Haskett v Police - [2005] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HASKETT v POLICE
Judgment of The Honourable Chief Justice Doyle
17 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
An appeal against conviction recorded in the Magistrates Court on a charge of assault occasioning actual bodily harm - whether the charge was sufficiently proven on the findings of fact made by the Magistrate - appeal allowed.
R v Zampogna (2003) 85 SASR 56, distinguished.

HASKETT v POLICE
[2005] SASC 174
Magistrates Appeal: Criminal

DOYLE CJ: Mr Haskett was convicted by the Magistrates Court on a charge of assault occasioning actual bodily harm, after a trial in that Court. He appeals against the conviction.
Facts
The Magistrate did not make clear findings of fact about the incident in question. After a summary of the evidence, and indicating which witnesses he believed and did not believe, he found the charge proved.
Having heard submissions I am satisfied that, except where indicated, the following summary is uncontentious.
On 1 June 2003 Mr Haskett was a passenger in a car being driven by Ms Todd. About 6 am Ms Todd’s car nearly collided with a motor car being driven by Ms Cunningham. Mr Cranwell was a passenger in that car. In the course of avoiding the near collision, Ms Todd ran her car off the road.
Mr Haskett got out of Ms Todd’s car, and walked a short distance to Ms Cunningham’s car. He was very angry because he believed, probably correctly, that her carelessness had nearly caused a serious accident. He spoke angrily to Ms Cunningham. He asked her for her driver’s licence. She handed it to Mr Cranwell, who passed it to Mr Haskett. Mr Haskett then began walking back to Ms Todd’s car. Ms Todd was upset, and he wanted to comfort her.
Ms Cunningham was concerned that her driver’s licence might be taken. Mr Cranwell walked towards Ms Todd’s car. Mr Cranwell asked Mr Haskett for Ms Cunningham’s licence. Mr Haskett spoke angrily to Mr Cranwell. Mr Haskett threw the licence on the ground.
It was part of the Prosecution case that the licence, in the form of a plastic card, was snapped in half by Mr Haskett. That was denied by Mr Haskett.
Mr Cranwell claimed that when he bent down to pick the licence up Mr Haskett hit him in the head several times with a rock held in his hand. Mr Cranwell says that he fell to the ground, and that his head was bleeding. Then he says that he was hit or kicked while lying on the ground. He said that Ms Cunningham helped him return to his car and took him to hospital.
Ms Cunningham said that she also got out of her car, and began to follow Mr Cranwell towards Ms Todd’s car. However, she turned back to move her car. She heard a noise, and when she turned around she saw Mr Cranwell on the ground, and Mr Haskett kicking him three times in the area of the forehead. She retrieved her licence from the ground. It was in two parts. She took Mr Cranwell to hospital.
Mr Haskett admitted the angry scene, that he had Ms Cunningham’s licence, and that he threw it on the ground. He denied snapping it in half. He denied making any physical contact with Mr Cranwell. He said that Mr Cranwell and Ms Cunningham simply drove away from the scene.
Evidence was given by a doctor on duty at the Flinders Medical Centre that morning. He found three lacerations on the top of Mr Cranwell’s scalp. They must have been significant lacerations, because according to Mr Cranwell he had about 22 stitches in all put into them. The doctor found two pieces of gravel in the lacerations. The lacerations were relied upon by the Prosecution as bodily harm for the purposes of the charge, as they clearly were.
The Magistrate’s reasons
The Magistrate found Ms Cunningham to be an impressive and reliable witness. He accepted her evidence. The central part of his reasons is in the concluding paragraphs at [56] – [59]:
I am satisfied that what Ms Cunningham said happened in relation to the assault. I disbelieve the defendant on that crucial issue.
The prosecution, however, have alleged that the young man, Cranwell, was hit with a rock and was then kicked and their case is, from Cranwell’s point of view, he was kicked about the chest and from Cunningham’s point of view that he was kicked in the head.
I am satisfied beyond reasonable doubt that Benjamin Cranwell was kicked in the head on three occasions. I am not satisfied as to how he came to be on the ground when Cunningham turned around. As I said, I am satisfied that Cranwell was kicked to the head as Cunningham has said. I find that on a question of credit.
I therefore find the charge proved.
As this passage from his reasons indicates, he did not find that Mr Haskett struck Mr Cranwell to the head with a stone, before Mr Cranwell came to be on the ground. His reasons indicate that he did not necessarily reject Mr Cranwell’s evidence. When referring to his evidence he said at [50]:
… There were aspects to his evidence, key aspects to his evidence which I have difficulty accepting and it follows that I therefore must have difficulty in accepting proof beyond reasonable doubt.
So, although he must have accepted most of Mr Cranwell’s evidence, he did not accept this part of his evidence as proof beyond reasonable doubt of the blows with the rock.
The Magistrate found Ms Todd, who was called for the Defence, to be quite unreliable. She was not telling the truth. He summarised the evidence given by Mr Haskett, but did not say much about its acceptability. However, he said at [54] that Mr Haskett “played down his anger during his evidence”, and was not being “open and truthful”. He found that Mr Haskett snapped Ms Cunningham’s licence in half, contrary to Mr Haskett’s denial. As is apparent from the concluding part of his reasons, he rejected Mr Haskett’s denial that he kicked Mr Cunningham.
Issues on appeal
Before the Magistrate the Prosecutor opened the case on the basis that the Prosecution relied on the blows to the head and the kicks to the head in proof of the charge.
Mr White, who appeared before the Magistrate and before me, submitted to the Magistrate that the Prosecutor had to elect whether to rely on the alleged blows to the head or the kicks to the head while Mr Cranwell was on the ground. The Magistrate did not require the Prosecutor to elect.
Mr White argued on appeal that the Prosecutor was wishing to prove more than one offence, and that this was a case of objectionable latent duplicity. He referred to the decision of the Court of Criminal Appeal in R v Zampogna [2003] SASC 75; (2003) 85 SASR 56, for its reference to some of the cases on point.
I do not accept this submission. On the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than ten seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault.
Mr White argued that the Magistrate’s finding of guilt was unreasonable. The effect of his submissions was that the finding that the charge was proved was not reasonably open on the evidence. He also argued that the Magistrate made some unsupported findings.
It was common ground that while at the scene of the accident Mr Haskett telephoned a friend, Mr Stouppos, told him that he had been involved in an accident and asked him to come to the scene of the accident to help him. Mr Cranwell and Ms Cunningham gave evidence of hearing Mr Haskett make the telephone call, and so, on their evidence, it must have happened while they were at the scene. In a statement to police, Mr Haskett had said that he made the phone call after they left the scene. The correctness of that statement was challenged when he was cross-examined. He did not simply admit that he was wrong, but did agree that the statement to the police might be wrong, and acknowledged that he was no longer sure just when he made the phone call. The Magistrate referred to this matter saying at [43]:
… when it comes to a question of credibility, as it will in the end, he never was frank enough to say, “Well, thinking about it now, what I said to the police must be wrong”.
Mr White said that this was “a stinging criticism” and was not fairly made. I do not agree that it was a stinging criticism. I agree that the apparent error in the statement to the police is a minor matter, and that Mr Haskett came close to acknowledging an error. However, what the Magistrate said was by no means a stinging criticism of Mr Haskett. It was no more than a passing comment. The Magistrate did not mention the matter again.
The Magistrate said at [54]:
The defendant gave evidence and he made some reference to the fact that he was angry but he, in my view, played down his anger during his evidence. In my view he was not being open and truthful. He clearly was angry and he probably had every right to be angry as to what happened on this particular evening.
Mr White referred me to evidence by Mr Haskett in which he admitted that he was angry, that he used aggressive language towards Mr Cranwell and Ms Cunningham, and that he threw Ms Cunningham’s driver’s licence at Mr Cranwell. I agree that the Magistrate appears to have overstated things in the passage just cited, but I must bear in mind that Mr Haskett’s demeanour when giving evidence may have been relevant as well. I regard this as a relatively minor matter.
Mr White attacked the finding that Mr Haskett had snapped the driver’s licence in half. But there was clear evidence of that from Ms Cunningham. It was open to the Magistrate to accept this evidence.
I do not accept the submission that the Magistrate’s rejection of Ms Todd as a reliable witness was not justified. The reasons that he gave for doing so support his finding. The fact that she was badly shaken and upset at the time of the incident cannot explain the matters on which the Magistrate relied.
Ms Cunningham did not report the incident to the police until Ms Todd contacted Ms Cunningham claiming the cost of repairs to her car. Mr White argued that this undermined her credit. The Magistrate considered this aspect of the matter and was satisfied with Ms Cunningham’s explanation. He was entitled to accept the explanation that she gave.
I do not accept Mr White’s submission that the doctor’s finding of gravel in the head wounds gives rise to any difficulty with the Magistrate’s finding. On the evidence Mr Cranwell was lying on his back on the side of the road. If at that time he was kicked to the head, gravel could have easily got into the wounds.
The submissions by Mr White do not provide any basis for holding that the Magistrate was not entitled to make the finding that he made.
Mr White’s final point has more substance to it.
I have set out the crucial part of the Magistrate’s findings. There is no finding there that the lacerations to Mr Cranwell’s head were caused when Mr Haskett kicked him to the head. The significance of this is that Mr Cranwell had given evidence that he was struck to the head, two or three times, by Mr Haskett. He also gave evidence that could be read as meaning that he was bleeding from the head before he fell to the ground. The Magistrate was not prepared to make a finding beyond reasonable doubt on the basis of this evidence from Mr Cranwell, but nor did he reject the evidence.
Mr White submits that it is reasonably possible that the head wounds were caused at an earlier stage of the incident, and that if that is so the Magistrate could properly find Mr Haskett guilty of nothing more than an assault. He was guilty as charged only if the assault charged caused actual bodily harm. If the actual bodily harm occurred at an earlier stage of the incident, and not as part of the assault, then the more serious charge was not made out.
I accept that submission. If Mr Cranwell had not given evidence about the blows to the head before he was on the ground, the inference that the head injuries were suffered while Mr Cranwell was on the ground would be irresistible. That would be the only possible explanation for them.
However, as things stand, there is evidence that could lead to a conclusion that the head injuries were suffered before Mr Cranwell was kicked to the head. That evidence, from Mr Cranwell, was not acted on by the Magistrate, but nor has it been rejected. It cannot be said that it is not a reasonable possibility.
It would, of course, have been open to the Magistrate to find beyond reasonable doubt that the head injuries were sustained in the course of the kicking. But the difficulty is that there is no finding at all on the point in the Magistrate’s reasons. Tempting as it is to say that the Magistrate must have intended to so find and did so find, the fact is that his reasons are quite silent on the matter.
It is not appropriate for me to make the finding of fact required, having regard to the Magistrate’s doubts about the relevant part of Mr Cranwell’s evidence.
For those reasons I allow the appeal, set aside the conviction for assault occasioning actual bodily harm, and order that a conviction be substituted for the offence of common assault.