Ismail v Tate
[2019] ACTSC 92
•9 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ismail v Tate |
Citation: | [2019] ACTSC 92 |
Hearing Dates: | 3 August 2018; 30 August 2018; 4 February 2019 |
DecisionDate: | 9 May 2019 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – Appeal – Appeal from Magistrates Court –whether the conviction was unsafe and unsatisfactory |
| Legislation Cited: | Crimes Act 1900 (ACT) s 24 Magistrates Court Act 1930 (ACT) ss 208(1)(b), 214 |
Cases Cited: | M v The Queen (1994) 181 CLR 487 |
Parties: | Mohammed Abdul Ismail (Appellant) Oliver Robert Tate (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms R Khazma (Respondent) |
| Solicitors Self-represented (Appellant) ACT DPP (Respondent) | |
File Number: | SCA 3 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 19 December 2017 Case Title: R v Ismail Court File Number: CC2017/956 |
BURNS J
The appellant was charged in the ACT Magistrates Court with one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). He pleaded not guilty to the charge and the matter proceeded to a defended hearing extending over three days in September and December 2017.
On 19 December 2017 the Magistrate found the offence proved. The appellant has appealed from the finding of guilt on the ground that the finding was unsafe and unsatisfactory.
The appellant was represented by a legal practitioner in the proceeding in the Magistrates Court, but he has not been so represented in the present proceeding.
An appeal to this Court from a decision of a Magistrate convicting an offender of an offence is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). It is an appeal by way of rehearing, based upon the evidence placed before the Magistrates Court together with any other evidence which the Supreme Court may determine to receive pursuant to s 214 of the Magistrates Court Act.
On the hearing of such an appeal, this Court must conduct a real and independent review of the evidence before the Magistrate, and the Magistrate’s reasons for finding the appellant guilty, so as to determine whether the decision of the Magistrates Court is clearly wrong. In undertaking that review, this Court must make due allowance for the advantage that the Magistrate had in having seen and heard the witnesses.
The principles which govern the ground of appeal raised by the appellant, that the conviction was unsafe or unsatisfactory, are well settled. In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at [494]:
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The proceeding in the Magistrates Court
At the outset of the hearing before the Magistrate, the prosecutor opened the case as one involving an allegation that the appellant struck the complainant to the face with a bottle, causing a laceration to the complainant’s left eyebrow. In response, the appellant’s then counsel said:
The strike is conceded and the injury caused by that strike meeting the threshold is conceded. It’s not necessarily conceded… that the strike was voluntary and the fault element and the issue of self-defence are very much in issue I anticipate.
The first prosecution witness was the complainant, Badah Alqahtani. The witness’s name was spelt in a number of different ways in the transcript of the Magistrates Court proceedings, but the spelling I have adopted is that found in the charge itself (CC2017/956). He gave evidence with the assistance of an interpreter. Mr Alqahtani stated in evidence in chief that at about 11:30 pm on 13 January 2017 he was going to the ‘Supa 24’ convenience shop near the city bus interchange to purchase groceries. He was by himself. He stated that at that time:
I was going inside the Super store (sic) and then he was there, he started swearing at me, telling me like you’re son of a dog and also swearing at me things that related to religious things, religion things, yes. So I bought my stuff and I left. As I was leaving Super (sic) I was going towards the kebab restaurant to get a taxi from there, I felt like someone was following me, was behind me. So as I was turning around I saw him running behind me and as I was turning around I saw him was trying to hit me with a wine bottle, so as I was turning and I saw he was trying to hit me at the back of my head I held the wine bottle defending myself and then it hit me close to my eye.
Mr Alqahtani said that he recognised the appellant as someone that he had seen around in Civic on a few previous occasions. He said that the appellant was sitting with a group outside the store, and close to the entrance door, when he went to enter the store. He said that the appellant was seated on the ground. He further said that the appellant was holding a glass wine bottle and was swearing at him. He told the appellant, “Get out of my way, I don’t want to cause trouble” or “I don’t want you to cause me problems”.
10. Mr Alqahtani stated that as he was leaving the store, the appellant was no longer on the ground. He started walking towards the kebab shop, but felt somebody was following him. He heard a voice close behind him. He said someone was screaming, and when he turned around he saw someone with a bottle and that person was holding the bottle next to and close to Mr Alqahtani’s face. He recognised that person as the appellant. The bottle that the appellant was holding was the same bottle that Mr Alqahtani had seen him holding when he was seated outside the store. He said that the appellant tried to hit him on the face, and he tried to defend himself. He said that the bottle hit him below his left eye. I should note at this point that while the interpreter said that Mr Alqahtani testified that the bottle hit him below his left eye, it is apparent from the transcript that Mr Alqahtani pointed to a spot just above his left eyebrow. It appears that this may have been a difficulty with the translation. Shortly thereafter, Mr Alqahtani refined his evidence by stating that when the appellant tried to hit him with the bottle, he, Mr Alqahtani, put his hand on his head to protect his head, and the bottle broke when it hit his hand. He said that the glass hit his face just above his eye.
11. Mr Alqahtani said that a male person who was nearby told him to sit on some seats and that the police would be coming. He said that he was seated at a bus stop waiting for the police for about four or five minutes when the appellant again approached him, and tried to assault him. He said that the appellant was initially swearing in Arabic, but then started begging him not to tell the police. Mr Alqahtani said that male security officers restrained the appellant. Subsequently, paramedics and police attended. The paramedics attended to a wound above his left eye when the police arrived.
12. In cross-examination there was some confusion as to whether Mr Alqahtani knew the appellant by name prior to this incident. The transcript suggests that this was because of difficulties in translation. Mr Alqahtani clarified his position by stating that he had not known the name of the appellant, but he had seen him previously. Mr Alqahtani denied the suggestion that he knew that the appellant’s name was Mohammed, and that he, Mr Alqahtani, had been offended by seeing the appellant drinking alcohol in public. He denied suggestions that he told the appellant that he was a disgrace because he was drinking alcohol. Mr Alqahtani denied the proposition that the appellant had called him “Arab scum”. He said that the appellant had simply been swearing at him. Mr Alqahtani also denied spitting at the appellant a number of times during this conversation. He also denied pushing the appellant. It was suggested to Mr Alqahtani that he had told police that he had pushed the appellant, a proposition which Mr Alqahtani denied.
13. Mr Alqahtani agreed that he spoke to police on the evening of the assault. He denied a suggestion that he had not told the police that the bottle had smashed when it hit his hand. He also denied that he had not told police that the appellant had attempted to assault him at the bus station after the initial assault.
14. Mr Alqahtani stated, through the interpreter, that his English is “a bit poor”. He was taken to a transcript of an interview with him conducted by police on the evening in question. An interpreter was not available at that time. He stated that he told police not to take a statement from him at that time because his English was not good. He was asked whether the police officer had asked him, “You said he had a wine bottle. What did he do with the wine bottle?” and whether he had replied, “He pushed me in my face”. Mr Alqahtani replied, “I told him that he tried to hit me with the bottle on my head but I defended myself and then he hit the bottle on my eye”.
15. Mr Alqahtani was then questioned about his use of the word ‘pushed’ in the above extract, and he said through the interpreter, “Maybe I used ‘pushed’ because my English language is not very good. He hit me.” It was also suggested to Mr Alqahtani that he had not told police in his initial interview on the evening in question that the bottle had broken. Mr Alqahtani replied, “That’s what I meant. I tried to get the message across to him but I couldn’t”.
16. Mr Alqahtani was then taken to his written police statement, which was apparently prepared some months after this incident. It was suggested to him that he had not said anything in that statement about raising his hand to protect himself from the bottle. He responded, “Yes, but I did mention it. I did say that. It mightn’t be written here but I did say that I raised my hand to defend myself, and it does say in the statement that the bottle hit me in the head and that it smashed on my head and that - - -”. Mr Alqahtani agreed that when he was speaking to police about an hour after the incident his memory was not good. He said that he was in shock, was dizzy and he was new to this country.
17. It was ultimately suggested to Mr Alqahtani that immediately before the appellant struck him with the bottle he, Mr Alqahtani, was moving towards the appellant and was preparing to spit at him. The appellant denied that suggestion.
18. The next prosecution witness was Mr Douglas Penny. At 11:59 pm on the evening of Friday, 13 January 2017 he commenced a shift working as a security supervisor at the taxi rank in Mort Street, Canberra. At about 12:05 am a male approached the taxi rank and wanted to get a taxi. Mr Penny noticed that the male had blood streaming from the left-hand side of his face. He described that person as being in their mid-20s, of darkish skin “more of the Arabic persuasion”. The person complained to him that he had been assaulted. Mr Penny told him to sit down, and went to get some first-aid assistance. When asked whether he had observed this person’s demeanour, Mr Penny said, “I just noticed that he was a little bit frustrated and a little bit – looked a bit – not annoyed but looking a bit – a bit annoyed, a bit scared basically”. Members of St John’s ambulance came and provided the male with some assistance. Mr Penny said that about five or ten minutes later another male approached the first male. The second male was about five foot nine, dark complexion, skinny, wearing a baseball cap, a tracksuit and runners. This second male started yelling and abusing the first male in a language other than English. Mr Penny said that he got in between the two males, because their voices had been escalating. The first male said to him, “This is the bloke that assaulted me”. Mr Penny told the first male to sit down, and the second man walked away. Police subsequently arrived.
19. In cross-examination it was suggested to Mr Penny that he had said nothing in his police statement about the second male approaching the first, and being abusive towards him. Mr Penny appeared to agree that that may be the case. He also accepted that it was possible that the second man approached the first man, and that they began to speak to each other simultaneously.
20. The third prosecution witness was Constable Oliver Tate, who was conducting duties on control in the area of East Row on the morning of 14 January 2017. He was waved down by Mr Penny. Mr Penny told him that he had been looking after someone who had been assaulted, and that the person was in the bus interchange. Constable Tate went to the bus interchange and saw Mr Alqahtani. He was seated, and had blood dripping from a wound above his left eye. Constable Tate said that Mr Alqahtani complained that he had been confronted by a male after he left the ‘Supa 24’, that the male had called him “Arab scum”, and had then pushed a glass bottle into his face. Constable Tate said that Mr Alqahtani appeared to be “a little bit distressed”. Mr Alqahtani pointed out the appellant, who was nearby the ‘Supa 24’, as the person who had assaulted him. Constable Tate approached the appellant and cautioned him. He told the appellant that there had been an allegation of assault, and then asked him whether he had hit someone with a glass bottle. He said that the appellant turned to another male beside him and said, “Hey, Ziggy, did I have a glass bottle?” Constable Tate could not recall whether this other male made any response. Constable Tate then said that the appellant said to him, “If I see him or anyone like him I’ll fight them”. Constable Tate said to the appellant “No”. The appellant then replied to him, “Yes, anyone like him”. Constable Tate said that the appellant seemed quite aggressive and that his tone appeared to be aggressive. He believed that the appellant was slightly affected by alcohol, as he had bloodshot eyes and was slurring his words. During the course of the conversation Constable Tate conducted with the appellant, the appellant stated, “He started it”. He placed the appellant under arrest and escorted him to a nearby police vehicle.
21. Constable Tate said that he then had a conversation with Mr Alqahtani which was recorded. He said that during the conversation he formed the view that some of the things Mr Alqahtani was trying to articulate did not make sense, which he attributed to Mr Alqahtani’s poor English. He arranged for Mr Alqahtani to attend at the police station at a later date to provide a statement with an interpreter.
22. In cross-examination, Constable Tate denied that Mr Alqahtani had told him that he had pushed the appellant. He was then taken to a Statement of Facts prepared in relation to this incident, and agreed that in that Statement it said that Mr Alqahtani had pushed the appellant back to create distance between himself and the appellant. Constable Tate agreed that this was in the Statement, but he could not recall the basis for including that in the Statement. He said that it was possible that Mr Alqahtani had told him that he had pushed the appellant.
23. It was suggested to Constable Tate that he had actually asked the appellant whether he had hit someone with a wine glass rather than a bottle. Constable Tate said that this was possible, given that Mr Alqahtani’s English was poor. He also agreed that it was possible that the appellant had asked the person next to him, “Hey Ziggy, did I have a wine glass?” Constable Tate said that Mr Alqahtani had told him about a second fight breaking out between him and the person who had assaulted him. Constable Tate agreed that he had not included in his witness statement any reference to intoxication on the part of the appellant, but denied that it was possible that he was mistaken with respect to that observation.
24. Photographs of the injury sustained by Mr Alqahtani were tendered by the prosecution. The prosecution closed its case.
25. The appellant then gave evidence. He said that on 13 January 2017 he started work at 7 am and finished at 3:30 pm. He and a friend went to a Chinese restaurant and had dinner. He intended to sleep at the home of a friend in Braddon, because he had to work again the next day. He believed that he had dinner between about 6 pm and 8 pm on 13 January 2017. He said that he and his friend had consumed part of a bottle of wine at dinner, but they had not finished it because he had to work the next day. He went to Civic to wait for his friend at whose home he intended to spend the night. While waiting for his friend to finish work, he sat with another friend next to ‘Supa 24’. He said that he was not consuming alcohol but his friend, named Zigmund, was consuming alcohol. He said that the bottle of alcohol was sitting next to him on a milk crate. He said that Mr Alqahtani approached him and said, “Are you Mohammed?” The appellant replied that he was, at which time Mr Alqahtani said to him, “Disgrace. Your name is Mohammed. You know, you drink and you disgrace because that name is very important to us. Your name is Mohammed. You should not do that.” The appellant said that he stood up and said to Mr Alqahtani, “Who are you? Where do you come from?”, and Mr Alqahtani replied, “I’m from Saudi Arabia”. The appellant said that he said to Mr Alqahtani, “I’m not in Sharia law”, at which time Mr Alqahtani spat at him. The appellant testified that he then said to Mr Alqahtani, “Why you do that for?” He said that Mr Alqahtani then swore at him in Arabic, and then spat at him again. He said that the spit went into his eye, and Mr Alqahtani came close to his face, at which time he, the appellant, thought that Mr Alqahtani was going to spit at him again or head-butt him. He said that he believed Mr Alqahtani may be about to head-butt him because of the anger on his face. The appellant said that he picked up the bottle, raised both his hands and crossed them in front of his head to protect himself. The appellant denied hitting Mr Alqahtani with the bottle, but agreed that the bottle did come into contact with Mr Alqahtani. Although it is not clear from the transcript, it appears that the appellant indicated that the bottle came into contact with the head of Mr Alqahtani as that person advanced upon him, and he crossed his hands in front of his head. The appellant said that there was not a lot of force in that contact, and that the bottle did not break. The appellant denied being intoxicated at the time of these events. The appellant said that before Mr Alqahtani left the scene he said words to the effect of “We’re going to get you”. He said that later Constable Tate approached him and accused him of assaulting somebody. He said that he denied that accusation twice. He said that he told Constable Tate that if Mr Alqahtani came back, he would fight him. The appellant said that he had never seen Mr Alqahtani before this incident.
26. In cross-examination the appellant agreed, on his version of events, that although he had never met Mr Alqahtani before, Mr Alqahtani knew that his name was Mohammed. He denied that he had been drinking alcohol when Mr Alqahtani approached him. In the context that the evidence given by Mr Alqahtani was that this incident occurred at about 11:30 pm, the appellant was asked what he had done in Civic in the period after he had finished dinner at about 8 pm, and when the incident occurred. In response the appellant said that this incident occurred at about 9:30 pm to 10 pm, and had not occurred at about 11:30 pm. He said he knew this because his friend, with whom he was proposing to stay that night, usually finished work at about 11 pm.
27. The appellant stated that he could not recall whether the bottle from which his friend Ziggy had been drinking was a beer bottle or a wine bottle. It was suggested to the appellant that his evidence that he had never been in possession of the bottle was different to the version of events put to Mr Alqahtani by his counsel. It had been suggested to Mr Alqahtani that the first time he saw the appellant outside the ‘Supa 24’ he, that is the appellant, had a bottle in his hand. The appellant again denied having held a bottle when Mr Alqahtani first saw him.
28. The appellant admitted that he had not said that he was not drinking alcohol to Mr Alqahtani when, on his version of events, Mr Alqahtani approached him and abused him for drinking alcohol in public. This was despite the fact that the appellant believed that the confrontation was because Mr Alqahtani believed that the appellant was consuming alcohol. The appellant gave evidence that he had on previous occasions been assaulted, and had reported those assaults to the police. He was asked why he had not reported to the police that Mr Alqahtani had, on his version of events, assaulted him by spitting on him, the appellant replied, “[t]he incident happened when I did not have time to report it to police”.
29. The appellant said that after Mr Alqahtani left, he, the appellant, went to the McDonald’s restaurant and obtained a bandage, cotton and a bottle of water before going to the bus interchange. When asked why he did that, the appellant said:
Because in my heart – my heart is not emotional area and I guess my heart what I felt is if the gentleman approached me with nice – “Alcohol is bad for you,” and all that. If he approached me in my heart, you know, I will, you know, I will accept. I went there. The reason I went there first he got to apologise for me and this is medical and all that, “Wash yourself” and that’s the only – and I say that to him. He started yelling at me as well and after he started yelling at me and (indistinct) I left the bottle and first aid, I left it there and I walked back.
30. I understand the appellant to have been saying in the evidence extracted above that he obtained cotton, bandages and water from the McDonald’s restaurant with a view to provide this material to Mr Alqahtani to help him treat his wound, if Mr Alqahtani apologised to him. The appellant said that he approached Mr Alqahtani and said that to him, but Mr Alqahtani abused him. The appellant denied yelling at Mr Alqahtani in this incident. The appellant stated that he left the bottle of water and the first-aid material where he had been speaking to Mr Alqahtani, and walked back (presumably to where he had previously been seated with Ziggy).
31. In re-examination the appellant said that the bottle was next to Ziggy, and about an arm’s length away from the appellant, when Mr Alqahtani first approached him. He also denied that the security guard had stepped between him and Mr Alqahtani in the second altercation at the bus interchange.
32. The appellant called Zigmund Ciora to give evidence. In response to a question by the appellant’s then counsel asking whether he had spent time with the appellant on 13 January 2017, Mr Ciora commenced what promised to be a lengthy answer. He said “Yes. That was a Friday and he went to work. He started work at 7 o’clock, finished at 3.30 and he had people to see and it was about 9 o’clock at night - - -”. At this point he was interrupted by the Magistrate and directed to answer the question which was put to him. He said that he first saw the appellant that day at about 9 pm outside a 24-hour convenience store located in the Civic bus interchange. At that time, Mr Ciora said that he was seated on a crate and had a bottle of Chardonnay from which he was drinking. He said that the appellant sat down beside him, about a metre away from him on his left hand side. He said that they talked for about half an hour.
33. Mr Ciora stated that he had consumed a schooner of beer earlier in the evening, and that he had not consumed all of the wine in the bottle of Chardonnay. He described himself as sober at the time the appellant came and sat down beside him. He said that the appellant did not drink any of the wine.
34. Mr Ciora stated that a man came over and said to the appellant, “Are you Mohammed?” The appellant and this man then began talking in Arabic, and he felt that there was some tension between them. He got the impression it may have been something to do with their religious beliefs. He said that the other man eventually was very aggressive, and pushed the appellant twice and spat on him twice. He said that the man came towards the appellant, and then the appellant “picked up the bottle just to cover himself”. He said that the other man spat at the appellant twice before the appellant “picked up the bottle and (indistinct) and just to safeguard himself he just put it up like that, you know, so he wouldn’t get another… Like that with the bottle to cover himself from another spit”. The bottle was, Mr Ciora said, about two or three feet away from the appellant when he went to pick it up “to cover himself”. Mr Ciora was at pains to volunteer that the appellant had not picked up the bottle to hit anybody, but to cover himself so that he would not be spat on again. He said that after that occurred, the other man walked off and the appellant went to the McDonald’s restaurant.
35. In cross-examination, Mr Ciora said that he did not see the bottle strike the other man and he only “noticed that he’s picked it up to protect himself”. He was asked whether the bottle that the appellant picked up was broken at any time and he replied:
“Yes. When the other person started going up towards Mort Street the thing fell out, you know, like slipping out or something, yes. And that’s when he went to the (indistinct) McDonald’s. He came back with tissues and all that and from the Supabarn (sic) I went and got a broom to clear up there.”
He said that the appellant must have dropped the bottle. Mr Ciora said that the police had not been around when he was there.
36. Mr Ciora said that there was about five centimetres of wine left in the bottle. He denied being intoxicated, saying that he would have had to drink five bottles of Chardonnay in an hour before he would be intoxicated. He said that when the bottle broke, he asked the appellant to get some tissues, and the appellant went to McDonald’s. The appellant then brought the tissues back. He did not see the appellant have any further interaction with the other man, and the appellant did not tell him that he had any.
The Magistrate’s decision
37. The Magistrate briefly but accurately summarised the nature of the prosecution case. He noted that it was conceded that the bottle held by the appellant had struck Mr Alqahtani, occasioning to Mr Alqahtani an injury which would satisfy the requirements of actual bodily harm. The Magistrate correctly directed himself that the onus of proving the guilt of the appellant lay on the prosecution, to the standard beyond reasonable doubt. The Magistrate correctly directed himself that the evidence raised self-defence on behalf of the appellant, and he correctly directed himself on the elements of self‑defence and that the onus fell on the prosecution to establish beyond reasonable doubt that the appellant had not been acting in self‑defence. The Magistrate also correctly directed himself that he was not to approach the task of determining what happened by determining which version of events was more probable.
38. The Magistrate observed that there were three versions of the events which were before him. There was the version given by Mr Alqahtani, the version given by the appellant and a version given by Mr Ciora. The Magistrate rejected the evidence of Mr Ciora because his evidence was inconsistent with other agreed facts, being that the bottle had in fact struck Mr Alqahtani and that an injury was caused. The Magistrate also noted the evidence given by Mr Ciora that it would take five bottles of wine within a period of one hour to make him intoxicated, which the Magistrate found either implausible or suggested that the witness had a significant practice of consuming alcohol regularly. He considered the evidence given by Mr Ciora to be unreliable.
39. The Magistrate stated that the evidence of the appellant contained some aspects that were inherently implausible. The first aspect was that the appellant said that he was afraid for his safety when he was seated next to Mr Ciora and Mr Alqahtani approached, and he continued to be afraid for his safety when he stood up and the confrontation with Mr Alqahtani continued. In circumstances where the appellant claimed to be afraid that he would be spat on or head-butted by Mr Alqahtani, the Magistrate found it inherently improbable that instead of stepping away from Mr Alqahtani, he bent down and picked up a bottle. This action, the Magistrate determined, would have moved the appellant’s head closer to Mr Alqahtani. In addition, the Magistrate determined that the evidence of the appellant that he had not raised his voice to Mr Alqahtani in the course of the second altercation was inconsistent with the evidence of Mr Penny. The Magistrate accepted the evidence given by Mr Penny about this second altercation, and accepted his evidence that Mr Penny had stepped between the appellant and Mr Alqahtani at that time. The Magistrate also found it implausible that, on the appellant’s version, Mr Alqahtani knew his name although they had never previously met. The Magistrate also did not accept the evidence given by the appellant about the time when these incidents occurred, because that evidence was inconsistent with evidence given by Mr Penny and also Constable Tate. The Magistrate concluded:
All in all, I have serious reservations about the defendant’s evidence. To my mind, there are those inconsistencies which caused me to doubt whether or not there is really any truth to what he said, and I also note that it appears that his evidence appeared to evolve as time went on, and that is evidenced by the absence of any challenge to the complainant about aspects of what the defendant said in the witness box.
40. The Magistrate correctly observed that his rejection of the evidence of the appellant did not resolve the question of the appellant’s guilt. He turned to the prosecution case to determine whether he was satisfied beyond reasonable doubt of the guilt of the appellant based upon the evidence called in the prosecution case. He noted that there were certain inconsistencies in the prosecution evidence. He observed that in the initial conversation between Mr Alqahtani and Constable Tate, Mr Alqahtani had used the word “push” when describing the bottle hitting his face. Further, there was a suggestion in the police Statement of Facts that Mr Alqahtani had pushed the appellant, which would be different to the version of events given by Mr Alqahtani in the hearing before the Magistrate. The Magistrate noted that Constable Tate could not be certain whether Mr Alqahtani had said that he had pushed the appellant, but conceded that he may have. The Magistrate, however, noted that there was a clear language issue at that time and he did not consider it particularly remarkable that there may have been some confusion at the time Mr Alqahtani was speaking to Constable Tate without the benefit of an interpreter.
41. The Magistrate also noted that there was a suggestion of an inconsistency between what was said by Mr Alqahtani to Constable Tate, and the version of events given by Mr Alqahtani in the hearing, in that Mr Alqahtani in the proceedings before the Magistrate did not give evidence that the appellant had called him “Arab scum”. The Magistrate did not consider that to be determinative.
42. Having considered the alleged inconsistencies in the prosecution case, the Magistrate accepted the evidence given by Mr Alqahtani. He then made the following findings of fact:
I make findings that the defendant was sitting next to the store in Civic with a group, he was holding a large glass bottle, possibly a wine bottle. As the complainant walked towards the shop in question, being the Supa 24 convenience shop, the defendant spoke to the complainant in Arabic. The complainant did not respond except to say “I don’t want you to cause problems.” The complainant then entered the shop and then walked out sometime later. As he walked out he walked past the defendant. As he walked away he felt someone following him. He heard a voice. He turned and he observed the defendant behind him holding a large glass bottle and it was raised. He then felt the bottle strike him to the left‑hand side of his face just above his eyebrow. The strike was forceful and it caused a small laceration to that part of his face just above his left eyebrow. He experienced pain, headache and bleeding and it took some time to heal but I do not make a finding that the bottle in fact broke.
Just dealing with the issue of self-defence and the fault element of intention. On that version of events I accept the strike was intentional and on that version of events the prosecution has negated each of the elements or each of the components of self-defence and accordingly I find the offence proved.
Consideration
43. The appellant was unrepresented on the hearing of the appeal. He sought to put further evidence before this Court on the hearing of the appeal. That included a wine bottle which the appellant said was similar to the wine bottle from which Ziggy was drinking on the evening of 13 January 2017. That application was refused, as it would have been unfair to admit the bottle into evidence in circumstances where the complainant, Mr Alqahtani, had not seen it and had not had an opportunity to comment upon the resemblance between the two objects.
44. The appellant went through the transcript of the evidence before the Magistrate in considerable detail, with a view to demonstrating inconsistencies in the prosecution evidence. On occasion, he simply stated that he did not agree with aspects of the evidence. In my opinion, nothing is to be gained by referring to each of the individual complaints made by the appellant concerning the prosecution evidence in the proceedings before the Magistrate. I have carefully considered the evidence which was before the Magistrate, and I am not satisfied that the Magistrate made any material error of fact, or misstated or misapplied the law. There was an issue in the proceeding before the Magistrate as to whether the bottle directly hit the head of Mr Alqahtani, or whether it hit his hand and broke and a part of the bottle hit the head of Mr Alqahtani. The Magistrate was not satisfied that the bottle had broken, but found that the bottle had hit the head of Mr Alqahtani. There was no dispute in the proceeding before the Magistrate that the bottle had struck Mr Alqahtani: the issue was in what circumstances, and whether the prosecution could prove that it was not in self-defence. It was never suggested in the proceeding before the Magistrate that the small wound to the head of Mr Alqahtani, as observed by Mr Penny and Constable Tate, had not been caused by the bottle held by the appellant coming into contact with the head of Mr Alqahtani.
45. I agree with the Magistrate that the version of events given by the appellant was not credible. In particular, I agree that it is inherently unlikely that the appellant would have picked up a bottle, situated some two or three feet away from him, as some form of protection against being spat on, or even head-butted, as opposed to simply moving away from Mr Alqahtani.
46. The Magistrate had the benefit of being able to see and hear the witnesses give their evidence, which I have not. The potential discrepancies referred to by the appellant in the prosecution case were, to my mind, not of such a nature as to give me concern that an innocent man has been convicted.
47. I am satisfied that the appeal should be dismissed.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: |
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