Hurd v Brazendale
[2005] TASSC 66
•21 July 2005
[2005] TASSC 66
CITATION: Hurd v Brazendale [2005] TASSC 66
PARTIES: HURD, Tracey Lee
HURD, Chad
HURD, Jason Perry
v
BRAZENDALE, Brenda Louise
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 26/2005
DELIVERED ON: 21 July 2005
DELIVERED AT: Hobart
HEARING DATE: 27 June 2005
JUDGMENT OF: Slicer J
REPRESENTATION:
Counsel:
Applicant: P Warmbrunn
Respondent: M Shirley
Solicitors:
Applicant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 66
Number of paragraphs: 25
Serial No 66/2005
File No LCA 26/2005
TRACEY LEE HURD, CHAD HURD and JASON PERRY HURD
v BRENDA LOUISE BRAZENDALE
REASONS FOR JUDGMENT SLICER J
21 July 2005
Each applicant seeks review of their respective conviction for the offence of assault, contrary to the Police Offences Act 1935, s35(1). One of the allegations of assault comprised in the particulars stated in the complaint had been dismissed as not having been established by the evidence. The grounds of appeal of each applicant were stated in identical terms, namely:
"1 The Magistrate failed to state sufficient reasons for his decision.
2 The Magistrate's finding was contrary to the weight of the evidence.
3 The Magistrate's finding was unsafe and unsatisfactory in all the circumstances."
The complainants were members of a family who had immigrated to Australia from Sudan, two of whom gave evidence through an interpreter, and one with occasional assistance. The court of petty sessions was required to pay regard to the sense and import of their evidence, and any textual critique made on the hearing of this appeal considered in the light of the complexity of language and its translation. The significance of that observation arises because, in their particulars provided by the applicants on the hearing of this appeal, each state:
"Much of [sic] made of the purported racial taunt of 'nigger'. The defence led evidence that this was the nickname of Jason Hurd and tendered into evidence a newspaper clipping in which Jason Hurd signed a death notice as 'Nigga', his nickname. The defendants were not cross-examined as to this. This assertion was rejected in the decision."
There had been cogent evidence, given at the hearing, that a nickname of Mr Chad Hurd was "Nigga" which was said to explain the claims of racist abuse said to have accompanied or preceded the assaults, but which were not the subject of specific complaint. In regard to that evidence, the learned magistrate stated that:
"Comment was made that his nickname is Nigga, spelt N-I-G-G-A, and it was put that the terminology used elsewhere had been misconstrued but I am not satisfied that is the case, I think the two different mentions of nigger when made, one being in a derogatory sense.
I wish to make one final remark. The racial and other derogatory remarks were not the subject of any charges but it appears clear to me the initial remarks made, followed by the barrage of some ten to fifteen minutes of continued yelling during which time the defendants could have left the area became the catalyst for these assaults."
Each applicant had denied the making of racist or offensive comments and said that each had acted either in self-defence or the defence of another to an irrational or unwarranted attack by the complainants.
There had been two incidents or confrontations between members of the respective families who had once lived as neighbours. Earlier in the evening, Mr Chad Hurd, who had been visiting a former neighbour who lived near to the complainants, decided, because of intended alcohol use, to move his motor vehicle from his friend's home to his own nearby residence. In doing so his vehicle collided with a vehicle owned by the brother-in-law of Mr Ibrahim Ahmed Mohamed Ali, the husband of the second complainant, Eiman Ahmed, and the father of the third, Omnia Ahmed. Police were called and eventually the matter was resolved. During the first confrontation, which was not the subject of complaint, a Mr Robert Burridge, the man whom the applicants had been visiting, became involved in the matter. The second confrontation occurred some hours later when the applicants were leaving Mr Burridge's home, intending to return, on foot, to their own home. It was that confrontation which gave rise to the charges of assault.
Mr Ibrahim Ahmed Mohamed Ali said that at that time:
"I heard a lot of noise, again outside and I noticed my wife running away from the house and went outside, there was a lot of screaming. I went outside my house and I saw these three people and I heard a lot of shouting insults like, 'Niggers, you're not welcome here. Go back where you came from', and a lot of similar things.
…
While they were shouting and insulting us our neighbour, Bob, came out from his house and got involved. He joined in and supported them and he also said to us and he called us Niggers and 'I've had enough from you', and 'go back to your country' and stuff like that."
He said that:
"There was really a lot that was said at the time but each one of them said nasty and insulting words to us. I can't remember all of the words but that was only an example of what was said. I remember the lady, for example, also said to my wife that, 'You give birth, multiple, like cats, we've all had enough of you.' There was really a lot so it's hard to remember.
Okay. … And that we had to move away from that house just because of you.
So what happened after the yelling? … Then Bob approached me and pushed me from my chest, pushed me backwards so I pushed him back and (inaudible). And I said to him, 'If you don't stop this I'm going to take you to court.' And he said, 'I don't care', replied. 'I don't care, I'm above the law, you can do nothing to me. Do whatever you like'."
The language was said to precede the physical assaults.
Eiman Ahmed said that she noticed:
"I notice a few people were in our front yard started shouting 'Come out you niggers, come out, get back where you came from' and things like this.
…I saw them close to my door, I rushed to the door and then my daughter came with me and they like - there was a series of insults and abuses against all of us, calling us very dirty and low kind of names."
The daughter, Omnia, gave evidence that she heard swearing and:
"She [identifying the applicant Tracey Hurd] said 'You slut, you have ten babies, you have babies like a dog'. I said to her, 'Well don't swear at my mum. Is it because you don't have any baby', and then she came near me and she wanted me to hit her probably and then she punched me here."
to which she replied:
"I just said to her 'Because you can't have babies, why are you saying that to my mum', and I pushed my mum away so she doesn't do anything to her, but I didn't – but they keep on swearing and swearing and stuff, 'Go back to your country, we've had enough of you and that's why we moved from that house because of you and your daughters', stuff like that."
Each complainant proceeded to recount a series of physical assaults effected by the respective applicants. The applicants denied the making of any racist slurs or statements, claiming that it was, at least Mr Ibrahim Ahmed Mohamed Ali who used derogatory language which preceded the violence.
The learned magistrate was not required to accept those accounts. Each applicant had been interviewed by police during which they had asserted their innocence and denied the making or hearing of racist taunts. Following interview, the applicant Tracey Hurd requested that the complainants be charged with the offence of assault. Those denials formed part of the prosecution case. The learned magistrate heard evidence from Ms Elvene Glover, a resident of the neighbourhood, who was independent of the two families. She heard a commotion and, on looking outside, saw and heard:
"I heard one of my neighbours … Bob, saying to the next door neighbours, to get back to their own country, they didn't belong here, and they were – yeah.
…I heard him telling them [the Sudanese people] to get back to their own country because he'd been there eighteen years.
… they should get back to their own country."
Ms Glover proceeded to provide an account of a series of physical altercations. For some reason her daughter, an intended witness who was present at court and who had observed more of the disturbance, was not called by the prosecutor on the hearing.
The evidence of racist abuse was clearly articulated. It was not capable of being "misunderstood" or a product of linguistic or textual nuance. The evidence of the nickname "Nigga" did not weaken the import of the account given by the prosecution witnesses.
The defence called Mr Burridge as a witness. He supported the evidence given by the applicants. In relation to his evidence, the learned magistrate stated:
"Robert Burridge, a witness for the defence, denied having made any rationally discriminatory remarks in the course of the evening, but his evidence punctuated by – was punctuated by almost animated remarks of the Sudanese, quote:
Jumping up and down, ranting and raving and causing a hell of a commotion.
And gave the impression of a person of non-compromising ideas."
He contrasted this with the evidence given by Ms Glover, adding:
"Added to this I had the evidence of Elvene Glover, an independent witness for the prosecution, who lived at 5 Gale Street. She witnessed the fight on the street and gave evidence of hearing Bob Burridge saying, 'Get back to your own country, you're not wanted here'. She said she heard Bob say he'd been here for eighteen years and he'd had enough of them being on the phone all hours of the night, he was yelling it. She also found a chunk of black hair on her lawn the following morning and had given it to the Sudanese with the comment, 'Here's your hair back'."
and concluded:
"Overall I'm of the opinion that Ibrahim Ali, Eiman Ahmed and Omnia Ahmed are all witnesses upon whose testimony I can rely. I believe that whilst the only racial taunts were from Bob Burridge, and to this extent I accept the evidence of the Ali family and Elvene Glover over that of Mr Burridge, and having regard to the quantity of alcohol he claimed to have consumed I have difficulty in accepting he has any real memory of the night."
Acceptance by the learned magistrate of the general import of the abusive conduct, even if most of it was by Burridge, criticism of the later evidence, as identified by counsel on the hearing of the appeal, can be more readily resolved. The applicants had denied that any such conduct had occurred, maintaining their roles to be those of self-defence against a confrontation initiated by others. If the complainants' account of the initiating conduct was accepted, it impacted on evaluation of the competing versions of physical conduct, enhancing the reliability of the evidence of the complainants and Ms Glover. In turn it supported the evidence that there had been historic tension between the two families, re-ignited by the motor vehicle collision.
From that commencing point in the reasoning powers, the learned magistrate was entitled to add:
(1)Each of the applicants had been drinking during the course of the evening. These events occurred at approximately 11pm. Certainly the applicant Chad Hurd had been at the Burridge home since before 6.30pm, since at that time he had decided to drive his car back to his residence to avoid the risk of a drink driving offence. Each applicant conceded that he or she had been drinking alcohol, but denied intoxication.
(2)The complainant Eiman Ahmed was seen to be lying on the ground in an unconscious state. An ambulance was called to take her to hospital. There was no reason, on the internal accounts given by each applicant, for her to have been in that state, nor for the necessity of an ambulance. The criticism advanced by counsel for the applicants on the hearing of the appeal that no corroborative evidence was called as to injuries suffered by the complainants is valid and will be separately considered.
(3)There was evidence from a police officer who attended the scene shortly after the confrontation that she observed:
"… a woman, [of a number of non-English speaking people] who appeared extremely distressed and was holding her stomach.
…a small but prominent swelling on the forehead of Ibrahim Ahmed Mohammed Ali, which appeared to be struck with a blunt object."
and further that:
"Omnia Ahmed and Eiman Ahmed were taken to DEM by ambulance."
(4)Evidence of flight by the applicants immediately following the confrontation.
(5)Evidence given by the applicant, Chad Hurd, identified by the learned magistrate in his reasons for decision which he:
"found … to be a fascinating insight into the defendant's character."
(6)Evidence of the location of at least portion of the confrontation which belied the claims of the applicants and which contradicted their version of how the incident commenced.
(7)Evidence which partly, or at least inferentially, corroborated the claim by Eiman Ahmed that portion of her hair had been pulled out when she was dragged from the yard of her home to the middle of the road.
There were inconsistencies internal to the evidence of both the complainants and the applicants, but such is not unusual in any melee. The complainants unwittingly contributed to the confusion in attempting to "calm them down and tell them that it's not worth it" in Arabic. There was justifiable valid criticism of the presentation of the prosecution case. It was not an easy case to present. But the transcript reveals a less than desirable leading of witnesses and inadequate cross-examination. Cogent evidence, capable of corroborating the complainant's version, was available but not called. Those inadequacies gave rise to the criticism advanced by counsel on the hearing of the appeal. That said, the decision of the learned magistrate was not contrary to the weight of the evidence.
Ground 2 is not sustained.
Unsafe and unsatisfactory finding
The test referable to this appeal is as stated in Kelly v O'Sullivan (1994) 4 Tas R 446. Despite the inadequacies in the presentation of the prosecution case, the finding was open on, and consistent with, the evidence. This was a case of diametrically opposed versions. The learned magistrate had good reason to reach the finding which he did. He was not satisfied to the requisite degree of one of the components of an assault charge and dismissed it. Having determined a commencing point in his reasoning and considering the competing versions, he was entitled, as the fact finder, to prefer a version of events.
Ground 1 has not been made out.
Failure to state sufficient reasons
The learned magistrate gave detailed reasons for his findings. The hearing had occupied two days and he had prepared written reasons delivered two days subsequent. Those reasons occupied 12 pages of transcript. In those reasons he set out the respective versions advanced by the parties and exposed his reasoning for accepting the accounts given by the complainants. In accepting evidence of the origin of the confrontation, he gave adequate reasons for rejecting the evidence of the applicants. He was not required to determine precisely the exact sequence of events, a task normally impossible in a melee involving multiple parties each of whom had a confined view of the sequence because of their own direct involvement. As the High Court said in Fox v Percy (2003) 214 CLR 118 at par41:
"No judicial reasons can ever state all of the pertinent factors Biogen Inc v Medeva Plc [1997] RPC 1 at 45 per Lord Hoffmann; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another."
and in the words of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at par62:
"The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case."
The learned magistrate sufficiently exposed his process of reasoning (see Pettitt v Dunkley [1971] 1 NSWLR 376; Sielito v C and J S 45/1998).
Ground 3 of the notice to review is not sustained in each case.
The appeals are dismissed.
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