Hussey v Police - [2018] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUSSEY v POLICE
[2018] SASC 122
Judgment of The Honourable Justice Bampton
31 August 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
Appeal against conviction for assault – whether Magistrate adequately explained why the appellant's evidence was rejected beyond reasonable doubt – whether Magistrate's reasons were adequate – whether the verdict was open on the evidence.
HELD: Appeal allowed.
1. The Magistrate did not adequately explain how he arrived at the finding of guilt.
2. There is reasonable doubt as to the appellant's guilt.
3. It was not open to the Magistrate to be satisfied beyond reasonable doubt of the appellant's guilt.
4. Verdict of guilty set aside, verdict of not guilty substituted.
Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; M v The Queen (1994) 181 CLR 487, considered.

HUSSEY v POLICE
[2018] SASC 122
Magistrates Appeal: Criminal

BAMPTON J: Following an incident on 31 July 2016 between Luke Hussey and the complainant at the complainant’s home, Mr Hussey was charged with four offences:
Count 1:Breach of bail (failing reside at a specified bail address);
Count 2:Property damage (damage to the complainant’s mobile phone);
Count 3:Assault causing harm (kicking the complainant to the face and causing harm); and
Count 4:Property damage (damage to the flyscreens of the complainant’s home).
Mr Hussey pleaded guilty to count 1 and not guilty to counts 2, 3 and 4.
The trial of counts 2, 3 and 4 commenced on 6 September 2017. Prior to the commencement of the trial, Mr Hussey made an application for an adjournment as he had attended hospital the day before and was not feeling well. The Magistrate refused the application and determined to proceed to hear the complainant’s evidence. Following the complainant’s evidence, the trial was adjourned for five months to 12 February 2018, at which time the Magistrate heard evidence from Mr Hussey and the police officers who attended the complainant’s home following the alleged assault.
The Magistrate delivered an ex tempore judgment, finding Mr Hussey guilty of the assault charge (count 3) and not guilty of the property damage charges (counts 2 and 4).
Mr Hussey now appeals the finding of guilt on grounds that:
1.the Magistrate’s reasons were not sufficient to explain the finding that “nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek”;
2.the Magistrate did not explain why his evidence was rejected beyond reasonable doubt and, specifically, the evidence he gave in relation to the movement of his foot being a “shrugging” movement; and
3.there was insufficient evidence for the Magistrate to have rejected beyond reasonable doubt his version of events, which should have led to the Magistrate entertaining a reasonable doubt as to his guilt in relation to the assault charge.
In my view, the Magistrate does not adequately explain, if at all, how he arrived at the finding of guilt. Accordingly, I have conducted an independent assessment of the evidence and have reached the conclusion that the finding of guilt beyond reasonable doubt was not open to the Magistrate.
For the reasons that follow, I allow the appeal, set aside the finding of guilt, and enter a verdict of not guilty of count 3 on the Information dated 2 August 2016.
The evidence
The complainant’s evidence
The complainant gave the following account of the incident.
Mr Hussey and the complainant had been in a relationship for about eight weeks as at July 2016. The complainant’s daughter, B, was about 18 months old at the time and Mr Hussey’s daughter, R, was about two years old.
Mr Hussey and the complainant had spent an uneventful day together with B and R on 30 July 2016.
The little girls went to bed at around 7.30 pm or 8.00 pm. B went to bed in her own bedroom and R went to bed on the child’s sofa in the complainant’s bedroom. Later that evening, Mr Hussey and the complainant slept together in the complainant’s bed. The complainant was woken in the early hours of 31 July 2016 by B vomiting. B had vomited all over her bed, the complainant took B from her bedroom and laid with her on the couch in the lounge room.
At about 5.00 am, whilst lying with B in the lounge room, she was disturbed by Mr Hussey. Mr Hussey prodded her saying he had just had a shower and needed a towel. She said that the towels were drying in the kitchen and he said, “Are you serious, there’s no towels” and they “had like a little spit”. Mr Hussey then picked up his little girl and went back to bed. The complainant then got up, went into the bedroom, turned on the light, and then Mr Hussey said, “You’ve just woken me and my daughter up”. According to the complainant, “that’s how it kind of all started”.
The complainant was very upset. Mr Hussey “had a go at [her] because [she] had switched the light on and … had woken his daughter”, accused her of being selfish, and said that he did not want her in the room because he did not want to catch, or his daughter to catch, whatever was causing B to be ill. The complainant took umbrage at this as she had “opened [her] doors” to Mr Hussey and his daughter and she was “just really angry and upset”.
The complainant then told Mr Hussey to leave her home. Mr Hussey got up and got himself and R dressed. The complainant went back into the lounge room because her daughter was awake. She had her phone in her hand as she was going to call an ambulance because her daughter was “just vomiting uncontrollably” when Mr Hussey came out of the bedroom, grabbed her phone and smashed it. She then slapped him twice on the face. Mr Hussey was “very angry”. He pushed her and she told him to get out; he would not leave and kept pushing and punching her. She could not recall where he punched her. They “had a bit of a scruff”, he pushed her a couple of times, punched and shoved her, and would not let her go. She was telling him to leave, he would not leave, and:
… kept getting in [her] face. … what really happened was when I told him to leave he wouldn’t leave so my little girl was going into the bedroom and so I went off to follow her and once I did that he followed me and pushed me and I fell to the ground and that’s when he proceeded to fly kick me with his left foot into my face and yeah.
The complainant said that after Mr Hussey kicked her, “he’s gotten up, he’s taken my house keys from me, and left”. As he was leaving, she could hear him ripping the flyscreens off her house. She then picked up her daughter, ran to her neighbour’s house and asked the neighbour to call the police.
The police arrived and an ambulance was called. She was in a lot of pain, her tongue was very swollen, and she could not speak very well. She received treatment at Flinders Medical Centre and B was taken to the “baby section because she had gastro”.
The complainant identified her voice on the recording of the call to police played during the trial.
In cross-examination, the complainant said that after she had taken B to lay on the couch in the early hours of the morning, she went to sleep. She agreed that she went into the bedroom to tell Mr Hussey off for waking B. She agreed that he said he did not want her in the room because whatever B had, he did not want to risk himself or R catching it and that really annoyed her so she told him to leave the house. She maintained that this all happened around 4.30 am or 5.00 am.
She said that she was standing in the lounge room when Mr Hussey was getting R dressed, holding her phone because she was going to call the ambulance. Mr Hussey came out of the bedroom, saw her holding the phone and smashed it. She denied threatening him with the phone. She denied having an argument about who woke whose daughter up and that, in the course of that argument, she hit him in the mouth with the phone, that he then knocked it out of her hand and it broke when it fell to the ground. She maintained that Mr Hussey snatched the phone and smashed it; however, she could not recall how he smashed it.
The complainant said that B and R were “standing right there” when she slapped Mr Hussey. She said that R was not being held by Mr Hussey. She said that she wanted Mr Hussey to leave but he kept holding her and would not let go. She said he was going, and then when she slapped him across the face he would not leave and he smashed her phone. She asserted that she “said I need to go get an ambulance for my daughter. My daughter is really sick and that is when everything happened”. She said they had a pushing contest, after which she followed her daughter into the bedroom and that was when Mr Hussey pushed her onto the floor and kicked her in the mouth.
The complainant said she did not know whether she hit Mr Hussey in the mouth hard enough to split his lip. She said that she slapped Mr Hussey’s twice. She denied punching him with a closed fist to his left cheek.
The complainant denied that Mr Hussey was carrying R and bags of clothes and children’s things when the incident occurred. She maintained that she had to supply R with clothing and it was “actually quite sad” because Mr Hussey had only brought “a little backpack with some old clothes that were filthy, odd socks … there was nothing, really”.
She denied that as Mr Hussey left, he was holding R in his arms, or that she grabbed him by the leg with both her hands to stop him leaving. She also denied that his foot came into contact with her cheek while he was struggling to release his leg from her grip. She denied that she was lying and at one point said that she could not remember if it was the right or left side of her face that his foot impacted with. She said that there was blood on her carpet and her face was instantly swollen and sore. When questioned about the whether Mr Hussey took her house keys, she said: “He took my house keys I think. I don’t know”.
The police evidence
At the adjourned hearing on 12 February 2018, the Magistrate heard evidence from three police officers and Mr Hussey.
Sergeant Murgatroyd said that he was tasked to the incident at 7.00 am. He noted that a screen door was twisted and bent and some of the wire was missing. He spoke to the complainant who was crying and upset. She told him that she had been kicked in the face, but he could not see any obvious marks and there was no bleeding. As she appeared to be in pain, he got her some peas from the freezer. He asked her whether she wanted to go to hospital or if she wanted him to call an ambulance. She said no, that she would sort that out later and that she just wanted to phone her mum. He loaned her his phone because she said hers had been smashed. Sergeant Murgatroyd left at about 7.29 am when a day patrol took over.
Senior Constable Corfield said that on his attendance that he noted bent flyscreens lying on the front yard of the unit. He did not notice anything about the front screen door. He said that when the complainant attended at Sturt Police Station in the afternoon, she appeared to have swelling to the right-hand side of her face and minor bruising but there was no bleeding.
Probationary Constable Eadie noticed some swelling to the side of the complainant’s face when attending at the complainant’s house, but no marks and no bleeding. Probationary Constable Eadie said the complainant was taken by ambulance to hospital and then seen at the police station some hours later, at which time she reported that she had a hairline fracture to the jaw.
It is agreed that the complainant did not have a fractured jaw.
Mr Hussey’s evidence
Mr Hussey gave evidence that in July 2016 he was living with his grandmother and had had custody of R for about 10 or 12 months. He said that the incident occurred at about 7.00 am. He gave the following account of the incident.
He and R were woken by the complainant who was very upset as she had been up all night with B and there were no cigarettes in the house. Mr Hussey had a shower and there were no dry towels. He and the complainant then had a brief argument before he went back to bed with his daughter. The complainant then came into the bedroom, turned the light on, and began to abuse him.
The complainant said that it was her bedroom, that she wanted him and R to leave so that she and B could use the bedroom. Once Mr Hussey got up preparing to leave, the complainant changed her mind saying she did not want him to leave and they had an argument about her mobile phone. At that time, he had a “pending District Court matter” and she was holding “her mobile phone about 20 or 30 cms away from [his] face. She was showing [him] some stuff that was about [him] that had been written on Facebook”. He used his left hand to knock the phone out of her hand because the phone was “in [his] face”. After he had knocked the phone out of her hand, she slapped the right side of his face. He told her to “get f’d”. She then punched him the face with a closed hand which split his lip.
Once things got physical he decided to pick up his daughter’s belongings contained in three bags. He picked up R “who was crying her eyes out” and was carrying her in one arm. He had a small, pink backpack over his shoulders and two bags in his other hand. As he was going out of the lounge room the complainant attempted to stop him from exiting. She changed her mind numerous times, wanting him to leave and then wanting him to stay. As he was making his way to the front door past a tallboy cupboard in the lounge room, the complainant grabbed his leg. She said he was not going anywhere and that he needed to stay to help her. He continued to walk to the door but she would not let go of his leg. He used what he believed was necessary to get her off his leg while he had his daughter in his arms and was carrying the bags. He did not use excessive force and did not mean to hurt her; he just wanted her off his leg so he could leave. She had both her hands around his leg and he “just simply shrugged her off [his] leg as you would”.
When he moved his leg to get her away, he did not think he made contact with her:
… but once it had happened she started screaming the house down like she had been hurt or something but when she was screaming down the house she was saying “Please don’t leave”, she wasn’t screaming down the house saying I hurt her or anything like that”.’
As he left she was crying and shouting asking him not to leave.
He did not feel his foot contact the complainant but accepted that it could have. He denied deliberately trying to kick her. He did not know that the complainant alleged that he had kicked her until the police spoke with him.
It was put to Mr Hussey in cross-examination that the complainant was not showing him anything on Facebook during the phone incident. He disagreed and denied smashing her phone. It was put to him that he did not mention that the complainant grabbed him around the leg when he was interviewed. He maintained that he did tell the police.
Mr Hussey said that there was not any discussion with the complainant about B going to the hospital, nor did he know anything about B vomiting other than what the complainant had told him about tending to her during the night. He admitted that he was annoyed about there not being any towels. He said he went to the kitchen, got a towel, dried himself and went back to bed. He got R out of the single bed, put her into bed with him and it was at that point that the complainant came in, turned the light on and said that he and R had to get out of the bed because she wanted B in the bed. He agreed he said that he did not want B catching whatever R had. He said that when he suggested that it would be best if B went to her own bed as she was not well, the complainant “started abusing [him] saying that it was her house and that [he] could eff off”.
He said that the incident with the phone happened as he was collecting his stuff to leave when the complainant started taunting him about him Facebook comments, and that is when he knocked the phone out of her hand. He maintained that he simply pushed the phone away from his face, it dropped to the floor, and he assumed that that was when the screen cracked. He said the complainant then slapped him in the face and he said, “You can get fucked”. She then punched him in the face. He went to pick up R to get out of the house and, instead of telling him to leave, the complainant was then asking him to stay. He said that she was down on the floor picking up her phone when she grabbed his leg as he was leaving the unit. He said that as he had R in his arms and a couple of bags, he did not have enough momentum to be able to swing his leg to get away from her. He also said that as the complainant had his leg close to her, the force that he used to get away from her was the “force that [he] had to use to get her off”.
He denied taking her keys and pulling the flyscreens off the windows. He said he just walked out of the unit and to his grandmother’s house.
The Magistrate’s findings
The Magistrate described both Mr Hussey and the complainant as witnesses “both of whom gave their evidence clearly and with some passion, both of them without major discrepancies — though there were some discrepancies in both”.[1] The Magistrate indicated that the complainant gave her evidence “quite well”.[2] The Magistrate referred to Mr Hussey as having given “quite convincing evidence”.[3]
[1]    Police v Hussey [2018] SAMC 1 at [16].
[2]    Police v Hussey [2018] SAMC 1 at [8].
[3]    Police v Hussey [2018] SAMC 1 at [13].
In finding Mr Hussey guilty of count 3, the Magistrate found that “nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek”.[4]
[4] Police v Hussey [2018] SAMC 1 at [19].
The Magistrate found that the allegations regarding the damage to the phone and the flyscreen were not proven beyond reasonable doubt.
Submissions on appeal
Given that the Magistrate did not reject Mr Hussey’s evidence beyond reasonable doubt on various matters in dispute, his failure to factually determine the basis for the finding of assault is, in Mr Hussey’s submission, an error and ought to vitiate the judgment. It is submitted that there was insufficient basis for him to reject beyond reasonable doubt Mr Hussey’s evidence about his foot movement whilst, on his evidence, he was in the complainant’s grasp.
The respondent’s submissions
The respondent concedes that the Magistrate’s remarks do not make explicit certain findings of fact in relation to proving the charge beyond reasonable doubt. In particular, the Magistrate does not state that the complainant’s evidence was accepted beyond reasonable doubt and that Mr Hussey’s evidence was rejected beyond reasonable doubt. The Magistrate also did not resolve certain factual discrepancies between the accounts such as precisely where the assault took place or the precise narrative of events. The respondent submits, however, that it is implicit in the conclusions reached by the Magistrate that findings of fact were made, such as:
1.The finding that it was “common ground that his foot met her cheek, and on no version of the facts, including anything that he believed, and accepting his belief was the basis of facts on which self‑defence might arise, nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek”.[5]
2.It is submitted that it is implicit in the above passage that the Magistrate must have accepted the complainant’s evidence as to her injuries in as far as they were caused by Mr Hussey’s foot in a kicking motion. Furthermore, the Magistrate notes the evidence of the police officers as to their observations of the complainant as being consistent with her being kicked in the face with some force. The Magistrate also considered the photographs tendered by police which showed, amongst other things, a bruise to her tongue and damage to the side of her tongue.
3.It is contended that the Magistrate has, in effect, taken the view of events most favourable to Mr Hussey, that is, the version of events he gave and found that even if his evidence was accepted and even if his evidence was a basis upon which a defence of self-defence could arise, his actions were excessive. The police say that the Magistrate has rejected the only version of events which could exculpate Mr Hussey, given his admissions to his foot contacting the complainant’s face.
[5] Police v Hussey [2018] SAMC 1 at [19].
Consideration

The complainant gave evidence that B was vomiting uncontrollably. Mr Hussey said he only heard complainant’s report of her vomiting. None of the police officers who gave evidence referred to B vomiting. I query how the complainant, in her words, could engage in a “scruff” when, on her case, B was vomiting uncontrollably. She gave evidence that the incident occurred at 5.00 am. Mr Hussey said the incident occurred at around 7.00 am. The first police officer was tasked to attend at the scene at 7.00 am, and arrived at around 7.08 am.
The complainant says the alleged assault occurred in the doorway of her bedroom and that Mr Hussey used a “fly kick”, which she demonstrated in court as described in the transcript as “right foot kicking hard upwards”. She said, “he had swung his foot straight across and he has come in contact with my left —well, I don’t know, my right leg — with his left leg and it’s got my face”. Mr Hussey says he was laden down with his two-year-old and three bags and was making his way out of the unit through the lounge room when that the complainant grabbed his leg while picking up her phone. Mr Hussey said that he could not swing his leg because of the load he was carrying.
The Magistrate said that the complainant gave her evidence quite well, was distressed in her call to police, and also when she heard the recording of the same call replayed in court. He recorded that there was “some variation in her evidence as to whether she was kicked by the bedroom door or whether she was by the front door”.
The Magistrate concluded:
… so I am left with two parties who have given different embellishments around the same factual scenario, both of whom gave their evidence clearly and with some passion, both of them without major discrepancies — though there were some discrepancies in both. I have other evidence, I have a graphic photo with a bruise to her tongue and damage to the side of her tongue, some marks on her shoulder and also a bruise to her upper arm.
No medical evidence was received regarding the aetiology of the tongue injury. The photos “AJM1” taken at 6.05 pm on 1 August 2016 depict an abrasion to the complainant’s right shoulder, bruising to her upper right and left arms, her lower right forearm and an abrasion and bruise on the right side of her tongue. No bruising or external injury to the face is depicted in the photos. There was no evidence regarding the possible causes for the tongue injury depicted in the photos. It was necessary to determine whether it occurred as a result of the alleged “fly kick” and to exclude other possible causes for injuries, for example, whether the complainant’s teeth caused the tongue injury.
The Magistrate said he could not reject Mr Hussey’s “version of provocation in relation to the phone” and found him not guilty of count 2. Likewise, in relation to property damage to the flyscreens, he said: “there’s an element of unlikeness in him armed with a bag of toys, a bag of clothes, a bag of nappies and a 2 year old child then coming back and gratuitously smashing the flyscreens by ripping them off the windows and smashing them”.
Clearly, the Magistrate accepted Mr Hussey’s evidence regarding the load he was carrying and could not reject his evidence about the phone. As such, he needed to explain his findings underpinned by clear reasoning regarding the conflicting evidence he had heard about the alleged “fly kick”.
The Magistrate appears to have accepted that Mr Hussey’s foot required “extraction” which suggests that he accepted Mr Hussey’s evidence that the complainant had her hands around his leg. If the Magistrate did accept Mr Hussey’s evidence on this topic, he must have rejected the complainant’s evidence that she did not have her hands around his leg and her evidence that he pushed her to the ground and kicked her. The trouble is that the Magistrate does not explicitly accept or reject either party’s evidence. In appearing to accept Mr Hussey’s evidence that his foot required “extraction”, the Magistrate does not explain how, nor was it put to Mr Hussey that, he could have extracted his foot “without kicking her cheek”.
As noted by the respondent, the Magistrate reminded himself that conviction in the matter was not simply a contest of whose version of events he preferred. Rather, it was necessary for him, as a pre-condition to conviction, to accept the complainant’s evidence beyond reasonable doubt and to reject Mr Hussey’s version of events beyond reasonable doubt.
In AK v Western Australia,[6] Heydon J, quoting the Full Court of the High Court in Fleming v The Queen,[7] said that in a criminal trial by judge alone there must be more than:
… a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather there must be exposed the reasoning process linking [the principles of law and the findings of fact] and justifying [the findings of fact] and, ultimately, the verdict.
[6] (2008) 232 CLR 438 at 468 [85].
[7] (1998) 197 CLR 250 at 262-263 [28].
Having considered the evidence, I have arrived at the view that the Magistrate’s reasons are not underpinned by a reasoning process linking and justifying the findings made. The Magistrate does not explain how, to his satisfaction, the elements of assault have been satisfied.
In referring to self‑defence, the Magistrate appears to have accepted that there was an intentional unlawful application of force. The Magistrate does not explain why he rejected Mr Hussey’s evidence that he could not swing his leg, that he moved his leg in a “shrugging” movement, that he did not know he kicked the complainant, that he accepted he could have, and that he did not intend to do so. The Magistrate does not explain his finding that “nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face”.
Having read the evidence in its entirety and considered it in accordance with the requirements referred to in M v the Queen,[8] I am of the view that the finding of guilt is not supported by the evidence. The state of the evidence is such that the prosecution has not proved that Mr Hussey intentionally applied force to the complainant causing “harm to the tongue and cheek”.
[8] (1994) 181 CLR 487.
Conclusion
I have arrived at the conclusion that there is reasonable doubt as to Mr Hussey’s guilt and it was not open to the Magistrate to be satisfied beyond reasonable doubt of his guilt.
I set aside the finding of guilty with respect to count 3 and enter a verdict of not guilty.