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Supreme Court 6 September 2002

Klewer v Walton

[2002] NSWSC 809

Assault & violencePublic order & justice offences
QUASH MAGISTRATE'S DECISION PRIVATE CRIMINAL PROSECUTION THE LOCAL COURT PROCEEDINGS EVIDENCE ACT 1995 (NSW) ADMISSION

Citation: Klewer v Walton [2002] NSWSC 809
Court: Supreme Court of New South Wales (Common Law Division)
Date: 6 September 2002
Judge(s): Master Harrison

Background

The plaintiff, a self-represented law graduate, brought a private criminal prosecution against the defendant, the headmaster of a school her son attended. She alleged that during a visit to the school in March 2001, the headmaster physically grabbed her by the arm and removed her from the administration area while she was attempting to telephone police. She laid three informations in the Local Court at Coffs Harbour, alleging common assault, making false accusations, and public mischief under the Crimes Act 1900.

After a contested hearing, the Magistrate dismissed all three charges and ordered the plaintiff, as the informant, to pay the defendant's professional costs of $10,504. The plaintiff then appealed to the Supreme Court, seeking to have the Magistrate's decision quashed.

The appeal turned on two evidentiary questions: whether the Magistrate should have admitted a prior written statement made by a police officer, Sergeant Levey, and whether the Magistrate should have permitted the plaintiff to cross-examine that officer as an unfavourable witness under the Evidence Act 1995 (NSW).

  • Whether the Magistrate erred in refusing to allow the plaintiff to read the contents of Sergeant Levey's prior written statement as evidence-in-chief under s 33(1) of the Evidence Act
  • Whether the Magistrate erred in refusing to grant leave for the plaintiff to cross-examine Sergeant Levey as an unfavourable witness under s 38 of the Evidence Act
  • Whether the Magistrate's decision to dismiss all three charges disclosed any error of law
  • Whether the plaintiff had standing to bring the appeal under s 104(2)(b) and (c) of the Justices Act 1902 as the informant in summary proceedings

Decision

Master Harrison affirmed the Magistrate's decision on each ground of appeal. On the question of Sergeant Levey's prior written statement, the court found that the statement contained what amounted to a summary of the headmaster's words as understood by the officer, rather than a direct admission. Even had the statement been admitted, the court found it would have been afforded little weight.

On the unfavourable witness question, Master Harrison found that the decision to grant leave under s 38(1) is discretionary. By the time the plaintiff sought leave, Sergeant Levey had already provided an explanation for the apparent inconsistency between using the words "physically removed" in his statement and "ejected" in his oral evidence. He stated the conversation had occurred nine months earlier and he could not recall the precise words used. The court held it was open to the Magistrate, in the exercise of that discretion, to conclude that Sergeant Levey was not an unfavourable witness, and no error of law arose from that ruling.

Master Harrison also noted that the plaintiff herself accepted that if the assault charge was not proved, the other two charges would necessarily fail. The Magistrate had weighed the plaintiff's evidence against the sworn denials of both the headmaster and the deputy principal, and concluded the case was too weak to establish the assault beyond reasonable doubt. No error of law was identified in any of the Magistrate's orders.

Orders Made

  • The Magistrate's decision of 10 December 2001 is affirmed
  • The appeal is dismissed
  • The summons is dismissed
  • The plaintiff is to pay the defendant's costs as agreed or assessed

Key Takeaways

  • The decision to grant leave for cross-examination of an unfavourable witness under s 38(1) of the Evidence Act is discretionary, and a magistrate is not obliged to grant leave merely because a prior inconsistent statement exists.
  • Where a witness has provided a reasonable explanation for any inconsistency between a prior statement and oral evidence, a court may properly decline to treat that witness as unfavourable.
  • A prior statement summarising what a third party allegedly said, as understood by the statement-maker, does not necessarily constitute a direct admission and may be afforded limited evidentiary weight even if admitted.
  • In dismissing the appeal, the Supreme Court confirmed that an informant in a private prosecution may appeal to the Supreme Court on a question of law alone under the Justices Act 1902, but the bar for establishing legal error in evidentiary rulings is a high one.
  • No errors of law were established in the Magistrate's dismissal of the three informations, notwithstanding the plaintiff's self-represented status and the conceded centrality of Sergeant Levey's evidence to her case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61 (common assault), 314 (false accusations), 547B (public mischief)
- Evidence Act 1995 (NSW), ss 32, 33(1), 38 (unfavourable witnesses)
- Justices Act 1902 (NSW), ss 104(2)(b) and (c), 109

Cases: No cases were cited in the portions of the judgment provided.