Bryant v Police No. Scciv-03-879

BRYANT v POLICE
[2003] SASC 260
Magistrates Appeal: Criminal

PERRY J. (ex tempore) In this matter the appellant appeals against his conviction following a trial in the Magistrates Court sitting at Port Lincoln on a charge that on 11 May 2002 at Wangary he assaulted Matthew Giddings occasioning him actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act (1935).
The alleged assault occurred during the course of an A-grade Australian Rules football match between Marble Range and The Bostons. The match was being played at the home ground of Marble Range at Wangary. The alleged victim, Matthew Giddings, was playing for Marble Range at centre half back. The appellant was playing for Boston at centre half forward. The two were therefore direct opponents.
The incident which gave rise to the charge arose in the third quarter of the game.
A number of witnesses were called on both sides. The alleged victim, together with four other witnesses, were called on behalf of the prosecution and the appellant, and five witnesses were called to give evidence for the defence. All of the witnesses purported to have seen the incident or parts of the incident take place.
It was common ground between all of the witnesses that the incident occurred at a time when the ball was remote from the two players concerned. Estimates vary but are of the order of 40 metres to 50 metres. It appears that it was a large oval.
I do not know, however, that it would be right to say that the incident occurred behind the play, as some of the evidence suggests that the play was moving towards the half forward position for Boston and that the appellant might have been leading to a position where he may have anticipated that the play was heading.
At all events there was no doubt that as a result of the incident Mr Giddings suffered a broken nose. Photos of the injury were tendered in evidence and the appellant did not deny that this occurred as a result of contact between him and Mr Giddings, although as Ms Telfer, who appeared for the respondent on the hearing of the appeal, pointed out, he was unclear as to just how that might have happened. In fact there was a deep division in the evidence as to the circumstances in which the contact occurred and as to the immediate movements of the two players concerned at the time when the injury must have been suffered.
The account given by Mr Giddings was that he was alongside the appellant and slightly in front of him when the appellant stopped and changed direction, as did the Mr Giddings, shortly before he was struck. He did not see the blow but his nose started to bleed and he dropped to the ground. He was able to make his way off the field and later was treated in hospital.
Although there were differences in detail between the remaining prosecution witnesses, all of them gave basically the same account. This was that both Mr Giddings and the appellant were jogging towards the play and that the appellant came up from behind Mr Giddings and more or less drew level with him or perhaps was slightly behind him, that is, on Mr Giddings right hand side, when he allegedly delivered a round arm right punch to Mr Giddings’ face.
On the other hand, the evidence of the appellant was that he had been scragged by Mr Giddings and that Mr Giddings was holding his guernsey as he attempted to lead. His evidence was that he gave at least two chopping motions by putting his right arm behind him and chopped in an endeavour to break off the hold on his guernsey, Mr Giddings still being behind him. He then gave an open-handed push with his right arm to the same end, that is, in an endeavour to keep Mr Giddings clear of him, so that he broke free and led off in the direction of the ball. He did not realise until later that Mr Giddings had suffered an injury.
Again, although there were some differences in detail, all of the witnesses called on the appellant’s behalf gave, without exception, basically the same account of the matter, although it must be accepted that in some instances they saw very little of what had occurred between the players at the relevant time. However, it does seem to me on scrutinising their evidence that they asserted that the appellant was ahead of Mr Giddings; that Mr Giddings was scragging, in the sense of grabbing at the back of his guernsey; that the appellant with his right arm was making a chopping motion behind his back in order to break clear of Mr Giddings; and that in the course of doing so there was contact between them.
While not all of the witnesses saw clearly where the contact occurred or in one or two instances that they even saw Mr Giddings fall to the ground, it is clear that on their account of the matter the contact must have occurred while the appellant was slightly ahead of Mr Giddings pushing or chopping at him from behind his back.
On the appellant’s account of the matter, as supported by the witnesses called on his behalf, it is clear that the charge of assault could not be made out. This is so because Australian Rules football is very much a contact sport played in circumstances in which there will inevitably be a good deal of physical contact between the players, even on occasions violent contact. Furthermore, it must be accepted that participants in this sport must be regarded as having assumed the risk that opposing players will not always play according to the rules. In the result, even if there is an infringement of the rules resulting in physical contact or injury, it does not follow that this will necessarily give rise to criminal liability. In that respect I refer to the judgment of Johnston J in Watherston v Woolven.[1]
[1] (1987) 139 LSJS 366.
While actions as described by the appellant and his witnesses may amount to an infringement of the rules, they could be not amount to the relatively extreme conduct which would fall outside the boundary of the risks which participants must be taken to have accepted.
On the other hand, a king hit, or a direct punch to the nose of the kind described by the witnesses called by the prosecution, could be construed as at least having the potential to give rise to criminal liability.
The trial magistrate correctly directed himself as to the onus of proof and correctly informed himself as to the relevant legal principles as I have just summarised them.
He then proceeded to give an account of the evidence given by each of the witnesses in turn, commencing with the prosecution witnesses and then moving through the evidence given for the defence.
He went on to say:
“19... In examining and assessing the evidence of any witness a court is entitled, of course, to accept or reject aspects or portions of their testimony according to the court’s impression of the truthfulness and reliability of that part of a witness’s testimony. It may be and no doubt often is an assessment of what is to be accepted and what is to be rejected. Some or all of a witness’s evidence can be accepted or rejected. If from the evidence accepted as truthful and reliable a particular fact is proved, and I mean proved beyond reasonable doubt, then that fact is capable of consideration in the proof of any element of the offence to which it relates. With those things in mind I say this. As to all of the witnesses who gave evidence I was generally speaking impressed by them all, however there were aspects of some of those witnesses’ evidence that I formed the view could not be relied on. In the environment of the courtroom, over a year after the game, I thought that they all did their very best to accurately recall the events that they now believe occurred on the day in question. Most have memories that are different each from the other and that is to be expected. Ideally a witness’s evidence should be recorded immediately after an event to prevent contamination through discussion with others, memory loss and things of that kind, but sadly that does not happen. Only the two exhibits, P1 and D1, are contemporaneous records of the events.
20I do not intend in these extempore reasons to individually tease out from each witness’s evidence those aspects of each that I accept or reject. I do however intend to make findings of fact based on the evidence I accept as reliable. It will be obvious from those findings that some witnesses’ evidence has been accepted and other evidence rejected. Simply because I do not make mention specifically of any aspect of a witness’s testimony does not mean I have not considered it. There are aspects of the case generally that are not covered by the findings that I am about to announce. That does not mean that I have failed to consider those aspects.”
He then concluded the judgment by making the following findings.
“1.That the incident between the defendant and Giddings occurred during the third quarter of the game in question when Boston were kicking south.
2.That the incident occurred in what has generally been described as the south western quadrant.
3.The ball and players playing were, at the relevant time, in the north-eastern quadrant.
4.There was no clear possession by either team at the relevant time.
5.That incidents occurred as between the defendant and Giddings that could correctly be described as scragging.
6.That in an attempt to prevent that scragging the defendant chopped at Giddings’s hands.
7.That the injury sustained by Giddings was not as a result of any chopping movement.
8.That any pushing off of Giddings by the defendant, if it occurred, did not cause the injury to Giddings.
9.That the injury to Giddings was indeed caused by a punch delivered in the manner described by the prosecution witnesses.
10.That that punch constitutes an assault.”
He accordingly found the charge proved.
The difficulty with his findings, as I put it to Ms Telfer in arguendo, is that the magistrate appears on the one hand to have accepted what Mr Giddings denied, namely that he was scragging the appellant. He appears to have accepted the evidence of the appellant and of his witnesses that the appellant was in fact chopping at Mr Giddings’s hands in an endeavour to prevent the scragging.
At the same time he goes on to find that although the chopping action did not result in the injury to Mr Giddings, the injury was caused by a punch delivered in the manner described by the prosecution witnesses.
In my view, having regard to the manner in which the evidence unfolded at the trial, it is difficult to see how the two findings can stand together.
It is an essential element of the chopping action by the appellant to break free of the scragging by Mr Giddings, if that was what was occurring, that the appellant would necessarily have been ahead of Mr Giddings and breaking away from him, in order to lead off. On the other hand, it is an essential part of the case for the prosecution, on the evidence given by Mr Giddings and the other prosecution witnesses, that it was the appellant who was behind Mr Giddings, and that he came up to him or to the side of him before delivering the punch in a round arm fashion.
Ms Telfer has said everything which could be put in support of the proposition that, contrary to the view which I have just expressed, the two findings can stand together. But in my view, the difficulties in approaching the matter in the manner which appears in the magistrate’s reasons, on the evidence in this case, are insurmountable.
It is true, as Ms Telfer pointed out, that a downwards or chopping motion taken in isolation could not explain the injury, or at least not easily explain the injury, given that Mr Giddings was the taller of the two. She also suggested that he was faster, but I am not sure that that is very relevant in this case.
Ms Telfer also pointed to the evidence of the defendant and the witnesses Mr Fowler, Mr Bryant and Mr Rodda particularly, who spoke of the chopping action, and drew attention to their inability satisfactorily to explain how this might have occasioned the injury.
I note however that the witness Mr Rodda said that obviously the appellant “got him high”.
In a fast moving game such as football, simply to describe the action of the appellant as a downwards or chopping motion when he was endeavouring to break free of the scragging, which on the findings of the magistrate did take place, does not exclude the possibility that it could have resulted in an arm movement either at the commencement of the chop or by way of some flinging up of the arm afterwards, which might have caused the injury to the nose.
An imperceptibly quick movement of the arm in one direction or another could easily explain it, even although the basic intent of the movement was to stop the scragging action of the victim, or push him away.
It seems to me that, given the manner in which the evidence unfolded before the magistrate, his findings reveal an internal inconsistency and they cannot stand in the terms in which he pronounced them.
I do not go so far as Mr Algie suggests in his outline of argument to hold that as a general proposition it was not open to the magistrate to make findings of fact which did not square with the submissions put to him by both parties.
It is often the case that the court will make findings of fact which do not align completely with the arguments put on either side.
Of course, if a court moves in the direction of making findings which are completely at odds with the case presented on either side, that might be a situation in which the attention of the parties should be drawn to the possibility of findings of that kind, to enable appropriate submissions to be put.
It must follow from the manner in which he sets out his finding that the magistrate regarded a chopping or pushing action on the part of the appellant to break free of the scragging as preceding the separate action of a punch delivered in the manner described by the prosecution witnesses.
However, where there were irreconcilable differences between the body of evidence presented on each side, it was not a correct process of reasoning for the magistrate to accept the substance of what the witnesses on each side presented, but to take the movements which they described as sequential, which seems to be what he has done here.
The prosecution case was never presented on that basis. It seems to me that it would be wrong to allow that finding to stand in the terms in which he pronounced them.
The question then arises as to the proper course for this Court to take.
The authorities make it plain that it is for this Court to reassess the evidence for itself. On the hearing of a justices appeal it is never simply a case of addressing the question whether the evidence could have sustained findings which were made.
This Court must reassess the evidence and revisit the factual findings for itself, allowing however for the advantage which was held by the trial magistrate in seeing and hearing the witnesses.
In this case, so much depends upon an assessment of the credit of the witnesses on either side that it might be thought that the proper course would be to refer the matter back for retrial so that another magistrate might rehear the case.
If it was simply one account against another, a court might be able by reference to the manner of giving evidence, corroborating circumstances or other aspects of the case, define confidently that the evidence of one witness can be preferred against another.
However in this case there was a body of apparently credible evidence on both sides. The magistrate found that the witnesses on both sides were honest and doing their best to give a accurate account of the matter. Given that there was such a body of apparently credible evidence on each side, I doubt whether the conflict between them could ever be resolved in favour of a finding beyond reasonable doubt in favour of the prosecution case such as would be necessary to support a conviction.
However, I would not like it to be thought that it is always possible in a case such as this to avoid a conviction simply by calling a number of witnesses. It is never simply a matter of numbers. But the trial magistrate did not make any adverse findings as to the demeanour of the witnesses called by the appellant or as to their reliability. In those circumstances, for the reason which I have given, I do not think that it would be appropriate to order a retrial.
I would allow the appeal and substitute an order that the information be dismissed.
I so order.
[AFTER SUBMISSIONS AS TO COSTS]
PERRY J: I order that the respondent pay the appellant’s costs of and incidental to the appeal in the lump sum of $150. I further order that the respondent pay the appellant’s costs of and incidental to the proceedings in the Magistrates Court to be agreed between the prosecutor and the appellant, in default of agreement, to be fixed by the court.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1987) 139 LSJS 366.

[2003] SASC 260

8 August 2003