Bryan v Dixon
[2013] WASC 226
•13 JUNE 2013
BRYAN -v- DIXON [2013] WASC 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 226 | |
| Case No: | SJA:1039/2012 | 28 FEBRUARY 2013 | |
| Coram: | HALL J | 13/06/13 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BENJAMIN GARRY PETER BRYAN JENNIFER CLARE DIXON |
Catchwords: | Criminal law Appeal against conviction Assault Multiple assaults covered by single charge Whether conviction unreasonable or incapable of being supported by the evidence Whether inconsistencies in prosecution evidence prevented a finding of guilt Turns on own facts |
Legislation: | Nil |
Case References: | Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458 Devries v Australia National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy (2003) 197 ALR 201; (2003) 214 CLR 118 Harvey v Matthews [1999] WASCA 58 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Lovell v Fullman [2011] WASC 312 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Morgan v The State of Western Australia [2011] WASCA 185 Rasoolifard v Nicol [2001] WASCA 180 SKA v The Queen [2011] HCA 13; (2011) 276 ALR 423 Smart v Albuquerque [2011] WASCA 231 The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JENNIFER CLARE DIXON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE J G MUSK
File No : PE 38264 of 2011
Catchwords:
Criminal law - Appeal against conviction - Assault - Multiple assaults covered by single charge - Whether conviction unreasonable or incapable of being supported by the evidence - Whether inconsistencies in prosecution evidence prevented a finding of guilt - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms L B Black
Respondent : Ms S Markham
Solicitors:
Appellant : Porter Scudds
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australia National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy (2003) 197 ALR 201; (2003) 214 CLR 118
Harvey v Matthews [1999] WASCA 58
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lovell v Fullman [2011] WASC 312
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morgan v The State of Western Australia [2011] WASCA 185
Rasoolifard v Nicol [2001] WASCA 180
SKA v The Queen [2011] HCA 13; (2011) 276 ALR 423
Smart v Albuquerque [2011] WASCA 231
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
(Page 3)
- HALL J:
Introduction
1 Funerals can be a tense and distressing time for any family. Sometimes, however, an event like this brings to the surface long held resentment and animosity. That was the case with the funeral of Eileen Powell.
2 On 23 August 2010 at the Utakarra Cemetery, near Geraldton, a fight broke out between members of Mrs Powell's family. Others became involved and by the time the fighting stopped several people were injured. One of those injured was Mrs Powell's son, Graham Clyde Powell. He suffered bruising and abrasions to his head and a swollen ear.
3 The appellant was charged with assaulting Graham Powell, thereby causing him bodily harm. He pleaded not guilty and the matter went to trial in the Magistrates Court on 14 and 15 March 2012. At the conclusion of the trial the magistrate found the appellant guilty. He now seeks leave to appeal against his conviction.
Grounds of appeal
4 The appellant essentially raises two issues. Firstly, whether the magistrate took into account inconsistencies in the evidence and whether, having regard to the inconsistencies, the evidence was sufficient to support a finding that the appellant was guilty of assault beyond reasonable doubt.
5 Each of the grounds was supported with detailed particulars. The grounds with their particulars are as follows:
1. The Learned Magistrate erred in making factual findings about material matters based on an acceptance of the 'prosecution version' in circumstances where she was first required to specifically accept the account of one or more prosecution witnesses and reject any inconsistent account by other witnesses (including prosecution witnesses) to make such a finding, and did not do so.
Particulars
1.1 Her Honour found that the complainant was 'slammed to the ground' by the Appellant (T17). This finding required a rejection of the evidence of prosecution witness, James Powell (T31,) and this was generally not supported by the evidence of any prosecution witness except on one version given by the Complainant;
- 1.2 Her Honour found that the Appellant and his father had the Complainant on the ground by a push or a punch in circumstances where there was no evidence of a punch, and where Her Honour failed to find whether it was the Appellant or his father who had allegedly pushed or punched the Complainant.
- 2. The decision of the Learned Magistrate on which the conviction is based should be set aside, because, having regard to the evidence, it is unreasonable or cannot be supported by the evidence.
Particulars
2.1 The Learned Magistrate, in her reasons, failed to accurately identify the assault particularised by the prosecution in its opening address and failed to consider or give reasons as to how that assault had been proven on the evidence adduced by the State.
2.2 The Learned Magistrate accepted what she described as 'the prosecution witnesses version of events' in circumstances where there were competing versions that were logically inconsistent and cannot be reconciled.
2.3 The Learned Magistrate accepted the evidence of the victim even where (i) it contradicted the evidence of other prosecution witnesses (that she also accepted), (ii) contradicted earlier statements made previously by the victim or (iii) did not support the prosecution opening.
2.4 The Learned Magistrate found that the prosecution witnesses gave consistent evidence in circumstances where they did not, and where those inconsistencies went to the fundamental issues in dispute in the case.
2.5 The inconsistencies identified at 3.4 meant that the Learned Magistrate could not safely by satisfied that any offence had been committed to the required standard
3. The Learned Magistrate erred in fact and law by determining that there were two versions of events, the 'Appellant version' and the 'prosecution version' and that one of those must be a fabrication which then should be rejected in order to find guilt, in circumstances where she failed to properly consider whether the evidence of the prosecution was itself capable of proving guilt to the requisite standard.
Particulars
3.1 The Learned Magistrate (T 20) correctly identified that where the accused has given a different account, to that
- contended for by the prosecution, then the prosecution must satisfy the court beyond reasonable doubt that the Appellant's account must be rejected as a reasonably possible version of the facts.
- 3.2 Her Honour found, however, that there were two versions of events being the 'Appellant's version' and the 'prosecution version'. Her Honour stated that 'one version of these events must be a fabrication'. (T20)
3.3 The evidence adduced by and on behalf of the Appellant was rejected by Her Honour.
3.4 Having rejected the 'Appellant's version', she did not go on to properly consider whether the prosecution's case could in fact could satisfy her to the requisite standard.
3.5 Her Honour repeatedly referred to the 'prosecution version' as opposed to the 'Appellant's version' in circumstances where there was no single prosecution version on the evidence, and the evidence of prosecution witnesses contradicted the basis upon which the State opened the prosecution's case. The Appellant repeats Particulars 3.1 - 3.4.
6 As will be evident, these grounds require a detailed consideration of the evidence.
The prosecution evidence
Graham Clyde Powell
7 Graham Powell gave evidence that he attended the funeral of his mother at the Utakarra Cemetery at 3.00 pm on 23 August 2010. Also in attendance were Raymond Peter Bryan (known as Peter) and his son, Benjamin Bryan (known as Ben), the appellant. Peter Bryan is married to Graham Powell's sister, Bronwyn.
8 Mr Powell and Peter Bryan had not spoken for the four years preceding the funeral. During the funeral Peter Bryan and Ben Bryan were standing a short distance away from Mr Powell and facing towards him.
9 Mr Powell said that during the service Peter Bryan made rude gestures towards him. These included movements that simulated masturbation. After the service finished Mr Powell was speaking to other guests when Peter Bryan came towards him. Mr Powell's evidence was then as follows:
(Page 6)
- And then what happened?---He just came up to me and slapped me across the head with his left hand.
Could you see Ben at the time?---I didn't see him - well, yeah, I did see him at the time because I looked at him just - because he came in from the left and I heard a noise and looked over and saw it was Ben, and then I went down.
When Peter came towards you, where abouts did he come towards you from?---He came straight towards me, because I was talking to Jackie Wilson and I then I turned and he was in front of me and he came straight towards me.
And he slapped you which side of the face?---This side with his left hand.
So he slapped you on the right side of the face with his left hand?---Left hand and knocked my sunglasses flying.
Did you say anything to Peter at the time?---No.
What did you do after Peter slapped you across the face?---I didn't have time to do anything because I was slammed to the ground by Ben.
And how were you slammed to the ground by Ben?---I'm not100 per cent whether it was body slammed or rugby tackled or spear tackled or whatever, but I just remember a force hitting me from the side and taking me to the ground.
How do you know it was Ben?---Because just before he got there I saw a movement out the corner of my eye, and I turned and saw him come straight at me and I had no time to react (ts 14/3/12, pages 5 - 6).
10 Mr Powell said that he remembered colliding with some gravestones before falling to the ground. He said he felt a weight as if someone was sitting on him. He could not see the person who was sitting on him as he was face down and his hands were being held behind his back. At this point he said that he was 'getting my head kicked in'. He said he could feel the impact of the kicks and could see the shoes coming towards his head. He said that he was kicked six or seven times but he was not counting. The impact was to the right side of his head and the front of his jaw. He was asked whether he could see who was kicking him and said, 'I was face down, my hands held behind my back like that, and I was just trying to protect my head from these boots that were coming at me'.
11 Mr Powell said that there was then a big commotion with people yelling and carrying on. A group of women surrounded him and dispersed the crowd and he was able to get up. He said that he received injuries as a result of being kicked to the head. Those injuries included a
(Page 7)
- broken jaw, four front teeth kicked in, bruises and grazes to his face and a swollen ear.
12 It was put to Mr Powell that in other proceedings relating to a charge against Peter Bryan he had not referred to being 'body slammed' by the appellant. In a police statement he had said that the appellant had run towards him and punched him to the left temple which had caused him to be knocked over. Mr Powell accepted that his evidence was different but denied that he had changed his evidence in order for it to match up to that of other prosecution witnesses. He maintained that he was, 'taken to the ground, whether I was body slammed or punched it doesn't matter, I was still taken to the ground'.
13 It was also put to Mr Powell in cross-examination that he had told the police that the appellant had kicked him. The implication was that this was inconsistent with the evidence that he could not see who kicked him. Mr Powell said that he knew the appellant had kicked him because he had been told by other witnesses what had happened. He confirmed, however, that he had been unable at the time to see who it was who kicked him.
James Powell
14 James Powell is the 24-year-old son of Graham Powell. He was also in attendance at the funeral on 23 August 2010.
15 Following the service, James Powell was standing at the front gates of the cemetery with his mother, his girlfriend, Kya Phillips, and his younger brother, Thomas Powell. His father was some distance away talking to other people.
16 James Powell saw Peter Bryan and the appellant and another man named Danny walk up to his father. He said that Peter Bryan started pointing and appeared to have a scowl on his face and a threatening appearance. He said that the appellant was behaving in a similar manner. This was prior to the graveside service.
17 After the service Graham Powell walked away from the graveside and Peter Bryan approached him. The appellant and Danny were to Peter Bryan's left and right, but behind him. James Powell saw Peter Bryan slap Graham Powell on the face with his right hand. Graham Powell then put his arms up to defend himself. James then gave the following evidence:
Then what happened?---They came together.
(Page 8)
- That's Peter and your dad?---Yep.
And then what happened?---They ended up on the ground together.
How did they end up on the ground?---I don't want to - he tripped.
Who tripped?---Because my father was stepping back.
Yes?---I'm pretty sure. Yeah, that's probably not the best words to use but he's lost his balance.
Who did, your father?---Yeah, and he's fallen backwards.
Fell backwards? Okay?---Peter's gotten on top of him then I took all my stuff out of my pockets, my hat, my sunglasses off my head, I gave them to my younger sisters, they had my son in his pram. Took all my stuff out of my pockets, gave them to them, told them to walk off then I ran up there.
What was happening as you ran up there, what could you see happening?---Peter was on top of my dad.
Yes?---I ran up and I punched Peter in the face to get him off.
Yes?---Didn't quite work, I run a little bit, a step, I've come back and I've started hitting him in the back.
Hitting who in the back?---Peter.
Yes?---And then while I was doing that I maybe got three punches in and then I was spear tackled by Danny.
By Danny? Yes?---He was on top of me punching me in the top of the head, so as soon I was spear tackled I went to this foetal position as I was on the ground and then proceeded to get hit on the top of the head by Danny.
When you saw Peter on top of your dad, what position was Peter in?---How was he? He was hunched over him. He was low enough to the ground to have his knees on the ground.
Did you see anything else happen in relation to your dad?---No, I was focused on Peter (ts 14/3/12, pages 31 - 32).
Kya Phillips
18 Ms Phillips is the partner of James Powell. She said that during the graveside service she could see Peter Bryan looking towards Graham Powell in an intimidating way. When the ceremony finished Graham Powell walked away from the graveside. She then saw Peter Bryan walk towards Graham Powell. She said he was not walking by himself and she
(Page 9)
- believed that the appellant was tagging a few metres behind him. At this stage Graham Powell was having a conversation with a woman.
19 Ms Phillips then saw Peter Bryan and Graham Powell talking. She could not hear what they were saying but she did see Peter Bryan swing his open hand towards Graham Powell and, 'go to slap Graham'. She was not able to see whether contact was made.
20 Ms Phillips then gave the following evidence:
And then what happened?---They started scuffling.
Who did?---Peter and Graham. And they - started scuffling and as that was happening Thomas ran to assist Graham to split up the fight, I don't know.
Sorry, Thomas ran to assist Graham?---Yep, Thomas, his son.
Thomas ran to assist Graham?---During that time I couldn't see exactly what was happening. After Thomas moved out of the way, they were on the ground.
Who was on the ground?---Graham and Peter.
Yes?---Maybe - - -
What position were they on the ground?---Peter was on top of Graham.
Could you see where Ben was at this time?---He was to the right-hand side of Peter and Graham.
How far away from them?---One to two metres, he was coming closer.
Peter and Graham were on the ground, Peter was on top of Graham?---That's correct.
And what were their body positions?---Peter had Graham's arms behind his back holding him down, like - - -
So Peter had Graham's arms behind his back?---Yep, holding him behind his back and putting, you know, his body weight on him to keep him down.
And what else was happening?. What else then happened?---Ben ran in and kicked Graham a couple of times in between the chest and the head.
Where did Ben come from when you saw him coming?---He came running in from the right-hand side.
(Page 10)
- And you saw him kick, sorry, Graham where?---In between the chest and the head.
When you say he kicked him, what did he kick him with?---His foot - leg.
Do you know which foot?---Right.
His right foot? Okay. What occurred after Ben started kicking Graham?---James then ran to assist also.
How did James assist?---By pulling Peter off of Graham (ts 14/3/12, pages 36 - 37).
21 Ms Phillips estimated that she was 30 metres away when she saw the appellant kick Graham Powell. After James Powell ran over to pull Peter Bryan off Graham Powell she focused on James and could not say what the appellant then did.
Thomas Powell
22 Thomas is the 21-year-old son of Graham Powell. He said that during the graveside service Peter Bryan was screwing up his face and 'grabbing onto his crotch and just thrusting around'. After the service finished Thomas saw his father walk away to talk to a woman named Jackie Wilson. He then saw Peter Bryan approach his father. There appeared to be an exchange of words and then, 'Peter went to slap my father'. He did not know whether the slap connected.
23 Thomas then gave the following evidence:
Tell us what you saw Ben do?---Charged over.
When you say 'charged over', what do you mean by - - -?---He ran over, sprinted.
He sprinted over? And then what did Ben do, if anything?---He just pushed him to the ground, hip and shoulder, just barged him over.
Hip and shoulder to who?---My father to the ground.
Graham?---Graham.
When you say 'hip and shoulder', what do you mean by hip and shoulder?---Just - - -
Stand up and show us the action you mean?---Pretty much went like this, just ran over and went - to the ground, using his arms, using his body to push him to the ground.
(Page 11)
- So you're indicating moving to the right side of his body? Do you know what side of his body hip and shouldered with?---No, I don't know what side.
You're indicating he used the side of his body to push your father?---Yes (ts 14/3/12, pages 47).
24 Thomas said his father was bowled over and landed on the ground. He then said:
Then what happened?---then - well then - yeah, I come running over then Peter turned to face me - no, sorry, that was a little bit - a few second after. They were, yeah, punching and kicking dad.
Who was punching and kicking dad?---Ben.
What position was Ben in when he was punching and kicking dad?---He was standing up and leaning forward, holding him down to the ground with his arms and then lining up for a kick (ts 14/3/12, pages 48).
25 Thomas said that the appellant had his arm around Graham Powell's back and, 'he was down level with him and right hand in the jaw, in the face, any where he could'. He was then asked how many times he saw the appellant punch his father and said:
How many times did I see it? I couldn't - I wasn't counting. It was just - yeah, I was looking around trying to see what I could do, so - - -
Okay. Whereabouts did you see the punches connect?---In his face.
Which side of the face?---Right side. Dad was moving his face around as well, so it could have hit him on the left side. I saw the right side and chin.
When you say Ben was kicking your father, when was Ben kicking your father?---It was before he was crowded down to punch him.
Before?---Before he got over to punch him, before he hugged him to punch him, and also after as well.
You say 'before', just in relation to - when Ben kicked your father, was your father on the ground?---Yes.
How many times did you see Ben kick your father?---I saw three kicks and even when I had my turned, I heard them.
Let's just talk about what you saw. You saw three kicks?---Yeah.
Whereabouts did you see Ben kick your father?---In the face, chin, mouth.
What position was Ben in when he kicked your father?---Standing up.
(Page 12)
- What position was your father in when Ben was kicking?---He was on the ground, forearms on the ground, knees on the ground, and he'd also fallen over as well so he was on his side.
Okay. So when you say he was fallen over, what position -when did he fall over?---When did he fall over? Oh. I think that was when Peter came over and - because Peter was on top of him as well.
When was Peter on top of him?---After we had a bit of a scuffle, because I came running over to get Peter away. We had a scuffle - - -
If I can stop you for a moment. When you say he was kicking him the first time, was Peter around when Ben was kicking your father the first time?---Yes. Yes.
When your father first went to ground - - -?---Yeah.
- - - who was around your father at that point in time?---Peter and Ben, and Jackie Wilson was standing off to the side.
What did Peter do at that point in time?---He was just leaning over Dad.
Leaving over?---Leaning over, holding him to the ground as well.
Holding him to the ground. And at that point in time, what was Ben doing?---Kicking.
...
What was Peter doing while Ben was punching your father?---What was - yeah, holding my father down.
You say that after Ben punched your father, he started kicking him again. Is that right?---Yes.
What was Peter doing when Ben started kicking your father again?---Peter was on top of him again, holding him down.
Where were you?---Me? I was behind Peter.
What were you doing?---I didn't know what to do. I tried actually kicking Peter in the bum myself. I actually hurt my foot, so I ran around the group of people. People were telling me to go away. I didn't know these people. And then I dragged Ben off Dad because he was punching into him again, and yeah, at level height with Dad. I grabbed onto his black jacket and pulled him away.
When you say he was punching into your dad at level, so what do you mean by that?---At level height again, he was around his arm around him and punching into him, and I dragged him off.
(Page 13)
- Where was Ben punching into him?---Anywhere he could; face, ribs.
How many punches did you see Ben land to your dad at this point in time?---I don't know.
You say you then pulled Ben off?---Yeah. I pulled Ben off, dragging him away on the ground.
How did you pull Ben off?---I grabbed onto his black jacket and just used everything I - I don't know where I got the strength from but I pulled him, dragged him on the ground and Ben just stood up really quick. Instantly.
Sorry? Then who stood up?---Then he stood up really quick, he got off the ground. I couldn't hold onto him.
And then what happened?---Dad also stood up. Dad wasn't even facing him and Ben walked up and punched him in the side of the head while he was standing up, facing the other way.
Then what happened?---Then I went up and then punched Ben in the head because I just saw what happened to my dad and I just - I don't know where that came from (ts 14/3/12, pages 49 - 51).
Dr Lingam Sam
26 Dr Sam is a general practitioner who saw Graham Powell on 26 August 2010. Mr Powell complained of pain on the right side of his face. An examination showed that he had bruises and abrasions on the right side of his face and the right ear lobe.
27 Dr Sam saw Mr Powell again on 3 September 2010 when he was complaining of jaw pain. He referred Mr Powell for an X-ray but he was unaware of whether the X-rays had been done or not. Mr Powell did not bring any X-rays back to Dr Sam subsequently.
28 Dr Sam saw Mr Powell again on 28 October 2010. Mr Powell was complaining of pain to the right side of his face. Some X-rays were produced on that occasion but they related to the cervical spine and did not reveal any injuries.
The appellant
29 The appellant gave evidence in his defence. He said that he had attended the funeral on 23 August 2010 and recalled seeing Graham Powell briefly prior to the service at the front of the cemetery. The next time he saw Mr Powell was when 'he was wrestling with my father'. He then gave the following evidence:
(Page 14)
- Did you see anyone else near there?---I saw Thomas.
What was Thomas doing?---Kicking my father.
What did you do?---I ran over and tackled him.
You tackled who?---Thomas.
What did you do with him? Where did he end up?---We both ended up on the floor.
What about the other brother, James? Do you know where he was?---I think he was off to the side.
Of who?---My father and Graham.
What did you do with Thomas?---I tacked him to the floor.
Then what happened once you got on the floor?---We were fighting, punching each other.
Did you hear anything when you were trading - - -?---No, I didn't.
Did you continue to fight?---Yes.
Did it eventually stop?---Yes.
Do you know he that happened?---He got pulled off me.
Then you got up. When you got up, was there anyone else fighting?---Not that I know of. I was - - -
So the fight's over. Now, what about you, did you get any injury?---I had a sore jaw.
Did you have anything to do with any kicking of Mr Graham Powell?---No, I didn't (ts 14/3/12, page 66).
30 In cross-examination he said he was 25 to 30 metres away when he saw his father and Graham Powell wrestling. He said that they were on the ground and he thought that Graham Powell was on top.
Bronwyn Bryan
31 Bronwyn Bryan, is the mother of the appellant, the wife of Peter Bryan and the sister of Graham Powell. Mrs Bryan said that after the service she saw Peter Bryan and Graham Powell on the ground wrestling. The appellant and Thomas Powell were close by wrestling as well. James Powell was also nearby, kicking someone. She said that 'that's basically
(Page 15)
- all I saw of the fight because I had my granddaughter and I kind of diverted my attention to her'.
Raymond Peter Bryan
32 Peter Bryan gave evidence that following the graveside service Graham Powell approached him and said, 'Can I have a word mate?'. Mr Bryan said that during the service Graham Powell had looked towards him in a strange way and, 'Was pulling a few faces', though he was not watching closely and only looked once or twice. Mr Bryan finished the conversation he was having with another man and then walked the 20 metres to where Graham Powell was standing. Graham Powell was talking to a woman at that stage. Mr Bryan then gave the following evidence:
Then what happened?---Graham stepped off and walked towards me.
What did he do?---Put his sunnies up on his head, just shoved them up, and just started saying, 'You had enough guts to turn up', and just going off, you know, in general.
Are you saying that he didn't think you what?--Had enough guts to turn up.
Then what did he do?---He had his fists up like that and he was, sort of, spitting his words out and then he just went - and spat right in my face.
What did you do?---Slapped him in the mouth.
Which hand do you recall slapping him?---Left.
Where did you connect his face?---About here somewhere.
You're indicating just above the jaw area, around there?---I think it - yeah, I'm not sure. Just around his mouth or cheek here. Right, you know, to the side. Yeah.
How hard?---Pretty hard, yeah. It fairly rung him. You know?
Then what happened?---He threw a punch. I said to him, 'That's enough of this crap.' I just went to turn, he swung a punch at me. I sort of ducked as I was going - - -
Yes?---Yeah. Skimmed past the side of my head. Yeah. I went to retaliate with a punch to the guts. One of his sons grabbed my arm.
One of his sons grabbed - - -?---Yeah.
- - - your arm?---Yeah.
(Page 16)
- Do you know who that was?---I think that was James, the taller one. Yeah.
Did you see who grabbed your arm? That's what I'm asking?---Yeah, yeah. I seen James there. Yeah.
What happened?---Someone else hit me in the back.
Yes?---Oh, no, hit me in the back of the head.
Yes?---Me and Graham were pushed together then. Then I saw them - - -
Where did you end up?---On the ground.
You ended up the ground?---Yeah. Yeah.
Do you know what caused you to fall to the ground?---Yeah. Someone, sort of, ran at me in the back.
At this stage, where'd you last seen Ben?---Up towards the - where the grave was, up that way.
So you go down to the ground and then what happens?---Boots come flying.
Boots?---Yeah.
Where were you struck?---First one grazed the top of my head, went across the top of my head. The second one connected me here on the side.
Did you get any injuries from that one that connected you in the side of the head?---Yeah.
What did you get?---Tooth were, like, chipped. Like, eye bruising, bloodshot eye. You know? I was all bruised down the side, swollen up head (ts 14/3/12, pages 80 - 81).
John Foster
33 Mr Foster is married to the appellant's sister. Peter Bryan is his father-in-law. Mr Foster was also present at the funeral.
34 Mr Foster said that following the service his attention was drawn to Graham Powell and Peter Bryan. He saw Graham Powell, 'kind of pucker up and look like he was going to spit'. Peter Bryan then, 'threw a slap' at Graham Powell and Graham Powell threw a punch back. Mr Foster estimated that he would have been 15 to 20 metres away when this occurred.
(Page 17)
35 Mr Foster said that the next thing that happened was that Graham Powell's sons, Thomas and James, came over and started kicking and punching Peter Bryan. Mr Foster then went over with a man named Danny to break it up. He was asked whether he saw the appellant and said, 'in the corner of my eye, Ben was helping disperse these guys off Pete and to break it all up'. He said that Thomas Powell and the appellant were having, 'a little scrap'.
Daniel Bradley
36 Daniel Bradley is the partner of Kerry Bryan, the daughter of Peter Bryan. He said that after the graveside service people were standing around talking. He then saw Peter Bryan and Graham Powell having an altercation and James Powell and Thomas Powell run in. He said he thought James and Thomas were going to break up the fight but instead they, 'proceeded to mob my father-in-law so I ran in and rugby tackled one of the guys off that was kicking my father-in-law in the head'.
37 Mr Bradley said that he was 10 to 15 metres away when he saw Peter Bryan and Graham Powell fighting. They were on the ground when he arrived at the scene but he could not say how that had happened. Mr Bradley was then asked:
Who was the first that got there that you saw?---Ben got there before me.
Ben got there before you. Did you see what he did?---No.
So you ran and you got there, and what did you do?---I rugby tackled the taller one, James.
And then where did you end up with him?---On the ground.
Then what happened when you were on the ground, did you stay on the ground?---No, no, I stood up and I let him get up as well.
Did anything else happen after that with you and him?---We had some words, I told him to leave everyone alone.
Anyone else get involved in the altercation you were having with James?---Yeah, his girlfriend came in between us as well.
When you got up, what else did you see? So they're having words, did you do anything after that?---I turned around to see how my father-in-law was and Joe was helping him up off the ground.
Did you see where Ben was?---Yeah, Ben was on the ground wrestling with this other guy, Thomas.
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- What did you do?---I ran over there and dragged Thomas off of Ben.
Had all the fights stopped by then?---Pretty much. Well, yeah, I think - yeah (ts 15/3/12, page 3).
Magistrate's reasons
38 After a short adjournment following the completion of the evidence the magistrate gave her reasons for decision. Her Honour described the prosecution case in the following terms:
The prosecution case, in summary, is that the accused father approached the complainant and started a fight, assaulted him by pushing him and that this accused joined in and either punched or slammed the complainant to the ground where he was assaulted by the accused father and the accused. The accused denies the assault and says he came to his father's aid when his father was being assaulted by the complainant and the complainant's two sons (ts 15/3/12, page 17).
39 Her Honour then summarised the evidence of the witnesses both for the prosecution and the defence. She then said:
In summary, the accused and his witnesses give a different account of events, denying the prosecution case and alleging that the accused went in to help his father who was being set upon, first of all, by the complainant, then by his two sons as well. The account given by the prosecution witnesses, four of them in all, and they are all related, other than Dr Sam, the rest, they are all part of their family, is so different from the accused's version and there is five of them, all related. One version of these events must be a fabrication. They are just totally inconsistent and there is so many witnesses on each side that you have accounts consistent with that side.
The prosecution witnesses are not totally consistent in their accounts. They are largely consistent but give accounts which are not identical and, in my view, come from their different perceptions, observations and recollections of what they saw. Likewise, the accused and his witnesses give accounts which are not entirely identical, which could, for the same reasons, could be described that way for the same reasons. This, of course, is a criminal trial and the burden of proof of guilt of the accused is placed squarely on the prosecution in respect of every element of the offence. The prosecution must prove the essential facts that go to make up this charge beyond reasonable doubt (ts 15/3/12, page 20).
40 Her Honour noted that the appellant had given and called evidence which gave a different account of the events. She said that before being able to convict the appellant it was necessary to be satisfied beyond reasonable doubt that the version of the facts advanced by the defence witnesses was not reasonably possible.
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41 Her Honour noted that there was a dispute about how the altercation between Graham Powell and Peter Bryan had started. Her Honour referred to Peter Bryan's evidence that he had gone to talk to Graham Powell at the latter's invitation notwithstanding the animosity between them. Her Honour thought it unlikely that Peter Bryan would respond to a wave from Graham Powell, 'unless he was looking for trouble'. Her Honour also found it improbable that the appellant did not know of the animosity between Peter Bryan and Graham Powell. Her Honour then said:
The prosecution witnesses give consistent evidence but it is not identical. It does not in any way indicate they got together to make their evidence coincide; in fact, the contrary indeed. There are various differences in their evidence but as a whole it is consistent as to how the matter started and what part Ben played once the complainant was on the ground, whether he was put on the ground by a slap or a punch, or a push, or a kick, and whether his hands were under him or behind his back while being pinned down by Peter. The part Ben played was to kick and punch the complainant and cause, I find, the various injuries suffered by him. On the prosecution case, this is the explanation for the injuries suffered by the complainant. After that, the complainant's two sons came to his assistance. They both gave very credible evidence; although, again, not identical, thus there is no indication that they have got together to fabricate a story as to what happened on that day.
Whereas, much of what the accused and his witnesses say, in my view, is just not credible. Daniel Bradley, who became involved, says he saw the start of the fight from 20 metres away, even though he was engaged with his family and their children. He explains looking up because voices were raised. The only one to say that, in the circumstances, this is unlikely to have been the case, even if there were raised voices, because he was chatting to others, there were 34 people at the funeral. The incident occurred 15 to 30 metres away, according to different estimates, and one of the prosecution witnesses paced it out at 30 paces, 30 metres, which was likely to be more accurate because she was the only one who did pace it out. Long way with all that crowd to hear this.
The accused says he did not know of this animosity, which I cannot believe in the light of the evidence of the other witnesses and, in particular, his father, when he is his father's own son. The accused's witnesses tended to downplay the complainant's injuries, many of them did. In addition, they were short on detail in giving their evidence, both in examination-in-chief and cross-examination. Whereas, by contrast, the prosecution witnesses were forthcoming as to detail and even to the extent of remembering more detail as they gave their evidence and were further examined on it. As I have already mentioned, according to Peter's evidence of his dislike of the complainant, it is inconsistent for him to have responded to the complainant as allegedly happened by going over for a
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- chat. He did not want to know him. But even if he did go over, that would not be justification for what followed.
I find that the accused and the father had the complainant on the ground by a push or a punch, that Ben kicked the complainant a number of times to the face and head and caused the serious injuries suffered by the complainant, and described by him and the medical witness, and shown in the photographic image. The injuries suffered by the complainant are consistent with the prosecution case. I do not accept the accused's version of events. It is not credible. I do accept the prosecution witnesses' version of events, which is consistent and very credible in light of the evidence as a whole (ts 15/3/12, page 21 - 22).
Ground 1
42 The appellant submits that the magistrate treated the prosecution witnesses as presenting a single consistent version of events. This is said to overlook material inconsistencies between the prosecution witnesses. In particular, there are differences between the prosecution witnesses as to how Graham Powell ended up on the ground. These are said to be material inconsistencies because the mechanism by which Graham fell to the ground was alleged to form part of the assault.
43 The charge alleged that the appellant 'unlawfully assaulted Graham Clyde Powell and thereby did him bodily harm'. The term 'assault' is defined in s 222 of the Criminal Code (WA) to include any application of force of any kind to the person of another without that other's consent. In this case there was reference by the prosecution witnesses to a number of different applications of force that could constitute assault.
44 The only particularisation of the assault was in the opening by the prosecutor. In opening the prosecutor said as follows:
The accused, Ben, ran to the area where the victim, Graham, and his father, Peter, were struggling. Running at the victim, Graham, and punching him to the left side of the face. The punch connected with the victim, Graham's, temple. The punch knocked the victim, Graham, to the ground. Once on the ground, the accused, Ben, kicked Graham, the victim, once to the side of his face and then approximately four times to the back of his head.
Your Honour, in relation to the bodily harm, the bodily harm alleged to have occurred is that there was bruising and abrasions to the right face and earlobe, and the victim in this matter suffered pain and suffering (ts 14/3/12, page 3).
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45 On the basis of this opening it would appear that the prosecution was alleging that the appellant assaulted Graham Powell by punching him to the face, knocking him to the ground and then kicking him to the head once Mr Powell was on the ground.
46 It is not unusual for a charge of assault to encompass a number of separate acts each of which individually could constitute an assault. Where it is alleged that a person committed more than one assault on another person during a single incident the person may be charged with one offence of assault: s 23 and cl 8(1) sch 1 Criminal Procedure Act 2004 (WA). In such a circumstance the charge can be proven if any one of the assaults encompassed by it is established beyond reasonable doubt. It is possible that the evidence may not establish one of the alleged assaults but will establish another. Which of the individual assaults have been proven will, of course, be relevant to sentence. For this reason where multiple assaults are encompassed by the same charge it will be necessary in the event of a conviction for the magistrate to make findings as to which of the assaults has been proven.
47 As regards whether the appellant punched Graham Powell and thereby cause him to fall to the ground the prosecution witnesses were not consistent. Graham Powell said that the appellant, 'body slammed' him. However, it would seem that this was based upon what it felt like and what he was subsequently told. He did not refer in his evidence-in-chief to a punch from the appellant. When it was put to him in cross-examination that he had told the police that he had been punched he said that, 'maybe he punched me' but he conceded that he did not know exactly what the appellant had done.
48 None of the other prosecution witnesses referred to a punch whilst Graham Powell was standing. James Powell said that Graham Powell and Peter Bryan were grappling and that Graham had stepped backwards and lost his balance. He made no reference to any punch from the appellant whilst Graham Powell was standing. Kya Phillips did not refer in her evidence to how Graham came to be on the ground. Thomas Powell said that he saw the appellant charge over and use his 'hip and shoulder' to barge his father to the ground.
49 To the extent that the prosecution case encompassed an assault by the appellant punching Graham Powell whilst the latter was standing thereby causing him to fall to the ground, the evidence was clearly insufficient to establish beyond reasonable doubt that such a punch had occurred. The only witness who referred to such a punch was Graham
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- Powell and he conceded that all he could say was that he was forced to the ground and that he believed that such force had come from the appellant. Thomas Powell referred to the appellant punching Graham Powell, but only when he was on the ground and this punching did not form part of the magistrate's ultimate finding as to the assault that caused the injuries.
50 If the magistrate had found the appellant guilty of assault on the basis of a standing punch it may well have been difficult to reconcile such a conclusion with the evidence. However, it is clear that her Honour did not make such a finding. She found the appellant guilty of an assault based upon kicking to the head when Graham Powell was on the ground. Whilst there is reference in her reasons to the appellant and Peter having 'the complainant on the ground by a push or a punch' it is clear this is a reference merely to the course of events.
51 Her Honour did not make a finding that the appellant punched Graham Powell at that stage. She does, however, make a finding that the appellant kicked Graham Powell a number of times to the face and head and thereby caused the injuries suffered by him. That this was the basis for the conviction is confirmed by her Honour's sentencing remarks. In those remarks her Honour refers to the assault in the following terms:
Of course there needs to be a message sent to others in the community not to engage in this type of serious assault on other human beings especially in conjunction with another person, his own father, two against one, while his father is holding that man down, kicking him in the head and face. It does not get much more serious than that (ts 15/3/12, page 23).
52 As regards whether the appellant had kicked Graham Powell when he was on the ground, the evidence of the prosecution witnesses was consistent. There was evidence which could form a proper foundation for a finding by the magistrate that an assault constituted by kicking of Graham Powell by the appellant was proven beyond reasonable doubt.
53 The submission that the magistrate overlooked material inconsistencies between the prosecution witnesses must be seen in the light of her finding that the assault was constituted by the kicking. That is not to say that inconsistencies regarding the mechanism by which Graham Powell came to be on the ground were irrelevant, however their relevance was limited to the issue of the reliability and credibility of the prosecution witnesses. Her Honour did not overlook those differences, indeed she referred to them. She noted that whether Graham Powell was, 'put on the ground by a slap or a punch or a push or a kick' there was consistency in
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- regards to what part the appellant played once Graham Powell was on the ground.
54 Whilst I would grant leave in respect of this ground it cannot succeed.
Ground 2
55 Where a finding of guilt is challenged on the basis that it is unreasonable or cannot be supported by the evidence the question for the appeal court is whether it was open for the finder of fact to be satisfied of guilt beyond reasonable doubt; that is, whether the finder of fact must, as distinct from might, have entertained doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495 [7] - [9] (Mason CJ, Deane, Dawson and Toohey JJ). It is not sufficient to show that there was evidence which, if accepted, would have precluded satisfaction of guilt beyond reasonable doubt. This is because it may well have been open to reject that evidence and accept that which led to a conclusion of guilt.
56 The principles applicable to whether the verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA with whom McLure P and Mazza J agreed). See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [79]; Smart v Albuquerque [2011] WASCA 231 [16] and Lovell v Fullman [2011] WASC 312 [9].
57 Where the findings of the primary court depend to any substantial degree on the credibility of witnesses it must be borne in mind that that court had the opportunity to both see and hear the witnesses give their evidence. However, findings may be disregarded by an appeal court if the primary court 'has failed to use or has palpably misused' its advantage or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': Devries v Australia National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 [10] (Brennan, Gaudron and McHugh JJ); Fox v Percy (2003) 197 ALR 201; (2003) 214 CLR 118 [66] (McHugh J) and CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] (Kirby J).
58 Grounds of this nature require the appeal court to examine the whole of the evidence not only to determine its sufficiency but also to weigh the
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- evidence and decide whether or not it gives rise to any reasonable doubt: see M v The Queen and SKA v The Queen [2011] HCA 13; (2011) 276 ALR 423. The task is not one of determining what the jury, or in this case the magistrate, did. The task of the appellate court is to make its own assessment of the evidence.
59 However, it is important not to disregard or discount that the tribunal of fact is the entity entrusted with the primary responsibility for determining guilt or innocence: M v The Queen (493). In order for an appellate court to form the opinion that a verdict of guilty should be set aside because, having regard to the evidence it is unreasonable or cannot be supported, it must be satisfied that the verdict is tainted by error. However, error will not be demonstrated merely because the finder of fact made a choice between competing inferences which were open on the evidence: Morgan v The State of Western Australia [2011] WASCA 185 [94] - [95] (Pullin JA).
60 The appellant submits that it was not open to the magistrate to conclude that he was guilty of assault given the inconsistencies between the prosecution witnesses. It is also submitted that there was inconsistency between the way in which the prosecutor opened the case and the evidence of the prosecution witnesses.
61 As regards the opening, it is true that the prosecutor opened the case on the basis that the charge included an allegation that the appellant had punched Graham Powell to the left side of his face thereby causing him to fall to the ground. As I have earlier noted, this allegation was not established by the evidence. However, the charge was also said to encompass kicking by the appellant. The fact that one of the assaults encompassed by the rolled up charge was not proven did not mean that there was a change in the prosecution case or material unfairness to the appellant. The prosecution case always encompassed an allegation of kicking and that allegation did not change throughout the trial. It is that allegation that the magistrate found was proven to the requisite standard.
62 Although particular 2.1 refers to what is said to be inadequacies in the reasons, a ground of this nature does not depend upon the reasons. It requires the appeal court to make its own assessment of the evidence. In any event, the magistrate did identify the assault that she found proven and explained why she had reached that conclusion.
63 As regards the suggestion that the evidence of the prosecution witnesses were logically inconsistent and could not be reconciled, this
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- assumes that it was necessary for the magistrate to expressly consider and explain every possible inconsistency. It was not necessary to canvass all of the evidence or all of the factual arguments or issues said to arise. It was only necessary for the court to identify the facts that were accepted and the law that has been applied and the reasons for doing so: s 31 Magistrates Court Act 2004 (WA). It might well be necessary to consider inconsistencies that relate directly to the act found to constitute the assault. But in that regard there were no material inconsistencies.
64 Graham Powell referred to being kicked whilst he was on the ground. He could not say with certainty who had kicked him, but this was because he was being held down and his vision was obstructed. Ms Phillips and Thomas Powell gave unequivocal evidence that the appellant kicked Mr Powell.
65 It was suggested in submissions that there was inconsistency in the fact that James Powell did not refer in his evidence to having seen the appellant kick Graham Powell. It was said that if such kicks had occurred James Powell should have been in a position to see them. That is not an inference that can be clearly drawn from the evidence of James Powell. There are several reasons why James Powell might not have seen the appellant kick Graham Powell. First, James said that when he saw his father fall to the ground he took things from his pockets and took off his hat and sunglasses and gave them to his younger sisters. He said he told his sisters to walk off before he ran over to where Graham Powell and Peter Bryan were struggling. It is at least open to infer from this that James did not have his father and Peter Bryan under continual observation from the time his father first fell over. Secondly, James says that he ran up and punched Peter Bryan to the face to get him off his father and was then himself tackled by Danny. He says that whilst this was occurring he was focused on Peter Bryan. James was then forced to the ground and went into a foetal position. Thereafter he was unable to see what happened to his father as he had his arms over his face. None of this excludes the possibility that the appellant was present and kicking Graham Powell. Thirdly, James Powell was not cross-examined to clarify whether he could exclude the possibility that the appellant had kicked his father. Perhaps it is understandable that such cross-examination would not occur. There was an obvious danger of an unfavourable answer. Nonetheless, such a proposition not having been put to James it is difficult to conclude that his evidence excludes the possibility that the appellant did kick Graham Powell.
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66 The suggestion in particular 2.4 that the magistrate found that the prosecution witnesses gave consistent evidence when there were material inconsistencies overlooks the magistrate's reasons and the significance of her ultimate findings. Her Honour did recognise that there were inconsistencies in the evidence of the prosecution witnesses. However, those inconsistencies did not go directly to the question of whether the kicking had occurred. Her Honour had regard to the inconsistencies in determining whether she accepted the evidence of the prosecution witnesses. There is nothing in her reasons to suggest that the magistrate failed to give proper regard to that evidence.
67 As regards my own assessment of the evidence, I note that this was a case that significantly turned on questions of credibility and reliability. Given the speed of the events, the number of people present at the funeral and the different locations of the various witnesses, it was always reasonably possible that those present would have seen and heard different things. However, as to the question of whether Graham Powell was kicked by the appellant whilst he was on the ground there was a marked contrast between the prosecution and defence witnesses. The existence of the injuries supported the prosecution case that Graham Powell had been assaulted. The injuries were consistent with the kicking as described by the prosecution witnesses. Attempts to explain these injuries by suggesting to prosecution witnesses that either James or Thomas had injured their father inadvertently were rejected by those witnesses.
68 The magistrate had a good opportunity to assess the witnesses. She found the prosecution witnesses to be credible. In contrast, she considered that the defence witnesses lacked credibility, and in particular under-played the level of animosity between the two branches of the family. These are findings that it was clearly open for the magistrate to make.
69 Having rejected the material evidence of the defence witnesses it was necessary for the magistrate to consider whether she was satisfied that the evidence of the prosecution witnesses satisfied her beyond reasonable doubt that the appellant had committed an assault. In making that assessment it was open for the magistrate to find that the inconsistencies referred to by the appellant were not such as to prevent a finding of guilt. In my view, it was open to the magistrate to conclude on the prosecution evidence that the appellant had kicked Graham Powell and thereby committed an assault. Accordingly, whilst I would grant leave in respect of this ground the ground cannot succeed.
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Ground 3
70 This ground submits that the magistrate erred by referring to a prosecution version and a defence version. This is said to be simplistic because there was no single prosecution version on the evidence.
71 This argument has already been dealt with in respect of the other grounds. The magistrate's references to different versions needs to be seen in the context of her remarks as a whole. The implication that the magistrate was suggesting that all of the prosecution witnesses were entirely consistent is not correct. Her Honour did not overlook the inconsistencies nor did she fail to appreciate their significance. However, their significance needs to be seen in the context that the assault found to be proved was the kicking.
72 Leave in respect of this ground is granted but the ground fails.
Conclusion
73 Consideration of the grounds has required detailed examination of the evidence and the magistrate's reasons. For those reasons leave in respect of the grounds will be granted. However, the outcome of that examination is that the alleged errors have not been established. Accordingly, the appeal will be dismissed.
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