Cano, L. v Constable C. Quade

1007/ 194,

JUDGMENT No. ..,,. ,., .... ,., ., .,.,....-

IN THE FEDERAL COURT OF AUSTRALIA )
1
AUSTRALIAN CAPITAL TERRITORY 1

- 1 No. ACT G10 of 1992

DISTRICT REGISTRY )
GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

i

BETWEEN: LUIS CAN0
Appellant

AND : CONSTABLE C. QUADE
Respondent
MINUTES OF ORDER

JUDGES MAKING ORDER: Gallop, Burchett and O'Loughlin JJ.
DATE OF ORDER: 3 November 1992.
WHERE MADE: Canberra.
RECEIVFQ

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

The appeal be dismissed.

2.

The appellant pay the respondent g s costs. ,

.-.L-

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )

1 No. ACT G10 of 1992
DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: LUIS CAN0
Appellant

AND : CONSTABLE C. QUADE
Respondent

CORAM : Gallop, Burchett and O'Loughlin JJ.

DATE : 3 November 1992.

PLACE : Canberra

EX TEMPORE REASONS FOR JUDGMENT

GALLOP J. :

Australian Capital Territory (Miles C.J.) dismissing an appeal This is an appeal from the Supreme Court of the by the appellant against his conviction for an offence of

assault occasioning actual bodily harm recorded in the Magistrates Court on 9 August 1991. The appeal was dismissed by his Honour on 2 April 1992.

The appellant and the alleged victim of the assault are'next door neighbours in the suburb of Wanniassa in the Australian Capital Territory. The appeal to the Supreme Court was conducted on the material in the Magistrates Court and no additional evidence was tendered. On that material the facts as found by the Supreme Court were as follows:

"Both Mr Chkbbi and Mr Cano are obviously house proud, and over a considerable period of time boundary problems have arisen between them. On the day in question, according to the evidence given by Mr Chebbi and his wife, at about 3 o'clock in the afternoon, Mr Cano was standing on his carport striking with a shovel at a jasmine bush growing on Mr Chebbi's side of the boundary.
When Mr Chebbi went over to remonstrate with Mr Cano, he took his step-ladder with him and climbed up on it. There was a remonstration between the two men. Mrs Cano and Mrs Chebbi each came on to the scene, each on her respective side of this high boundary fence. According to the evidence of Mr and Mrs Chebbi, Mr Chebbi told Mr Cano words to this effect, 'If you do any damage, I'll take you to court'. And Mr Cano replied, 'I '11 kill you1. Mrs Cano added, 'Don't do it Louis'. Apparently she said this in Spanish, a language which is understood by Mr Chebbi, who speaks Italian.
At this stage, according to Mr and Mrs Chebbi, Mr Cano raised his shovel high and brought it down on Mr Chebbi's head. What happened immediately thereafter is not clear. Police were called. According to their evidence they found Mrs Chebbi near hysterical and Mr Chebbi lying on his lounge

moaning and clutching the back of his head. Mr Chebbi was admitted to Royal Canberra Hospital and the following day a doctor examined him there and

found that Mr Chebbi had a bruise in the occipital area consistent with a blow of moderate severity from a flat hard object.

The case for the defendant appellant was that no incident of the kind described in the evidence of Mr and Mrs Chebbi ever occurred and that although there had been some unfriendly exchanges in the morning across the fence or boundary concerning Mr Cano's use of a string line to check the encroachment of the Chebbi vegetation into the Cano property. Both Mr and Mrs Can0 had gone inside their house at about 2 o'clock to have lunch which had been prepared by one of their daughters. They said that they remained inside the house at all times, that they had an interest, but not a very strong interest in the football final that was being played that afternoon.

They sald that they heard about what Mr Chebbi had alleged to have occurred by one of their neighbours calling at the house later in the afternoon, and telling them that the police had been in the area. When interviewed by the police Mr Cano maintained his innocence for the reasons just given. At the hearing he and his wife and two daughters gave evldence accordingly. The magistrate was in the unenviable position of having to decide which of these competing versions he should accept, having regard of course to the onus of standard of proof."

His Honour then observed that the Magistrate's recognition that it was impossible that one side could have been simply mistaken was correct. As the Magistrate had said, one side had to be telling the substantial truth, the other to be telling substantial lies. His Honour observed that the Magistrate, applying the proper standard of proof beyond reasonable doubt, thought that the determining factor was the objective evidence of the police that they found a near hysterical Mrs Chebbi at the house and the victim in apparent pain on his lounge clutching his head. There was also the

superior position to decide any matter on which the demeanour evidence of the doctor about the bruise. His Honour noted that the Magistrate was in a I
of the witnesses had a bearing and, in fact, it had a bearing !

on practically the whole of the case on matters in issue. His I-
i _

Honour could find no fault with the Magistrate's careful , I
1.
review of the facts and declined to interfere with the
Magistrate's finding.

On the hearing of the appeal to this Court it has been submitted that the Magistrate misapplied the law by giving undue weight to the evidence of the existence of an injury to the alleged victim and that the manner in which the Magistrate used the evidence of injury effectively imposed an onus on the appellant to explain the existence of the injury on a basis other than of his guilt.

It was submitted that because of the equivocal nature of the evidence of injury it was inappropriate to give it the critical significance that it was given in the case.

The submission on behalf of the appellant was that Miles C.J., in regarding the appeal as a matter which rested on the findings of the credibility of the principal witnesses made by the Magistrate, was in error. It was not a case, it was submitted, which rested on the findings of the Magistrate as to the credibility of the principal witnesses but rather a case where Miles C.J. was in as good a position as the
Magistrate to decide the proper inference that could be drawn from the critical undisputed fact, namely that of the injury to the victim.

The order of the Court therefore is that the appeal is dismissed. We further order that the appellant pay the respondent's costs.

I certify that this and the preceding four pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Gallop.
.

Dated: 3 November 1992.

Counsel for Appellant: Mr R. Livingston

L

Solicitor for Appellant: Messrs Crossin Power Haslem
Counsel for Respondent: Mr S. Loomes
Solicitor for Appellant: Australian Capital Territory
Director of Public Prosecutions
Date of Hearing: 3 November 1992
Date of Judgment: 3 November 1992

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY )

DISTRICT REGISTRY 1 AG 10 of 1992
GENERAL DIVISION 1

BETWEEN: LUIS CAN0

Appellant

AND : CONSTABLE C. OUADE

Respondent

CORAM: Gallop, Burchett and OtLoughlin JJ.
PLACE: Canberra

DATE : 3 November 1992

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

,. ,
!

I agree. In my opinion, there is no defect in the 1 . ,'
l

reasoning by which the magistrate used clearly established 1 -,
I
8
facts to assist him in relation to the disputed questions in !

this case. But in the end, his decision rested on a choice . ! '

between competing oral versions. In making that choice, he i I
!

specifically referred to his estimate of Mr Ceppi. At least since Lord Sumner's often cited remarks in Owners of steams hi^

Hontestroom v. Owners of Steamship Saqaporack [l9271 AC 37 at t

I .
I

47, such an estimate of a witness has been treated as very
nearly invulnerable upon appeal. I i., i
I'

Nothing in this case suggests the magistrate misused his opportunity to assess the witnesses, or casts any doubt on his

I
!
I
i -.
conclusion. Indeed, a number of features of the evidence

L .

strongly support his decision, including a conflict between Mr Cano and Mrs Cano about the vital question whether he had a shovel in his hands during a dispute with M r Ceppi on that very day. The appeal should be dismissed with costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Date: 3 November 1992

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY j NO. AGIO of 1992 I
1
DISTRICT REGISTRY i

-

)

GENERAL DIVISION 1

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA 7 -.
B E T W E E N :
I

LUIS CAN0 Appellant

1;

- and - I
1 . r
CONSTABLE C. OUADE Respondent I

' i
!
I
1 .,

C O W : GALLOP, BURCHETT AND O'LOUGHLIN JJ.
PLACE : CANBERRA
W: 3 NOVEMBER 1992

EX TEMPORE REASONS FOR JUDGMENT ! :
!
I

O'LOUGHLIN J.: I also agree that the Appeal should be 8 .

dismissed. There is nothing further that I would wish to add.

l

I certify that this is a

true copy of the Reasons for Judgment of Mr. Justice O'Loughlin.

!
:.

Associate , .
t
Dated :

Actions

Download as PDF Download as Word Document

Citations

Cano, L. v Constable C. Quade [1992] FCA 1007

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	1

JUDGES MAKING ORDER:	Gallop, Burchett and O'Loughlin JJ.
DATE OF ORDER:	3 November 1992.
WHERE MADE:	Canberra.

Australian Capital Territory (Miles C.J.) dismissing an appeal This is an appeal from the Supreme Court of the	by the appellant against his conviction for an offence of
assault occasioning actual bodily harm recorded in the Magistrates Court on 9 August 1991. The appeal was dismissed by his Honour on 2 April 1992.
The appellant and the alleged victim of the assault are'next door neighbours in the suburb of Wanniassa in the Australian Capital Territory. The appeal to the Supreme Court was conducted on the material in the Magistrates Court and no additional evidence was tendered. On that material the facts as found by the Supreme Court were as follows:

moaning and clutching the back of his head. Mr Chebbi was admitted to Royal Canberra Hospital and	the following day a doctor examined him there and
found that Mr Chebbi had a bruise in the occipital area consistent with a blow of moderate severity from a flat hard object.
The case for the defendant appellant was that no incident of the kind described in the evidence of Mr and Mrs Chebbi ever occurred and that although there had been some unfriendly exchanges in the morning across the fence or boundary concerning Mr Cano's use of a string line to check the encroachment of the Chebbi vegetation into the Cano property. Both Mr and Mrs Can0 had gone inside their house at about 2 o'clock to have lunch which had been prepared by one of their daughters. They said that they remained inside the house at all times, that they had an interest, but not a very strong interest in the football final that was being played that afternoon.
They sald that they heard about what Mr Chebbi had alleged to have occurred by one of their neighbours calling at the house later in the afternoon, and telling them that the police had been in the area. When interviewed by the police Mr Cano maintained his innocence for the reasons just given. At the hearing he and his wife and two daughters gave evldence accordingly. The magistrate was in the unenviable position of having to decide which of these competing versions he should accept, having regard of course to the onus of standard of proof."

superior position to decide any matter on which the demeanour	evidence of the doctor about the bruise. His Honour noted that the Magistrate was in a	I
of the witnesses had a bearing and, in fact, it had a bearing	!
on practically the whole of the case on matters in issue.	His	I-
i _
Honour could find no fault with the Magistrate's careful	,	I
1.
review of the facts and declined to interfere with the Magistrate's finding.
On the hearing of the appeal to this Court it has been submitted that the Magistrate misapplied the law by giving undue weight to the evidence of the existence of an injury to the alleged victim and that the manner in which the Magistrate used the evidence of injury effectively imposed an onus on the appellant to explain the existence of the injury on a basis other than of his guilt.
It was submitted that because of the equivocal nature of the evidence of injury it was inappropriate to give it the critical significance that it was given in the case.
The submission on behalf of the appellant was that Miles C.J., in regarding the appeal as a matter which rested on the findings of the credibility of the principal witnesses made by the Magistrate, was in error. It was not a case, it was submitted, which rested on the findings of the Magistrate as to the credibility of the principal witnesses but rather a case where Miles C.J. was in as good a position as the
Magistrate to decide the proper inference that could be drawn from the critical undisputed fact, namely that of the injury	to the victim.
The order of the Court therefore is that the appeal is dismissed. We further order that the appellant pay the respondent's costs.

Solicitor for Appellant:	Messrs Crossin Power Haslem
Counsel for Respondent:	Mr S. Loomes
Solicitor for Appellant:	Australian Capital Territory Director of Public Prosecutions
Date of Hearing:	3 November 1992
Date of Judgment:	3 November 1992

reasoning by which the magistrate used clearly established	1 -,
I
8
facts to assist him in relation to the disputed questions in	!

between competing oral versions.	In making that choice, he	i I
!

47, such an estimate of a witness has been treated as very nearly invulnerable upon appeal.	I i.,	i
I'
Nothing in this case suggests the magistrate misused his opportunity to assess the witnesses, or casts any doubt on his	I
!
I
i -.
conclusion. Indeed, a number of features of the evidence

AUSTRALIAN CAPITAL TERRITORY	j NO. AGIO of 1992	I
1
DISTRICT REGISTRY	i

THE FEDERAL COURT OF AUSTRALIA	7 -.
B E T W E E N :
I
LUIS CAN0	Appellant

C O W :	GALLOP, BURCHETT AND O'LOUGHLIN JJ.
PLACE :	CANBERRA
W:	3 NOVEMBER 1992

true copy of the Reasons for Judgment of Mr. Justice O'Loughlin.	!
:.

[1992] FCA 1007

3 Nov 1992