Bailey v Costin

[1993] QCA 404

IN THE COURT OF APPEAL [1993] QCA 404

SUPREME COURT OF QUEENSLAND

C.A. No. 261 of 1993

Brisbane

[Bailey v. Costin]

MARC BAILEY
v.
IAN MOODY COSTIN

(Appellant)

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_

THE PRESIDENT

DAVIES J.A.
PINCUS J.A.

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_

J	udgment delivered 18/10/1993
R	EASONS FOR JUDGMENT - THE COURT

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APPEAL DISMISSED.

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CATCHWORDS: CRIMINAL LAW - ASSAULT - Applicant claimed insufficient evidence to support conviction for assault of a female - Whether evidence such that no reasonable magistrate could have accepted substance of complainant's account

Criminal Code, ss. 668D, 673
Aspasia Pty Ltd v. Huntress [1985] 2 Qd.R. 241
Murphy v. Porter; ex p. Murphy [1985] 1 Qd.R.

59

R. v. Free [1983] 2 Qd.R. 183
R. v. Roberston (1980) 2 A.Crim.R. 369

Counsel:	P. Callaghan for the Respondent R. Aldridge for the Appellant
Solicitors:	Director of Prosecutions for the Respondent
Edwin Dean & Associates for the Appellant
Hearing Date(s):	8 October 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 261 of 1993
Brisbane
Before	The President Mr Justice Davies Mr Justice Pincus

[Bailey v. Costin]

MARC BAILEY
v.
IAN MOODY COSTIN

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18/10/1993

This is an appeal pursuant to s. 673 of the Criminal Code against a summary conviction for assault with a circumstance of aggravation, that the person assaulted was a female. Pursuant to s. 668D the appellant has a right to appeal against his conviction on any ground which involves a question of law alone but only, relevantly, with the leave of this Court against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact.

Although the amended notice of appeal runs for nine pages, contains 14 grounds of appeal and 19 paragraphs of particulars of those grounds under the headings "Inconsistencies", "Credibility", "Core of Evidence", "Defendant's Credibility", "Relationship between Parties" and "Proof", the real basis of the appeal was a contention that the learned stipendiary magistrate should not have been satisfied, to the required standard of proof, in respect of the evidence of the complainant. There is no doubt that, if he was entitled to accept the complainant's evidence, the appeal must fail.

The appellant, the complainant, Mrs Jennifer Sutton, and her mother, Mrs Charlotte Lyons, were all involved with the West Toowoomba Croquet Club. Mrs Lyons was a member. The appellant, though a member of another club, apparently played regularly at that club. And the complainant was a former member who occasionally helped out at the club and visited it for social reasons. There was long standing animosity between the appellant and Mrs Lyons.

On the day in question, 3 March 1993, there was a tournament at the club. During the course of that tournament the appellant entered the club house to go to the toilet. He found that the only toilets in the club had been designated as female toilets and that a sign which had on it "Male Toilet" and an arrow indicated that men were to use public toilets in a nearby park.

These were about 200 metres away. The appellant ignored the

sign and entered and used the toilet. He was plainly annoyed.

When he came out of the toilet he said to some women that this was unacceptable and that it was discrimination. He then commenced to alter the sign by changing "male" to "female" thereby indicating that women wishing to use the toilet should use those in the public park. So much is common ground between the appellant and the complainant. From this point on, however, their versions of events diverged.

The appellant said that he had just completed altering the sign when he was thrust up against a steel door by the complainant who was attempting to take the sign from him. It fell to the floor and each attempted to grab it. He said that he attempted to distance himself from her and she ended up resting against the refrigerator.

The complainant's version was that she said to the appellant, "Ian, you're not a member of the club. You're vandalising their possessions." He then turned to face her, came towards her hitting her in the chest with his shoulder and head. He forced her against the refrigerator, moving it out of position as he did so. He then pinned her against the refrigerator with one hand on each of her shoulders. He was yelling and screaming in the process.

In his lengthy and carefully written outline of argument and in his oral address Mr Aldridge, for the appellant, pointed to internal inconsistencies in the evidence of the complainant, inconsistencies between the evidence of the complainant and that of her mother, internal inconsistencies in the evidence of the latter, and to the fact that the learned stipendiary magistrate thought that the complainant may have exaggerated her evidence a little. However, the inconsistencies were not such that the learned stipendiary magistrate could not have accepted the substance of the complainant's evidence. Nor would a little exaggeration have prevented him from doing so.

The advantage which the magistrate had of seeing and hearing the witnesses on what was plainly an issue of credit cannot be over- emphasised. This Court cannot speculate, as it was, in effect, invited to, upon whether the magistrate may have been distracted by the appellant's personality or his manner of giving evidence; or upon the extent to which animus against the appellant may have affected the evidence of the complainant or her mother.

This appeal can succeed only if no reasonable magistrate could have reached the conclusion which the magistrate did or if there was no evidence to support that conclusion; see R. v. Robertson (1980) 2 A.Crim.R. 369 at 373, but also see R. v. Free [1983] 2 Qd.R. 183 at 191-2, which is authority for the view that where findings on credibility are accompanied by reasons in which error is detected, the Court may interfere; see also Murphy v. Porter; ex parte Murphy [1985] 1 Qd.R. 59 at 67, and Aspasia Pty Ltd v. Huntress [1985] 2 Qd.R. 241 at 244. It is plain that there was evidence to support the conclusion, namely the evidence of the complainant, and the appellant has failed to establish that no reasonable magistrate could have reached the conclusion which this magistrate did, namely that he should accept, in substance, that evidence. The facts that it may have been a little exaggerated and that there were some internal inconsistencies in it and inconsistencies between it and that of Mrs Lyons are insufficient to render that conclusion so unreasonable that no reasonable magistrate could have reached it.

This would have been an appropriate case in which to refuse leave to appeal, so plainly was the decision below based on findings of credit which the learned stipendiary magistrate was entitled to make. However, as the question whether leave should be granted was not argued and we heard the substance of the appeal, we propose merely to dismiss the appeal.