Buzzacott v Police - [2021] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
BUZZACOTT v POLICE
[2021] SASC 119
Judgment of the Honourable Justice David
22 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - GENERALLY
This is an appeal against convictions imposed by a Magistrate on 11 March 2021. On that date, the appellant was found guilty of 13 charges, comprising seven counts of aggravated assault against own child/spouse and six counts of contravening an intervention order.
The appellant seeks that the trial Magistrate's finding of guilt with respects to all counts be set aside. Alternatively, the appellant seeks that the matter be remitted for retrial. The appellant relies on the following grounds:
1.      The trial Magistrate erred in respect of the appellant's record of interview by:
a.      failing to properly or adequately direct herself as to the possible use of the evidence; or
b.      failing to provide reasons for rejecting the accused's denials.
2.      The trial Magistrate erred in rejecting the defence submissions that the extent of the injury was not consistent with the description of force and number of blows to the complainant's face.
3.      The trial Magistrate erred in rejecting in total the evidence of the appellant's mother and/or failed to properly or adequately consider those aspects of the evidence of that witness which she had not specifically rejected.
Held, per David JA, dismissing the appeal:
1.      The appellant has not demonstrated any error in the trial Magistrate's approach or reasoning.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Evidence Act 1929 (SA) s 21; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(b); Magistrates Court Act 1991 (SA) s 42, referred to.
Frunks v Police [2016] SASC 120; Harwood v Police (1998) 71 SASR 300; Kotz v Police (1999) 205 LSJS 172; Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen (2020) 94 ALJR 686; Papps v Police (2000) 77 SASR 210; Pell v The Queen (2020) 268 CLR 123; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; R v Keyte (2000) 78 SASR 68, considered.

BUZZACOTT v POLICE
[2021] SASC 119
Magistrates Appeal: Criminal

DAVID JA: This is an appeal against convictions imposed by a Magistrate on 11 March 2021 in the Port Augusta Magistrates Court. On that date, the appellant was found guilty of 13 charges, comprising seven counts of aggravated assault against own child/spouse and six counts of contravening an intervention order.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3); Intervention Orders (Prevention of Abuse) Act 2009

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buzzacott v Police

Details

AGLC: Buzzacott v Police [2021] SASC 119
Case: [2021] SASC 119
Decision Date: 22 October 2021

CaseChat Overview and Summary

In the case of Buzzacott v Police, the appellant, Mr. Buzzacott, sought to appeal his conviction and sentence on several criminal charges. The appeal was heard in the South Australian Court of Appeal, presided over by David JA. The primary legal issues revolved around the trial Magistrate's handling of evidence, specifically whether the Magistrate erred in rejecting certain testimony given by Ms. Buzzacott, the appellant’s mother, and in the admission or rejection of particular evidence.

The court meticulously examined the grounds of appeal, focusing on whether the trial Magistrate misdirected herself, failed to direct herself on the evidence, or improperly admitted or rejected evidence. A significant point of contention was the reliability of Ms. Buzzacott’s testimony, particularly her failure to observe an injury to the complainant's eye and her incorrect recollection of the appellant’s age. The Court found that these inaccuracies undermined the reliability of her evidence, thereby justifying the trial Magistrate's decision to reject parts of her testimony. Furthermore, the court concluded that there was no error in the admission or rejection of evidence, reinforcing the trial Magistrate's findings.

David JA dismissed the appeal, affirming the trial Magistrate’s decisions as correct and well-reasoned. The court held that the appellant had not demonstrated any error in the trial Magistrate's approach or reasoning, and thus, the appeal was dismissed in its entirety.

ORDERS:
The appeal was dismissed, and no orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

Held, per David JA, dismissing the appeal:

1. The appellant has not demonstrated any error in the trial Magistrate's approach or reasoning.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss this ground of appeal.Ground 3 – Rejection of Ms Buzzacott’s evidence The appellant contends that the trial Magistrate erred in rejecting Ms Buzzacott’s evidence to the extent that it differed from the evidence of CM. Ms Buzzacott’s evidence was of significance because she was present at her home on 5 January 2020 and standing between the appellant and CM when the appellant allegedly assaulted CM (count 8). Ms Buzzacott gave evidence that she did not see the appellant strike CM to the stomach. Ms Buzzacott also gave evidence that she did not earlier hear an anything drop on the wooden floor (count 5) and she did not see a cut to AB’s chin (count 7). The trial Magistrate found that Ms Buzzacott’s evidence was unreliable because of two aspects of her testimony, namely: her failure to observe an injury to CM’s eye on 5 January 2020; and her incorrect statement that the appellant (her son) was aged 17 as at 5 January 2020. The appellant submits that neither matter was a sufficient basis for the trial Magistrate to reject Ms Buzzacott’s evidence. I am satisfied that the trial Magistrate was not in error in finding that Ms Buzzacott’s evidence was unreliable. As to Ms Buzzacott’s assertion that she did not see CM with a black eye, there was undisputed evidence that CM had an injury to her eye on 5 January 2020, as depicted in the photographs in Exhibit P5. The photographs included pictures taken by CM using her mobile telephone on a date between 1 January 2020 and 4 January 2020, that is before 5 January 2020. It is plain from the photographs that the injury was obvious, positioned on the front of CM’s face under her left eye. Further, CM was at Ms Buzzacott’s home that day for several hours; her visit was not fleeting. In those circumstances, there was no error in the trial Magistrate finding that Ms Buzzacott’s failure to observe the injury to CM’s eye undermined the reliability of her evidence. Indeed, that was a generous finding, given that she was the appellant’s mother and had expressed her support of the appellant at trial in declining to make an application pursuant to s 21 of the Evidence Act 1929 (SA) ‘because [her] son’s innocent’. As to Ms Buzzacott’s mistake as to the appellant’s age at the time of the assault, her evidence was inextricably linked to the question of whether the appellant owned an Xbox gaming console on 5 January 2020, which was in turn relevant to the events which allegedly occurred at her home on that day (counts 7 and 8). Ms Buzzacott gave evidence that she didn’t have an Xbox controller in her house on 5 January 2020 ‘[b]ecause Caleb was so young, he only turned 17, you know, we didn’t have them things. He only had a phone’. That is, Ms Buzzacott linked the appellant’s age with her recollection that he did not have an Xbox controller. As noted earlier, the appellant said in his ROI when it was alleged that on 5 January 2020, he had a fight with CM in relation to an Xbox controller, ‘What? Have I threw my Xbox controller at her? Every time I threw it at the fucken floor’. The appellant accepted that he had an Xbox controller at that time.

Decision

Reasons for decision

In those circumstances, the trial Magistrate was not in error in finding that Ms Buzzacott’s mistake as to the appellant’s age undermined the reliability of her evidence. Her Honour was not in error in rejecting the parts of Ms Buzzacott’s evidence which differed to CM’s account. I would dismiss this ground of appeal.Conclusion The appellant has not demonstrated any error in the Magistrate’s approach or reasoning. For the reasons given, I am not satisfied that any of the grounds of appeal have been made out. I therefore dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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