Gibbons v Perkins
[2021] ACTSC 254
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gibbons v Perkins |
Citation: | [2021] ACTSC 254 |
Hearing Date: | 28 September 2021 |
DecisionDate: | 28 September 2021 |
Before: | Mossop J |
Decision: | See [63] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction – offences of common assault, damage property and insulting behaviour – whether finding of guilt was unreasonable or could not be supported by the evidence –open to magistrate to apply own common sense – reasons of magistrate were sufficient – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 116(3), 392 Magistrates Court Act 1930 (ACT), s 218 Supreme Court Act 1933 (ACT), s 37O(2)(a)(i) |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Finau v The Queen [2021] ACTCA 17 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
Parties: | Deon Gibbons ( Appellant) Matthew Perkins ( Respondent) |
Representation: | Counsel J Moffett ( Appellant) K McCann ( Respondent) |
| Solicitors Marjason & Marjason Solicitors ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 17 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Campbell Date of Decision: 20 April 2021 Case Title: Perkins v Gibbons Court File Numbers: CC2020/3900; CC2020/5906; CC2020/12156 |
MOSSOP J:
Introduction
This is an appeal from a decision of a special magistrate (the magistrate) finding three charges proved against the appellant. Those charges were:
(a)common assault, contrary to s 26 of the Crimes Act1900 (ACT) (CC2020/3900);
(b)behaving in an insulting manner in a public place, contrary to s 392 of the Crimes Act (CC2020/5906); and
(c)minor property damage, contrary to s 116(3) of the Crimes Act (CC2020/12156).
The prosecution case
The prosecution case was that on 13 December 2019, the complainant was driving her red Suzuki Swift westward on Drake-Brockman Drive in Higgins in the ACT when she noticed a white Suzuki Swift driving very close behind her. She believed the vehicle to be tailgating her.
The white vehicle passed her as she was waiting at the right turning lane at the intersection of Macnaughton Street and the complainant put up a rude finger at the driver of the vehicle. At that point, the driver of that vehicle also turned right, pulled over and got out of his vehicle on Macnaughton Street.
The driver, subsequently identified as the appellant, approached the complainant’s vehicle, reached through the open driver’s window and placed his right hand around her face, causing her pain and leaving blemishes on the left-hand side of her face. The appellant then pushed the complainant’s head back into the headrest aggressively. That was alleged to constitute a common assault (CC2020/3900). This conduct knocked the complainant’s prescription sunglasses off. The appellant then grabbed the sunglasses and threw them on the road, breaking them. That was alleged to constitute the damage property charge (CC2020/12156). The defendant then said, “Not so tough now, are you, you fucking slut?” and returned to his vehicle. That conduct was alleged to constitute insulting behaviour in a public place (CC2020/5906).
Grounds of appeal
The grounds of appeal are:
(a)the findings of guilt by the learned magistrate in relation to the three sequences are unsafe and unsatisfactory;
(b)the learned magistrate erred as a matter of law in wholly rejecting the appellant’s evidence as it was not reasonably open to her in all the circumstances of the case;
(c)the learned magistrate erred in failing to provide adequate reasons as to why she wholly rejected the appellant’s evidence; and
(d)the learned magistrate erred in her finding of guilt based upon her “common sense” that the appellant’s version was not plausible.
The evidence
Four witnesses gave evidence at the hearing:
(a)the complainant;
(b)Acting Sergeant Matthew Perkins;
(c)Constable Jamie Cell; and
(d)the appellant.
The complainant
The complainant was a female public servant. She was driving home from work on her regular commute. She turned right into Drake-Brockman Drive heading west. After a minute or two she noticed a white Suzuki Swift driving behind her. It was driving quite close to her. She had the sense that it was tailgating her and was trying to get her to speed up. She was doing 60 km/h in a 60 km/h zone. She did not intend to speed up.
The car swerved behind her in what she understood to be “a pretty clear attempt to intimidate me into speeding up”. She feared that the car would either deliberately or accidentally ram into the back of her own car. She indicated to turn right into Macnaughton Street in Holt. There was a right turn lane which she turned into. The white car went past her. She impolitely stuck her middle finger up as the white car drove past. The driver put on his brakes and turned right in front of her. He turned quickly into Macnaughton Street, pulled over and jumped out of his car.
He stood in the middle of the road. She braked. She could not go in the opposite direction because there was a traffic island. She could not reverse as it would be too dangerous. She honked her horn “for a good period of time” hoping that he would move or that it would attract attention. She locked the doors, but her window was open about 15 cm. He stuck his arm into her car and grabbed her face forcibly “like a vice”. She said “It was like he was trying to hurt me as much as he could.” She demonstrated an open hand up towards her face.
The complainant said she ended up with a bruise on her jawline the next day. She had pain in her cheekbones. The appellant “slammed” her head against the headrest. He pulled her glasses off and in doing so he said, “Not so tough now, are you, you fucking slut.” He threw her glasses down onto the road. He then went back to his car and continued along Macnaughton Street. She had to pause because she needed to get another pair of prescription glasses out of her bag. She grabbed her phone. She attempted to find the video function on her phone but was so shaken and scared that she was not able to find the function. She only found the photo button. The appellant turned left onto Starke Street and so did she because that was her usual route home. She saw that he had stopped again by the side of the road and was standing in the middle of the lane. At that point she took photos of him and his numberplate which she subsequently gave to police. She described him as standing in the road “with a kind of come at me gesture”. She was not sure what he wanted but it was as though he wanted her to get out of her car. He stood there for about 10 seconds then got back into his car and continued along Starke Street. She went back to Drake-Brockman Drive and stopped to pick up her glasses where the appellant had broken them and continued to Belconnen Police Station where she spoke with an officer. She did not make a report straight away. She wanted to weigh up whether it was something she wanted to go through with. She made a report a couple of days later. When she was at the police station on the day of the incident, she called her partner to come with his car and escort her home.
The complainant described that when the appellant approached the car, he seemed agitated. She was confused about what he was trying to do until he actually approached her car and assaulted her.
The complainant was shown five photographs which became exhibit 1. The first was a photograph of a broken pair of sunglasses. Photograph 2 was a photograph of the appellant’s car about to turn left into Starke Street. Photograph 3 was a photograph of the appellant exiting his vehicle on Starke Street prior to the second confrontation. The photograph is sufficient to make out his numberplate.
Photograph 4 was a photograph of the appellant with his “come at me” gesture. The complainant still had the doors locked when she took this photograph. The final photograph in the bundle was a photograph said to show a bruise on her jawline. Because the photograph did not clearly show a bruise, the complainant was asked to mark where she said the bruise was located on the photograph and that marked photograph became exhibit 2.
The complainant subsequently had her glasses replaced and a receipt for those glasses was tendered and became exhibit 3.
In cross-examination it was suggested to the complainant that she was driving at 45 km/h. She said she was driving at 60 km/h. She said she was not “dilly-dallying”. She said she found it intimidating that the appellant was driving so close to her vehicle. She said that she stuck her rude finger up at him and then he braked and turned right. She agreed that hers was an impolite gesture.
The complainant agreed that she was travelling along Drake-Brockman Drive and then turned right into Macnaughton Street and then into Starke Street. It was suggested to her that she was following the appellant through the suburb. She said she was only driving behind him up to Beaurepaire Crescent and then she got away from him as quickly as she could.
It was suggested to the complainant that after she made the gesture to the appellant, she continued to follow his vehicle very closely, taking photographs and video of him. She denied this. She said that she took a photograph of him when he was parked on Starke Street between Macnaughton and Beaurepaire Crescent. She denied following him and said that she was on her normal commute home. She agreed that her car was behind his but said she was not following him but was driving home. She agreed that on Starke Street she took photographs of him saying, “I took photographs of him and his car and his car registration for identification purposes, because he’d assaulted me.” It was suggested to her that photograph 4 was a zoomed in version of a picture taken from about 20 m away. She denied that. It was suggested to her that the appellant’s pose with his two fingers up was not intimidating but the complainant said it was intimidating to her. It was pointed out that the appellant was smiling in the photo and she said “he’s smiling sarcastically because he’s just assaulted me”. She said he was about 4 m away in the photograph. It was suggested to her that he was coming to ask her why she had followed him for a considerable distance and that this was the only time that the appellant stopped.
It was put to the complainant that her version of events involving the appellant stopping, grabbing her around the face, smashing her glasses and saying particular words to her was “a complete lie”. The complainant said “It’s not a lie, it’s the truth, and it’s a series of such - such a bizarre series of events that I don’t have the imagination to make up something like that.”
It was suggested that she did not provide a statement immediately because she wanted to go and work out her story before providing a statement. The complainant said “That’s not true, I fear for my safety, that’s why I hesitated.” It was suggested to her that she went away and thought about perfecting her story. She said “That’s not true, and I’d never seen this man before in my life. I had no motivation to do that.”
In relation to the photograph of her broken glasses, she was not sure whether she took the photograph or the police officer did. She agreed that it was her recollection that when she made the complaint to police, she told them that the appellant grabbed her glasses and threw them to the ground.
In re-examination the complainant described her normal route home, which was consistent with the route described on that day.
The complainant was asked about her motivation for making the complaint that she did. She said that she took into consideration whether to make a report because she did not know what the consequences for her would be. She was concerned that the appellant lived near her. She was concerned that she might see him on the road again and that this might happen again. She said that she had 16 months of waiting and preparing to come to court and that it was not a stress-free process. She said there was no motivation for her to do it for any reason including financial reasons as she has a secure, well-paid job.
Acting Sergeant Matthew Perkins
As at 13 December 2019 Acting Sergeant Matthew Perkins was a first constable attached to the Belconnen Police Station. On 15 December 2019 the complainant presented to the front office at about 10am and made an allegation of a road rage incident. He subsequently took a statement from her. At about 1pm she provided some photographs to him. He did some checks and identified a possible address that the vehicle may be registered to. He attended that address and observed the vehicle parked at the front. It was a white Suzuki Swift with New South Wales (NSW) numberplates. He knocked on the door. The appellant answered the door. The appellant provided his driver’s licence. He was cautioned. He was asked whether he wished to speak to police about the incident. He offered to participate in a digitally recorded interview which was arranged for January 2020. He subsequently failed to attend to participate in a recorded interview with police. However on 15 December 2019 he denied any assault. The officer denied having taken the photograph of the broken glasses.
A certificate from the Road Transport Authority of NSW became exhibit 5.
In cross-examination Acting Sergeant Perkins said that he did not seek to take biological material from the glasses that the complainant said had been grabbed and smashed by the appellant.
He confirmed that the appellant, after being cautioned, had denied the allegation.
Constable Jamie Cell
As at 13 December 2019 Constable Cell was based at the Belconnen Police Station. On 15 December 2019 he observed Acting Sergeant Perkins speaking with a female in the front office. He attended the appellant’s address with Acting Sergeant Perkins. He observed Acting Sergeant Perkins speaking to a man at that location who identified himself as the appellant and provided identification. The appellant was cautioned. The appellant stated that there was an incident that occurred and he had approached the female’s car but that he did not assault her. The male stated that he would like to participate in an interview at a later date.
In cross-examination it was suggested to Constable Cell that the complainant told him that the appellant had grabbed her glasses with his right hand and thrown them into the ground. He denied that, saying that he never spoke to the complainant. He confirmed that the Acting Sergeant had cautioned the appellant. He confirmed that the allegation was put that the appellant grabbed the complainant’s face, grabbed her glasses off, threw them to the ground and said the specific words to her and that the appellant denied that.
Deon James Gibbons
The appellant gave evidence that on 13 December 2019 he was driving his Suzuki Swift along Drake-Brockman Drive. He was going from Drake-Brockman Drive onto Macnaughton Street and then onto Starke Street where there is a McDonald’s at Kippax.
The appellant had never seen the complainant before. She was driving a Suzuki Swift as well. He marked the map which was exhibit 4 to show where he first saw the complainant. He said the speed limit was 60 km/h. He said that he was going at 60 km/h, but the complainant was going at 45 km/h. He denied executing any manoeuvres to overtake the complainant. He said the only time he overtook her was when he was turning right into Macnaughton Street. He said that when he overtook her “she flipped me the middle finger”. He then turned into Macnaughton Street he continued to travel along straight for a period. He said the complainant followed him and was about 20 m behind him. She continued to follow him to the intersection of Macnaughton Street and Starke Street. He turned left onto Starke Street. He denied having stopped on any occasion prior to the occasion shown in photograph 3 which he said was on Starke Street. He agreed with the proposition that he was “posing” in photograph 4. He said he was doing that “Because I was getting a lot of photos taken, so I wanted to give the photo pose.” He said that from when he had been followed down Macnaughton Street the complainant was taking videos or photos the whole time. He made observations in his rear vision mirror that the complainant had her phone up. That was consistent with his observation at the time when photograph 4 was taken. He said he got out of his car at this time “Because I pulled over and wanted to know why she was following me.” He said he never asked her because he didn’t get close enough. He said he was “a good 20 metres” from the complainant in her vehicle.
The appellant denied having reached into the complainant’s vehicle at any other stage. He denied grabbing the complainant’s glasses. He denied saying the particular words alleged to her.
In cross-examination the appellant denied that when he first noticed the complainant’s vehicle, he noticed anything about her driving other than her speed. He denied being in a rush. He denied going faster than 60 km/h. He agreed that he drove at a close distance behind the vehicle on Drake-Brockman Drive. When asked whether he considered that was an appropriate distance he said “Probably not, no.” He did consider it to be a safe distance. He said he was not upset or offended by her rude finger. He denied being angry. He said he had a smirk on his face and he was stunned. He thought that kind of behaviour was strange. He said at the turn right into Macnaughton Street she was going straight and then she turned right in behind him. He agreed that he approached the complainant’s car and yelled at her. He said that the allegation that he touched her on the face is a lie. He denied that he was frustrated by her manner of driving. He denied that he was frustrated by her “flipping the bird” at him. He denied that he was frustrated that she was following him. He agreed that he considered himself to be a fit man. He agreed that he often exercises. He agreed that given his size and fitness it would be easy for him to reach through the complainant’s window and leave a bruise on her face with one hand. He agreed that it would be easy for him to push her head back against a headrest. It was suggested to him that he did not ask her why she was following him because he was busy grabbing her face, throwing sunglasses and calling her a “fucking slut”. He denied that.
In re-examination, the appellant described Drake-Brockman Drive as having one lane each way. He said that the road went from two to three lanes at Macnaughton Street. He said that when turning right into Macnaughton Street, he was in lane two and the complainant was in lane one (lane three being the lane going in the opposite direction). The appellant said that when he overtook the complainant, he moved from lane one into lane two and continued driving in lane two until the intersection, where he made a right‑hand turn.
Submissions to the magistrate
Counsel for the appellant and the respondent each made brief submissions to the magistrate. The essential point made by counsel for the appellant was that the magistrate should not reject the appellant’s evidence beyond reasonable doubt and he was therefore entitled to an acquittal. Counsel for the appellant pointed to the absence of DNA evidence or any other corroboration of the complainant’s evidence in relation to her interactions with the appellant.
The magistrate’s decision
The magistrate reserved for a short period of time and then gave her reasons orally. She gave herself appropriate general directions and outlined the evidence given by each of the witnesses. She described the complainant as “an extremely impressive witness” who gave a clear account of what happened. She described her account as very plausible. She said that it was corroborated to some extent by the photograph of the bruise on the complainant’s jawline and broken glasses as well as her complaints to the police two days later. In relation to the appellant’s account, she said there was nothing in his evidence to suggest that he was not telling the truth but she did find that his account was not a plausible account. She said that although drivers will “regularly flip the bird at people” it was quite unusual for someone to get out of the car to enquire as to why they were doing that. She referred to the appellant’s evidence that he was posing as he was walking towards the car because the complainant had been filming while driving along. However, despite his claim that was why he stopped and got out of the car he did not approach the car and speak to her in any way. She did not find the appellant’s account plausible and rejected his evidence. Given that the prosecution case relied essentially on one single witness the magistrate directed herself that she must examine the complainant’s evidence carefully. However, she found the complainant to be a “compelling witness” and found her to be a credible and reliable witness. For those reasons, she found each of the elements of the charges proved and found the appellant guilty on each charge.
Grounds (a) and (b)
Although expressed by reference to the language of “unsafe and unsatisfactory”, the essential point here is that the finding of guilt was unreasonable or could not be supported by the evidence. Although s 218 of the Magistrate Courts Act 1930 (ACT) does not specify the basis upon which the Supreme Court may allow an appeal against conviction from the Magistrates Court, the ground of appeal is intended to pick up the ground that would be asserted pursuant to statutory appeal provisions which make reference to a finding of guilt being “unreasonable, or cannot be supported, having regard to the evidence”: cf Supreme Court Act1933 (ACT) s 37O(2)(a)(i).
The authorities quoted in Finau v The Queen [2021] ACTCA 17 at [37]-[38] summarise the correct approach:
The function of this Court in determining this ground is that stated by the High Court in in [sic] Pell v The Queen [2020] HCA 12; 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(Footnote omitted).
To similar effect, in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219, Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ said at [81]:
Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. …
(Footnotes omitted).
This is a case in which there was a direct challenge to the truthfulness of the complainant. There was evidence given by the appellant in an apparently credible way. There was limited corroboration of the complainant’s evidence. The magistrate properly directed herself that in a case such as the present she needed to examine the evidence of the complainant carefully and made clear in her reasons her understanding that at all times the burden lay upon the prosecution to prove the case beyond reasonable doubt.
Given the diametrically opposed versions of events given by complainant and appellant, the issue to be determined was whether it was open to the magistrate to reject beyond reasonable doubt the evidence that had been given on oath by the appellant.
The submission of the appellant was reliant upon the passage in the magistrate’s reasons: “He answered all his questions and there was nothing in his evidence to suggest that he was not telling the truth”. The submission of the appellant was that this was a conclusion that his version of events was truthful and as a consequence it was not open to the magistrate to reject his version of events beyond reasonable doubt.
This submission involves giving a significance to the quoted portion of the magistrate’s reasons which it does not warrant. Read in context, the magistrate was recording a conclusion about the manner in which the appellant gave evidence. It is clear that she was on the one hand recording that he gave evidence in a plausible manner, but on the other that what he said occurred was not plausible. In my view, that was a conclusion which was reasonably open.
In my view, an examination of the record does not disclose inconsistencies, discrepancies or other inadequacies in the complainant’s evidence that indicate that the magistrate acting rationally ought to have entertained a reasonable doubt as to that evidence. Further, the evidence on oath given by the appellant was not such that the magistrate ought, despite the apparent reliability of the complainant’s evidence, to have nonetheless entertained a reasonable doubt about the appellant’s guilt.
So far as the complainant’s evidence was concerned:
(a)It presented a coherent narrative of events consistent with a “road rage” response to her rude gesture.
(b)It was corroborated to some extent by her broken glasses. There was never any suggestion that her glasses might have been broken in some way other than in the incident alleged. There is no reason why she would have broken her glasses and incurred the expense of replacing them had it not been that the incident occurred.
(c)Her version was corroborated by the bruise illustrated by photograph 5. The bruise was only just visible on the photograph that was in evidence. The location of the bruise on the photograph was identified by the complainant. There was no challenge to her evidence concerning the existence of the bruise, notwithstanding the general propositions that her version of events involved lies.
(d)Her version of events was corroborated substantially by the photographs that she took during the course of the incident. The taking of the photographs was consistent with what might be expected from a person who had been assaulted in the manner that she asserted.
(e)Her evidence was supported by her conduct in attending the police station and subsequently making a formal complaint to police.
(f)The sequence of events involved a coherent explanation of the overall interaction. Initial tailgating by the appellant. The rude hand gesture by the complainant. The assault in anger by the appellant. The complainant taking steps to record details of the appellant’s car on her phone. The appellant seeking to confront and deter the complainant from following his vehicle and asserting, with bravado, that he was not concerned about her photographing him by striking the pose and smiling at her in front of the car before departing.
(g)Her version of events provided a coherent explanation as to:
(i)how her glasses got broken;
(ii)why the appellant may have stopped a second time, confronted her but not spoken to her; and
(iii)why there may have been a delay in making her complaint to the police.
The version of events given by the appellant was one given on oath. It was consistent with the denial of any assault that he had given to Acting Sergeant Matthew Perkins and Constable Jamie Cell when they visited his house on 15 December 2019, although the evidence of what he said at that stage is a denial of an assault rather than the more detailed version of events that he gave in court.
There were a number of features of the version of events that were unusual or implausible:
(a)Having turned right into Macnaughton Street and being apparently unconcerned by the rude gesture made by the complainant, the appellant nevertheless went out of his way to observe that she was following him. There was no explanation as to why, if nothing of any gravity had occurred, he might be concerned about being followed down these two substantial suburban streets.
(b)Similarly, the appellant’s evidence was that he continued to observe through his rear-view mirror that the complainant was holding up a camera and taking photographs of him. It is not apparent that this would be easy to do in relation to a car following at the distance illustrated in photograph 2 or the distance that he gave evidence of, namely “a good 20 metres”. If it was possible, it would also be unusual if he was as unconcerned as he said in evidence about her conduct.
(c)Having stopped on Starke Street the appellant said he approached the vehicle and performed the pose shown in photograph 4. Yet he did not speak to the complainant. If he was concerned enough at being followed by a stranger with whom he had no previous interaction, it would be very unusual to display the smiling posed that he did or fail to enquire as to why he was being followed before getting into his car and driving away.
It is important to note that in this case the choice was a stark binary one. One of the versions of events must have been false as to the distinct physical events that occurred. In my view, the evidence in the case was such that it was reasonably open to the magistrate to reach the conclusion that she did, namely to reject beyond reasonable doubt the appellant’s version of events to the extent that it was inconsistent with that of the complainant. I am not satisfied that the magistrate, acting rationally, ought to have entertained a reasonable doubt as to proof of the appellant’s guilt.
Grounds (a) and (b) are not made out
Ground (d)
This ground of appeal appears to arise from the reference by the magistrate to using her “own common sense” in determining whether the prosecution case had been established. Having referred to her impressions of the complainant and the appellant, she said:
I apply my own common sense. Drivers will regularly flip the bird at people, honk their horn and the like, but it is quite unusual that someone would then get out of the car to inquire as to why they were doing it.
He says he was posing as he’s walking towards the car because she’d been filming him driving along, however, despite his claim that that’s why he stopped and got out of the car, he doesn’t approach the car and speak to her in any way. I note that he denied the incident to the police and he said that something had happened. Applying my view of this witness, my own common sense and experience, I do not accept the defendant’s account as a plausible account and I reject his evidence.
Particular reliance was placed by the appellant upon the sentence “Drivers will regularly flip the bird at people…” The appellant submitted that this went beyond what a judicial officer could take into account as a matter of “common sense”.
Although the transcript separates the two quoted paragraphs, the point about enquiring as to why someone would “flip the bird” was not a separate point of significance. Plainly, on either version of events, the appellant acted in a way which was unusual by escalating an unpleasant but trivial interaction on Drake-Brockman Drive into something more. The substance of the reasons given was that his claimed reason for stopping was inconsistent with how he subsequently behaved, posing for photographs and failing to say anything to the complainant.
In any event, there was nothing wrong with the magistrate applying her own common sense and life experience to determine whether or not the prosecution had established its case beyond reasonable doubt. Finders of fact need to decide how humans are likely to have behaved. Assessments of human behaviour in the social context at issue in any particular case are obviously fundamental to the fact-finding process: see generally Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91 at [133]-[137]. In that process, it is entirely appropriate for the finder of fact to have regard to what they perceived to be “the apparent logic of events”: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]. Different finders of fact may assess likely human behaviour in any particular situation differently. It is for that reason that the diversity of views of jurors and the requirement for unanimity are such important aspects of the criminal process for indictable offences. They are equally important when charges are dealt with summarily or before a judge sitting without a jury. It is for that reason that it is important for community acceptance of judicial decisions that there is a degree of diversity of background and life experience amongst the judiciary.
In a case such as this, a criminal case tried summarily before a magistrate, it was obviously open to the magistrate to apply her own common sense and life experience in assessing the probabilities of particular human behaviour. She was required to assess two different versions of events, one of which must have been false. She was entitled in assessing whether the version of events given by the appellant was sufficient to give rise to a reasonable doubt about the prosecution’s allegations to assess it by reference to her own common sense and life experience. As pointed out in relation to the earlier grounds, there was nothing idiosyncratic about the conclusion that she reached. It was one which was open to her, having regard to a reasonable assessment of the evidence, including a reasonable assessment of the likely behaviour of people in the circumstances of the complainant and the appellant.
Ground (d) is not made out.
Ground (c)
The giving of reasons is a normal but not universal incident of the judicial process. The giving of reasons is not limited to cases where there is right of appeal although where there is such a right, reasons appropriate to the nature of the case or issue are required in order that the right of appeal may be properly exercised. Even where there is no right of appeal, a failure to give reasons may constitute an error if the failure can be characterised as a breach of the principle that justice must be seen to be done. If there is an obligation to give reasons, then its discharge does not require lengthy or elaborate reasons. It is necessary that the essential ground or grounds upon which the decision rests should be articulated.
The approach taken to the reasons that are given will be influenced by the body giving reasons and the circumstances in which those reasons are given. As a number of decisions have made clear, when the unedited ex tempore remarks of a magistrate are examined upon appeal, regard must be had to the realities of the work of the magistrate and attention paid to the substance of the reasons.
These propositions are uncontroversial and derived from what is said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269, 281 and Acuthan v Coates (1986) 6 NSWLR 472 at 479 and the cases which have followed those decisions.
The statement of reasons is necessary in order to ensure that the legislative facility of an appeal is not frustrated. Where, as here, the appeal is by way of rehearing that must necessarily involve stating briefly the grounds which have led the magistrate to the conclusions reached. In this case, having regard to the matters in issue, it was necessary for the magistrate to state briefly why she rejected the evidence of the appellant and why she was able to accept beyond reasonable doubt the evidence of the complainant. Plainly enough, there were intractable inconsistencies between the evidence of the complainant and the evidence of the appellant. One version of events was necessarily a false one.
The magistrate referred to the complainant and her impression of her as an “extremely impressive witness”. She referred to the clarity of her account. She referred to there being a degree of corroboration arising from the photo of the bruise on her jawline, her broken glasses and her complaint to police two days later.
The magistrate pointed briefly to why she considered that the version of events given by the appellant was not plausible. She considered that having taken the unusual step of getting out of the car and enquiring as to why a driver had “flipped the bird” at him, it was implausible that he would get out of his car because she had been filming him but then not approach the car and speak to her in any way.
That, along with the assessment of the complainant’s evidence as being reliable, was sufficient to indicate how she addressed the question of whether the prosecution had proved its case beyond reasonable doubt.
The reasons articulated the basis upon which her Honour rejected the evidence of the appellant and accepted, beyond reasonable doubt, the evidence of the complainant. That was the critical issue in the case. Potentially opaque, wrapped up statements such as “Applying my view of this witness, my own common sense and experience…” must be treated with some caution. However, those statements must be read in the context of the reasons as a whole, particularly the reference to the features of the complainant’s evidence that made her account clear and plausible and the identified implausibility of the appellant’s account. When read in that context, the reasons were not simply formulaic and conclusory statements and appropriately addressed the circumstances of the case. In my view, they were sufficient.
Ground (c) is not made out.
Order
The order of the Court is:
1. Appeal dismissed.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24 November 2021 |
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