Ahmed v Police
[2010] SASC 295
•22 October 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AHMED v POLICE
[2010] SASC 295
Judgment of The Honourable Justice White
22 October 2010
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY - INJURY OR DAMAGE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
The appellant was acquitted of a charge of assault, but found guilty of unlawfully causing damage to property - on appeal, it was submitted that the Magistrate had erred in her findings as to the property damage charge as, on the evidence, it was not possible to exclude the possibility that the damage had been caused without the requisite intent or recklessness required for a finding of guilt - it was further submitted that the finding was inconsistent with the Magistrate's assessment of the credibility of witnesses, that the onus of proof had not been applied correctly, and that the Magistrate's reasons were insufficient.
Held: appeal dismissed - the Magistrate correctly applied the law, made appropriate findings of fact, applied the onus correctly and gave appropriate reasons.
Criminal Law Consolidation Act 1935 (SA), s 20, s 85, s 353; Magistrates Court Act 1991 (SA), s 42; Supreme Court Civil Rules 2006 (SA), r 286, referred to.
Taylor v Hayes (1990) 53 SASR 282, applied.
T v The Medical Board (1992) 58 SASR 382, distinguished.
Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141, discussed.
Abnett v Korber (Unreported, Supreme Court of South Australia, Jdgt No 9363, 17 September 1986); Harris v Mill (Unreported, Supreme Court of South Australia, 2890 of 1988, 7 April 1988); Lynch v Kennedy (Unreported, Supreme Court of South Australia, Jdgt No 7716, 31 August 1984), considered.
AHMED v POLICE
[2010] SASC 295
Magistrates Appeal
WHITE J: The appellant was involved in an incident of road rage at the junction of Main South Road and Majors Road at O’Halloran Hill on 5 September 2006.
Arising out of that incident, he was charged with the offence of intentionally applying force, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and with the offence of unlawful damage, contrary to s 85(3) of the CLCA. The prosecution alleged that the appellant had twice punched the head of the driver of a car, Mr Foster, and that he had kicked and broken the driver’s side external mirror on Mr Foster’s car.
A magistrate acquitted the appellant of the assault charge, but convicted him of the unlawful damage charge. Then, without recording a conviction, the Magistrate imposed an order for compensation in the sum of $260.70, and released the appellant upon him entering into a bond requiring him to be of good behaviour for a period of 12 months and to appear for sentence for the offence in the event of any breach of the bond.
The appellant now appeals against the conviction.
Evidence Summary
The Magistrate found that in the mid afternoon of 5 September 2006, Mr Foster was driving a station wagon south on Main South Road at O’Halloran Hill. He intended to turn right into Majors Road and moved into the separate lane for turning vehicles. The appellant was the front seat passenger in a Celica sedan being driven by his brother which was also travelling south on Main South Road. It too moved into the lane for vehicles turning right at Majors Road. That lane divided into two lanes close to the traffic lights controlling the junction.
Those traffic lights were red and the two vehicles came to a stop side by side. Mr Foster’s vehicle was to the left of the Celica. Mr Foster (a 57 year old professional engineer) had sounded his horn at the Celica as the two vehicles approached the junction. There was a dispute at the trial as to whether this was because, as Mr Foster said, the Celica had moved in close proximity across his path, or because, as the appellant said, Mr Foster was driving in an aggressive fashion and tailgating the Celica.
While the cars were stationary at the traffic lights, Mr Foster said that he saw the appellant wind down the front passenger window of the Celica and commence speaking “strongly”. He then wound down his window and an exchange occurred between the two men while each was still seated in his respective vehicle. Mr Foster said that he then wound up the window to terminate the exchange. The appellant got out of the Celica, came across to his car and thumped and kicked at the driver’s side window several times. Mr Foster said that he saw the appellant kick at the external mirror, causing it to bend and almost break off its mounting.
Mr Foster said that he then got out of the car and took two punches from the appellant to his head. In his cross-examination, Mr Foster initially denied that there had been any pushing or shoving between the two men but later acknowledged that he had been pushed by the appellant.
The appellant’s brother also got out of the Celica. He managed to persuade the appellant to return to the Celica and, when he did so, the Celica drove away on Majors Road.
Shortly afterwards, Mr Foster telephoned the police and made a report of the incident at the Christies Beach Police Station.
Ms Woolman, a nurse, was in the right-hand turn lane immediately behind the Celica. As she approached the junction, she saw the appellant get out of the passenger door and approach the station wagon. She saw him kick the driver’s door of the station wagon approximately six times. However, Ms Woolman did not see the mirror get broken. She then saw Mr Foster alight from his car and observed the pushing and shoving which took place between the appellant and him. She also saw the appellant’s brother alight and persuade the appellant to return to the Celica. She gave her name and address as a witness to Mr Foster.
Constable Smith gave evidence of his interview with the appellant on 24 January 2007. In that interview, the appellant described Mr Foster as having tailgated the Celica, and, as having been driving in an intimidatory fashion. The appellant acknowledged that there had been an exchange between him and Mr Foster when they were stopped at the junction. He said that he got out of his car only when he saw Mr Foster starting to alight from his vehicle. He said that he had pushed Mr Foster but had done so only after Mr Foster had indicated an intention to push him. The appellant admitted pushing Mr Foster two or three times and suggested that the driver’s side mirror may have become broken during the course of their pushing and shoving. Later, he admitted that he may have struck Mr Foster but said that it was only after aggression by Mr Foster. He was acting in self-defence because he was “scared for his life”. The appellant admitted to Constable Smith that he may have kicked the driver’s side door of the car.
In his evidence, the appellant (a 27 year old health assistant and student) repeated his account of aggressive driving by Mr Foster and being fearful that the Celica would be run off the road. He admitted to an aggressive exchange between Mr Foster and himself while they were both seated alongside each other in their respective vehicles. The appellant said that he saw Mr Foster move as though intending to get out of his car, and decided to get out of his car quickly so as to prevent Mr Foster doing so. He denied kicking at the driver’s side door of Mr Foster’s car but said that instead he had pushed that door shut. Despite his efforts, Mr Foster had managed to muscle his way out of the car. Mr Foster moved towards him in a lunging fashion as though intending to choke him. They then engaged in an exchange of pushes and shoves. The appellant denied punching Mr Foster to the head. He said that he was simply trying to defend himself.
The appellant’s brother, Jonathan Ahmed, also described aggressive driving by Mr Foster. He described the interchange between his brother and Mr Foster while they were stationary at the traffic lights. Jonathon Ahmed confirmed that it was only when Mr Foster went to get out of his car that the appellant had exited from the front passenger door of the Celica.
Jonathon Ahmed said that he saw Mr Foster pursuing his brother with his hands in the air and saw the appellant push back a few times. He got his brother back into the Celica and, as soon as he did, they drove away from the junction.
Neither the appellant nor his brother reported the incident to the police.
At the trial, the appellant also led evidence from a Mr O’Callahan, who gave evidence of the appellant’s reputation for honesty and truthfulness.
The Magistrate’s Decision
The Magistrate accepted the evidence of Ms Woolman, describing her as an impressive witness. On the basis of her evidence, the Magistrate accepted that the appellant had gotten out of the Celica, approached the station wagon and had kicked it a number of times before Mr Foster alighted. Further, on the basis of Ms Woolman’s evidence, the Magistrate accepted that when Mr Foster alighted from his car he had stood, without pursuing the appellant and that there was nothing in his conduct which could be described as aggressive. When Mr Foster had raised his hands, he had done so in a defensive manner. It was the appellant who had commenced pushing Mr Foster.
Ms Woolman did not see the mirror broken and could not say when, in the sequence of events, that had occurred.
The Magistrate formed an unfavourable view of the appellant, describing aspects of his evidence as “entirely disingenuous”. She considered that Jonathon Ahmed had tried in his evidence to help his brother by, in effect, exaggerating the account of Mr Foster’s driving. The Magistrate regarded aspects of Jonathon Ahmed’s evidence as implausible.
The Magistrate considered that Mr Foster was, overall, a truthful witness but she did have some reservations about aspects of his perception of the assault. This was especially so as he had initially denied being pushed by the appellant but had later acknowledged that that had occurred. She considered Mr Foster had tended in his evidence to downplay his role in events. In this respect, she referred to her impression of Mr Foster as a man “of some conviction” who was not likely to have taken a backward step.
In summary, the Magistrate accepted the evidence of Ms Woolman and most of the evidence of Mr Foster. In particular, the Magistrate accepted Mr Foster’s evidence that the driver’s side mirror of his car had been damaged while he was still seated in it. She specifically rejected the appellant’s evidence that no damage to the mirror had been caused before Mr Foster alighted. The Magistrate said:
[39]My concerns about the defence evidence do not inevitably lead me to a finding in favour of the prosecution. I must be satisfied that each element of each charge is proved beyond reasonable doubt. In relation to the damage to the mirror, I have accepted the evidence of Ms Woolman with respect to the defendant kicking at the Falcon. Mr Foster recalled seeing damage to the side mirror while he was seated inside the Falcon, well before the time when the defendant pushed Mr Foster up against the Falcon. Mr Foster got out and went to inspect the damage. I accept Mr Foster’s evidence that he observed the defendant kick at the side mirror and that he observed damage at that time. I reject the defendant’s evidence on this issue. I am satisfied beyond reasonable doubt that the damage to the mirror was caused by the defendant in kicking at the Falcon and that he was reckless as to such damage would be caused by his actions.
The Magistrate accepted, however, that there was a reasonable doubt about Mr Foster’s account about having been punched to the head. This was principally because he had not mentioned the punches, nor the injuries said to have been caused by those punches, when he made his statement to the police on 5 September 2006. In this respect the Magistrate said:
[40]While the defendant may have made contact with Mr Foster’s head, I find that Mr Foster may have been mistaken as to the nature of the contact made by the defendant in pushing at him. Accordingly I cannot be satisfied beyond any reasonable doubt that the defendant struck Mr Foster to the head on two occasions.
Although the prosecution had not relied upon the appellant’s pushing of Mr Foster as comprising the offence of assault, the Magistrate was not prepared to exclude beyond reasonable doubt the possibility that the appellant had genuinely believed that it was both necessary and reasonable to push Mr Foster in the way that he did so as to defend himself. On that basis, the Magistrate acquitted the appellant of the first count but convicted him of the second count.
The Nature of the Appeal and the Court’s Function
The first ground of appeal in the appellant’s notice of appeal is that “the finding of guilt is not supported by the evidence and/or is unsafe and unsatisfactory”. Although a ground of appeal in these terms is commonly made in appeals under s 353(1) of the CLCA, it is inapplicable to appeals such as the present which is made under s 42 of the Magistrates Court Act 1991 (SA).
The present appeal is an appeal by way of rehearing.[1] The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. Perry J explained the position in Taylor v Hayes:[2]
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under 353 of the Criminal Law Consolidation Act. Grounds of appeal under the Justice Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.[3]
[1] Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Civil Rules 2006 (SA) r 286(1).
[2] (1990) 53 SASR 282.
[3] Ibid at 291-2.
In Martin v The Department of Transport, Energy & Infrastructure,[4] having referred to Taylor v Hayes, I summarised the function of this Court on an appeal against conviction under s 42 of the Magistrates Court Act in the following paragraphs:
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[5]
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.[6] (Citations omitted)
I consider this to be the approach to be adopted in the determination of the present appeal.
[4] [2010] SASC 141.
[5] See generally Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
[6] Ibid at [38]-[39].
Significance of the Acquittal on the Assault Charge
The principal contention of the appellant was that it was reasonably possible that the damage to the mirror occurred as an incident of the pushing and shoving between the two men. That being so, the prosecution could not prove that the appellant had formed the requisite intention to cause damage to the mirror, or that he had been reckless to the possibility of such damage. Put slightly differently, the submission was that it had been incumbent upon the prosecution to prove beyond reasonable doubt that the damage to the mirror occurred before Mr Foster alighted from his car. If the Court was satisfied that the damage occurred at that stage, a finding that it resulted from the appellant’s kicking, and that he had either intended to cause the damage or had been reckless as to its occurrence, was almost inevitable. On the other hand, if the damage occurred later as an incident of the pushing and shoving, the prosecution had not excluded the possibility that it was not intentional or that the appellant was not reckless as to its occurrence.
This was a repetition of the submission which had been made to, and rejected by, the Magistrate.
In seeking to impugn the Magistrate’s finding, the appellant relied heavily on the Magistrate’s acquittal of him on the assault charge. He did not suggest that the two verdicts were inconsistent, but that the Magistrate had not considered the significance of her assessment of Mr Foster’s evidence in relation to the assault charge when considering his evidence in relation to the unlawful damage charge. Related to this was a submission that the Magistrate had failed adequately to disclose her reasoning process.
The appellant referred to T v The Medical Board.[7] In that case, the Full Court allowed an appeal against a decision of a single judge who had dismissed an appeal against findings by the Medical Tribunal of improper conduct by a medical practitioner. The appellant had faced three charges. The Tribunal had dismissed the second charge of improper conduct, but upheld the other two. Matheson J (with whom Debelle J agreed) expressed concern about the Tribunal’s process of reasoning, holding that “any doubt about the second charge should have, in the circumstances of this case, gravely affected [the complainant’s] credit generally”.[8] Similarly, Olsson J held that once the Tribunal was satisfied that the complainant was not a credible and reliable witness in relation to the second charge:
… a very serious question mark immediately arose as to the degree of reliability which could fairly be placed upon the evidence of the complainant concerning the other two alleged incidents.
It cannot be stressed too often that the case prosecuted on behalf of the Medical Board fundamentally rested upon an acceptance of the general credibility of the complainant. That credibility, having, as a matter of plain commonsense, being seriously undermined, having regard not only to the bizarre nature of certain of the allegations but also the other features to which I have referred in some detail, it seems to me that there is a very clear inconsistency in the overall reasoning adopted by the Tribunal.[9]
[7] (1992) 58 SASR 382.
[8] Ibid at 395.
[9] Ibid at 418.
Both Matheson and Olsson JJ emphasised the necessity for the Tribunal, once it did not accept the plaintiff’s evidence in relation to one count, to give adequate reasons explaining the acceptance of her evidence on the other counts.
The appellant argued that the same reasoning should be applied by analogy in the present case. He contended that if the Magistrate was not prepared to accept Mr Foster’s evidence on the assault charge, there was then a question as to why his evidence should be accepted on the unlawful damage charge. The appellant submitted that the Magistrate failed to recognise this question, and had failed in her reasons to address it. This was explicable, he submitted, at least in part, because of the sequence in which the Magistrate had addressed the two charges, as the unlawful damage charge had been addressed before the assault charge. If the sequence had been reversed, it would have been more obvious that the concern about Mr Foster’s evidence in relation to the assault charge could also have been considered in relation to the unlawful damage charge.
At a level of some abstraction, the general point made by the appellant by reference to T v The Medical Board has some force. One would expect that account should be taken of a rejection of the general credibility of a complainant in relation to one charge when considering other charges which are also dependent upon the complainant’s credibility. However, this line of reasoning cannot be applied in an undifferentiated way in all cases in which the trier of fact is not satisfied that one of two or more charges has not been made out.
The circumstances of the present case are materially different from those considered in T v The Medical Board. As observed by Olsson J in that case:
…at least two of the three alleged incidents complained of were, by their very nature, bizarre in the extreme – so much so as to beg obvious questions as to whether they could possibly have been true.[10]
[10] Ibid at 412.
Secondly, what was in issue in T v The Medical Board was the general credibility of the complainant. Her evidence was the only evidence of the conduct alleged against the medical practitioner, conduct which was described as bizarre. In those circumstances, an absence of satisfaction about her reliability on one count necessarily brought into question her reliability in relation to the other counts.
In the present case, the conduct alleged against the appellant was not bizarre, and Mr Foster’s evidence was not the only evidence before the Court indicating that it had occurred. There was no dispute that some damage had been caused to the mirror of Mr Foster’s car; the issue concerned the time at which it had occurred. Similarly, it was common ground ultimately that there had been some physical interchange between Mr Foster and the appellant. The issue went to the nature of the force applied by the appellant: had the prosecution proved the two punches? Hence, the dispute in this case really concerned particular aspects of the incident which had undoubtedly occurred, and not whether there had been any incident at all. There was accordingly greater scope for the Magistrate to be satisfied about one aspect of the incident, without that bringing into question her determination of other aspects.
The Magistrate’s conclusion that the prosecution had not proved beyond reasonable doubt the two punches to the head did not necessarily mean that Mr Foster’s evidence concerning the time at which the damage to the mirror had occurred had also to be questioned. It was one factor, and one factor only, to be considered.
The Magistrate’s reasons contain a careful summary of the evidence, and a careful appraisal of the quality of the evidence of the respective witnesses. The Magistrate’s reasons follow a clear structure: a summary of the prosecution evidence; a summary of the defence evidence; credibility findings; and then findings in respect of each charge by an application of the criminal onus. The Magistrate’s assessment of the evidence was not compartmentalised, ie, with the Magistrate considering the evidence in relation to one charge independently of the evidence relating to the other. By itself, this makes it unlikely, in my opinion, that the Magistrate was unaware of the potential significance of a lack of satisfaction about the evidence on one charge to her assessment of the evidence on the other. Furthermore, it is to be noted that the Magistrate did not reject Mr Foster’s evidence. It was simply that she did not regard it as satisfying the stringent criminal onus in relation to the assault charge. Unlike the circumstances considered in T v The Medical Board, those matters did not bring into question Mr Foster’s reliability in relation to the unlawful damage charge.
I am satisfied that the Magistrate did not make the error which this part of the appellant’s submissions attributed to her. For similar reasons, I do not accept the related submission that the Magistrate’s reasons were inadequate.
These grounds of appeal fail.
Impermissible Reasoning
The appellant submitted that the Magistrate had engaged in a form of impermissible reasoning in her use of Ms Woolman’s evidence. As previously noted, the Magistrate specifically recorded that Ms Woolman had been unable, in her evidence, to assist on the topic of when the damage to the mirror was caused. The appellant submitted that, despite noting this, the Magistrate had nevertheless used Ms Woolman’s evidence to support the conclusion that the damage to the mirror had been caused by the appellant’s kicking before Mr Foster alighted from his car.
This submission can be dealt with quite shortly. In my respectful opinion, the submission is based upon speculation or surmise for which there is no foundation at all in the Magistrate’s reasons. Further, it is quite improbable that the Magistrate, having expressly noted that Ms Woolman’s evidence could not assist on this point, should nevertheless have treated it as though it did.
This ground of appeal fails.
Application of the Onus of Proof
The appellant made two submissions by way of critique of the Magistrate’s reasons concerning the onus of proof. First, he submitted that the Magistrate had only once referred expressly to the requirement for the prosecution to prove both charges beyond reasonable doubt, namely, in paragraph 39 of her reasons.
Secondly, the appellant referred to authorities such as Abnett v Korber,[11] Harris v Mill[12] and Lynch v Kennedy,[13] in which members of this Court have emphasised that the application of the criminal onus is not to be a matter of ritual incantation. The authorities indicate that even when a magistrate’s reasons contain a correct recital of the onus and standard of proof, an appeal will nevertheless be upheld if this Court’s consideration of the Magistrate’s reasons or findings, or of the evidence, indicates that the correct onus was not, or could not have been, applied.
[11] (Unreported, Supreme Court of South Australia, Jdgt No 9363, 17 September 1986), von Doussa J.
[12] (Unreported, Supreme Court of South Australia, 2890 of 1988, 7 April 1988), von Doussa J.
[13] (Unreported, Supreme Court of South Australia, Jdgt No 7716, 31 August 1984)
There is no need to refer to these authorities in any detail. That is because the Magistrate’s reasons, far from being suggestive of some mere ritual incantation of the criminal onus, indicate a conscientious application of it. It is that application of the onus which explains the acquittal of the appellant on the assault charge, even though the Magistrate had accepted the substance of the prosecution evidence presented at trial and had positively rejected that of the appellant.
Further, contrary to the appellant’s submissions, the Magistrate made express reference to the criminal onus and standard of proof in three separate passages of her reasons, namely, in paragraphs 39, 40 and 41.
I also agree with the respondent’s submission that the very structure of the Magistrate’s reasons, and the findings of fact, suggest that the Magistrate was well aware of the proper application of the criminal onus.
In my opinion, there is no substance in this ground of appeal.
The Character Evidence
The appellant submitted that, although the Magistrate had referred in her summary of the evidence to the character evidence of his witness, Mr O’Callahan, there was no indication that she had taken it into account in her assessment of the credibility of the appellant’s evidence.
It is true that the Magistrate did not refer expressly to Mr O’Callahan’s evidence in this context. However, I consider this to be a matter of no consequence.
Mr O’Callahan could do no more than give evidence of the appellant’s general reputation for honesty and reliability. The Magistrate had to assess the reliability of his evidence in relation to a particular incident, about which there was conflicting evidence. The Magistrate was entitled to make an assessment of the appellant’s credibility which differed from that described by Mr O’Callahan. There is no reason to suppose that the Magistrate overlooked Mr O’Callahan’s evidence when making her assessment.
I reject this ground of appeal.
Conclusion
For the reasons given above, I consider that all the appellant’s grounds of appeal fail. The appellant was properly convicted. The appeal is dismissed.
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