Harriss v Williams-Coates - [2017] TASSC 62

[2017] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Harriss v Williams-Coates [2017] TASSC 62

PARTIES:  HARRISS, Debra
  v
  WILLIAMS-COATES, Alex

FILE NO:  2205/2017
DELIVERED ON:  31 October 2017
DELIVERED AT:  Hobart
HEARING DATE:  19 October 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of acquittal – Whether magistrate as reasonable person could have found defendant not guilty on evidence before him.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Caccavo v Collins [2014] TASFC 7, 23 Tas R 384, followed.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  C Rainbird
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  C Rainbird

Judgment Number: [2017] TASSC 62
Number of paragraphs: 16

Serial No 62/2017
File No 22/05

DEBRA HARRISS v ALEX WILLIAMS COATES

REASONS FOR JUDGMENT BLOW CJ

31 October 2017

This is a motion for the review of an order of a magistrate, Mr R Marron, dismissing a complaint in an assault case. The respondent, Alex Williams-Coates, was charged with assaulting a police officer, Constable Laura Winfield-Peterson, in the execution of her duty by "striking her in the hip with a pair of boots", contrary to s 34B(1)(a)(i) of the Police Offences Act 1935. It was common ground that the constable was struck by at least one of the respondent's boots. The prosecution case was that the respondent had deliberately hit the constable with them. The respondent contended that she was throwing them to a friend, and that the constable was hit unintentionally and accidentally. The incident in question occurred at about 3.30am on Sunday, 3 July 2016 in Murray Street, Hobart.
Four witnesses gave evidence at the hearing – Senior Constable Scott Hardman, Constable Winfield-Peterson, the respondent, and a defence witness named Alec Purdon. He was the person to whom the respondent claimed to have tried to throw her boots.
Senior Constable Hardman gave evidence to the following effect. He and Constable Winfield-Peterson were on mobile patrol duties together. They were called to the corner of Liverpool and Murray Streets, where there was a report of persons fighting. On their arrival they saw a group of people on the corner. A man ran from that group along Murray Street towards Collins Street. They drove towards Collins Street. The man turned and ran back towards Liverpool Street. Senior Constable Hardman was driving. He stopped the car. Both officers got out and chased the man. Senior Constable Hardman was behind Constable Winfield-Peterson. As he neared the entrance to Centrepoint he saw a movement. He saw the respondent "mid-swing" with a black object in her right hand, swinging it towards Constable Winfield-Peterson. It struck her to the right side. Constable Winfield-Peterson stopped, but he ran on. As he passed her, he saw on the ground the object that had made contact with her. It was "a small black lady's boot". He heard Constable Winfield-Peterson say words to the effect, "You're under arrest for assaulting a police officer." He kept running and caught up with the man that he had been chasing. Under cross-examination he said that the boots were not thrown, that the respondent was still holding them when Constable Winfield-Peterson was hit, and that a boot left the respondent's hand only after that.
Constable Winfield-Peterson also gave evidence as to the radio call, the man running towards Collins Street, the man changing direction and running back towards Liverpool Street, the stopping of the police vehicle, and the two officers giving chase, with her in the lead. After that her evidence was to the following effect. She was just coming past the entrance to Centrepoint when she saw the respondent coming towards her, barefoot, carrying a pair of black boots, holding them in her right hand and cradling them in her left. The respondent was walking towards her and towards Collins Street. The respondent lunged forward towards her, swung her arm around, and "connected the boots" into her right hip. The boots connected to her right hip on her belt, and hit her gun holster as well. On impact the respondent dropped the boots. Constable Winfield-Peterson stopped, turned around, and placed the respondent under arrest for assaulting police. As she did that, the respondent said, "You wouldn't have caught him anyway". She placed the respondent in the divisional van. She was taken to the Hobart police station. She appeared intoxicated. She sobered up slightly and was bailed. She apologised, and also stated that it was silly that she was being arrested. Under cross-examination Constable Winfield-Peterson denied that the respondent was throwing the boots "to her friends nearby" when she was struck. She denied that the incident occurred on the corner of Murray and Liverpool Streets. She said that the respondent was not interviewed at the police station because she was unfit to be interviewed due to her level of intoxication.
The respondent gave a very different version of events. Her evidence was to the following effect. She was celebrating her birthday with some friends. She had driven into the city, had intended to drive home, and therefore had initially not had anything alcoholic to drink. At about midnight she changed her mind and started drinking. She had about six or seven drinks. She did not think she was intoxicated. Shortly before the incident she was at a bar named 808 in Murray Street, between Bathurst Street and Liverpool Street, with Alec Purdon and her partner, Aaron Grant. They left, and started walking towards Liverpool Street on the right hand side of Murray Street. There was some conflict between her group and another group. She walked off, as did her partner and Mr Purdon. They continued along Murray Street. She saw the police arrive. When they got there she was "down on the ground" taking her shoes off. Her partner ran off. She was taking her shoes off because they were hurting. That was before she got to the lights on the corner of Murray and Liverpool Streets. She was sitting on the ground, but then stood back up. She took off both shoes. Her partner was nowhere to be seen. She decided to go and find him. She went to throw her boots to Mr Purdon with an underarm action. One police officer had run past her, heading towards Collins Street. As she was throwing the boots she accidentally hit the second police officer. The female officer said that she was under arrest. She asked, "What for?" The officer replied, "You assaulted a police officer". She did not have enough time to apologise until they got to the police station. The incident did not occur near Centrepoint. The place where she took her shoes off was between 808 and the Liverpool Street lights. Under cross-examination she said that she had been drinking vodka and Red Bull. She said she did not think that the police were chasing her partner. She denied saying, "You wouldn't have caught him anyway."
Mr Purdon's evidence differed from the evidence of the respondent. It was to the following effect. He said that the group arrived in the city between 10.30pm and midnight. He described going to bars on the waterfront, but that was inconsistent with the respondent's version of their movements. He said that his group left 808 to avoid tension, and walked towards Centrepoint. Before they got to the first set of traffic lights (at Liverpool Street) there was a bit of a confrontation with another group. Police officers arrived and were running down the street. The respondent started to lean down to take her high heels off. She stood up after taking her shoes off, looked at him, and asked if he knew where Aaron was. He replied, "No." Then the respondent went to underarm pass her shoes towards him. As she reached the end of her underarm swing, he saw a female officer running past, and contact occurred. He then saw that the respondent was being held by the police. He thought that there was not much he could do in that situation, and went off to look for Aaron. He said the incident occurred on the first corner, obviously referring to the corner of Liverpool Street. Under cross-examination he said that he had had less than six standard drinks. He also conceded that he was slightly intoxicated. When cross-examined about the incident and its location, he said that the respondent was nearly halfway across the road (referring to Liverpool Street) when she began to throw her shoes. He said that he was forward of her, on the other side of the intersection. If he was correct about that, then Constable Winfield-Peterson was crossing Liverpool Street when she was struck.
In the course of giving their evidence, the witnesses drew diagrams and demonstrated physical movements. The diagrams have not been preserved or recorded in any way. The physical movements were generally not described orally for the purposes of a subsequent transcript. However I do not consider that the unavailability of information as to the diagrams and demonstrated movements has impaired my ability to assess the strengths and weaknesses of the evidence to any significant degree.
At the conclusion of the evidence there was a brief adjournment, after which the learned magistrate gave his decision orally. He summarised the charge and the evidence. In the course of that summary he made one mistake. He said that Senior Constable Hardman "had no independent memory of the events" and that he had read Constable Winfield-Peterson's statement to assist him with his memory. In fact Senior Constable Hardman had given evidence that he did have an independent memory of the events. He said that twice – once in answer to a question from the respondent's counsel, and again in answer to a question from the learned magistrate. However he also said that he had read Constable Winfield-Peterson's statement because it was "more contemporaneous" than his, and because he believed that it would assist him in refreshing his memory of the incident.
After summarising the evidence, the learned magistrate reasoned as follows:
"… it seems to me that the only possible suggestion that might support the prosecution view of any particular motive would be her [the respondent's] belief that the police were chasing her partner, however it was her evidence and Mr Purdon's evidence that she was unsure where her partner was.
The description given by Constable Winfield-Peterson and Constable Hardman was of an action by which … Ms Williams-Coates' right arm came around with the boots in them in a forward motion. That's not inconsistent with what Ms Williams-Coates said in her evidence. The difficulty I have is that the corroboration of her version is at such great odds that it really doesn't match her version and even if I was to transport where this all occurred, it wouldn't have matched the way in which the police were running at the time.
While it is a strong prosecution case and I was listening to the evidence given by Ms Williams-Coates and in her cross-examination and notwithstanding the lack of corroboration I am going to give her the benefit of the doubt. The matter is not made out and it is dismissed."
This motion can succeed only if I am satisfied that, on the evidence before him, the learned magistrate could not, as a reasonable person, have come to the conclusion that the charge was not proved beyond reasonable doubt: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Caccavo v Collins [2014] TASFC 7, 23 Tas R 384.
In Phillips v Arnold at [47], Crawford CJ, with whom the other members of the Full Court agreed, said this about that test:
"In most cases an applicant for an evidence based review will find it a difficult test to satisfy. At the end of my judgment in Wood v Smith [[1991] TASSC 12, 14 MVR 279] I commented that 'when a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it'. That comment was based on experience and reflection but, of course, was not a statement of principle."
A number of observations can be made in relation to the learned magistrate's reasoning:
·     Because of the nature of the conflicting pieces of evidence, the outcome of the case depended upon assessments as to the credibility of the four witnesses and their evidence.
·     No demeanour based findings were made by the learned magistrate.
·     The only comment made by the learned magistrate that reflected adversely upon the credibility of either of the two prosecution witnesses was the one I have quoted in relation to Senior Constable Hardman's memory. That comment shows that that the learned magistrate made a mistake as to the evidence. It was a mistake that could only have operated in favour of the respondent.
·     The learned magistrate treated the evidence of Mr Purdon as unreliable.
·     The learned magistrate regarded the prosecution case as strong. He therefore needed to decide whether he had a reasonable doubt. His comment that he was going to give the respondent the benefit of the doubt should be interpreted as meaning that, whilst the evidence of the two police officers was strong, he was left with a reasonable doubt as to the respondent's guilt.
It can be inferred that the police officers were both sober. The respondent had been drinking for about 3½ hours. There were no significant inconsistencies between the evidence of the two officers. The evidence of the respondent was inconsistent with that of both officers as to where the incident occurred, the direction of travel of the two officers, and whether Constable Winfield-Peterson had another officer running ahead of her. The respondent's evidence that she did not have an opportunity to apologise until she got to the police station was simply unbelievable. Neither she nor Mr Purdon gave evidence that she apologised or made any sort of exculpatory statement at the scene after the constable was struck. One would expect an apology and an explanation if the striking had been unintended and accidental. Words like, "Sorry, I didn't mean to hit you" are not hard to say. Neither the respondent nor Mr Purdon gave any evidence of the respondent asking him to look after her boots. Becoming separated from one's boots at 3.30am on a winter night in Hobart is generally not a good idea. It is therefore quite unlikely that the respondent would have decided to give them to Mr Purdon and then go looking for her partner on her own. If she had made such a decision, it is likely that she would have spoken to Mr Purdon about it. And it is likely that she would have handed him the boots, rather than throwing them. She had a motive for striking Constable Winfield-Peterson with the boots if she believed that the constable was chasing her partner.
As the Full Court made clear in Phillips v Arnold and Caccavo v Collins, a motion to review does not involve a rehearing. It is not open to me to make my own findings of fact and substitute them for those of the learned magistrate. I have to decide whether the learned magistrate's conclusion that he had a reasonable doubt was a conclusion that no magistrate in his position could reasonably have come to after receiving the evidence that he received.
Minds might differ as to whether, in this case, the prosecution evidence was so strong and the defence evidence so weak that the only reasonable conclusion was that guilt had been proved beyond a reasonable doubt. However, with all due respect to the learned magistrate, I have come to that conclusion. Having regard to the matters referred to above, I consider that it was not open to the learned magistrate, as a reasonable person, to reach a conclusion to the effect that the charge had not been proven beyond reasonable doubt.
For these reasons, the motion to review will be allowed, the order dismissing the complaint will be set aside, and I will substitute a determination that the charge is found proven. I will hear counsel as to the disposition of the matter.