Conradie v Concannon
[2013] WASC 15
CONRADIE -v- CONCANNON [2013] WASC 15
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 15 | |
| Case No: | SJA:1082/2012 | 20 DECEMBER 2012 | |
| Coram: | ALLANSON J | 31/01/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL ABRAM CONRADIE TIMOTHY CONCANNON |
Catchwords: | Criminal law Application for leave to appeal Assault occasioning bodily harm Turns on own facts |
Legislation: | Nil |
Case References: | Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bennett v Carruthers [2010] WASC 5 Bennett v Carruthers [2010] WASCA 131 Manonai v Burns [2011] WASCA 165 Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Weir v Tomkinson [2001] WASCA 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TIMOTHY CONCANNON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E C DE VRIES
File No : GN 4708 of 2011
Catchwords:
Criminal law - Application for leave to appeal - Assault occasioning bodily harm - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms G M Cleary
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASC 5
Bennett v Carruthers [2010] WASCA 131
Manonai v Burns [2011] WASCA 165
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Weir v Tomkinson [2001] WASCA 77
(Page 3)
1 ALLANSON J: On 10 July 2012, Daniel Abram Conradie was convicted after a two day trial of assaulting Hendrik Johannes Greyling and thereby doing him bodily harm. The offence was alleged to have occurred on 10 December 2011 at Three Springs.
2 Mr Conradie seeks leave to appeal on five grounds:
1. The magistrate made an error of law during ruling. He stated that we should have provided alternative possibilities on how Mr Greyling's injuries could have occurred.
2. The magistrate made an error of law or of fact by making a decision without proper evidence. At no stage could the prosecution produce physical forensic or eyewitness proof that a crime had been committed.
3. The magistrate made an error in fact: he was prejudiced towards the evidence of my three sons due to the fact that they were not independent witnesses and their English was not up to standard.
4. The magistrate failed to give proper reasons: during sentencing he did not make it clear why he was passing his verdict.
5. I was in no physical condition to assault someone.
3 On 5 October 2012 Justice Hall made orders that the application for leave on each ground is to be heard at the same time as the appeal.
4 The prosecution case, in essence, was that Mr Greyling and Mr Conradie were both employed on a farm at Three Springs. Mr Greyling was the farm manager. On 10 December 2011, while at work, there was a conversation between them, during which Mr Conradie made complaints about the failure of their employer to pay him overtime. Mr Conradie then lost his temper and assaulted Mr Greyling, first by punching him to the face, and then by hitting the back of his head, kneeing him in the chest and back, kicking him, and then squeezing his throat with his hands. During the assault Mr Conradie threatened to kill Mr Greyling.
5 Mr Greyling suffered severe injuries: his jaw was broken in two places, his teeth were damaged and three of his ribs were broken.
6 The defence case was that the assault did not happen. Mr Conradie agreed that he spoke with Mr Greyling at the place where Mr Greyling says he was assaulted. But Mr Conradie says that his son Jacques was present during that conversation. And when Jacques left to drive back to the farm office, he followed immediately behind. He was never alone
(Page 4)
- with Mr Greyling and did not assault him. Mr Greyling had simply lied about how he obtained his injuries.
7 This evidence was supported by Jacques, and by Mr Conradie's other two sons, Jan Daniel (JD), and Francois (Frankie). Jacques said that his father was driving behind him while he drove back to the office and pulled up behind him when he stopped. JD and Frankie both said that when Jacques arrived at the office, their father was about 20 to 30 m behind.
The decision
8 The court heard evidence on 4 and 5 July 2012. The magistrate gave his decision and oral reasons on 10 July. He began with a statement of the fundamental principles which apply in every criminal trial. He stressed that the prosecution bore the onus of proof which never shifted to an accused person. Where an accused person had given evidence denying the offence, as Mr Conradie had done, he could not convict if he believed that evidence, if he thought that what Mr Conradie said could reasonably be true, or if he arrived at a point in his deliberations where he did not know where the truth lay.
9 The magistrate then comprehensively summarised the evidence called on behalf of both the prosecution and the defence. After summarising the evidence he set out his findings. In particular, he found Mr Greyling to be a compelling witness whose evidence he believed. The magistrate found that the injuries to Mr Greyling's face and ribs were consistent with his description of how the assault unfolded. There was no issue that Mr Greyling's judgement had been clouded by drugs or alcohol as he had been harvesting all day. Mr Greyling and Mr Conradie knew each other well and there was no issue with regard to identification.
10 There were other prosecution witnesses, but none were present at the alleged assault. The other evidence, including medical evidence, was consistent with Mr Greyling's injuries being the result of an assault.
11 The magistrate then considered the defence evidence, including the evidence of Mr Conradie's three sons. He did not accept it and did not believe to be true. His Honour continued:
I do not accept the accused's evidence that he did not assault Mr Greyling and I do not accept the accused's evidence that he did not inflict the injuries.
(Page 5)
- I am satisfied beyond a reasonable doubt of the truth of Mr Greyling's evidence that he was assaulted by the accused and that the injuries that he sustained were as a result of that assault, notwithstanding the sworn denial by the accused and the evidence of JD, Frank and Jacques which for all intents and purposes amounted to alibi evidence. I am acutely aware and conscious of the fact that the accused bears no onus to prove anything, nor is he under any obligation to proffer some alternative explanation for the injuries sustained by the complainant and indeed he hasn't attempted to do so.
Having said that and after having considered all of the evidence thoroughly and carefully, I have formed the view there simply is no other reasonable explanation for Mr Greyling's injuries. As I say, not only do I accept the complainant's version of events but I am satisfied beyond a reasonable doubt of the truth of that evidence.
The grounds of appeal
Ground 1
12 On a fair reading of the magistrate's reasons, this ground cannot be sustained. The relevant passage from the decision is reproduced above. The comment that there was no other reasonable explanation for Mr Greyling's injuries cannot be read out of context. It followed immediately upon findings that he did not accept the evidence of Mr Conradie, that he was satisfied beyond a reasonable doubt as to truth of Mr Greyling's evidence, and that the injuries Mr Greyling sustained were the result of the assault. It also followed immediately upon the statement that Mr Conradie was under no obligation to offer some alternative explanation. His Honour did not err in the manner alleged.
13 I am satisfied that ground 1 is not reasonably arguable and leave should be refused on the ground.
Ground 2
14 Mr Conradie explained the substance of this ground in his oral submissions on appeal. Although there were photographs of the general scene in evidence, there were no photographs or other evidence identifying the precise place where the assault occurred. Mr Conradie also says that he was examined and his hands showed no signs of having been used in an assault.
15 The prosecution called no police evidence. The photographs that depict the scene were proved through Mr Greyling. If Mr Conradie's hands were examined, neither the prosecution nor the defence led evidence about it. Mr Conradie was represented at trial and there is
(Page 6)
- nothing on transcript to show that the prosecution failed to call a witness requested by the defence, or that evidence sought to be adduced by Mr Conradie regarding the condition of his hands was excluded.
16 Forensic evidence was unnecessary. The case was established on the evidence of Mr Greyling. Having regard to the circumstances in which the assault was said to have occurred, it is hard to see how it could have been proved otherwise. The magistrate believed Mr Greyling's evidence and found it sufficient to satisfy him beyond reasonable doubt. Had he not been satisfied on that evidence, he must have acquitted.
17 Having read the whole of the transcript, and in particular the evidence of Mr Greyling both in-chief and when he was under cross-examination, I am satisfied that his evidence was a sufficient basis for a finding of guilt beyond reasonable doubt. The magistrate had the opportunity to see the witnesses and form his assessment of them. Nothing has been put before me to show that he in any way misused that advantage or erred in his approach to the evidence.
18 Ground 2 is not reasonably arguable.
Ground 3
19 Mr Conradie and his sons are from South Africa. Their first language is Afrikaans. Mr Conradie submitted that aspects of their evidence reflected idiomatic speech of Afrikaans speakers. He gave one example: he referred to the way in which his sons would refer to a distance as a 'couple of metres' when literally they meant more than a couple.
20 It is, of course, impossible to know how the witnesses came across to the magistrate, and whether his assessment of their evidence could have been affected by the way in which they expressed themselves. But reading both the transcript and the reasons for the decision, I can identify nothing to show that his Honour was in any way influenced by any difficulties in expression. For example, to take the matter referred to by Mr Conradie in his submissions, in the evidence of Jan Daniel he was asked how long it was between his brother Jacques arriving and his father arriving at the office. JD said, 'My dad was just behind, a couple of metres behind my brother, Jacques'. When he was asked about that estimate, by reference to the distance to the wall of the courtroom, he said: 'I think the edge of that wall is about 10 m or so, maybe that's about 15, about 30, between 30 and 20 m … the distance between my dad and Jacques'.
(Page 7)
21 The magistrate asked a question to clarify the evidence:
So when you said that your dad was a couple of metres behind Jacques, what you really mean is, what? - - -Yeah, about 20 to 30 m, not like 5 m or 2k's behind.
22 This passage illustrates the point that Mr Conradie made in submissions. But the difficulty that witnesses have in estimating distances is not unusual, it is a common feature of trials. Importantly, the magistrate clarified what JD was intending to say. In his reasons his Honour said:
He and Frankie waited by the office for about 5 to 10 minutes and then Jacques arrived in Mr Greyling's ute. He said his dad arrived to couple of metres behind him. Later he clarified that to be some 20 to 30 metres.
23 I have read the whole of the transcript of the evidence of Mr Conradie's sons. The magistrate's summary of their evidence is both fair and accurate. There is nothing that demonstrates any prejudice or other improper approach to their evidence because of difficulty in expression.
24 The other matter referred to in this ground is the relationship between Mr Conradie and his sons, and whether the magistrate wrongly discounted their evidence because they were not independent.
25 There is nothing on the face of the reasons to show that the magistrate was prejudiced in the way alleged. It is true that he did not accept one part of the evidence of the Conradie boys, but that followed from his positive acceptance that Mr Greyling had told the truth about the assault.
26 Assuming that his Honour did take the relationship between Mr Conradie and his sons into account, that is not in itself an error. A close relative of a party may be biased. This is recognised in the texts: see for example, Cross on Evidence (8th Aust ed, 2010). The fact that a witness may be biased cannot be allowed to detract from the principle that the prosecution must prove its case beyond reasonable doubt. But his Honour carefully directed himself as to the onus of proof.
27 I am not satisfied that any error has been shown. Ground 3 has not been established.
(Page 8)
Ground 4
28 A magistrate has a duty to deliver reasons for decision. The many decisions to that effect are conveniently summarised by Hall J in Bennett v Carruthers [2010] WASC 5 [14] - [21]. For a magistrate, that obligation and the content of the reasons is now set out in the Magistrates Court Act 2004 (WA) s 31:
(1) The Court's reasons for a judgment in a case
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
29 In Bennett v Carruthers [2010] WASCA 131 [25] - [27], Mazza JA identified several principles that apply to the operation of s 31: first, the content of the obligation is not the same in every case and depends very much on the circumstances of the particular case; second, the question of compliance with such provisions raises questions of degree; third, determining whether reasons are adequate may involve a consideration of what can be legitimately inferred from the reasons. See also Hall J in Manonai v Burns [2011] WASCA 165 [53] - [55].
30 The obligation on the court to identify the facts that it has accepted and give the reasons for doing so requires it to set out findings on why it has accepted one set of evidence over conflicting significant evidence: Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 [32]; Manonai v Burns [55]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. In a criminal trial, where there are conflicting accounts, it may not be sufficient for the court to state it believes one witness in preference to another:
[The] resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves
(Page 9)
- the elements of the offence beyond reasonable doubt: Douglass v The Queen [2012] HCA 34 [12].
31 The magistrate in this case gave reasons orally. He first stated the principles applying to a criminal trial. He then summarised the evidence, before making specific findings. Crucially, he said that he accepted the evidence of Mr Greyling, and said why. He was careful to state that it was not simply a question of preferring Mr Greyling's evidence to that of Mr Conradie and his sons, but that he positively believed that what Mr Greyling had said was true. He did not accept the evidence given by Mr Conradie and his sons that Mr Conradie had arrived back at the office at the same time as his son Jacques, and did not believe that it was true.
32 Having regard to the limited issues to be decided, and the nature of those issues, his reasons were all that were needed. There is no arguable basis for ground 4.
Ground 5
33 The evidence of Mr Greyling was that the first blow was from Mr Conradie's right fist.
34 Mr Conradie, in his evidence-in-chief said that he had an injury to his right hand which he received in August 2010 when a calf kicked him, causing a fracture around the knuckle of his thumb. Mr Conradie said that in December 2011 his hand was still injured and that the fracture to the knuckle 'actually never repaired properly. It's always painful …'. Unfortunately, at this stage, part of the transcript is marked as indistinct. Mr Conradie said he had been scheduled for an operation on his thumb on 21 September 2011 but was forced to postpone it. At the beginning of his cross-examination Mr Conradie said that he did not have the potential to make a clenched fist as a result of his injury.
35 In his reasons for decision, the magistrate referred to this evidence but made no specific finding on it.
36 It was open to the magistrate to believe that the first blow was struck with Mr Conradie's fist. The evidence regarding the injury to Mr Conradie's hand was very limited and relied on the court accepting what Mr Conradie said about the restrictions it imposed on him. The magistrate did not accept Mr Conradie's evidence generally. It is reasonable to infer that his Honour was satisfied that the injury did not prevent Mr Conradie from doing what was alleged, and that he rejected Mr Conradie's evidence to that effect. The finding may be regarded as
(Page 10)
- having been based on, or influenced by, the views the magistrate formed as to the credibility of Mr Greyling and Mr Conradie. An appellate court cannot reverse that finding unless it is satisfied that the advantage enjoyed by the magistrate could not be sufficient to explain or justify his conclusion: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178; Weir v Tomkinson [2001] WASCA 77 [26] - [35]. On the evidence as a whole, I can identify no error.
37 Leave will be refused on ground 5.
Conclusion
38 Accordingly I am satisfied that none of the grounds put forward on this appeal has any real prospect of success. Leave to appeal is refused with regard to each ground, and the appeal is dismissed.
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