Cox v Police No. Scciv-03-572

COX v POLICE
[2003] SASC 208
Magistrates Appeal

DUGGAN J. The appellant has appealed against findings of guilt made against him on two counts of supplying liquor to a minor contrary to s 117(2) of the Liquor Licensing Act 1997.
The appellant is the licensee of the Saddleworth Hotel. On 9 September 2001 two 14 year old girls, Amy Bruce and Jessica Backman, went to the hotel during the afternoon. They played 8-ball with a group of friends and moved about the hotel. They left, but returned that evening at about 7.00 pm. They did not consume any liquor on the premises, but the magistrate found that shortly before the hotel closed, they asked the appellant for alcohol.
According to the prosecution case, the appellant spoke to the girls after the hotel closed and told them he would meet them over at the community tennis courts a short distance from the hotel. It was claimed that he met them at the tennis courts and gave Amy Bruce a can of Bundaberg Rum and Jessica Backman a bottle of Lemon Ruski. Shortly after, they rode off and visited Ms O’Keefe, a friend of the family of one of them. Eventually the incident was reported to the police.
The appellant gave evidence at the hearing. He agreed that the girls were at the hotel during the afternoon. He said he saw them riding their bikes up and down the street after he closed the hotel, but he denied going over to the tennis courts and supplying them with alcohol. He denied giving them alcohol at any time.
The grounds of appeal allege that the findings of guilt are unsafe and unsatisfactory. Reliance is placed on what are claimed to be inconsistencies in the evidence of the girls together with instances of recent invention. It is also claimed that the magistrate failed to give adequate weight to a possible motive on the part of the girls for making up a story about the appellant, namely, the fact that they might get into trouble with their parents.
In his reasons for judgment the magistrate undertook an extensive analysis of the evidence. He then expressed his views on the credibility of the witnesses:
“I have assessed with due caution the evidence given by Amy and Jessica. I saw and heard them give that evidence. I noted their demeanour. I am compelled to say that I found none of the criticism that Mr Kerin made of them. I did not detect any deception in their evidence. They did not display any signs of being accomplished liars. I find that they recalled and described the main events of that day honestly and to the best of their ability. I did not detect nor find any conspiratorial language or tendency. They gave their evidence with candidness. They were relating events which actually occurred. They were not narrating a fictional story. I have reached the firm conclusion that they did not concoct the events of that day as recounted by them in evidence.
I found Amy and Jessica to be reliable and truthful witnesses. I have considered the inconsistencies and discrepancies in their evidence and formed the best conclusion as to the relative values of their respective testimony. The inconsistencies are, I find, not of a major or substantial nature. They are peripheral differences and do not belie the truth of what they were conveying. They used different, but quite normal and natural terms and expressions. They did not strictly relate the events in chronological order or sequence. However, there were no signs detected by me which indicated any sinister motive in the manner or terms used by them in their evidence. I have no hesitation in finding their evidence as to all main and central issues to be fundamentally accurate and convincing and I confidently accept their evidence. Having weighed all the evidence I am convinced that they told me the truth.”
The magistrate made unfavourable findings in relation to the appellant:
“I am unable to say the same for the defendant. I formed the view that the defendant showed little veracity in his evidence. I found him to be vague and deliberately and particularly evasive. I found that on a number of instances he was tying to avoid the question rather than genuinely having a problem of memory. When he was cornered he conceded possibilities. He willingly reconstructed and fabricated. An instance of this was his insistence that he was told by his wife that Jessica had told her that she had gone behind the bar to get the jukebox remote control. He also asserted that Mrs Cox had said to him that she had told off Jessica. There is absolutely no evidence of that. Indeed the evidence is the very opposite. Another instance was the scenario (T32) when he was distracted and said it was possible for one of the girls to have stolen the alcohol. He said that happened ‘just before they were pouring the cordials’. That scenario was never suggested to either girl.
I find other compelling reasons for rejecting his evidence. Apart from the glaring and significant inconsistencies between his evidence and the evidence given by his wife there are also numerous inconsistencies and discrepancies in his own evidence. I have already canvassed some of those in these reasons and I see no point in delving further into that unsatisfactory aspect of his evidence.
On the whole evaluation of the defendant I found him a most unconvincing and unimpressive witness. I did not find the defendant an honest, truthful and reliable witness and I reject his evidence. His evidence and self-serving denials carried no conviction at all and I find that he was firmly prepared to tell untruths in order to escape the consequences of his actions and behaviour.” (original emphasis)
At the forefront of the submissions made by Mr Kerin, for the appellant, is a claim of recent invention by the girls in relation to an incident which they said occurred during the time they were in the hotel.
The incident was referred to for the first time in the cross-examination of Amy Bruce. She said that while they were in the hotel, she helped the appellant apply some “white-out” to a sign. The cross-examination continued:
“QAt one stage he looked over your shoulder. Is that what you’re saying?
ANo. At one stage he stood behind me and pressed himself against me when I had the white-out.
QHe made physical contact with you?
AYes.
QHave you ever told that to anyone before today?
AYes.
QDo you recall telling Officer Dicker that?
AYes. Not exactly like that. I just said that he was standing behind me and I was feeling uncomfortable.
QYou’ve read your statement recently haven’t you?
ANo.
QDo you recall saying to Mr Dicker – Officer Dicker ‘Trevor gave me the white-out while I was making the correction. Trevor stood behind me really close and this made me feel very uncomfortable’.
AYeah.
Q‘I gave the white-out back and Jessica and I finished our game of 8-ball off’. Do you remember that?
AYeah.
QThere’s no mention there of physical contact is there?
ANo.
QWhere was Jessica when that physical contact happened?
AStanding over on the other side of the table.”
Jessica Backman gave evidence after Amy Bruce. She was asked about this incident in examination-in-chief:
“AAmy made a mistake and she asked for some white-out and Trevor got it from a little container behind the bar.
QDid she use that white-out?
AYes.
QDo you know what she used it for?
AShe made a mistake somewhere. I wasn’t paying much attention.
QWhat happened after that?
ATrevor went up behind Amy and pushed himself into her. She then handed him the white-out over, from over her shoulder.
QWhere was this taking place when she was correcting the –
AIn the front bar.
QWhereabouts?
AOn the table that’s on the left side of the bar.
QWhere was Amy positioned and where was –
AAmy had her back towards the bar, facing towards the front bar.
QWhere was Trevor?
ABehind her.”
In cross-examination the witness said that the appellant was standing against Amy so that his stomach was touching her back. She said she thought she mentioned this to the police. In his evidence, the police officer said that he did not think physical contact was mentioned and that he would have recorded such a statement if it had been made.
The magistrate found it unnecessary to come to a firm finding on this incident, but he said that “on the whole of the evidence it would not be an unfounded or erroneous conclusion that such contact was made”.
It is apparent from the cross-examination of Amy Bruce that she said to the police that the appellant stood “really close” behind her and that this made her feel uncomfortable. Jessica Backman said she thought she did mention the aspect of physical contact to the police officer.
I do not regard any failure on the part of the two witnesses to mention the fact that physical contact had been made as a matter of particular significance in assessing their credibility. Nor do I think the magistrate was required to find that this aspect of the incident might well have been concocted by the girls. The evidence is open to the view that the girls were asked for more details about certain peripheral issues of the trial and this was one of them.
Then it was argued that there is a discrepancy in relation to the number of drinks which the girls said the appellant took to the tennis courts for himself. Amy Bruce said that the appellant took two drinks to the tennis courts for himself and that he finished one and started on the other before the girls left. There are two further references to this aspect, one in the evidence of Amy Bruce and the other in the evidence of Jessica Backman when the girls said that he was drinking from a can. However, it is clear from the context of these statements in evidence that they were referring to what he was doing at a particular time and not how many cans he took to the tennis courts.
Mr Kerin then drew attention to various discrepancies in the evidence of the girls on topics such as whether the appellant called or whistled to them, where they rode their bikes at the tennis courts and the circumstances in which the appellant came to meet them at the front of the hotel before going down to the tennis courts. In my view, none of this evidence was of such a nature as to raise concerns about the veracity of the prosecution witnesses. It is important to draw a distinction between significant discrepancies which might well cast doubts on the veracity or accuracy of the evidence of witnesses and discrepancies which are inevitable in the retelling of a series of events. The remarks of McHugh in M v The Queen (1994) 181 CLR 487 at 534 are apposite:
“It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of a conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”
Reliance was placed on other evidence which established that, while they were in the hotel, the girls were in at least one area which gave them access to alcohol of the description which they had in their possession after the alleged incident at the tennis courts. The girls denied taking alcohol from the hotel and the fact that they had access to this area, although a relevant factor to take into account, did not necessarily cast doubt on their versions.
Mr Kerin stressed that the girls had a motive for implicating the appellant in that they were concerned at what might be the reaction of their parents. However, there is no evidence that they were affected in any way by alcohol. They told Ms O’Keefe about the incident shortly after leaving the tennis courts. They then told Jessica’s parents that evening and Amy told her parents the following day. In the light of this sequence of events it is difficult to attach any weight to the suggestion that they were motivated to concoct a version implicating the appellant because of fear of their parents’ reaction.
Finally, I reject the suggestion that an inference unfavourable to the prosecution case was available because the prosecution did not call a child named Jason who Amy Bruce said spoke to her at the tennis courts. This was at a time before the alleged arrival of the appellant. The presence of the girls at the tennis courts at this time was not a controversial issue in itself; the important issue was whether the appellant was also there and whether he supplied the girls with alcohol on that occasion.
In my view, there was ample evidence to support the conviction and the matters raised by the appellant do not give rise to any concern as to the reliability of the prosecution witnesses.
The appeal will be dismissed.

[2003] SASC 208

4 July 2003