Gahan v Kerr
[2018] TASSC 63
•14 December 2018
[2018] TASSC 63
COURT: SUPREME COURT OF TASMANIA
CITATION: Gahan v Kerr [2018] TASSC 63
PARTIES: GAHAN, Pamela
v
KERR, Philip
FILE NO: 3669/2017
DELIVERED ON: 14 December 2018
DELIVERED AT: Launceston
HEARING DATE: 13 June 2018
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on one count of common assault – Finding of guilt reasonably open to the magistrate.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: G Barnes
Respondent: S Nicholson
Solicitors:
Applicant: Paggett & Associates
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 63
Number of paragraphs: 43
Serial No 63/2018
File No 3669/2017
PAMELA GAHAN v PHILIP KERR
REASONS FOR JUDGMENT PEARCE J
14 December 2018
This motion to review challenges the decision of the learned Chief Magistrate, Ms C Geason, made on 12 December 2017, to find the applicant guilty of one count of common assault. For the reasons which follow the motion will be dismissed.
The charges
In November 2016 the applicant was engaged by Angela Triffitt as a nanny to care for her two children, Declan, then aged 7, and Isabella, then aged 6. The engagement commenced on 14 November 2016 and ceased on 28 November 2016. In January 2017 the applicant was charged on complaint with five counts of common assault. Four counts alleged that the applicant had assaulted Isabella; on 18 November 2016 by pinching her, on 21 November by pulling her hair, on 24 November by pushing her in the back, and on 28 November by pushing her in the head. The fifth count charged the applicant with assaulting Declan on 28 November 2016 by "pushing him under the chin and pushing his head back". On 12 December 2017 her Honour dismissed the charges concerning Isabella, but found the count which concerned Declan proved.
The motion to review
There are two grounds of the motion. The first ground is directed to the sufficiency of the evidence to justify her Honour's determination, and asserts that in finding the charge of assaulting Declan proved beyond reasonable doubt, the magistrate "erred in fact and in law". The second ground asserts that the magistrate erred in fact and in law in finding that the evidence given by Declan was "consistent throughout". A motion of this nature is not an appeal by way of rehearing. The applicant must show an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. It is not for the judge conducting the review "to weigh the evidence and reach his or her own conclusions": Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173, per Blow J (as he then was) at [59]; Kent v Gunns Limited[2009] TASSC 30, 18 Tas R 454 per Porter J (as he then was). The question is "whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion which he or she did": Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46].
As was pointed out by Brett J in Shepperd v Cannell [2018] TASSC 12, at [16], in cases which depend upon the magistrate's assessment of the credit of witnesses, and his or her acceptance of their evidence, the Court must pay due regard to the advantage which the magistrate has of observing the witnesses. His Honour referred to the reasons of Crawford J (as he then was) in Wood v Smith [1991] TASSC 12, at [26]-[27]:
"[26] But having come to that conclusion, I then turned to the reasons of the learned magistrate and in particular the passage I have cited from those reasons in which he stated that he had 'absolutely no hesitation' in concluding that he believed the respondent and that she 'was a particularly impressive witness who convinced me that she told the truth as she knew it, and I have no reason to think she was mistaken'. The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour and Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p 119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.
[27] There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."
In Phillips v Arnold, Crawford CJ, continued at [47]:
"In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith unreported 37/1991 ([1991] TASSC 12) I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."
The hearing
The hearing before the learned magistrate commenced on 23 October 2017 and resumed on 9 November 2017. The prosecution called evidence from Declan, who by then was aged 8, from his mother Angela Triffitt and from his grandmother Loueen Triffitt. The evidence of Loueen Triffitt related only to the charges concerning Isabella. The applicant gave evidence and adduced evidence from two character witnesses.
Before reference is made to the substance of the contentious evidence, it is relevant to refer to an aspect of Declan's evidence. On the application of the prosecutor, the magistrate made an order under the Evidence (Children and Special Witnesses) Act 2001, s 8, declaring that Declan was a special witness. Her Honour made the order having been satisfied, after hearing evidence, that by reason of Declan's age, and perhaps the presence of the applicant and the nature of the subject matter of the evidence, he was "likely … to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily": s 8(1)(b)(ii). The evidence which satisfied her Honour of that proposition came from a witness assistance officer employed by the Director of Public Prosecutions who stated that Declan had been informed that he could give evidence from the witness room, that he was "quite comfortable" in that room, but when entering the court room "he seemed a little bit nervous" and informed the witness assistance officer that he did not want to be in the room when he gave evidence. The order was made in terms which permitted Declan to give evidence in the presence of an approved support person by audio visual link from the remote witness room within the court building: s 8(2)(b)(i) and (ii).
The other aspect of the order made by the magistrate was that it included an order that permitted the prosecution to tender evidence of a prior statement made by Declan. Declan was interviewed at his home by a police officer on 30 November 2016. An audio visual recording of the interview was made. By operation of her Honour's order, it could be admitted into evidence. The Evidence (Children and Special Witnesses) Act provides, by s 5, that a court may allow the recording of a prescribed statement to be admitted in a "prescribed proceeding". The prosecution of the applicant for common assault was not a "prescribed proceeding" within the definition of that term in the legislation, and so, before the recording of the prior statement could be admitted, an order was required under s 8(2)(b)(iia) that the recording could be admitted "as if [Declan] was an affected child in respect of whom s 5 applies" as part of the order declaring him to be a special witness.
The charges concerning Isabella
The magistrate was, with respect, correct to dismiss the charges against the applicant concerning Isabella. They were, of course, separate to the charge concerning Declan, but, in my view, reference to them is necessary because they bear upon the evidence of Angela Triffitt, and the manner in which the magistrate dealt with the evidence directly bearing on the charge which is the subject of this motion. It was not contentious that the applicant was employed by a nanny service, as well as having her own business as a nanny. She was, through the nanny service, engaged to help to care for the two children while Ms Triffitt was incapacitated by shoulder surgery. The applicant was asked to come in the morning, organise breakfast and school lunches, brush Isabella's hair into a plait, and drive the children to school. Then, in the afternoon, she was to pick them up and drive them home from school, help unpack, organise their evening meal and clean the kitchen. She was able to leave after dinner and was not required to stay overnight. The applicant commenced the engagement on 14 November 2016. Ms Triffitt underwent the surgery on 16 November 2016 and returned home on 17 November 2016.
The first, second and third counts dealt with events respectively on 18, 21 and 24 November 2016. I will deal with the fourth count, which concerns Isabella, but arises from the same circumstances as the charge concerning Declan on 28 November, later in these reasons. The first count alleged that the applicant assaulted Isabella on 18 November 2016 by pinching her. There was no evidence from any witness that the applicant had pinched Isabella on that day or on any other day. Declan gave evidence in court that the applicant had hurt Isabella "a couple of times", but could give no other detail or state when the events he was referring to had occurred. That evidence was to be considered in light of what he told the police on 30 November 2016. Despite at first saying that the applicant had "done lots of stuff to Isabella", he agreed he had seen and heard nothing and was of that mind because of what his mother had told him. The only evidence of direct observation was his description of Isabella running into the applicant in the laundry on 28 November. The prosecutor started to lead evidence that on 18 November Ms Triffitt observed Isabella to be crying with a red mark on her shoulder. He was properly interrupted by the magistrate because, in the absence of any other evidence of the charged assault, that evidence was of no value.
The second and third counts can conveniently be dealt with together. The second count alleged that the applicant assaulted Isabella on 21 November by pulling her hair and on 24 November by pushing her in the back. The only evidence of count two came from Loueen Triffitt, Isabella's grandmother. Mrs Triffitt was at the house on that day. She gave evidence that she walked into the lounge room in the morning, as the children were getting ready for school, and "I caught the nanny ... grab Isabella by the pony tail and pull her, she pulled her backwards, moved her neck back, and her head backwards". She said she was "shocked" and told her daughter who said that she would "deal with it". She said that Isabella's hair was in a ponytail, and she saw nothing in the applicant's hands. Angela Triffitt gave evidence that Isabella had long hair which needed to be brushed and put into a ponytail or plait. She said it was difficult and time consuming, partly because she commonly had to tell Isabella to behave as her hair was being done, as she tended to pull away. It was part of the applicant's duties to do Isabella's hair.
The only evidence of count three came from Angela Triffitt. She told the magistrate:
"I was standing in the hallway, watching Bella and [the applicant] in the bathroom, and Bella was being yelled at, to brush her teeth, and I seen [the applicant] put both hands in Bell's back and shoved her straight into the vanity unit.
…
I walked straight into the bathroom and told her to get out."
The applicant told the magistrate that a hair pulling incident such as that described by Loueen Triffitt, did not occur. She gave evidence, largely consistent with the evidence of Angela Triffitt, that doing Isabella's hair was difficult and took a long time because she "wouldn't stay still, she didn't want her hair done, and she would yell and scream and grunt and run away, and her mother had to control her and tell her – you know, repeatedly ask her to stop, still, to let me do her hair". The applicant's evidence was that she was not responsible for the children cleaning their teeth, and the pushing incident as described by Angela Triffitt did not happen.
After reviewing all the evidence the magistrate found neither counts 1, 2 or 3 proved. In her reasons her Honour took into account the evidence of apparently friendly and business-like text messages exchanged between the applicant and Angela Triffitt before and after that alleged offending against Isabella. In the messages the applicant expressed a view that the children exhibited poor behaviour from time to time. However Angela Triffitt responded positively and made no mention of either incident. In none of the text messages did Angela Triffitt express any disquiet about what was later alleged to have occurred, even though the events were apparently so serious as to form the basis of allegations of assault of her daughter. One exchange in friendly terms occurred during the evening of the day the push was alleged to have occurred. The magistrate also took into account the evidence of good character given by two witnesses called by the applicant. One was a friend of 30 years who had observed the applicant with her grandchildren over a long period. The other was a well-known economist who engaged the applicant to look after his children for about six years between 2008 and 2014, with his complete confidence and trust and without any suggestion of anything untoward. In her reasons the magistrate said:
"So when you consider the evidence of good character that was led and you consider that text message exchanges that have occurred through the … employment relationship, in my mind, it certainly creates a doubt about the cogency of the evidence that [the applicant] was seen to pull Isabella's hair and that she was seen to push Isabella in the back, which made her fall into the vanity unit.
Now, I need to be satisfied beyond a reasonable doubt of those matters to find Ms Gahan guilty of those and in – when you consider all of the evidence, in light of what I've just said, it seems to me that there would have to be some doubt in relation to the veracity or the cogency of the evidence of what was said to have occurred."
The charges arising from the 28 November incident – counts 4 and 5
Against that background, I turn to consider the charges arising from the events of 28 November 2016. As to these events, the magistrate commented that "the evidence relating to the incident on 28 November, in my view, has far more cogency". The events occurred in the laundry at the house. There were three children present, Declan, Isabella, and Declan's friend Hamish. It was common ground that the children had been outside playing but then came into the laundry where the applicant was working on some washing. There are two counts. One alleged a common assault of Isabella by pushing her in the head. The other alleged a common assault of Declan by "pushing him under the chin and pushing his head back". The prosecution evidence against the applicant comprised the audio visual recording of the prior statements made by Declan to the police, his evidence at the hearing, and evidence of Angela Triffitt of her observations of the children after the alleged events. For the case concerning Declan there was also a medical report.
I will refer first to the evidence of the police interview of Declan. It was conducted two days after the offence was alleged to have been committed against Declan. The whole interview is to be considered, but the directly relevant passages are not lengthy and it is convenient to set them out in full. I have emphasised by italics the sections of particular significance:
"Q… So why am I here to talk to you today?
A'cause Nanny Pamela has been hurting me and Isabella.
…
Q… how have you gotten along with her?
AVery bad. She's been hurting us and telling us that she's got the authority to take um us off mum and take us to a disabled hospital which doesn't exist.
…
QWhy would she say that?
AI don't know, because Isabella was only going with her in the morning.
QYeah?
AAnd um when she left, Isabella was running, playing with me and we accidentally ran into nan, and she, and Isabella accidentally ran into Nanny Pamela and um she pushed Isabella and pushed me back like this.
[Declan gives a demonstration with his hand under his chin pushing his head back]
QPushed your neck back?
AMmm. Into a wall. And then she um went upstairs. She was getting the clothes off the line, off the clothes line. She went upstairs and got the basket and walked out.
…
QYeh, well that time you ran into her, was that just a, you were playing a game?
AMmm.
QYou and Isabella?
AWe were playing a game with Hamish.
…
QWhy do you think Nanny Pamela grabbed you by the throat?
AI don't know. Um…
QAnd pushed your head back?
Ano she, she um put her hand under my chin and pushed me back."
At that point in the interview Declan explained that "she strained all my muscles in the back of my neck", that he had been to the doctor earlier on the day of the interview, and that his neck was still stiff and sore. He was then asked:
"QOh so was there any other sort of behaviour by Nanny Pamela that worried you?
ANo."
The questions then turned to his sister and the following exchange occurred:
"QDid you ever see … Nanny Pamela do anything to, to Bella, Isabella?
AYeah she done lots of stuff to Isabella.
QHave you actually seen that?
ANo, mum's told me.
QUm did you see anything to do with Nanny Pamela and Isabella?
ANo."
When giving evidence in court almost a year later, Declan watched the video recording of the interview and confirmed the truth of what he told the police officer. He was then asked some more questions by the prosecutor:
"QCan you describe again if Nanny Pamela did anything to you at any time? ...
AShe only did it once, I was running with my friend [Hamish], and I accidentally ran into her, and she pushed me under the chin.
QRight, and can you describe how she did that?
AI don't remember how she did it.
QAnd what happened when she pushed you under the chin?
AMy head went back into a wall, and I pulled two muscles in my – in the back of my neck.
QAnd did she say anything when she did that to you?
ANo.
QAnd what did you say when she did it?
AI didn't say anything.
QAnd what did you do after that happened? Did you tell anybody anything?
AI ran upstairs and told mum."
As to Isabella, beyond the passage to which I have already referred in which Declan told the interviewing police officer that "Isabella was running, playing with me and we accidentally ran into nan, and she, and Isabella accidentally ran into Nanny Pamela and, um, she pushed Isabella …", the only other relevant evidence from Declan was the following exchange:
"QDid you see Nanny Pamela do anything else?
ANo.
QAt all? Not to you to anybody else?
AShe hurt Isabella a couple of times.
QDo you remember when that was?
ANo.
Qwould it – did this happen when she was staying with you?
AYes.
QAre you able to describe anything more?
ANo."
When he was cross-examined, Declan agreed that he had spoken to his mother about coming to court to give evidence, but did not agree that he had talked to her about what he might say. When asked "Now, you say that nanny pushed your head back, is that right?" he answered "The chin, which is also part of the head." He confirmed that the event happened in the laundry at his home, that it is a small room and that the applicant, as well as his sister and his friend Hamish, were also present. He and his sister and Hamish were "running around". He remembered that Isabella had "run into nanny's stomach" but he did not remember "where she ran into her". The following exchange then occurred upon which counsel for the applicant places particular emphasis in this motion:
"QNow, Declan, when you say your head got pushed back, I think you said earlier that you couldn't remember how that happened, is that right?
AYes.
QYou're not sure how your head got pushed back?
AYes.
…
QHamish was in the room with you?
AYes
QAnd you were just playing around?
AMm, we were running around.
QRunning around. So maybe Hamish accidentally pushed your head back?
ANo, Hamish didn't.
QHamish didn't. But you're not sure how it happened?
AYeh, I'm not sure how it happened."
Isabella and Hamish did not give evidence. The only other oral evidence relevant to the charge concerning Declan was given by his mother. Angela Triffitt gave evidence that she was upstairs in the house when her son and daughter "came screaming up the stairs" with Hamish behind them. She said that Declan was "holding the back of his neck and Bels was crying. Her arm was bleeding". Ms Triffitt then gave evidence that she cuddled and comforted Declan and asked him what happened. Her evidence was in these terms:
"Declan was – he said that nanny Pamela … had hurt him … Dec was holding the back of his neck, sort of where it goes, you know, into your back, and he was saying that he was hurting. He was upset – crying."
Ms Triffitt explained to the magistrate that because Declan was upset it was difficult to get him to calm down, and she had a lot of questions, and he kept saying "she's hurt my neck". When pressed by the prosecutor about whether Declan had said anything else her evidence continued:
"… he said that nanny Pamela had hurt him, and I asked how, and he said that she had pushed his chin up and, and I said well how did that happen, and he said, well she pushed by chin up and my neck's gone back, and it's hurt."
After that, she said the applicant came up the stairs, dropped the laundry basket in the doorway, told her "how horrible my children were, and that I could go and get somebody else to look after them, and she walked out".
When cross-examined, Ms Triffitt agreed that in the statement she had made to the police after the incident, she had not mentioned that her daughter's arm was "bleeding", but she had told the interviewing police officer that on that day the three kids were "hyper", by which she meant that they were running around playing chasings after a day at school, that the kids were "very upset saying that nanny Pamela had hit them", that Declan told her that "nanny Pamela had pushed him", that her daughter had told her that she had run into nanny Pamela accidentally before nanny Pamela had "hurt her".
The prosecution also tendered a report from a general practitioner, Dr Derek Christian. Dr Christian saw Declan during the morning of 30 November 2016. Declan complained of "neck soreness", in his lower neck and upper back. Dr Christian noted a "potential neck sprain" consistent with over extension of the neck and diagnosed a "mild neck sprain injury". He said that it was difficult to answer whether the injury was consistent with the claimed assault although it was "potentially consistent" with Declan's description of it as "pushing upwards against his chin, hence hyperextending his neck region". No treatment or pain relief was required. Dr Christian did not give evidence at the hearing.
Dismissal of the charge concerning Isabella
The only evidence in support of the allegation that the applicant assaulted Isabella on 28 November 2018 by pushing her "in the head" was Declan's account and Angela Triffitt's evidence of her daughter's distress. When giving evidence before the magistrate the applicant agreed that while she was in the laundry attending to the washing on 28 November 2018 there was physical contact between her and Isabella. She said that both children had just arrived home from school and were calling her names. The applicant told the magistrate that "Bella, the little girl, ran into me and winded me." She said that Isabella "ran into her stomach", causing her to "buckle over … because it took my breath out …". The applicant said that "Isabella looked up at me, and she was grinning, and she went to do it again. She put her head down and started to come at me again … I put my hand out, and was holding my stomach with my other hand." At the time she could not see where Declan was. She said that, immediately after this incident, she took the laundry basket upstairs, spoke to Angela Triffitt, told her what had happened and that she would "have to find someone else and left". She told the magistrate that as she was leaving the children said something like "we got her the sack, we got her the sack".
There was evidence that, on the following day, the applicant prepared and submitted a written report to her employer. In it she stated:
"… both children ran towards me calling me names. As they did Isabella put her head low and ran very fast into my stomach. It knocked the wind out of me and I buckled over, she stood up and tried again, I put my arm out and stopped her by holding the top of her head. They ran off upstairs giggling …".
During cross-examination it was put to the applicant that she had "pushed Isabella in the head", and the applicant answered "No, I did not."
The magistrate was not satisfied of guilt of the charge of assaulting Isabella beyond reasonable doubt. Her reasons focussed principally on the notion of self-defence. The magistrate summarised the applicant's evidence as follows:
"[The children] were running around, and she said Isabella ran into her, and it winded her, it took her breath away, and she buckled over. She said Isabell, after doing this, was looking up at her, Isabell was grinning at her, and went to do it again, so she put her hand out, to use her hand to push Isabella away, and the had the other hand on her stomach".
In her reasons the magistrate concluded that she was not satisfied that the prosecution had excluded, to her satisfaction beyond reasonable doubt, that the force she admitted applying to Isabella's head, was not in self-defence. Her Honour said that she was "not satisfied beyond reasonable doubt that [the applicant] wasn't acting in self-defence when she put her hand up to stop Isabella running into her again".
The magistrate's reasons
The final charge concerned the allegation that the applicant assaulted Declan on 28 November 2016 by "pushing him under the chin and pushing his head back". When giving evidence before the magistrate the applicant denied that she had "any physical contact" with Declan on that day.
After expressing doubt about the cogency of the evidence supporting counts 2 and 3 on the complaint, the magistrate turned to consider the evidence of the remaining counts, the assault of Isabella and the assault of Declan on 28 November 2016. Her Honour reasoned in the following terms, which, because of the significance of the passage, should be set out in full:
"However, the evidence relating to the incident on the 28th November, in my view, has far more cogency. That evidence has actually Declan saying that he was assaulted, and so those other two matters relate to reports by the Triffitts, by mother and daughter. Declan is – says that he was assaulted by Ms Gahan, he says he was pushed under the chin which caused his head and neck to go back. Now Declan has maintained that very consistently. He said he was upset and ran to tell his mother. There was evidence from Ms Triffitt that Declan came to him (sic) and was upset and complaining that nanny had hurt his neck and had pushed his chin up, and he's taken to the doctor, he's interviewed by the police, he maintains that position, the doctor's evidence is very consistent with Declan's account of what happened, and it's obvious from that file note that Declan is able to verbalise and articulate what he says had occurred. And Ms Gahan denies that there was any contact with Declan on that 28th November on the day that she left – and that's inconsistent with all of that evidence. Despite Declan's quite young age, he gave quite cogent evidence, in my view, which is supported by the distressed state that his mother says that she was in – he was in, sorry, and also in relation to – it's supported by the medical evidence. He is upset and complaining about his neck being hurt.
It seems to me, considering all of the evidence, and that includes the text messages, that Ms Gahan was finding the children difficult to manage and the day, on that 28th November when Isabella ran into her, it was – that went – it was the final straw, if you like, she has pushed Isabella away so that Isabella couldn't do that again and it also seems – which seems to me, reasonable in the circumstances, that she put her hand up to push Isabella so that she couldn't do it again, it's not suggested that she pushed Isabella with any force just that she's put her hand to prevent Isabella from running into her again, and in the course of doing that it's – I accept Declan's evidence that she's then pushed Declan as well under the chin, pushing his head back, which has hurt his neck and caused him to become upset and go to his mother.
So, in relation to all of the evidence, I take the view that I couldn't be satisfied beyond a reasonable doubt of charge 2, 3, and 4. Charge 2 being the hair pulling incident, charge 3 being pushing Isabella into the back, and 4 – I'm not satisfied beyond a reasonable doubt that Ms Gahan wasn't acting in self-defence when she put her hand up to stop Isabella running into her again. But in relation to charge 5, as I say, I take a different view, Declan's evidence has more cogency, there's other evidence that, for the reasons that I've expressed, support what he is saying.
The incident report that was prepared by Ms Gahan, in my view, is obviously her version of it, it's consistent with the evidence she gave, but I find Declan's evidence, his actual evidence, his evidence in court, his upset state, and the doctor's report, compelling and convincing evidence and it's – and in a different category to the other evidence that related to – the evidence that related to the other incidents. When Isabella ran into Ms Gahan and winded her it was too much for Ms Gahan and she has reacted, she's put her hand up to stop Isabella and she's also pushed Declan's chin up and hurt his neck. So, I am satisfied of charge 5 beyond reasonable doubt and that charge is proved."
Ground 2 – The "consistency" of Declan's account
It is convenient to deal with this ground first. It should not succeed. It asserts that a comment made by the learned magistrate that Declan's evidence was "consistent throughout" constituted an error of fact. The terms of the ground of appeal do not accurately reflect what the learned magistrate said. Her Honour said:
"Declan is – says that he was assaulted by Ms Gahan, he says he was pushed under the chin which caused his head and neck to go back. Now Declan has maintained that very consistently."
Counsel for the applicant pointed to the passage of Declan's evidence-in-chief when he commented at one point, highlighted earlier in these reasons, that he "could not remember" how he had been pushed under the chin and, when cross-examined, that he agreed that he "did not know how [his] head got pushed back". Those comments are to be viewed in context. Declan had given a consistent account of what happened to him to the police and in his evidence. His account was consistent with his mother's account of the complaint made to her, and to the description of the mechanism of the push which Declan gave to Dr Christian. His answer to the effect that he could not say "how" he was pushed under the chin, as opposed to his evidence that he was in fact pushed under the chin by the applicant using her hand, does not mean that the learned magistrate's comment was an error. In any event, her Honour's comment was not an error of fact. It was a statement of the conclusion she reached about the quality of Declan's evidence, having weighed the evidence for herself.
This ground is not made out.
Ground 2 – Asserted error in finding the complaint proved
As was explained earlier in these reasons, this ground cannot succeed unless the applicant establishes that it was not open to the magistrate, as a reasonable person, to have come to the conclusion she did.
By the Acts Interpretation Act 1931, s 36(1), the principles of criminal responsibility applicable to the crime of assault in the Criminal Code are applicable to an offence of common assault under the Police Offences Act 1935, s 35(1): Woolley v Fitzgerald [1969] Tas SR 65. Thus, it was necessary for the prosecution to establish to the magistrate's satisfaction beyond reasonable doubt that the applicant had, by a voluntary and intentional act, applied force to Declan, intending to apply such force or with subjective recklessness: Tasmania v Oates [2017] TASSC 39. It was also necessary that the prosecution prove to the same standard that the application of force was unlawful, that is, not justified or excused.
The prosecution depended heavily on the account given by Declan, when he was interviewed by the police and when giving evidence. Subject to the criticism made by the applicant which is the subject of the second ground of the motion, Declan's version was substantially internally consistent, corroborated by his complaint to his mother, by the explanation he gave to Dr Christian on 30 November 2016, and by the presence of physical symptoms consistent with his explanation. By the Code, s 46, the applicant was justified in using, in the defence of herself, such force as, in the circumstances as she believed them to be, it is reasonable to use. However, in contrast to the charge concerning Isabella, the applicant's case was not that she applied force to Declan which was justified, but that she did not apply force to Declan at all. The issue of self-defence did not arise, at least on the defence case, and no other ground of excuse or justification arose. The applicant did not contend to the magistrate that her acts were not voluntary and intentional. The real issue was whether the magistrate was satisfied beyond reasonable doubt that the applicant intentionally applied force to Declan with her hand.
The learned magistrate could not reach a finding of guilt unless satisfied that Declan was, at least in the material respects, an honest and accurate witness, and to reject as a reasonable possibility the sworn denials made by the applicant. That is, assuming the magistrate properly directed herself as to the law, it follows that not only was she satisfied of the truth and accuracy of Declan's account, but that the applicant's sworn denial and the evidence of her good character had not caused her Honour to entertain a reasonable doubt. Whether the magistrate could, as a reasonable person, properly reach those conclusions is a matter which has caused me some hesitation. In her reasons, the magistrate, after finding the charge concerning Isabella to have not been proved, stated that Declan's evidence "has more cogency". Of course the onus and standard of proof the magistrate was bound to apply meant that something more than that was required. A finding that the evidence of Declan had "more cogency" than the evidence concerning Isabella was not sufficient to justify a finding of guilt. Counsel for the applicant correctly contended that:
· there were good reasons to treat the evidence of Angela Triffitt with care. Her evidence had not persuaded the magistrate in other respects;
· although the medical evidence described neck soreness which was consistent with his complaint, there were many possible reasons that an active boy of that age may have such symptoms, including that, by his own account, he had accidentally run into the applicant;
· the learned magistrate did not explain in any detail why she rejected the evidence of the applicant.
It was also clear from Declan's evidence about Isabella that his mother had spoken to him about the relevant events. In his evidence he asserted as fact descriptions of events he had not observed and which he agreed his mother had told him about. However, it is not for this Court to consider and weigh the evidence for itself. The magistrate had the advantage of hearing and observing the witnesses, including the applicant. In her reasons she made clear that she found the evidence of Declan, corroborated by his mother's evidence of his complaint and demeanour after the incident, and combined with the unchallenged medical evidence of his complaint and symptoms, "compelling and convincing". Although her Honour did not expressly state why she rejected the evidence of the applicant, it is clear that she found the prosecution evidence sufficiently "compelling and convincing" to persuade her of guilt beyond reasonable doubt, and no ground of appeal challenges the sufficiency of her Honour's reasons.
I am not persuaded that the magistrate's conclusion that guilt was established is one which, as a reasonable person, was not open to her. This ground is not made out.
Result and order
Neither ground of appeal is made out. The motion to review is dismissed.
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