Gray v Moore - [2018] TASSC 50

[2018] TASSC 50

COURT: SUPREME COURT OF TASMANIA

CITATION: Gray v Moore [2018] TASSC 50

PARTIES:  GRAY, Andrew
  v
  MOORE, Luke

FILE NO:  LCA 523/2017
DELIVERED ON:  10 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  26 February 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Appeal against finding of guilt on one count of assault and one count of trespass – Whether finding of guilt was reasonably open to magistrate – Conclusions drawn by magistrate clearly open.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Cuthbert v Coates [2018] TASSC 7, cited.
Aust Dig Magistrates [1153].

REPRESENTATION:

Counsel:
             Applicant:  M Doyle
             Respondent:  E Bill
Solicitors:
             Applicant:  Clarke & Gee Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 50
Number of paragraphs: 28

Serial No 50/2018
File No LCA 523/2017

ANDREW GRAY v SENIOR SERGEANT LUKE MOORE

REASONS FOR JUDGMENT BRETT J

10 October 2018

The applicant was charged on complaint with two counts of assault and one count of trespass arising from events which took place on 16 October 2015 at the home of his brother. The allegation was that he had punched his brother multiple times on two separate occasions during the course of those events, and had refused to leave the property when his brother demanded that he do so, thereby withdrawing any express or implied consent for him to be on the property. All three charges proceeded to hearing before Magistrate D Fairley. On 10 February 2017, the learned magistrate found count 1 (the first assault) and count 3 (the trespass) proved. However, his Honour was not satisfied that count 2 had been proved, and that charge was dismissed. The magistrate published written reasons and imposed a fine by way of sentence.
The applicant moves this Court to review the finding of guilt in respect of counts 1 and 3. The primary ground of review is that no reasonable magistrate could have been satisfied of guilt on either count, having regard to the evidence. During the course of preliminary submissions with respect to the motion, at a time when the applicant was not legally represented, the applicant also asserted that his counsel at the hearing had not adduced relevant and available evidence. This raised the question as to whether the applicant was in fact seeking a hearing de novo pursuant to s 111 of the Justices Act 1959. However, when the motion came before me for hearing, the applicant's counsel, Mr Doyle, abandoned any argument based on the failure to call evidence at the hearing, and any suggestion that there should be a hearing de novo. Accordingly, the review proceeds only on the ground that the finding of guilt was not reasonably open to the magistrate.

The evidence

According to the complainant's testimony, the relevant events occurred after the applicant had arrived at the complainant's house. He had with him their mother, who suffers from Alzheimer's disease. The arrival was not completely unexpected, but the evidence showed that in a previous exchange of text messages, the complainant had discouraged the applicant from coming to the house. The purpose of the visit, according to the applicant, was to bring their mother to see their father, who was elderly and infirm, and being cared for at that time by the complainant and his wife.
The complainant's version of the events which followed arrival can be summarised as follows. As the applicant entered the house with their mother, the complainant made a comment to him to the effect that this would be the last time that the applicant came there "unannounced". The applicant reacted by becoming physically assertive. The complainant responded by demanding that he leave. The complainant placed a hand on the applicant's shoulder to give effect to this requirement. The applicant raised his right fist, held it above the height of his shoulder for a short time, and then punched the complainant in the face, causing him to fall to the ground. The applicant then stood over the top of the complainant and punched him four or five times while he was lying on the ground. In evidence-in-chief, the complainant said that these blows hit him around the head and neck, although in cross-examination he said that "it was more my upper body, I don't think I got any to the head there". The complainant's wife then intervened, attempting to pull the applicant away from the complainant, and demanding that he leave. She ripped the applicant's tee-shirt from him as she was doing so. The complainant's face was bleeding as a result of this assault.
The applicant left and, after a further verbal exchange with the complainant, got into his car and drove down the lengthy driveway to the front gate. The complainant followed him in another vehicle for the purpose of ensuring that he left the property. The events relevant to count 2 occurred at the end of the driveway and are not directly relevant to this review, except insofar as consideration of those events affected the learned magistrate's assessment of credit. There was further argument between the men, part of which was filmed by the complainant on his mobile telephone. At one point, the applicant knocked the mobile phone from the hand of the complainant, and then picked it up and took it to his car. The complainant went to retrieve it and the assault, which is the subject of count 2, was said to have taken place during the course of a physical exchange on the front seat of the applicant's car as the complainant attempted to retrieve his phone.
Other evidence presented by the prosecution included testimony from the complainant's wife and another young male who was at the property during the course of the relevant events. There was also testimony from attending police officers, a recorded interview between police and the applicant, a record of the text message exchange before the arrival of the applicant, a recording of various 000 calls made by some of the participants in the relevant events, and photographs showing asserted injuries to both the complainant and the applicant. Finally, a transcript of the evidence of a doctor who treated the complainant a few hours after the events, together with the doctor's notes and photographs taken by her during the consultation, was also placed in evidence by consent. The evidence had been given by the doctor at a previous hearing in respect of the complaint, which was abandoned for reasons unconnected with the parties. Of the evidence presented by the prosecution, it was only the evidence of the complainant's wife and evidence relevant to the injuries, including the doctor's evidence, which was strongly probative of the counts in question. However, as the applicant's counsel based his arguments in part on what he asserted to be the magistrate's misinterpretation and incorrect assessment of the evidence relating to the complainant's wife and the injuries, I will discuss the detail of this evidence later in these reasons.
The applicant gave evidence and, of course, had also provided a version of events to the police. That version is largely consistent with his testimony at the hearing.
The applicant asserted a markedly different version in respect of the events inside the house after his arrival. His version was that the complainant had been very upset by his arrival. When they entered the house, his mother attempted to remove her shoes in accordance with the usual practice of that house, but was having trouble doing so. The applicant told her not to bother. He asserted that the complainant reacted to this comment by screaming at him to "get out of my house", rushing at him, and grabbing the front of his shirt and "jumper punching" him. The complainant delivered a series of "jumper punches" to the applicant as he was pushing him back out the door. When the men were outside the house, the complainant attempted to punch the applicant, by swinging his arms at him. To that point, the applicant says that he had simply held up his open hands in a defensive position, but at the point where he was being attacked by attempted punches, he acted defensively by punching the complainant. He delivered at least two punches, neither of which connected directly, although he believed that he may have struck the complainant's face with the end of his thumb. The applicant denied that the complainant fell to the ground at any time, or that he had punched him directly to the head or body, as was asserted by the complainant. As far as the trespass was concerned, the effect of his evidence was that he had been invited to the property and had left at the first reasonable opportunity after he had been asked to do so. In cross-examination, the applicant said that he had been punched eight to ten times by the complainant during the course of the physical exchange.
Some photographs which had been taken by the applicant after the incident and which purportedly disclosed injuries on his body were admitted into evidence.

The magistrate's decision

In respect of the events at the house which were relevant to count 1, the magistrate accepted the evidence of the complainant and his wife. His Honour was satisfied that Mrs Gray's evidence "was predominantly in accordance with the testimony given by her husband". He found the "defendant to be an unimpressive witness", and noted that he had been "evasive and non-responsive and argumentative" in the course of cross-examination. His Honour considered that, "the manner in which the defendant responded to (the prosecutor's) questions detracted significantly from the credibility of his evidence".
The magistrate also considered that the applicant's version of events was inconsistent with the independent evidence, in particular the injuries to the complainant's face. The magistrate "was impressed with the evidence of the prosecution witnesses" and considered their evidence to be consistent with the independent evidence. He did not consider that the weight of their evidence had been affected by cross-examination to any significant extent.
His Honour's ultimate finding, on the basis of the prosecution evidence, was that "the defendant struck the complainant four or five blows with a closed fist to the area of his head". However, although he preferred the evidence of the complainant to that of the applicant in relation to the events relevant to count 2, he found the evidence somewhat confusing and was not satisfied beyond reasonable doubt that there had been an assault perpetrated during the course of the complainant's efforts to retrieve his mobile phone. In relation to count 3, his Honour found that any implied licence or express consent for the applicant to be on the complainant's property was withdrawn when the complainant and his wife directed the applicant to leave the property and he refused to comply, and, in any event, that his legitimate purpose for remaining at the property had ended by the time of the initial assault alleged in count 1.

Discussion

On the hearing of the motion, there was no dispute between the parties as to the test appropriate in respect of a ground such as this. 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 per Crawford CJ (with whom Blow and Porter JJ) agreed. See also the cases referred to therein. As I noted in Cuthbert v Coates [2018] TASSC 7 at [5]:
"The reviewing court is not entitled to 'weigh the evidence and reach its own conclusions', Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454 per Porter J. The only question for me is whether the conclusion reached by the magistrate was reasonably open on the evidence."
It is apparent from the discussion above that the learned magistrate's decision was essentially based on his assessment of the reliability and credibility of the relevant witnesses. The applicant does not complain as to the adequacy of the magistrate's reasons for his decision to accept the prosecution evidence. Instead, counsel for the applicant framed his argument by reference to three aspects of the evidence which he says were misinterpreted or misunderstood by the magistrate. This was not an attempt to assert specific error in the guise of the general ground, but rather counsel's argument was that, had the magistrate properly appreciated the effect of the relevant evidence, it would not have been open to him to make the findings that he did in respect of counts 1 and 3. In particular, he could not reasonably have rejected the applicant's version of events as, at least, a reasonable possibility, and on that basis he would have had no choice but to find the charges not proved.
The first point made by Mr Doyle is that the magistrate did not properly appreciate the effect of the medical evidence. As already noted, that evidence primarily consisted of a transcript of the testimony of Dr Rosemary Tilsley, which had been given in previous abandoned proceedings in respect of the complaint. This evidence was admitted by consent. It included examination-in-chief, cross-examination and re-examination. It is a fair assessment of this evidence that the credibility and accuracy of the doctor's observations was not challenged in cross-examination. Dr Tilsley saw the complainant later on the day of the alleged assault. She observed scratch marks on his right forearm, abrasions, including breaks in the skin on four locations on his forehead, and tenderness and limitation of movement in his neck. She agreed with the prosecutor that the injuries were consistent with the attack reported by the complainant which included punches "in the forehead repeatedly ...". They were not consistent with having been caused by a thumbnail, in accordance with the explanation provided by the applicant. The doctor explained her reasons for this conclusion as follows:
"... on the forehead the marks looked as though he had been struck by something blunt because there was no sharp linear cuts to the skin. It was just sort of breakage of the skin over that area. And underneath that skin was starting to be areas of bruising. So there was no cuts or anything to say that what had happened to his forehead wasn't – it was only caused by something blunt which would be consistent with someone's fist."
The doctor's evidence in this regard was not effectively challenged in cross-examination, and there was no contrary medical evidence presented by the defence.
Mr Doyle argues that, as a matter of common sense, one would expect to see significantly more injury on the face of the complainant if he had been punched repeatedly as he claimed. It is argued that the injuries reported by the doctor could have been consistent with being hit to the forehead once, and this was not necessarily inconsistent with the applicant's evidence. Counsel noted that the magistrate had relied to a significant extent on the support which the medical evidence provided for the complainant's version, in respect of his decision to accept that version.
I do not find this argument persuasive. Firstly, while the magistrate did find some support for the complainant's version in the medical evidence, his conclusion was based on a general assessment of credit. The magistrate explained this, not only by reference to the independent evidence, but also having regard to the demeanour of each witness and their responses during the course of cross-examination. In any event, a fair assessment of the medical evidence is that it did, in fact, provide significant support for the complainant's version and was inconsistent with the evidence of the applicant. The doctor answered a direct question with respect to the consistency of the injuries with repeated punches, in the affirmative. She explained why this was so. Further, it is a reasonable assessment of that evidence that it was inconsistent with the applicant's version. In his interview with police, the applicant explained injuries to the complainant's forehead on the basis that they were likely to have come from his thumbnail because he did not "believe I had a punch land". He repeated these assertions in cross-examination. He did not positively assert that he did not land a direct punch on the forehead of the complainant, but the thrust of his explanation was that it was improbable that this had occurred, given his recollection of the relevant events, and that the injuries to the face were better explained by a glancing blow with his thumbnail. This explanation for the injuries on the complainant's face was directly refuted by the doctor's testimony. The importance of this evidence was not that it established that the applicant was giving false evidence in respect of the thumbnail explanation, but rather that the medical evidence was generally consistent with the version of the prosecution witnesses, and inconsistent with that of the applicant. In other words, the evidence was consistent with a number of blows resulting in blunt impact, and inconsistent with the type of contact described by the applicant. The magistrate was correct to treat this evidence as supportive of the prosecution case.
It is apparent from the magistrate's reasons, that his Honour also had significant regard to his own observation of the photographic evidence. His Honour noted that the photographs of the complainant "clearly show a number of soft tissue injuries to the face", consistent with the complainant's version. He stated that "the photographic evidence" did not bear out the applicant's version of being subject to two violent attacks. In particular, his Honour had earlier noted that he could not observe, from the photographs provided by the applicant, injuries to the applicant's face. I can detect no difficulty with this reasoning.
The second argument raised by the applicant's counsel concerned what he asserted to be the real effect of the evidence of the complainant's wife. The argument is based on concessions made by Mrs Gray in cross-examination concerning the contents of her statements to police relating to the relevant events. Mr Doyle asserts that these statements are inconsistent with Mrs Gray's evidence-in-chief, and consistent with the evidence of the applicant. It is submitted that the magistrate ought to have placed weight on the version given to police as it was closer in time to the relevant events, and not likely to be tainted by innocent or even deliberate reconstruction.
It is true that the version which Mrs Gray gave to police was in some aspects consistent with the version of the applicant. For example, the statements asserted that:
·     the two men had "begun grabbing each other's shirts and pulling at each other";
·     her husband was pushing the applicant out of the door;
·     as they got out the door, the complainant tripped and fell to the ground;
·     after she pulled the applicant backwards to separate the two men, she stood between them "so they couldn't start fighting again".
Mrs Gray explained that this version to police was based on her perception at the time and not necessarily inconsistent with her evidence. For example, she explained that she had told the police that her husband had tripped and fallen because she did not actually see how he fell to the ground, and had assumed that this is what had had happened.
Despite these matters, Mrs Gray gave clear testimony, from which she did not resile in cross-examination, that while her husband was on the ground, the applicant had punched him a number of times. This evidence was consistent with the version given to police. This evidence was of crucial importance. It was consistent with the guilt of the applicant on counts 1 and 3, and irreconcilable with the applicant's version. Other matters in her evidence which confirmed her husband's version, are as follows:
·     Her husband had fallen to the ground during the physical exchange. The applicant denied that this had occurred.
·     Her husband had not punched or attempted to punch the applicant.
·     She had ripped the applicant's shirt trying to get him off her husband. It had not been ripped off by the complainant.
·     She had observed the injuries and bleeding to her husband's face.

It was open to the magistrate, having regard to the whole of Mrs Gray's testimony, to regard it as strongly supportive of the complainant's version of the relevant events.
Finally, counsel argued that the magistrate had unfairly criticised the applicant's evidence and ought not to have found that the manner in which he gave evidence, in particular, answered questions in cross-examination, detracted from his credibility. Mr Doyle submitted that a fair assessment of the applicant's evidence is that it was internally consistent, and consistent with other independent evidence. In relation to the magistrate's comments about the applicant's answers in cross-examination being "abrasive, non-responsive and argumentative", Mr Doyle submitted that this was really a veiled reference to the applicant's claim that the complainant and his wife had conspired to contrive a situation in which he would be the subject of allegations such as those actually brought against him. Whilst counsel concedes that some comments made by the applicant in testimony are consistent with him holding such a belief, the belief is honestly held and should not have led the magistrate to draw conclusions as to his credibility.
I have read the relevant part of the transcript of the hearing, and of the interview with police. The conclusions drawn by the magistrate, as far as they went, were clearly open to him, as a fact-finder. The magistrate was entitled to have concerns in relation to the credibility of the applicant, and was entitled to have regard to his fixed thinking and intransience in relation to the motives of his brother and his wife, when assessing the credibility and reliability of the evidence. In any event, a fair reading of the magistrate's reasons reveals that the view he formed about the applicant as a witness was not dispositive of his determination of the proceedings. It is clear that the magistrate had regard to all the evidence. He noted, in particular, that the applicant's version was not supported by independent evidence, including the injuries. Further, his Honour accepted the truth and accuracy of the evidence of the complainant and Mrs Gray. The version of events given by the complainant and Mrs Gray could not be reconciled with the version of the applicant. There is no suggestion that his Honour was in error in his understanding of the correct onus and standard of proof. It is clear that he applied the correct principles in this regard. I note, in particular, that in dismissing count 2, his Honour correctly observed that merely preferring the evidence of the complainant to that of the applicant was not sufficient to enable him to find the charge proved, and referred to the cases and principles from Liberato v The Queen (1985) 159 CLR 507 and Phillips v Arnold (above) in that regard. It is clear from the overall discussion in respect of counts 1 and 3, that his Honour applied the same principles to that consideration.
In overview, there was clearly sufficient evidence to enable a reasonable magistrate to find counts 1 and 3 proved beyond reasonable doubt. It follows that the ground of review cannot be sustained.
The motion is dismissed.