Coghlan v Police - [2007] SASC 312

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COGHLAN v POLICE
[2007] SASC 312
Judgment of The Honourable Justice Sulan
23 August 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - MATTERS RELATING TO DECISION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY
Appellant charged with four offences arising out of one incident - complainant was sole prosecution eyewitness and identified the appellant - appellant denied involvement and several defence witnesses gave evidence supporting an alibi defence - Magistrate found that defence witnesses had tried to recollect accurately the day of the incident - Magistrate found nevertheless that evidence of defence witnesses was 'unsafe, tainted and unreliable' - whether Magistrate had given adequate reasons for rejecting defence evidence - held, allowing appeal, Magistrate failed adequately to explain reasons for rejecting defence evidence of alibi.
Juries Act 1927 s 7, referred to.
Gikas v Police (1999) 202 LSJS 301; R v Keyte (2000) 78 SASR 68, applied.
R v Power (2003) 141 A Crim R 203, distinguished.
Papps v Police (2000) 77 SASR 210; Pettit v Dunkley [1971] 1 NSWLR 376; Soulezemis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

COGHLAN v POLICE
[2007] SASC 312
Magistrates Appeal
SULAN J:
Introduction

The appellant was charged with four offences: assault occasioning actual bodily harm, wilful damage to property, threatening to cause harm and larceny. The offences were all alleged to have arisen from the same incident on 17 April 2003. The appellant pleaded not guilty to all four counts. He denied that he was involved and gave evidence that he was not present when the offences were committed. He was found guilty of each count. The appellant now appeals against those convictions.
Background
The offences were said to have occurred at about 8:30 am on 17 April 2003. The complainant, Mr Young, at that time was present at his place of employment, MJ Way Demolitions. The complainant’s evidence was that the appellant arrived with his son in a four-wheel drive vehicle. The Magistrate found that the complainant was alone at the time of the incident. Consequently, the only person called by the prosecution as an eyewitness to the events was the complainant.
The complainant gave evidence that the appellant took a “Kwik-Cut” cutting machine, which was the property of the complainant’s employer, and put it in the back of the vehicle. That complaint gave rise to the charge of larceny.
The complainant gave evidence that the appellant picked up a length of copper pipe and swung it about like a baseball bat close to the complainant’s head. The Magistrate found that this had occurred, prior to or at about the same time that the “Kwik-Cut” device was taken.
A piece of copper pipe was an exhibit before the Magistrate. Fingerprint impressions on the pipe were examined and it was observed that one of these was ‘consistent’ with the fingerprint of the appellant, meaning that there was insufficient detail for a positive identification but that the appellant could not be excluded. There was evidence that the pattern of fingerprints was consistent with the copper pipe being held in a baseball bat-style grip. The Magistrate considered that this evidence was helpful, and tended to confirm the complainant’s evidence about the manner in which the copper pipe had been used, but cautioned himself as to its use. As there was not a positive identification of the appellant’s fingerprints on the copper pipe, the evidence of the fingerprints had very little probative value.
The Magistrate found that as the appellant was swinging the copper pipe, he stated: “I’ll fucking kill you with it too”. The Magistrate also found that as the appellant had returned to his vehicle, he had said to the complainant: “If you ring them fucking cops I’ll rape your missus and kill your kids”. He found that the words were intended to threaten the complainant and his family. The Magistrate did not identify which conduct constituted a threat to cause harm, but found that that charge had been proved.
The complainant gave evidence, and the Magistrate found, that the appellant had used a sledgehammer taken from his vehicle and used it to damage a bobcat, which was the property of the complainant’s employer. That act gave rise to the charge of wilfully damaging property.
The complainant gave evidence that after the appellant had returned to his vehicle, he heard the engine revving and turned around to see the appellant driving the vehicle towards him. He stated that he put out his right arm and was hit by the bull-bar. The complainant’s arm was injured. Medical evidence was led as to the nature and extent of those injuries. That conduct gave rise to the charge of assault occasioning actual bodily harm.
The Magistrate found that the appellant had made remarks to the complainant regarding an outstanding debt that was said to be owed by Mr Way (the complainant’s employer) to the appellant. The Magistrate found that the appellant had expressed that he required payment to be made in order to avoid bankruptcy proceedings. The Magistrate found that the complainant was not responsible for the debt, but found also that “there [was] some confusion about who owed what to whom”.
The Magistrate made the following comments in respect of the complainant’s evidence:
I find that Young was at all times a frank, direct, patient, helpful and honest witness. He gave all his evidence in a straightforward manner…. He was a good witness. I have no doubt that he has told the truth.
…
…Mr Young has told the truth accurately to the best of his ability. Mr Young is, I find a witness of truth, accuracy and reliability.
The Magistrate identified that there had been some confusion as to the sequence of events described by the complainant, to which the defence counsel had drawn attention. In addressing this issue, the Magistrate stated:
I am not persuaded to qualify my finding about the quality of Mr Young’s evidence..[sic] Mr Young was a compelling witness. I reject any suggestion that Young has manufactured and/or embellished his evidence. I find that Young has provided an objective and balanced report in all his evidence. Young was I find placed in a very difficult situation by Coghlan’s behaviour and some discrepancies in the sequence of his evidence is not surprising.
The Magistrate found that the complainant had known the appellant for a period of about ten years, and found that the complainant also knew the appellant’s son, who had been said to have accompanied the appellant to the site of the incident.
The appellant gave evidence, as did four additional witnesses for the defence – Grant Sexton, Ms Traeger, David Coghlan (the appellant’s son) and Gerald Myers.
The appellant denied that he was the offender. He gave evidence that on the previous night, he had stayed at the house of his former wife, Ms Traeger. On the appellant’s case, Ms Traeger had driven him to his son’s workshop on Churchill Road on the day of the incident as he intended to consume alcohol. The appellant gave evidence that he had arrived at the Churchill Road site at about 7:30 am and had not left until about 12:30 pm.
Mr Sexton gave evidence that he was present with the appellant at the Churchill Road site on the morning of the incident. He stated that the appellant had remained at the site until the police had arrived and apprehended him. The Magistrate made the following comments in relation to Sexton’s evidence:
Mr Sexton also reported that as a consequence of a serious head injury in 1985 he does have some difficulty accurately recalling events but was sure that Mr Coghlan was with him during the morning of 17 April 2003.
Mr Sexton also knows Mr David Coghlan and has known him for a period of about six to seven years. He was not sure about David Coghlan’s presence that day at the yard. He stated and I quote “I can’t remember if David was there”…. Mr Sexton emphatically denied that he was providing Mr Trevor Coghlan with an alibi as to his whereabouts on the morning of 17 April 2003.
The Magistrate made the following comments about the three remaining witnesses for the defence:
On 10 April 2007, Ms Vanessa Traeger, Michael Gerald Myers and David Coghlan also gave evidence about their association with Mr Trevor Coghlan on 17 April 2003. I have carefully considered all this evidence.
Ms Traeger is the defendant’s wife and Mr David Coghlan is a son of the defendant and Ms Traeger. Mr Myers is a friend of the defendant. I accept that each witness has tried to recall accurately the extent of their association with Mr Coghlan on 17 April 2003.
After recounting the substance of the evidence of these witnesses’ evidence, the Magistrate made the following comments:
Whilst it is not for the defendant to prove anything, in accordance with the authority of R v Papps 77 SASR 210, I have carefully considered Mr Coghlan’s evidence, including the evidence of all his witnesses. After a thorough review of all the evidence I am now satisfied beyond reasonable doubt that I cannot accept the evidence of the defendant and his witnesses. I reject all the evidence of the defendant and his witnesses as unsafe, tainted and unreliable. Young was a strong, credible, honest and compelling witness of truth and I have no difficulty in accepting all his evidence beyond reasonable doubt that about the defendant’s involvement in the events at the Strathmont site on the morning of 17 April 2003. I am left with the safe, reliable and credible evidence of the victim about the defendant’s behaviour on 17 April 2003 and also the credible evidence of all other prosecution witnesses.
Grounds of appeal
The appellant sought leave on five grounds, which may be summarised as follows:
1. The Magistrate erred by failing to provide any or adequate reasons for rejecting the evidence of the defendant and defence witnesses as being “unsafe, tainted and unreliable”.
2. The Magistrate erred by failing to have any or proper regard to the fact that the defence witnesses corroborated each other in providing an alibi for the defendant.
3. The Magistrate erred by failing to apply the reasoning in Papps v Police, and in particular, failing to make an assessment of the defence witnesses.
4. The Magistrate erred by failing to have any or proper regard to the inadequacy of the police investigation; that is, the failure of the police to obtain statements from the known witnesses, all of whom were called by the defence.
5. The Magistrate paid “only lip service” to the onus of proof, which was tantamount to a “perfunctory or half-hearted repetition of a formula”.
In addition, the appellant sought an extension of time and leave to file an additional ground of appeal that the verdict of the Magistrate was unsafe and unsatisfactory. The respondent did not oppose that application and I granted leave to the appellant during the hearing to add that ground out of time.
Submissions of counsel
Counsel for the appellant submitted that the gravamen of the appeal was that the Magistrate had failed to identify with precision the basis upon which he rejected the evidence of the defendant and the witnesses for the defence and thus arrived at his conclusion. Counsel stated that ground 4 was not pressed in the sense of there having been a miscarriage of justice by failure to investigate properly. He submitted that the failure of the police to interview particular witnesses was a factor to which the Magistrate should have had regard in assessing the defence case.
Counsel for the appellant submitted that the morning the defence witnesses had been asked to recall was one which was identified by the appellant’s arrest, and it was therefore not a case in which the witnesses could be said to have been confused about the day in question. In this context, counsel submitted that the Magistrate’s finding that “each witness has tried to recall accurately the extent of their association with Mr Coghlan on 17 April 2003” was significant, and that it could not be reconciled with the later conclusion to reject the evidence of the defendant and the defence witnesses as “unsafe, tainted and unreliable”. Counsel submitted that the Magistrate failed to identify why he had rejected the evidence of the defence witnesses and why he drew particular attention to the evidence of Mr Sexton.
Counsel for the appellant also drew attention to the conduct of the police investigation. Counsel submitted that the police had obtained the names and addresses of all of the relevant alibi witnesses at the time of the appellant’s arrest, but had failed to take statements from any of them, either at the time of the appellant’s arrest or thereafter, despite having notice that there would be a defence of alibi.
Counsel for the respondent submitted that there was no requirement for the Magistrate to explain in detail his decision to prefer one witness or another in cases where a determination of credibility was required. Counsel submitted that the extent of the obligation to provide reasons was imprecise, particularly in courts of summary jurisdiction, and that the adequacy of the Magistrate’s reasons should be considered by reference to two questions: first, whether the reasons for decision sufficiently identify the bases upon which the Magistrate came to his conclusions, and, secondly, whether justice had been seen to be done.
Counsel for the respondent submitted that the Magistrate had canvassed thoroughly in his reasons the evidence of both prosecution and defence. Counsel drew attention to the Magistrate’s consideration and rejection of the suggestion that the complainant had fabricated his evidence, and the consideration of factors that might have affected the credibility and reliability of particular witnesses. Counsel contended that the failure of the Magistrate to expound in greater detail his reasons for rejecting the evidence of the defendant and the witnesses for the defence did not render the reasons inadequate. Further, counsel drew attention to the finding of the Magistrate that the evidence of the witnesses for the defence was “unsafe, tainted and unreliable”. Counsel noted that the accounts of the complainant and the defendant and other defence witnesses was mutually exclusive, and that the acceptance of the complainant’s evidence necessarily led to a rejection of the alternative accounts.
Counsel submitted that the Magistrate had not erred in applying the onus of proof. He contended that the Magistrate had only a limited obligation to expound the principles of law applicable in the case, and that the Magistrate had correctly warned himself as to the onus of proof. Further, counsel submitted that the reasoning disclosed that the Magistrate had in fact applied the correct onus.
Relevant principles and their application
The extent of an obligation by a judge sitting alone to give reasons was considered by the Court of Criminal Appeal in R v Keyte,[1] particularly in the judgment of Doyle CJ, which was subsequently discussed and applied in R v Power.[2] Doyle CJ cited with approval, inter alia, the authorities of Pettit v Dunkley[3] and Soulezemis v Dudley (Holdings) Pty Ltd[4] in discussing the relevant principles. I note that both Keyte and Power were appeals from a judge sitting alone pursuant to s 7 of the Juries Act, rather than appeals from a magistrate. However, the relevant passages from Pettit v Dunkley and Soulezemis v Dudley (Holdings) Pty Ltd have also been cited in considering the adequacy of the reasons of a magistrate.[5]
[1] (2000) 78 SASR 68.
[2] (2003) 141 A Crim R 203.
[3] [1971] 1 NSWLR 376.
[4] (1987) 10 NSWLR 247.
[5] Gikas v Police (1999) 202 LSJS 301, 9-10.
The general principles that have been applied in considering the obligation to give reasons may be found in the reasons of Kirby P in Soulezemis v Dudley (Holdings) Pty Ltd:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.[6]
[6] Soulezemis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
Perry J in Power considered the extent of reasons required to explain a decision to prefer the evidence of one witness to another. Perry J noted that “there will sometimes be cases where very little can be given by way of an explanation for preferring one witness to another”.[7] However, that was an unlawful sexual intercourse case in which Perry J considered that the preference for the complainant over the appellant was substantially based on the impression that had been made by the witnesses. For reasons I will expand upon later, the circumstances of Power were different to those of the present case.
[7] R v Power (2003) 141 A Crim R 203, 211.
In Gikas v Police,[8] a similar issue arose to that in the present case. That was a case in which the evidence of the complainant and prosecution witnesses was to the effect that an assault had occurred, whilst the evidence of the defendant and other defence witnesses was to the effect that it had not occurred. Lander J accepted that, had the Magistrate accepted the evidence of the complainant and the prosecution witnesses, there was no flaw in the reasoning process that had led the Magistrate to find the defendant guilty. The Magistrate had considered at length the evidence of the complainant and his witnesses in his reasons, and had found that they were truthful and accurate witnesses. He also stated that, necessarily, either the complainant and his witnesses or the defendant and his witnesses had been untruthful in their evidence. Nevertheless, Lander J allowed the appeal on the basis that the Magistrate had erred in failing to give reasons for rejecting the defendant and his witnesses as being credible.[9]
[8] (1999) 202 LSJS 301.
[9] See also Papps v Police (2000) 77 SASR 210, 214-19.
In the present case, it was clear that credibility was a primary issue. The Magistrate stated that the evidence of the appellant and his witnesses was “unsafe, tainted and unreliable”. He did not give any reasons for reaching that conclusion. On the contrary, the Magistrate had stated that each of the witnesses Traeger, Myers and David Coghlan “ha[d] tried to recall accurately the extent of their association with Mr Coghlan on 17 April 2003”. It is difficult to reconcile that statement with the finding that the evidence of those witnesses was “unsafe, tainted and unreliable” in the absence of any further explanation as to why the appellant and his witnesses were not considered to be accurate or truthful. It is not a case in the same category as Power, where the trial judge had unambiguously rejected the evidence of defendant based on his impression of him, albeit without a detailed explanation.

I would allow the appeal on ground 1. It is unnecessary to consider the remaining grounds of appeal as counsel for the appellant indicated that the gravamen of the appeal was the failure to give adequate reasons for rejecting the evidence of the appellant and his witnesses. The case essentially turns on the credibility of the witnesses and whether the Magistrate can be satisfied beyond reasonable doubt of the complainant’s evidence. It is not possible to make an assessment of the witnesses without seeing and hearing their evidence. I would, therefore, order a retrial.