BROWN v Police - [2016] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BROWN v POLICE
[2016] SASC 65
Judgment of The Honourable Justice Kelly
18 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal against conviction. The appellant was convicted after a trial by judge alone of one count of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) against his partner. The circumstances of the offending were that the appellant grabbed the complainant by the hair and struck her to the head five or six times, and also pushed her in the kitchen of his home. The issue at trial was self-defence. The complainant has a history of mental illness which was significant on the defence case.
The appellant appeals on a number of grounds relating to three broad complaints: first, that the Magistrate failed to give a balanced and fair assessment to the whole of the evidence, including by giving insufficient weight to the evidence of some witnesses; second, that the Magistrate erred in her approach to the evidence concerning the complainant’s mental health and its relevance to the veracity of her evidence; and third, the Magistrate accorded insufficient weight to the evidence of the complainant’s ex-husband about his relationship with the complainant and erred in disallowing questions about past violence in his relationship with the complainant. It was said that by reason of these errors the verdict is unreasonable and unsafe and has given rise to a miscarriage of justice.
Whether the Magistrate failed to give a balanced and fair assessment to the whole of the evidence. Whether the Magistrate made errors in her approach to the evidence concerning the complainant’s mental health. Whether the Magistrate accorded insufficient weight to the evidence of the complainant’s ex-husband about prior instances of violence in the relationship.
Held (allowing the appeal):
1.       The evidence of the complainant’s ex-husband about his relationship with the complainant was of potential relevance in the Magistrate’s assessment as to which of them was the initial aggressor in the confrontation, the assessment of the appellant’s appreciation of any danger he said he faced from the complainant, and also generally to the reliability and credibility of the appellant and the complainant.
2.       It cannot be said that the Magistrate would have inevitably convicted the appellant, had the appellant’s counsel been permitted to elicit the evidence she sought from the complainant’s ex-husband.
3.       In all of the circumstances, the wrongful disallowance by the Magistrate of the questioning of the complainant’s ex-husband has led to the appellant being denied of a chance of acquittal which was fairly open to him.
4.       The conviction is quashed.
5.       The matter is remitted to the Magistrates Court for retrial.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Mental Health Act 2009 (SA), referred to.

BROWN v POLICE
[2016] SASC 65
Magistrates Appeal: Criminal
KELLY J.
Introduction

This is an appeal against conviction. On 21 January 2016 the appellant was convicted in the Adelaide Magistrates Court of one count of assault against his partner, Ms Natasha Conboy, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). It was not disputed at trial that the appellant had grabbed the complainant by the hair, and struck her to the head five or six times, and also pushed her. The issue at trial was whether the appellant had acted in self-defence.
The appellant filed 12 grounds of appeal arising from errors said to have been made by the trial Magistrate. It became apparent during argument on appeal that the appellant’s principal complaints can be distilled to three main matters. The first is the complaint that the Magistrate failed to give a balanced and fair assessment to the whole of the evidence, including by failing to give any or sufficient weight to the evidence of the character witnesses, to the evidence of the appellant’s nine year old daughter, to certain aspects of the appellant’s evidence, or to the evidence of the complainant’s former husband, Mr Conboy (grounds 2, 3, 4 and 8). The second is that the Magistrate made errors in her approach to the evidence concerning the complainant’s mental health and its relevance to the likelihood of the complainant’s version of events being true (grounds 1 and 7). The third is that the Magistrate accorded insufficient weight to the evidence of Mr Conboy about his relationship with the complainant, and in particular erred in disallowing questions to be put to him by the appellant’s counsel about alleged prior instances of violence between himself and the complainant (grounds 6 and 9).
The appellant submits that by reason of the cumulative failures complained of the verdict is unreasonable and unsafe and has given rise to a miscarriage of justice.
Background
The background of the offending is as follows.
The appellant and the complainant were in a relationship and had been for about 12 months prior to the altercation on 15 November 2014. Prior to that relationship the complainant had been married to Mr Glen Conboy, with whom she has two children. The appellant has a daughter from a prior marriage, born in 2005. She was 9 years old at the time of the alleged offending. It was not disputed that the cause of breakdown of the appellant’s marriage was infidelity by the appellant’s wife, which fact the appellant concealed from his daughter.
The appellant and complainant held different attitudes towards disciplining their children, which was an ongoing source of aggravation and disagreement in their relationship.
The assault
On 15 November 2014 the appellant, his daughter, and the complainant shared a meal together at the appellant’s home. After dinner the appellant’s daughter went to the lounge room in the front part of the house and the appellant and complainant stayed in the rear extension area. There was a door separating the rear extension area of the house from a passageway which led to the front lounge room. The appellant and complainant continued a discussion about discipline and honesty when talking to children and in particular the complainant pointed to the appellant’s failure to explain to his daughter that her mother was spending time with another man that evening. The discussion became heated.
It was the complainant’s account of the alleged offending that she decided to leave and moved towards the door so that she could collect her handbag. She said words to the effect of “[m]aybe your daughter should know some of the truths of the world”. When she was about two metres from the door, the appellant came up behind her, grabbed her by the hair and said “if you ever tell my daughter that I will kill you”. He spun her around and punched her on both sides of the face with closed fists, and also on her arms and head as she cowered on the floor. She recalls the appellant saying words to the effect of “don’t you dare go out there”.
The complainant denied that she was increasingly moody during the day, and that her mood had worsened as she consumed more alcohol. She denied being irrational, argumentative, pacing in an angry state, and aggressively entering the appellant’s personal space and shouting in his face. She rejected the suggestion that the appellant moved between her and the door, and that she pushed and shoved and wrestled with him. It was her account that she acted defensively and tried to protect herself, screamed and said “no”. The complainant was clear that she never left the rear extension area, and that the door to the front section of the house remained closed during the incident.
The appellant participated in a record of interview after his arrest on the evening of 15 November 2014. It was his account to police that after dinner the complainant had continued to distress him by talking about his daughter’s habits and his parenting. She said that she was going to tell the appellant’s daughter “how big a slut her mother is” and “she needs to know the truth”. The complainant then went through the door to the front section of the house and the appellant thought that the complainant was going to his daughter in the living room. The appellant then grabbed the complainant by the hair, threw her back into rear extension area and pushed her on to the table. The complainant became verbally aggressive, pushed him, and tried to leave to go tell the appellant’s daughter about her mother. The appellant said that at this point he “snapped” and became violent. He acknowledged that he punched the complainant up to five times around the ear, slammed up into her, she dropped to the ground and he slammed into her face. She tripped over and fell to the floor and at this point the appellant regained control of his behaviour. During the record of interview he said:
And you know, like the whole thing was all coming around, don’t threaten my daughter. You know, no-one threatens my daughter, I don’t care who it is, I don’t care what level I go to, like as a father, I have a total duty to protect my daughter in any manner I have to. And that’s what I did. Was it right, was it wrong. All I can say is don’t threaten my daughter, she did.
The appellant did not assert during the record of interview that the complainant posed a physical threat to his daughter. He also maintained that he had not thought that the complainant was going to hurt him physically. He told police that the complainant was in fact “very lucky” because he had undergone major surgery on his right shoulder six months ago and his right arm therefore had limited strength, and added that “otherwise it would have been a hell of a lot worse.”
The appellant also gave evidence at trial. His evidence was that the complainant had been argumentative and her mood was worsening. She was ranting to the appellant about his failure to discipline his daughter. Her eyes were very wide, she had an angry stare, and her fists were clenched and almost shaking with rage. The complainant stepped towards the appellant with clenched fists and said “That’s it I’m going to tell [your daughter]” and grabbed him by the lower arms and started shaking and pushing him. The appellant tried to restrain the complainant but she was ranting, pushing and shoving and she broke free, pushed the appellant out of the way, went through the door and started going into the lounge room. He was worried that the complainant would be aggressive to his daughter. When the complainant was one metre into the lounge room he grabbed the top of her hair dragged her out of the lounge, pushed her head down and forced her back into the rear extension and closed the door. The complainant then attacked the appellant again. The appellant was fearful, especially with his weakened right arm, that the complainant would overpower him and use force against his daughter. Therefore he swung her around and slammed her into the corner and then punched her three times to the side of her head and once to her cheek. She dropped down and he then slammed her in the nose. His evidence was he acted in self-defence to stop her aggression and her advance towards him and his daughter.
When cross-examined about the incident the appellant agreed that he could have said “leave if you are going to continue on like that” and also that the complainant’s handbag could have been in the front section of the house. He explained that he closed the door and moved between the complainant and the door because she said she was going to tell the appellant’s daughter about his mother and it was at this point that she initiated the assault.
There was no direct eye witness to the physical confrontation. The appellant’s daughter gave evidence as to part of the incident which was generally supportive of the account given by the appellant. However, her evidence was neutral as to the initial confrontation and who started it.
It was not disputed that the appellant called 000 after the alleged assault. A copy of that call was tendered at the trial. In that call the appellant admits to hitting the complainant and tells the police that she was having a psychotic episode and then provides information about her mental health history. It was also not disputed that the complainant telephoned her psychiatrist and left a message on his answering machine. The complainant also called her ex-husband, Mr Conboy, who arrived five minutes later, consoled the complainant, and took her to hospital.
The appellant and the complainant differed in their evidence about the consumption of alcohol on 15 November 2014. The complainant’s evidence was that they started drinking at about 6pm. However the appellant’s evidence was that he had one or two beers and a large glass of wine before dinner, but that by 6pm the complainant had already consumed half to three quarters of a bottle of wine. Together they finished a second bottle of wine over dinner and opened a third. His evidence was that the complainant consumed almost two of the three bottles shared that night and it was normal for her to consume twice as much as him, although he admitted to consuming a quarter of a bottle of scotch himself after the offending and before the police arrived.
An affidavit of Dr Goodyear was tendered by consent at trial. Dr Goodyear treated the complainant at the Wakefield Hospital Emergency Department. He observed swelling and bruising around the complainant’s right eye socket and swelling around the knuckle on her right index finger. In addition members of the South Australian Police who attended at the Wakefield Hospital observed bruising to the complainant’s right wrist, and swelling and a lump to the rear of her head. At trial the complainant also identified other injuries to her right arm, shoulder, nose and the left side of her face that were not mentioned in Dr Goodyear’s report.
The complainant’s mental health
The complainant’s mental health was an issue at the trial. It was put to her by the appellant’s counsel, but denied, that she was having some form of mental health episode during the confrontation. Her evidence was that in fact she had never suffered from a psychotic episode.
The complainant gave evidence that that on 28 June 2012 she had been detained under the Mental Health Act 2009 (SA) because she was considered a danger to herself. On that day her ex-husband had left her, and she had set fire to the family home and thrown a brick through her ex-husband’s windscreen. She conceded that she was severely unwell on 28 June 2012 and had been for about ten days prior. The complainant pleaded guilty to arson arising from that conduct.
Prior to 28 June 2012, the complainant had also been seeing a psychiatrist for many years. She described herself as suffering a “dissociative spectrum otherwise not specified” condition in conjunction with other disorders. She conceded that one of her disorders had caused her to take on a different personality known as ‘The Controller’. Although she agreed that she had been suffering generally from a mental health disorder on 15 November 2014, she denied that she was having a mental health episode at the time of the confrontation. The complainant strongly denied that she had taken on the personality of ‘The Controller’. Her evidence was that she had not taken on ‘The Controller’ personality since before her marriage ended, and that she had never taken on ‘The Controller’ personality in the appellant’s presence.
It was also the complainant’s evidence that as a consequence of her behaviour on 28 June 2012 she had worried about what would happen to her because she had previously suffered a psychotic episode. When she left a message on Dr Bem’s answering machine on the night of the offending, the appellant overheard part of her message, in which she stated that the appellant had hit her. The complainant also gave evidence that in the message she had said that the appellant was saying that she had suffered a psychotic episode, which was untrue.
By contrast, it was the appellant’s evidence that during the altercation on 15 November 2014 the complainant had taken on the personality of ‘The Controller’ and that he had seen her take on that personality on two other prior occasions. In addition, during the 12 months prior to 15 November 2014 there had been discussions about the complainant changing her medication because it occasionally affected her mood: if there were too many negative factors in the complainant’s life she moved into one of her psychotic states, the worst of which was ‘The Controller’.
The Appeal
I do not find it necessary to traverse each and every ground of appeal individually as I have reached the conclusion that the appeal should be allowed in respect of grounds 6 and 9. My reasons follow.
Against the background of the evidence regarding the complainant’s mental health, the appellant’s counsel at trial sought to question the complainant and Mr Conboy about any history of violence between them during the course of their relationship. In cross-examination the complainant was asked whether she had on one previous occasion threatened Mr Conboy with a knife. She denied that allegation. The appellant’s counsel then also sought to cross-examine Mr Conboy about the allegation that the complainant threatened him with a knife.
What transpired at the time when the appellant’s counsel sought to pursue that line of cross-examination and the Magistrate refused permission to do so does not appear in the transcript. However, the appellant’s counsel filed an affidavit at the hearing of this appeal, the contents of which are not disputed by the prosecution. The effect of that affidavit is that the appellant’s counsel sought to question Mr Conboy along the same lines as she had cross-examined the complainant, in particular about the alleged incident with the knife but, although the Magistrate did permit a general question about whether the relationship had become volatile at times, that line of questioning was not permitted. In the end, the evidence given by Mr Conboy about that issue was that during his relationship with the complainant she became “volatile at times” which ultimately led him to separate from her.
The appellant now complains that the Magistrate was in error in disallowing questions put by counsel for the appellant to Mr Conboy about whether the complainant had ever been violent or threatened him with a knife. The appellant also complains that the Magistrate failed to give sufficient weight to the evidence of Mr Conboy that the complainant had become volatile at times and that is what ultimately led to the breakdown of their marriage.
The respondent conceded on appeal that disallowance of the questioning by the Magistrate was an error. Plainly that concession is correct. The evidence of Mr Conboy about his relationship with the complainant was of potential relevance in the Magistrate’s assessment as to which one of them was the initial aggressor in the confrontation. It was also relevant to the assessment of the appellant’s appreciation of any danger he said he faced from the complainant and, in a general way, to the reliability and credibility of the complainant.

The Magistrate found the complainant to be an impressive witness who gave an open and clear account of the events on the evening of 15 November 2014. She said she found the complainant to be a compelling witness as to the actual events which took place during the physical altercation. By contrast, the Magistrate found the appellant to have been an unconvincing witness prone to reconstruction and was plainly unimpressed by him.
The appellant gave evidence and called his daughter as well as three character witnesses, including his former spouse, to give evidence. There was no suggestion made by any witness at the trial that there had been any previous incident of violence perpetrated by the appellant on the complainant. The appellant had no previous convictions of any kind.
On appeal the respondent submitted that the evidence of Mr Conboy about occasional volatility in the relationship which ultimately led to him separating from the complainant was of little weight in assessing the complainant’s probable behaviour on the night of the incident because it was so ambiguous and because any volatile incidents occurred prior to the appellant and the complainant entering into a relationship 12 months before November 2014. However, that submission does not take into account the potential relevance of the evidence sought to be elicited from Mr Conboy which may well have resulted in his evidence being less ambiguous as to the critical issue of whether the complainant had previously initiated physical confrontations of a similar kind.
In these circumstances, the wrongful disallowance of questioning of the prosecution witness, Mr Conboy, about the circumstances which led to the breakdown of his marriage with the complainant was potentially very relevant to the Magistrate’s assessment of the reliability and veracity of both the appellant and the complainant.
Given the complainant’s mental health history and the obvious potential relevance of any previous incidents of violence between her and her former husband, I do not think it can be said that the Magistrate would inevitably have convicted the appellant, had the appellant’s counsel been permitted to elicit the evidence she sought from Mr Conboy.
Conclusion
In all of these circumstances I consider that the wrongful disallowance by the Magistrate of the questioning of Mr Conboy has led to the appellant being denied of a chance of acquittal which was fairly open to him. It follows that the conviction must be quashed and the matter remitted to the Magistrates Court for retrial.