Butcher v Woods
[1996] QCA 465
•22/11/1996
| IN THE COURT OF APPEAL | [1996] QCA 465 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 336 of 1996
Brisbane
[Butcher v. Woods]
MICHAEL BUTCHER
v.
MARK WILLIAM WOODS
(Applicant) Appellant Thomas J
Lee JFryberg J
Judgment delivered 22 November 1996
Separate reasons for judgment by each member of the Court, Thomas J dissenting in part
Orders:
1.Application granted
2.Appeal allowed
3.Conviction set aside and verdict of acquittal entered
CATCHWORDS:
Criminal law - Test to be applied in determining an appeal from a magistrate's decision -
whether magistrate's decision should be interfered with.
Bailey v. Costin CA 261 of 1993, 18 October 1993
M v. The Queen (1994) 181 CLR, 494-495
R v. Free [1983] 2 Qd R 183
Sections 673, 668D, 668E Criminal Code
Counsel: | Appellant appeared on his own behalf Mr P.J. Callaghan for the Respondent |
| Solicitors: | Appellant appeared on his own behalf Commonwealth Director of Public Prosecutions for the Respondent |
| Hearing date: | 9 September 1996 |
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 22 November 1996
The applicant was convicted by a magistrate of assault occasioning bodily harm. He was sentenced to four months' imprisonment, wholly suspended, with an operational period of three years.
His notice of appeal was filed one day late and he therefore needs the leave of the Court to pursue an appeal against conviction and also an application for leave to appeal against sentence. The delay is adequately explained as being the result of difficulties in obtaining finance for legal costs as a private litigant. In the event the applicant has supplied to the Court copies of a full transcript of proceedings, but has appeared without the benefit of legal representation.
The grounds of appeal are devoid of particularity, and are confined to -
(1)the decision . . was unreasonable, or alternatively cannot be supported having regard to the
evidence, and was in all of the circumstances unsafe and unsatisfactory;
(2)the sentence was manifestly excessive in all the circumstances;
(3)the applicant reserves his right to amend, supplement and/or add further grounds.
The Court was not able to obtain a satisfactory statement of particulars from the applicant, but his written outline of argument raises particular points that may be discussed as particulars of ground 1.
Since preparing these reasons Fryberg J has provided me with a draft of his reasons, and these contain a more comprehensive statement of the evidence given before the magistrate. For convenience however I shall retain my more limited statement of the evidence as the basis of discussion of the points which I understand to have been argued.
The conviction was the result of an incident in the waiting area of the Family Court in Brisbane. The applicant is alleged to have assaulted one Peter Bakens. The applicant was present, apparently as a supporter of Mrs Bakens with whom he was then friendly. Indeed the applicant has since married the then Mrs Bakens. Apparently a dispute existed between Mr and Mrs Bakens in relation to the children of their marriage, and a group of persons comprising the applicant, Mrs Bakens, Mr Holloway (Mr Bakens' solicitor), Ms Johansens (the applicant's daughter-in-law) and Mr Pandi (a solicitor appointed by the Family Law Court in the interests of the children) were negotiating. In the course of this the applicant was shown a Family Services Department report that contained allegations by Mr Bakens against the applicant of abuse of Mr Bakens' children and of other children. The complainant Mr Bakens was seated some distance away (he says ten metres at the most, but the applicant says thirty metres). Mr Bakens had apparently been excluded from this particular discussion because of a current domestic violence order that prohibited him from approaching his wife, he having been convicted of breaching such an order some months previously. He was represented at the discussion by his solicitor Mr Holloway.
At a certain stage of the discussion, when the members of the group were standing more or less to face one another, Mr Bakens approached the group. His account of what then happened is markedly different from the account of the applicant. Mr Bakens' account was that as he approached, the applicant jumped towards him, kicked him in the groin, and then as he (Mr Bakens) was bent over, punched him to the back of the neck and the head. He said that the total number of blows (including kicks) was about six. The account continues that the applicant was then restrained by a security guard, at which point the complainant called out that the applicant was a paedophile. The applicant's version was that the complainant approached him "mouthing" (but not saying out loud) the words "You fuck. You're nothing but a paedophile." He claims that he saw the complainant's left leg "coming up" and that as a result he had used his leg to defend himself and push the complainant away. He disputed striking the complainant with his fists, stating that he had no recollection of so doing.
There was medical evidence of an examination the same day confirming bruising to the leg, and also bruising around the right dorsi-lateral area i.e. the back of the neck. The bruising to the thigh was to the anterior medial aspect, i.e. the inner thigh and is described as "quite a large bruise". The complainant complained of a sore back but the doctor found no obvious bruises in that area.
In resolving the conflict of evidence, the stipendiary magistrate considered that the evidence of Mr Bakens was supported by the evidence of the two solicitors Messrs Holloway and Pandi. Mr Holloway's evidence was to the effect that during the discussions among the group Mr Woods had offered him some papers, trying to persuade him that if he read the material he would be satisfied of what he and Mrs Bakens were saying. Mr Holloway thought that the applicant was endeavouring to act as advocate for Mrs Bakens, and suggested to him that he was not a party and that he was not being helpful. The applicant became agitated and started to raise his voice insisting that Mr Holloway read the documents or accept his point of view. Voices were raised and Mr Holloway says that he may have been talking over the applicant. Whilst this was happening, he saw the applicant take a large step forward as he lunged past Mr Holloway, with one of his feet stretching out and one of his arms raised in the air. As Mr Holloway turned he saw the applicant's hand coming down on the back of the neck of his client (Mr Bakens), who was then bent over and backing away. The applicant then said something, upon which Mr Bakens responded "Paedophile, paedophile, I want him charged".
Mr Pandi's evidence included "The defendant came towards me swinging his knee. I saw him try to kick and punch Bakens. Woods (the defendant) had a clenched fist." Mr Loimaranta (an MSS guard employed in the Family Court) also gave evidence of blows being delivered by the applicant with a closed fist in the region of the head and two or three blows to the body area.
The stipendiary magistrate noted that the aggressive approach described by Mr Holloway and Mr Pandi was denied by the applicant, and he stated that he did not accept the evidence of the applicant. He also rejected the evidence of Mrs Bakens, who between the incident and the present trial had married the applicant. She gave evidence that she saw Mr Bakens approaching the group clenching and raising his fists slightly. She stepped back and saw the applicant "come between us . . with his left hand raised and his right hand was sort of clenched but held back . . and his right leg was following forwards . . but I never saw any actual contact between the two of them. And then Mark (the applicant) stepped back straight away." That was of course consistent with the applicant's evidence, and generally inconsistent with what Mr Bakens, Mr Holloway and Mr Pandi had described.
The following points, which are essentially directed to demonstrate that the magistrate erred in accepting the prosecution account and rejecting the defence account, are mainly in the form of alleged inconsistencies between evidence of various witnesses. The main points taken were the following:
(1)It is said that Bakens is shown to have been wrong in claiming that before moving across to the talking group he heard their conversation, because there is other evidence suggesting that he was too far away. But there is evidence from Mr Holloway that he was ten metres away, and that voices were raised. In any event, this is a peripheral detail.
(2)Mr Bakens claimed that on approaching the group he either made eye contact with or said "good day" to Mr Holloway followed by "how long is this going to take?" immediately before the assault took place. In cross-examination he added that Mr Holloway said "Yeah" in reply to his "Good day." Mr Holloway does not confirm this, and was unaware of such contact or conversation having occurred. It would of course be possible for the complainant to have made such a statement which was not heard by Mr Holloway. This may however be regarded as an introductory detail upon which the evidence of Mr Holloway and that or Mr Bakens do not easily reconcile.
(3)Mr Loimaranta, a security guard employed for duty at the Family Law Court, gave evidence that he saw the complainant move towards the group from twenty-five to thirty metres away, and that as the complainant reached the group he saw him moving his mouth. Mr Loimaranta who was seven metres away from the group, did not hear his words (if any were uttered). He simply saw movements consistent with Mr Bakens having said something. Having regard to his distance and other sounds at the time this evidence is not, as contended by the applicant, confirmatory of his account and inconsistent with that of Mr Bakens. It is consistent with either version.
(4)It was further submitted that the evidence of both Mr Holloway and Mr Pandi confirmed that the complainant was calling the applicant a paedophile repeatedly. However this evidence plainly relates to the period after the physical contact. It is not supportive of the applicant's case of provocative statements made before the assault.
(5)There is an inconsistency between the statement given by Mr Bakens to Mr Butcher (who is described as an agent of the Australian Federal Police), and the account given by Mr Bakens to the Court. His original statement alleges that "Whilst I was standing on level one with my solicitor and other parties, I was approached by (the applicant). I saw that both of his fists were clenched . .". However the evidence before the magistrate, both of Mr Bakens and of all other witnesses was that Mr Bakens was the person who approached the group from some distance away.
(6)After the initial kick Mr Bakens says that "basically I was on my hands and knees" whereas
Mr Holloway's description is that he was staggering back, "almost in a crouch".
Other points raised by the applicant include the following:
(i)It is complained that the investigating police failed to obtain a copy of any video camera surveillance tape that may have covered the scene. As to this, it should be noted that it is not known whether such a tape exists, and that it would have been open to either side to subpoena such a tape. There is no impropriety in the prosecution failing to cover this point.
(ii)It is alleged that the stipendiary magistrate refused to allow evidence relating to "provocation by the complainant Bakens in the lead-up to the events". There were two stages during the trial at which the magistrate, short of formal rulings, discouraged defence counsel from pursuing past events. The first of these concerned past friction between Mr and Mrs Bakens. That plainly was beyond the ambit of admissible evidence of provocation of the applicant. The other instance concerned an incident five months before the relevant matter. The stipendiary magistrate observed "There's bad blood, we all know that, I think. Get to the issue, that's what's crucial. That's what I have to determine." The solicitor for the applicant did not press the matter, did not suggest that the matter was important or place on record the nature of any evidence that he wished to elicit. No objection was taken. No error is demonstrated on the part of the Court in respect of these matters.
Discussion
There is adequate evidence in the present matter supporting the existence of an assault or assaults of the kind described by the complainant. The stipendiary magistrate was entitled to prefer what plainly seems to have been a preponderance of evidence to this effect, and to reject the alternative version of the appellant which was based upon a limited assault to the leg as a defensive reaction. The applicant's version was entirely inconsistent, for example, with the doctor's finding of bruising to the neck, and the magistrate was entitled to find unconvincing the applicant's absence of memory or knowledge on this point. Having found that applicant unreliable on this issue as to which there was adequate evidence against him, the magistrate was entitled to take a similar approach to the remaining part of his story, namely the use of provocative words by the complainant immediately before the applicant assaulted him.
The applicant was of course entitled to rely on as many alternative defences as he chooses, even though they may raise forensic difficulties for him. His defence in this matter was essentially "The only violent act committed by me was the use of my boot on his leg; I do not recall punching or hitting him at all; my kick was in self-defence; alternatively if I did assault him and it was not in self-defence I did so because his words and actions provoked me to do so, including the punches if I punched him."
It is true that the complainant acted unwisely in approaching the group despite his solicitor's instructions to him to remain seated and despite the domestic violence order that prohibited him from approaching his wife. However his mere approach to the group was not sufficient to found the defence of provocation. The true issue here was whether the insult "paedophile" was used, and more specifically, whether the magistrate could be satisfied beyond reasonable doubt that such words were not used.
Current authority in the Court of Appeal suggests that this appeal can succeed only if no reasonable magistrate could have reached the conclusion which this magistrate did, or if there was no evidence to support that conclusion (Bailey v. Costin C.A. 261 of 1993, 18 October 1993), or if there is demonstrable error in the reasoning which appears to have formed an influential factor in the finding of credibility (R v. Free [1983] 2 Qd R. 183, 192). Since preparing these reasons I have read the draft judgment of Fryberg J, who has concluded that the reasoning in Bailey v. Costin above is inconsistent with M v. The Queen (1994) 181 CLR, 494- 495 and that it must be overruled. I do not find it necessary to decide this important point, because even if I were to apply the appellate test suggested by M v. The Queen in relation to this particular decision by a magistrate, I would still conclude that the conviction is safe and satisfactory. The suggested test, I take it, is whether this Court thinks that upon the whole of the evidence it was open (to the magistrate) to be satisfied beyond reasonable doubt that the accused was guilty. On that test I think it was plainly open for the magistrate to convict. No error appears in his reasoning, the preponderance of evidence supports the findings of assault, and it was reasonable to reject the evidence of the appellant and his wife that the insulting word "paedophile" was used before the assault. The fact that the complainant used that word after receiving blows from the appellant is not particularly convincing evidence that he used it before the assault. I also have great difficulty in understanding how the essential story of the applicant can stand in the light of the medical evidence.
The points which have been discussed above do not in my view constitute major inconsistencies. When an assault that takes place within a group, it is not uncommon to find variances in matters of detail. It is possible to perceive some exaggerations in Mr Bakens' evidence, but the substance of his story is confirmed by others. I have read the points raised in Fryberg J's draft judgment which are additional to those argued. I see no error or misunderstanding in the stipendiary magistrate's view that the considerable time lapse between the applicant's reading of the Family Services Department report and the assault prevented that particular incident from constituting provocation; and I see no error in his refusing to accept "the evidence of Woods" that Bakens mouthed these words. Both Mr Woods and his wife gave that evidence, and it is plain that this is a rejection of the evidence of both to that effect. Those points and the above points do not in my view individually or collectively demonstrate error in the magistrate's conclusion, or provide sufficient reason for this Court to hold that the conviction was unsafe and unsatisfactory.
The point was taken on behalf of the respondent that the above points all relate to questions of fact, and that strictly speaking the applicant requires leave to appeal against his conviction under s.668D(b) of the code. It is not necessary however to determine that question. We have allowed all arguments to be presented as upon an appeal. I have concluded that there is no ground upon which it should succeed.
Reception of further evidence
After the Court reserved its judgment, Mr Woods gave notice to the Registrar that he wished to place further material before the Court, namely a transcript of a decision in the Family Court. As the appeal is being allowed and the conviction is being set aside in any event, it is unnecessary to deal with this foreshadowed application.
Orders
In the present circumstances I would extend the time necessary for filing the appeal by one day, and dismiss the appeal.
REASONS FOR JUDGMENT - LEE J.
Delivered the 22nd day of November, 1996
I have read the reasons of Thomas J. and Fryberg J. It is not necessary to recount in any detail, the matters contained therein. However, I desire to make certain observations.
Notwithstanding that strong emotions are often involved with persons involved in Family Court proceedings, it is surprising that the alleged assault by the appellant on 29 January 1996 openly occurred in the presence of a group of reputable witnesses, in the busy foyer of the Family Court and with an independent security guard watching on close standby but not within the narrow circle of the group itself which was engaged in discussion. The group consisted of the appellant, Mrs Bakens (with whom he was friendly and has since married), Miss Johansons (his adult daughter-in-law), Mr Holloway (solicitor for the complainant Mr Bakens), and Mr Pandi (solicitor appointed by the Family Court for the children of the relationship between Mrs Bakens and the complainant).
The security guard, to the appellant's knowledge, deliberately stood about seven metres away from the incident between the complainant and the appellant (a distance he later measured), and close enough to keep a close eye on the complainant about whom he had been warned as a security risk. He had also had prior knowledge of the hostility between the complainant, Mrs Bakens and the appellant. Mrs Bakens was concerned for her safety and had asked the security guard to personally provide her with extra security because of the aggression displayed by the complainant to her. The appellant said that he was aware of that request. The security guard confirmed Mrs Bakens' request in evidence and said that extra security had to be provided because of the complainant's previous misbehaviour in Court. He accordingly watched the complainant closely the whole time.
The complainant was not in that group. His solicitor, Mr Holloway, had wisely seated him some distance away out of hearing, but apparently in sight of the others. Various estimates of the distance were given, the most reliable appearing to be that of the independent security guard who saw the complainant subsequently approach the group from 25-30 metres away. Mr Holloway took this precaution because he also knew of the animosity between his client, Mrs Bakens and the appellant and that allegations of paedophilia and indecent and other maltreatment by the appellant of specified young children had been made by the complainant in the past. There was also in existence a domestic violence order in favour of Mrs Bakens which forbade the complainant to come into any close proximity of her. The respondent admitted its existence and expiry on 28 June 1996. The complainant admitted that he had been convicted of breaking such an order. The appellant said that this occurred on 3 January 1996 although the precise date does not appear in the record below.
The complainant and Mrs Bakens were present in the Court precincts because of a case between them involving their matrimonial dispute and their children. The case had been stood down and the appellant was in the process of supporting Mrs Bakens' case in discussions with Mr Holloway and others. The appellant had been subpoenaed to give evidence in the matter that day. He said that he had just been handed a Family Court report only half an hour before the alleged incident in which the complainant had made more serious allegations of the above and other kinds concerning him. Amongst other things, the appellant was in the process of attempting to demonstrate to Mr Holloway and others that any such allegations were groundless. Mr Pandi said that there was no indication in the appellant's demeanour leading up to the assault to indicate that he would act as he did, although Mr Holloway said that his voice and that of the appellant's became raised. There was however no indication of impending violence.
During that discussion, according to both solicitors and indeed by the appellant himself, as well as the security guard, the appellant suddenly, without warning, lunged past and between the two solicitors towards the complainant who had, contrary to instructions from his solicitor and in breach of the domestic violence order, walked up close to and behind his solicitor who did not see him arrive. Neither did Mr Pandi. Both solicitors had their backs to the complainant. The complainant faced the appellant, Mrs Bakens, the appellant's daughter-in-law and the security guard all of whom were in a position to observe his approach. As indicated, that group stood in a fairly close circle whilst engaged in discussion.
The appellant said that the complainant had walked towards him in an aggressive manner
and that he was intimidated by his approach, having well known him over long periods and
having experienced spontaneous outbursts by him in the past. The appellant said he saw the
complainant silently mouthing the allegations which he lip read:-
"You fuck. You're nothing but a paedophile".
Neither solicitor was in a position to see whether or not the complainant's mouth opened as if he was silently uttering any words nor were they in a position to observe his demeanour as he approached. As indicated, their backs were turned to him. All other persons including the security guard were in a position to observe not only the complainant's approach but also his mouth. Of some importance, the security guard, an independent witness, said that as the complainant approached the group "I saw Mr Bakens say something. I didn't hear what Mr Bakens said. I actually saw his lips move." Apart from actually seeing the complainant's mouth move, the security guard said that he did not see him talking to anyone else within the group. Mrs Bakens who had been married to the complainant for many years, and was well aware of his personality, attitude and temperament, said she observed him approach in an aggressive and intimidating manner, and that she saw his mouth moving as if he was uttering a word which she believed was "paedophile". She said in cross-examination that the complainant had a habit of mouthing at people when he wanted to provoke them.
In evidence the appellant said:-
"He didn't speak the words, he said he called me a 'f' and he told me - and he said, 'you're nothing but a paedophile' and I could read what he said and ... his hands were in front of him and down and clenched and he came walking up into the circle of people. His left leg started to come up on top. The violence had been going on for 7 months. I reacted in a instant. I was having a conversation the next thing he is there and he is winding me up."
And further:-
"My wife had a restraining order against him to stop him coming near her because of his aggression and his violence. I just - fearful of what was going to happen next. It had been ongoing for months and months before. I didn't know what to do. I just lost the plot."
He also said that what occurred was "the straw that broke the camel's back". In cross- examination he said the complainant "Pull my chain and I flush" and that he pushed him over the limit. The complainant said "Mark was waving his arms and carrying on like a lunatic". These statements, if accepted, were consistent with him having been provoked and out of control. So was his conduct in suddenly lunging past two solicitors to confront the complainant, although on their own, these matters do not establish provocation as a defence to the assault. Of some note is the fact that the appellant was arrested immediately after the incident and promptly told a police officer that the complainant had mouthed the word "paedophile" as he approached. This is in the record of interview. It is also of some note that the complainant immediately called out "paedophile" more than once immediately after the assault which on all the evidence lasted no more than a few seconds. Mr Pandi said two seconds.
It is clear that all of the background circumstances above referred to and the location of the various persons involved in the foyer of the Family Court that day for the various reasons given, provided an ideal setting and a charged atmosphere in which provocation of the appellant, if he was in fact provoked, would have been very intense indeed and would, if provoked to the extent that he claimed (and out of control as the complainant said), perhaps have explained to some extent his difficulty in recalling all details of a very quick tussle with the complainant which, as indicated, lasted no more than a few seconds.
Counsel for the respondent on the appeal conceded that against the above background and circumstances, the approach by the complainant against his solicitor's instructions (and unlawfully), was a provocative act but it was submitted that it was not of itself provocation. Counsel for the respondent also freely conceded that had the words "paedophile" been mouthed in the way in which the appellant alleged, that would certainly have amounted to provocation such that his actions would have been excused. It was also conceded by the respondent that the issue of provocation, including the alleged mouthing of the offending words, were of such critical importance to the case that the stipendiary magistrate had to be satisfied beyond reasonable doubt that those words were not mouthed. The prosecution was required to exclude the "defence" of provocation, as well as self-defence, beyond reasonable doubt.
Apart from the alleged inconsistencies referred to in the reasons of Thomas J. and Fryberg J., much of the appellant's complaints hinged around what he submitted was the magistrate's refusal to allow his solicitor to adduce evidence of the relationship between the complainant, Mrs Bakens and himself. It was said that every time his solicitor endeavoured to lead any such evidence, the magistrate made it clear that he was not to do so. In his outline he claimed that the magistrate refused to allow evidence relating to "provocation by the complainant Bakens in the lead up to the event". This was enlarged during the hearing to include reports and/or other evidence which, he submitted totally exonerated him from the serious misconduct falsely levelled on him by the complainant for a considerable period as well as in the foyer of the Court that day.
The record discloses that during the hearing below, the appellant's solicitor attempted on at least two occasions to lead evidence of the history of the relationship between the complainant, Mrs Bakens and the appellant. He submitted that this material showed the true background of the relationship leading up to the events on the day in question. On those occasions, the magistrate discouraged the defence from adducing such material. The appellant's solicitor also referred in cross-examination of Mr Holloway, to a report or reports of the Family Court allegedly exonerating the appellant from any misconduct of the serious kind levelled at him by the complainant but the solicitor did not pursue this, the submission being that the stipendiary magistrate had openly discouraged any evidence outside the direct issue he had to determine, i.e. whether assault occurred and who was responsible. It was further submitted that the prosecutor during cross-examination of the appellant, challenged him to produce a psychiatrist's report attesting to the fact that, as the appellant had stated, the complainant was psychotic. The prosecutor said "Well, I'd like to see if you can produce it". From this it was submitted that he should now be able to use such material which involved the complainant, Mrs Bakens and himself and which was not then available during the hearing because it was in the Family Court.
There was no formal objection taken to the magistrate's refusal to allow any of the foregoing matters to be canvassed in the evidence. Indeed, a specific and formal ruling should have been sought by the legal representatives of the appellant with an outline of the nature of the evidence sought to be called and its relevance, if those matters were to be relied upon by the defence. Following the solicitor's attempt to introduce such evidence, the magistrate made his views known. Accordingly, the solicitor did not press the matter any further.
Apart from self-defence, (I agree with the treatment of this by Fryberg J.) the real crux of the defence case was whether or not the appellant was provoked by the alleged mouthing of the above words, into spontaneously assaulting the complainant when he had been in the process of close conversation with Mr Holloway and others in the group on matters of concern to himself and Mrs Bakens, or, to put it more correctly, whether the Crown had excluded provocation beyond reasonable doubt.
The substance of the appellant's point regarding the above evidence which was not introduced was in effect that had he been allowed to introduce the above report or reports and/or other admissible evidence on this topic before the magistrate, it might have assisted in independently proving that the complainant's allegations were false and that the appellant had been totally exonerated from all such allegations. The general effect of this, as appears from the argument, was that it might have assisted in demonstrating (independently of the appellant's assertions), that if the complainant silently mouthed the words complained about, and that those words were demonstrably false, they might more seriously have provoked an innocent man than if the allegations were true, and particularly having regard to the background circumstances referred to above.
Another consequence might have been that such evidence may have been capable of demonstrating that the complainant was an untruthful person who could not be believed. However the latter is a collateral consequence and the evidence would not have been admissible for the sole purpose of attacking or destroying the general credit of the complainant who had made false and malicious allegations against the appellant.
The allegations of paedophilia, indecent assault and other serious conduct levelled against the appellant were very live issues right throughout the trial. The complainant himself forcibly said in evidence that he had made numerous allegations of paedophilia and indecent and other treatment by the appellant of children to a psychologist and to various authorities who he said were investigating the matters but who did not have sufficient evidence to proceed against the appellant. The complainant also said that he raised other allegations against the appellant some of which imputed serious criminal conduct. As indicated, immediately after the assault he also shouted the word "paedophile" more than once at the appellant.
The appellant said that numerous serious allegations had been made about him but that he had been cleared, his concern being that he was not being believed. Mr Holloway also said that he was aware of the fact that extensive allegations had been made by the complainant against the appellant and that they were being investigated he thought in the usual way that the Family Court performed that function. It was put to Mr Holloway in cross-examination that those matters were finalised and that there was correspondence enclosing a psychiatric report and evidence which totally cleared the appellant of any behaviour of that sort. Mr Holloway said that he did not have any knowledge of that matter.
It is of course quite correct that the conviction of the appellant for assault does not mean that he was in fact a paedophile although as conceded during argument on the appeal by the respondent's Counsel, the magistrate did not say in his reasons that the allegations of paedophilia were irrelevant and would be disregarded although the magistrate, without saying so, was probably of that view. On the other hand, according to the appellant, the magistrate did not stop or discourage evidence of these allegations being given but only the evidence which the appellant claims should have been adduced by him to assist in rebutting them.
The approach of the magistrate on this general topic was understandable, given that any such evidence was not directly relevant to the issue of whether or not an assault occurred on the day in question, and in the absence of a specific formulation of a submission by the appellant's legal adviser limiting the scope of such evidence. The magistrate's task was not to engage in a general enquiry of that kind. On the other hand, it cannot be said that any such evidence, had it been introduced in a limited and admissible form, would have been totally irrelevant to the question of provocation. Had such evidence been received, either that day or on an adjourned day, it would then have been impossible to say whether the decision of the magistrate would necessarily have been the same merely because he disbelieved the appellant and Mrs Bakens on the material then before him.
The problem however is that the solicitor for the appellant did not press the matter nor raise and have recorded a formal objection, nor did he seek an adjournment. The appellant is accordingly bound by the conduct of the proceedings by his legal advisers. This Court must act on the record of evidence introduced below. In the result, the magistrate cannot be criticised for the course he took.
The decision of the magistrate is in very short form. He concluded that the complainant's evidence of the actual physical assault and aggressive approach by the appellant was supported by the evidence of Mr Holloway and Mr Pandi and he rejected the evidence of the appellant's denial of what had occurred in this respect. He was entitled to so find. This finding, of course, did not mean that the appellant was not provoked in what he did. Nor does the medical evidence, which gives some support to the finding of the complainant's injuries and therefore how the assault itself occurred, have the consequence that the appellant was necessarily not provoked, which is quite a distinct matter. There was no reference to the medical evidence in his decision. In the absence of specific findings, the medical evidence (and indeed the evidence of the complainant and both solicitors) is equally consistent with the view that the assault and injuries inflicted were the result of a person provoked and temporarily out of control as the complainant described the appellant and as the appellant described himself, i.e. he "lost the plot", or what had occurred was "the last straw that broke the camel's back".
The judgment then immediately referred to the appellant's evidence that he had no
recollection of striking with a clenched fist and cited as appropriate, with modification, a
statement in Cooper v McKenna [1960] Qd.R. 406 per Staple J. at 419:-
"Loss of memory, blackout, is the first defence to a guilty mind and a popular excuse."
Such a conclusion may well have been justified, if the appellant was not provoked and temporarily out of control. The magistrate then expressed great surprise that Mrs Bakens did not see the actual physical contact although no reference was made to evidence bearing on this question. Mrs Bakens said in evidence that as the complainant approached and his demeanour changed "Suddenly I just saw Mark come between us". She said she had seen the appellant raising his leg. The evidence shows that the appellant was a big man, six feet tall and 22 stone in weight and the complainant was about 5'6" tall. The appellant's back was to Mrs Bakens. She said that her view was blocked for an instant. There were also two solicitors close by all of whom may have to some extent temporarily obscured her vision in the tussle and scramble of a few seconds duration. Mr Holloway said that the appellant lunged "very close to my left shoulder". Mr Pandi said that as the appellant was a lot bigger than he was, and had his back to him, he could not see past the appellant and observe all details of what occurred between the appellant and the complainant.
The magistrate then said he did not accept the evidence of the appellant that the complainant had mouthed obscenities or was aggressive. The decision continued:-
"The defence of provocation and/or self-defence, in my view, have not been properly raised. There was a considerable time lapse from the reading of the report to the incident. For a provocation to be a defence the person must act upon it on the sudden and before there is time for his passion to cool. Provocation does not apply in my view."
He then proceeded to convict the appellant.
There is no doubt that provocation could not apply from the mere reading of the Family Court report which the appellant had read half an hour previously. But this was no more than a background circumstance. The real question was whether or not the prosecution had excluded beyond reasonable doubt the mouthing of the offending words by the complainant. The magistrate's previous remark that provocation had "not been properly raised" was imprecisely expressed because it had in fact been raised in a substantial way by the appellant, by Mrs Bakens and by the proved prevailing circumstances as outlined above. The magistrate's remarks must be taken to have meant that in the light of his non-acceptance of their evidence, it was not otherwise raised at all. The question is whether that conclusion can stand.
Apart from the sworn evidence of the appellant and Mrs Bakens and the undisputed evidence that the appellant lunged unexpectedly past the two solicitors towards the complainant who was then situated behind them, there is the evidence of the independent security guard who was positioned to specifically keep an eye on the complainant. He said he saw the complainant say something although he did not hear what if anything he said. He was quite definite that he actually saw the complainant's lips move. He also said that he did not see the complainant talk to anyone else within the group and that the complainant had only reached a point outside of the group. That position was also confirmed by both solicitors as well as by the appellant and Mrs Bakens. In addition, neither solicitor knew that the complainant was there before the appellant lunged between them. They both said clearly that the complainant was behind them at all times. Neither of them heard any words from the complainant as he approached them. Their evidence appears to be definite about that and particularly that of Mr Holloway. They were both engaged in conversation with the appellant. Mr Holloway said the appellant was less than a metre from him and had his full attention. He did not hear any words uttered by the appellant to the complainant or visa versa. All of the foregoing observations are in direct conflict with the complainant's version of what occurred as he approached. He said (3):-
"...I approached Mr Holloway and - and the child's solicitor. I stood next to Mr Holloway. He looked at me and I gave him a nod and I asked him how long was this going to take, basically I had another meeting with a personal injuries solicitor only a couple of hours later and I - I was quite anxious to get there.
Yes. And did you say something?-- Yeah, just to Mr Holloway.
Yeah. What did you say?-- I asked him, 'How long would this - is this going to take'.
All right. And what happened then?-- I overhead this Mark Woods character angrily say, 'Oh, may be I'll just have to take it into my own hands'. I looked up and he was in flight."
In cross-examination (6-7) he confirmed that he came and stood next to his solicitor Mr Holloway, on his left side and that on his immediate left was the child's solicitor (Mr Pandi). The appellant was immediately in front of him in the circle of people a couple of metres away. He also stated that he spoke directly to his solicitor and said "Good day" and Mr Holloway said "Yeah" and he asked the above question "How long is this going to take?". In re-examination, he said he formed part of the ring comprising the two solicitors, the appellant and others, i.e. that he was not outside the group but part of it.
It is inconceivable that Mr Holloway could have failed to hear the words attributed to the appellant by the complainant "Oh, may be I'll have just to take it into my own hands". It is also inconceivable that he could have been mistaken as to the position up to which the complainant had walked behind him and not next to him on his left hand side. He did not know the complainant was there until he turned 90 degrees after the appellant's lunge. So with Mr Pandi who the complainant said was on his immediate left. The complainant was behind them both and not within the group as he contended. Mr Pandi said he was not within the group. The security guard said the same as did the appellant. Nor is it reasonable to conclude that Mr Holloway did not hear the complainant speak to him along the lines set out above or that he acknowledged the complainant and had forgotten it. Mr Pandi also did not hear any words allegedly uttered by the appellant or the complainant immediately before the assault.
The evidence of both solicitors and the security guard was of fundamental importance to the appellant's case and in particular to his evidence and that of Mrs Bakens' that they observed the complainant approach in an aggressive manner and mouth silently the words complained of. The magistrate did not mention any of these factors in his reasons, nor did he make any comment as to the evidence of the security guard or the police officer Butcher who took a statement from the appellant very soon after the incident.
I agree with Fryberg J. that these critical factors should have been addressed in the reasons given and findings made, particularly if the magistrate accepted beyond reasonable doubt that all of these matters were consistent only with other explanations pointing to guilt and to the exclusion beyond reasonable doubt of all hypotheses reasonably consistent with innocence: Peacock v R (1912) 13 C.L.R. 619. In other words, the criminal onus of proof would be misapplied if all that could be said is that the above factors were capable of explanations consistent with guilt, whilst at the same time they were also reasonably capable of explanations consistent with innocence.
As the magistrate rejected the evidence of the appellant and Mrs Bakens, and made no findings with respect to these matters, it must be taken that he implicitly accepted the evidence of the security guard and the solicitors above referred to. He accepted the evidence of the solicitors in other respects and no good reason appears, nor was any advanced by the respondent on the appeal, as to why their evidence and that of the security guard should not have been accepted.
It was submitted on behalf of the respondent that the test to be applied in these circumstances was that set out in Bailey v Costin (Court of Appeal, 18th October 1993, No. 261 of 1993, unreported). The relevant passages are set out in the judgment of Fryberg J. What was stressed in the lead up to the formulation of the various tests, was the advantage which the magistrate had of seeing and hearing witnesses on what was plainly an issue of credit. This is also an essential factor when an Appeal Court considers the test in M v The Queen (1994) 181 C.L.R. 487 as to whether a verdict of a jury was unsafe and unsatisfactory, i.e. whether the jury's observations of the witnesses were sufficient to resolve any doubt entertained by the Appeal Court. The test laid down in Bailey was that the appeal can succeed only if no reasonable magistrate could have reached the conclusion which the magistrate did or if there was no evidence to support that conclusion. A further basis was that laid down in R v Free [1983] 2 Qd.R. 183 at 191-2 namely "Where findings on credibility are accompanied by reasons in which error is detected, the Court may interfere".
The first test is that the Court should not interfere unless no reasonable magistrate could have arrived at the decision. That seems to me to be another way of saying that upon the whole of the evidence it was not open to the magistrate to come to the decision. cf the test in M v The Queen on an appeal from the jury's verdict. A decision which was not open to the magistrate must also be a decision which no reasonable magistrate could have arrived at.
In this case the magistrate concluded that the appellant was guilty beyond reasonable doubt, although, as indicated, he implicitly accepted the security guard's evidence as to the movement by the complainant of his lips and mouth, and the other evidence above referred to from the two solicitors. It is plain that the acceptance of that evidence leads to some doubt as to whether the offensive words were mouthed, notwithstanding that such evidence could conceivably have been consistent with other possible explanations. This must therefore raise a doubt as to whether the prosecution has excluded the defence of provocation. This is not a question of whether a reasonable magistrate should have had the doubt. It is plain that he must have had that doubt. Accordingly it must be said that "no reasonable magistrate could have come to the conclusion which the magistrate did", namely that the appellant was guilty beyond reasonable doubt of assault.
The test in R v Free (supra) is also applicable in these circumstances. The magistrate's obvious failure to apply the evidence of the security guard and the solicitors when considering provocation is a clear error in relation to a finding of credibility because the magistrate rejected the notion of provocation on the basis that he was unconvinced by the testimony of the appellant or Mrs Bakens. To reject the allegation that provocative words were mouthed by the complainant solely on the basis of a rejection of the appellant's and Mrs Bakens' evidence is obviously an error because the evidence of the security guard and the solicitors is clearly corroborative of their allegations.
On both of these grounds therefore, this Court is entitled to interfere with the magistrate's decision. There was clearly some doubt as to whether the Crown had excluded provocation to the required standard, that is, beyond reasonable doubt. That being so, the appellant must be given the benefit of that doubt. This conclusion is fortified, in my opinion, by the numerous inconsistencies referred to by Thomas J. and Fryberg J. and the circumstances leading up to the incident.
I should add that if the test in M v The Queen was applicable in the case of an appeal from a magistrate's decision and not limited to an appeal from a jury, my conclusion would have been the same namely that the verdict was unsafe and unsatisfactory. However, I do not consider it necessary to decide whether or not the decision of Bailey is inconsistent with M v The Queen or whether the sole test to be applied is that laid down in the latter case, and particularly as there was no argument directed to the question.
The appeal is allowed, and a verdict of acquittal entered.
Since the hearing, the appellant has sought to place further material before the Court. In view of the above conclusion, I do not consider that it is necessary to deal with that matter.
REASONS FOR JUDGMENT - FRYBERG J.
Delivered the 22nd day of November, 1996
The applicant was convicted by a magistrate of assault occasioning bodily harm. He was sentenced to four months' imprisonment, wholly suspended, with an operational period of three years. He now wishes to appeal against that conviction, but because his notice of appeal was filed one day late by solicitors acting on his behalf, he seeks an extension of time for appealing. The Crown conceded that delay was no obstacle to the extension of time, and opposed it only on grounds relating to the merits of the appeal. Consequently, those merits were fully argued before us, the applicant appearing without the benefit of legal representation.
The grounds of the proposed appeal are:
"1.The decision of the learned Stipendiary Magistrate was unreasonable, or alternatively cannot be supported having regard to the evidence, and was, in all of the circumstances, unsafe and unsatisfactory;
2.The sentence was manifestly excessive in all the circumstances;
3.The Applicant reserves his right to amend, supplement and/or add further grounds."
The presecutor alleged that the applicant assaulted one Peter Bakens in the waiting area of the Family Court in Brisbane. That Court was dealing with a dispute between Mr Bakens and his wife in relation to the children of their marriage. The applicant was there under subpoena, but as a supporter of Mrs Bakens with whom he was then friendly. Indeed the applicant has since married Mrs Bakens. The applicant, Mrs Bakens, Ms Johansons (the applicant's daughter- in-law), Mr Holloway (Mr Bakens' solicitor) and Mr Pandi (a solicitor appointed by the Family Court to act in the interests of the children) were having negotiations regarding certain undertakings given by Mrs Bakens. They were standing more or less to face one another. Mr Bakens was seated some distance away, a distance variously estimated between 30m and less than 10m. He had been placed in that position by his solicitor, who thought it would be unwise to let him and the applicant be near each other. However, Mr Bakens approached the group.
Various accounts were given of what happened next. Mr Bakens' account is markedly different from the account of the applicant. Mr Bakens' account, as given in his evidence-in- chief, was that he stood next to his solicitor, Mr Holloway, who looked at him. He said that he gave Mr Holloway a nod (or said, "Good day") and asked him how long this was going to take. He said that he then heard the applicant say, "Oh, maybe I'll just have to take it into my own hands". He then looked up and saw the applicant jumping through the group at him. The applicant kicked him hard in the groin and just above the knee and he was bent over. While he was bent he was hit with a fist to the back of the neck and the head. He estimated the total number of blows (kicks and hits) at about six. He said that he had to pick himself up off the ground - basically he was on his hands and knees - and that by the time he did so, the applicant had been restrained by a security guard. He then yelled at the applicant, "You're nothing but a paedophile". He spoke to Mr Holloway and, shortly afterwards, to a federal police officer, who asked him if he wanted to press charges. He told the officer that he wanted the applicant charged and gave a statement to him. Later that afternoon he saw a doctor. He had suffered a lot of bruising and the bruise on his leg lasted seven or eight weeks. He had migraines "pretty severely" for three months and still suffered minor headaches.
There was medical evidence of an examination the same day confirming bruising to the leg, and also bruising around the back of the neck. The bruising to the leg was to the inner thigh and is described as "quite a large bruise". Mr Bakens complained of a sore back but the doctor found no obvious bruises in that area.
The applicant testified that about half an hour before the incident at the court, he was handed a copy of a report prepared by an officer of the Family Services Department. The report was not tendered below, but the applicant was allowed to give secondary evidence of its contents over objection on behalf of the complainant. Apparently it dealt with investigations by the Department and by police which had been under way for some time into allegations that the applicant was guilty of abuse of two of Mr Bakens' female daughters and of a child of a man named Roos. The applicant said that he knew of the investigations but until he read the report had not known that the complaints had been made by Mr Bakens. He said the complaints were false. He had known Mr Bakens for some years and there had been bad blood between them, as well as a number of court proceedings involving them both. At the time of the incident he was in the group described above, talking to Mr Holloway. Mr Bakens had been sitting on a bench about 20 metres away, but came up to the group behind Mr Holloway. As he approached, according to the applicant, he mouthed the words, "You fuck, you're nothing but a paedophile". The applicant read his lips. Mr Bakens' hands were in front of him, fists clenched and as he came up to the circle of people his left leg started to come up. He was, swore the applicant, "winding me up". The applicant said he stepped into the circle and went towards Mr Bakens. He brought his right leg up because Mr Bakens had his left leg coming up. He claimed that Mr Bakens "always kicks first and then starts throwing punches". Mr Bakens' ex-wife had obtained a domestic violence order against him by reason of "his aggression and his violence". The applicant was, he said, fearful of what was going to happen; it had been going on for months previously; he did not know what to do; and he "lost the plot". He said he was in a highly emotional state, having been upset by Mr Bakens.
He claimed that he pushed Mr Bakens away from Mrs Bakens and himself with one hand and had the other hand "cocked" to throw a punch at him if Mr Bakens had punched first. He said he had no recollection of placing his hand on the back of Mr Bakens' head. After he pushed him, Mr Bakens was hunched down saying, "No more, no more", and he stepped back from him as a security guard intervened.
The applicant claimed that at the time of the incident, he was under stress. He had been in hospital for an operation to remove part of his bowel; he was seeing a psychiatrist; and there had been 13 appearances in the Magistrates Court in seven months, during which Mr Bakens continued to make allegations against him. In particular, he was devastated by the allegation that he had molested the daughter of his best friend (Mr Roos).
The magistrate found that Mr Bakens' version was supported by the evidence of the two solicitors Messrs Holloway and Pandi. Mr Holloway testified that in the course of the negotiations the applicant had tried to persuade him to read some papers. He inferred that the applicant was endeavouring to be the advocate for Mrs Bakens. Mr Holloway suggested to him that he was not a party and that he was "muddying the waters". The applicant seemed to become agitated and started to raise his voice, insisting that Mr Holloway read the documents or accept his point of view. Mr Holloway said that he may have been talking over the applicant. Whilst this was happening, he saw the applicant take a large step forward as he lunged past Mr Holloway, with one of his feet stretching out and one of his arms raised in the air. As Mr Holloway turned he saw the applicant's hand coming down on the back of the neck of his client (Mr Bakens), who was then bent over and backing away. The applicant then said something, upon which Mr Bakens responded "Paedophile, paedophile, I want him charged!". Mr Pandi testified: "[the applicant] sort of came forward toward me swinging up his knee"; "he tried to kick Mr Bakens"; and "I think he tried to punch him a couple of times"; and in response to the (leading) question, "Did he have a clenched fist?", he answered, "Yes."
The magistrate characterised the applicant's approach as described by Mr Holloway and Mr Pandi as aggressive. He observed that the applicant denied such an approach and found that he did not accept the applicant's evidence. Apparently, he also rejected the evidence of Mrs Bakens. She testified that Mr Bakens approached the group clenching and raising his fists slightly. She stepped back and saw the applicant "come between us . . with his left hand raised and his right hand was sort of clenched but held back . . and his right leg was following forwards". However she saw no contact between the applicant and Mr Bakens. She said that the applicant "stepped back straight away".
In the Court below the solicitor who appeared on the applicant's behalf did not argue that there had been no conduct capable of constituting an assault. Rather, he advanced two defences: self defence and provocation. The first of these defences depended very much upon the circumstances of the actual assault. On the evidence described above it was undoubtedly open to the magistrate to reject the version given by the applicant. Once he did so, the defence became unarguable. That is what I take him to have meant when he said that the defence had not been "properly raised". Before us, the applicant did not abandon this defence; but it is fair to say that he did not support it with nearly the same vigour as the alternative.
To decide the question of provocation, the magistrate had to decide some further issues of credibility. He had to decide whether he rejected the applicant's evidence of what occurred immediately before the actual assault; and he had to decide whether he accepted Mr Bakens' version of those events. He then had to apply the provisions of the Criminal Code relating to provocation to the events as he found them to have been.
The magistrate rejected the applicant's version. He also accepted Mr Bakens' version, but unfortunately, he gave no reasons for taking this course. Even if the applicant's evidence were to be rejected in toto, it did not necessarily follow that Mr Bakens' evidence should have been accepted. As will be seen shortly, it was open to criticism. This was a case where there was a long history of animosity between the two men, and it was not disputed that emotions ran high on both sides. Mr Bakens' evidence ought to have been scrutinised carefully. Reasons for accepting or rejecting it ought to have been given. They were not. Inevitably that must mean that the respect which is accorded to the finding of the court of first instance on such issues is diminished.
What of the rejection of the applicant's evidence regarding provocation? It will often be the case that where a judge or magistrate disbelieves a witness on one aspect of a case, that is a sufficient foundation for disbelieving the whole of that witness's evidence. In the present case however, there were a number of features which ought to have suggested the need for care in adopting such an approach. First, the whole question of whether the prosecution had negatived provocation as a defence depended upon the magistrate's being satisfied beyond reasonable doubt that Mr Bakens had not mouthed the words attributed to him by the applicant. Before us (although not before the magistrate) counsel for the Crown conceded that those words would have supported a finding of provocation and that they were of such central importance that the magistrate had to be satisfied beyond reasonable doubt that they were not spoken. Unfortunately, that does not seem to have been a central issue in the magistrate's mind. Rather, he seems to have thought that the major issue on provocation was the reading of the Family Services Department report:
"There was a considerable time lapse from the reading of the report to the incident. For a provocation to be a defence the person must act upon it on the sudden and before there is time for his passion to cool. Provocation does not apply in my view."
Apart from a sentence rejecting the evidence of "Woods" regarding the mouthing of the words (it is not clear whether at that point the magistrate was referring to the applicant or to his wife), the question of provocation was not addressed.
Before us the applicant raised a number of matters which he submitted ought to have led the magistrate to reject Mr Bakens' evidence, or at least to entertain a reasonable doubt about its truth on the crucial point. First, he pointed to the evidence of Mr Loimaranta, a security guard employed at the Family Court, who was called by the prosecution. He gave evidence that he had seen both the applicant and Mr Bakens on prior occasions. He was paying particular attention to Mr Bakens on the day in question because he had been directed by the Registrar to be in the area and to show extra security concerns where Mr Bakens was concerned. Also, Mrs Bakens had on a previous occasion "said that she was fearful and that could I give her some extra security". He said that Mr Bakens' file had a blue stripe, and in re-examination gave as examples of the sort of thing that could cause this: abusing a judge in Court, hitting someone outside the Court, throwing something in the Court or spitting at a wife in the Court.
He said that as he watched, he saw Mr Bakens approaching the group over a distance of approximately 25-30 metres. He said that as Mr Bakens approached the group, he saw his mouth move but did not hear him say anything. At that point, Mr Bakens was two metres from the group and seven metres from him (he later measured the distance). Asked what happened then, he said that when Mr Bakens got to the outside of the group he saw the applicant move very quickly toward him and strike him in the region of the head.
The applicant submitted that this evidence was inconsistent with and should be preferred to that of Mr Bakens. Insofar as it relies upon Mr Loimaranta's not having heard anything, there is no necessary inconsistency. At a distance of seven metres in that environment, Mr Loimaranta would not necessarily have heard what Mr Bakens said. Nonetheless, Mr Loimaranta's evidence does corroborate the version given by the applicant and his now wife that Mr Bakens' mouth was moving as he approached the group - it will be recalled that Mr Bakens said he came and stood next to his solicitor before he spoke.
Second, Mr Bakens claimed that on approaching the group he made eye contact with or said "Good day" to Mr Holloway; Mr Holloway responded, "Yeah"; and Mr Bakens said, "How long is this going to take?" - all immediately before the assault took place. Mr Holloway did not confirm this, and was unaware of such contact or conversation having occurred. If it did not occur, Mr Loimaranta's evidence would assume even greater importance. It would of course be possible for the complainant to have made such a statement which was not heard by Mr Holloway, but it is less likely Mr Holloway would have responded unknowingly. This may be regarded as a detail upon which the evidence of Mr Holloway and that of Mr Bakens do not easily reconcile.
In the heat of cross-examination, Mr Bakens changed his version to allege that he approached the group to see if he could assist his solicitor so the matter could get into Court to be heard. He said he wanted it heard. His attempt to reconcile this assertion with his original version was unconvincing.
Third, Mr Bakens claimed that immediately before the attack, the applicant said, "Oh maybe I'll just have to take it into my own hands." The applicant was in conversation with both Mr Holloway and Mr Pandi at that time, and both of them were looking at him. Neither of them alleged that he made any such statement. It would be surprising, if the statement was made, that both of them should either have forgotten it or not noticed it.
Fourth, the applicant pointed to the evidence of both Mr Holloway and Mr Pandi that Mr Bakens yelled out, calling the applicant a paedophile at least twice immediately after the assault. Of course, this does not demonstrate that he mouthed the same words a few seconds earlier. However it is an odd reaction to being kicked and punched a number of times. It does show that the assertion of paedophilia was on Mr Bakens' mind, and, although not too much should be made of the point, its spontaneity gives some corroboration to the applicant's allegation. Moreover, as the prosecution showed by tendering the statement made by the applicant to the investigating police officer, that allegation was made promptly.
The applicant referred to a number of other inconsistencies in Mr Bakens' evidence, including some inconsistency between that evidence and his statement to the investigating officer. It is unnecessary to recount these. They were all of a fairly minor nature and in the absence of the matters to which reference has already been made, would not have been such as to cause much disquiet at the outcome of the proceedings below. They have some weight when added to those matters.
On behalf of the Crown, Mr Callaghan submitted that the test to be applied in determining whether there ought to be leave to appeal against conviction on questions of fact was that set out in Bailey v Costin[1]. In that case, as in the present, the appeal lay to this Court pursuant to s.673 of the Criminal Code:
"Appeals from summary convictions
673. (1)A person convicted summarily of an indictable offence may appeal against the person's conviction and against the sentence passed on the person's conviction on the same grounds and on the same conditions as if the person had been convicted on indictment.
(2)The rights conferred by this section are conferred to the exclusion of any other right of appeal conferred by the Justices Act 1886 on persons aggrieved by summary convictions and sentences passed on such convictions."
Appeals against conviction on indictment are dealt with by ss.668D and 668E:
"Right of appeal
668D. A person convicted on indictment may appeal to the Court -
(a)against the person's conviction on any ground which involves a question of law alone;
and
(b)with the leave of the Court, or upon the certificate of the Judge of the court of trial that it is a fit case for appeal, against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and
(c)with the leave of the Court, against the sentence passed on the person's conviction.
Determination of appeal in ordinary cases
668E. (1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
In a reserved judgment of the whole Court in that case, it was said:
"The advantage which the magistrate had of seeing and hearing the witnesses on what was plainly an issue of credit cannot be over-emphasised. This Court cannot speculate, as it was, in effect, invited to, upon whether the magistrate may have been distracted by the appellant's personality or his manner of giving evidence; or upon the extent to which animus against the appellant may have affected the evidence of the complainant or her mother.
This appeal can succeed only if no reasonable magistrate could have reached the conclusion which the magistrate did or if there was no evidence to support that conclusion; see R v Robertson (1980) 2 A.Crim.R. 369 at 373, but also see R v Free [1983] 2 Qd.R. 183 at 191-2, which is authority for the view that where findings on credibility are accompanied by reasons in which error is detected, the Court may interfere; see also Murphy v Porter; ex parte Murphy [1985] 1 Qd.R. 59 at 67, and Aspasia Pty Ltd v Huntress [1985] 2 Qd.R. 241 at 244."
The formulation of the test in Bailey v Costin fairly reflects the statement of the Full Court in R v Robertson[2] cited in support of it. In large measure it embodies the idea that where the appeal is not by way of rehearing, a magistrate's findings of fact must be approached on the same basis as a jury's verdict[3]. However even in R v Robertson it was recognised that there was a difficulty in this approach in cases where a magistrate's findings on credibility were supported by reasons which were unsustainable[4]. This was dealt with so far as orders to review under s.209 of the Justices Act 1886 were concerned, in Murphy v Porter :
[3]Compare Peck v Adelaide Steamship Co Ltd (1914) 18 C.L.R. 167 at p. 174 per Griffith C.J.
"It seems clear enough that in these days of full records being kept of the evidence and proceedings below and of the requirement that magistrates record their findings and give reasons, to say that one should approach the question whether to disturb findings of fact on the same basis as a court of appeal would consider a jury's verdict may perhaps be somewhat misleading. The reasons prompting a jury's verdict are never known and their findings are not revealed so that no piecemeal consideration of their judgment is ever possible. An appeal from a jury's verdict of course is, it needs hardly be said, in no sense an appeal upon the record. Historically then and as a matter of practical common sense a jury's verdict is not set aside unless there is no evidence whatever to support a conviction or the evidence is such that no reasonable man could come to the verdict reached. Where specific findings and the reasoning behind a decision are set out as a matter of record different considerations arise and although in a sense statements to the effect that a Magistrate's findings of fact are to be regarded in the same way as a jury's verdict are correct, their practical application is different."[5]
In the context of s.668E of the Criminal Code, the problem was solved by holding that such an error on the part of a magistrate produced the consequence that the decision could not be supported having regard to the evidence[6]. Although that approach fitted reasonably well into the actual words of the section, it did not sit comfortably with what some had regarded as the traditional approach. That was that the first ground of appeal in the section (unreasonableness) could only be satisfied if no reasonable jury (or magistrate) could have reached the conclusion which was reached; that the second ground (insupportable on the evidence) could only be satisfied if there were no evidence to support the relevant conclusion; that the third ground related solely to questions of law; and that whatever the fourth ground (miscarriage of justice) covered, it did not allow appeals against findings on credibility.
[6]R v Free [1983] 2 Qd.R. 183 at p.192.
By the early 1980's the correctness of any such approach was open to serious challenge[7]. It is unnecessary here to review the history of the development of the ground of "unsafe and unsatisfactory". It is now clear that a jury verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice, the last of the grounds in s.668E[8].
[7]See for example Whitehorn v R (1983) 152 C.L.R. 657.
The application of that approach to the situation where the verdict depends upon matters of credibility was described by a majority of the High Court in these terms:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."[9]
That being the correct approach to the verdict of a jury, a fortiori it must be the correct approach to the decision of a magistrate on questions of fact, where reasons are (or ought to be) given.
That does not mean that the advantage which a magistrate enjoys from seeing and listening to witnesses will be disregarded. It does mean that doubts raised by the evidence in relation to matters of credibility will be considered by this Court except where the magistrate's advantage in seeing and hearing the evidence is capable of resolving those doubts. Since every Court is bound to give reasons for its decisions (including decisions on credibility), an omission by a magistrate to give reasons may found a inference that advantage has not been taken of the opportunity to observe the witnesses. That is not to say that every triviality which affects a magistrate's mind must be recorded - only that enough must appear to enable this Court to follow and examine the magistrate's reasons.
I have referred above to a number of issues directly or indirectly raised by the applicant. In summary, a key question (whether the prosecution had negatived the allegation of mouthing) was not a focal point of the enquiry. No reasons were given for accepting the credibility of Mr Bakens in the teeth of several matters raising doubt on that issue. In the overall context of the case, I cannot be satisfied that a miscarriage of justice has not occurred.
For these reasons, there should be an extension of time for filing a notice of appeal to 6th August 1996. The appeal should be allowed, and the conviction set aside. On the material presently before us, I would have ordered a new trial[10]. However, after our decision was reserved, the applicant sought to tender further evidence of matters arising after the hearing, which if admitted, might have persuaded me that this was not an appropriate order. Conformably with the decisions of the other members of the Court, the application to receive this evidence is not going to be decided. It would, in my view, be unfair to order a new trial without deciding the evidentiary application. Consequently, there should be a verdict of acquittal.
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