, you need to put to him. If you do, stand up and ask your questions.

ACCUSED: No, thanks.

HIS HONOUR: Understand that this case, there's evidence that you punched him to the jaw.

ACCUSED: I didn't punch him to the jaw.

HIS HONOUR: Well, you should put to him what you say happened and see what he says.

ACCUSED: I don't know if I can even look at him, your Honour.

HIS HONOUR: Well, that's not the issue.

ACCUSED: So I didn't hit you. Yes. I don't need to speak to the witness. I've got other evidence that I can rely upon.

HIS HONOUR: It's up to you. Okay. Thank you very much. You're free to go.
  1. At the conclusion of the evidence in chief of Officer Kynoch the following exchange occurred between the Magistrate and the accused:
HIS HONOUR: Yes, Mr Picking, you wish to ask any questions of this witness?

ACCUSED: No.

HIS HONOUR: Thank you very much. You're free to go.
...
  1. At the conclusion of the evidence in chief of Police Constable Pearson the following was said:
HIS HONOUR: Yes, any questions, Mr Picking?

ACCUSED: Questions?

HIS HONOUR: Of this witness.

ACCUSED: Of this witness.

ACCUSED: I suppose I don't feel as though you've done your job thoroughly. Sorry to say. You haven't questioned all the witnesses. You haven't taken it seriously enough. It's a very serious matter. To me it is, anyway. I was very - I was going through some very, very hard - like, you know, what I thought were life‑threatening situations, you know. And I still am going through some hard times, you know. And it was just - it was very serious, you know, to be charged - especially charged with something that hasn't been investigated thoroughly. So that's all I can say, yes.

HIS HONOUR: You're free to go?---Thank you.
The magistrate's reasons
  1. The magistrate's reasons are short enough to reproduce in full:[2]
This is a prisoner. This is a 4 pm muster. The prisoners stand outside the cells to be counted. Officer Mendis is doing the count. He says - he tells the accused his cell is not up to standard, which is disputed by the accused, but, in my view, not of great significance or not of any significance. On his completion of his walk down the aisle, Mendis walked back towards the accused who steps forward yelling that he's picking on the accused and punches Mr Mendis once to the left side of the jaw.

He was then put into - put to the ground. Officer Kynoch, also a prison officer, corroborates the victim's version in its entirety. He was some 25 metres away down the passage but says he had a clear view, heard the words spoken and saw the act. The accused chose not to directly cross-examine those witnesses, despite my direction. However, I am mindful that he is self-represented in relation to these matters and some degree of leniency should be given to those parties.

The accused gave a record of interview in which he essentially confirmed the officer's recollection other than the punch. He said he was being picked on by officers and staff. He said he needed to get out. He couldn't take it any more. He decided to make a scene in an effort to be sent back to the special handling unit, as I understand it. In his evidence, the accused confirmed he needed to [do] something quick. He said he simply stepped out of the line and spoke loudly, saying he was being picked on, and was then simply tackled to the ground.

Prosecution carry the onus of proof beyond reasonable doubt. The evidence of both officers was, as I say, clear and credible and I find reliable. The accused version, in fact, does not vary in any significant degree other than as to the punch. The evidence effectively - that evidence effectively corroborates all other matters surrounding it. The accused makes it clear he wanted to get out of the unit. He had to make a quick decision to get out. He was clearly agitated at the time.

What he would seek me to - to convince me was that despite his [desperation] to get out, he thought by merely stepping out of the line and raising his voice, that would suffice. With respect, I find that explanation implausible. He had to be sure - be sure he had - I find that he did strike the officer and he got what he wanted. I reject the denial of punching the officer and am satisfied the charge is proven beyond reasonable doubt.
Extension of time
  1. The respondent did not oppose the appellant's application for an extension of time within which to appeal. The delay was not substantial and has been explained. It is appropriate to grant the extension of time.
Legal principles Appeals from magistrates' decisions[3]
  1. The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[4]
  2. Leave to appeal is required.[5]
  3. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[6] That means that the ground is required to have a real, rational and logical prospect of succeeding.[7]
  4. Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[8]
  5. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[9] Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[10]
  6. Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[11] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[12]
... it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Unfair trial or material irregularity?
  1. In Duckworth v The State of Western Australia,[13] Martin CJ, with whom Buss P and Mazza JA agreed, set out the principles governing the circumstances in which an appeal against conviction will be allowed on the basis of inadequate representation at trial. His Honour made it plain that the principles apply to cases in which the accused was self-represented.[14]
  2. The effect of his Honour's analysis can be summarised as follows:[15]
    1. Deficient representation can lead to a miscarriage of justice in two ways:

(a) where it deprived the accused of a fair trial according to law; or

(b) where there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.

  1. In the first category of case, the accused need not show that the deficient representation might have affected the result.
  2. In the second category of case, the accused must show that the deficient representation might have affected the result.
  3. A failure to cross-examine material witnesses, or to address the jury, may fall into the first category of case.
  4. Whether a failure to cross-examine a witness will fall into the first category will depend on the importance of that witness. A failure to cross-examine a witness, for no valid reason, whose evidence was absolutely critical to the outcome of the case, such as a complainant in a sexual assault case, will fall into the first category.
  5. These principles apply to cases in which the accused was self‑represented. However, additional consideration arise when the accused was self-represented for reasons other than indigence.

(a) First, in such circumstances, it is not appropriate to apply the standard of competence to be reasonably expected from a qualified legal practitioner to a self‑represented accused who is not legally qualified.

(b) Second, a self-represented accused will not have the professional detachment of a lawyer and may be influenced by matters beyond the forensic assessments made by a lawyer. For this reason, particular decisions that may not be explicable if made by a lawyer might be explicable if made by a self‑represented accused.

(c) Third, the court should remain alert to the possibility that a self-represented accused might perceive potential advantage in conducting the trial in such a way as to give rise to either a miscarriage which results in the trial being aborted, or a good ground of appeal in the event of conviction.

  1. Counsel for the respondent submitted that there was no absolute rule that a trial would be unfair if the self-represented accused (or his or her counsel) failed to cross-examine a witness of an importance analogous to a complainant in a sexual assault prosecution.
  2. In my view, the weight of the authority is that, provided the failure cannot be rationally explained, a trial would be unfair in those circumstances.
Section 30 of the Magistrates Court Act 2004 (WA)
  1. Section 30 of the Magistrates Court Act 2004 (WA) provides:
    1. Court's duties in respect of self‑represented parties
In a case where a party is self‑represented, the Court must inform the party of -

(a) the need, when cross‑examining a witness called by another party, to ask the witness about any evidence of which the witness or the other party has not previously had notice that the self‑represented party -
(i) intends to adduce; and

(ii) intends to allege will contradict the witness's evidence;

and
(b) the consequences of not doing so.
  1. The purpose of this section is to ensure that self‑represented parties are aware of, and comply with, the rule in Browne v Dunn (1893) 6 R 67.[16]
  2. The rule is essentially that:[17]
... a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.
  1. The rule 'has two aspects; it is a rule of practice to achieve fairness to witnesses and a fair trial and, secondly, it can also impact upon the weight or cogency of evidence'.[18]
  2. Section 30 'imposes an obligation upon a magistrate to explain to self‑represented litigants the rule in Browne v Dunn and the consequences of not complying with it'.[19]
Analysis Unfair trial
  1. I am satisfied that the appellant's failure to cross-examine any of the witnesses meant that the trial was unfair.
  2. The evidence of the two eye witnesses was critical to the conviction. Together, they were of an importance analogous to a complainant in a sexual assault prosecution.
  3. In reaching this conclusion, I have taken into account the considerations identified by Martin CJ in Duckworth, discussed earlier.
  4. First, I have not applied an unrealistic standard of competence to the appellant. He did not cross-examine incompetently. Rather, he did not cross-examine.
  5. Second, there is no suggestion that the appellant had a rational reason for not cross-examining.
  6. Third, there is no suggestion that the appellant failed to cross‑examine in an effort to abort the trial or to provide a good ground of appeal in the event of conviction. To the contrary. The appellant did not seek to abort the trial at the time. Nor did he include his failure to cross‑examine in any of the appeal grounds or submissions that he filed prior to obtaining legal representation.
Material irregularity
  1. In case I am wrong about finding that the trial was unfair, I have considered whether there were material irregularities that might have affected the outcome.
  2. I am satisfied that the appellant's failure to cross-examine the investigating officer was such an irregularity.
  3. The following exchange occurred in the evidence-in-chief of Prison Officer Kynoch:[20]
HIS HONOUR: How far away were you from the event when it first---?---Probably about 25 metres, your Honour.

[PROSECUTOR]: So, yes, just explain - so you saw - when you saw Mr Picking first approach Officer Mendis, where were you?---I was down the end of the wing.

And how long is the wing?---Probably about 25 metres.

Okay. And what was your view of the incident like?---I could see clearly down the entire wing.

Okay. Was there anyone else that you noticed at that point in time?---As in other officers?

Or anyone - anything - any---?---There was several officers for the muster as per routine and all the prisoners were standing by their doors.

Was any other - were any other prisoners moving about at that stage or---?---No, they were all standing by their doors as per standing [sic] operating procedure.
  1. The appellant submits that this evidence demonstrates the need for an explanation from the investigating officer. In particular, as to why the investigating officer sought statements from only the alleged victim and a witness 25 metres away, and why there was no CCTV footage tendered at trial.
  2. In my view, the failure to cross-examine the investigating officer was a material irregularity.
  3. It is likely that the investigating officer did not seek to obtain statements from the other prisoners or that, if he did, they refused to provide statements. The investigating officer may reasonably have thought that the other prisoners would have been less reliable witnesses than prison officers. Nevertheless, he could have been asked why there was no evidence from the other prisoners.
  4. More significantly, the investigating officer did not explain why there was no evidence from the other officers who were present. The answer may have been that the other officers did not see what had happened, or could not remember. Or, the explanation might be that the other officers were further away than Prison Officer Kynoch. However, an explanation was called for.
  5. In addition, the absence of CCTV footage cried out for an explanation. It is inconceivable that there would not have been CCTV of the area. It is possible that it was not working at the time, or failed to record the critical event due to the positioning of the people involved. However, an explanation was needed.
  6. In my view, had any of these questions been asked, there is a significant possibility that the outcome would have been different.
  7. The respondent submits that the magistrate was an experienced trier of fact and that the appellant had made, in effect, a submission about the inadequacy of the investigation (instead of cross-examining the investigating officer), as extracted earlier. The respondent conceded, however, that there was no mention of the possibility of CCTV footage in the appellant's submissions to the magistrate or in the magistrate's reasons, or indeed in the trial transcript at all. Nor did the magistrate refer to the adequacy of the investigation in his Honour's reasons.
  8. Accordingly, I consider that there is a significant possibility that the failure to cross-examine the investigating officer affected the outcome.
  9. As noted earlier, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[21]
  10. The prosecution case was strong. The appellant's version of events was implausible. Nevertheless, I do not consider that a conviction was inevitable. Accordingly, it cannot be said that there was no miscarriage of justice.[22] I would therefore allow the appeal.
Section 30
  1. The appellant submits that the magistrate did not comply with s 30. He submits that 'an invitation to cross-examine, and the admonition 'you should' cross-examine fall short of explaining why there is a real need to cross-examine in terms that a lay person can comprehend'.[23]
  2. I accept this submission. The magistrate did not explain to the appellant that a failure to cross examine could enhance the credibility of the prosecution witnesses or undermine his own evidence.
  3. I have considered what the magistrate ought to have said. Given the short time available to me, I caution against adopting what follows uncritically. I provide it, not as a speech to be delivered verbatim without any analysis, but as a suggested starting point from which an explanation could be crafted.
  4. In my view, the magistrate might have said to the appellant words to the effect of:
If a witness says something that you disagree with, you need to ask the witness questions about that. You need to ask the witness if they accept that they are wrong about that. You need to tell the witness what you say happened and ask if they agree with that. If there is material that contradicts something the witness has said, you have to tell them what that material is, and ask them if they accept they were wrong.

[And then give a concrete example.]

It's the same if you think the witness might be mistaken. You need to ask the witness if they accept that they might be mistaken. And you need to ask the witness about why you say they might be mistaken. So if, for example, you think that they might be mistaken because they were too far away to see properly, you need to ask them about how far away they were and ask them if they agree that, at that distance, they could not see properly. [This example should be tailored to the facts and allegations in the case. Depending on the facts, a better example might be, for instance, passage of time or lighting].

Doing these things is called 'putting your case to the witness'.

It is very important that you do this. This is because I need to make an assessment of whether the witness is telling the truth and whether he could be mistaken. I also need to make the same assessment of your evidence if you decide to give evidence.

If you don't put your case to a witness, there may be no reason for me to doubt the truthfulness and accuracy of the witness's evidence. And it might also make me more likely to doubt the truthfulness and accuracy of any evidence you give.
  1. That said, looking at his Honour's reasons as a whole, he did not rely on the appellant's failure to comply with the rule in Browne v Dunn in finding the prosecution witnesses to be credible or in rejecting the evidence of the appellant.
  2. His Honour explained why he rejected the appellant's evidence. He found, in effect, that, given the appellant was desperate to get out of the unit, it was implausible that he thought he could achieve this by simply stepping out of line and speaking loudly. His Honour found that the appellant needed to be sure that he would get moved out of the unit, and rejected his denial of the punch.
  3. His Honour also explained why he accepted the evidence of the two prison officers. Reading his Honour's reasons fairly, having regard to the comments of Martin CJ in Strahan referred to earlier, his Honour accepted their evidence because they corroborated each other, and each had a clear view of the incident. While the magistrate referred to the appellant's failure to cross-examine the prison officers, he expressly said he was 'mindful that he is self-represented in relation to these matters and some degree of leniency should be given to those parties'.[24]
  4. I am therefore not satisfied that the failure to comply with s 30 caused, of itself, any injustice.
  5. Further, as I will explain, in my view, the breach of s 30 is not relevant to the assessment of whether there was an unfair trial or a material irregularity that might have affected the outcome.
  6. In relation to the first category, whether the trial was unfair depends on an assessment of whether there was a trial according to law. The appellant did not suggest that a breach of s 30 meant that there was not a trial according to law. Rather, the appellant argued that there was not such a trial due to his failure to cross-examine. Whether he might have cross-examined if s 30 had not been breached does not bear upon this question.
  7. In relation to the second category, whether there was a material irregularity that might have affected the outcome depends on what occurred and how that might have affected the outcome, not why it occurred.
  8. During oral argument, counsel for the appellant effectively conceded this.
Conclusion
  1. I would grant an extension of time within which to appeal, grant leave to appeal on the new ground and allow the appeal.
Orders
  1. I order as follows:
    1. The time within which to appeal is extended
    2. The appellant have leave to appeal on the new ground;
    3. The appeal is allowed;
    4. The conviction is set aside;
    5. The case is to be dealt with again in the Magistrates Court.
  2. Further, having heard from the parties as to bail, I would grant bail to the appellant on an undertaking of $1,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KJ
Research Orderly to the Honourable Justice Archer

7 JANUARY 2021

[1] Outline of Submissions filed 11 December 2020 on behalf of the appellant (Appellant's Submissions) [14] ‑ [17] and [23].
[2] Transcript of hearing on 9 December 2019 (Trial Transcript) pages 16 - 17.
[3] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362 and Vucemillo v Ambrose [2019] WASC 411, but is repeated here.
[4] Criminal Appeals Act 2004 (WA), s 8(1).
[5] Criminal Appeals Act 2004 s 9(1).
[6] Criminal Appeals Act 2004 s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[8] Criminal Appeals Act 2004 s 9(3).
[9] Criminal Appeals Act 2004 s 14(2).
[10] Ninyette v Holmes [2015] WASC 287 [65]; WS v Gardin [2015] WASC 97 [239] ‑ [241]. See also Lee v R [2014] HCA 20; (2014) 253 CLR 455 and Kalbasi v The State of Western Australia [ 2018] HCA 7 ; (2018) 264 CLR 62.
[11] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[12] Strahan [90].
[13] Duckworth v The State of Western Australia [No 4] [2018] WASCA 2. See also BGH v The State of Western Australia [2020] WASCA 124 and Jeffery v The State of Western Australia [2018] WASCA 219.
[14] Duckworth [33] and [51].
[15] Duckworth [34] - [40], [46] - [51].

[16] Bennett v Carruthers [2010] WASCA 131 [46].
[17] Bennett [47] citing MWJ v The Queen [2005] HCA 74; (2006) 222 ALR 436 Gummow, Kirby and Callinan JJ [38].

[18] Bennett [48] citing the single judge appeal decision of Bennett v Carruthers [2010] WASC 5 [27].
[19] Bennett [50].

[20] Trial Transcript pages 7 - 8.
[21] Criminal Appeals Act 2004 s 14(2), Ninyette [65], WS v Gardin [239] ‑ [241], Lee and Kalbasi.
[22] Baini v R [2012] HCA 59; (2012) 246 CLR 469 [28] - [33].
[23] Appellant's Submissions [35].
[24] Trial Transcript page 17.

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