Bowden v Hales - [2001] NTSC 96

Bowden v Hales [2001] NTSC 96
PARTIES:JAMES ROBERT BOWDEN
and

PETER WILLIAM HALES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 69 OF 2000 (20001664)
DELIVERED:  2 November 2001
HEARING DATES:  15 October 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Appellant:M Little
Respondent:  G Dooley
Solicitors:
Appellant:M J Little
Respondent:  Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No JA 69 of 2000 (20001664)
Bowden v Hales [2001] NTSC 96

BETWEEN:
JAMES ROBERT BOWDEN

Appellant
and:
PETER WILLIAM HALES

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 2 November 2001)
MILDREN J:

The appellant was convicted of one count of aggravated assault, the circumstance of aggravation being that he, being an adult, assaulted a child under the age of 16 years. The learned Magistrate imposed a partly suspended term of imprisonment. The appellant appeals against his conviction on a number of grounds set out in the notice of appeal. However that may be, there is really only one ground of appeal, the other grounds being particulars of that ground, viz., that the finding of guilt is unsafe and unsatisfactory.
The learned Magistrate's findings of fact are as follows. On the evening of 19 September 2000, a 13 year old boy called Aaron, an older boy called Tim and another boy, attended at the appellant's home where they stole some reloaded bullets belonging to the appellant. That evening, Aaron's stepfather (RJ) became aware of the theft and told Aaron to get the stolen bullets and the two other boys involved the following day and that he would take the boys and the bullets to the appellant, return the bullets and the boys would apologise. Instead of doing this, on the following day Aaron went to the appellant's caravan alone. He had with him the bullets in a bag, intending to return them to the appellant. The appellant lived in a caravan at a Darwin caravan park. Aaron entered the annex to the caravan and knocked on the door. The appellant answered the door. Aaron said: "I brought your bullets back." The appellant said: "Why did you bring the bullets back?" The appellant was angry and started speaking to Aaron in a loud and aggressive voice. He then punched Aaron twice to the face, knocking him to the ground. The appellant then went down next to him and banged Aaron's head on to the ground. The floor to the annex was concrete with carpet in the area. The appellant picked up a piece of concrete and tried to hit Aaron's hand with it but missed. There are no specific findings about what happened thereafter, but according to Aaron's evidence, which the learned Magistrate accepted, the appellant then picked him up and pushed him out of the annex. He then ran away, bleeding from the nose and went to the amenities block near his home to wash. According to RJ, whose evidence the learned Magistrate also accepted, he saw Aaron and told him to come inside and tell him what had happened. RJ took some photographs of Aaron's injuries and then reported the matter to the police. After attending at the police station, Aaron was taken to the hospital where he was medically examined.
The appellant was subsequently interviewed by police who conducted a formal record of interview which was tape-recorded. The appellant also gave evidence at his trial. The appellant's version was that he was having a cup of coffee inside his caravan when he heard a noise in the annex. He opened the door and saw Aaron standing in front of the doorway holding a backpack which he said was very heavy. He asked Aaron if that was his ammo. Aaron did not answer him. He stepped down onto the step and grabbed the bag with his right hand. He asked Aaron several times if this was his ammunition. Aaron did not answer initially. Eventually he stammered, "Ammo". The bag was then lowered to the ground. He grabbed one of Aaron's fingers in this process. After that, he grabbed him by the ear between his thumb and forefinger, spun him around and started to push him towards the doorway. Aaron started running and as he ran out, he grabbed the annex pole with his right hand. The appellant then heard Aaron crash into a fence outside. The learned Magistrate rejected the appellant's evidence and accepted the evidence of Aaron and his stepfather.
A difficulty the appellant faces in this appeal is that even on his own version of the facts, he unlawfully assaulted Aaron and the assault was aggravated by the fact that Aaron was under sixteen years of age. Ms Little, counsel for the appellant, submitted that there was no assault as the force used "was used for and was reasonably necessary for the common intercourse of life": see s187 of the Criminal Code. I reject this submission. There are no authorities of which I am aware as to the meaning to be given to this expression, but clearly it contemplates such activities as touching someone on the shoulder to get their attention and other minor applications of force which are common place and harmless and accepted by the community as such. Whether it goes much beyond this is unnecessary to decide. I am clearly of the opinion that the grabbing of the boy by the finger and the ear and spinning him around, went beyond that force which was reasonably necessary for the common intercourse of life in the circumstances of this case.
Alternatively, it was submitted that it was open to the learned Magistrate to find that the assault was excused on the ground of provocation. The difficulty with this submission is the inability to find any wrongful act or insult committed by Aaron of such a nature as to be likely to deprive an ordinary person of the power of self-control. At the time Aaron came to the appellant's caravan, the appellant was unaware that his ammunition was missing and the bag had not been opened. Even if he thought that the ammunition was his, it was obvious and it ought to have been obvious to him, that the ammunition was being returned. The appellant's explanation for using force was that the boy would not answer him when he asked him whether this was his ammunition. Whatever else may be said about that, this is hardly sufficient cause to be likely to deprive an ordinary person of the power of self-control. In any event, there is no evidence that the appellant was deprived of his self-control. In these circumstances, the appeal against conviction must be dismissed.
When this was pointed out to Ms Little, the notice of appeal was amended by consent to include an appeal against sentence on the ground that the learned Stipendiary Magistrate erred in that the sentence imposed was based on erroneous findings of fact relating to the manner and extent of the assault. The error alleged was that the findings made were unsafe and unsatisfactory for the same reasons as were advanced in relation to the appeal against conviction.
I am prepared to assume that this is a proper basis for an appeal against sentence without deciding that question. In my opinion, this is a classic case where the learned Magistrate based his findings on the credibility of the witnesses. It is clear that his Worship was impressed by the evidence of Aaron and his stepfather and was not impressed by the evidence of the appellant. Nevertheless, it is clear that even in such cases, an appellate court may interfere if there has been a miscarriage of justice, or if the evidence upon the record itself
...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... (M v The Queen (1994) 181 CLR 487 at 494).
I am prepared to assume that the same principles apply to facts found in relation to sentence.
Having reviewed the evidence, I am not satisfied that the evidence for the prosecution displayed discrepancies or inadequacies which raise any significant possibility that his Worship's findings were in error. The first point raised related to the failure of the prosecutor to tender the photographs taken by RJ. This was potentially important evidence as they may have tended to confirm or rebut the evidence given as to the injuries sustained by Aaron as a result of the assault, a factor which clearly influenced his Worship in accepting Aaron's account as to the nature of the assault. It is apparent from the transcript, that the prosecutor had not been briefed as to the existence of the photographs, the evidence as to which was elicited by some questions directed to RJ by the learned Magistrate. RJ said that the photographs had not yet been developed. The learned Magistrate asked the prosecutor whether he intended to get the photographs developed and to make them available to counsel for the appellant. His Worship adjourned the hearing for the prosecutor to obtain instructions. When the hearing resumed, the prosecutor informed his Worship that it came down to a financial issue as RJ was going to Bali in two months' time and intended getting the film developed there because it was cheaper! Clearly any cost for developing the film should have been borne by the prosecution; however, the prosecutor said that he proposed to proceed without them. No submission or objection was raised by counsel for the appellant, who appears to have been content to let the matter proceed in that fashion.
It is well established that it is a matter entirely for the prosecutor as to which witnesses he decides to call: see The Queen v Apostilides (1984) 154 CLR 563 and I consider that the same discretion rests in relation to any evidence which the Crown may call or seek to tender, whether it be the evidence of a witness or any other kind of evidence. In Apostilides, supra, at 575, the Court said that a decision not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: see also the comments of the Court at pps 577-8. In this case, I am satisfied that there was no miscarriage of justice. Counsel for the appellant had the opportunity to consider the circumstances and to take instructions. I infer from the lack of any objection or protest, that counsel for the appellant was content to allow the case to proceed without demanding to see the photographs. Even now, it is not suggested that the photographs would cast any doubt upon the evidence of Aaron or his stepfather. If the photographs have been developed since the hearing, counsel for the appellant has not sought to examine them. In these circumstances, I am not satisfied that there has been any miscarriage of justice.
Next it was suggested that the prosecutor ought to have called a neighbour whom Aaron said heard him screaming from within the caravan. There is no evidence that the prosecuting authorities knew about this possible witness before the trial. There is no evidence as to whom this person might be, or whether or not anyone in fact heard Aaron's screams. This ground is not made out.
Next it was suggested that the prosecutor, when cross-examing the appellant, failed to put to the appellant every aspect of Aaron's evidence as to the nature of the assault. It was clear from the appellant's evidence that he denied that the assault occurred in the manner alleged. The rule known as the rule in Browne v Dunn did not require this in the circumstances of this case. The point was raised before the learned Magistrate who correctly disposed of it. The prosecutor put to the appellant in cross-examination, that he had punched Aaron in the face and attempted to slam a lump of concrete on his fingers. The appellant denied these allegations. It is obvious that the prosecutor, not only from these questions but from the whole tenor of the cross-examination, was challenging the appellant's evidence. It is not put that, because of the nature of the cross-examination, the appellant or his counsel was mislead in any way and as a consequence failed to call evidence in support of the appellant's case. In fact the appellant did call witnesses in support of his case. The situation resembles example (3) in the judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1982-83) 44 ALR 607 at 631. There is no substance to this submission.
Ms Little next pointed to some supposed deficiencies in the evidence led by the prosecution. It is not necessary to discuss them in detail. The evidence referred to does not, in my opinion, cast any doubt upon whether or not the conclusions reached by the learned Magistrate were justified.
Finally, Ms Little submitted that the approach taken by the learned Magistrate in deciding to reject the appellant's evidence because of inconsistencies between his evidence at trial and what he told the police in the record of interview was not warranted. There is no substance to this submission. The conclusions reached by the learned Magistrate were both open to him and justified.
In the circumstances, the appeal must be dismissed.
--------------------------------------