Allison v Police

Case [2005] SASC 447

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ALLISON v POLICE

Judgment of The Honourable Justice Perry

30 November 2005

APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES

Appeal against finding of guilt in the Magistrates Court following the trial of the appellant on a charge of assault - it was common ground between the appellant and the alleged victim that a physical struggle occurred between them, but on the appellant's case, he did no more than was necessaary to prevent the complainant, his de facto partner, from damaging his property following a heated argument between them - the trial magistrate preferred the evidence of the complainant over the evidence of the appellant, holding that her alleged injuries were more consistent with her account - discussion of the role of an appeal court in dealing with issues of credit - held that a mistake by the magistrate as to the nature of what she regarded as an injury to the head, which she held to be of critical significance in making her findings as to credit, justified interference on appeal - appeal allowed.

Taylor v Hayes (1990) 53 SASR 282; Rowland v Police (2001) 79 SASR 569; Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, considered.

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - STATEMENT OF REASONS FOR DECISION

On the hearing of an appeal from the Magistrates Court, the appellant complained that the trial  magistrate's reasons for decision were inadequate and that the inadequacy constituted an error of law - held that the reasons were sufficient - observations as to the need to give reasons and their extent.

R v Keyte (2000) 78 SASR 68; Rowland v Police (2001) 79 SASR 569; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Soulenezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; Romilly v Romilly (1934) 151 LT 179; Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1; Zieta No 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116; King Ranch Australia Pty Ltd v Cardwell Shire Council [1985] 2 Qd R 182; Halsbury's Laws of Australia Vol 20, par [325-9020] page 596,148; Yates Property Corp Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Saxer v North Sydney Municipal Council (1988) 64 LGRA 203, considered.

ALLISON v POLICE
[2005] SASC 447

Magistrates Appeal:  Criminal

  1. PERRY J. The appellant appeals against a finding of guilt recorded following a trial in the Magistrates Court sitting at Port Adelaide on a charge that on 8 November 2003 at Henley Beach South, he assaulted Tina Natascha Bukowski, a family member of the appellant, contrary to…

Continue reading Allison v Police

Sign in free to access the full text

Details
AGLC
Allison v Police [2005] SASC 447
Case
[2005] SASC 447
Decision Date

CaseChat Overview and Summary

In the case of Allison v Police, the appellant, Allison, appealed against his conviction in the Magistrates Court for the charge of assault. The appellant and the alleged victim, Bukowski, both accepted that a physical altercation had taken place, but their accounts of the incident differed significantly. The appellant claimed he only acted to prevent Bukowski, his de facto partner, from damaging his property during an argument. However, the magistrate found Bukowski's account more credible, holding that her alleged injuries were more consistent with her version of events.

The appeal centered on the legal principles governing the appellate court's role in assessing the credibility of witnesses and the sufficiency of reasons provided by the trial magistrate. The appellant's counsel argued that the trial magistrate had not provided sufficient reasons for preferring Bukowski's evidence over the appellant's, which amounted to an error of law. Additionally, the appellant submitted that the magistrate had made a mistake regarding the nature of Bukowski's alleged head injury, which was critical to her findings on credibility.

The appeal court found that the magistrate had indeed erred in her assessment of Bukowski's alleged head injury, which played a pivotal role in her decision to credit Bukowski's evidence. This mistake warranted interference by the appellate court. Consequently, the appeal was allowed, and the conviction was quashed. The court also noted that, given the stark differences between the parties' accounts and the lack of additional evidence supporting Bukowski's version, a retrial would not serve any useful purpose. The court concluded that the appeal should be allowed, and the finding that the charge was proved was quashed. The court will hear the parties on the matter of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On the hearing of the appeal, the appellant was represented by Mr Charles Abbott of counsel. The principal ground of appeal which he advanced was that the trial magistrate had given insufficient reasons for preferring the evidence of Ms Bukowski, and that this amounted to an error of law.The evidence at the trial Apart from Ms Bukowski, the prosecution called a general practitioner, Dr Nandagopal, who examined Ms Bukowski the next day; a friend, Ms Joanne Stanway, who had spent some time with the appellant on the evening in question; and three police officers, Constables Alison Cleggett, Cassie Bockmann and Malcolm Ratz. The appellant called one witness, a friend, George Weinberger, who was on the premises when the alleged assault took place. Mr Weinberger was visiting from South Africa. Ms Bukowski explained that she had been in a de facto relationship with the appellant since March 2002, but at the time of the alleged assault their relationship was deteriorating. At one stage, they had separated for a period. At the time of the alleged assault, they were living together in a unit at Henley Beach. During the evening of Friday 7 November 2003, Mr Weinberger was present in the unit. Ms Bukowski entered the unit at about 7.30 pm. The appellant and Mr Weinberger were in the kitchen. The appellant spoke to her. When she said that she would go out that night for a drink with a friend, according to her, the appellant threatened that if she did so, it would be “all over” between them. Before going out, she spoke again to the appellant and Mr Weinberger. She suggested that the latter should stay somewhere else that night. She left and spent the rest of the evening with friends at a bar/restaurant in the city. She returned to the unit a little after midnight. The appellant and Mr Weinberger were drinking in the kitchen. Her evidence was that they were drunk or “well on the way”. An argument developed over whether or not Mr Weinberger should stay the night somewhere else. Ms Bukowski became upset. She walked out of the kitchen and as she went through the living room, she kicked a small trolley on which the appellant’s television was mounted, dislodging the television so that it fell. On her account of the matter, this triggered off a violent reaction from the appellant, who charged at her. She retreated into her bedroom and tried to hold the door against him, but he eventually pushed it open. She says that he grabbed her by her arm and slammed her against a cupboard, following which he threw her on the bed and began hitting her with his hand across her face. She says he also punched her with his clenched fists. After a time he walked off. She says that she then left the room briefly to call her mother on the telephone and the police. But after she returned to the bedroom, the appellant entered again. He then resumed assaulting her. He tried to pull her off the bed and force her onto the floor. She begged him to stop. She tried to defend herself, using her knees to try to get him off her. Eventually, he broke off and walked away, at which stage she called the police again.

Decision

Reasons for decision

PERRY J
In those circumstances, it is unnecessary to deal with the other grounds of appeal.Conclusion I have considered the question whether or not I should order a retrial before another magistrate. In the particular circumstances of this case, I do not think that that course would be warranted. The accounts given by each of the parties as to the circumstances of the alleged assault are so diametrically opposed, in the absence of any evidence which could give sufficient buoyancy to the account given by the complainant to justify a conclusion of guilt, no useful purpose would be served by directing a retrial. The order is, therefore, that the appeal be allowed and the finding that the charge was proved is quashed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

Full text does not contain this section.