Compton v Police - [2012] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COMPTON v POLICE
[2012] SASC 31
Judgment of The Honourable Justice Kelly
2 March 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
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 - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction – appellant convicted after trial of one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and acquitted of a second count in relation to a different victim – complaint on appeal that Magistrate did not give adequate reasons to explain how factual disputes were resolved – no indication in judgment how evidence of uncharged acts was used by Magistrate – conviction unsafe and unsatisfactory as evidence relied on count 1 was inherently improbable.
Held: appeal dismissed – Magistrate did not rely on evidence of uncharged acts for any purpose – disputed factual matters straightforward – no lengthy explanation required – prosecution case in respect of count 1 was compelling – appellant properly convicted.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
R v Beard [2004] SASC 411; Mak v Police [2008] SASC 342; Papps v Police (2000) 77 SASR 210; Fleming v The Queen (1998) 197 CLR 250; R v Dolan (1992) 58 SASR 501; Kotz v Police [1999] SASC 399; Wheeler v Police [2005] SASC 156, considered.

COMPTON v POLICE
[2012] SASC 31
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against a conviction recorded in the Magistrates Court at Holden Hill for one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The victim, B, was a boy aged eight at the time. The appellant was B’s stepfather and that was the circumstance of aggravation.
The appellant was also charged with a second count of aggravated assault in relation to B’s elder brother, A. The Magistrate acquitted the appellant of that charge.
There are two grounds of appeal alleging that the verdicts were unsafe and unsatisfactory, and that the Magistrate failed to provide any or any sufficient reasons to reveal the use which was made of evidence of uncharged acts or to indicate how disputed factual matters were resolved.
The Information on which the appellant was tried contained two offences. The first was in relation to B, the second in relation to A. Count 1, the first offence, was alleged to have occurred when the appellant hit B a number of times on his bare bottom with a broom to which he had attached various kitchen utensils to the head of the broom. Count 2 was said to have occurred when the appellant allegedly picked up A and threw him against a wall and then onto the ground.
At the trial the two boys and their mother gave evidence. The appellant gave evidence in his own defence. In essence he denied ever assaulting B with a broom to which utensils were attached. On the occasion in question he admitted that he had disciplined B by smacking him three times on the bottom but not underneath his underpants. In relation to the second count the appellant denied throwing A against the wall and gave a different account of the incident. He said A was upset and angry and storming towards him when he slipped and fell.
The events which gave rise to the charges were alleged to have taken place in the family home at a time when the two boys resided there with their mother, the appellant, and three younger siblings. The appellant and the boy’s mother were also married at this time.
It was the prosecution case in relation to the first count that sometime between December 2006 and January 2007 the appellant disciplined B by smacking him just above his buttocks with his bare hands. He then told the boy to pull down his pants and his underpants and hit him with a broom to which he had attached some kitchen utensils. Both B and A gave evidence that their mother was not present when the broom incident occurred. Neither boy knew where she was at that time, whether she was somewhere else in the home or whether she was simply not home, however they were certain she did not see the incident. The appellant in his defence gave a different account of the same incident. He agreed that there was an occasion around December 2006 and January 2007 when he smacked B on the buttocks over his underpants with his bare hand, however he denied ever hitting B with a broom. The appellant said he smacked B on the bottom after an incident in which he had hit his younger brother. He said he only administered that form of discipline after discussing it with Mrs Compton. Curiously, the appellant said he heard Mrs Compton discuss with B after that incident putting some cream on his bottom. On the appellant’s version of the incident the three slaps would not have caused any serious injury. The appellant said that he would often discuss with the boys’ mother what discipline to impose on B and A, and on the occasion when he smacked B three times that was an agreement which had been reached between him and the boys’ mother. The appellant also stated that Mrs Compton had told B to pull his underpants down.
Both B and A gave evidence about the incident involving the broom. Mrs Compton said she did not know if she was at home or simply in another part of the house at the time when that incident occurred however she did not see it. She said she only became aware of that incident much later when she was shown the photograph of B’s buttocks. A said he took that photograph within a week or so of the incident.
Mrs Compton maintained in cross-examination that she was not present at the time of the incident and denied that the appellant approached her in order to discuss the discipline that should be implemented upon B for hitting his younger brother. Specifically, she denied the suggestion that she agreed that the appellant should smack B three times on the bottom and that it was in fact she who ordered B to pull his pants down. Mrs Compton had no recollection of applying cream to B’s bottom on that occasion.
The injury on B’s buttocks photographed by A was tendered at the trial.[1]
[1] Exhibit P2.
The complaint in relation to ground one is that the Magistrate’s reasons fail to disclose how she assessed the evidence of the appellant, nor did the Magistrate analyse in any or any sufficient detail the competing versions about what happened in respect of count 1. There was a further complaint that the Magistrate failed to indicate how the evidence about the uncharged acts was used.
It is correct, as the appellant’s counsel submitted, that where there is evidence of criminal conduct other than that which is the subject of charges before the court it is necessary for the trier of fact to identify the use which can be made of that evidence and not to use that evidence for any inadmissible purpose. Here there was some evidence led from the prosecution witnesses of other occasions, usually in the context of disciplining the children, when the appellant had forced the children to drink excessive amounts of water to the point where one of them vomited, and other incidents where he had hurt the children by hitting them. This hitting was said to have occurred regularly during the time the appellant lived with Mrs Compton and the children.
The appellant relied on a number of authorities including Fleming v The Queen,[2] R v Dolan[3] and Kotz v Police[4] said to support the appellant’s submission that in the circumstances of this case the Magistrate had an obligation to specify what evidence in respect of uncharged acts were relied on and for what purpose.
[2]    Fleming v The Queen (1998) 197 CLR 250.
[3]    R v Dolan (1992) 58 SASR 501.
[4]    Kotz v Police [1999] SASC 399; (1999) 205 LSJS 176.
The authorities referred to by counsel support the general proposition that there is a specific obligation on a trial judge, whether directing a jury or sitting alone, to identify the purposes for which evidence of uncharged acts is used in a trial, particularly where that evidence is admissible for one purpose but not for another and is of a highly prejudicial nature. Kotz was one such case.
However some common sense must be applied to the application of that principle here. This was a short trial with relatively narrow factual disputes for the Magistrate to determine. The evidence of other uncharged acts was of a general nature only. No specific occasion was ever identified by reference to date, time or other identifying feature and the evidence did not assume any important place in the trial. The evidence was admissible for a number of purposes, including for example, to explain why it was that neither of the boys complained about what the appellant did to them until quite some time later. It was also relevant to explain why it was that the appellant would confidently commit the offence the subject of the first charge in the presence of the other boy.
In her reasons the Magistrate barely mentioned the uncharged acts except in the introductory paragraphs. She did not refer to them again. After recounting accurately and in some detail the evidence led in support of each count the Magistrate reminded herself explicitly to consider the evidence on each charge separately. She said at [21]:
It is for prosecution to establish their case beyond reasonable doubt. I have referred to two incidents in this matter and the defendant is charged with two incidents on the same complaint. I do not take into account the evidence of each individual alleged assault with regard to the other offence as being propensity evidence. The evidence with regard to the incident has been led together, although they have occurred at two different times with respect to two different alleged victims. However, the both come out of the same relationship. However I do not take it into account, as noted, as being propensity evidence. I have considered the evidence with regard to each alleged incident independently.
In her reasons for finding the appellant guilty of count 1 she said at [23]:
Nevertheless, as regards the incident regarding [B], I am satisfied beyond a reasonable doubt the evidence given by [A] and [B] is accurate and is supported by the photograph exhibited, P2. I am satisfied beyond reasonable doubt the photograph was taken within a reasonably short time after the incident and in circumstances as described by the witnesses. I am satisfied beyond reasonable doubt, [B] had trouble sitting down whilst on the trip to Kangaroo Island a short time after this. I am satisfied beyond reasonable doubt that offence had been made out and on that charge, count 1, I find the defendant guilty.
Having regard to the relative unimportance of the uncharged acts in the unfolding of the evidence before the Magistrate and to the fact that the Magistrate did not mention them at all in her assessment and summary of the evidence on each count, I have reached the conclusion that there is no danger at all that the evidence of the uncharged acts was misused by the Magistrate. In my view, it is apparent when her Honour’s reasons are considered as a whole that she did not rely at all on the uncharged acts for any purpose. For these reasons I do not consider there is any substance in this ground of appeal.
The second ground of appeal raises the issue of the adequacy of the Magistrate’s reasons in relation to the resolution of the disputed factual matters.
Once again when considering this ground of appeal it needs to be borne in mind that the issues in this case were simple and straightforward. The question was whether the Magistrate was prepared to accept the evidence of the victim on count 1, namely B, beyond reasonable doubt.
It was submitted that because the Magistrate acquitted the appellant in relation to count 2, there was a real lack of clarity about whether she rejected the appellant as a witness of truth. The Magistrate expressed her reasons for acquitting the appellant on count 2 at [24] as follows:
With regard to the [A] incident, the defendant has offered an explanation which is at odds with what [A] and Mrs Compton say. I note the description of the incident and it would appear that what has caused it to remain in peoples’ memories is the fact that spaghetti was thrown. The defendant has offered an explanation as to how [A] came to fall and it would appear that Mrs Compton’s view of the incident was somewhat interrupted by the fact she was at the time cooking spaghetti and her back, initially at least, was turned away from [A].
It was said that the reasons indicate that she did not reject the evidence of the appellant in relation to count 2, neither do the reasons as a whole disclose what assessment she made of the appellant. In these circumstances, particularly since there was no analysis of the competing versions in respect of count 1, the conviction on count 1 should not stand.
The reasons given by a trier of fact will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based and justice is not seen to be done. If the trier of fact does not sufficiently disclose his or her reasoning then the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected. [5] However the adequacy of reasons always needs to be assessed in the context of the course of the trial and the issues in the case.
[5] Sun Alliance Insurance Ltd v Massoud [1989] VR 8 per Gray J.
See also Papps v Police (2000) 77 SASR 210; Wheeler v Police [2005] SASC 156 and Mak v Police [2008] SASC 342 for this principle’s application.
Here, it is of some importance that the evidence in respect of count 2 was different to the evidence in respect of count 1. Mrs Compton did not actually see the incident which was the subject of count 2 and neither did B. There was no other evidence in respect of the incident which gave rise to count 2 apart from the alleged victim A, and the appellant. Both gave quite disparate accounts.
On the other hand, the evidence in respect of count 1 was compelling. Both A and B gave evidence which was in the main consistent. Importantly, there was a photograph taken about a week later which on its face depicts severe injuries to B’s bottom. The marks evident in that photograph are inconsistent with the version proffered by the appellant in evidence about that incident. The Magistrate accepted that this was a photograph of B taken a week or so after the incident.
It is obvious from the Magistrate’s reasons that she considered the corroborative evidence in the form of A’s evidence and the photograph to be important in concluding the appellant’s guilt on count 1.
I agree with the submission made by the appellant that the Magistrate’s reasons for acquitting the appellant on count 2 are not very clear. In particular, it is not clear whether the Magistrate rejected the appellant’s evidence or not in relation of that count.
However I do not consider that the ambiguity in the Magistrate’s reasons for acquitting the appellant on the second count leads to the conclusion that therefore she cannot have rejected the appellant as a witness of truth in relation to count 1. It is obvious from her reasons at [23] that she did. The fact that her Honour concluded beyond reasonable doubt that the evidence of B and A in relation to count 1 was truthful necessarily involved the rejection of the appellant’s account. Given that the two versions could not stand together the Magistrate was not obliged to give any lengthy analysis as to why she preferred beyond reasonable doubt the version of the two boys over the version of the appellant. In R v Beard[6] the Court of Criminal Appeal said:
I consider the judge's reasons were adequate and sufficient. What needed to be determined was a single issue. That was whether the judge accepted V's evidence beyond reasonable doubt, notwithstanding the appellant's sworn denial. If there were a discrete reason for rejecting the appellant's account, no doubt the judge would have given it. But the judge was entitled to find as he did, without identifying, or indeed without there being, any particular reason for rejecting the appellant's version, over and above acceptance of the competing account. It was not essential that any specific shortcomings in the appellant's evidence be identified. This was a case where the preference for the victim's evidence was very much a matter of impression made by the victim in her evidence, rather than a matter of logic. Where a decision rests on such a basis - as it well may - it is difficult to see how a judge might elaborate upon his reasons for decision. (See R v Power (2003) 226 LSJS 337, 345 per Perry J, Williams and Bleby JJ agreeing.)
[6] R v Beard [2004] SASC 411 at [13] per Vanstone J (Doyle CJ and Perry J agreeing).
In my view the remarks of Vanstone J in Beard are apposite here. While I consider that it would have been preferable if the Magistrate had expressed the reasons for acquitting the appellant on count 2 more clearly, I do not, in the circumstances, consider that this failure affects the verdict on count 1. This is because the evidence on each count was different and the Magistrate made it clear that she assessed the evidence in respect of each count independently. In all of the circumstances, I do not consider that any more was required.
Finally, the appellant submitted that the evidence in support of count 1 was inherently improbable. Counsel pointed to the fact that Mrs Compton’s whereabouts at the time of the incident was unknown and that on the account of both boys B was screaming and crying throughout the incident which took place over some minutes. Moreover, B and A said that the injuries were so severe that B could not sit down for a week afterwards without pain and that could not be reconciled with the fact that Mrs Compton did not notice anything at all. In fact she did not learn of that incident for some months.
I cannot agree with these submissions. I do not consider the absence of Mrs Compton at the time when the events giving rise to count 1 took place to be of any significance. The fact is there were a number of plausible explanations given as to where Mrs Compton might be, either in the house, outside the house or somewhere else. Moreover if she had been in the house she would not necessarily have heard anything as there was evidence uncontested that Mrs Compton is quite deaf. Furthermore, at the time she had five children to care for including both A and B.
This was a case where the Magistrate did have a considerable advantage in observing the evidence and demeanour of each witness as it was given. She plainly believed B, the victim of count 1. Upon reading the evidence as a whole, I consider that finding was open to her. The account given by the appellant could not be reconciled with the evidence seen in the photograph. In my view the evidence in support of count 1 was overwhelming.
As I remarked earlier, the Magistrate’s reasons for acquitting the appellant on count 2 are not clear. Having accepted both A and B as truthful witnesses in respect of count 1 it is somewhat surprising that the Magistrate did not explain more clearly why she was unable to accept A beyond reasonable doubt in respect of his evidence on count 2. Nevertheless for the reasons I have given I do not consider that the defects in the Magistrate’s reasons in respect of the verdict on count 2 affect the verdict on count 1. Upon my independent review of the whole of the evidence I am satisfied that the appellant was properly convicted in relation to count 1.

For these reasons the appeal is dismissed.