Irons v Moore - [2019] TASSC 22

[2019] TASSC 22

COURT: SUPREME COURT OF TASMANIA

CITATION: Irons v Moore [2019] TASSC 22

PARTIES:  IRONS, Mitchell Ashley
  v
  MOORE, Luke

FILE NO:  LCA 657/2018
DELIVERED ON:  22 May 2019
DELIVERED AT:  Launceston
HEARING DATE:  9 November 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Appeal against finding of guilt on one count of common assault which was also a breach of a family violence order – Circumstantial case – Complainant's evidence was that she did not recall the events – Surrounding evidence was sufficient to permit the magistrate to make the findings he did – Application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence – Finding that the applicant was guilty of both offences was reasonably open on the evidence.

R v Baden-Clay [2016] HCA 35, 258 CLR 308; Weissensteiner v The Queen (1993) 178 CLR 217, applied.
Aust Dig Magistrates [1153].

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  L Ogden
Solicitors:
             Applicant:  Tasmanian Aboriginal Legal Service
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 22
Number of paragraphs: 27

Serial No 22/2019
File No LCA 657/2018

MITCHELL ASHLEY IRONS
v SENIOR SERGEANT LUKE MOORE

REASONS FOR JUDGMENT BRETT J

22 May 2019

The applicant was charged with assaulting his partner on 27 June 2017. The assault was also alleged to have constituted the breach of a family violence order. After hearing the complaint, Magistrate Brown found the applicant guilty of both charges, recorded convictions and imposed a fine.
The applicant now seeks a review of the decision to find him guilty. The sole ground of review is that on no reasonable view of the evidence could the magistrate have been satisfied of his guilt. It is well settled that such a ground can only succeed if I am satisfied that the decision to find guilt was not open to the magistrate as a reasonable person. I am not entitled to weigh the evidence and reach my own conclusions: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Kent v Gunns [2009] TASSC 38, 18 Tas R 454.
The same actus reus was alleged in respect of both offences, in particular that the applicant had grabbed and punched the complainant. The prosecution case was that this act had occurred during the course of an argument between the parties, while they were seated in their motor vehicle which was parked in a residential street. The only other occupant of the vehicle was the parties' 4-year-old child, who was seated in the back seat. The complainant gave evidence, but apart from conceding that she was in a relationship with the applicant and present in the vehicle on the day in question, she claimed no memory of anything else that happened that day. The prosecutor successfully applied to the magistrate pursuant to s 38 of the Evidence Act 2001 for leave to question the complainant as though he were cross-examining her about her evidence in relation to the events of that day. Although the prosecutor's application included leave to question the complainant about a prior inconsistent statement, in the end, the magistrate restricted the grant of leave to cross-examination about the matters referred to in s 38(1)(a) and (b) of the Act, that is, her evidence that was unfavourable to the prosecution, and about which she was not making a genuine attempt to give evidence. Although there was no specification of these matters, it was clear that this related to the fact that the complainant had claimed that she could not recall the relevant events. Under cross-examination, she maintained her lack of memory of those events, and the matter was not pursued further by the prosecutor.
The prosecution tendered a recorded conversation between police and the applicant conducted on the day of the alleged assault, but the applicant had not answered any questions relating to the events of that day, and the magistrate, quite correctly, refused to admit the recorded interview into evidence. Accordingly, the prosecution case was limited to some out-of-court representations made by the complainant to witnesses at the scene of the alleged assault, shortly after it was alleged to have taken place, as well as some other circumstantial evidence, arising from the observations of those witnesses. That evidence can be summarised as follows:
(a)Karina Warner lived in the house outside of which the vehicle was parked at the relevant time. She lived there with her husband, Damon Warner. Mrs Warner said that at about 1pm, she heard a male voice shouting at somebody. The tone of the voice was threatening. She said that what she could hear sounded like "there was some sort of scuffle or incident". This evidence, of course, was her opinion of what was taking place in the car. She was still inside the house and could not see the car. Her opinion was admissible as an exception to the opinion rule pursuant to s 78 of the Act, because her perception helped better describe the tone of voice that she was hearing, but it could not prove that a scuffle or assault was actually taking place.
The first observation made by Mrs Warner when she went outside was of the complainant taking the child from the back seat of the car. The complainant and the child were both upset and crying. Mrs Warner saw that the complainant was missing one shoe and had blood on her ankle. The complainant kept clutching at her hair and said, "He's pulled my hair out." Mrs Warner saw what she described as, "chunks of hair on the footpath". A male was seated in the driver's seat of the car and kept saying to her, "Don't listen to her – she's got bad anxiety. She's off her head." By this time Mrs Warner's husband had also arrived at the vehicle.
In cross-examination, Mrs Warner said that the female was "clutching at her head a lot", was extremely upset, and kept apologising to her. She did not see any blood on the hair which was on the ground.
(b)In his testimony, Mr Warner said that he also heard "pretty aggressive sort of yelling and swearing" from a male, and then "sort of screaming and stuff from a female". When he arrived outside, he saw a female who "Was in a bit of a mess. She had a big tuft of hair pulled out – it was on the ground and ... a bit of blood on her ankles – scrapes or something and the same sort on her hand and that like not serious wounds. They were just gravel scrapes or something ...". He also offered opinions about what might have caused them. Although there was no objection to this evidence, he was clearly not qualified to state these opinions, and they can have little, if any, probative value.
He spoke to the male seated in the driver's seat of the vehicle. That person was very upset and was saying that the female was "crazy" and "psycho". The female was also "hysterical" but did not want Mr and Mrs Warner to call the police. After a short while, the female and the child accompanied them into their house. Mr Warner described some conversation with the female inside the home. The female said that she and her partner had had an argument over whether he would attend a medical appointment with her. Mr Warner was asked in examination-in-chief as to whether the female had said anything about "the physical side to it". His answer was:
"Just that he was pulling her hair and hitting her. She didn't say how much or whatever ...".
In cross-examination, Mr Warner said that when he first saw the woman, she was outside the car. She was wearing one shoe. She was holding her head and seemed to be in pain. He also observed some hair. The complainant was "very reluctant" to call the police.
(c)Mr and Mrs Warner's next door neighbour, Bernadette Fruin, gave evidence. She also heard screaming from a female, but by the time she went outside, Mr Warner was already present at the scene. She saw that the woman was upset but did not speak to either the complainant or the defendant. There was nothing else of probative value in her evidence
(d)Constable East attended the scene soon after the relevant events. He spoke to the complainant. She "outlined that she'd been involved in a family violence incident with her partner Mitchell Irons". There was no further detail provided as to the nature of that incident, the complainant went with him to the police station where he prepared a statutory declaration by her. That document was not admitted into evidence and no further description of its contents was adduced. Some photographs were taken of the complainant at the police station. These purported to show some marks on her head and missing hair. The constable confirmed that those features of the photographs were consistent with his observations of the complainant on the day in question.
There was no other evidence adduced by the prosecution. The applicant did not give or adduce evidence.
The magistrate provided oral reasons for his decision. His Honour summarised the evidence in considerable detail. He was "impressed" with the evidence of Mr and Mrs Warner, and found them to be "careful and honest witnesses". It is clear from his Honour's reasons that he accepted and relied on their evidence completely. He was entitled to do so.
His Honour's conclusions based on this evidence were as follows:
"So at the end of the day what I have here is evidence that the complainant was with the defendant in his Ute on the day in question. That they'd argued in the Ute and that I have a complaint given within really a very short period – moments it seems – that he had hit her and pulled her hair. I have evidence in the form of the photographs and the evidence of both Mr and Mrs Warner which corroborates that. There was the egg on the head which Mrs Warner volunteered and obviously there's a photograph of that. Whilst the photograph as Mr Ashman said of her hair doesn't really show anything it's consistent with the complaint and of course I have the evidence of both Mrs Warner and Mr Warner about her hair floating around on the outside of the car.
So I have complaint evidence. I have a distressed, highly agitated complainant and that is the evidence against the defendant. The defendant took part – well I won't refer to the interview because that took it no where. The defendant did not give evidence so I'm left with complainant [sic] that I accept – evidence of her distressed condition – the complainant's distressed condition immediately afterwards. I'm satisfied that she did make a complaint – complaint evidence to Mr and Mrs Warner. They come in towards the end of the incident and saw her injured and on that basis that being real evidence – not just evidence that goes to her credit but complainant evidence is evidence of what it alleges and in light of the agreed fact I found both charges 1 and 2 made out."
In my view, the evidence was sufficient to permit the magistrate to make the findings recorded in these comments. In particular, his Honour was entitled to rely upon the representations made by the complainant to Mr and Mrs Warner as proof of the existence of the facts asserted in those statements: s 66 of the Act. The facts which had been asserted in these representations were:
(a)That the complainant and the applicant had had an argument in the motor vehicle;
(b)That in the course of that argument the applicant had pulled her hair and hit her.
The truth of these facts was supported by the circumstantial evidence. In particular, the existence of an argument was consistent with what all three civilian witnesses had heard before going out to the footpath, as well as the observed distress of the complainant and the child. The fact that the applicant had assaulted the complainant during the course of this argument was supported by the observations of Mr and Mrs Warner as to the complainant holding her head in pain, the loose hair on the ground, and marks on her body. There was also the photographic evidence and the evidence of the police officer concerning the existence of marks on the face of the complainant.
On the hearing of the motion, the applicant's counsel argued that given the circumstantial nature of the prosecution case, it was incumbent on the prosecution to exclude any reasonable hypothesis consistent with innocence. It was argued that on the evidence presented by the prosecution, it was not reasonably open to the magistrate to exclude the possibility that any injuries observed on the complainant were self-inflicted, or had been inflicted by the applicant in circumstances which would render the application of force lawful. It was further argued that the magistrate should have experienced significant doubt about both the credibility and reliability of the complainant's out-of-court representations. Because the admissibility of those representations for a hearsay purpose arose only because of an exception to the hearsay rule, it was submitted that the magistrate was obliged by the provisions of s 165 of the Act to warn himself that the evidence may be unreliable, and of the need for caution in accepting the evidence and the weight to be attributed to it.
There is no doubt that the magistrate was required to exercise caution in respect of his assessment of the probative value of the representations made by the complainant to Mr and Mrs Warner. Some of the features of the statements which required caution were as follows:
(a)The statements were vague, general and lacking in detail.
(b)They were statements made out-of-court in circumstances in which the complainant was highly distressed. She was not under an obligation to tell the truth, and was not subjected to cross-examination.
(c)These prior statements were not put to the complainant in evidence. Of course, an attempt was made by the prosecution to cross-examine as to a prior inconsistent statement, but leave was not given by the magistrate for this to occur.
In view of these factors, it would not have been open to the magistrate to find guilt proved on the basis of these representations alone. However, the representations were corroborated by the surrounding evidence. This included the injuries and the hair seen by Mr and Mrs Warner. On the basis of this evidence, it was open to the magistrate to conclude that the applicant had applied force to the complainant during the course of the argument. The magistrate was entitled to accept that the supporting evidence supported the complainant's claim that she had been hit and her hair had been pulled by the applicant, and therefore that those claims were true. This evidence was sufficient to exclude the reasonable possibility that she had caused the injuries to herself.
The further point made by the applicant's counsel on the hearing of the motion, however, was that the evidence did not permit a finding that any application of force by the applicant had been unlawful. In particular, it was argued that the evidence did not permit the magistrate to exclude the reasonable possibility that any force which had been applied by the applicant had been applied in circumstances of lawful self-defence.
In brief submissions at the close of the prosecution case, the applicant's counsel submitted that the evidence could not satisfy the magistrate beyond reasonable doubt that any injuries suffered by the complainant had been inflicted by the applicant. It was suggested that it was open on the evidence that the complainant had inflicted the injuries upon herself. The applicant's counsel did not suggest that the evidence permitted a finding that the applicant had applied force to the complainant and, that, if he had done so, such force had been applied lawfully, for example in lawful self-defence. The magistrate did not avert to the possibility of self-defence.
It is well established that in a case involving a jury, the issue of self-defence will only be left for the jury's consideration where it is raised as a reasonable possibility on the evidence "and the accused raises the question": Viro v The Queen (1978) 141 CLR 88 at 95, per Barwick CJ. However, where the question is raised as an issue, then the onus will be on the prosecution to negative the reasonable possibility of lawful self-defence beyond reasonable doubt: Walsh v The Queen [1993] TASSC 91.
The same principles will apply in a summary hearing before a magistrate: Hindrum v Lane [2014] TASFC 5. In particular, the magistrate will not be required to consider the issue of self-defence unless it is raised as a reasonable possibility on the evidence, and in that event the prosecution will have the onus of excluding that possibility beyond reasonable doubt.
However, in this case, the applicant's submissions relate to the conclusions that were open to the magistrate on the basis of the circumstantial nature of the prosecution case. It is argued that, at the most, the evidence permitted no more than a conclusion that force had been applied to the complainant by the applicant in the course of an argument. There was nothing else in the evidence that would permit the magistrate to conclude that the force was applied unlawfully. On this argument, it remained a reasonable possibility on the evidence that the force might have been applied in the course of lawful self-defence. Accordingly, it is argued that the issue of self-defence is raised as a reasonable possibility on the evidence, and the evidential burden on the applicant is thereby satisfied.
The issue raised by this argument has some similarity to that considered by the High Court in R v Baden-Clay [2016] HCA 35, 258 CLR 308. In that case, the appellant had been convicted of the murder of his wife. His wife's body had been found under a bridge on the bank of a river. The crime of murder required proof that the appellant had caused his wife's death, with the intention to kill her or cause grievous bodily harm. The evidence against the appellant was entirely circumstantial, but included evidence of motive. The applicant had given evidence at the trial that he had not caused the death of his wife, and that he was not present at the time of her death, and he knew nothing about how she had died. On appeal to the Queensland Court of Appeal, it was held that the circumstantial evidence against him was capable of establishing that the accused had caused the death of his wife, but could not establish that he had done so with the requisite intention. In particular, the Court of Appeal held that the circumstantial evidence could not exclude the reasonable possibility that the appellant had delivered a blow which had killed her without intending to cause serious harm. On that basis, he was only guilty of manslaughter.
The High Court held on appeal that in view of the appellant's evidence concerning the fact that he was not present at his wife's death, the possibility that he had been present and had killed her without intending to cause serious harm, was not an hypothesis available to the jury on the evidence. Of course, that situation can be distinguished from this case. The evidence in this case before the magistrate established that both the applicant and the complainant were present in the vehicle at the time that any force was applied by the applicant, and further that any such act had occurred in the course of an argument. Clearly, the reasonable possibility of self-defence was open on the evidence.
However, in Baden-Clay, the High Court also considered whether it was open to the jury to exclude the unintentional killing of his wife by the appellant as a reasonable hypothesis consistent with innocence, irrespective of the evidence of the appellant. The Court noted that the unchallenged conclusion was that the appellant was the last person to see his wife alive and knew about the circumstances of her death. The court considered that in those circumstances:
"If there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source."

The court relied upon the following passage from Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228, per Mason CJ, Deane and Dawson JJ:
"... in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."
In my view, these comments are apposite to the circumstances of this case. On the one hand, the applicant could fairly argue that there were, in fact, two people in the car who could give evidence about what had happened, one of whom was the complainant. He would argue, therefore, that it would be unfair to invoke the principle in Weissensteiner against him. However, this is not a case where the complainant has not been heard from. The complainant was called by the prosecution to give evidence, and her sworn testimony was that she could not remember the relevant events. She maintained this version under cross-examination from the prosecutor. This evidence was not challenged by the applicant's counsel. In fact, the applicant's counsel did not cross-examine the complainant at all.
Further, the previous representations of the complainant were in evidence as part of the prosecution case and were admissible as proof of the truth of the facts asserted in them. It is true that the assertion of an assault was vague, but when taken together with the evidence of the injuries and the hair seen by Mr and Mrs Warner, the representations were capable of establishing the case that an assault had been perpetrated by the applicant. In the face of this evidence, the applicant offered no explanation at all for the manner in which the injuries had been caused, nor did his counsel cross-examine the complainant with respect to the matters contained in her out-of-court representations. It was not suggested to her that she did not say these things to Mr and Mrs Warner, or that the facts asserted were not true. It was not positively put to her that circumstances had occurred which were consistent with the lawful application of force.
It is true that the magistrate expressed the view that the complainant was "not making a genuine attempt to give evidence". However, the point is that the applicant did not challenge her assertion under oath that she could not recall the relevant events. In that circumstance, he was the only person able to explain the application of force, that was otherwise accepted as fact by the magistrate, on the basis of self-defence or some other circumstance that would render the force lawful. For this reason, the evidential onus remained on the applicant and had not been discharged by him.
In the light of the evidence that force had been applied by the applicant to the complainant and in the absence of any contradictory or explanatory evidence from the applicant, I am satisfied that the application of force in lawful self-defence was not available to the magistrate as a reasonable possibility or hypothesis consistent with innocence. It was not incumbent on the magistrate to consider and exclude self-defence or some other basis of lawful use of force. In the circumstances, it was reasonably open to the magistrate to conclude that the applicant had applied force to the complainant and that such force had been applied unlawfully.
The applicant also argued that there was a variance between the particulars of the assault found by the magistrate and those specified in the complaint. It is fair comment that there is a variance. The complaint alleges that the assault took place by grabbing and punching, whereas the evidence permitted a finding that the assault had taken place by hitting and/or pulling the complainant's hair.
This was not a variance of significance. There is no suggestion that the particulars mis-informed the applicant of the nature of the allegation against him by diverting his attention, for example, to a different incident, or a different offence. The incident in question was clearly identified by the complainant, and addressed by the evidence. The applicant could have been under no misapprehension that what was being alleged against him was that during the course of an argument in the car, he unlawfully assaulted the complainant. The provisions of s 31(4) of the Justices Act 1959 are applicable, that is, that an objection shall not be taken to a summons in respect of a variance between it and the evidence in support of the complaint, although the justices may adjourn the hearing if the defendant has been prejudiced by the defect or variance. In my view, there was no prejudice to the applicant in this case, and the argument is without merit.
It follows that I am satisfied that the magistrate's finding that the applicant was guilty of both offences was reasonably open to him on the evidence. The ground of appeal is without merit. The motion will be dismissed.