Bentley v Greaney
[2016] WASC 227
•29/07/16
BENTLEY -v- GREANEY [2016] WASC 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 227 | |
| Case No: | SJA:1020/2016 | 19 JULY 2016 | |
| Coram: | BEECH J | 29/07/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHELLE FAYE BENTLEY WARREN JEFFREY GREANEY |
Catchwords: | Criminal law Appeal against conviction Conflicting oral evidence of prosecution witness and accused Whether magistrate erred in assessing conflicting evidence Whether open to magistrate to be satisfied beyond reasonable doubt of guilt Turns on own facts |
Legislation: | Nil |
Case References: | Dean v Legal Practice Board [2016] WASCA 63 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 The State of Western Australia v Olive [2011] WASCA 25 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
WARREN JEFFREY GREANEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 110767 of 2014
Catchwords:
Criminal law - Appeal against conviction - Conflicting oral evidence of prosecution witness and accused - Whether magistrate erred in assessing conflicting evidence - Whether open to magistrate to be satisfied beyond reasonable doubt of guilt - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr C M Beetham
Solicitors:
Appellant : D G Price & Co
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Dean v Legal Practice Board [2016] WASCA 63
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Olive [2011] WASCA 25
- BEECH J:
Introduction
1 Ms Bentley appeals against her conviction on offence of aggravated assault. The offence was said to have been committed against a resident at an aged care facility at which Ms Bentley was working.
2 Ms Bentley appeals on the grounds that her conviction was a miscarriage of justice in that the verdict cannot be supported by the evidence, and that the magistrate's reasoning reveals an error. For the reasons that follow, I am not persuaded of either ground, and would dismiss the appeal.
Overview of the evidence at trial
3 In substance, the prosecution case relied upon the evidence of one witness, Mr Min, who said he saw Ms Bentley drag a resident at the facility across the floor and outside.1 The complainant died prior to the trial from causes unrelated to the incident.
4 On the defence case, it was not in issue that Ms Bentley had made physical contact with the complainant. The issue was the nature of that contact and whether it amounted to an unlawful assault. Ms Bentley gave evidence in her own defence. Ms Bentley's evidence was that she guided the complainant towards the garden in a calm and relaxed fashion.2 Ms Bentley also called some character evidence.
The evidence in more detail
5 Mr Min's evidence-in-chief included the following:
(a) in October 2014 he worked at an aged care centre doing maintenance work;3
(b) at about 7.20 am on 27 October 2014 he was at work. He was outside. He looked inside through a window and saw Ms Bentley pulling something. Initially, he could not see what. He opened the door and saw that Ms Bentley was dragging the complainant across the floor. He then saw her drag the complainant outside;4
(c) Mr Min asked Ms Bentley why did you do that to her, to which Ms Bentley replied the resident was banging the door;5
(d) when he entered and stood near the door, he had a full view of Ms Bentley and the resident;6
(e) Ms Bentley appeared to be angry, her face was red and she appeared to be excited;7
(f) after the incident, Mr Min said he felt nervous and wanted to report it.8 In the morning, he went to see his boss who was busy. He reported it to an acting manager at about 3.00 pm that day;9
6 Mr Min's evidence in cross-examination included the following:
(a) it was put to him that the windows were reflective; he said that he could see through them;10
(b) Ms Bentley's version of what occurred was put in detail to Mr Min by counsel.11 Mr Min denied that different version, and adhered to the version of events he had given in evidence-in-chief.12 For example, it was put to him that the dragging by Ms Bentley of the complainant did not happen, to which he said it did happen.13 It was also put to Mr Min that after these events he went straight back to his ordinary work because there was nothing unusual about what he had seen. He denied that;14
(c) counsel put to Mr Min that Mr Min's wife and Ms Bentley had had a falling out of which Mr Min was aware. Mr Min said he was not aware of any such thing;15
(d) Mr Min denied that he saw this incident as an opportunity to get Ms Bentley into trouble.16 He denied that he had taken what was ordinary events at work and turned it into something different;17
(e) Mr Min agreed that the surface outside the doorway was ordinary bricks, being a hard rough surface.18 Mr Min denied that the complainant had simply walked across the bricks, and denied that he held the door open for Ms Bentley who had thanked him for doing so.19
7 The prosecution called another witness, Ms Fathy, a manager at the aged care facility. She did not see any part of the incident. Nothing needs to be said about her evidence.
8 Ms Bentley's evidence-in-chief included the following:
(a) at the time of this incident she was an experienced aged care worker;20
(b) the complainant was in her late 80s and had dementia;21
(c) on the day in question Ms Bentley asked the complainant to leave the bedroom she was in.22 In doing so the complainant banged the doors quite loudly, opening a door and slamming it at least four times;23
(d) Ms Bentley looked for the internal phone in order to call other staff. She could not find it. She decided then to lead the complainant out of the room. She took her by the hand and led her. She spoke to her in English. Although the complainant did not understand English, she spoke to her because it has a calming effect;24
(e) while this occurred Ms Bentley was feeling calm and relaxed;25
(f) Ms Bentley walked with the complainant, guiding her with one hand placed near the complainant's hip or lower back;26
(g) the complainant sat down on the floor;27
(h) Mr Min came onto the patio area. The complainant asked him to open the door which he did;28
(i) Ms Bentley attempted to get the complainant to stand up. The complainant did not do so immediately, but did so after a while;29
(j) Ms Bentley accompanied the complainant through the door. She did not drag the complainant at any time;30
(k) there was an incident between Mr Min's wife and Ms Bentley following which Ms Bentley said her relationship with Mr Min changed in that they no longer had conversations with each other.31
9 In cross-examination Ms Bentley denied that the need to repeatedly ask the complainant to leave the room had frustrated her.32 She also denied that she became frustrated when the complainant sat down in the process of leaving.33 Ms Bentley denied, that being frustrated by the situation, she proceeded to take the complainant by her collar and drag her.34
10 The following exchange occurred:
Then once you pulled Mrs Tran out of the door, Mr Tran asked you words to the effect of, 'Why are you doing that to her?'; isn't that correct?---No, it's not correct.
You then said to him, 'This lady is banging the doors or on a door'; do you agree of that?---That's not correct either. I have a personal relationship with Mrs Tran. My - I addressed her as Sue.
Now, in your evidence-in-chief, on your own evidence, you said that, indeed, that Mrs Tran was banging or slamming doors; is that correct?---Yes. Yes.35
11 In re-examination Ms Bentley gave the following further evidence:
A comment - a piece of Mr Min's evidence was put to you, Ms Bentley, that he had asked you, 'Why did you do that to her?' or something along those lines, and you said 'The lady was banging doors,' or words to that effect?---Do you remember the question that was put to you?---Yes, I do.
And you said that didn't happen, and it seemed that you were saying that didn't happen because you wouldn't call her 'this lady' or you wouldn't use the words - - -?---No.
- - - 'this lady'?---No.
What about the rest of that sentence? Did you say anything to Mr Min about Ms Tran having banged doors?---Yes. She was banging doors and just needs to sit out in the garden and cool off. That's - - -
Right?---Yes.
So the bit you disagree with that was 'this lady', that part of - the mode of address?---Yes. I totally disagree with that.36
The reasons of the magistrate
12 After a short adjournment, the magistrate delivered oral reasons for decision. His Honour's reasons may be summarised, relevantly, as follows.
13 After some introductory observations, the magistrate explained the framework for his decision and the issues for his determination:
(1) the prosecution case is that Ms Bentley assaulted the complainant by dragging her from inside the door of the unit to an outside area;37
(2) the prosecution case relies on the evidence of the eye witness Mr Min;
(3) the version of events given by Mr Min on the one hand and Ms Bentley on the other are markedly different. There is a 'yawning gap' between the accounts.38 As the magistrate explained later in his reasons, he considered that if Ms Bentley's account is correct, Mr Min's evidence of what happened cannot be seen as an honest mistake;39
(4) the magistrate outlined the character evidence called on behalf of Ms Bentley. His Honour directed himself about how that evidence bore on the issues. No complaint is made in that regard on this appeal;
(5) the magistrate stated that the situation 'distils to a close consideration of the evidence of [Mr Min] and [Ms Bentley].'40 In this respect the magistrate correctly directed himself as to the onus and standard of proof, in accordance with the principles stated in Liberato.41
14 The magistrate then focused on the credibility of the evidence given by Mr Min and made the following findings and observations:
(1) he found that there was nothing about the manner in which Mr Min gave his evidence, or the content of that evidence, which caused him to doubt its credibility;42
(2) the magistrate referred to the fact that the complainant had not received any apparent injuries even though one might speculate that she might have been injured or had some marks having been dragged across the floor;43
(3) the magistrate referred to questions in cross-examination of Mr Min suggesting that Mr Min's wife had had a falling out with Ms Bentley;44 (Mr Min did not give any evidence to support that theory).45
(4) later on the day of the incident Mr Min reported what he had seen to a supervisor.46 The magistrate observed that on the defence case, in doing that, Mr Min was making a completely false allegation against Ms Bentley who had done nothing more than usher a difficult patient across the dining room area.47
15 The magistrate next outlined the evidence of Ms Bentley:
(1) Ms Bentley's evidence was that she was ushering the complainant out to the garden area and, in the course of that happening, the complainant sat down. Ms Bentley denied the suggestion in cross-examination that that made her frustrated;48
(2) the magistrate referred to the fact that Ms Bentley was an experienced aged care worker accustomed to working with people with dementia who do not always act in a way that will be expected of people without that condition.49
16 The magistrate then turned to what he described as a key piece of evidence from the prosecution's point of view, namely the conversation between Mr Min and Ms Bentley immediately thereafter.50 Mr Min's evidence was that after Ms Bentley had dragged the complainant outside he said to Ms Bentley 'What did you do that for' and the response from Ms Bentley was that she, the complainant, was banging the door.51
17 The magistrate said that in her evidence Ms Bentley did not accept that Mr Min had said to her 'Why did you do that for', in response to which she had said she was banging on the door.52 The magistrate referred in some detail to the cross-examination of Mr Min.53 The magistrate referred to the fact that Ms Bentley's evidence was that the complainant had been banging the door and that she says that is how the remark came to be said.54 The magistrate also referred to the fact that in re-examination Ms Bentley said that she did say to Mr Min that the complainant had been banging on the door.55
18 The magistrate stated that that seemed to him to lack credibility because it lacks context for there to be discussion about banging on the door.56 His Honour then proceeded to outline why, in his view, the conversation between Mr Min and Ms Bentley makes sense in the context of Mr Min's evidence, but does not make much sense in the context of Ms Bentley's evidence.57 The magistrate also referred to the fact that, on the defence case, nothing exceptional had occurred, yet by 3.00 pm Mr Min had decided to make up a story that turned out to have a 'compelling element of truth', which was that the complainant had been banging on the door.58
19 The magistrate referred to Ms Bentley's good character, and to her experience and training, as suggesting that it would be unlikely for her to behave in this fashion.59 He stated that, viewed in isolation, Ms Bentley's evidence as a coherent whole makes perfect sense.60 His Honour stated that he faced the contest where the effect of Ms Bentley's evidence was that Mr Min had just made up the story against her, as against the 'compelling evidence' that Mr Min cited Ms Bentley as referring to the complainant banging on the doors, as had indeed happened.61
20 The magistrate concluded that Ms Bentley's evidence about what happened was untruthful, and that he was satisfied beyond reasonable doubt by Mr Min's evidence of guilt.62
Grounds of appeal
21 Following amendment to the grounds of appeal in the course of the hearing, there are two grounds of appeal.
22 The first is that, having regard to the evidence, the conviction was unreasonable or cannot be supported by the evidence. The particulars in support of that ground, as developed in written and oral submissions, involve three propositions. First, the only eye witnesses to the events were Mr Min and Ms Bentley. Secondly, following the incident, the complainant was examined by a medical practitioner and no injuries were found. Thirdly, insofar as the magistrate rejected Ms Bentley's evidence on the basis that her evidence that she said to Mr Min that the complainant was banging on the door lacked context, the magistrate erred.
23 That third proposition is, standing alone, the subject of ground 2. Ground 2 is that the magistrate erred in rejecting Ms Bentley's evidence as a whole on the basis that her evidence that she said to Mr Min that the complainant was banging on the door lacked context.
24 It is convenient to begin with ground 2.
The merits of ground 2
25 The magistrate found that:
(1) the conversation between Mr Min and Ms Bentley, in which Ms Bentley said the complainant had been banging on the door, made sense in the context of Mr Min's version of events because it was said in response to Mr Min's question - why are you doing that to her;
(2) whereas that statement lacked context on Ms Bentley's version of events, because there was no apparent reason for her to tell Mr Min the complainant had been banging on the door given that she was simply ushering the complainant outside.63
26 That finding was a central element of his Honour's reasoning to the conclusion that he was satisfied beyond reasonable doubt by Mr Min's evidence that Ms Bentley was guilty.64 Ground 2 asserts that the magistrate's reasoning in that respect reveals error.
27 Ms Bentley submits that the following matters provided a context that explained or was capable of explaining the making of the statement by Ms Bentley.65 First, Ms Bentley was guiding the complainant outside. Secondly, at Ms Bentley's request, Mr Min held the door open for her. Thirdly, the evidence was that the doors in question were locked from 7.00 pm to 8.00 am, so generally a resident would not be able to go outside at that time.66 Fourthly, there was evidence that Ms Bentley spoke to Mr Min in that she thanked him for holding the door open.67
28 The question is not whether it was open to a tribunal of fact to take a view that differed from the view adopted by the magistrate. Rather, on appeal, Ms Bentley must demonstrate that the view taken by the magistrate was not open. I am by no means persuaded that that is so. Mr Min was not involved in caring for patients, but was a maintenance worker at the aged care facility. In the circumstances, to my mind the magistrate's view that, on Ms Bentley's version of what had occurred, there was no apparent reason for Ms Bentley to volunteer that the complainant had been banging on the door, or otherwise to explain why she was going outside with the complainant, was one that was well open.
29 In my view it was open to the magistrate to find that on Ms Bentley's version there was no context for, or natural reason to expect, Ms Bentley to say to Mr Min that the complainant had been banging on the door. The magistrate was entitled to find, as he did, that that undermined the veracity and reliability of Ms Bentley's version of events. Further, in the course of her detailed account of events in evidence-in-chief, Ms Bentley did not make any mention of the making by her of that statement to Mr Min.68 Nor was it mentioned in counsel's cross-examination of Mr Min, in which Ms Bentley's version of events was put in considerable detail to Mr Min. The magistrate evidently took the view that the fact that the making of the statement by Ms Bentley was not mentioned in the detailed version of events given in her evidence-in-chief undermined the reliability of that version of events. That reasoning does not disclose any error.
30 For these reasons, I would dismiss ground 2.
Ground 1 - Legal principles
31 The principles governing the ground of appeal in this case are well established. Those principles may be summarised as follows:
(1) the question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty;
(2) that question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(3) the appeal court must undertake its own independent assessment of all the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict;
(4) in answering that question, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the witnesses;
(5) a doubt experienced by an appellate court would be a doubt which a magistrate ought also to have experienced unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;69
The merits of ground 1
32 On appeal, Ms Bentley's written and oral submissions on ground 1 focused primarily upon the alleged error the subject of ground 2, relating to the banging on the door statement. In dealing with ground 2 I have rejected that complaint.
33 Otherwise, Ms Bentley's submissions on ground 1 point to the fact that, when the complainant was examined, there was no evidence of any injuries.70 For the reasons that follow, in my view, that fact did not mean that the magistrate must (as distinct from might) have entertained a reasonable doubt about Ms Bentley's guilt.
34 The evidence of Mr Min was that, once outside onto the brick surface, Ms Bentley continued to drag the complainant.71 His evidence was that, once outside, Ms Bentley pulled the complainant another three to four feet.72 (There was other evidence involving an estimate of the total distance over which, according to Mr Min, the complainant was dragged, but that was not limited to the dragging outside the door).73 The evidence was that the complainant was wearing tracksuit pants.74 In the circumstances, the fact that medical examination of the complainant did not reveal any injuries was not inconsistent with satisfaction beyond reasonable doubt of the reliability of Mr Min's evidence as to what had occurred.
35 This was a case where there was a direct conflict of oral evidence from eye witnesses about the events the subject of the charge. As was accepted at trial and on appeal, on Mr Min's evidence, Ms Bentley was guilty; on Ms Bentley's evidence, she was not guilty. In these circumstances, in determining ground 1 it is important to keep in mind that the magistrate had the considerable advantage of seeing and hearing the witnesses.
36 The question is whether it was open to the magistrate to be satisfied beyond reasonable doubt. My review of the record of the trial does not persuade me that the magistrate must have entertained a reasonable doubt as to Ms Bentley's guilt.
37 For these reasons, I would dismiss ground 1.
Conclusion
38 While I would grant leave to extend the time to appeal, and grant leave to appeal, for the reasons I have given I would dismiss the appeal.
1 ts 8, 23 - 24.
2 See, for example, ts 90 - 91.
3 ts 8.
4 ts 8, 23 - 24.
5 ts 8, 19, 25.
6 ts 15.
7 ts 22.
8 ts 28.
9 ts 29.
10 ts 32.
11 ts 38 - 42.
12 ts 38 - 42.
13 ts 42.
14 ts 43.
15 ts 48.
16 ts 49.
17 ts 49.
18 ts 50.
19 ts 51.
20 ts 84.
21 ts 85.
22 ts 88.
23 ts 88.
24 ts 89 - 90.
25 ts 90.
26 ts 90.
27 ts 92.
28 ts 92 - 93.
29 ts 94.
30 ts 95.
31 ts 97.
32 ts 98.
33 ts 98 - 99.
34 ts 99, 101.
35 ts 102.
36 ts 102 - 103.
37 ts 130 - 131.
38 ts 131.
39 ts 135, 139, 140.
40 ts 132.
41Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.
42 ts 133.
43 ts 134.
44 ts 134 - 135.
45 ts 48 - 49.
46 ts 130.
47 ts 135.
48 ts 136.
49 ts 136 - 137.
50 ts 137.
51 ts 137.
52 ts 137.
53 ts 138.
54 ts 138.
55 ts 138 - 139.
56 ts 139. See also the middle of ts 138.
57 ts 139.
58 ts 139.
59 ts 139 - 140.
60 ts 140.
61 ts 140.
62 ts 140.
63 ts 138, 139.
64 ts 138 - 140.
65 Appeal ts 6 - 8, 24, 27.
66 Evidence of Ms Fathy, ts 76 - 77.
67 ts 96.
68 See generally ts 88 - 96, and in particular ts 95 - 96.
69M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13]; The State of Western Australia v Olive [2011] WASCA 25 [39] - [44]; Dean v Legal Practice Board [2016] WASCA 63 [130].
70 Appellant's submissions [19] - [25]; appeal ts 14 - 16.
71 ts 8, 20, 23 - 24.
72 ts 24 - 25.
73 ts 31 - 32.
74 ts 96.
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