Jackson v Allen

[1995] QCA 76

IN THE COURT OF APPEAL	[1995] QCA 076
SUPREME COURT OF QUEENSLAND

C.A. No. 480 of 1994.

Brisbane

[Jackson v. Allen]

PAUL ANTHONY JACKSON

v.

KAYLEEN JANELLE ALLEN

Applicant

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Fitzgerald P.
Pincus J.A.
Davies J.A.

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Judgment delivered 31/03/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS:  CRIMINAL LAW - conviction - wilful and unlawful damage to clothing - unlawful assault - whether magistrate misdirected himself as to standard of proof - whether inference that the magistrate misunderstood the effect of absence of evidence from defence.

Counsel:Mr R Lynch for the appellant.
Mr M Byrne Q.C. for the respondent.

Solicitors:Legal Aid Office for the appellant. Director of Prosecutions for the respondent.

Hearing date:23 March 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 31/03/1995

This is an appeal against a Magistrates Court conviction on two charges, one of having wilfully and unlawfully damaged certain clothing belonging to Mr J J Caruso, and the other of having unlawfully assaulted Mr Caruso.

There was it appears credible evidence, which was uncontradicted, to support those charges, so that it was not perhaps surprising that the magistrate was satisfied that they were proved. The only point taken by Mr R J Lynch, for the appellant, is that the magistrate misdirected himself with respect to the standard of proof. The passages in the reasons which are most relevant to the contention put forward are as follows:

"Now we are in the situation where the defendant has chosen not to call evidence and that is her right. Therefore, the evidence that I have before me is that of the prosecution witnesses only."

"Now, the matters raised in cross-examination is that the only challenge to the evidence, I find that these matters have not caused me to have any doubts about the evidence which they gave to the matters relevant to these two charges. There were a lot of side issues; however, the fact of regarding to the assault and the wilful damage, I found the evidence in relation to those offences to be consistent..."

"The defendant has chosen not to give evidence. It makes it difficult unless the evidence is so badly presented as to be totally unreliable. I do not find that it is totally unreliable and on the whole of the evidence I accept that of the prosecution witnesses in relation to the assault and I find that the prosecution has proven every element of that charge beyond a reasonable doubt and I find the defendant guilty of the assault charge."

"On the evidence before me, in relation to that charge also, I accept the evidence of the prosecution witnesses and I find that the prosecution has proved every element of that charge beyond a reasonable doubt and I find the defendant guilty of that offence also."

It is to be noted that the magistrate found that the matters raised in cross-examination did not cause him to have any doubts about the evidence relating to the two charges and that such evidence was consistent. His Worship on the whole of the evidence accepted the prosecution witnesses relating to the assault and found that charge to have been proved beyond reasonable doubt. He also found the wilful damage charge to have been proved beyond reasonable doubt.

The sentences beginning "It makes it difficult unless..." and the following sentence in the passage quoted above are puzzling. I would take the words "It makes it difficult" to imply that, in the circumstances of the case, the absence of contradiction of the prosecution witnesses created a difficulty for the defence, presumably because his Worship found the evidence of the prosecution witnesses acceptable. The real problem is not the reference to it being difficult, but the following words, "unless the evidence is so badly presented as to be totally unreliable". It is possible to read that qualification as conveying that the magistrate acted on the basis that he accepted the prosecution case, the defendant not having given evidence, merely because the prosecution witnesses were not totally unreliable. But to read the passage in that way makes it hard to reconcile with the earlier, clear statements indicating a favourable view of the prosecution evidence, and the subsequent acceptance of the prosecution witnesses beyond reasonable doubt.

Mr Lynch, correctly in our view, refrained from submitting for the appellant that the language the magistrate used clearly shows a wrong approach; the question is whether it creates substantial uncertainty on the point whether the magistrate understood that the absence of evidence from the defence did not alter the onus on the Crown, namely to adduce such evidence as would satisfy the Court to the requisite standard.

Although the references to the question whether the prosecution evidence was totally unreliable are capable of supporting an inference that the magistrate simply misunderstood the effect of their being no evidence from the defence, the reasons read as a whole do not justify that inference. It is surely improbable that the magistrate truly believed the law to be that the prosecution must succeed unless its evidence was totally unreliable. The probable explanation of the passage of which the appellant complains is a lapse in concentration in the course of delivering a judgment which appears to have been ex tempore, rather than a real failure to apply a basic and well understood principle of our criminal law.

We would dismiss the appeal.