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…

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 Fenton v Police

Details

AGLC: Fenton v Police [2014] SASC 167
Case: [2014] SASC 167
Decision Date: 7 November 2014

CaseChat Overview and Summary

In the case of Fenton v Police, the defendant, a police officer, appealed against his conviction and sentence for assaulting the complainant, K. The appeal was heard in the Supreme Court of South Australia, and the court dismissed the appeal. The central issue in the appeal was whether the Magistrate erred in various aspects of his assessment of the evidence and the application of the law. The defendant's grounds of appeal were primarily concerned with the Magistrate's evaluation of K's credibility, the assessment of the consistency of bruising with the respective accounts by K and the defendant, the effect of alcohol on aggression, and the Magistrate's reliance on K's observed distress.

The court examined each ground of appeal in turn, assessing whether the Magistrate's decisions were reasonable and supported by the evidence. Regarding the Magistrate's assessment of K's credibility, the court found that it was open to the Magistrate to conclude that K was not being dishonest in her varying accounts and that the Magistrate's evaluation of her credibility was well within his authority. With respect to the bruising on K's back, the court held that the Magistrate's observation that the bruising was consistent with K's account and inconsistent with the defendant's account was a permissible use of common sense and experience, and did not require expert evidence. The court also found that the Magistrate's limited use of common knowledge about the effects of alcohol on aggression did not constitute error. Finally, the court concluded that the Magistrate's consideration of K's observed distress was legitimate and did not necessitate a rejection of the possibility that K's distress could have arisen from embarrassment rather than from the assault.

In dismissing the appeal, the Supreme Court upheld the Magistrate's findings and concluded that none of the grounds of appeal were established. The court determined that the grounds, whether considered individually or together, did not undermine the verdict of the Magistrate. Consequently, the appeal was dismissed, and the conviction and sentence of the defendant remained in place. The court's final orders affirmed the Magistrate's assessment of K's credibility, the consistency of the bruising with K's account, the permissible use of common knowledge about alcohol's effects, and the legitimate use of the evidence of K's distress.

Orders

Orders of the court

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]).

Background

Background to the litigation

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; and3.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.

Evidence

Evidence Before The Court

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] and2.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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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