Fenton v Police - [2014] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FENTON v POLICE
[2014] SASC 167
Judgment of The Honourable Justice Blue
7 November 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The defendant appeals against a conviction by a Magistrate of aggravated assault in contravention of section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
On 8 January 2014, there was an incident between the defendant and his then domestic partner K. K gave evidence that the defendant pushed her onto the floor with his knees in her back causing bruising on her back and arm. The defendant gave evidence that K slapped him first, and then he restrained her in self-defence.
The grounds of appeal are that the Magistrate erred in his assessment of K's credit; the Magistrate erred in making his own assessment about the bruising on K's back and the potential effects of alcohol on loss of control and aggression; and the Magistrate erred in relying on K's distress.
Held by Blue J dismissing the appeal:
1. The Magistrate did not err in his assessment of K's credit (at [22], [26] and [30]-[31]).
2. The Magistrate did not err in making his own assessment about the bruising on K's back and considering that it was consistent with K's account (at [36]).
3. The Magistrate's limited use of the common knowledge that alcohol can lead to a loss of control and aggression was permissible (at [40]).
4. The Magistrate made legitimate use of the evidence of distress exhibited by K (at [46]).
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(g)(ii), 20(3), referred to.
R v Baltensperger [2004] SASC 392; (2004) 96 SASR 34, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"aggravated assault - credibility - prior inconsistent statements - intoxication - self-defence"

FENTON v POLICE
[2014] SASC 167
Magistrates Appeal: (Criminal)
BLUE J:

This is an appeal by the defendant against his conviction by a Magistrate of aggravated assault.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3). The aggravating circumstance alleged was that the victim was the defendant’s domestic partner at the time: Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g)(ii).
The charge related to an incident that occurred on 8 January 2014 between the defendant and his then domestic partner K.
K gave evidence that the defendant assaulted her essentially by pushing her down on the floor with his knees in her back, twisting her arms behind her back and forcing her face into the floor with his elbow. A police officer attended and observed that K exhibited visible distress. K’s friend, A, gave evidence that, while speaking by telephone to K shortly before the alleged assault, she overheard part of the argument between the defendant and K. The defendant gave evidence that he was acting in self-defence, following K slapping him on the back of the head and attempting to strike him further, and that K in her evidence exaggerated his actions.
In his reasons for judgment, the Magistrate preferred the evidence of K over that of the defendant. The Magistrate referred to the bruising of K depicted in the photographs, to K’s distress observed by the police officer and to the potential effects of alcohol on loss of control and aggression by the defendant. The Magistrate was satisfied beyond reasonable doubt that the crucial events occurred in accordance with K’s account and convicted the defendant.
The defendant appeals on essentially three grounds:
1.the Magistrate erred in his assessment of K’s credit by failing to have regard to differences between her evidence in court and her statement to the police made on the night,[2] detail included in her evidence not mentioned in earlier witness statements[3] or her guarded and defensive answers in cross-examination concerning her discussion with A on the morning of trial[4];
2.the Magistrate erred in making his own assessment of the consistency of the bruise to K’s back with the respective accounts by K and the defendant[5] and of the potential effect of alcohol on loss of control and aggression[6] in each case in the absence of expert evidence; and
3.the Magistrate erred in relying upon K’s distress as observed by the police officer.[7]
[2]    Ground 1.
[3]    Ground 2.
[4]    Ground 3.
[5]    Ground 4.
[6]    Ground 6.
[7]    Ground 5.
Background
As at 8 January 2014, K, the defendant and their seven year old daughter D were residing together at a house at Port Noarlunga South. The defendant was a police officer of large stature with a height of approximately 1.95 metres. K was of modest stature with a height of approximately 1.62 metres.
On 8 January 2014, the defendant spent the day at home looking after D. K returned home from work at about 5:30 pm. At that point, the defendant had begun drinking red wine. After D was put to bed, K spoke by telephone to A for approximately 2½ to 3 hours. Both K and the defendant were drinking red wine over that time. At least three bottles were consumed between them. The defendant interrupted K several times while she was speaking on the telephone and told K to get off the phone. The defendant was speaking aggressively while K was speaking on the telephone. After the conclusion of the telephone call, the defendant was upset and angry and there was an argument between K and the defendant during which they each verbally abused the other.
K gave evidence that, following the argument, the defendant grabbed her by the lapels of her shirt and they both fell to the floor. The defendant pushed her down flat on her stomach, climbed onto her back, pushed her down with both knees in her back and twisted both of her arms behind her back. The defendant put his elbow into the nape of her neck and forced her face down into the floor. When K called out for D to call the police, D came into the room and the defendant released K, who telephoned the police.
K was cross-examined on, inter alia, differences in her account of the first part of the alleged assault between her evidence in court and that recorded in the notes taken by Senior Constable Chilcott on the night; details given in her evidence in court not mentioned in her statement to Senior Constable Chilcott or her affidavit prepared two weeks later; her not recalling in court telling the defendant that he had “man boobs” in response to his calling her “fat and ugly” whereas she had told Senior Constable Chilcott that she had said this on the night; and the details of her discussion with A on the morning of the trial.
A gave evidence that she overheard the defendant arguing with and being verbally aggressive towards K while she was speaking to K on the telephone.
Sergeant Phillips gave evidence that he attended at the premises with Senior Constable Chilcott and four other police officers just after midnight. Sergeant Phillips observed that K was visibly distressed. He observed the defendant and formed the opinion that he was drunk. Senior Constable Chilcott gave evidence that she interviewed A and made notes in her notebook based on what A told her on the night.
Senior Constable Logan gave evidence that the following morning he took a series of photographs of K, including of a bruise on her lower back (photos 10 to 12) and a bruise on her left upper arm (photos 5 to 7). The photographs were tendered and received into evidence.
The defendant gave evidence that he became angry and upset at the amount of time K was spending on the telephone talking to A over the evening. He said that, following the argument with K, K slapped him two or three times on the back of the head. He gave evidence that, when they were facing each other, K attempted to strike him with her left hand, to which he responded by grabbing K’s upper left arm with his left hand and her left wrist with his right hand, twisting her arm behind her back and attempting to bend her over the couch. He described this as a “gentle restraint”. They both then fell to the floor, with K ending up lying face down and the defendant lying on the left side of K’s back. The defendant still had K’s left arm twisted behind her back. He did this, he said, to prevent K from hitting him again. Ultimately, he released her and she telephoned the police.
The Magistrate’s reasons
The Magistrate summarised the facts which were common ground and the evidence given by the witnesses. The Magistrate identified that the onus was upon the prosecution and the required approach to the assessment of the evidence of the witnesses.
The Magistrate then analysed the evidence. He started with the evidence given by K. He referred to the manner in which K gave evidence and to her demeanour. He referred to several aspects of her cross-examination, namely inconsistencies between her account of the first part of the alleged assault between her evidence in court and that recorded in the notes taken by Senior Constable Chilcott on the night; detail given in her evidence in court not mentioned in her statement to Senior Constable Chilcott or affidavit prepared two weeks after the incident; her not recalling in court telling the defendant that he had “man boobs” whereas she had told Senior Constable Chilcott that she had said this on the night; and the detail of her discussion with A about the incident on the morning of the trial.
The Magistrate summarised the evidence given by the defendant. In the course of doing so, he addressed the respective states of intoxication of the defendant and K, including by reference to the evidence of Sergeant Phillips.
The Magistrate then turned to the differences between the account of events given by K and the defendant. He observed that the case depended on this because, on the defendant’s account, he was acting for a defensive purpose.
The Magistrate referred to several factors to which he had regard. He considered that there was an area of unreality about crucial parts of the defendant’s account, including that it was natural that the defendant should respond to being slapped by placing his wife in an arm bar and trying to bend her over a couch. He considered that the extent of the bruising on K’s lower back was consistent with K’s account and unlikely on the defendant’s account. He considered that the distress exhibited by K observed by Sergeant Phillips was consistent with K’s evidence. He observed that the defendant was affected by alcohol, which is capable of adversely affected recollection or of leading to a loss of control and aggression. He referred to the undisputed fact that the defendant was angry before the incident. He referred to the fact that he considered that K gave a convincing and compelling account of the incident, notwithstanding departures from her earlier statement. The Magistrate concluded that he accepted beyond doubt K’s version, and rejected the defendant’s version, of the crucial events. He found that the defendant assaulted K and was not acting for a defensive purpose.
Assessment of K’s credit
The first three grounds of appeal relate to the Magistrate’s assessment of credit and can be considered together, namely that the Magistrate erred in his assessment of K’s credit by failing to have regard to:
1.differences between her evidence and her statement to Senior Constable Chilcott made on the night;
2.details included in her evidence not mentioned in earlier witness statements;
3.her guarded and defensive answers in cross-examination concerning her discussion with A on the morning of trial.
Differences in account
In her evidence in chief, K said that initially the defendant grabbed her by the lapels of her shirt while they were both standing. In the notes taken by Senior Constable Chilcott, it was recorded that K said that the defendant grabbed her by the arms while he was sitting in a chair. When these differences were identified during cross-examination, K said that her recollection was in accordance with her evidence in chief and that to the best of her recollection she had given the same account to Senior Constable Chilcott.
The Magistrate addressed these differences at paragraph [15] of his reasons for judgment. He found that it was likely that K told Senior Constable Chilcott that the defendant grabbed her by the arms and that K’s recollection in court in this respect was not in fact correct.
The defendant complains on appeal that the Magistrate did not go on to consider what impact this had upon his assessment of K’s credibility. This complaint would have substantial force if the question whether K was grabbed by the arms or the lapels was an important issue in the case and if the Magistrate had addressed K’s evidence in the context of determining a substantive issue in the case and not in the context of assessing K’s credibility. However, the question whether the defendant grabbed K by the arms or lapels and whether the defendant was standing or seated when he grabbed K was not a significant issue in the case. Its relevance was to credit and this was made plain by the manner of cross-examination on the topic. When paragraph [15] is considered in context, it is apparent that the Magistrate did consider this evidence as part of his overall consideration of K’s credit. The Magistrate made it plain at paragraphs [12], [26] and [33] that the case turned on his assessment of the credit of K and of the defendant. Paragraph [15] falls in the middle of a series of paragraphs in which the Magistrate assessed K’s credit. It is the first of the examples given by the Magistrate of K having been subject to searching cross-examination and becoming defensive at times. I reject the first ground of appeal.
Detail not previously mentioned
During cross-examination, K said that, when the defendant first grabbed her, his eyes were red, he looked extremely angry and was more than likely drunk. It was put to her that she had not mentioned this in her statement on the night or in her subsequent affidavit.
The Magistrate addressed this at paragraph [16] of his reasons. He said:
She was also cross-examined at length about detail included in her evidence that was not mentioned in her statement. It was apparent that she found that line of questioning quite frustrating. Her frustration was understandable. The questioning proceeded on the premise that every detail would be recorded in a witness statement which was unrealistic.
The defendant complains on appeal that, by reason of his use of the singular terms “statement” and “witness statement”, the Magistrate failed to have regard to a relevant consideration - the witness affidavit prepared about two weeks after the incident.
The cross-examination on this topic referred to the absence of a previous reference to this in the statement to Senior Constable Chilcott and the subsequent affidavit alike. There was no distinction between the two: they were both previous statements by K not containing this detail. The Magistrate addressed the contention that the defendant’s omission to mention this prior to cross-examination impacted her credit on its merits and rejected that contention. The Magistrate plainly recalled the cross-examination and the submission made in closing address by the defendant on its significance. While the Magistrate was loose and inaccurate in his language by referring to “statement” and “witness statement”, it is plain that the Magistrate dealt with the substance of the submission made to him regarding K’s credit on this point. I reject the second ground of appeal.
Discussion with A
During cross-examination, K was asked whether she had discussed the events of the night in question with A after they occurred. She said that she had. She was asked when was the most recent time and she said that morning. When asked for the detail of the discussion, she said she did not remember due to the stress she was under being in court with the defendant and under cross-examination. A was also cross-examined concerning the discussion on the morning of trial. A said that K said that she had bruises without describing how that had happened. A said that K just said “I had bruises, how can someone say that didn’t happen.”
The Magistrate addressed this at paragraph [18] of the reasons. He said:
She was guarded and defensive when questioned about whether she had discussed the evidence with AH earlier on the day of the trial. It was clear that she was unfamiliar with and uncomfortable with cross-examination. However, she did not present as a person revealed in cross-examination as one determined to conceal evidence but rather as someone unsettled by the process. AH was questioned about any conversation she had with KT before court. There appears to have been nothing in fact to hide in their discussion.
The defendant complains on appeal that the Magistrate failed to have regard to how K’s “guarded and defensive” responses to questions about her conversation on the morning of trial with A might reflect on her credibility. The defendant also contends that K’s answer that she did not recall the detail of their discussion because of stress was blatantly dishonest.
Paragraph [18] of the Magistrate’s reasons for judgment is expressed in terms appropriate to being taken into account on a credibility assessment. The issue of discussion by K with A concerning her evidence was only relevant to credit and had no relevance to the issues in the case. Paragraph [15] falls at the end of a series of paragraphs in which the Magistrate assessed K’s credit. It is the first of the examples given by the Magistrate of K having been subject to searching cross-examination and becoming defensive at times.
The Magistrate saw and heard K give evidence. It was open to him to take the view that she was not being dishonest in saying that she did not recall the detail of her discussion with A on the morning of trial. I reject the third ground of appeal.
Matters for expert evidence
The next two grounds of appeal relate to whether the Magistrate was entitled to make his own assessment of matters which the defendant contends required expert evidence, namely:
1.the consistency of bruises to K’s back with the respective accounts by K and the defendant;[8] and
2.the potential effect of alcohol on loss of control and aggression.[9]
[8] Ground 4.
[9] Ground 6.
Bruise on A’s back
The prosecution tendered several photographs taken of K by Senior Constable Logan on the morning following the incident. One series of photographs showed a large bruise on K’s left lower back (photos 10 to 12) and another showed a pronounced bruise on K’s left upper arm (photos 5 to 7).
The Magistrate referred to the bruising depicted in the photographs in the context of considering the differences between the accounts given by K and the defendant. He said at paragraph [28]:
Secondly, the bruising depicted in P1 lend significantly greater support to KT’s account. There is a large bruise on KT’s lower back above her left buttock. That is consistent with her claim to have been pinned to the ground with the defendant’s knee in her back. The size of the bruise is consistent with the imprint of a knee and the depth of colour is consistent with the force described. I consider the explanation given by the defendant that this was caused by his right elbow when restraining KT in an ‘arm bar’ after they fell as unlikely, and the defendant was evasive when questioned about the force applied, choosing to debate about the meaning of ‘force’. The defendant had explained that KT bruised very easily, knocking herself gardening or cleaning up the car. He likened the bruise left by his finger on her upper arm (photo 7) with the fingerprints he left on her bottom after they had sex. Be that as it may, the bruising is consistent with her account of being angrily grabbed and unlikely on his account of ‘gentle restraint’.

The defendant contends that the diffusion, colour and force required to inflict a bruise are topics for expert evidence and the Magistrate erred in drawing his own conclusions, unaided by expert evidence, from the size and colour of the bruise on K’s lower back.
In relation to the lower back bruise, the Magistrate confined his observations to considering that the bruising was “consistent” with K’s account and “unlikely” on the defendant’s account. A trier of fact is entitled to rely upon common sense and experience when considering the evidence. If the Magistrate had gone further, he may have transgressed into realms that required expert evidence, but he made only limited use of his own common sense and experience in considering what was likely or unlikely, or what was consistent with K’s account.
No complaint is made on appeal concerning the Magistrate’s consideration of the bruise to K’s upper arm and the Magistrate made only limited use of his common sense and experience in considering what was likely or unlikely, or what was consistent with K’s account. I reject the fourth ground of appeal.
Potential effect of alcohol
The Magistrate referred to the general effects of alcohol in the context of considering the differences between the accounts given by K and the defendant. He said at paragraph [30]:
Fourthly, the defendant was affected by alcohol at the time. That is relevant in two ways. It affects the reliability of the defendant’s recollection. It is notorious that intoxication can inhibit an actual recollection of events leading to the possibility of a subsequent reconstruction of events rather than a recollection when asked to recount what had occurred. Furthermore, it is well known that intoxication may lead to a loss of control and aggression of the kind described by KT. While the defendant cannot be said to have been heavily intoxicated, his level of intoxication weighs in favour of KT’s account being accepted and against the reliability of his account.
The defendant complains on appeal that the Magistrate erred in concluding, without expert evidence, that alcohol can lead to a loss of control and aggression. The defendant does not complain about the Magistrate’s observation about the effect of alcohol on recollection.
It is universal knowledge that alcohol has a tendency to reduce inhibitions and accordingly can lead to a loss of control. It is also universal knowledge that, if a person is otherwise disposed to be aggressive, alcohol’s potential anti-inhibitory effects can lead to aggression. The Magistrate made limited use of these observations. He was entitled to do so in the absence of expert evidence. I reject the sixth ground of appeal.
Evidence of distress
The final ground of appeal is that the Magistrate erred in relying upon K’s distress which was observed by Sergeant Phillips.[10]
[10] Ground 5.
The Magistrate referred to the evidence given by Sergeant Phillips in the context of considering the differences between the accounts given by K and the defendant. He said at paragraph [29]:
Thirdly, KT was visibly distressed when seen by Sergeant Phillips. That evidence is admissible for the purpose of considering the consistency of KT’s behaviour that is relevant to judging her credibility but it is not evidence of the defendant’s guilt: R v Baltensperger (2004) SASC 392 at [55] per Gray J. I regard her distress as consistent with her claim to have been assaulted and relevant to the credibility of that claim.
The defendant complains on appeal that the Magistrate erred in not considering the defence submission that the incident on the defendant’s version would have been distressing to the complainant, and thus reliance on distress as being consistent with the complainant’s claim of an assault was flawed.
In R v Baltensperger,[11] the defendant appealed against a conviction by a jury on the ground, inter alia, that the trial judge’s summing up was inadequate concerning the use of distress in relation to consistency and credit. Gray J (Doyle CJ and Bleby J agreeing) said:
Evidence of the complainant’s distressed state immediately after an alleged offence is admissible for the limited purpose of evidencing consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It may be used as evidence relevant to a complainant’s credibility; however, it cannot be used as evidence of guilt. ...
If there was a reasonable possibility that the complainant’s distress was caused by such matters as regrets about her conduct on the previous night, or concern about having had sexual activity with a complete stranger, or concern about being late for work, then the jury could not use that evidence as tending to confirm the complainant’s credit. The Judge’s summing up in this respect was deficient. [12]
[11] [2004] SASC 392; (2004) 96 SASR 34.
[12] Ibid at [55] and [58].
In the present case, the defendant’s evidence was that K slapped him at least three times and she attempted to strike him again before he placed her in a restraint hold. His evidence was that, at the end of the incident, K called out for their young daughter D, who came into the room at the time he released K. The defendant contends that the distress exhibited by K was consistent with her embarrassment over her own conduct if the defendant’s account were accepted.
It is apparent that the Magistrate did not consider that the distress exhibited by K was in fact consistent with K feeling embarrassed over her conduct. It is not self-evident that a person in K’s position would have exhibited distress as observed by Sergeant Phillips merely from embarrassment about her own conduct in striking the defendant, nor about her daughter D coming into the room at the end of the altercation. In the circumstances, it was not incumbent upon the Magistrate to articulate rejection of this possibility in the otherwise legitimate use which he made of the evidence of the distress exhibited by K. I reject the fifth ground of appeal.
Conclusion
The defendant has not established any of the grounds of appeal. Whether considered separately or in conjunction, they do not vitiate the verdict of the Magistrate. I dismiss the appeal.