Heard v Police - [2009] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEARD v POLICE
[2009] SASC 319
Judgment of The Honourable Justice David
15 October 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeal against conviction - appellant convicted of two counts of intentionally applying force - whether the magistrate erred in finding the accused guilty of both counts - whether the magistrate erred by finding the element of harm proved on count 1 - whether the magistrate erred by finding the aggravating factor on count 2 proved beyond reasonable doubt.
Held: appeal dismissed on all grounds.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
M v The Queen (1994) 181 CLR 487, discussed.

HEARD v POLICE
[2009] SASC 319
Magistrates Appeal

DAVID J This is an appeal against conviction. The appellant was charged on complaint with two offences.
The first was that at Renmark on 19 June 2008 he intentionally applied force to Stephen John Abrook and therefore caused him harm. This offence was allegedly aggravated by the use of an offensive weapon, namely a stick. The offence was contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
He was also charged on the same date at the same place on the grounds that he intentionally applied force directly to Tristan Ronald Brian Jackson. It was alleged that this offence was aggravated by the use of an offensive weapon, being the same weapon as in the first count. This offence was contrary to s 20(3) of the Act.
The matter was heard before a magistrate. The appellant was convicted of both counts. He now appeals against those convictions.
Trial
The complainant, Stephen Abrook (count one), is married to the mother of the complainant, Tristan Jackson (count two). He is therefore Tristan Jackson’s stepfather. On 19 June 2008 (the date of the alleged offending) Tristan Jackson was going out with Jessica Lee Forrest‑Heard. The appellant is a partner of Jessica’s mother. At that time Jessica was aged 16 and had moved out from her mother and partner’s home to live with Tristan Jackson and his mother and stepfather. She had done this four days previously, on 15 June 2008.
On the evening of Friday, 19 June 2008, Stephen Abrook went to Woolworths in the Renmark Plaza to meet Tristan and pick up Jessica, who was working there. He met both Tristan and Jessica and they were walking towards his parked car. They were approached by Jessica’s mother, Belinda Forrest‑Heard, who wanted Jessica to go to her grandmother’s place. There was an altercation between Jessica and her mother, in which Stephen Abrook said he did not want to be involved. He then gave evidence that the appellant came up and was abusing his son. He then threatened Mr Abrook with an object with which he hit him on his head, slightly concussing him. He realised he was bleeding. He told his stepson to get into the car. Jessica had departed towards the Renmark Plaza bottle shop, so they drove towards her. He then complained to a security guard and asked for the police and an ambulance to be called. The police eventually arrived. He then went to the Berri Hospital that night and butterfly strips were applied to a gash to his head which was caused by the blow. He said the weapon which hit him was some sort of baton.
In cross-examination it was put to him that he was not hit with any baton or weapon at all, and that the damage to his head was caused when he struck his head on the door of his car. He denied those assertions.
Tristan Jackson gave evidence about meeting Jessica and walking towards the car with Jessica and his stepfather. He saw both the appellant and Jessica’s mother approach them. He said he saw Jessica’s mother grab her right hand and try to pull her into the car she was in, but Jessica shrugged her off and there was a further physical altercation between the two. He then said the appellant got out of the car he was in and bent down and grabbed something from outside of the car. He said he did not see what it was, but the appellant approached with his left hand behind his back and walked towards their car. He then saw him crack his stepfather over the head with what he described as an object in his hand. He said that it was brown. At that time, according to Tristan’s evidence, Jessica had run towards the main entrance of Woolworths near the liquor store. He said that before she had done that her mother had been grabbing at her hair.
Tristan then gave evidence that the appellant threatened him and then poked him in the eye with his right hand index finger. That action was the subject of the second count. He said he also spat in his face.
It was put to him in cross-examination that he was never poked in the eye by the appellant. He denied that assertion.
Jessica Lee Forrest‑Heard gave evidence that she had left the home of her mother and her mother’s partner (the appellant) on 15 June 2008 and moved to live with her boyfriend Tristan Jackson and his mother and stepfather. She said that on 19 June 2008 she was at work at Woolworths. At the time she was aged 16 and pregnant. She finished work at about 8.00 pm. She met Tristan, and shortly before doing that, was talking to Atilla Djurdjinovic, who was also a friend. She walked towards Stephen Abrook’s car with he and Tristan, and was confronted by her mother who got out of a car. She wanted to take her to her grandmother’s place. There was an altercation between the two of them. She said that she saw the appellant get out of his car and appear to pick something up near the car, although she did not see what. She said that he then got up with his right hand behind his back and walked towards Stephen Abrook’s car. She said her mother then grabbed her hair and there were angry words between the two of them, and she then ran over to a security guard near the liquor store, away from the car. She saw Attila in that vicinity appearing to watch what was going on. She did not see the incident which was the subject of the charges.
Attila Djurdjinovic gave evidence that he saw the incident. He heard screaming and said he saw a man (presumably Stephen Abrook) get hit in the head with a stick. He did not know Jessica’s name, but saw a girl run towards Woolworths and saw the man with the stick walk to another car. He identified that person as the appellant.
A police officer, Adrian Ross, gave evidence of arriving at the scene and inspecting the injury to Stephen Abrook. He described it as an abrasion on his left front forehead. It was conceded at trial that no weapon was found.
The appellant exercised his right at trial not to give evidence. However, the defence at trial called Belinda Forrest‑Heard to give evidence. She gave evidence that her daughter Jessica was only aged 15 at the time she had left home and gone to live with Tristan. She then gave her version of the incident. She said the appellant and Tristan had words, she never saw anybody hit anybody else, and that included Stephen Abrook. However, she agreed in cross-examination that if an incident did take place where Stephen Abrook was hit with a stick and Tristan was poked in the eye by the appellant, she would not have seen it because it happened behind her while she was involved in an altercation with Jessica. However, she maintained there was no weapon in the car she was in that night and she asked the police to search it for that purpose. They did not do so, and consequently no weapon was found.
The case was clearly a factual dispute between the evidence of the witnesses called by the prosecution, namely Stephen Abrook, Tristan Jackson and Jessica Forrest-Heard, who said that Stephen Abrook was hit with a weapon and Tristan Jackson was poked in the eye. That was to be contrasted with the evidence of Belinda Forrest-Heard, who, although she could not say whether anybody was hit or not, nevertheless, she was adamant that there was no weapon available to be used.
The magistrate’s decision
The magistrate carefully analysed the evidence and carefully referred to matters going to the credibility of each witness. He found that Stephen Abrook was an impressive and truthful witness. He also found that Tristan Jackson was a truthful and accurate witness with an impressive demeanour. He did not rely on the evidence of Atilla Djurdjinovic as to what he observed. He said he did not disbelieve him, but there were aspects of his evidence about which he was doubtful, and he looked elsewhere for evidence to prove the prosecution case. He also accepted the evidence of Jessica Forrest-Heard, but that is not decisive of the issue because she had left when the incidents took place.
Appeal
There were three grounds of appeal. I deal with them in turn.
Ground 1
The Learned Magistrate erred in finding the accused guilty of both counts.
The basis of this ground is that the verdict was unsafe and unsatisfactory. I remind myself of the dictum of the majority in M v The Queen[1] which said that an appeal will only be allowed on the basis that the verdict is unsafe and unsatisfactory:[2]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[Citations omitted.]
The majority went on to say:[3]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
[1]    M v The Queen (1994) 181 CLR 487.
[2]    M v The Queen (1994) 181 CLR 487, 493.
[3]    M v The Queen (1994) 181 CLR 487, 494.
In his argument, counsel for the appellant, Mr Stewart, attacked the reasoning of the magistrate when dealing with his assessment of the credibility of the defence witness, Belinda Forrest-Heard. In his reasons on that topic he said:[4]
I was not impressed with Belinda Forrest-Heard. Her demeanour was poor, she attempted to minimise her behaviour towards Jessica, and she didn't mention trying to grab her by the hair and grabbing her by the hair. I have no doubt she was emotionally charged, distraught and irrational in that car park on 19 June, 2008.
Another quite clear example of Belinda Forrest-Heard’s hatred towards Stephen Abrook is that in examination in chief she couldn't wait to say that she didn't know Pam his wife, but that Stephen Abrook bashed his mother and raped his daughter. There was a partisan tone to her evidence and a certain spite and venom in wanting to announce this when there was no evidentiary foundation or relevance to this evidence. This was a gratuitous attempt to cast Mr Abrook in a bad light to show him as a person of bad character , yet Mr Richter did not even cross-examine on these topics.
Additionally Belinda Forrest-Heard agrees while she grabbed the wrist of her daughter and her bag, she never mentioned grabbing her by the hair. This was a poor attempt to mask her anger and her totally irrational behaviour in that car park. I consider Belinda Forrest-Heard’s actions are aptly summarised by the fact that Jessica kept calling her mother a “psycho bitch”. That instinctive response to her mother’s behaviour in the car park, adequately reflects Belinda Forrest-Heard’s behaviour on this night.
I concluded that were [sic] Belinda Forrest-Heard’s evidence conflicted with that of Stephen Aybrook, Tristan Jackson and Jessica Forrest-Heard, I accepted the prosecution witness evidence and rejected hers. Of course that fact that I am not prepared to accept Belinda Forrest-Heard’s evidence, does not mean the defendant is guilty. Her evidence is simply part of the total evidence in this case, but at the end of the day I still must be satisfied beyond reasonable doubt that the prosecution had proved its case against the defendant on one or both charges before I can find defendant guilty of one or both charges. The fact that I don't believe the defence witness, it does not follow automatically that the defendant is guilty. It simply means I reject that evidence.
[4] Police v Heard (Unreported, Magistrates Court of South Australia, Mr P B Snopek SM, 1 April 2009) [60]‑[63].
Mr Stewart argues that the behaviour of Belinda Forrest-Heard, as described by the witnesses and accepted by the magistrate, is not indicative of a lack of credibility but quite understandable. Mr Stewart argues that the magistrate has not taken into account that her daughter at the age of 15 was leaving home to live with the family of her boyfriend, and at the time was pregnant. Mr Stewart argues that such an attitude is understandable and the magistrate has erred in putting that down to bias as distinct from an understanding of the anger of the situation.
The magistrate has clearly found that Belinda Forrest-Heard behaved in an irrational manner on that evening. He has obviously accepted the evidence of Jessica about her mother’s actions. I agree with Mr Stewart that the fact she kept calling her mother a "psycho bitch" does not necessarily indicate that she was behaving irrationally. However, on the whole of the evidence, the magistrate was clearly of the view that she was in fact behaving irrationally. That was a finding he was entitled to make.
Mr Stewart also points out certain inconsistencies between the evidence of Stephen Abrook and Tristan Jackson. Without going into detail, there were differences in the alleged obscene language that was used by the appellant. Mr Jackson, who is part-aboriginal, alleged a racial slur and Mr Abrook gave no evidence of that. Mr Stewart argues that is a further basis for finding that the decision was unsafe and unsatisfactory.
Looking at the evidence as a whole, and making an independent assessment of it, but having due regard to the advantages the magistrate had in observing the witnesses, in my view, this ground must fail. The magistrate carefully analysed the evidence of all witnesses and made careful findings of fact, whilst directing himself carefully on the onus of proof. It is to be noted that the evidence of the sole defence witness could not directly contradict the evidence in relation to the incidence as to counts one and two, because she admittedly was not observing it due to a preoccupation with Jessica. Her evidence was really confined to whether there was a weapon used or not. I can see no reason to interfere with the magistrate’s findings of fact.
I dismiss that ground of appeal.
Ground 2 (in the alternative to ground 1)
The Learned Trial Magistrate erred by finding the element of “harm” proved on count 1
This ground was lightly argued. Mr Stewart argues that the evidence of injuries could not amount to harm. There was clear evidence that Mr Abrook suffered a cut to his forehead which required treatment in hospital and the application of sterile strips. It is to be noted that "harm" for the purposes of s 20 of the Criminal Law Consolidation Act 1935 (SA) is not defined. There is a definition in s 21 of the Act, but that applies to offences under Div 7A of that Act and s 20 is in Div 7. However on the ordinary meaning of the word the injury suffered by Mr Abrook clearly amounts to harm.
Ground 3 (in the alternative to Ground 1)
The Learned Trial Magistrate erred by finding the aggravating factor on count 2 proved beyond reasonable doubt.
On count 2 the magistrate found the following:[5]
In relation to count two I am satisfied beyond reasonable doubt:
1.That there was an application of force by the defendant to Tristan Jackson. In this case he hoped him in the eye with a finger and spat on him.
2.I need to be satisfied beyond reasonable doubt that the force was intentionally applied. I am satisfied that the Pope was intentional, as was the spitting.
3.I have to be satisfied that the poke and the spitting were unlawful. Once again there is no justification. The issue of self-defence does not arise nor any other lawful basis.
4.I need to be satisfied that it was aggravated by the fact the defendant had an offensive weapon at the time he assaulted Tristan. Well I am satisfied beyond reasonable doubt that he had the wooden object in his hand at the time he poked Tristan in the eye and spat on him, but I am also satisfied that the wooden object was not used to inflict any injury.
It follows that I also find count two prove beyond reasonable doubt. Accordingly the defendant will be convicted on both counts.
[5] Police v Heard (Unreported, Magistrates Court of South Australia, Mr P B Snopek SM, 1 April 2009) [83]‑[84].
Mr Stewart argues that as the assault which is the basis of ground 2 was a poke in the eye and not the use of a wooden object, there was no aggravation. Consequently there was an argument developed as to whether if that was so, and I upheld the appeal on that basis, I should substitute a finding of assault without aggravation or I should find the appellant not guilty of anything in relation to that count.
In my view, it is unnecessary to decide that question. Section 20(3) reads as follows:
…
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)     for a basic offence – imprisonment for 2 years;
(b)     for an aggravated offence (except one to which paragraph (c) applies) – imprisonment for 3 years;
(c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon – imprisonment for 4 years.
Section 5AA reads:
Aggravated offences
(1)Subject to this section, an aggravated offence is an offence committed in the following circumstances…
…
(b) the offender used, or threatened to use, an offensive weapon to commit, or when committing , the offence.
…
The magistrate found that the appellant had a wooden object in his hand at the time he poked Tristan in the eye. There is an abundance of evidence to support that finding. In my view, even though the wooden object was not used to actually hit or poke Tristan in the eye, the fact that he had it on him, having just used it on Stephen Abrook, clearly makes out the prerequisite of using or threatening to use an offending weapon pursuant to the above subsection.
I reject that ground of appeal.
For the above reasons I dismiss the appeal.