Hounslow v Police - [2016] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOUNSLOW v POLICE
[2016] SASC 119
Judgment of The Honourable Chief Justice Kourakis
4 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
Appeal against conviction.
The appellant was found guilty of one count of assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) against a Council Community Safety Officer. The circumstances of the offending were that the appellant pushed her and grabbed her left arm so tightly that it caused bruising.
The issue at trial was prior inconsistent statements that the complainant made, claiming that the appellant had grabbed her right arm. The Magistrate accepted the complainant’s evidence beyond reasonable doubt and rejected the appellant’s evidence.
The appellant appeals on a number of grounds: first, that the conviction was against the weight of the evidence, second, that the Magistrate erred in accepting the evidence of the complainant and rejecting the appellant’s evidence, third, that the Magistrate failed to give adequate reasons, fourth, that the Magistrate erred in taking into account a prior consistent statement of the complainant, and fifth, that the complaint and conviction were duplex.
Held, dismissing the appeal:
1. No error in the Magistrate’s reasons or decision has been established.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
Fox v Percy (2003) 214 CLR 118; Wellington v Police (2009) 105 SASR 215; Price v Williams (Unreported, Supreme Court of South Australia, Duggan J, 13 May 1993), considered.

HOUNSLOW v POLICE
[2016] SASC 119
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction for an offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
By his Notice of Appeal the appellant appeals on the grounds that:
·the conviction is against the weight of the evidence (ground 1);
·the learned Magistrate erred in accepting the evidence of the complainant and rejecting his evidence beyond reasonable doubt (grounds 2 and 3); and
·the Magistrate erred in failing to give adequate reasons explaining why he rejected the appellant’s evidence (grounds 4 and 5).
On the hearing of the appeal, the appellant was given permission to add the following grounds:
·the Magistrate erred in taking into account a prior consistent statement of the complainant (ground 6); and
·the complaint and conviction were duplex (ground 7).
The complainant, Ms Darbyshire, a Council Community Safety Officer testified that on 10 October 2014 at about 10.30 am she visited the appellant’s suburban home in Coromandel Valley to speak to him about a complaint received from a neighbour. The complaint was that the appellant had driven his motor vehicle over a Council reserve to gain access to his backyard. Ms Darbyshire testified that the appellant pushed her forcibly and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hounslow v Police

Details

AGLC: Hounslow v Police [2016] SASC 119
Case: [2016] SASC 119
Decision Date: 4 August 2016

CaseChat Overview and Summary

The appellant, Brenton Hounslow, appealed against his conviction for assault in the Magistrates Court of South Australia. The appeal was dismissed by the Supreme Court of South Australia. The complainant, Ms Darbyshire, testified that the appellant pushed her and gripped her left arm during an argument. The appellant’s conviction was based on Ms Darbyshire’s testimony, despite discrepancies in the documentary evidence and the appellant’s denial.

The legal issues before the court were whether the Magistrate erred in admitting Ms Darbyshire’s evidence over the appellant’s, and whether the conviction was duplex. The court needed to determine if the Magistrate’s decision to accept Ms Darbyshire’s evidence was open to him, and if the acts of pushing and gripping were inextricably connected for the purposes of the conviction. The court also needed to consider if the previous inconsistent statements by Ms Darbyshire could be explained as honest mistakes.

The court found that it was open to the Magistrate to accept Ms Darbyshire’s evidence in preference to the appellant’s, and that her evidence supported the conviction. The Magistrate’s reasons, though brief, indicated that he found the previous inconsistent statements to be explicable as honest mistakes. The previous consistent statement was only taken into account for evaluating the nature and significance of the previous inconsistent statement. The court also found that the conviction was not duplex, as the acts of pushing and gripping were temporally and purposively connected. Therefore, the appeal was dismissed.

The Supreme Court of South Australia dismissed the appeal against the appellant’s conviction for assault. The court held that the Magistrate was entitled to accept Ms Darbyshire’s evidence over the appellant’s, and that her evidence supported the conviction. The court also found that the previous inconsistent statements could be explained as honest mistakes, and that the conviction was not duplex. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss the appeal. It was open to the Magistrate to accept Ms Darbyshire’s evidence, in preference to the appellant’s, and her evidence once accepted supported the conviction. The Magistrate’s reasons were very brief but from them it appears that he found that previous inconsistent statements were explicable as honest mistakes. The previous consistent statement was taken into account only for the purpose of evaluating the nature and significance of the previous inconsistent statement as to which arm was held. The conviction was not duplex because the pushing of the complainant and the gripping of her arm were, temporally and purposively, inextricably connected. The evidence Ms Darbyshire testified that at the top of the appellant’s driveway, she called out for him by his first name, Brenton, which she knew from previous dealings with him. The appellant came to his front door. She informed him of the complaint she was investigating. Ms Darbyshire’s evidence was that the appellant became agitated and was rambling incoherently. After the appellant started to abuse her, he walked towards her with his right hand flat out and pushed her in the chest saying ‘look at me when I’m fucking talking to you’. He was so close that Ms Darbyshire could feel his breath. Ms Darbyshire testified that the appellant grabbed her ‘left arm with his right hand in like a vice like grip’, whilst making abusive remarks about the persons who had complained about him. Ms Darbyshire testified that she managed to extricate herself and walk quickly back to her car from where she phoned the police. She then waited for them in the car. When they arrived an officer, Constable Vonow, took a statement from her. Constable Vonow recorded her statement, first in point form and then in a narrative, in a notebook which Ms Darbyshire signed. In the course of the trial the point form and narrative were referred to, perhaps a little extravagantly, as two statements. The notebook pages were marked for identification MFI P3 but were never received into evidence. An affidavit sworn 3 September 2015 by Ms Darbyshire and apparently prepared from the police notes was marked for identification MFI P4 but also never received into evidence. However in cross-examination on those documents, Ms Darbyshire admitted that they recorded that the appellant gripped her right arm. Constable Vonow testified that Ms Darbyshire appeared to be distressed when he interviewed her. He examined her arm but did not see any bruising. Ms Darbyshire testified that she electronically recorded her account of the incident on 10 October 2014 when she returned to the offices of the Onkaparinga Council. The notes Ms Darbyshire made on her computer were later printed out by her in the form of a statutory declaration on 7 December 2015. The statutory declaration was marked for identification MFI P2. In cross-examination on that document it was revealed that Ms Darbyshire had declared, consistently with her testimony, that the appellant had grabbed her left arm.

Decision

Reasons for decision

The Magistrate did keep the appellant’s denial in mind when assessing the strength of the prosecution. So much is shown by the Magistrate’s reasoning in [18].Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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