Bonde v Maney
[2018] TASSC 23
•17 May 2018
[2018] TASSC 23
COURT: SUPREME COURT OF TASMANIA
CITATION: Bonde v Maney [2018] TASSC 23
PARTIES: BONDE, Mike (Acting Sergeant)
v
MANEY, Adam Troy
FILE NO: 2232/2017
DELIVERED ON: 17 May 2018
DELIVERED AT: Hobart
HEARING DATE: 27 February 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Particular offences – Assault – Generally – Definition of assault – Elements of the offence – Magistrate commented that not satisfied the respondent had deliberately or recklessly caused injury to the complainant – Causation of injury not an element of assault.
Tasmania v Oates [2017] TASSC 39, applied.
Police Offences Act 1935 (Tas), s 35(1).
Acts Interpretation Act 1931 (Tas), s 36.
Aust Dig Criminal Law [2208]
Magistrates – Appeal and review – Motion to review – Tasmania – Procedure and evidence – Matters relating to decision – Duty to state reasons – Competing versions of alleged incident – Magistrate did not resolve factual basis of determination – Magistrate did not provide adequate reasons for decision to dismiss the complaint.
Robinson v Chatters [2010] TASSC 66, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: S Thompson
Respondent: J Kitto
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: James C Kitto Barrister and Solicitor
Judgment Number: [2018] TASSC 23
Number of paragraphs: 21
Serial No 23/2018
File No 2232/2017
ACTING SERGEANT MIKE BONDE v ADAM TROY MANEY
REASONS FOR JUDGMENT BRETT J
17 May 2018
The respondent was charged with four offences which related to conduct allegedly perpetrated against his former partner on two separate occasions. Three of the charges related to events which took place on 25 June 2016. The respondent pleaded guilty to those charges.
The remaining charge related to an allegation of common assault arising from events which occurred on 19 May 2016. The complaint alleged that the respondent had unlawfully assaulted the complainant "by grabbing her arm and wrenching her fingers apart". The respondent pleaded not guilty to this charge. The charge was heard and dismissed by Magistrate Cure on 18 July 2017. The applicant now moves this court to review that decision.
The only evidence of the events during which the assault was alleged to have occurred was adduced during the course of the prosecution case. The complainant's evidence was that she was in the process of leaving her house in order to visit a friend when the respondent arrived. He was not living there at the time, although they had previously been in a relationship. She said he was in an aggressive mood. She was about to get into her car and was holding her car keys with a finger or fingers through the "round loop" onto which the keys were attached. She said that the respondent wanted to know where she was going and became aggressive when she said she was going to visit a friend. He attempted to take her car keys from her hand by grabbing them and trying to snatch them away from her. She resisted, and the struggle continued for a short time. The complainant's fingers, presumably the ones looped through the key holder, were pulled and injured as a result of these events. She told the respondent, "You've broken my fingers." Her fingers were bruised and sore. The complainant subsequently saw a doctor about these injuries.
An interview between the respondent and the police, which included questions in relation to this incident, was placed in evidence. The version of the respondent, as it appears from that interview, was markedly different to that of the complainant. He denied that the incident described by the complainant had taken place. He said that, on the evening in question, he was at her house with her when the complainant said that she was going to her sister's house. She drove off and he followed her in his vehicle in order to see where she was going. When he realised that she was not travelling towards her sister's house, he flashed his lights and she pulled over. There was an argument between them during which he grabbed her keys from the ignition of her car and took them back to his car. She came over to his car in order to retrieve her keys. He believed that she suffered injury to her fingers because of her actions when she attempted to retrieve her keys from his car. He denied assaulting her in any way.
After the prosecution case was closed, the magistrate moved immediately to judgment. There is no suggestion in the transcript that the magistrate provided the respondent with an opportunity to give or adduce evidence. Her Honour noted and confirmed with the respondent, who was then unrepresented, that there were two totally different versions of events, and that his version was that he had reached in and grabbed at the keys. It is apparent that this conversation took place while the accused was sitting at the bar table, and without being sworn. This conversation between the magistrate and the respondent did not constitute evidence. Her Honour then provided her decision as follows:
"HER HONOUR: Well in any event, even if I accepted wholly her version of events, it has to be a deliberate or at least a recklessness about the injuries that were caused to her and I don't think I can be satisfied beyond reasonable doubt that they were caused in that way. I am not going to – I don't need to make a finding as to whether it was at Trevallyn or at the carport, I think I'm not satisfied he deliberately caused those injuries, but I have to deal with him for the other matters, but I've got a reasonable doubt about all of that, I think that's the best way to put it. And he pleads guilty to the other matters. So I've got to deal with him for those. I just have a doubt about it Miss McLean, I don't want to go too much further as his first account there's a delay in the report that troubles me. There's a very high threshold.
Mr Maney, I am finding you not guilty of charge 1. You are guilty of the other three."
The applicant seeks a review of the decision to dismiss the charge on the following grounds:
"1The learned magistrate erred in law in dismissing the complaint by determining the test for whether her Honour was satisfied that an assault had occurred by reference to whether the respondent specifically intended the injuries that were caused to the victim.
2The learned Magistrate erred in law in failing to give sufficient reasons as to why she was not satisfied that the charge was proven.
3The learned Magistrate erred in law in dismissing the complaint when on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent."
Grounds 1 and 2
It is apparent from her Honour's brief reasons that she acknowledged that there were competing and irreconcilable versions of the events of that day, and that she did not make a finding in respect of that conflict. Her Honour seems to have proceeded on the basis that even if the evidence of the complainant was accepted, she could not be satisfied beyond reasonable doubt that there had been an assault. Ground 1 is directed at her Honour's comments that she could not be satisfied, in the circumstances described by the complainant, that the respondent had deliberately or recklessly caused injury to the complainant. If, by these comments, her Honour can be taken to have premised her decision on the basis that, in order to establish the offence, it was necessary for the prosecution to prove that the respondent either intended to cause injury to the complainant, or alternatively actually foresaw that injury might be caused to her, and proceeded with reckless indifference, then her Honour was incorrect. The causation of injury is not an element of assault. The mental elements of assault were considered by me in Tasmania v Oates [2017] TASSC 39. Although I was considering assault as defined by s 182 of the Criminal Code, my conclusions are apposite to a charge of common assault under s 35(1) of the Police Offences Act 1935. Assault under this provision is not defined by the Police Offences Act. However, by virtue of s 36 of the Acts Interpretation Act 1931, the definition of assault contained in s 182 of the Code is applicable to the offence of assault under the Police Offences Act.
Accordingly, in the case of an assault which is alleged to have been committed by the application of force to the person of another, the elements which must be proved by the prosecution are:
(a)that the accused has applied force to the person of another, directly or indirectly;
(b)by the commission of an act which is voluntary and intentional;
(c)that the act is committed with the intention of applying force to the person of another or with subjective foresight that this will occur and proceeding with the act nonetheless (the Vallance state of mind).
The causation of injury to the person to whom the force has been applied is not an element of the offence. If her Honour's comments were intended to convey that it was necessary for her to be satisfied that there had been a causation of injury which was either deliberate or reckless, then her Honour was clearly in error, and ground 1 will be made out.
The respondent's counsel submits that ground 1 is based on a literal reading of her Honour's comments. It is submitted that if these comments are viewed in the context of other comments made by the magistrate and the case generally, they are capable of a different interpretation. Mr Kitto submits that the context is informed by the following matters:
· The particulars of the count alleged that the assault was constituted by the respondent grabbing the complainant's arm and wrenching her fingers apart. Her evidence did not contain these allegations. The evidence of application of force was grabbing her keys and snatching them away while she was holding on to them. This was capable of constituting an assault but was a different allegation to that alleged in the particulars of the count.
· The hearing proceeded on a somewhat confused and unsatisfactory basis. The respondent had initially pleaded guilty to count 1, but, on the day of the hearing, applied for and was granted leave to withdraw the plea of guilty and substitute a plea of not guilty. The respondent was unrepresented, but having regard to the provisions of s 8A of the Evidence (Children and Special Witnesses) Act 2001, he was unable to cross-examine the complainant. Accordingly, it seems that the court had made an order requiring the Legal Aid Commission to provide representation for the purpose of cross-examination. Counsel from the Legal Aid Commission conducted the cross-examination of the complainant, but did not take any other part in the hearing. Accordingly, for the majority of the hearing, the respondent was unrepresented.
· It seems that the change of plea caught the prosecutor by surprise. There was a lengthy discussion between the prosecutor and the magistrate at the commencement of the case in which the prosecutor asserted that as a result of the acts alleged in respect of count 1, the complainant had suffered "significant injuries" which included a broken knuckle. The prosecutor indicated that she did not have medical evidence available, although there was a suggestion that she intended to tender a medical report. In the ultimate event, a report was not tendered. Counsel for the respondent submits that, from the outset, the prosecution was asserting injuries, not as an element of the assault, but as corroborative evidence of the fact that there had been an assault. In other words, the magistrate's attention was directed to the argument that the injuries asserted by the complainant provided some evidence in support of her allegations with respect to the acts which constituted the assault.
· The complainant was an enrolled nurse. In the course of her evidence, she asserted that after the respondent had grabbed the keys and attempted to pull them from her hand, she could feel that her finger was broken and actually said to him, "You've broken my fingers." Mr Kitto submits that this is another example of the role that the alleged injuries played in the complainant's narrative of the relevant events, and their significance in terms of the factual determination required of the magistrate.
· I have already referred to the respondent's version of the events of 19 May, as described in the police interview. He agreed that the following day, the complainant was asserting that she had suffered injury to her fingers in that incident. He denied that there had been an incident of the nature described by the complainant, either on that day or at any other time, and denied that she had suffered injuries to her fingers in the manner alleged by her. Accordingly, it was common ground on the competing versions that the complainant was, at the least, complaining of injuries to her fingers as a result of an incident on 19 May, but there was a clear dispute as to the nature of that incident. In cross-examination, the complainant agreed that there had been an incident of the nature described by the respondent in his interview, but disputed that that incident had occurred on 19 May and that she had injured her fingers as a result of that incident. The manner in which the injuries had been caused was hence a crucial element of the competing versions, and hence fundamental to the factual determination.
Mr Kitto submits that when the magistrate's comments are read in context, her reference to not being "satisfied he deliberately caused those injuries" is simply a reference to her factual assessment of the competing versions. Mr Kitto submits that it should not be read as her Honour concluding that she must, as a matter of law, be satisfied of the causation of injury.
There is considerable force in Mr Kitto's submissions. However, there are two fundamental difficulties with the interpretation of her Honour's comments for which he contends. Firstly, the proposition that her Honour was attempting to convey a conclusion that she was not satisfied beyond reasonable doubt that the complainant's version explained the injuries and, hence, was accurate, is directly inconsistent with her introductory comment that there are two "totally competing versions of events", and then "… in any event, even if I accepted wholly her version of events ...". It is clear that her Honour is assessing whether, on acceptance of the complainant's version, the prosecution has established the offence. On the complainant's version, there would seem to have been a deliberate application of force by snatching the keys away from her hand. On that factual version, the offence is complete. The point being made by the magistrate seems to be that the respondent did not intend this application of force to cause injury. If so, the only reason that the magistrate can have had for making that observation, is an incorrect understanding that it was necessary to establish the deliberate or subjective reckless causation of the injuries in order to establish the offence. For the reasons already explained, this amounts to an error of law.
Secondly, the magistrate did not go on to resolve the factual issue as to whether she was satisfied beyond reasonable doubt that the complainant had given an accurate version of the relevant events. If her Honour was left in reasonable doubt as to which version was accurate, then she would have been obliged to find that the complaint had not been proved. However, there is no evidence that she considered or resolved this fundamental question. In fact, her Honour makes the point further in the reasons, "I don't need to make a finding as to whether it was at Trevallyn or at the carport." This seems to be a clear reference to the dispute between the competing versions. Her Honour could only have concluded that it was not necessary for her to make a factual finding in that regard, if she was of the view that as a matter of law, even if she accepted the complainant's version, the offence was not established. For the reasons already given, this conclusion was erroneous.
This analysis would seem to resolve ground 1 in favour of the applicant. In any event, even if there was doubt about that ground, ground 2 must have merit. In Robinson v Chatters [2010] TASSC 66, Wood J noted that it is a fundamental requirement of a judicial officer's obligation to provide reasons for a decision that the reasons expose the pathway of reasoning which has led to the result. In that case, her Honour was dealing with the adequacy of reasons for dismissing a complaint in respect of a finding of not guilty. Her Honour said: "The reasons must provide the parties and the appeal court with an understanding of why the magistrate or judge was left with a reasonable doubt. The prosecution is entitled to know why it has lost."
In this case, it is impossible to identify the pathway of reasoning which has led the learned magistrate to dismiss the complaint. Taking Mr Kitto's submissions at their highest, the question remains open as to whether her Honour has misapprehended the legal elements of the offence. If it was concluded that she has not done so, then it is impossible to understand her decision in the light of the competing versions. There appears to have been no resolution of the underlying factual basis of the determination. Even if the decision was simply that she could not be satisfied that she had received an accurate version of events from the complainant, then that conclusion neither clearly appears from her reasons, nor is the basis of that conclusion explained, even at the most fundamental level. I am therefore not satisfied that her Honour has provided adequate reasons for her decision to dismiss the complaint.
It follows that both grounds 1 and 2 have been made out. That conclusion is sufficient to dispose of the motion. Having regard to my intended disposition of the matter, it is neither necessary nor appropriate to consider ground 3.
Disposition
Counsel for each party made submissions as to the appropriate disposition of the case in the event that the motion is upheld. Counsel for the applicant submitted that it would be appropriate to quash the verdict of not guilty and substitute a verdict of guilty. Counsel for the respondent submitted that the appropriate course would simply be to remit the matter to the learned magistrate to provide her Honour with an opportunity to provide further and better reasons for her decision.
I am not satisfied that either suggested disposition is appropriate. It is not appropriate to substitute a verdict of guilty, because the question of the resolution of the facts remains unresolved. Further, there is the problem that it does not appear that the magistrate provided the unrepresented applicant with an opportunity to give or adduce evidence. It may well be that had the respondent been provided with this opportunity, he may have adduced evidence, which may have affected the outcome of the case.
The remitter of the matter to the magistrate to provide further reasons, is authorised by s 110(2A) of the Justices Act 1959, but only "If the court considers that the reasons given for making the order under review are insufficient …". If this were the only difficulty with the decision, then it may well be an appropriate disposition of the case. The respondent should not be subjected to a second hearing, where the prosecution would be in a position to adduce further evidence, unless the interests of justice require that this take place. There is an element of double jeopardy if the prosecution is provided with an opportunity to re-present its case. However, in the circumstances of this case, I am not satisfied that remitter for further reasons is an available option or in the interests of justice and fair to both parties. As the case currently stands, there are fundamental factual issues which remain unresolved. The resolution of these issues is beyond the ambit of s 110(2A). There is also the concern that any such determination by the same magistrate might be seen as affected by prejudgment made on the basis of an erroneous view of the legal elements of the offence. Further, the process of the hearing has miscarried in any event because the magistrate has made a decision without providing the respondent with an opportunity to give or adduce evidence.
In all of the circumstances, I am satisfied that the appropriate course is to set aside her Honour's findings and orders and remit this charge for hearing and determination by another magistrate.
Accordingly, the formal orders of the Court are as follows:
1The motion to review is upheld.
2The order made by the magistrate on 18 July 2017 whereby count 1 on complaint 33968/16 was dismissed, is set aside.
3The said count is remitted to the Magistrates Court to be retried by a magistrate other than Magistrate Cure.
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