Application by Boris Reznitsky pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   HIS HONOUR: This is an application by Boris Reznitsky (“the applicant”) made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”), for an inquiry into his conviction in the Local Court in 2004 by Magistrate Quinn for the offence of assault occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act 1900 (NSW).

The Local Court hearing

1. [2]

   The charge arose from an incident that occurred whilst the applicant was visiting his father, who was recuperating in hospital following an operation.

2. [3]

   The applicant’s father, Mikhael Reznitsky (“Mr Reznitsky senior”), who was then aged 71, was admitted to St Vincent’s Hospital in Sydney on 17 February 2002. Mr Reznitsky senior underwent surgery, resulting in the amputation of one of his legs due to gangrene. On the evening of Saturday 23 February 2002, the applicant, who was then aged 41, visited his father in hospital and became concerned about bruising to the right side of his father’s body and the region of his left elbow. The applicant’s mother, Mena Reznitsky, who was aged about 67, was in the room, having arrived earlier. Mr Reznitsky senior appeared frightened and asked to be immediately taken home. The applicant was concerned that the bruising may have been the result of abuse by hospital staff. From that point, the accounts of the applicant and his mother on the one hand, and the victim and witnesses on the other hand, differ, other than to agree that there was an incident and that police attended, arrested the applicant and charged him with the offence which is the subject of this application.

3. [4]

   The charge was heard by Magistrate Quinn, sitting in the Local Court at the Downing Centre. There was a back-up charge of common assault pursuant to s 61 of the Crimes Act. The applicant was unrepresented and was assisted by an interpreter in the Russian language. The hearing concluded on 16 January 2004. On 21 January 2004, the Magistrate delivered her judgment, finding the offence proved. Her Honour convicted the applicant and deferred passing sentence on him, conditionally on him entering into a bond to be of good behaviour for a period of 18 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Following the conviction, police withdrew the back-up charge of common assault.

4. [5]

   Evidence called by the prosecution included three security guards, who said that they attended the ward. They were security guard supervisor Jonathon Fitisemanu (“Fitisemanu”) and officers Colin Moar (“Moar”) and Jarod Cowan (“Cowan”). All three said that they were at the hospital and on duty on the evening of 23 February 2002.

5. [6]

   The evidence of Fitisemanu at the hearing was to the following effect. At about 7.15pm, he received a radio call to attend the level on which the ward accommodating Mr Reznitsky senior was located. Fitisemanu saw the applicant, who was talking to the doctors and nurses in “a boisterous, loud manner”. The applicant was asking the staff for more information about what was happening to his father, telling them that “I don’t know what’s happening, you’re not doing the right thing”. A doctor was trying to administer an injection to Mr Reznitsky senior, and the applicant was pushing him away, saying “I need to see what you’re giving to my father”.

6. [7]

   By then, Moar and Cowan had also arrived. Fitisemanu asked the applicant, “Sir, can I be of help to you, is there anything you’re not understanding?” The applicant ignored him. Fitisemanu asked the applicant, “Sir, why don’t you accompany me away from here and maybe I might be able to help you?” Fitisemanu raised his arm towards him and the applicant moved around him, pushing past his arm and continuing to talk to the hospital staff. Fitisemanu understood from the expressions on the faces of the staff that they wanted him to intervene, so he again asked the applicant to come with him. Fitisemanu then put his arm around the applicant, trying to move him away and “giving him a little push”. The applicant tried to go back, and Fitisemanu told him that he must accompany him and after he “cool[ed] down”, they might ask him to return. The applicant refused, so Fitisemanu applied a “wristlock”, which I understand to be a type of hold applied to a person’s wrist as a means of physical restraint.

7. [8]

   Fitisemanu said that as he and Cowan removed the applicant, he told them that they had no right to arrest or hold him in such a way, and that he needed to get back to his father. Moar gave assistance when the applicant was outside the ward cubicle. Fitisemanu applied a headlock to the applicant and took him to the floor, but the applicant fell on Moar. Fitisemanu noticed that Moar had an injury to his elbow that was bleeding. Fitisemanu said he did not know how that injury was caused, but assumed it was by the applicant falling on Moar.

8. [9]

   Eventually the security guards manoeuvred the applicant to the lift lobby area, handcuffed him and placed him into a sitting position on the ground. Fitisemanu told the applicant, “You have caused grievous bodily harm to myself and my fellow officers” and that he had caused concern to the nurses.

9. [10]

   Moar’s evidence was to the effect that when he arrived, there were at least six nurses in the ward. The applicant appeared “in quite an agitated state … He was pumped up, fuming”. The applicant was arguing with the nursing staff in a loud, angry tone and demanded to see their “licences”. Fitisemanu asked the applicant to speak with them outside, as he was disturbing the patients. The applicant refused. Fitisemanu repeated his request. Cowan and Fitisemanu moved towards the applicant, who shoved a male member of staff in the chest with his right hand. Cowan and Fitisemanu then placed the applicant in a wristlock and removed him from the ward. The applicant resisted the move, pulling in the opposite direction. At the doorway, the applicant pulled away his left arm from Cowan. Moar stepped forward and grabbed that wrist. As he was applying a wristlock, Moar was hit on the back from behind by the applicant’s mother. A nurse tried to restrain her.

10. [11]

    As the security guards moved the applicant towards the lift lobby area, the applicant broke free of both Moar and Fitisemanu, causing Moar to hit a wall and fall to his knees. Moar attempted to grab the applicant around his legs. While they were both on the ground with the applicant on top of Moar, the applicant punched him in the face with a clenched fist, striking him on his mouth. The three security guards then restrained the applicant with two sets of handcuffs, which were needed because of the thickness of the applicant’s wrists. Moar said he was bleeding from a wound to his left elbow, which had a flap of skin, and he had a laceration to his left shoulder. Police arrived after a couple of minutes and his wounds were treated. The wound to his elbow required five stitches. Moar also suffered bruising and pain to his right knee and a split lip, which required swabbing to stop the blood flow.

11. [12]

    Cowan’s evidence was to the effect that, when the security guards arrived on the relevant floor, a nurse, who was crying, pointed them to the ward and another shouted to them to come down. Cowan could hear other male voices shouting from the ward. When Cowan entered, he saw the applicant, who was shouting in both English and a foreign language, which Cowan assumed to be Russian. The applicant asked the three security guards for their “IDs”, which all three produced. There was a male nurse nearby. The applicant pushed him away, saying “Get away from me”. Fitisemanu said, “Calm down, step outside so we can find out what the problem is”. The applicant refused, and continued to yell and point in an aggressive manner. The applicant was asked a second time to come outside and again refused. Cowan and Fitisemanu grabbed the applicant by his arms and removed him. The applicant pushed Cowan on his chest and Cowan said, “There’s no need for that”. Cowan and Fitisemanu applied wristlocks to the applicant, and took him outside the room.

12. [13]

    As the security guards did so, the applicant’s mother scratched Cowan’s face, which caused him to lose his grip of the applicant. Nurses grabbed the applicant’s mother and kept her away from the security guards and the applicant. The security guards then took the applicant to the lift lobby area and applied handcuffs, because of his continuing resistance.

13. [14]

    At one point, the three security guards and the applicant were all on the floor, “wrestling”. During the scuffle, Cowan was punched by the applicant. The applicant ended up on top of Moar, who screamed out to Cowan and Fitisemanu to get the applicant off him, saying, “Get him off me”. Cowan saw that Moar was on his back, and the applicant was on his right side, lying on top of him with their heads approximately aligned. Cowan told the applicant to get off Moar, but he refused. Cowan warned the applicant if he did not get off, he would “strike [him] with my baton”. The applicant did not respond and Cowan gave a second warning and then struck the applicant twice on his left thigh. It had no effect, so Cowan went back to attempting to get the applicant off Moar. Eventually they got the applicant off, and handcuffed him. They then handcuffed the applicant’s mother, who was still struggling with the nurses.

14. [15]

    Cowan noticed an injury to Moar’s elbow that was producing “a substantial amount” of blood, but did not see how Moar received it. Cowan said that he also was injured, bleeding from his face and he had cuts on an arm.

15. [16]

    Other witnesses for the prosecution were Constable Karl Williams, who attended the incident and arrested the applicant, and Constable Priest, who escorted the applicant to Kings Cross Police Station with another officer.

16. [17]

    The account given in evidence by the applicant was, in essence, as follows. The applicant arrived at the ward and noticed bruises on his father. He wanted to speak to staff about them and approached the nurses’ station, elsewhere on the floor. The applicant’s mother stayed behind in the ward with his father. There were no nurses at the station, so the applicant waited. The applicant noticed two nurses emerge from a room about 10m from the station and recognised one as a nurse who cared for Mr Reznitsky senior. The applicant asked that nurse to go and look at his father.

17. [18]

    The nurses walked away, and the applicant decided to walk back to his father’s ward. As he walked down the corridor, an adult male, who the applicant had not previously met, jumped out of a side room and screamed at him, shaking his finger in the applicant’s face. They did not touch each other, and the applicant continued on his way towards his father’s ward.

18. [19]

    The applicant entered the room and stood at the head of the bed. The two nurses that the applicant had seen earlier were already in the room, as was his mother. The applicant asked them, in words to the effect, “Okay, could you please explain what’s going on”, indicating his father. At that point, the man the applicant had passed in the corridor entered, hysterically screaming at him. The applicant said to the man, “I don’t want to talk to you. I’ve got a problem here, I don’t know who you are”. Two men in security uniforms then walked into the room. The applicant asked them why they were there. The security guards were silent. A third security guard appeared in the doorway, apparently talking to someone outside that the applicant could not see. The applicant said to the two guards, “Okay, at least show me your licences”. The guard at the door then approached the applicant waving an arm while the other two guards “jumped” on him, grabbed his arms and took him out of the room. They then “smacked” the applicant against the corridor wall and tried to handcuff him, while the third guard hit him from behind with a baton. The third guard then put his right arm around the applicant’s neck and threw him to the ground, causing him to land on his back. The applicant was handcuffed, each handcuff being connected by a chain which was approximately 50cm in length, to each of the two guards. They then dragged the applicant on the floor to a lift.

19. [20]

    In his evidence, Moar identified the type of handcuffs used from a photograph of various types. The handcuffs he identified did not have lengths of chain, but rather only between two and four chain links.

20. [21]

    The applicant continued that while waiting for the lift, he was turned over so that he was face-down on the floor, “lying like a cross”, with a guard sitting on his face and holding his legs. The third guard hit the applicant a few times with a baton. There were no witnesses nearby and the security guards’ attack became “wilder”; the applicant said that, on a scale of ten, the attack was six or seven before and at this point it was ten. One of the guards then jumped on the applicant, landing on him with all his weight and his knee on the applicant’s spine. The guard then sat on the applicant with his arm around his neck, stopping his breathing. The guard broke the chains from the handcuffs.

21. [22]

    Just then, the applicant’s mother arrived, screaming in Russian, “Boris, they’ll kill you”. The applicant managed to shout “Please call the police”. Two guards got up and left, leaving only one of the guards, who held the applicant’s right arm and right leg, before jumping up and standing on the applicant’s hand.

22. [23]

    The applicant said he saw nurses pushing his mother away from the lift area towards a corridor. The applicant called out in English, “Don’t touch my mother”. The guard holding him down responded, “We don’t touch”.

23. [24]

    Five police officers then arrived, together with a fourth security guard, and did not look at the applicant. One of the guards still had a foot on the applicant’s right hand and wrist. The police went straight to the nurses’ station and then left. With his left hand, the applicant pushed the guard off his right hand and jumped up.

24. [25]

    Whilst giving his narrative as evidence in chief, the applicant said:

25. [26]

    In evidence through the interpreter, the applicant said that by then, “I wasn't handcuffed, the handcuffs were on my hands but I wasn’t handcuffed”. A police officer then appeared and without any introduction, told the applicant that he was under arrest. The applicant asked, “What’s the charge?” and was told, “assault”. The applicant asked what type of assault, and the officer responded: “Look at yourself, your chest is covered with blood”. The applicant told the officer it was from a cut on his hand, and asked, “Could you show me the person I assaulted?” There was no response. The applicant’s account included conversations he then had with hospital staff who attended after the event. There were no witnesses to the incident.

26. [27]

    In cross-examination, the applicant denied that on the evening in question, he had a dispute with hospital staff. He said that only Fitisemanu was present, not Moar and Cowan. The applicant also maintained that Constables Williams and Priest did not attend the hospital. He denied that he pushed a nurse and that any of the guards spoke to him before they took hold of him.

27. [28]

    The cross-examination of the applicant took place over four days. On the third and fourth day, the applicant was increasingly unresponsive to questions, repeatedly stating that he required clarification of the incident he was being questioned about. It appears that the applicant’s point was that, since he did not accept that Cowan and Moar were present, he was not required to answer questions about the prosecution version of what occurred.

28. [29]

    Immediately following the lunch break on the fourth day, being 21 October 2003, the applicant informed the Magistrate that over lunch he had made a complaint with “law enforcement authorities” in relation to “police behaviour”, alleging that his father had been “taken hostage by hospital personnel”. That being so, he said, he declined to subject himself to further cross-examination because “the evidence given in one matter could affect the outcome of the second matter”. The applicant sought an adjournment to the following day, adding, “and then we can proceed having all the legal procedures in place”. The application was opposed by the prosecution, submitting that there was no such legislation or regulation that could absolve the applicant from his responsibility to continue to be cross-examined. The Magistrate rejected the adjournment application. The applicant still refused to be further cross-examined. The Magistrate relented and adjourned the matter to the following day.

29. [30]

    The following day, the applicant informed the Magistrate that he was unable to point to any authority for not being required to continue to be cross-examined, but that nevertheless such authority existed. Accordingly, the applicant maintained his refusal to be further cross-examined. The Magistrate immediately moved on to hearing further witnesses for the defence.

30. [31]

    The applicant called Eugenia Smoliar, a Russian-speaking nurse at the hospital. Ms Smoliar gave evidence that on the night in question, she was asked by staff to go to the ward to interpret for a patient, Mr Reznitsky senior, as staff wanted to check if he had any complaints. Ms Smoliar’s evidence was not relevant to the assault and it has not been summarised in this judgment.

31. [32]

    Ian Ainsworth was called by the applicant. In evidence in chief, Mr Ainsworth stated that he was the night duty Assistant Director of Nursing. He attended the ward in response to a message to attend to the needs of the nursing staff, who were distressed by the incident. Mr Ainsworth said:

32. [33]

    Mr Ainsworth later elaborated that the applicant was both verbally abusive as well as resisting physically. The applicant asked Mr Ainsworth if he knew the security guards, and he responded that he did. The applicant asked Mr Ainsworth for their names and he gave the names of the three security guards who had given evidence of being the guards involved in the incident. Mr Ainsworth was asked to describe the security guards’ injuries. He said that Moar had a possible fracture of his elbow and scratches to his face, and the others had soft-tissue injuries. All three guards were examined by doctors after the incident.

33. [34]

    Mr Ainsworth said that he spoke to the applicant whilst he was being restrained. The applicant complained about the treatment of his father and of himself. The applicant put to Mr Ainsworth that he did not speak to the applicant. However, later, the applicant put to Mr Ainsworth that he had spoken to the applicant, as he was being led away. Mr Ainsworth agreed that he had spoken with the applicant and that, after doing so, he went with Ms Smoliar to speak to Mr Reznitsky senior. The applicant put to Mr Ainsworth that he did not do that, either.

34. [35]

    Mr Ainsworth was asked by the applicant if he recognised any police who were present. He said he recognised Karl Williams. Mr Ainsworth gave evidence that he made notes that evening of his observations. The hand-written notes were tendered by the applicant. In his notes, Mr Ainsworth described the injuries to Moar in the following terms:

35. [36]

    The applicant’s mother, Mrs Reznitsky, gave evidence corroborating the applicant’s account and agreeing that she scratched one of the security guards. Mrs Reznitsky alleged that after she scratched a guard, a nurse put her arm around her throat and tried to suffocate her.

36. [37]

    Another witness called by the applicant was Greg Urquhart, a nurse who arrived after the incident had occurred. Mr Urquhart’s evidence was also irrelevant, going to a medical explanation for the bruises on the applicant’s father.

37. [38]

    Following the close of evidence, the applicant submitted to the Magistrate certain propositions which, in due course, her Honour rejected in her judgment. Those propositions were as follows:

38. [39]

    The Magistrate found the offence proved. She accepted the evidence of the three security guards that they were all present, that the applicant was concerned about his father’s condition, that his aggressive behaviour towards hospital staff necessitated him being removed from the ward, that his pushing of a nurse and physical resistance to being escorted out warranted the use of force and in the melee, the applicant and Moar ended up on the ground. The Magistrate considered that the application of the technique of a wristlock by the security guards was an appropriate degree of force. Implicit in what the Magistrate found, although she did not expressly say so, was that the degree of force applied by the security guards was lawful.

39. [40]

    The Magistrate did not specify which injury or injuries constituted the actual bodily harm. There were two obvious ones on the evidence, namely: the split lip which, on Moar’s evidence, resulted from the applicant punching him to the face; and the lacerated elbow, which occurred when Moar went to the ground in the course of the scuffle.

40. [41]

    Although the applicant had expressly denied he was advancing self-defence, either of himself or in order to protect his father, the Magistrate was of the opinion that she was obliged to consider it as being raised on the evidence. Having done so, she rejected it.

The applicant’s attitude to the court

1. [42]

   The Local Court proceedings of what should have been a straightforward hearing of a charge of an assault occasioning actual bodily harm, being an incident that occurred over a matter of minutes with five eye-witnesses including the applicant, stretched over 12 days, followed by submissions by the applicant over three days (24 October 2003, 15 and 16 January 2004) and then judgment and sentence on 21 January 2004. The applicant was unrepresented and required the services of an interpreter in the Russian language, but the protracted nature of the proceedings was due in no small measure to the applicant’s behaviour.

2. [43]

   The applicant repeatedly ignored directions that questions, or lines of questioning, were disallowed, which were rulings made usually on the basis of irrelevance. The Magistrate pointedly placed on the record the applicant’s disrespectful behaviour, which included laughing, “sneering” and acting generally in a disrespectful manner. The applicant repeatedly interrupted proceedings, often ignoring the directions of the Magistrate to resume his seat and not interrupt. On 24 October 2003, having earlier threatened to do so to no avail, the Magistrate felt obliged to summon the sheriff to be present in court in case the applicant’s behaviour further deteriorated.

3. [44]

   In the course of the Magistrate delivering her judgment, it is apparent from a reading of the transcript that the applicant interrupted her Honour over 110 times. The Magistrate had to direct the applicant to sit down approximately 50 times. In all the circumstances, the Magistrate displayed remarkable patience, in ensuring that, despite his behaviour, the applicant received a fair hearing.

History of appeals

1. [45]

   On 5 February 2004, being two weeks after his conviction and sentence, the applicant filed an appeal against his conviction in the District Court. On 21 February 2005, the appeal was fixed for hearing on 18 April 2005, before Judge Nield. Between 11 March and 5 April 2005, the applicant appeared before Judge Nield on 16 occasions, in relation to various notices of motion he had filed in the matter. On 18 April 2005, his Honour dismissed the outstanding notices of motion and declined an application by the applicant for an adjournment. The applicant left the courtroom and did not return. His Honour handed down judgment the following day, dismissing the appeal on two bases: on the applicant’s failure to prosecute the appeal, and on its merits. His Honour’s assessment of the merits of the appeal was as follows:

2. [46]

   On 7 October 2004, while the applicant was awaiting a hearing date for his appeal to the District Court, he filed an application in the Supreme Court for a review of his conviction, pursuant to the predecessor of the legislative provision under which the current application is brought, namely, s 474D of the Crimes Act. On 24 May 2005, being a month after his appeal to the District Court was dismissed, the applicant filed a summons in the Supreme Court naming Magistrate Quinn as the defendant, referring to his earlier s 474D application and seeking a review of his conviction pursuant to s 52 of the CARA. The following month, on 22 June 2005, the applicant filed an amended summons, naming the New South Wales Police as a second defendant, seeking a review pursuant to s 52 of the CARA in relation to the second defendant and a review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the first defendant.

3. [47]

   By letter dated 13 July 2005, the applicant withdrew his s 474D application.

4. [48]

   On 22 August 2005, Adams J removed the first defendant, Magistrate Quinn, as a party to the proceedings the subject of the amended summons.

5. [49]

   The applicant filed two further amended summons, the latter (the fourth overall), naming ten defendants, the tenth being the state of New South Wales. On 6 March 2007, Studdert J struck out the claim against the tenth defendant. On 3 August 2007, Grove J struck out the claims against the second through to the sixth defendants. The applicant sought leave to appeal the decisions of Justices Studdert and Grove. On 10 December 2007, the Court of Appeal dismissed his application.

6. [50]

   On 3 March 2008, the applicant filed a notice of motion seeking summary judgment against the remaining three defendants, the three security guards, but also adding the first defendant, Magistrate Quinn, although she had been removed by Adams J in 2005. On 11 April 2008, the Magistrate was again removed as a defendant. On 13 June 2008 the matter was stood over to 4 December 2008. On that date, the Supreme Court file was closed, presumably for lack of prosecution by the applicant. For reasons that were explained in a judgment of McCallum J concerning the applicant (Reznitsky v Roads & Traffic Authority of NSW & Ors [2011] NSWSC 775), that issue is irrelevant to the nature of this application.

7. [51]

   The judgment of McCallum J involved an outstanding penalty that resulted in the suspension of the applicant’s driver license. Following the determination of the appeal in the District Court, a notice of penalty was generated in respect of the victim’s compensation levy of $30, pursuant to s 79 of the Victims Support and Rehabilitation Act 1996 (NSW). The applicant declined to pay the levy, and the State Debt Recovery Office made a court fine enforcement order pursuant to s 14(1) of the Fines Act 1996 (NSW). On 19 August 2005, an enforcement order was made against the applicant in the sum of $120, which included costs. On 4 March 2011, the applicant’s driver licence was suspended for non-payment of the enforcement order.

8. [52]

   By summons filed on 22 March 2012 against the RTA, the State Debt Recovery Office and the State of New South Wales, the applicant sought judicial review of the licence suspension. By notices of motion filed on 6 May 2011, the first and third defendants sought an order removing each of them as parties to the proceedings, and the second defendant sought summary dismissal. The summons and the defendants’ motions came before McCallum J for hearing on 21 July 2011. In her Honour’s judgment delivered the following day, she noted that the applicant disputed his obligation to pay the levy because he did not accept the correctness of the underlying conviction. Her Honour stated:

The present application

1. [53]

   On 5 December 2018, the applicant filed this application. The respondent filed submissions in reply on 26 March 2019. The applicant was advised in writing that he had 28 days in which to file further submissions, should he wish to do so. By letter dated 2 April 2019, the applicant replied that he required an extension of time to reply “due to my medical conditions, supported by the medical evidence”, although no material as to his health was attached. The applicant concluded:

2. [54]

   On 30 August 2019, the applicant filed an affidavit affirmed on 6 February 2019. Clearly, given the date on which the affidavit was affirmed, it does not respond to the respondent’s submissions in reply. Rather, it is effectively an affidavit in support of the application (“the affidavit in support”).

3. [55]

   The only further communication from the applicant is a brief letter addressed to the President of the Court of Appeal of New South Wales, dated 17 October 2019, in which he stated:

4. [56]

   The applicant has not communicated further with the Court. In view of the age of the matter, the ample opportunity that the applicant has had historically and in relation to these current proceedings to convey his concerns as to the safety of his conviction, in the interests of finality, it is appropriate to proceed to an examination of his application.

5. [57]

   The application is a 25 page document which is effectively a submission as much as a statement of the grounds advanced for the application. The affidavit in support is 19 pages with 40 pages of annexures, being a copy of an earlier application, affidavit and notices of motion in this Court. In my view, the affidavit in support does not advance the applicant’s case beyond the submissions in the application itself.

6. [58]

   The first substantive section of the application is titled “Decisions thought”, which clearly is meant to be “Decisions sought”. These are:

7. [59]

   Thereafter, the application advances various issues and submissions, expressed in a way that is sometimes difficult to understand or follow. I will isolate, as best I can, the issues and apparent complaints for consideration.

8. [60]

   In my opinion, ten of the complaints are unfounded, and one has substance. I will identify and respond to the issues in that sequence.

9. [61]

   The applicant did have an opportunity to appeal his conviction. The applicant chose to file an appeal against his conviction, within time, in the District Court. On the day that had been fixed for hearing 14 months beforehand, the applicant chose to leave the courtroom when his application for an adjournment was rejected, aware that the hearing was about to proceed. In those circumstances, the court was entitled to determine the applicant’s appeal in his absence. Judge Nield determined the appeal on its merits as well as on the basis of an absence of prosecution. The applicant deprived himself of the opportunity to advance submissions to Judge Nield on the appeal’s merits.

10. [62]

    The applicant’s application to the Supreme Court, which was commenced out of time (see Reznitsky v Quinn & Ors [2007] NSWSC 150 per Studdert J at [21]-[23]), had, in any event, run its course by December 2009.

11. [63]

    The applicant alleges that the Magistrate presided over a hearing that was defective, because there were “no facts and no evidence against [the applicant] in place [sic]”.

12. [64]

    It is apparent from the transcript of the Local Court hearing that there was evidence from five witnesses to the incident (the applicant, his mother and the three security guards) as well as from some of the police and staff who attended after the incident. The applicant said that the Magistrate “disregarded” that the victim, Moar, and Cowan were not present. That, of course, was a factual matter for the Magistrate to determine based on the evidence, which her Honour demonstrably did.

13. [65]

    The applicant alleged that: he had been falsely arrested; falsely prosecuted; others had engaged in criminal conduct; the CAN was defective; and the absence from the hearing of one of the police officers who attended the scene of the incident rendered the prosecution unlawful. All of these allegations had been raised by the applicant during the course of the hearing. They were mostly irrelevant to the matter before the Local Court, namely, whether the applicant had assaulted a security guard thereby occasioning to him actual bodily harm. To the extent that any had some relevance, the Magistrate responded to each of those allegations in accordance with procedural fairness.

14. [66]

    The applicant alleged that the hearing was without jurisdiction since, he submitted, only the Supreme and District Courts have jurisdiction for all indictable offences, citing s 46 of the Criminal Procedure Act 1986 (NSW) (“CPA”). However, s 5(1) of the CPA provides that “an offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily”. Section 6(2) of the CPA provides that an offence may be dealt with summarily if that is permitted by the CPA or any other Act. Section 260(2) of the CPA provides that an indictable offence listed in Table 2 to Sch 1 of the CPA:

15. [67]

    Sections 59 and 61 of the Crimes Act are offences listed in Table 2, and the prosecutor did not so elect. Accordingly, the hearing of the charges was within the jurisdiction of the Local Court.

16. [68]

    The applicant alleged that the hearing should have been before a jury, pursuant to s 131 of the CPA. However, that section makes clear that it only applies to proceedings in the Supreme and District Courts.

17. [69]

    The applicant submitted that the NSW Director of Public Prosecutions should have prosecuted the matter rather than police, because police:

18. [70]

    The allegation that police primed witnesses was alleged by the applicant at the hearing before the Magistrate and dealt with by her in an appropriate manner. The transcript for 16 May 2003 refers to the Magistrate asking the applicant, as he cross-examined Fitisemanu, why he was standing “right at the edge of the table and turning around, is there some problem that you’re worried about?” The applicant responded:

19. [71]

    The Magistrate assured him that she would keep “a very close eye” on proceedings.

20. [72]

    The transcript for 14 July 2003 discloses that the applicant informed the court that at the previous day’s hearing, which was 16 May 2003, he and his “witnesses” saw Constable Williams on a few occasions leave the courtroom (Court 4.2 in the Downing Centre) while a witness was giving evidence, go to another courtroom (Court 4.6) make notes, then go over to Fitisemanu and Cowan who were waiting for him outside Court 4.2, give them notes and then return inside Court 4.2. The applicant said he interpreted these movements as Constable Williams giving “instructions” to witnesses on what evidence to give.

21. [73]

    The applicant said that further evidence of this subterfuge was that Constable Williams, on earlier hearing dates, had appeared in uniform, but was more recently present in civilian clothes. He also suggested that Constable Williams seemed to be signalling witnesses while they were in the witness box, from where he was seated near the prosecutor.

22. [74]

    The prosecutor responded that Constable Williams was permitted to wear civilian clothes and he was aware that on the last occasion, Constable Williams was also required to attend a sentence hearing in Court 4.6. The Magistrate added that from where she sat, she had a good view of the proceedings and did not observe Constable Williams “giving any coaching” to any witnesses. In her judgment, she referred to the relevant witnesses, denying they had been handed notes.

23. [75]

    The applicant then submitted that whilst he cross-examined a witness on 16 July 2003 (he cross-examined Cowan and Mr Urquhart on that date), he noticed that the prosecutor, who was different from the prosecutor on 14 July 2003, was making gestures for the benefit of the witness, signalling him on what to say. He described the gestures as the prosecutor putting a hand on his shoe and “holding his pen in the left had touching his mouth”, which was a “method of communication” that the Magistrate had been unable to see.

24. [76]

    The Magistrate said that she did not think such gestures were suspicious. In her judgment, her Honour again indicated that she rejected the proposition that there was signalling of prosecution witnesses on what to say. Her Honour’s reasoning did not display a lack of objectivity or a proper basis. She referred to the relevant witnesses, denying they had been told what to say.

25. [77]

    The applicant submitted that the transcript of the hearing was “fabricated”. This allegation was not developed by the applicant; he did not explain how or in what sense it was fabricated. It may be that the applicant was referring to the quality of the evidence recorded in it, which would be a re-statement of his various criticisms of the veracity of the witnesses for the prosecution. Accordingly, I disregard it.

26. [78]

    It is likely that the applicant was referring to the Magistrate having asked the applicant if he wished to raise self-defence, even though he denied the assault. The Magistrate referred to this in her judgment, as follows:

27. [79]

    The Magistrate was right to explore whether the applicant wished to rely on self-defence in the event that the Magistrate found that the applicant had assaulted Moar, given that the applicant believed that his father had been assaulted by the staff and that he himself was the victim of an unlawful assault.

28. [80]

    The applicant submitted that the Magistrate erred in the following ways:

29. [81]

    As well, the applicant submitted that the Magistrate communicated with the police prosecutor:

30. [82]

    The allegation concerning facial expressions and gestures aside, a reading of the transcript of the evidence of the police witnesses does not disclose any substance to this submission. On the contrary, the Magistrate appropriately rejected lines of cross-examination as irrelevant. The applicant would sometimes disrespect those rulings but, in deference to the applicant being unrepresented, the Magistrate would often relent and allow him to pursue the line of questioning in any event, in the interests of ensuring that the applicant had every opportunity to present his case as he wished.

31. [83]

    The applicant did not submit to the Magistrate that her Honour was engaging in the signalling that he accused the prosecutor and Constable Williams of doing, and there is no evidence before me of that occurring.

32. [84]

    The prosecution closed its case on 16 July 2003, subject to the tender of two expert certificates from medical practitioners that concerned Moar’s lacerated elbow. The prosecutor informed the court that the certificates had been forwarded to the applicant, attached to a notice of intention to tender them. One of the certificates was a statement by Dr Harry Thorogood dated 26 April 2002. Dr Thorogood stated that he examined Moar on 21 March 2002. Moar had an “old laceration to his left elbow” which had been stitched and the stitches removed. The second was by Dr William Wilson, dated 10 May 2002. Dr Wilson had examined Moar that day.

33. [85]

    The Magistrate viewed the certificates and noted that the prosecutor sought to tender them pursuant to s 177 of the Evidence Act 1995 (NSW), which provided as follows:

34. [86]

    The applicant informed the court that he objected to their tender “on the basis that there are not any notes from any doctors”, apparently referring to them not being notes of doctors who tended to Moar’s injuries on the date that they occurred.

35. [87]

    The Magistrate noted that the applicant had been given notice pursuant to s 177 of the Evidence Act but had not required the doctors to be called until then. She allowed the tender of the certificate of Dr Thorogood, but not that of Dr Wilson. The applicant has submitted that both were wrongly tendered, but it apparent from the list of exhibits and the photocopies of the exhibits that only Dr Thorogood’s was accepted into evidence. Even so, the Magistrate was clearly concerned at the absence of contemporaneity of Dr Thorogood’s observations and noted that she would give the certificate what weight it deserved. The Magistrate commented, apparently referring to the injuries described in the certificate, “We don’t know where they’re from”, but noted that Moar had given evidence of the lacerations he suffered during the incident. The Magistrate said, addressing the applicant, “It’s not disputed by yourself even that he did not have a laceration”. I take it from the context that the Magistrate meant the opposite of this sentence’s literal meaning.

36. [88]

    The applicant submits that, pursuant to s 282(3) of the CPA, the certificate was inadmissible without his consent. At the time of the Local Court hearing, that statutory provision was s 109(3) of the CPA. Although it was not mentioned by any party or the Magistrate, since the applicant now relies upon the provision, it is appropriate to consider whether it was relevant. Section 109 provided:

37. [89]

    The section, which was previously s 414(1) and (1B) of the Crimes Act, was introduced by Act No 10 of 1924. Its purpose was explained in debates in the Legislative Council to be to protect the position of a defendant at committal. The tender of a certificate obviated the need for the prosecution to call the doctor for the purpose of establishing a sufficient case for committal of the matter for trial or sentence to the District or Supreme Court. A decision to deal with the matter summarily, which would necessarily mean that the defendant would lose his or her opportunity to cross-examine the doctor, could not be made unless the defendant agreed.

38. [90]

    By Act 94 of 1999, the section was moved into the CPA, becoming s 109. By Act 119 of 2001, which commenced on 7 July 2003, the section became s 282 of the CPA. Section 282(3) was repealed by the Crimes Legislation Amendment Bill 2014 (NSW). The explanation for its repeal is consistent with its purpose when it had been introduced, namely, to do with the circumstances in which an indictable matter still in the Local Court could be dealt with summarily instead of being committed for trial or sentence. In the Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 15 October 2014 at 1127, the Attorney General, the Hon Brad Hazzard, explained its repeal thus:

39. [91]

    As I noted earlier, both offences were Table 2 offences. Accordingly, s 109(3) of the CPA was not a relevant consideration to the admissibility of the certificate.

40. [92]

    This complaint is supported by the transcript.

41. [93]

    Section 33 of the Evidence Act provides:

42. [94]

    The first police witness called by the prosecution was Constable Karl Williams. At the outset, the prosecutor asked the Constable if he had made a statement, being a preparatory question to inviting him to read the relevant parts as his evidence in chief. The following exchange then occurred:

43. [95]

    The applicant was not advised what the Magistrate meant by “in time”, that is, pursuant to s 33(2)(a) of the Evidence Act, “at the time of or soon after the occurrence of the events to which it refers”.

44. [96]

    In my opinion, in view of the fact that the statement was made seven weeks after the events in question, it is likely that it did not comply with s 33: see R v Briggs (No 4) [2014] NSWSC 853 and the cases therein reviewed.

45. [97]

    The second police witness was Constable Ian Priest. When called, the prosecutor informed the Magistrate: “Your Worship, the statement does fall within s 33 of the Evidence Act”. Her Honour replied, “Thank you” and nothing more was said on that topic; in particular, the prosecutor did not offer, and her Honour did not inquire, what the date of the statement was. According to the transcript, before the Constable read out his statement, a copy of it was handed to her Honour as an aide memoire. Nothing was said by the Magistrate when she received it. The defendant indicated he had a copy.

46. [98]

    In cross-examination by the applicant, it emerged that the statement was dated 21 February 2003, that is, 12 months after the events in question. Clearly the statement did not come within s 33, and the officer should not have been permitted to read it. Nothing was said as to that issue by the Magistrate or prosecutor when the date emerged in evidence.

Part 7: The relevant legislative provisions and principles

1. [99]

   Section 79 of the CARA relevantly provides as follows:

2. [100]

   In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J stated the test, at [6], as follows:

Conclusion

1. [101]

   There was ample evidence to support the finding by the Magistrate that the offence of assault occasioning actual bodily harm was made out beyond reasonable doubt. Her Honour was entitled to accept the evidence of the identity of the three security guards as corroborated by Mr Ainsworth and Fitisemanu (who the applicant accepted was present) and their evidence over that of the applicant and his mother as to the applicant’s behaviour when the security guards entered the ward.

2. [102]

   There was sufficient evidence for the Magistrate’s finding that the guards were entitled by the threat posed by that behaviour to quickly move the applicant out of the ward. Her Honour particularly noted the shoving of the nurse in her judgment.

3. [103]

   The applicant gave evidence that at the outset of the incident, he asked the security guards to show him their licences, and that they ignored his request. The guards were obliged to produce their security guard licences when challenged to do so pursuant to the Security Industry Act 1997 (NSW), s 35. Cowan and Moar confirmed that the applicant asked to see their licences or “IDs” and, according to Cowan, they all complied.

4. [104]

   Quinn LCM was entitled to conclude that the escalation of force applied by the security guards in order to remove and restrain the applicant was proportionate to the degree of resistance offered by the applicant, and therefore was lawful. In that context, the applicant’s resistance by the use of force was unlawful and constituted an assault, including against Moar.

5. [105]

   The term “bodily harm” is defined according to its ordinary meaning. It includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent, but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498 at 509. Two injuries that Moar alleged he received during the incident, which were witnessed and immediately recorded in a report after the assault by Mr Ainsworth, were a laceration injury to his left elbow that required five stitches, and a cut to his lip.

6. [106]

   The evidence was to the effect that the elbow injury was occasioned when Moar went to, or was on, the ground and in that sense was directly consequential to the applicant’s violent resistance. Once on the ground, according to Moar, the applicant punched him to the face with a clenched fist causing his split lip, thereby constituting evidence of an assault occasioning an intentional infliction of actual bodily harm.

7. [107]

   The failure of the Magistrate to disallow the two police officers reading their statements as their evidence in chief did not affect the integrity of the conviction. Neither officer witnessed the assault and their evidence was otherwise irrelevant as to that issue of fact.

8. [108]

   Applying the appropriate test as formulated by Johnson J, I do not have a sense of unease or disquiet in respect of the conviction.

9. [109]

   Accordingly, I decline to further deal with the application pursuant to ss 79(3)(a)(i) and (b) of the CARA.

Order

1. [110]

   I make the following order: