Brown v Police - [2021] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BROWN v POLICE
[2021] SASC 43
Judgment of the Honourable Justice Lovell
23 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
The appellant was convicted of one count of basic assault following a trial in the Magistrates Court. The appellant gave evidence at the trial; he was the only witness for the defence case and the Magistrate made adverse credibility findings against him. On appeal, the appellant sought an order setting aside the guilty verdict on the basis that the verdict was not supported by the evidence as the Magistrate had reversed the onus of proof generally and particularly in relation to the issue of self-defence. The appellant further complained that the Magistrate failed to provide adequate reasons for her decision.
Held, dismissing the appeal:
1. No error has been established in the Magistrate's approach.
Criminal Law Consolidation Act 1935 (SA) s 20; Magistrates Court Act 1991 (SA) s 42, referred to.
Fox v Percy (2003) 214 CLR 118; Taylor v Hayes (1990) 53 SASR 282, considered.

BROWN v POLICE
[2021] SASC 43

Magistrates Appeal: Criminal
LOVELL J:
Background

Mr Baum (“the complainant”) was the manager of the Levi Caravan Park (“the Park”). The appellant, who was a resident at the Park, was charged with assaulting the complainant on 5 July 2018.
The appellant’s friend, Mr Salty, regularly attended the Park and used the facilities. He did not pay a visitor’s fee and this caused the complainant to discuss the issue with the appellant prior to 5 July 2018. On the morning of the alleged assault, 5 July 2018, the complainant approached the appellant having seen Mr Salty arrive at the Park. A conversation occurred between the appellant and the complainant at the door of the appellant’s cabin. The appellant denied knowing Mr Salty’s whereabouts. The complainant then approached the shower block facility where Mr Salty was having a shower. The complainant waited for Mr Salty to finish his shower before speaking to him about his use of the facilities. The prosecution alleged that the appellant followed the complainant to the shower block and confronted him.
Inside the shower block, the appellant was alleged to have grabbed the complainant, and to have yelled words “You fucking dog. You’re filthy, dirty, all your staff hate you” and “take your glasses off and we’ll sort this out like fucking men”. The appellant was alleged to have then grabbed the complainant’s shirt collar from behind as the complainant attempted to exit the shower block. Outside the shower block, the prosecution alleged that the appellant shouted words to the effect of “fight like a man”. The appellant pushed the complainant against the external brick wall to the shower block, causing the complainant to hit his head against the wall approximately three times. The prosecution alleged that the appellant attempted to punch the complainant in the face approximately 10 to 12 times, although both the complainant and Mr Salty attempted to restrain the appellant by grabbing his arms. The complainant broke free of the appellant’s grip and returned to the Park’s office, where he contacted the police.
The appellant did not follow the complainant; however, he was observed by a Ms Crase (the assistant manager of the Park) leaving the shower block. The appellant and Mr Salty left the caravan park shortly after in Mr Salty’s van.
A few days after the alleged assault, the appellant sent an email to the Park. The email included allegations against the complainant, namely that the complainant had punched the appellant in the face causing an injury to his lip. Attached to the email was an undated photograph of the appellant’s face, pulling his lip down and demonstrating what may have been a bruise or spots of blood on the inside of his lip. In the email, the appellant stated that he had reported the complainant to the Human Rights Commission. The complainant later received several emails from the Human Rights Commission on behalf of the appellant. The appellant was arrested in relation to the alleged assault on 14 July 2018.
The trial
The appellant pleaded not guilty to the charge and the matter proceeded to trial. Important to the appellant’s case was his allegation that, prior to the alleged assault at the shower block, the complainant had struck him in the face at the door of his cabin (“the Cabin 6 altercation”). This was said to have occurred approximately 17 minutes before the confrontation at the shower block.
While there was some common ground about events at the shower block, the appellant denied saying the words “fight like a man”, and he denied striking the complainant either inside or outside the shower block. He admitted grabbing the complainant but said he only did so as he was fearful that the complainant was going to strike him again. The appellant said that he genuinely feared for his safety at the shower block, such that his actions were in self-defence. The appellant accepted that he had a bad memory and “needed to put things in writing”.
The respondent called five witnesses: the complainant, Ms Crase, and three police officers involved in the investigation of the alleged assault. The appellant himself gave evidence; he was the only witness for the defence case. Notably, Mr Salty was not called by either party to give evidence apparently due to his unwillingness to participate in the legal proceedings. One exhibit was tendered by the respondent through the complainant – the photograph of the appellant’s face that was attached to the appellant’s email to the Park (“Exhibit P1”). No other evidence was tendered.
The approach on appeal
The appeal is governed by s 42 of the Magistrates Court Act 1991 (SA). The appeal is therefore by way of rehearing but with power to receive further evidence on appeal. The appellate court must conduct a real review of the evidence and the judicial officer’s findings and reasons. On issues involving the assessment of the truthfulness, credibility and reliability of a witness, the appellate court must make due allowance for the advantage held by the judicial officer in seeing and hearing the witnesses. However, the appellate courts are not excused from the tasks of weighing conflicting evidence and drawing their own inferences and conclusions. The fact that a judicial officer may have reached their conclusion by an acceptance of a witness’s evidence does not prevent the appellate court carrying out its statutory function. If the appellate court concludes that the judgment is wrong it must overrule it.[1]
[1] Fox v Percy (2003) 214 CLR 118; Taylor v Hayes (1990) 53 SASR 282.
Grounds of appeal
The appellant appeals on two grounds:
1.the finding of guilt was not supported by the evidence;
2.the Magistrate reversed the onus of proof generally and particularly in relation to the issue of self-defence.
The appellant submitted that Ground 1 was dependent upon the success of Ground 2. That is by reversing the onus of proof the Magistrate did not, and on the evidence, could not, exclude self-defence at least as a reasonable possibility. In that sense, it was submitted, the evidence did not support the finding of guilt.
Magistrate’s findings
The Magistrate, in her detailed reasons, found the appellant guilty of basic assault against the complainant, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). She found that an assault had occurred by the appellant grabbing the complainant inside and outside the shower block against the complainant’s will, attempting to swing a clenched fist at the complainant, and pushing the complainant against the wall causing his head to be hit three times.[2]
[2] Police v Brown (Magistrates Court of South Australia, Magistrate Kossiavelos, 15 June 2020) at [102] (“Reasons”).
The Magistrate accepted the evidence of the respondent’s witnesses and considered each of them to be honest and reliable.[3] The Magistrate found the appellant’s evidence to be unreliable. The Magistrate found that the appellant was not an impressive witness, that he frequently did not remember or recall events, and the little recollection he did have was unreliable.[4]
[3] Reasons at [54], [57]–[60].
[4] Reasons at [55].
Specifically, the Magistrate found that the appellant’s explanations for what occurred both inside and outside the shower block were implausible. The Magistrate explained in her reasons why she considered the appellant’s evidence to be implausible. Furthermore, the Magistrate concluded that the Cabin 6 altercation as described by the appellant did not occur.[5]
[5] Reasons at [103].
The Magistrate, despite noting that defence counsel had not expressly raised the question of self-defence during the trial, resolved the issue of self-defence. Apart from finding that the Cabin 6 altercation had not occurred, the Magistrate, in any event, considered the question of self-defence if such an incident had occurred. She considered that even if such an incident had occurred the appellant’s evidence about what occurred later at the shower block was simply unbelievable. Specifically, the Magistrate found that the complainant did nothing but protect himself from the aggression of the appellant. The Magistrate found the there was no justification or excuse in the force the appellant applied to the complainant.
The Magistrate considered little weight could be given to Exhibit P1: it was undated and it was unclear as to what it depicted.[6]
[6] Reasons at [105].
The relevance of Exhibit P1
While self-defence was raised during the appellant’s evidence, the issue was dependent upon the Magistrate accepting, at least as a reasonable possibility, that the appellant was struck by the complainant when they were at the appellant’s cabin. This alleged strike was the foundation for the appellant stating that he was fearful that the complainant was going to strike him “again”. Whether the appellant remained in fear at the shower block because of the earlier incident or he simply considered he may be struck again, both states of mind depend upon a finding that the Cabin 6 altercation had in fact occurred.
Relevant to the Magistrate’s consideration was, in the appellant’s submission, Exhibit P1. The appellant complained on appeal that the Magistrate failed to give proper weight to the photograph, Exhibit P1. It is necessary to discuss this photograph in more detail.
Exhibit P1 was a photograph of what was said to be blood on the appellant’s lip. The photograph was alleged to have been taken by a café owner a short time after the appellant left the Park with Mr Salty. Despite it being a photograph sent by the appellant to the complainant, the prosecution tendered it as part of its case. It was debated on appeal whether the prosecution conceded that Exhibit P1 depicted blood on the appellant’s lip. The appellant contended the prosecutor, at trial, conceded that point. The appellant pointed to prosecution’s opening address at trial:
On 17 July 2019, an email was sent to the caravan park’s email address by the defendant with a photo attached of the defendant’s face with his bottom lip pulled forward and a small amount of visible blood.
The appellant also referred to the exchange between the Magistrate and the prosecution during closing addresses:
Her Honour: So I’ve only got his evidence that that is – so you’re conceding that that is blood from his lips.
Mr Milburn: In the absence of cross-examining him, my understanding is his evidence stands.
The appellant submitted that it effectively became part of the prosecution case that the photograph depicted blood on the appellant’s lip.
The respondent contended that there was no concession by the prosecution at trial; the prosecutor had said that in absence of cross-examination, the appellant’s evidence stands. The respondent submitted that the only evidence given by the appellant in relation to Exhibit P1 was that it depicted a photograph of his mouth and that the photograph was taken approximately 10 minutes after the appellant left the Park; the appellant said nothing about it depicting blood on his lip.
At trial, the appellant gave the following evidence:
… I remember when we left the park Mark Salty said ‘you’ve got blood on your lips’. I said to him ‘that’s where he punched me’. I went to the café at North Park shops where I had an account and I asked the bloke who owns it to take a photo of the cut so that photo would have been taken about 10 minutes after it happened.
The following exchange then took place in examination-in-chief:
Q:    I think you said you went to the Northpark Shopping Centre
A:      We went to the Northpark shops, yes
Q:      You had a photograph taken of your mouth
A:      Yes
Q:    Did you subsequently send any emails to the caravan park
A:    Yes ‘cos I’ve got a very bad memory. …
In cross-examination, the appellant was asked questions to the effect of how the photograph was taken (on a phone), how he came to possess the photograph (it was emailed to him), and the timing of the photograph’s creation (at the shops, after leaving the Park).
The appellant submitted that the practical effect of Exhibit P1 is that it is consistent with the appellant’s oral evidence. However, it is not independent evidence that supports his version of events. Its relevance depended on the Magistrate accepting that the injury was sustained during the Cabin 6 altercation, not at some time during the incident at the shower block. The appellant submitted that the Magistrate erred in giving Exhibit P1 little weight and this error affected her assessment of the likelihood of the appellant having been struck by the complainant in the Cabin 6 altercation.
The respondent maintained that the Magistrate did not err in her assessment of weight attributed to Exhibit P1. The respondent contended that the Magistrate did give Exhibit P1 weight, just that it was given little weight, and, given the evidence, or lack of it, this was appropriate.
The Magistrate was entitled to draw her own conclusions as to what Exhibit P1 depicted. Nonetheless, the respondent submits any further weight attributed to Exhibit P1 would not have changed the ultimate outcome that an assault had been made out on the evidence.
Consideration
As can be seen from the above, the appellant’s evidence about the photograph is self-serving. Mr Salty did not give evidence. The only evidence about the photograph and its origin came from the appellant himself. Even if there was blood on the lip of the appellant, the altercation at the shower block could account for its presence. The photograph was of very limited assistance in the case and the Magistrate was correct to give it little weight.
Not only had the Magistrate rejected the basis for self-defence, she also rejected the appellant’s evidence about what had occurred at the shower block. To put that another way, not only was there no basis for self-defence, the Magistrate specifically found that the appellant attacked the complainant. The Magistrate clearly rejected the appellant’s version of events even as a reasonable possibility.
The appellant submitted that the Magistrate, in making the remark in her reasons that she did not accept that the appellant’s actions were in self-defence, reversed the onus of proof. Taken in isolation, the finding is not expressed correctly. However, the Magistrate’s reasons need to be read in their entirety. The Magistrate was clearly aware, from her remarks and findings made during her reasons, that the prosecution had to prove beyond a reasonable doubt that the assault occurred without lawful excuse. The Magistrate considered all of the evidence that related to self-defence and totally rejected the appellant’s evidence. That is, the Magistrate found that it was not a reasonable possibility that the appellant’s version of events was correct. The Magistrate found that the prosecution had excluded the issue of self-defence beyond a reasonable doubt.
The Magistrate did not ignore Exhibit P1. In the circumstances, she only gave it little weight. No error has been demonstrated in the Magistrate’s approach.
Inadequate reasons
The appellant, as part of his criticism of the Magistrate’s reasons, submitted that the reasons were inadequate. I reject that submission. The Magistrate carefully considered the evidence and the arguments of counsel. The Magistrate explained, in some detail, the basis for her accepting the respondent’s witnesses and her rejecting the appellant’s evidence. No error has been demonstrated.
I would dismiss both grounds of appeal.
Order
1.The appeal is dismissed.