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 held her left arm so tightly that it caused bruising.
On this appeal the appellant relies heavily, as he did before the Magistrate, on inconsistencies between the complainant’s testimonial account that the appellant held her left arm and statements made by her to the police soon after the incident that the appellant held her by the right arm. The appellant also relied on an inconsistency between a police statement that she was pushed by Mr Hounslow’s clenched fist and her testimony that it was with an open hand. The previous consistent statement, the subject of ground 6, was an account of the incident electronically recorded by Ms Darbyshire on the day of the incident and later transposed by her into statutory declaration form and executed.
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.
Ms Darbyshire gave evidence that between 5.00 pm and 6.30 pm that evening she observed bruising and fingernail marks on her ‘upper left arm’. Her husband took photographs of her arm which were received as Exhibit P1. Ms Darbyshire was cross-examined as to whether the photograph showed her right or left arm. She maintained that it showed her left arm. I have examined the photographs. I am satisfied, and it is accepted on appeal, that they show Ms Darbyshire’s left arm.
In cross-examination, Ms Darbyshire was challenged about the difference between her testimonial account that her left arm was grabbed and the statements recorded by Constable Vonow as follows:
QI just want to give you the chance to say which arm do you say it was.
AThat I had my injury to?
QYes.
AIt was my left arm.
QThat might be right. Was it the left arm that was grabbed.
AYes.
QAre you sure about that.
APositive.
QYou wouldn’t get that wrong; you wouldn’t ever say to anybody that it was the right arm.
AI may have – I think – I believe that I may have got my left arms and my right arms confused at some stage but it was definitely my left arm that was grabbed.
QWho did you get it confused to.
ANobody but myself.
QIf you have a look at p.61, halfway down it says ‘He grabbed my right arm’.
AYeah.
Q‘Bicep, squeezed it’, something ‘digging his nails in’, ‘tightly digging his nails in’.
AYep.
QSo there on p.61 you have said that it’s your right arm.
AYep.
QNot your left arm.
ANo.
QSo you got that wrong.
AI did get that wrong at the time. This was taken just after the incident had happened.
QSo it was really fresh in your memory.
AFresh but I was really distressed.
Ms Darbyshire was also taken to an affidavit drawn by police from those notes which she swore on 3 September 2015. In that affidavit Ms Darbyshire deposed that the appellant had ‘grabbed my right arm’.
Ms Darbyshire claimed in cross-examination that she was still distressed when she swore the affidavit.
In the course of cross-examination it was put to Ms Darbyshire that she had told her medical practitioner that Mr Hounslow had pushed her with his hand clenched in a fist. Ms Darbyshire replied that she could not recall telling her doctor that. In re-examination a medical certificate and accompanying notes of her general practitioner, Dr Crawley, were received as Exhibit P6. The medical certificate showed that Ms Darbyshire was examined by Dr Crawley on 11 October 2014 who observed bruising and soft tissue damage to her left upper arm. The attached notes record that Ms Darbyshire complained that a ‘customer’ had ‘pushed her in chest with fist – pushed her backwards and swore at her and then grabbed her left arm at level of bicep’.
The defence case on the right arm/left arm inconsistency was put to Ms Darbyshire as follows:
QCan you give any explanation why you’ve three times said that it was your right arm.
AI can’t give any explanation for that; just obviously a mistake. I don’t think that it needs to be justified that it definitely was my left arm. It was just a mistake by me.
QMaybe you saw some bruising on the left arm a bit later and then adopted the left arm.
ANo, that’s not the case.
QBruising caused from some other incident or some other accidental incident.
ANo, no other incidents.
QSo I repeat: Mr Hounslow never grabbed you by the arm at all.
AYes, he did.
QAnd in fact he never pushed you either.
AYes, he did.
Ms Darbyshire’s credibility was also impeached on the grounds that she failed to produce handwritten notes she claimed to have made whilst waiting in the car. In cross-examination Ms Darbyshire was asked whether she had made handwritten notes of the incident at the scene while she was waiting for police:
QDo you have a notebook, or a notepad, or a folder.
AI had a notebook.
QDid you make any entries into that.
AImmediately once the incident had happened and I drove around the corner I started to write the notes in my notebook while I was waiting for the police to arrive.
QWhen you went out there did you have the complaint.
AWhen I went – sorry sir.
QWhen you went to Coromandel Valley did you have the complaint, the written complaint with you.
AYes.
QWhere was that.
ANext to me on the passenger seat in my folder.
QYou had a folder and a notebook.
AYes.
QDo you have either with you now.
ANo sir.
QThey contain original notes that you made at the time.
AYes.
QYou didn’t think that you should bring it in.
ANo.
QWhy not.
AJust didn’t believe that it would be relevant to the situation. I was however, as soon as I returned to the office typed up a statutory declaration of the incident while it was still fresh in my mind.
QIs this statutory declaration you are talking about one that’s on City of Onkaparinga letter head.
AYes.
QDo you have the original. Do you have any copy of the statutory declaration on you.
ANot on me, no.
The cross-examiner made a veiled criticism of Ms Darbyshire for not bringing the notes with her, but she responded that no-one had given her any notice to do so:
AI wasn’t asked to bring anything.
QEven though you’re giving evidence about a council matter.
AYep.
QYou didn’t bring any of your notes at all.
ANo. I was being led by – being guided by prosecution, so I didn’t.
QSo did prosecution tell you not to bring it or just that they didn’t tell you anything.
AI wasn’t advised to bring anything.
QDid they say not to bring anything or that they were silent on that fact.
ADidn’t say anything.
QSo you didn’t ask.
ANo.
Subsequently during an adjournment Mr Hounslow’s trial counsel and the police prosecutor discussed the production of Ms Darbyshire’s notes.
When the Magistrate returned to the bench, Ms Darbyshire informed the Magistrate that her notes were in a case in her car. After some discussion it was agreed to adjourn the trial to a later day on which Ms Darbyshire would produce her notes. On the resumed hearing no notes were produced by Ms Darbyshire for reasons which she explained as follows:
QIn relation to your evidence that you gave last time and the reason why it was adjourned was for you to go and obtain your notes. You told us earlier in the day on the last occasion that you made notes in a notebook and on the folder. Are you able to produce those.
ANo. There are no notes. In a situation where we deal with customers where there are verbal altercations, we would normally make notes in a notebook. On this occasion because it was an assault, my notes were contemporaneous notes which were my statement later to be signed to become my statutory declaration.
QSo when you told his Honour that you made notes in your notebook, that was in fact wrong.
AI said I believed I’d taken notes and that the book that the notes would have been contained in were in one of the company vehicles. On going back later that day and finding the notebook, there were no notes.
QNo notes on your folder that you also said that you made.
AI said I believed that I’d made notes but there were no notes.
QAnd there were no notes made in your folder.
AWhat folder would that be?
QI don’t know, you told –
AI don’t recall saying anything about a folder.
QYou told the court you had a folder and a notebook.
AI don’t remember saying anything about a folder.
QThe first statement that ever made in relation to this was to the police officer at the scene.
AYes, that’s correct.
QHow long after the incident were these notes made, the statement made.
AProbably around 35 minutes, 40 minutes. I can’t actually remember when the police arrived. It would have been around 35 to 40 minutes.
QWhat did you do in between.
ASat in my car.
QWhen you were sitting in your car you didn’t make any notes.
AI didn’t, no, I was too distressed at the time.
I turn to the appellant’s version of the events.
Constable Vonow interviewed the appellant at about 1.28 pm on 10 October 2014. Constable Vonow asked him:
I said:“At any time of your conversation did you touch in anyway the council worker”.
He said:“To make her look at me I touched her on the forearm”.
I said:“How did you touch her on the forearm?”
He said:“I just touched her with a few fingers and said ‘hey’”.
The appellant denied that he ever said ‘I am getting fucking angry’ and denied that he pushed Ms Darbyshire but admitted to Constable Vonow that ‘he grabbed her arm with a few fingers’.
The appellant gave evidence on his trial. He explained his contact with Ms Darbyshire as follows:
AI opened the door and it was “hello, how you going” and then she raised her voice at me about the dog and the parking and I asked her not to talk to me like that and whether she had any evidence or you know paperwork to go with this because it wasn’t the first time she’d been to my place.
QWhat was the complaint about the dog about.
ADog not being registered.
QThe complaint about the car.
AThe driving on the access road to the reserve, because I have very steep driveway, there’s 33.5 metres long and people that come there drive up and down that, the access road.
QYou asked her for evidence.
AYes.
QWhat did she say.
AShe didn’t have any and that someone had rung up anonymously and I asked her if she could tell me who that was and she said “no” and I said “so you do know” and that’s when she looked away and I touched her and went two fingers on the top of her arm, top of her forearm there and I just, light like that and I just said “well come on, hang on, you do know who it is” and then she just – she wouldn’t talk, wouldn’t say anything.
HIS HONOUR
QWhy did you touch her on the forearm.
AWell because she turned away, she’d gone all – just turned away and I asked her “well who is it”. And she wouldn’t answer me, so that’s where I, I just tapped her on the top of the forearm and I just said “well please talk to me” you know, and that was, that was it. I just been recovering from a, a shoulder reconstruction that rotator cuff and yeah.
XN
QDid you push her in the chest.
ANo way in the world.
QDid you grab her by the arm.
ANo. All I did was touching my two fingers on the top of her forearm and then I, I touched her the three fingers the second time. That, that’s all I did. I swear.
QDo you have fingernails.
ANever have had fingernails.
QBy that –
AI’ve never had them. I’m a working man, I’m a mechanic. Never had fingernails in my life.
The Magistrate’s Reasons
The Magistrate expressly adverted to the inconsistencies on which the appellant relied at trial.
[7]In cross-examination of Ms Darbyshire it was revealed she had made three previous inconsistent statements that the defendant had grabbed her right arm. Two of those were in a handwritten statement taken by Mr Vonow and one was in a declaration dated 3 September 2015. It is a significant error. I have to consider the assessment of her evidence regarding reliability and credibility and this, as I said, is a significant error and a matter that has to be assessed on both those topics.
[8]I also take into account she said in December 2015 in an out of court statement that it was her left arm that was the subject of the assault.
The declaration referred to is the affidavit prepared by police on 3 September 2015. The account in December 2015 is a reference to the statutory declaration made on the basis of Ms Darbyshire on 7 December 2015. The Magistrate then referred to Ms Darbyshire’s explanations.
[9]She explained the previous inconsistent statements as stress related. On 11 [October] 2014 she saw her doctor. That report is in evidence as Exhibit P6 including the history given to the doctor. In that history another previous inconsistent statement has emerged that he used his ‘fist’ with respect to the push which she alleges. In evidence she said he used the butt of his hand with curled fingers.

The Magistrate referred to Ms Darbyshire’s failure to produce her notes as follows:
[10]She also believed she made a statement to her employer. None were produced and it seems that it is admitted by the Police that that was a mistake. This again is another significant matter.
The Magistrate’s essential reasons for finding the charge proved beyond reasonable doubt were as follows:
[14]In my view the defendant’s evidence was unimpressive. I believe there was no good reason for him to touch her in any way and I believe that he was trying to minimise his agitated behaviour.
[15]I reject his evidence and put it to one side.
[16]I now return to the prosecution case which now must be assessed as to whether it can support a finding beyond reasonable doubt that the charge is proved.
[17]In the end, I found I was impressed by Ms Darbyshire’s evidence. I am so despite the previous inconsistent statements I have set out. I believe she was credible and I believe she was trying to be reliable and was reliable in key aspects of her evidence.
[18]I do not believe the photographs were orchestrated to falsely accuse the defendant by relying on another event to transpose to this encounter that happened earlier that day. In the end, as I said, I accept her evidence and naturally I accept the evidence of the Police officer whose credibility and reliability were never challenged.
[19]I do find that the assault charge has been proved.
Analysis
Grounds 1 to 3 can be quickly dealt with. Leaving aside any inadequacy in the reasons, or other error of law in the use made of the evidence, there was sufficient admissible evidence to adequately support the conviction. The Magistrate had the advantage of hearing the competing testimonies of the appellant and Ms Darbyshire. The inconsistencies relied on by the appellant at trial were not such to preclude the Magistrate from accepting Ms Darbyshire’s evidence, and acting on it, to find the offence of assault proved beyond reasonable doubt.
Confusion between right and left limbs, either in the relating of an account, or the recording of it, is common. It would not be at all surprising for Ms Darbyshire to have misspoken in relating her account of what was, at the very least, an upsetting confrontation, or for Constable Vonow to have misrecorded it and for the error not to have been picked up subsequently. As to Ms Darbyshire’s evidence that she had made notes in her car when it transpired that she had not, her mistake is explicable by reference to a misplaced reliance on her usual practice when giving her evidence. A departure from that usual practice in the circumstances of offending against her is not that surprising. Nor is it surprising that her memory when giving evidence was of her usual practice and not of the departure from it in the unusual circumstances with which she was confronted. Ultimately, the Magistrate, who had the advantage of assessing her testimonial explanation of the inconsistency, was prepared to accept her evidence. The inconsistencies do not require a finding that the Magistrate misused his advantage in so finding.
Ms Darbyshire’s evidence was corroborated by the photographs and medical evidence that she had sustained significant injury to her left arm. It was further corroborated by the appellant’s admission to Constable Vonow that he had not only touched Ms Darbyshire’s arm but that he had ‘grabbed’ it. Even though the appellant attempted to diminish that contact in evidence, the admission to Constable Vonow remained as strongly supporting evidence. Moreover, on the appellant’s own admission he found aspects of the matters raised by Ms Darbyshire as at least annoying. Ms Darbyshire’s distressed state was also supportive of her account of events.
Finally, the possibility consistent with innocence on which the evidence relied was inherently improbable. The possibility that someone else assaulted Ms Darbyshire by grabbing her on the arm within hours of the appellant, on his own admission, albeit with less force, is so remote as to be fanciful. It is equally improbable that Ms Darbyshire, in order to fabricate supportive evidence of her account, or for some other apocryphal reason, caused the injuries herself.
I turn to the complaint that the Magistrate’s reasons were inadequate (grounds 4 and 5). The Magistrate’s rejection of the appellant’s evidence and acceptance of the complainant’s evidence was plainly based heavily on demeanour. The Magistrate said so. There was very little which the Magistrate could say to further explain why he evaluated their respective demeanours in that way, and no reason to. Moreover, the Magistrate explained that his rejection of the appellant’s account was also based on the improbability of the very limited contact which he described. On the other hand, his acceptance of the complainant’s evidence was supported by the improbability that she had orchestrated a false accusation against the defendant.
Even though the Magistrate described Ms Darbyshire’s inconsistency as to which arm was grabbed and her mistaken evidence that she had made notes, a significant error and significant matter respectively, the Magistrate did not expressly address why he accepted Ms Darbyshire’s evidence despite those matters. More importantly the Magistrate did not address why he was prepared to find the offence proved beyond reasonable doubt on the basis of the complainant’s evidence. However the Magistrate intimated in [8] that he took into account that Ms Darbyshire’s statutory declaration of December 2015 which recorded that the appellant had grabbed her left arm. The Magistrate was entitled to take the statement into account in assessing the significance of inconsistency with Constable Vonow’s notes stating that it was her right arm. Indeed he could also properly have taken into account the statement to Dr Crawley.[1]
[1] Fox v Percy (2003) 214 CLR 118, 126.
Ground 6 must be dismissed.
The Magistrate’s finding, based on the photographs showing injuries to the left arm and his finding that there was no ‘orchestration’ in producing the photograph also discloses why he found the charge proved despite the inconsistency. In short, the Magistrate’s reasons show that he found that based on all of the evidence, that the reference by Constable Vonow to the right hand was a simple error of transposition of left to right.
The Magistrate offered no explanation with respect to the evidence concerning the making of notes. However, that issue was a collateral one which did not bear strongly on Ms Darbyshire’s testimony of the assault. The Magistrate was not required to give reasons explaining his treatment of all of the evidence. In the circumstances of this case, it was not an error to fail to explain why Ms Darbyshire’s mistaken evidence about making notes did not cause him to refrain from finding the charge proved beyond reasonable doubt. Grounds 4 and 5 must be dismissed.
I turn to ground 7. The conviction was not duplex. On Ms Darbyshire’s evidence, the push and the grabbing of her arm happened within moments. Moreover, the push was preliminary conduct which facilitated the grabbing of Ms Darbyshire’s arm.[2]
[2] Wellington v Police (2009) 105 SASR 215.
Finally, although not made a ground of appeal, I note that the Magistrate said that he had put the appellant’s evidence ‘to one side’ after rejecting it. The rejection of the appellant’s evidence necessarily meant that no finding could be based on it. In that sense that there was no evidence which would support a finding that the appellant had not pushed Ms Darbyshire and had not gripped her left arm forcibly. However, the Magistrate was obliged to keep that evidence in mind, that is, the appellant’s denial on oath in determining whether or not to accept Ms Darbyshire’s evidence beyond reasonable doubt. That is the approach explained by Duggan J in Price v Williams[3] when His Honour said:
Furthermore, although a finding of guilt is to be made only after consideration of the whole of the evidence, the fact-finder does not have to be satisfied of an accused person’s guilt on his or her evidence alone. A major consideration in the disbelief of one witness may lie in the satisfaction beyond reasonable doubt of the veracity of another or other witnesses. Of course the accused’s evidence must be taken into account and consideration given to the question as to whether it raises a reasonable possibility of innocence.
But in my view there is nothing in his Honour’s reasons to suggest that he did not follow this process of reasoning. Indeed he specifically referred to the appellant’s denial that he had ever given such advice to any client.
Then it was submitted in argument that the learned magistrate had acted contrary to the approach to the consideration of guilt as explained in The Queen v Calides 34 SASR 355. It must be remembered that Calides’ case dealt with directions to be given to a jury in certain cases where it is essential to instruct the jury on the various alternatives to be considered by them. Although a magistrate should consider the same alternatives in an appropriate case, it is unnecessary for the reasons for decision to refer specifically to those alternatives. It is sufficient, as the learned magistrate did here, to indicate that he was completely satisfied with the evidence led by the prosecution. As the judgment of Wells J in Calides makes clear, if that view is reached then ‘assuming all other matters to be properly established the verdict will be guilty’.
[3] (Unreported, Supreme Court of South Australia, Duggan J, 13 May 1993).
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.