HOLBERRY v Police - [2020] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOLBERRY v POLICE
[2020] SASC 62
Judgment of The Honourable Justice Livesey
17 April 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against conviction.
The appellant was charged with aggravated assault. It was alleged that he had assaulted his neighbour by grabbing and hitting her in a driveway on her shoulders, back and knees, pulling her hair and then placing her in a headlock before dragging her onto the roadway. The appellant was hit by the complainant. The aggravating feature of the offence was the appellant's use of an offensive weapon, a garden pole, to hit the complainant.
The matter proceeded to trial in the Magistrates Court. The prosecution called the complainant and a neighbour who witnessed the incident. Photographs of the appellant and the complainant evidenced only some injuries to the complainant.
In his reasons for decision, the Magistrate separately addressed the questions of demeanour and honesty from reliability in the evidence of the complainant and the neighbour. He discounted aspects of their evidence where there was inconsistency. Despite this, the Magistrate was satisfied beyond reasonable doubt that the appellant had struck the complainant in the head and face area on more than one occasion, and that he struck her across the back and shoulders with the garden pole more than once. The appellant was found guilty as charged.
In this Court, the appellant submitted that the Magistrate erred in finding the charge proved beyond reasonable doubt because the prosecution witnesses were unreliable as to critical aspects of their evidence. More particularly, the appellant submitted that the Magistrate’s findings were premised on a selective approach to their evidence which was not supported by other objective evidence, including the photographs taken of the appellant and the complainant. The respondent contended that there was no reason to doubt the Magistrate’s findings.
Held, dismissing the appeal; it was reasonably open to the Magistrate as the trier of fact to be satisfied beyond reasonable doubt about the offence of aggravated assault.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20; Magistrates Court Act 1991 (SA) s 42; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
M v The Queen (1994) 181 CLR 487, applied.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Pell v The Queen [2020] HCA 12; R v Taylor [2014] SASCFC 112, considered.

HOLBERRY v POLICE
[2020] SASC 62
Magistrates Appeal: Criminal
LIVESEY J:
Introduction

This is an appeal against a conviction by a Magistrate of a charge of assault on 3 March 2018 at Seaford Rise contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
The offence was charged as an aggravated offence under s 5AA(1)(b) of the Act because it involved the use of an offensive weapon being a garden pole.
The appeal
The appellant was convicted following a two-day trial on 5 December 2018 and 8 August 2019. Reasons dated 19 December 2019 were delivered on the day of conviction.
The appeal is available as of right under s 42(1) of the Magistrates Court Act 1991 (SA). The parties were agreed that the appeal is by way of rehearing,[1] and this Court is required to reconsider the materials before the trial court and “make up its own mind”, albeit without disregarding the judgment under appeal.[2] Whilst the Magistrate had the considerable advantage of seeing the witnesses and of assessing their demeanour, that is not necessarily decisive, still less determinative of this appeal.[3]
[1]    Magistrates Court Act 1991 (SA), s 42(1); Supreme Court Civil Rules 2006 (SA), r 286(1). See generally, Police v Cadd (1997) 69 SASR 150, 189 (Lander J); Sharman v Police [2015] SASC 159, [15] (Vanstone J).
[2]    R v Taylor [2014] SASCFC 112, [18] (Stanley J, with whom Kelly and Peek JJ agreed) regarding s 42(5) of the Magistrates Court Act 1991 (SA). See also Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 93 ALJR 993.
[3]    Fox v Percy (2003) 214 CLR 118, [31]-[32] (Gleeson CJ, Gummow and Kirby JJ); Pell v The Queen [2020] HCA 12, [37]-[38] (the Court).
However, an appeal court is not obliged to, and ought not, allow an appeal unless some miscarriage of justice is demonstrated.[4]
[4] Gazepis v Police (1997) 70 SASR 121.
An extension of time was required for the institution of the appeal, but this was not opposed.
The appeal ground
The sole ground of appeal is that the Magistrate erred in finding the charge proved beyond reasonable doubt where he “found the witnesses to be unreliable in relation to critical aspects of their evidence”.[5]
[5] Notice of Appeal dated 12 February 2020 (ground 3.1).
The appellant’s written submissions dated 6 April 2020 clarify that the “appeal is particularly concerned with the evidence of the witnesses Ms Smith and Ms Brodie as it compares to the ultimate findings made by the Magistrate”. It is contended that the findings are “ultimately premised on a selective approach to their evidence” which is “not supported by other objective evidence”.[6]
[6] Appellant’s written submissions dated 6 April 2020, [10].
The appellant highlights these inconsistencies and “the more limited findings made by the Magistrate” which “make it easier to reconcile the finding of guilt with the lack of physical evidence of the assault” but, the appellant contends, “the more one accepts the evidence of Ms Smith and Ms Brodie, the more problematic this becomes”.[7] Whilst the Magistrate acknowledged that he could not rely on “certain aspects of their evidence”, it is contended that these were “not minor details but significant aspects of their evidence”, being the “number of punches or strikes with the pole”.[8]
[7] Appellant’s written submissions dated 6 April 2020, [11].
[8] Appellant’s written submissions dated 6 April 2020, [32].
Ms Smith is the victim of the assault and Ms Brodie is a neighbour of both the appellant and the victim, who witnessed aspects of the assault, initially from the front doorway of her property.
The appellant particularly emphasises the photographic evidence, exhibits P1 and D1, which depict some injuries to Ms Smith but, importantly, no injuries to her or the appellant in areas where visible injuries might have been expected if the accounts of Ms Smith and Ms Brodie were accurate.
The trial
In order to determine this appeal one must start with the findings made by the Magistrate at [179] of his reasons:
179. I’m satisfied beyond reasonable doubt that:
a.   The defendant approached Ms. Smith from behind while she was on the lawn bending over to pick up cigarette butts.
b.   There was a struggle during which the defendant struck Ms. Smith with a closed fist to the head and face area on more than one occasion.
c.   During this struggle, the defendant generally pulled Ms. Smith from the lawn on the driveway and around the corner.
d.   That once around the corner the defendant took hold of a garden pole and struck Ms. Smith across the back and shoulder area with it on more than one occasion.
These findings reflected what Mr Mead SC described as “the lowest common denominator”, or as Mr Preston put it, “the common threads” in the evidence of Ms Smith and Ms Brodie. The Magistrate arrived at these findings after a thorough review of the evidence.
In outline, and as emphasised by the appellant on the hearing of the appeal, Ms Smith walked over to Ms Brodie’s front lawn during the early evening of 3 March 2019 in order to pick up cigarette butts (which she described as “bumpers”) for smoking later. As she was doing that she was grabbed and hit from behind, but managed to hit her assailant back and “would have got him a couple”.[9] She was hit on the back of the shoulders, the lower back and her knees were “grated” as she was grabbed by her hair.[10] Ms Smith said that she hit her assailant across the face “and whatever else I could do at that time” once she was dragged onto the street.[11] She was held in a headlock as she was being dragged.[12] She was also grabbed by the hair. She said that she was hit once or twice by the assailant’s fist.[13] This was to the right side of her face.[14] After she was dragged around the corner Ms Smith said that her assailant picked up a big pole “and started poling me across the back and me shoulders”[15] whilst she was on the ground. She was hit four or five times at least.[16]
[9] T4.32.
[10] T5.2, T7.12.
[11] T6.18-19.
[12] T6.37-38.
[13] T7.35.
[14] T8.5.
[15] T8.13-14.
[16] T9.34-35.
Ms Smith said that she recognised the appellant as her assailant because he lived nearby. However, she could give no reason for the attack.[17] In cross-examination Ms Smith emphasised that she hit the appellant at least two or three times,[18] and when asked, “[w]ere they good hits?” she said, “I hope they were”.[19]
[17] T11.10.
[18] T23.14.
[19] T23.9-10.
Ms Brodie said that her daughter alerted her to the assault and, when she got to her front doorway she looked through her security screen door and saw “Dave standing over Carla, punching her repetitively in the head and back and shoulders”.[20] They were about three or four metres from her front door.[21] She saw that Ms Smith was trying to break free but was unable to, and was then dragged across the front lawn onto the street and down the roadway.[22] After they disappeared around the corner Ms Brodie stepped to the corner of her side neighbour’s fence, looked around and saw that the appellant was hitting Ms Smith with a log.[23] When asked how many times she saw the appellant hit Ms Smith with a closed hand she said “[a] lot. I can’t say exactly, but it was about 20 to 30 times or more”.[24] She saw that the appellant was dragging Ms Smith by the arm and hair,[25] and he was “pretty quiet” but Ms Smith was screaming and crying, “I think she was just in a panic”.[26] She saw that Ms Smith stumbled and grazed her knees but the appellant continued to drag her up the road. She then saw that the appellant had a log in his right hand and he started to hit Ms Smith over the head. She said it was like a “perma-pine post”[27] that was over a metre long and “probably, about 10 centimetres in diameter”.[28] Ms Brodie said that she saw the appellant hit Ms Smith three times but it may have been more.[29] She saw that there was “blood everywhere”.[30]
[20] T39.33-34.
[21] T39.36-37.
[22] T40.5-8.
[23] T40.15-17.
[24] T41.11-12.
[25] T41.24.
[26] T41.29-31.
[27] T42.22.
[28] T42.33-34.
[29] T43.19.
[30] T43.33.
Constable Hausler gave evidence that he attended the scene of the assault in response to a call with emergency lights and sirens activated. He observed that Ms Smith was seated on the ground in a driveway with scrapes to both knees and scratches to both inner arms. She complained of a lump to the back of her head which he felt. An ambulance arrived about 10 minutes later but Ms Smith declined assistance.[31] Constable Hausler did not say that he saw any injury to Ms Smith’s lower back.[32] He did not see any injuries to the appellant.[33]
[31] T13.15; Magistrate’s reasons, [31].
[32] T71.4. It was agreed that he did not see any injury to her lower back.
[33] T75.8.
The following day photographs were taken of Ms Smith. The photographs of Ms Smith showed areas of grazing and laceration to the left and right knees, some marks on the left side of her chin, a darkened area to the left side of the neck and a lump near the neck and shoulder area.[34] Photographs of the defendant revealed no discernible marks on his skin.[35]
[34] Exhibit P1; Magistrate’s reasons, [108].
[35] Exhibit D1, Magistrate’s reasons, [126].
The appellant gave evidence at trial to the effect that he had previously sustained a serious right shoulder injury and was physically incapable of lifting a pine post with one hand.[36]
[36] T77.21-23, T86.5-6, T85.22-23.
The appellant explained that he believed that someone had stolen eggs from his chickens in his backyard, and he believed that the thief was a man by the name of Adam who visited Ms Smith’s home. So, in the early evening of 3 March 2018 he took three eggs from his fridge, walked to the corner and then threw them at Ms Smith’s house. He said that after throwing the eggs he walked back towards his house. That was when he was confronted by Ms Smith. There was then an argument about the eggs, Ms Smith was being aggressive and then said, “well, go on then. Hit me. Go on, hit me”.[37] He then described putting his arms up in the air in defence and trying to avoid Ms Smith who was yelling and screaming. He said that he ran towards his house at a slow jogging pace, but heard Ms Smith coming from behind before she fell over. She was still screaming at him.[38]
[37] T83.13-14.
[38] T83.31-33, T84.3, T84.5-6.
Dr John Meegan gave evidence about examinations conducted of the appellant. The first was in 1998 following a motor accident in 1996. The second was in 2019. He described a dislocation of the appellant’s right AC joint with a full thickness superior displacement at the lateral end of the clavicle relative to the acromion with widening of the joint space and soft tissue calcification and ossification adjacent to the inferolateral aspect of the clavicle. He was given a history of pain and restriction. He expressed the opinion that the appellant would have been unable to undertake the activities described to him in one continuous incident. However, Dr Meegan also said that he could not exclude that the appellant could perform the tasks alleged depending upon his emotional state or anger, including the presence of adrenaline as a contributing factor.
The Magistrate’s findings
After directing himself about the burden and standard of proof, and the approach required regarding the evidence in his written reasons (none of which is criticised) the Magistrate found that Ms Smith and Ms Brodie were honest witnesses.[39] He then separately addressed their reliability as witnesses.[40] I shall soon discuss that aspect of his reasons.
[39] Magistrate’s reasons, [166], [168].
[40] Magistrate’s reasons, [167], [169]-[172].
The Magistrate accepted the evidence of Constable Hausler and Dr Meegan as being both truthful and reliable, but did not regard the evidence of Dr Meegan as causing him to entertain any reasonable doubt about the evidence of Ms Smith and Ms Brodie.[41]
[41] Magistrate’s reasons, [165], [178].
The submissions on appeal
On the hearing of the appeal the appellant submitted that the Magistrate had allowed his favourable credit findings, based as they were on demeanour, to influence impermissibly his approach to the reliability of the evidence of Ms Smith and Ms Brodie.
The appellant contended that not only were there significant inconsistencies between these witnesses, but their evidence was also inconsistent with the objective evidence represented by the photographs.
In particular, the photographs of Ms Smith did not demonstrate the range of injuries that one would have expected if the accounts given by Ms Smith and Ms Brodie were accurate and, equally as important, the photograph of the appellant depicted no injuries whatsoever despite what Ms Smith said about the blows she delivered to his face.
The appellant contended that the Magistrate had been impermissibly selective in his approach to the evidence, and the inconsistencies between the witnesses, as well as with the photographic evidence, should have resulted in the finding that guilt had not been proved beyond reasonable doubt.
The appellant relied upon the observations of Kirby J in CSR Ltd v Della Maddalena as follows:[42]
Even in the case of expressed credibility findings, the statutory duty to conduct a real “rehearing” remains. It may sometimes justify reversal of a decision by a primary judge who has “failed to use or has palpably misused his advantage” or where “incontrovertible facts or uncontested testimony” demonstrates the findings to be erroneous; or where they are “glaringly improbable” and “contrary to compelling inferences”.[43]
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It “will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it”.[44]
[42] (2006) 80 ALJR 458, [21]-[22] (Kirby J with whom Gleeson CJ agreed).
[43] Fox v Percy (2003) 214 CLR 118, [28]-[29], [66], [148]. Cases treated as turning on credibility findings include Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599.
[44] Warren v Coombes (1979) 142 CLR 531, 551. See, eg, Voulis v Kozary (1975) 180 CLR 177; Fox v Percy (2003) 214 CLR 118; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572.
For the police, it was submitted that the events were obviously fast moving and upsetting to both Ms Smith and Ms Brodie. This, it was submitted, explained why there were inaccuracies. As it was contended by the police on appeal, the “commonality” between the evidence of Ms Smith and Ms Brodie was clear, for both witnesses described:
1Punches by the appellant to the neck and back of Ms Smith;
2The appellant grabbing the hair of Ms Smith and dragging her from the front lawn of Ms Brodie to the street and, as this was occurring, Ms Smith endeavouring to defend herself and injuring her knees; and
3The appellant then using the garden pole to hit Ms Smith on more than one occasion.
It was emphasised that this was not a case where it was simply a matter for the appellate court to draw inferences, it was a “demeanour case” and there was no reason to doubt the findings made by the Magistrate.
Disposition of the appeal
On the hearing of the appeal it was accepted that the ultimate question was whether it was “not reasonably open” to the Magistrate to be satisfied beyond reasonable doubt of the commission of the offence of aggravated assault.[45] Unlike the recent case of Pell v The Queen, this appellant is not assisted by the existence of a body of evidence which is unchallenged and which necessarily calls into question the reliability of the evidence given by the complainant and Ms Brodie.[46]
[45] M v The Queen (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJ).
[46] [2020] HCA 12, [54]-[58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Rather, this is a case where, though the Magistrate based his findings of honesty on the demeanour of the witnesses (including his rejection of the appellant’s account), he separately and distinctly addressed the question of reliability.
In the case of Ms Smith, the Magistrate found her generally reliable but, given the fast-moving, dynamic event, which was both unexpected and which stunned her, he could not accept her evidence about the exact number of punches, nor about the exact number of strikes with the pole, save to say that she was struck in the head by the appellant with his fist on more than one occasion, and that she was struck by the appellant with the pole on more than one occasion:[47]
My inability to rely on her evidence on these two aspects does not alter my view that she was an honest witness and generally reliable.
[47] Magistrate’s reasons, [167].

Likewise, with Ms Brodie the Magistrate addressed separately and distinctly the question of her reliability and took pains to “reassess the entire evidence of Ms Brodie carefully” in light of changes in the course of her evidence and the criticisms made of it by the appellant at trial.[48] As with Ms Smith, he accepted that Ms Brodie was observing a “fast moving and upsetting event” but he was nonetheless prepared to accept that she observed Ms Smith being struck in the head with a clenched fist on more than one occasion, and that she saw Ms Smith being hit with the pole “on more than one occasion”.[49] This was the extent to which the Magistrate was prepared to rely upon her account.[50]
[48] Magistrate’s reasons, [169].
[49] Magistrate’s reasons, [171].
[50] Magistrate’s reasons, [170]-[171].
As for the photographs, whilst one might, as it was put in argument, as a matter of “common experience” expect that there would be some sign of injuries to the areas of the body described by Ms Smith and Ms Brodie, that is an assumption which is far from immutable. There may be all sorts of reasons why there was no sign of various injuries to Ms Smith and the appellant when photographs were taken the day after the assault.
Those explanations include that there may have been variations in the force with which blows were landed (whether by Ms Smith or by the appellant) and, so far as the appellant is concerned, Dr Meegan’s own evidence suggested that he might have had difficulty using his right arm. Consequently, one might well expect that his blows had less effect than might otherwise be assumed. The photographs do not represent “incontrovertible evidence” which necessarily calls into question the evidence of Ms Smith and Ms Brodie in the sense explained in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq).[51]
[51] (1999) 73 ALJR 306, [4] (Gaudron, Gummow and Hayne JJ).
I accept that it is somewhat disquieting that Ms Smith did not mention the apparent problems between her household and the appellant’s but, as was acknowledged on appeal, motive is not an essential element of the offence.
Conclusions
As I have explained, it is significant that the Magistrate in this case separately addressed the questions of demeanour and honesty from reliability in the case of both Ms Smith and Ms Brodie. Clearly, whilst he was impressed by their demeanour and honesty he did not allow that to control his approach to their reliability. And, in a manner that was favourable to the appellant, he discounted those elements of their evidence where there was inconsistency between Ms Smith and Ms Brodie. Whilst it might have been better had he explicitly acknowledged the risk that their accounts might have been affected by an element of exaggeration or animosity toward the appellant, the approach he adopted had the effect of disregarding those elements of the evidence which might possibly have been affected in this way.
In short, he was entitled as the trier of fact to find beyond reasonable doubt that the broad thrust of what Ms Smith and Ms Brodie described did occur. By making findings that only accepted the essential and common aspects of the evidence of both Ms Smith and Ms Brodie, witnesses whom he found to be both honest and endeavouring to assist him, he committed no error and there has been, in my opinion, no miscarriage of justice.
On the evidence it was, in my opinion, reasonably open to the Magistrate to be satisfied beyond reasonable doubt of the commission of the offence of aggravated assault.
I dismiss the appeal.