Bellchambers v Police - [2007] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BELLCHAMBERS v POLICE
[2007] SASC 184
Judgment of The Honourable Justice Sulan
23 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF
Appellant convicted of assault occasioning actual bodily harm - Magistrate considered both identification and circumstantial evidence - whether Magistrate gave sufficient consideration to the weaknesses in the identification evidence - whether it was open to the Magistrate to consider the identification and circumstantial evidence cumulatively - whether the Magistrate gave sufficient weight to the evidence which supported the position that the appellant had an alibi - held, dismissing appeal, the Magistrate gave detailed reasons for his conclusions and no error was demonstrated.
Criminal Law Consolidation Act 1935 s 40, referred to.
Domican v The Queen (1992) 173 CLR 555; R v Bennett (2004) 88 SASR 6; R v Coxon (2002) 82 SASR 412; R v Story (2004) 144 A Crim R 370; R v Turner (2000) 76 SASR 163, discussed.

BELLCHAMBERS v POLICE
[2007] SASC 184
Magistrates Appeal

SULAN J:
The appellant was charged with assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935. He pleaded not guilty and was tried before a Magistrate. The Magistrate found the appellant guilty, recorded a conviction and imposed a fine of $1500. The appellant appeals his conviction.
Facts
It is necessary to set out in some detail the facts in this case. I begin by recounting the facts that were admitted or established by evidence that was not disputed before the Magistrate.
The assault took place in a car park situated between Coglin Street (to the east) and Market Street (to the west) in Adelaide (“the car park”). On the northern boundary of the car park, there was a pathway that connected Coglin Street and Market Street. The car park was managed by a company called Park Fast Pty Ltd (“Park Fast”).
Users of the car park were required to display a valid ticket within their vehicle. Tickets were obtained from a vending machine located in the car park. Another company, Adelaide City Fines Pty Ltd (“ACF”), was contracted by Park Fast to monitor the use of the car park. If ACF staff found a vehicle using the car park that did not have a valid ticket displayed, they would place an infringement notice on the vehicle. The effect of an infringement notice was to require the owner of the vehicle to pay a fine to Park Fast.
In some instances, a metal clamp would be attached to a wheel of a vehicle that did not have a valid ticket displayed. The clamp was attached by a padlocked chain. When a clamp was attached, a notice would be placed on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bellchambers v Police

Details

AGLC: Bellchambers v Police [2007] SASC 184
Case: [2007] SASC 184
Decision Date: 23 May 2007

CaseChat Overview and Summary

The appellant, Bellchambers, appealed his conviction for assault occasioning actual bodily harm, which was upheld by the Magistrate. The appeal centred on the Magistrate's handling of identification evidence and the cumulative weight of circumstantial evidence in determining the appellant's guilt. The primary legal issue was whether the Magistrate erred in considering both identification and circumstantial evidence together, and if he adequately assessed the weaknesses in the identification evidence and the alibi evidence presented by the appellant.

The court examined the Magistrate's approach to the identification evidence provided by witnesses Berresford and Afonso. Berresford had a clear and unobstructed view of the appellant in daylight, which the Magistrate deemed sufficient for a reliable identification. Afonso, though perceived as somewhat biased, provided corroborative details that aligned with other evidence. The court found that the Magistrate gave detailed reasons for his conclusions and did not err in his assessment. The court also considered the cumulative weight of the circumstantial evidence, including the appellant's previous parking infringements and the presence of the clamp on his vehicle, which supported the overall narrative of the incident.

The court concluded that the Magistrate did not commit any error in his reasoning or in the weight he gave to the evidence. The reasons provided for the findings were thorough, and no basis for the court to interfere with the Magistrate's decision was demonstrated. The appeal was dismissed, affirming the conviction and the fine imposed on the appellant.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was charged with assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935. He pleaded not guilty and was tried before a Magistrate. The Magistrate found the appellant guilty, recorded a conviction and imposed a fine of $1500. The appellant appeals his conviction. Facts It is necessary to set out in some detail the facts in this case. I begin by recounting the facts that were admitted or established by evidence that was not disputed before the Magistrate. The assault took place in a car park situated between Coglin Street (to the east) and Market Street (to the west) in Adelaide (“the car park”). On the northern boundary of the car park, there was a pathway that connected Coglin Street and Market Street. The car park was managed by a company called Park Fast Pty Ltd (“Park Fast”). Users of the car park were required to display a valid ticket within their vehicle. Tickets were obtained from a vending machine located in the car park. Another company, Adelaide City Fines Pty Ltd (“ACF”), was contracted by Park Fast to monitor the use of the car park. If ACF staff found a vehicle using the car park that did not have a valid ticket displayed, they would place an infringement notice on the vehicle. The effect of an infringement notice was to require the owner of the vehicle to pay a fine to Park Fast. In some instances, a metal clamp would be attached to a wheel of a vehicle that did not have a valid ticket displayed. The clamp was attached by a padlocked chain. When a clamp was attached, a notice would be placed on the vehicle advising the owner that the clamp had been applied, and that it could be removed once the owner had telephoned ACF, paid a fee of $110 to ACF and complied with certain formalities. The appellant was the owner of a red Toyota Celica motor vehicle. On Thursday 14 April 2005, he parked the vehicle in the car park. It was parked adjacent to the pathway, facing north. The appellant left the vehicle without displaying on it a valid ticket. He then attended Passatempo, a restaurant on Gouger Street, where he was casually employed. Between 7 May 2004 and 14 April 2005, ACF had placed 13 infringement notices on the appellant’s Celica for failure to display a valid ticket whilst parked in the car park. At some time on 14 April 2005, ACF placed a clamp on a rear wheel of the Celica. At the time of the incident, Mr Afonso was employed as the Operations Manager of Park Fast. On the morning of Friday 15 April 2005, he received a telephone call informing him that two men were acting suspiciously in relation to the Celica. Mr Afonso attended at the car park. After arriving at the car park, Mr Afonso approached two men who were near the Celica. One man, “the accomplice”, was holding bolt cutters. The other man, “the assailant”, was using an air compressor to put air into one of the Celica’s tyres. There was a brief discussion between Mr Afonso and the two men. The assailant then punched Mr Afonso on his left jaw. As a result of the assault, Mr Afonso sustained two fractures to his jawbone.

Evidence

Evidence Before The Court

The appellant submitted that the Magistrate had made “fundamental errors” in two aspects of the case: first, in the assessment of the identification evidence of the witnesses Berresford and Afonso. Secondly, the appellant submitted that the Magistrate had erred in his assessment of the evidence of the witnesses Howard and Hopper, which in the appellant’s submission either established a complete alibi or at least a reasonable doubt about the identification of the appellant as the assailant. I will address first the Magistrate’s assessment of the identification evidence. In order to address the appellant’s submissions in relation to this issue, it is necessary to set out the evidence upon which the Magistrate relied in finding the appellant guilty.Identification evidence The witness Berresford was returning to his car, which was parked in Coglin Street, at about 9:30 am on 15 April 2005. He walked along the pathway on the northern boundary of the car park. As he did so, he observed two men near the Celica. He observed that all the tyres of the Celica were flat and there was a clamp attached to one of its wheels. Berresford saw that one of the men was using an air compressor to inflate a tyre. This was connected to the car’s cigarette lighter. The front door of the vehicle was open to enable the compressor to be connected to the cigarette lighter. The other man appeared to be trying to remove the wheel clamp. Berresford continued along the path. There was a sign displaying information about the car park, including a contact telephone number. Berresford used his mobile telephone to ring this telephone number. Afonso answered the telephone call, and Berresford explained what he had seen to him. Telephone records indicated this call was made at 9:37 am. Berresford participated in a photo identification on 13 September 2005. After initially considering another photograph, Berresford identified the appellant as the man who was pumping the tyres of the vehicle. The Magistrate considered that the hesitation of Berresford was explicable on the basis that the other photograph was “considerably similar” to that of the appellant. Further, the Magistrate noted that while Berresford had only a limited opportunity to view the men in the car park, the men were behaving unusually, and Berresford had “obviously [taken] a keen interest in what he observed… [and] clearly took the view that the two males were acting suspiciously”. The initial observation had taken place in daylight and Berresford’s view of the men was unobstructed. The Magistrate found that Berresford was “a truthful and reliable witness”. The Magistrate approached differently the evidence of the witness Afonso. The Magistrate stated:Whilst I generally regarded Mr Afonso as a credible witness, I felt from time to time in his evidence that he came to Court with an unshakable belief in the guilt of Mr Bellchambers. This led to an unwillingness by Mr Afonso to contemplate any suggestion which he perceived to be inconsistent with his unshakable belief as to Mr Bellchamber’s guilt and a tendency, therefore, to be unnecessarily wary and suspicious of some of the questions and propositions put to him in cross-examination.…I hasten to add, that I am not suggesting for a moment any blatant endeavour on the part of Mr Afonso to pin the crime on Mr Bellchambers regardless of the truth of the matter, and the sincerity of Mr Afonso’s belief in the guilt of Mr Bellchambers is not to be doubted. I am merely alluding to my detection of a subtle wariness and defensiveness on the part of Mr Afonso at some points in his cross-examination.

Decision

Reasons for decision

In my view, there is no basis for finding that the Magistrate failed to give adequate reasons for his judgment. The Magistrate explained clearly which evidence he accepted and his reasons for accepting it, as well as explaining why he did not consider that the evidence of Howard and Hopper gave rise to a reasonable doubt. No error in the Magistrate’s reasoning has been demonstrated.Conclusion No basis has been demonstrated for this Court to interfere with the findings. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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