Dixon v Police - [2021] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
DIXON v POLICE
[2021] SASC 24
Judgment of the Honourable Justice Peek
5 March 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
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
Appeal against conviction of aggravated assault.

The appellant was convicted of aggravated assault of his then step-son (the subject assault). The appeal grounds were (1) that the verdict cannot be supported by the evidence; and (2) that the Magistrate erred in failing to provide adequate reasons for rejecting the appellant's evidence.
As to Ground 1, the major contention was that both the complainant and his mother, Ms Dixon, had each advanced in their evidence at trial the same two aspects of their description of the subject assault, which had been previously omitted in their respective police statements. It was contended that there was evidence of recent invention pointing to collusion.
Held:
1. On an independent review of the whole of the evidence in accordance with the precepts in Tazroo v Police [2002] SASC 155, the correct conclusion is that the charged offence is proven beyond reasonable doubt. Police v Stanford [2013] SASC 151; R v Quist (2017) 127 SASR 471; Tazroo v Police [2002] SASC 155 discussed.
2.The Magistrate fully directed herself as to the matters relating to the previous statements given by the complainant and Ms Dixon; and also as to the other matters relied upon by the appellant. Her Honour sufficiently explained her conclusions and adequately exposed her reasoning process, linking her factual findings to the proof of the charge. AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1 discussed.

AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1; Police v Stanford [2013] SASC 151; R v Quist (2017) 127 SASR 471; Tazroo v Police [2002] SASC 155, discussed.

DIXON v POLICE
[2021] SASC 24

Magistrates Court Appeal: Criminal

PEEK J: Appeal against conviction of aggravated assault.
Mr Michael Dixon (the appellant) was charged with one count of assault upon his then step-son (which was “aggravated” by dint of the quasi-parental relationship) (the subject assault). After hearing the trial and reserving judgment, the Magistrate delivered her verdict of guilty and her reasons on 12 November 2020.
Overview of the prosecution case
The background and a summary of the prosecution case is sufficiently set out by the Magistrate in her judgment thus:
5. The prosecution called four witnesses. The complainant who at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dixon v Police

Details

AGLC: Dixon v Police [2021] SASC 24
Case: [2021] SASC 24
Decision Date: 5 March 2021

CaseChat Overview and Summary

In the case of Dixon v Police, the appellant, Dixon, appealed against his conviction for aggravated assault by a Magistrates Court of South Australia. The appeal was heard by the Supreme Court of South Australia. The main issues in this appeal were whether the verdict of the trial magistrate was against the weight of the evidence and whether the trial magistrate failed to provide adequate reasons for her decision.

The court dismissed the appeal and affirmed the conviction. Regarding the first ground of appeal, the court noted that the term "against the weight of the evidence" is not appropriate in criminal appeals. The court held that the appellant's burden was to show that it was not open to the trial magistrate to find him guilty beyond reasonable doubt. The court found that the evidence was sufficient to support the conviction, and therefore, the first ground of appeal was dismissed. The court also rejected the second ground of appeal, which was that the trial magistrate failed to provide adequate reasons for her decision. The court found that the trial magistrate had adequately addressed the relevant issues and provided sufficient reasons for her conclusions.

The Supreme Court of South Australia affirmed the conviction of Dixon for aggravated assault. The court held that the trial magistrate's verdict was supported by the evidence and that the reasons provided were adequate. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Grounds of Appeal were originally as follows:1.The Learned Trial Magistrate found the Appellant guilty against the weight of evidence.2. Failed to properly take into account or at all the conduct amounting to collusion between the complainant and the complainant’s mother.The correct approach to an assertion that a verdict of guilty is not supported by the evidence I have previously, in the context of both summary and jury trials, protested at the mistaken adoption by some solicitors and counsel of the terminology “against the weight of the evidence” as a ground of appeal against a verdict in a criminal trial. In the former context, I stated in Police v Stanford:[1]10. Although the phraseology “against the weight of the evidence” has a certain pedigree, particularly in appeals against judgments in civil cases, it is not a good choice for an appeal against a verdict in a criminal trial heard by a Magistrate.11. The term “against the weight of the evidence” rather suggests that the burden on the appellant is to demonstrate that the preponderance of evidence was in favour of an acquittal and that the conviction was against the weight of that evidence. That might accurately represent the task of an appellant in civil proceedings but it disadvantageously states the position of the present appellant. The appellant at trial did not have to establish a preponderance of evidence in favour of an acquittal; he merely had to be successful in submitting that the case was not proven beyond reasonable doubt.12. The appropriate ground of appeal in a case such as the present would be something like: “The evidence cannot support a finding of guilt beyond reasonable doubt” or “It was not open to find the appellant guilty beyond reasonable doubt on the evidence” or even “The charge was not proven beyond reasonable doubt”, with many permutations in between. I will proceed on the basis that it is this approach that is intended by ground of appeal 2.[1] [2013] SASC 151. And in the latter context, I stated in R v Quist:[2]11. The drafting of ground 6 of appeal reflects a recent trend in notices of appeal to assert that a guilty verdict in a criminal trial is “against the weight of the evidence”. These words connote that the appellant proposes to undertake the burden of demonstrating that the jury should have found that the evidence in favour of a verdict of not guilty (the weight of the evidence) was greater than the evidence in favour of a conviction. Of course, the true burden on a criminal appellant is much less; it is simply to demonstrate by reference to the precepts in M v The Queen[3] that it was not open to the jury to find that the prosecution evidence was such as to produce satisfaction beyond reasonable doubt. The sooner this verbiage “weight of the evidence” is relegated to its home in the civil courts, the better. [2] (2017) 127 SASR 471.[3] M v The Queen (1994) 181 CLR 487, in particular the passage from the last paragraph at 492 to the first paragraph at 495 (Mason CJ and Deane, Dawson and Toohey JJ).

Decision

Reasons for decision

Further, I note the following submission of Mr Hill for the respondent, with which I agree:21. Finally, as to both of these asserted inconsistencies, the appellant’s argument might have some force if there was something particularly surprising about either witness first including a reference to the appellant’s knees, or the fact of the complainant going limp, in their testimony, but in each case it is unremarkable. As the LTM notes in the reasons, they are the types of inconsistencies one expects when a person subsequently recounts the same event.22. It is also helpful to identify the significance of these asserted inconsistencies to the real issues in the trial. As noted above, and contrary to what is implied in the appellant’s submissions, this is not a case of competing versions of the one incident. On the defence case, the alleged incident could not possibly have occurred because the complainant had left the house between the Saturday and the Thursday. On the defence case, the allegations must have been concocted by the complainant and Ms Dixon, and these asserted inconsistencies are evidence of that concoction. To that extent, it is relevant that the evidence of Mr Hampton and Ms Johnson served to negate the defence case. [Citations omitted]Conclusion as to Ground 1 of appeal I have considered Ground 1 of appeal by reference to the precepts in Tazroo v Police[6] as reproduced above. I have considered for myself the whole of the evidence (and in doing so have paid particular attention to the written and oral submissions of the appellant and the evidence given and called by the appellant). I conclude on the whole of the evidence that the appellant is guilty of the offence charged.[6] [2002] SASC 155. Accordingly, Ground 1 of appeal is not made out.GROUND 2 OF APPEAL In essence, counsel submits under Ground 2 that the Magistrate failed to give adequate reasons for convicting the appellant, particularly in light of the fact that he gave sworn evidence denying the offence, and taken together with the matters concerning the previous statements of the complainant and Ms Dixon referred to above. I consider that the Magistrate fully directed herself as to the matters relating to the previous statements given by the complainant and Ms Dixon, and also as to the other matters relied upon by the appellant. Her Honour gave all of these matters appropriate attention. Further, the Magistrate did explain sufficiently her conclusions concerning the significant disputes that constituted necessary steps to her final conclusion that the charge was proven; and in doing so, her Honour did conform to the precepts set out by the High Court in AK v Western Australia[7] and in the more recent decision in DL v The Queen.[8] In DL v The Queen, the majority (Kiefel CJ, Keane and Edelman JJ) stated: [9]33. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[10] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[11] In particular:[12]“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”[7] (2008) 232 CLR 438, 468.[8] (2018) 266 CLR 1.[9] Ibid 12-13.[10] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.[11] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.[12] AK v Western Australia (2008) 232 CLR 438 at 468 [85] (footnote omitted).

Ratio Decidendi

Legal Principle Established

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