Gillan v Police (SA) - [2004] SASC 279

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GILLAN v POLICE
Judgment of The Honourable Justice White
15 September 2004
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - CROSS-EXAMINATION - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM - WOUNDING OR SHOOTING OFFENCES
MENS REA AND NEGLIGENCE - GENERALLY
Appellant convicted of unlawful wounding - Magistrate accepted as reliable evidence of one prosecution witness - Deference to Magistrate in assessing credibility of witnesses - Magistrate did not misuse his advantage and his acceptance of the witness' evidence was justified - Discussion of fault element for unlawful wounding - Appellant claimed to have acted instinctively - Magistrate justified in rejecting appellant's account - Application of rule in Browne v Dunn - Appellant was aware of evidence which was contrary to her testimony - No unfairness arose from failure of prosecution to put matters to appellant - Prosecution complied with duty to call relevant witnesses - No inference could be drawn from failure of prosecution to call potential witnesses - Magistrate did not err in declining to find the appellant not guilty at the close of the prosecution case - Magistrate did not err in finding that the prosecution had disproved the defence of self-defence - Appeal dismissed.
Magistrates Court Act 1991, s 42; Criminal Law ConsolidationAct 1935, s 15, s 23, referred to.
Coulter v The Queen (1988) 164 CLR 350; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1; Crossthwaite v City of Elizabeth (1989) 51 SASR 105; R v O'Brien (1996) 66 SASR 396; Kaporonovski v The Queen (1973) 133 CLR 209; Dyers v The Queen (2002) 210 CLR 285, applied.
Browne v Dunn (1893) 6 R 67, discussed.
R v Prasad (1979) 23 SASR 161; R v Hoskin (1974) 9 SASR 531; Laurie v Nixon (1991) 55 SASR 46; Vallance v The Queen (1961) 108 CLR 56; Devine v The Queen [1982] Tas R 155; Devries v Australian National Railways Commission (1993) 177 CLR 472; Reid v Kerr (1974) 9 SASR 367; Piwonski v Knight [2003] SASC 169; R v Calides (1983) 34 SASR 355; Harris v Mill (von Doussa J, 7 April 1988, Jdgmt 592, unreported; Selig v Hayes (1989) 52 SASR 169; R v Su [1997] 1 VR 1, considered.

GILLAN v POLICE
[2004] SASC 279
Magistrates Appeal
WHITE J:
Introduction

This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 from a decision of a Magistrate.
The appellant was found guilty of unlawful and malicious wounding, contrary to s 23 of the Criminal Law Consolidation Act 1935.
In the early hours of Saturday 31 August 2002, there was an altercation on the balcony at Jimmy Rowe’s nightclub, Light Square, Adelaide, involving the appellant, the victim, and some of their companions. The altercation followed an incident between the victim and a Mr Alaalatoa, who was a friend of the appellant, on the northern section of the nightclub’s balcony. The victim, while speaking on his mobile phone, had bumped Mr Alaalatoa. The two men then confronted each other, a punch was thrown and a fight broke out between them. Mr van Gelder, a friend of the appellant’s sister, and Mr Rueff, a friend of the victim, became involved in the scuffle.
The prosecution alleged that in the course of the altercation the appellant threw a fluted champagne glass at the victim, hitting him in the jaw or neck area. Upon impact, the glass shattered, injuring the victim quite badly. The victim was taken to hospital with two lacerations to the neck.
The Trial before the Magistrate
At the trial, the prosecution called eight witnesses. Among them were the victim, his girlfriend Ms Szewczyk, Mr Rueff, and an employee of the nightclub, Ms Fletcher. Ms Fletcher was present but was not working at the nightclub on the evening in question. She was also an acquaintance of the victim. The other prosecution witnesses were the doctor who treated the victim at Royal Adelaide Hospital, and the police officers who attended the nightclub and interviewed witnesses.
The appellant gave evidence at the trial. She admitted in that evidence that during the incident she had thrown a champagne glass towards the appellant, that the glass struck him on the face, near the jaw, and that it smashed on impact. The appellant denied, however, having any intention to wound the victim and said that she had not foreseen the likelihood that lacerations would result from her action. In addition, the appellant claimed that she was acting in lawful self-defence at the time, relying on s 15 of the Criminal Law Consolidation Act 1935.
The appellant also called three witnesses who had been with her on the night. They were the appellant’s sister Ms Tracey Gillan, Tracey’s partner Mr Alaatatoa, and her friend Mr van Gelder.
Each of the witnesses at trial, with the exception of the doctor and the police officers, was present on the nightclub balcony and each witnessed aspects of the altercation itself or the events which immediately preceded it. There were a number of differences in the accounts of the various witnesses, and in some cases significant conflicts.
The Magistrate’s Findings
The Magistrate found that the differences in the competing accounts were so great that they could not be explained by mistake. He concluded that some of the witnesses were deliberately untruthful or were guilty of gross exaggeration or distortion. The Magistrate found that the evidence of the victim and Mr Rueff, where it conflicted with the account given by the appellant, Ms Fletcher and Ms Szewczyk, should not be accepted.
The Magistrate found that Ms Fletcher, Ms Szewczyk and the appellant gave truthful and reliable accounts of the manner in which the appellant struck the victim with the glass. That enabled the Magistrate to find that the appellant, using an overarm action, intentionally threw the champagne class with her right hand towards the victim when he was standing about two metres from her. The Magistrate found that the glass struck the victim on the right side of his face in the vicinity of his jaw and broke on impact, and that the broken glass caused the lacerations which he suffered.
The Magistrate considered the evidence of Ms Fletcher to be generally reliable and accurate. Her evidence differed from that of the appellant in a number of respects. Most significantly, the appellant claimed that, prior to her throwing the glass, she had attempted to break up the fight between Mr Alaatatoa and the victim. On the appellant’s account, at one stage she had stood between the victim and Mr Alaatatoa. The victim, the appellant alleged, had then grabbed her by the shoulders and pushed her back forcefully, against a pool table which was on the balcony, at the same time saying, “get out of the way, you little white bitch”. The appellant claims that it was immediately after this that she threw the glass in the direction of the victim.
The Magistrate noted, correctly, that the prosecution case with respect to the fault element of unlawful wounding, namely that the appellant intended to wound the victim or was reckless as to wounding him, relied upon circumstantial evidence of the appellant’s state of mind.
The Magistrate accepted that the overarm throwing of a long and fluted champagne glass at the victim from a distance of approximately two metres was capable of constituting circumstantial evidence that the appellant did have the requisite intention or foresight. Relying in particular on the evidence of Ms Fletcher, the Magistrate rejected the claim of the appellant that, immediately before she threw the glass, she had been pushed forcefully by the victim and that he had spoken the words attributed to him by the appellant. The Magistrate also rejected the appellant’s claim that when throwing the glass she intended neither to strike the victim, nor to cause him harm. The Magistrate was satisfied that the appellant had the requisite knowledge and foresight. Finally, the Magistrate rejected the claim of self-defence. He found that the appellant did not genuinely believe, at the time that she threw the champagne glass towards the victim, that that conduct was necessary and reasonable for the purpose of self-defence.
The Grounds of Appeal
The appellant raises a number of grounds of appeal.
Ground one alleges, in effect, that the speed with which the events in the altercation occurred meant that the appellant’s claim that her throwing of the glass was an instinctive reaction, rather than with the requisite state of mind, could not be excluded as a reasonable possibility. The next four grounds impugn, in various ways, the Magistrate’s reliance on the evidence of Ms Fletcher. The appellant submits that the Magistrate erred in his assessment of the credibility of Ms Fletcher, and in his reliance upon her evidence when it was apparent that she had not witnessed the entire incident and there was inconsistency, so it was submitted, between Ms Fletcher’s statement to the police and her evidence. In the circumstance that none of the witnesses had seen the entire incident, the Magistrate wrongly found, it was submitted, that it was surprising that no one person could confirm that the victim had manhandled the appellant. The appellant also submits that the Magistrate failed to consider the extent to which the evidence of Ms Fletcher tended to support the appellant’s version of events.
Ground six alleges that the Judge misdirected himself on the topic of the failure of the prosecution to call particular witnesses. Ground 7 alleges that he failed to consider properly the defences of self-defence and accident, both of which the appellant claims were open on the evidence. The appellant further argues that the Judge erred in failing to dismiss the charge at the end of the prosecution case, in accordance with the decision of R v Prasad (1979) 23 SASR 161.
The appellant also says that the prosecution failed to put to the appellant in cross-examination that her version of events was mistaken or false. In that circumstance, it was argued, it was unfair for the Court to make findings contrary to her testimony. Finally, the appellant argues that the verdict is “unsafe and unsatisfactory and otherwise against the weight of the evidence”.
Intention for Unlawful Wounding
A distinction is to be drawn between the offence of unlawful wounding, and that of assault occasioning actual bodily harm. In the case of the latter, it is necessary only to prove an intention to assault – that is, the mens rea of a common assault – on the part of the accused. The element of occasioning harm is purely objective: Coulter v The Queen (1988) 164 CLR 350.
In South Australia, it is established that the offence of unlawful wounding requires an intention on the part of the accused to wound, or recognition of the likelihood of harm of that type, viz., a wounding, resulting from the accused’s act: R v Hoskin (1974) 9 SASR 531 at 537-8; Selig v Hayes (1989) 52 SASR 169 at 174-5 per Jacobs J; Laurie v Nixon (1991) 55 SASR 46 at 51.
A “wounding” in this context involves a breaking of the whole skin: see Vallance v The Queen (1961) 108 CLR 56 at 77 per Windeyer J; Devine v The Queen [1982] Tas R 155 at 157-8 per Green CJ, at 164 per Nettlefold J and at 168-9 per Cosgrove J.
In the present case there was no question that the victim was wounded. However, there was a serious question as to whether the appellant possessed the requisite fault element to have committed the offence. The Magistrate found that the prosecution had established beyond all reasonable doubt that the appellant did have the requisite foresight. The Magistrate said:
“By way of inference from my findings and from the evidence of Tammy Fletcher, I am satisfied beyond reasonable doubt, and I find that:
(a)when the defendant threw the champagne glass towards Eddie Ahmed she realised that, should it hit him on the face, it was likely to break and that the broken glass was likely to cause lacerations to his face;
(b)she foresaw the likelihood that harm of the type complained of, namely a wounding, would result from that act and decided to proceed with that act notwithstanding.”
The Magistrate reached that conclusion by a combination of two findings. The first was his finding, based on his acceptance of the evidence on this topic of Ms Fletcher, Ms Szewczyk and the appellant, that the appellant, using an overarm action, had intentionally thrown the glass towards the victim when he was standing two metres from her. The second was his rejection, based very much on his acceptance of Ms Fletcher’s evidence, of the appellant’s claim that immediately before she threw the glass the victim had manhandled her. No other witness had seen the manhandling alleged by the appellant either. The rejection of that evidence led to the further rejection of her evidence that she did not intend to would the victim, and did not realize that that was a possibility. Hence the appellant’s attack on the reliability of Ms Fletcher’s evidence, and the use which the Magistrate had made of it.
Ms Fletcher’s Evidence
On the appeal, the appellant advanced a number of criticisms of the Magistrate’s acceptance of the evidence of Ms Fletcher as accurate and reliable. Ms Fletcher had admitted that she had not observed the whole incident, and so, it was submitted, there was a reasonable possibility that the manhandling of the appellant had occurred but was not witnessed by her. The manhandling had occupied only a few seconds in the whole altercation and could, therefore, it was said, have easily been missed. Similarly, the absence of evidence from any other witness to support the appellant’s claim of manhandling was explicable because none of them had observed all of the events in the altercation either.
The circumstances in which an appellate court will interfere with a finding based on the assessment of the credibility of a witness are limited. The principle was stated by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
“… A finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case against – even strongly against – that finding of fact. If the trial Judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbably’.”
See also Deane and Dawson JJ in the same case at 479 and 480.
In my opinion, there is nothing glaringly improbable nor inconsistent with matters incontrovertibly established by the evidence, or otherwise incorrect in principle, with the Magistrate’s assessment, and use, of the evidence of Ms Fletcher. On the contrary, there are a number of considerations which indicate that the Magistrate’s acceptance of that evidence was justified. Ms Fletcher was one of the few, if not the only one, of the persons giving evidence who was not, on the night, affected by alcohol. She was two months pregnant at the time, and during the whole of the preceding evening, and on the morning of 31August 2002, had had only two alcoholic drinks. Furthermore, unlike many of the other witnesses, Ms Fletcher was very familiar with Jimmy Rowe’s nightclub as she was an employee of it. Ms Fletcher took an active and responsible role in seeking to end the altercation. In particular, she was active in seeking to remove the appellant from participation. She was in a good position to be able to make accurate and reliable observations of what had occurred. Not only did she not see any manhandling of the appellant, she did not hear the words claimed by the appellant to have been spoken by the victim to her.
The Magistrate considered each of the criticisms of Ms Fletcher’s evidence now advanced. He accepted that she was not an independent witness, in particular by virtue of her friendship with Mr Rueff, and her association with the victim. The Magistrate took that consideration into account, as well as Ms Fletcher’s admission that she had not seen the whole of the incident, in particular, its commencement. The Magistrate found, however, that by the time the glass was thrown, Ms Fletcher’s attention was on the appellant. The evidence supports that conclusion.
A significant part of the challenge to the evidence of Ms Fletcher was based on the absence of any mention of the throwing of a glass in the notes made by Constable Coady, following a conversation with Ms Fletcher outside Jimmy Rowe’s nightclub on the morning of 31 August 2002. As to this the Magistrate said:
“In assessing the reliability of Tammy Fletcher’s evidence in relation to this issue, I do not overlook the evidence of her previous statement to Constable Coady on the 31 August, 2002, not long after the incident. I accept Constable Coady’s evidence that, while she and Senior Constable Upton were outside Jimmy Rowe’s Nightclub on that night, she spoke to Jazz Rueff and recorded his personal details. I also accept that, on the same occasion, she spoke to Tammy Fletcher and made brief handwritten notes of what Fletcher told her about a female’s conduct towards a person named Eddie and Jazz, including her alleged conduct with a pool cue. I accept that there was no reference in Constable Coady’s notes of the female having also thrown a glass. It may be open to infer that Constable Coady did not make a note of a female having thrown a glass because Tammy Fletcher did not mention it to her at the time. That reasoning may lead to the conclusion that Tammy Fletcher’s evidence was inconsistent with her statement to Constable Coady in that respect.”
After considering the shortness of the conversation between Ms Fletcher and Constable Coady, the Magistrate said:
“Constably Coady’s opportunity to interview Tammy Fletcher at the scene would have been limited. It was obviously not an occasion for her to take a comprehensive statement and she did not purport to do so. Her notes reflected the nature of the contact. They were brief. … Having regard to the circumstances in which the conversation took place, its brevity, and to the nature of the record that Constable Coady made, I consider that there is an inadequate basis for inferring that the apparent difference between Tammy Fletcher’s evidence and her previous statement to Constable Coady amounted to an inconsistency which rendered her evidence unreliable.”
It cannot be said that that conclusion was not open to the Magistrate, or that it was glaringly improbably or inconsistent with some other fact incontrovertibly established. I note in passing that the police interviewed Ms Fletcher more extensively approximately one week after the incident. The cross-examination did not suggest that she had not told the police, at the time of giving that statement, of the appellant’s throwing of the glass.
The appellant submitted that the Magistrate had failed to have regard to evidence of other prosecution witnesses which conflicted with that of Ms Fletcher. There is no substance in this complaint. The Magistrate referred expressly to conflicts in the evidence of the prosecution witnesses. He expressly directed himself to the need to assess the reliability of all the evidence. The Magistrate adopted the technique of making findings of fact based on admitted facts, matters that were common ground, and on facts which were undisputed or indisputable. These findings then formed a framework by which he tested the various versions. The Magistrate rejected significant aspects of the evidence of other prosecution witnesses. As noted above, a significant aspect of his findings was based upon acceptance of parts of the appellant’s evidence.

It is true that there were aspects of the altercation, and other observations, to which Ms Fletcher testified which were either not seen by other prosecution witnesses, or not confirmed by them in their evidence. These were all matters which were put to the Magistrate. Some are inconsequential, for example, Ms Fletcher’s mistake as to the height difference of the appellant and her sister. Others are explicable by the rapidly changing dynamics of the altercation and by Ms Fletcher’s focus on the appellant. Neither alone, nor in combination, do these matters indicate error by the Magistrate.
In my opinion, none of the grounds of challenge to the Magistrate’s acceptance, and use, of Ms Fletcher’s evidence is made out.
Browne v Dunn
The appellant’s evidence-in-chief to the effect that she had been manhandled by the victim was not challenged, at least directly, in the cross-examination. It was submitted that the rule in Browne v Dunn (1893) 6 R 67 had thereby been breached. The appellant’s evidence as to the manhandling not having been challenged, it was submitted that it was unfair of the Magistrate not to have accepted that evidence.
It is true that there was no direct challenge to the appellant’s claim that she had been manhandled. Some of the prosecution cross-examination of her can be construed as having proceeded on an assumption of the veracity of that claim. On another view, it could be construed as an exploration of the veracity of the claim.
By the time the appellant gave her evidence, the trial was well advanced. None of the prosecution witnesses had accepted that there had been manhandling of the appellant by the victim. Counsel for the appellant was on notice that there was an issue about this claim of the appellant, knew the contrary evidence, and knew that it was in the appellant’s interest to call whatever evidence was available to her on the topic. The absence of cross-examination on the topic did not therefore cause the type of prejudice commonly experienced when the rule in Browne v Dunn is breached. Nevertheless, the appellant was deprived of the opportunity of answering directly the challenge to her evidence on this point and the Magistrate was deprived of the opportunity of observing that answer and her reaction to the challenge. I am prepared to accept, without deciding conclusively, that the failure to cross-examine directly in these circumstances did constitute a breach of the rule in Browne v Dunn[1].
[1]There is some authority for the proposition that the rule applies only where opposing counsel has not been put on notice of the cross-examiner’s intention: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16, 23; but cf Reid v Kerr (1974) 9 SASR 367; Piwonski v Knight [2003] SASC 169 at [109].
It does not follow from the breach of the rule in the circumstances above described, however, that the Magistrate was required to accept this part of the appellant’s evidence. That evidence had to be assessed as with every other part of the evidence. The absence of direct challenge in cross-examination was a factor to be considered in assessing the evidence. It was not necessarily to be taken as a deemed acceptance by the prosecution of that evidence, nor was it unfair of the Magistrate to decline to accept that evidence: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 26; Crossthwaite v City of Elizabeth (1989) 51 SASR 105 at 109 – 110. I do not think that there was unfairness in the present case so as to indicate that the Magistrate’s decision was unsafe. My reason for that conclusion is largely that the appellant and her counsel were on notice of the issue and had the opportunity to lead any evidence on that topic which they wished. In particular, I do not consider that the absence of cross-examination on this topic renders the Magistrate’s inference, that the reason Ms Fletcher did not see the manhandling was that it had not occurred, unsafe.
Ground One: Shortness of Time
The appellant gave evidence to the effect that her throwing of the glass was an instinctive response (“It was a reaction, I didn’t think, I just threw it” and “I didn’t really have time to stop and think”). It was submitted that the Magistrate could not have excluded as a reasonable possibility an instantaneous reaction without intention to wound and without the requisite foresight of the possibility of wounding. Reliance was placed on Selig v Hayes (1989) 52 SASR 169 and Laurie v Nixon (1991) 55 SASR 46.
This submission on appeal was very similar to a submission made to the Magistrate and expressly considered, and rejected, by him.
The submission requires consideration of the event to which the appellant said she was reacting and which meant that she did not “have time to stop and think”. That event was the manhandling and forceful pushing of her by the victim which the appellant claimed had occurred. As already noted, the appellant’s evidence on that topic was rejected.
The appellant did not suggest any other occurrence to which she had reacted instantaneously. That meant that the Magistrate was entitled to exclude, as he did, that there was a reasonable possibility that her throwing of the glass had occurred without any thought at all. The method adopted by the appellant, viz., an overarm throw from a short distance in the direction of the victim also, in my opinion, rather contradicts the claim that the glass was thrown without thought.
Ground Six: Failure of the Prosecution to Call Certain Witnesses
The prosecution did not call as witnesses Ms Fletcher’s friend, Elizabeth Im, who was with her when the altercation commenced. Nor did the prosecution call evidence from other persons who were identified as having been present in Jimmy Rowe’s nightclub at material times. These included Philip Im, Mel Craig (the Public Relations Manager of Jimmy Rowe’s nightclub), a female friend of Ms Szewczyk, and an off-duty security officer named Beck. The Magistrate rejected a submission from the appellant to the effect that each of the these persons was someone who should have been called by the prosecution, and that an inference could, and should, be drawn that, if called, their evidence would not have assisted the prosecution case on relevant matters. That submission was repeated on appeal.
The Magistrate directed himself appropriately to the duty of the prosecution to call available material witnesses. He referred to Dyers v The Queen (2002) 210 CLR 285, in which, at 293 [11], Gaudron and Hayne JJ said that the prosecution should:
“… call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.”
The Magistrate also referred to the judgment of Callinan J at 326, where a statement to similar effect was made.
On some occasions, it may be necessary for the prosecution to make arrangements for a witness to be available or to secure their attendance in court: R v Su [1997] 1 VR 1. An accused may be materially disadvantaged by being deprived of the opportunity to cross-examine a witness, as opposed to examining a witness-in-chief. The question in such a case is “whether the conduct of the defence was unduly prejudiced by the need for the defence to call that witness”: R v O’Brien (1996) 66 SASR 396 at 400 per Doyle CJ.
The Magistrate made no criticism of the prosecution for not calling any of the persons identified by the appellant. There was little scope for criticism. For example, although Elizabeth Im was present with Ms Fletcher at the beginning of the altercation, Ms Fletcher did not know where she was at its conclusion (which suggested she had not remained in the area), and there was no evidence of Phillip Im having been on the balcony at the relevant time. Some of the other persons, for example, Mel Craig, had become involved only in the aftermath of the altercation. Prejudice of the kind referred to in R v O’Brien was not demonstrated in this case.
The Magistrate also directed himself that he should not draw the inference that evidence from the persons identified by the appellant would not have assisted the prosecution. In my opinion, the Magistrate was correct in that direction. In Dyers v The Queen Gaudron and Haynes JJ (with whom Kirby J agreed on this point) said, at 291 [6]:
“Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.”
In any event, it is doubtful that any inference, even if otherwise available, could have been drawn safely in this case. I have already referred to the uncertainty as to whether any of the identified persons made observations of a relevant matter. In addition, a police officer, Senior Constable Richmond, who appeared to have been in charge of the police investigation, said that statements had not been taken from those persons. That too, in my opinion, weakens the inference that evidence from those persons, if called, would not have assisted the prosecution case.
Finally, on this ground, I note Mr Rainford’s acknowledgment that there had not been a request from the defendant to the prosecution that the police obtain statements from these persons and make those statements available to the defendant.
For all these reasons, this ground of appeal is not made out.
Ground Seven: Self-defence
Having rejected the appellant’s evidence that she had been forcefully manhandled by the victim immediately before she threw the glass, and having found that the appellant had the requisite mental state for the offence of unlawful wounding, the Magistrate said:
“It follows from those findings that I am also satisfied beyond reasonable doubt, and I find, that, when the defendant threw the champagne glass towards Eddie Ahmed she did not genuinely believe that her conduct was necessary and reasonable for the purpose of self-defence. I am satisfied that the prosecution has succeeded in disproving the defence of self-defence beyond reasonable doubt.”
On appeal, that finding was challenged. Insofar as that challenge depended on the challenge to the Magistrate’s acceptance, and use, of Ms Fletcher’s evidence, it fails for reasons already stated.
The appellant submitted, however, that the Magistrate had not considered, as he should have, before concluding, beyond all reasonable doubt, that self-defence had been disproved, the atmosphere of aggression and menace which it was said the victim’s conduct had engendered. There was evidence of aggressive behaviour by the victim. Some of that evidence related to the aftermath when the victim’s aggression to the appellant appears attributable to his belief that she was responsible for his wound. That can be ignored for present purposes. Nevertheless, there was evidence of aggressive behaviour by the victim during the course of the altercation. When asked about this, Ms Fletcher, being the witness whose evidence was accepted as reliable, said that the victim “was fighting back, yes”. The appellant did not, however, give evidence of an apprehension on her part as to what the victim what might do to her, nor to Mr Alaalatoa or to Mr van Gelder. She did not claim that the glass was thrown because of a desire to protect those persons. The prosecution did, of course, have the onus of proof but in considering whether that onus was discharged, the Magistrate was entitled to have regard to what the appellant herself said about the throwing of the glass. In that circumstance, I do not consider that it can be said that the Magistrate erred, once he had rejected the appellant’s account of the circumstances in which the glass was thrown, in finding that the claim of self-defence had been disproved.
Somewhat more faintly, it was argued that the Magistrate had erred in not considering at all the defence of accident. As I understand it, the submission is that the wounding of the victim should have been regarded as accidental, or, at the least, that explanation could not be excluded as a reasonable possibility. In Kaporonovski v The Queen (1973) 133 CLR 209 at 231,Gibbs J said:
“It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseeable by an ordinary person.”
See also Selig v Hayes (1989) 52 SASR 169 at 176.
The findings of fact made by the Magistrate excluded the availability of a defence of accident. The Magistrate found that the appellant had foreseen the possibility of wounding. In any event, in my opinion, that possibility would have been foreseen by an ordinary person in the appellant’s circumstances.
Prasad Submission
At the conclusion of the prosecution case before the Magistrate, the appellant made a submission, based on R v Prasad (1979) 23 SASR 161, that the prosecution case was so unreliable that it would be unsafe for the Court to return a finding of guilt. The submission referred, at length, to the inconsistencies between the evidence of the prosecution witnesses as to what had occurred, and to some inconsistencies between the earlier statements to police of those witnesses, and what they had said in evidence.
The Magistrate rejected the submission, saying:
“… whilst it is undoubtedly true that the evidence in support of the prosecution case is inconsistent in some respects, I do not consider that it is so lacking in weight and reliability in all respects that no reasonable tribunal could safely convict on it.”
He declined therefore to dismiss the charge at that stage.
The relevant principle stated in Prasad by King CJ at 163 is as follows:
“… A tribunal which is both the judge of law and fact may dismiss a charge any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal would safely convict on it.”
The circumstance of there being inconsistencies in the evidence of participants in, and observers of, an altercation which develops rapidly and occurs over a short time is commonplace. The reliability of the observations made by each is influenced by a number of factors including the extent, if any, to which they participated in the altercation, their role, their sobriety, the lighting, their position in relation to the critical events of the altercation and so on. The mere fact of there being inconsistencies does not mean that the evidence of all will lack weight and reliability.
It was open to the Magistrate to accept, that notwithstanding inconsistencies in this case, the evidence of the prosecution was not so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
Ground Nine: Onus of Proof
The appellant submitted that the Magistrate had erred in the application of the onus of proof. In particular, it was submitted that the Magistrate failed to apply, or in the alternative had not applied properly, the principles espoused in R v Calides (1983) 34 SASR 355. As I understand it, the submission is that the Magistrate did not ask himself whether the prosecution had proved its case beyond all reasonable doubt, but rather had engaged in the process of considering whose evidence he preferred. This ground of appeal was not developed in any detail in the submissions on appeal.
In my opinion, there is no substance in this ground. The Magistrate, on a number of occasions, reminded himself that the onus lay, on all issues, with the prosecution, and correctly identified the facts of which he had to be satisfied beyond all reasonable doubt in order for the prosecution to succeed. Furthermore, the Magistrate referred expressly to the decision of the Full Court in R v Calides (1983) 34 SASR 355 and to the decision in Harris v Mill (von Doussa J, 7 April 1988, Jdgmt 592, unreported) in which it was stressed that mere preference for one witnesses’ evidence does not lead inevitably to the conclusion that his or her evidence should be accepted as proof beyond reasonable doubt.
Further again, having rejected as unreliable the appellant’s evidence that she had been manhandled immediately before throwing the glass, the Magistrate reminded himself as follows:
“Of course, it does not necessarily follow from my rejection of the defendant’s evidence on this issue that the prosecution has succeeded in proving its case beyond reasonable doubt.”
The Magistrate then proceeded, in an appropriate way, to consider whether the prosecution had proved beyond all reasonable doubt that the appellant had the requisite mental state, and whether it had disproved the offence of self-defence.
There is therefore no merit in this ground of appeal.
Verdict Unsafe or Unsatisfactory
The appellant submitted that each of matters of which she complained in the first nine grounds of appeal, when considered in combination, had the effect that the verdict was unsafe or unsatisfactory.
In my opinion, none of the matters upon which the appellant relies considered individually, or in combination, suggests that the Magistrate’s verdict was unsafe. The detailed reasons provided by the Magistrate reveal a careful consideration of the evidence, a proper direction to himself of the manner in which he should go about the task and a reasonable assessment of the evidence. His decision depended very much upon his assessment of the credibility of the various witnesses. I do not see any indication that the Magistrate has not gone about the task in a proper way or that he has, in some way, misused the advantage which he had as the trier of fact. I do not think, in short, that it can be said that there is doubt about the reliability of the Magistrate’s verdict.
Conclusion
For all these reasons, the appeal against the Magistrate’s finding that the offence was proven beyond all reasonable doubt is dismissed.