Cucuk v Police - [2004] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CUCUK v POLICE
Judgment of The Honourable Justice Gray
2 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN NOT ADMISSIBLE
Appeal against conviction by magistrate for assault occasioning actual bodily harm - appeal out of time - extension of time granted - conviction appealed on grounds that prosecution failed to prove beyond reasonable doubt that there was no lawful justification or excuse for the appellant's conduct - magistrate failed to take into account racial background - further evidence of appellant's mental health sought to be tendered on appeal - consideration of principles governing reception of further evidence on appeal - further evidence of little probative force - futher evidence not received on appeal - no error of law identified - appeal dismissed.
Criminal Law (Consolidation) Act 1935 (SA) s 15, s 40; Magistrates Court Act 1991 (SA), referred to.
In Re Van Beelan (1974) 9 SASR 163; R v McIntee (1985) 38 SASR 432, considered.

CUCUK v POLICE
[2004] SASC 341
Magistrates Appeal
GRAY J

This is an appeal against conviction.
Background
The appellant, John Cucuk, was charged with assault occasioning actual bodily harm contrary to section 40 of the Criminal Law Consolidation Act 1935 (SA).[1] It was alleged that on 20 January 2002 he punched Milan Pavlovic on the cheek causing a fracture. A trial proceeded in the Magistrates Court. The learned magistrate heard evidence from a number of crown witnesses and from the defendant. Mr Cucuk was found guilty and convicted. The magistrate imposed a 12-month bond with supervision.
[1] Section 40 provides:
Any person convicted of assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding five years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding eight years.
The magistrate provided reasons. She considered the evidence of all witnesses in detail and made firm findings of fact on that evidence. Her summary of the account given by the witnesses for the prosecution was as follows:
Milan Pavlovic, the alleged victim, went to the Schutzenfest, with his brother, Dalibor, and two friends, who at the time of trial were married, Andrew and Marijana Levak. All four of these persons gave evidence at the trial…
In short, the evidence of these witnesses was that as they were walking through the car park, the defendant, with no provocation at all punched Milan Pavlovic to the right hand side of the face causing him to fall to the ground. There is some evidence that the defendant was yelling abuse at the group before he struck, and I shall deal in more detail with this issue later. The defendant then also attempted to punch Andrew Levak, who was able to avoid the blow. After the blow and attempted blow were delivered, the defendant continued to abuse the group. There was a woman and a young girl, now known to be the defendant’s wife and daughter, nearby, who spoke to the defendant urging him to stop fighting and yelling.
The magistrate formed a favourable view of Mr Pavlovic from his evidence. She stated that ‘[h]e gave evidence clearly and in a straightforward manner’. She expressed that she was similarly impressed by the other prosecution witnesses and found them to be honest and truthful.
As identified by the magistrate in her reasons, Mr Cucuk raised the issue of self defence as outlined in section 15 of the Criminal Law Consolidation Act 1935 (SA). Mr Cucuk claimed that the blow he delivered was for a defensive purpose. His evidence, as summarized by the magistrate, was as follows:
..that [Mr Cucuk] he was walking through the car park area towards his car…He saw Milan Pavlovic’s group which was slightly ahead of his…[He] heard the words … “mother” and “dog” … “dickhead” in Croatian…Then as he walked towards his daughter, he saw a look of fear on her face. He said that turned back and saw Milan Pavlovic immediately behind him so he instinctively “let a punch go”. He then started yelling and screaming and carrying on to draw attention to himself, because he thought the group was going to knock him to the ground.
The magistrate made the following findings:
-Mr Pavlovic and his friends were talking and joking amongst themselves in Croatian;
-Mr Cucuk abused and threatened Mr Pavloic and his friends. They ignored him;
-after Mr Pavolic and his friends had passed, Mr Cucuk walked behind Mr Pavlovic and struck him without warning
-Mr Cucuk then attempted to strike another member of the group
-Mr Cucuk continued to abuse Mr Pavlovic and his group of friends
The magistrate rejected much of the evidence of Mr Cucuk:
I reject the defendant’s version of how the punch was delivered, and I find that the group did not threaten or abuse him in any way. I also reject the defendant’s evidence that immediately before he instinctively punched him, Milan Pavlovic was behind the defendant who turned around to see him half a metre away with his fists up in a threatening manner.
As earlier observed, the magistrate found Mr Cucuk guilty of the offence.
Issues on Appeal
Extension of Time
Through no fault of Mr Cucuk, the notice of appeal was lodged out of time. Counsel for Mr Cucuk made an application for an extension of time to appeal. While the application was not opposed, counsel for the prosecution submitted that there was no merit in the appeal. It was submitted that as such, no miscarriage of justice would occur were an extension of time not granted.
Self Defence
It was agreed by both counsel on appeal that, as Mr Cucuk admitted punching the victim, the issue at trial was whether the prosecution had proved beyond reasonable doubt that there was no lawful justification or excuse for Mr Cucuk’s conduct.
Counsel for Mr Cucuk submitted that the magistrate failed to give sufficient weight to the different ethnic background of the prosecution witnesses and Mr Cucuk when considering Mr Cucuk’s claim of self-defence. It was said that the magistrate erred in failing to take into account, in her assessment of the evidence, the notorious hatred between ethnic groups from the former Yugoslavia. Counsel argued that with this racial background, these considerations were relevant to the defence of self defence. It was said that the genuineness and strength of Mr Cucuk’s belief that the blow struck was necessary, could only be adequately assessed when considered against the background of the relevant race relations.
Counsel for Mr Cucuk further submitted that the only prosecution witness to give a statement to the police immediately following the incident was Mr Pavlovic. Counsel suggested that as statements from the other witnesses were not taken until many months after the incident, there was an opportunity for those witnesses to compare and consider their versions of events. Counsel suggested that little weight should have been given to the evidence of those witnesses as they had had an opportunity to discuss and tailor their evidence to fit the earlier statement of provided by Mr Pavlovic.
The issues at trial involved questions of fact and credibility. Full regard ought to be had to the magistrate’s advantage in seeing and hearing the evidence of witnesses. The magistrate’s findings of fact based on the credibility of witnesses should not be disturbed unless it could be shown that the magistrate acted on evidence which was inconsistent with facts incontrovertibly established by other evidence.
It was open to the magistrate to reject parts of the appellant’s evidence, including the assertion that the victim held his fists up in a threatening manner. It was open to the magistrate to find that it was not reasonably possible for Mr Cucuk to genuinely but mistakenly believe the situation to be as he described. The trial did not miscarry due to a failure of the magistrate to give sufficient weight to the respective ethnic background of the witnesses and Mr Cucuk.
Although the issue of conflict between ethnic groups within the former Yugoslavia was raised at trial, the evidence did not indicate that this background of ethnic violence and hatred was operating on Mr Cucuk’s mind at the time of the offence. It was reasonable to conclude that the question of racial or ethnic tensions only became an issue in Mr Cucuk’s mind after the assault had taken place. The findings of fact made by the magistrate were open on the evidence and supported the conclusion that Mr Cucuk did not genuinely believe that the assault was necessary and reasonable for the purpose of self defence.
Counsel for the prosecution submitted that even if the magistrate erred in finding that Mr Cucuk did not genuinely believe the assault to be necessary and reasonable, no miscarriage of justice arose as his response to the believed threat was not reasonable having regard to the fact that:
-Mr Cucuk said he punched Mr Pavlovic because of “the look on my daughter’s face, the swearing and the fact that it all happened so quick”;
- Mr Cucuk was a larger man than Mr Pavlovic and extremely strong;
- Mr Cucuk did not say anything to Mr Pavlovic before hitting him; and
-There were other options available to Mr Cucuk to avoid a violent confrontation.
This submission should be accepted. Mr Cucuk’s response was an unreasonable response in all the circumstances.
Further Evidence
Counsel for the appellant submitted that Mr Cucuk was suffering from a medical condition at the time of offending which was undiagnosed at the time of trial in November 2003 and January 2004 and remained undiagnosed until 12 March 2004. It was contended that reports of Mr Fugler, a clinical forensic psychologist, established that the appellant was likely to have been suffering from a disorder both at the time of the offence and when giving evidence at trial. Counsel submitted that Mr Fulger’s reports should be received as further evidence on this appeal. It was said that Mr Cucuk’s psychological condition was relevant to his perception of the situation at the time of the offending and his response to that situation. Counsel submitted that the impact of Mr Cucuk’s psychological disorder and his perception of the incident were relevant to his defence of self defence.
Mr Fugler’s report contains the opinion that at the time of giving evidence at trial Mr Cucuk was suffering from a mixed anxiety and depressive disorder and was:
… likely to have had difficulty presenting evidence in a manner conducive to his defence on 10 November 2003 as a result of heightened anxiety and depression, both conditions interfering with the ability to accurately recall and concentrate effectively on questions put to him by defence and prosecution counsel. The news of his friend’s death is likely to have led to marked distress and a further reduction in Mr Cucuk’s ability to attend effectively to the presentation of evidence, and the retrieval of memories on 12 November 2003.
Pursuant to section 42(5) of the Magistrates Court Act 1991 (SA), the Court has the power to receive fresh evidence when considering appeals against decisions of magistrates. However, it is well established that the power to receive evidence on appeal must be exercised with caution.
In In re Van Beelan[2] the following principles with respect to the reception of further evidence on appeal were enunciated:
-the ultimate question is whether there has been a miscarriage of justice.
-the additional evidence must be such that it would have been admitted at the trial
-the additional evidence must of be such substantial importance and of such cogency, plausibility and relevancy that when considered with the other evidence given at the trial the result ought in the minds of reasonable men to remove the certainty of guilt which the former evidence produced
-in considering whether a miscarriage of justice has occurred great importance will generally be attached to whether a deliberate choice was made by the defence not to call the evidence and the probative force and nature of the evidence produced at the trial.
[2] (1974) 9 SASR 163 at 183-184
In R v McIntee[3] King CJ observed:
The rules relating to fresh evidence like all rules of law should applied so as to serve and not to frustrate the interests of justice …appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or unjust sentence is permitted to stand.
[3] (1985) 38 SASR 432 at 435
Considerable difficulties confront the appellant in his application that Mr Fugler's evidence be received on the appeal. It is to be observed that there is no direct evidence before the court from the appellant of the problems he is said to have faced and in particular he has provided no evidence of any difficulty he was under when giving evidence before the magistrate. There is no evidence from either the appellant’s solicitor or counsel suggesting that there was any problem in the taking of instructions or in the leading of evidence from the appellant at trial.
In the ordinary course one might expect defence counsel to explore the possibility of the existence of some psychological or psychiatric condition. This was particularly so given the ethnic conflicts that were claimed to exist. In this matter there is no evidence on that topic.
No doubt it is often the case that an accused when giving evidence does so under psychological stress and in some cases that stress may be significant. Magistrates are well aware that stressful circumstances may arise in a court room. These matters are not uncommon and appropriate allowances and adjustments are made in the ordinary course of the proceedings.
Another matter of concern is that the psychologist Mr Fugler was not consulted until some months after the appellant’s conviction. As a result Mr Fugler was dependant on the accuracy and reliability of the history provided by the appellant. Before evidence of the appellant’s mental health at the time of the incident could be received a clear and detailed factual foundation would need to be established to support the accuracy of the history taken by Mr Fugler.
The suggestion that the appellant may have had difficulty when giving evidence has little if any probative force. At best it was a general statement that the appellant was likely to have difficulty in regard to accurate recall of events and in concentrating on difficult questions put to him. This has been put in generality without any condescension to particularity about any topic, question, or item of evidence.
For these reasons Mr Fugler’s report should not be received as evidence on the appeal. It is not cogent particularly having regard to the absence of supporting testimony from any direct source. The report of Dr Fugler does not establish any real risk that the appellant has been unfairly convicted. The appellant has not demonstrated that any miscarriage of justice has occurred.
Conclusion
The present appeal is based on a challenge to factual findings made by a magistrate. No errors of law have been identified. As earlier observed, the magistrate prepared careful, detailed and considered reasons for her findings of fact and conclusions reached. The evidence led at trial provided support for the findings made and conclusions reached by the magistrate.
This appeal should be dismissed.