Harrison v Moore
[2018] TASSC 53
•19 October 2018
[2018] TASSC 53
COURT: SUPREME COURT OF TASMANIA
CITATION: Harrison v Moore [2018] TASSC 53
PARTIES: HARRISON, Mathew Murray
v
MOORE, Luke
HARRISON, Mathew Murray
v
BONDE, Michael
FILE NOS: 3196/2017
3190/2017
DELIVERED ON: 19 October 2018
DELIVERED AT: Hobart
HEARING DATE: 1 March 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – "Oath on oath" case – Magistrate was entitled to accept the substance of the complainant's version – Magistrate provided adequate reasons for acting on the evidence of the complainant and being satisfied of guilt beyond reasonable doubt.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Robinson v Chatters [2010] TASSC 66, applied.
Aust Dig Magistrates [1153].
Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Breach of family violence order – Applicant alleges that breaches of family violence order were trivial and the principle of "de minimis non curat lex" should have been applied by the magistrate – Contraventions not properly described as trivial.
Williams v The Queen (1978) 140 CLR 591, Wilson v Brownells [1949] Tas SR 1, referred to.
Aust Dig Magistrates [1153].
REPRESENTATION:
Counsel:
Applicant: G McGuire
Respondents: E Bill
Solicitors:
Applicant: Bishops Barristers & Solicitors
Respondents: Director of Public Prosecutions
Judgment Number: [2018] TASSC 53
Number of paragraphs: 37
Serial No 53/2018
File Nos 3196/2017
3190/2017
MATHEW MURRAY HARRISON v SENIOR SERGEANT LUKE MOORE
MATTHEW MURRAY HARRISON v CONSTABLE MICHAEL BONDE
REASONS FOR JUDGMENT BRETT J
19 October 2018
On 13 October 2017, Magistrate S Cure conducted a joint hearing of two complaints against the applicant. Both complaints alleged offences committed against the applicant's former partner. Complaint, 31445/17 alleged three counts of common assault, and complaint, 32366/17, alleged one count of contravention of an interim family violence order. The order was made consequent upon the events relevant to the final two assaults, and was said to have been breached by text messages sent by the applicant to the complainant.
The magistrate found guilt proved in respect of two assaults and the breach of the family violence order. The remaining charge was dismissed.
By separate notices, the applicant moves this Court to review the findings of guilt in respect of each complaint. I will deal with each notice, and the complaint relevant to it, separately.
Complaint 31445/17
Count 1 charged the applicant with an assault on the complainant said to have occurred on 5 March 2017. Counts 2 and 3 related to assaults alleged to have been committed during the course of events at the home of the applicant and the complainant, on 19 March 2017. In her testimony, the complainant described the assaults on 19 March, but claimed that she could not recall the earlier incident. She agreed that she had told police that something had happened "a few weeks beforehand", but gave no evidence about that incident. The magistrate, quite properly, acceded to a submission that there was no case to answer in respect of count 1, and the charge was dismissed.
The complainant, however, described the events of 19 March in some detail. The parties had two young children aged 1 and 2 at the relevant time. The complainant said that she had put the children down for a sleep and then fallen asleep herself. She was woken by the applicant yelling angrily at her because the 2-year old child had defecated in her nappy, removed the nappy and spread the contents around the bedroom. She immediately went to the bedroom, took the child to the shower, and then deposited the soiled bedclothes in the laundry. The applicant followed her into the laundry, and continued to yell at her about what had happened. In the laundry, the applicant pushed his fingers into her lower back. She tried to move his hand. When she did so, the applicant punched her in the face. This punch was the assault alleged in count 2.
After this happened, the complainant left the house with her telephone, with the intention of calling the police. She was sitting on the back fence when she was approached by the applicant. She remained outside for a period of time, while he returned inside the house. When she came back into the house, he was sitting on the couch in the living room. Her testimony was that he stood up, grabbed her, pulled her onto his lap and held her there. She struggled to get away. He let go of her, causing her to fall to the ground. She then said, "As I was getting up to try and get away from him he kicked me in the back of the head and then I fell down again and I tripped." The actions of the applicant described in this sequence, including kicking her in the head, constituted the assault alleged in count 3.
The complainant's testimony was that after the second assault, she ran out of the house and called the police. The first police officer to arrive at the house gave evidence. That officer said that she could "see the beginnings of bruising and some redness on the left cheek on her face. She also showed me a scratch that was on the inside of her elbow and that looked like it was a recent scratch". The officer took photographs of the injuries and these were received in evidence. I have examined those photographs. To my observation, the bruising on the complainant's face is clearly apparent.
The applicant gave evidence at the hearing. The record of an interview between the applicant and the police was also placed in evidence. The applicant's version is that he had woken the complainant because of the issue with their daughter. He denied, however, that he was angry. The complainant had taken hold of the child's arm and dragged her from the bedroom. The applicant clearly implied in his testimony that the complainant was angry and was hurting the child. She then took the soiled bedclothes to the laundry. He said that, by this stage, he was "having words" with the complainant in relation to his "concerns of how she'd been treating" their daughter. He was shaking his finger at the complainant while he was "voicing" his concerns. While he was doing so, the complainant grabbed his finger and bent it. This caused pain which "was quite extreme". He said that as a "natural reaction, body's natural defensive mechanism to get the pain away", he "put his forearm to the side of" the complainant's face in order to move her off him. He denied punching her and disputed that when he put his forearm on the side of her face, he had done so with any significant force. He denied being responsible for the bruising on the side of her face, and when confronted in cross-examination with the photographs, suggested that the complainant may have caused the injury to herself as a form of self-harm.
In relation to the events relevant to count 3, the applicant said that the complainant had come willingly and sat on his lap. His arms were around her with his fingers locked. As she tried to get up, because his fingers were locked, she must have fallen and has then punched him in the chest. He denied kicking her in the head or assaulting her in any other way on this occasion.
The learned magistrate gave an immediate decision, and provided ex tempore reasons. She was satisfied that the applicant was angry when he woke the complainant. She also accepted his evidence that he had shaken his finger at the complainant, and she had bent his finger. At this point "he was yelling at her and I don't accept that he hit her in the face with a natural defensive action. I accept he hit her in the face". The magistrate said that, at this time "he was being aggressive and domineering and that's my observation of him". The magistrate noted that the complainant "had injuries to her eye and soreness on the back of her head".
In relation to count 3, the magistrate, in effect, accepted the version of the complainant. She found counts 2 and 3 proved.
Ground 1
As originally drafted, this ground asserted error on the basis that the finding of the magistrate was against the weight of the evidence and the conviction was unsafe and unsatisfactory. In discussion at the commencement of the applicant's counsel's submissions, it was accepted that such a ground was not a basis for review of the findings of guilt. An application was made to amend the ground to assert that an error of law could be inferred on the basis that the finding of guilt in respect of each charge was not the only reasonable conclusion available to the magistrate. However, this also would not have supported a review of the finding that guilt had been proved. Ultimately, it was accepted by the applicant's counsel that the appropriate ground was that a finding of guilt on each charge was not reasonably open to the magistrate as a matter of law. A ground of this nature is to be determined on the basis of a consideration as to "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 J (as he then was) and Porter J agreed). It was accepted by both parties that this is the appropriate test in respect of ground 1.
The applicant's counsel pointed to the acceptance by the magistrate of certain aspects of the applicant's version, which are inconsistent with the complainant's version. For example, the magistrate accepted that the complainant had hold of the applicant's finger and was bending it back at the time that the applicant struck her to the face. She also accepted, in respect of count 3, that the complainant could not have been standing at the time that she was kicked, contrary to what she had stated in her statutory declaration to the police. Counsel submitted that these findings are inconsistent with the acceptance of the substance of the complainant's version of the events generally.
I do not accept this submission. Such findings do not necessarily exclude the truth and accuracy of the complainant's version of the assaults. In relation to count 2, the crucial issue was whether the applicant had deliberately punched the complainant in the face in anger, or whether he had placed his arm against her face without significant force, in lawful self-defence. In respect of count 3, the prosecution case depended on acceptance that the applicant had deliberately kicked the complainant in the head. The magistrate was required to be satisfied of these matters beyond reasonable doubt, which in turn required the exclusion of the applicant's version as a reasonable possibility. However, the magistrate was not bound to approach the question as an all or nothing proposition. Her Honour was entitled to accept some parts of the complainant's evidence and reject other parts. She was entitled to approach the applicant's evidence in the same way.
Ultimately, the magistrate was entitled to accept the substance of the complainant's version, which established the charges in question. There was support for the complainant's version, in particular the photographs of the injuries and the police officer's observation of bruising on the complainant's face. The magistrate was entitled to reject the applicant's version of the incident in the laundry, in particular his claim that he simply placed his forearm "to the side of [the complainant's] face to move her off me", as implausible and inconsistent with the injuries. Her Honour was entitled to conclude that the circumstances were consistent with the complainant's claim that the applicant was angry, aggressive and domineering, and to reject his explanation that he had acted in lawful self-defence. Having read the transcript of the applicant's evidence, both in-chief and cross-examination, these findings are consistent with my own impression of the applicant's testimony.
There is no merit in ground 1.
Grounds 2 and 3
Ground 2 asserts that the magistrate failed to give adequate reasons for her decision to find guilt in respect of each charge. In particular, it is asserted that the magistrate did not provide adequate reasons for accepting the complainant's version and rejecting the version of the applicant. Ground 3 specifically asserts that the magistrate did not consider self-defence in respect of count 2. In my view, this is in fact a complaint that the magistrate did not give adequate reasons for being satisfied beyond reasonable doubt that the applicant had not acted in lawful self-defence, which was a finding implied in the ultimate finding of guilt. Hence, ground 3 is, for all practical purposes, subsumed within ground 2.
The obligation on a judge or magistrate to give adequate reasons, including in respect of a decision that a criminal charge has been proved, is well established and has been considered and explained in many decisions. See, for example, Pettit v Dunkley [1971] 1 NSWLR 376; Phillips v Arnold (above); Robinson v Chatters [2010] TASSC 66. The fundamental expectation is that the decision-maker will reveal to the parties the reason why the decision was made, and provide an appellate court with sufficient capacity to understand and conduct an adequate review of the reasoning which is the basis for the decision. If a decision depends solely on the credibility of witnesses, in an oath-on-oath situation, it is not sufficient for a magistrate to merely choose or prefer the evidence which is accepted. The reasons must contain a sufficient explanation as to why the court acted on a particular version: see Phillips v Arnold.
On the other hand, the duty to provide reasons does not require a "tedious examination of detailed evidence or a minute explanation of every step in the reasoning process": Wood J in Robinson v Chatters, referring to the comments of Kirby P in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247. This observation must be of particular application in respect of a magistrate dealing with a case on a summary basis. The volume and pressure of work in the Magistrates Court, which is well known and has been recognised in many of the decisions dealing with this issue, must also be taken into account when assessing the adequacy of reasons. Finally, "the extent and content of reasons will also depend upon the way the trial was conducted and the arguments that were presented": R v Kayte [2007] 70 SASR 68, noted by Wood J in Robinson v Chatters.
This case involved evidence of a limited number of events, which took place over a very short period. The differences between the parties were marked but in short compass. The resolution of the case depended entirely on credit. There was nothing complicated about the disputed circumstances. Her Honour stated her reasons ex tempore, immediately after the conclusion of the case. In submissions immediately before the decision, the applicant's counsel had conceded that the case turned solely on the issue of credibility. He did not apply for leave to address her Honour on the facts. Her Honour noted that it was an "oath on oath" case, but also stated that she was "not precluded from considering all of the evidence which includes the photographs and the manner in which she responded, in other words the fact that she went outside to call the police". Given the summary nature of the hearing, it is appropriate to consider her Honour's reasons in the context of these comments.
There is no question that her Honour's reasons were extremely brief, and consisted primarily of stating the facts which she accepted on the basis of the evidence. As has already been noted, those facts were not completely consistent with the complainant's version, but it is indisputable that her Honour proceeded on the basis of substantial acceptance of the complainant's evidence, and rejection of the applicant's version. The gravamen of the complaint made by the applicant on this review is that, while it is clear enough what facts were found by her Honour, she did not explain why she accepted the complainant's version and rejected the credibility of his testimony. However, in my view, a careful examination of the reasons does, in fact, reveal the path of reasoning which led to this conclusion. In particular:
· Having noted in submissions that the case was "oath on oath", and will turn on credit, the magistrate commenced her reasons by observing that the complainant's evidence was "very direct ... and very specific", and that she had been honest about not remembering another allegation, that relevant to count 1. This was legitimate reasoning towards acceptance of the complainant's credibility.
· The magistrate commented that the evidence established injuries which were consistent with the complainant's version. These comments must be read in the context of her Honour's comments during the course of submissions, that she was entitled to consider all of the evidence, including the photographs.
· Her Honour considered the conduct of the applicant in waking the complainant because of the issue with the child's nappy, to be consistent with the complainant's version that the applicant was angry, and "was being aggressive and domineering". Her Honour noted that this reaction was consistent with her own observation of the applicant during the course of his evidence. I have already observed that this approach to the applicant's evidence, and his demeanour when giving evidence, resonates with the impression I formed when reviewing the transcript.
Having regard to the nature and narrow ambit of the issues in this case, and the brevity of the evidence, I am satisfied that her Honour provided sufficient explanation of her decision to act on the evidence of the complainant, and on that basis to be satisfied of guilt beyond reasonable doubt. The reasons were not required to be detailed and exhaustive. I am satisfied that the magistrate identified all of the salient aspects of the evidence, which provided support for a decision based largely on credibility. I am satisfied that the reasons are adequate.
This conclusion also disposes of count 3. It was inherent in the applicant's version of the events relevant to count 2 that he had pushed the complainant away in self-defence. Her Honour specifically considered this question, and in fact accepted that the complainant had bent the applicant's finger. However, she was satisfied, consistent with her wider findings concerning the applicant's conduct, that he was yelling at the complainant and being "aggressive and domineering". On this basis, the magistrate was satisfied that the applicant had not struck the complainant in a defensive action. It can be inferred that the magistrate was satisfied that he punched the complainant in anger. In my view, the reasons demonstrate that her Honour has adequately considered and determined the issue of self-defence.
The applicant has failed to make out any of the grounds of review relevant to complaint 31445/17. That motion will be dismissed.
Complaint 32366/17
As a result of the events which occurred on 19 March 2017, an interim family violence order was made by the Magistrates Court on 20 March 2017. A condition of that order was that the applicant was not to approach the complainant, directly or indirectly, including by any form of electronic communication. The order set out certain exceptions to this prohibition, which included contact by electronic message "only for the purposes of arranging or discussing child contact".
The charge against the applicant on this complaint was that he had contravened the order by sending electronic text messages to the complainant between 20 March 2017 and 25 March 2017. The messages were in the following terms:
· "Got a small amount of money from Centrelink today did you need some?"
· "I really shouldn't be sending you this but I just want to say; Chin up and I will always love you no matter what paths we decide to take. I'm really proud of you."
· "Hope you guys are well. Thinking of you all, all of the time."
· "It would be appreciated if I could have a [sic] update on April and Sidney please."
At the hearing, the evidence of the messages was admitted without objection, and, in his evidence, the applicant did not dispute sending the messages. However, he said that he believed that the order permitted him to contact the complainant generally with respect to their relationship. He conceded that his belief was not correct, but claimed that it was "an honest mistake" arising from the fact that he had been held on remand and was overwhelmed by the events of the previous couple of days.
During the course of submissions by the applicant's counsel, the magistrate made it very clear that she was not persuaded that there was any room for an honest mistake by the applicant as to the terms of the order. In particular, her Honour noted that she had conducted the hearing at which the order had been made, and had, in the presence of the applicant, made an express and clear point of removing words in the application, which would have included, as part of the exception, "discussing matters arising out of their relationship". Her Honour made it clear that she had changed the words so that the exception was limited to contact for the purposes of arranging or discussing child contact.
The applicant's counsel also made a submission that the contraventions constituted by the text messages were "trivial or trifling". In her reasons for finding the charge proved, her Honour said:
"As for the breaches ... I regard them as trivial breaches at best, consistent with what I observe of all of this, that there's a degree of frustration being taken out of the picture and not having any control over the situation and that's why family violence orders prevent people from contacting someone when they are in this situation, so that control can't be exercised but that doesn't mean, in any way, I regard these as breaches of any great import."
Her Honour went on to express the conclusion that the text messages contravened the order.
The notice of review asserts two grounds:
"1 That the Learned Magistrate erred in law and/or fact in that having found the breaches were 'trivial at best' the Learned Magistrate should have applied the principle of 'de minimis non curat lex' which was consistent with such findings.
2 That the Learned Magistrate erred in law in failing to give adequate reasons for the decision, that failure being such that a Court sitting on appeal would not be able to determine why the Learned Magistrate reached the decision which she did."
The first ground relies on the magistrate's finding that the messages constituted "trivial breaches at best", and asserts that the magistrate should have applied the principle of "de minimis non curat lex" as a complete defence to the charge. The applicant's counsel relies on comments by Murphy J in Williams v The Queen (1978) 140 CLR 591. His Honour considered that the principle should be applied in the case of a charge of possession of a prohibited plant where the evidence established only the existence of a minute quantity of cannabis mixed with dust in the pockets of a coat.
Although Murphy J noted that the principle "has been recognised throughout legal history and is often applied to avoid imposition of punishment after a finding of guilt where an offence is trivial", the learned author in Ross on Crime, 7th ed, 2016, Lawbook Co, suggests that the maxim has "little application in criminal law". I think that this must be correct, at least insofar as criminal liability is concerned. The principle is, of course, clearly relevant to the issue of punishment. The other judges in Williams did not refer to the principle, and my research has failed to demonstrate any other recent example of the application of the principle as a complete defence to criminal liability. On the contrary, in the only Tasmanian case that I can find on the subject, Wilson v Brownells Ltd [1949] Tas SR 1, Clark J expressed the view that the maxim is not applicable to criminal proceedings.
In any event, the maxim is not applicable to the circumstances of this case. Although the magistrate referred to the breaches as trivial, that comment must be kept in perspective and seen in its proper context. The text messages were sent in clear defiance of a court order. In my view, they were not contraventions properly described as trivial. The protection of the complainant provided by the order included protection from emotional manipulation, overbearance and abuse. The magistrate, in making the order, was clear to define the boundary of acceptable communication, and this was for the purpose of ensuring that the order provided the protection which her Honour considered was necessary and appropriate in the circumstances of the case. Defiance of such an order by direct contact with the complainant was not a trivial matter. The magistrate's comments in that regard should be seen as an indication of the relative seriousness of the breaches in question, by comparison with more serious examples of that offence.
Ground 1 is without merit.
Ground 2 can also be dealt with briefly. It is clear from what I have already written that her Honour provided adequate reasons for the finding of guilt. It was clearly established that the messages had been sent, that some or all of them were in defiance of the order, in that they clearly had nothing to do with the question of child contact. Her Honour clearly and decisively dealt with the suggestion that the applicant had been mistaken about the contents of the order. It follows that there is no merit in ground 2.
Both motions are dismissed.
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