Isaac v Police No. Scciv-02-1625

ISAAC v POLICE
[2003] SASC 81
Magistrates Appeal

GRAY J This is an appeal against conviction and sentence.
The appellant Scott Lee Isaac was charged with assault occasioning actual bodily harm at Renmark on 12 December 2001.[1] He was convicted following a trial before a magistrate.
[1] “On the 12th day of December, 2001 at Renmark in the said State [Scott Lee Isaac] assaulted Caillot de Chadbannes a person of or above the age of 12 years thereby occasioning him actual bodily harm.
Introduction
The Crown Case
It was the evidence of the complainant and his friend, Judith Francis that an earlier assault had occurred on 12 December 2001 in Renmark. It was claimed that at about 1.50pm Rachel Mason assaulted the complainant and Ms Francis by pulling alongside them in a car and abusing them.
Later on 12 December 2001, after the complainant and Ms Francis had reported the incident to the police and walked to the Renmark mall, they were approached by the appellant and Ms Mason. It was said that Mr Isaac attacked and struck the complainant from behind, possibly with a weapon or object. Mr Isaac threw the complainant against a wall, a pole and onto the ground.
The complainant did not know Mr Isaac. The evidence of identification came from Ms Francis who had known Mr Isaac for some time. This made her evidence critical to the Crown case.
A statement of Richard Patching, the arresting police officer including a transcript of Mr Isaac’s record of interview was tendered.
It was not disputed that the complainant had suffered an injury on 12 December 2001. A medical report detailing his injuries and treatment was tendered. He had sustained a laceration to the back of his head requiring sutures. He had abrasions to the left elbow, knee and lower back.
The Defence Case
Mr Isaac gave evidence that he left work at 2.30pm on 12 December 2001. He drove to his father’s home at Berri and lent his car to his brother. Mr Isaac then walked to the Berri shopping precinct where he saw and spoke to Ms Mason. He returned to Renmark at about 5.00 pm or 6.00 pm that evening. It was said that Mr Isaac could not and did not commit the alleged assault. The defence case was that Mr Isaac was not in Renmark at the time of the alleged assault. He was in Berri.
Mr Isaac’s brother gave evidence that Mr Isaac arrived at the Berri home at around 3.00pm on 12 December 2001. He confirmed that he had borrowed Mr Isaac’s car.
Ms Mason testified that she had seen Mr Isaac at about 3.00 or 3.30pm on 12 December 2001 at the Berri shopping precinct. They had had a brief conversation. She stayed with her mother in Berri on the evening of 11 December 2001 and did not return to Renmark until the evening of 12 December 2001. A letter from Transport SA recording the renewal of her motor vehicle registration was tendered. The record disclosed that Ms Mason’s vehicle was registered at Berri at 1.34 pm on 12 December 2001.
As earlier observed the evidence at trial disclosed that Mr Isaac and the complainant did not know each other before the incident. However Ms Francis was known to both Mr Isaac and Ms Mason. It was the defence case that Ms Francis harboured ill will towards Mr Isaac and Ms Mason. Ms Francis had previously lived with Ms Mason and Mr Isaac, on a rent-free basis. Apparently she had nowhere else to live. She had been asked to leave by Ms Mason. It was said that she had overstayed her welcome. Ms Francis then lived with Mr Isaac in a caravan park for some weeks. Mr Isaac eventually moved Ms Francis’ possessions from the caravan. It was again suggested that Ms Francis had overstayed her welcome.
The Magistrate’s Findings
The magistrate delivered ex tempore reasons for judgment. He found the complainant and Ms Francis to be credible witnesses. He accepted their evidence. He considered Mr Isaac and Ms Mason lacked credit and rejected their evidence:
“On the evidence before me, I have little difficulty in accepting the evidence of the prosecution witnesses. I believe they were credible, I believe they were truthful and I believe they were consistent in all matters relevant. I accept their version in all respects where it is in conflict with the defendant and Mason, whom I do not believe. I find the prosecution has proved the charge against the defendant beyond reasonable doubt.”
The magistrate convicted Mr Isaac and imposed a suspended sentence of 6 months imprisonment
The Issues on Appeal
A Misapprehension of the Evidence
It was submitted that the magistrate had misapprehended the evidence. The magistrate observed:
“Rachel Mason gives evidence that she was in Berri on the day in question and says that she spoke to the defendant. That was contrary to the defendant’s evidence on point other than for an aside that was mentioned at the [conclusion] of the record of interview. It was a happy coincidence, it would seem, that she just happened to be in Berri on the day when the defendant says he was there.”
This observation demonstrates a clear misunderstanding of the evidence in two respects.
Mr Isaac gave evidence that he had met Ms Mason at Berri on 12 December 2001 and had spoken to her:
“Q.    Whilst you were shopping here in Berri, did you see anyone that you knew.
A.    I did bump into Rachel down the street.
Q.    Is that Rachel Mason?
A.    Rachel Mason, yes.
…
Q.    Did you have a conversation with her whilst you were -
A.    Briefly, you know, ‘How’s your day?’ Just, ‘What have you been up to?’
Q.    It was a general conversation.
A.    Yes, a general friendly chat, and on our way.
Q.    Do you remember roughly where you ran into her.
A.It was on the same street somewhere there near Toyworld. I’m not sure what street it’s called.
…
Q.    Do you recall roughly what time that might have been.
A.    Guessing, probably about 20 past 3, something like that.”
The magistrate was further mistaken about the record of interview. In the course of the recorded interview Mr Isaac said that he was at Berri on 12 December 2001 and had spoken to Ms Mason at the shopping precinct. It was wrong for the magistrate to characterise this as an aside.
A Motive to Fabricate
As earlier observed it was the defence case that Ms Francis harboured ill will towards Mr Isaac and Ms Mason. This arose from the circumstances in which she was asked to leave accommodation she shared with Ms Mason and later to leave accommodation shared with Mr Isaac. It was also the defence case that the complainant had an ulterior motive for making the allegation of assault against Mr Isaac. It was suggested that he was seeking compensation. The magistrate failed to address these allegations in his ex tempore reasons.
Fresh Evidence
On appeal counsel for Mr Isaac tendered fresh evidence. Ms Mason’s bank account had been accessed in Berri on 12 December 2001 at 1.31 pm and 1.33 pm. This involved the use of a pin number confidential to Ms Mason. It was the defence case that the banking records, which confirmed the use of Ms Mason’s bank account, confirmed that she had been in Berri on 12 December 2001. The Crown did not object to the tender of this evidence. It was accepted that the evidence was relevant and probative.
Conclusion
The conviction must be set aside. The magistrate proceeded on misapprehensions of fact and failed to address the issue of harboured ill will. In addition the further evidence is relevant and probative. Accordingly the appeal is allowed, the conviction set aside and the matter remitted to the Magistrates Court for a retrial.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 “On the 12th day of December, 2001 at Renmark in the said State [Scott Lee Isaac] assaulted Caillot de Chadbannes a person of or above the age of 12 years thereby occasioning him actual bodily harm.
Section 40 of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.”

Section 40 of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.”

[2003] SASC 81

28 March 2003