Johnson v Police - [2014] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNSON v POLICE
[2014] SASC 26
Reasons for Decision of The Honourable Justice Anderson
24 February 2014
MAGISTRATES - HEARING - REPRESENTATION OF ACCUSED
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
Appeal against the decision of a magistrate who convicted the appellant of aggravated assault against a child by way of ex tempore judgment on 8 November 2013. The appellant's conviction emanated from an incident in which he struck the right side of his daughter's face in a round-arm blow. The penalty imposed by the magistrate was a 15 month good behaviour bond.
The appellant appeals the conviction on the basis that he did not receive a fair trial because the solicitor who represented him did not cross-examine his daughter on matters that she was instructed to, and did not adduce evidence provided to contradict his daughter's evidence. The appellant submitted that had this been done it would have placed in doubt the credibility of his daughter's account of events.
The appellant seeks to have the matter remitted to the Magistrates Court so as to enable a fresh trial.
Whether the acts or omissions of the appellant's solicitor if proved would have affected the magistate's decision to impose a conviction.
Held: Appeal dismissed.
In all the circumstances the conviction recorded against the appellant is not unsafe and unsatisfactory. There is not a significant possibility that the acts or omissions of the appellant's solicitor, even if they could be established, would have affected the outcome of the trial.

JOHNSON v POLICE
[2014] SASC 26
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

In this matter the appellant wishes to set aside a conviction recorded by a magistrate on 8 November 2013. I dismissed the appeal on 24 February 2014 and my reasons for that decision follow.
The appellant had been charged for an aggravated assault against his daughter Tamara. In the trial Mr Johnson was represented by a solicitor.
There were only two witnesses called in the trial, namely Mr Johnson the appellant and his daughter the complainant. There were three agreed facts which I set out later.
Mr Johnson has filed an affidavit attaching certain documents. Whilst there is a question as to the admissibility of that material for the purpose of an appeal I will regard it as encapsulating his outline of argument. I have also confirmed with him the basis of his argument.
Mr Johnson complains that he was not given a fair trial because the solicitor who represented him did not cross-examine Mr Johnson’s daughter on matters upon which she was instructed. He says that, had the cross-examination proceeded according to his instructions, the magistrate may well have reached a different conclusion.
Background
I will set out from the magistrate’s reasons the relevant facts regarding the incident.
5.The day of the incident was a Tuesday. Tamara said she woke up, got out of bed and began to prepare for school in the usual way. That included her having breakfast and putting on her school uniform. She said at one point of time she had turned on the television in the main room or the lounge and then had gone to her bedroom to continue her preparations for school.
6She said she became aware that her father was ready to driver her to school, and I understood that to be the regular method of her being taken to school, because she heard the vehicle start and she heard the toot of the horn. She was not, at that point, quite ready so she said she rushed and got ready as fast as she could and she went out and got into the car, into the front passenger seat.
7.She said that within a short time of the vehicle moving her father had said to her that he was “sick of my shit”. He had then gone on to complain about the waste of electricity occasioned by the fact that Tamara had turned the television on without staying in the room to watch it. Tamara said that he then leant over and ‘hit me in the face’. She said she had seen what was about to happen through the corner of her eye. She demonstrated a round arm type of blow connecting with the lower right side of her face and with a clenched fist. She said later in her evidence that she didn’t see her father’s fist was clenched but it felt as if it was a clenched fist.
8.She said she became teary and that she felt scared. She was angry that she had been struck by her father. She said she started shaking and was crying. She said that shortly afterwards she was aware of the sensation of her jaw where it had been hit, puffing up, and believed the jaw was swollen. She said there was no discussion between her and her father on the rest of the journey to school and he had dropped her at the front of the school. She said she went to the front office and asked to see the counsellor, a Mr Coulter. Mr Coulter came and took her to an interview room where she discussed what had occurred. Mr Coulter called Tamara’s mother, a lady by the name of Christine Reid. Tamara said the police arrived shortly afterwards and a crime scene investigator with the police also arrived. She said a police officer took photos. Four photos were shown to her and she identified them as being the photographs that were taken by the police officer on the morning of the incident. They were made an exhibit.
As part of the background the magistrate noted that Tamara’s parents had been separated since she was a baby. At the time of the incident she was 12 years of age. She had primarily been in the custody of the appellant. He had obtained custody after a hearing in the Federal Magistrates Court. She resided with her father but spent every second weekend with her mother. She was a student at Stuart High School at the time.
The agreed facts were as follows:
1.     At 9.45 am on 12 March 2013, Constable Crosby attended the Stuart High School and spoke with Tamara Johnson.
2.     Constable Crosby observed swelling and redness to the right side of Tamara Johnson’s jaw.
3.     At 10.50 am that same morning Senior Constable Green took photographs of Tamara Johnson’s face.
It was suggested to Tamara in cross-examination that she had made a false claim against her father so as to facilitate her being able to live with her mother who was less strict than her father. She denied those suggestions.
Mr Johnson denied the incident in his evidence before the magistrate.
The issues
It is clear that this was, as the magistrate observed, a contest between two witnesses being the appellant and his daughter. The magistrate formed a good impression of Tamara as a witness. He thought that she was considerably more mature than her age indicated. He recorded that she answered questions in a direct fashion, with cogency and with a degree of confidence.
The magistrate indicated that he found Mr Johnson also gave his evidence with cogency.
The magistrate finally concluded that Tamara’s evidence should be accepted. He formed the view that it was an honest recollection of events and found that she was telling the truth. He found specifically that she was not devious enough or clever enough to make up a story, maintain that story to the school counsellor, the police, her mother and then give the evidence in court.
Finally the magistrate said that he accepted Tamara’s evidence without hesitation and qualification and on that basis he found that the prosecution had proved the case against the appellant.
Fresh evidence
This is really an application in this appeal by the unrepresented appellant to call fresh evidence. He claims that the evidence was available and that despite his instructions the solicitor appearing for him in the hearing in the Magistrates Court failed to cross-examine Tamara according to his instructions. The documents attached to his affidavit are the documents that he said should have been used to cross-examine the complainant.
Three matters were emphasised by Mr Johnson in his submissions to the Court. The first relates to Tamara’s school attendance record. Mr Johnson said that he had provided a copy of the school report to his lawyer for her to use in cross-examining Tamara but it was not used. The report was for the whole of 2013. As this alleged incident occurred on 4 March 2013 it is doubtful whether, if his solicitor had sought to tender the document, it would have been admissible as most of it related to attendances at school after the alleged incident.
The reason Mr Johnson wanted to have the document tendered was to demonstrate that once his daughter went to live with her mother, after the alleged incident of 4 March, her school attendance deteriorated and became very irregular.
I doubt very much if this evidence would have been admitted by the magistrate but in any event His Honour found that Tamara’s attendance at school was not as good when she lived with her mother as distinct from her father.
The next matter pointed to by Mr Johnson was an inconsistency in what Tamara had said in a statement to the police and what she said in her evidence to the court.
The topic related to Raelene who was a friend of Mr Johnson. In her statement to the police Tamara stated that Raelene was not in the home on the morning of 4 March. In her evidence she stated that Raelene was in the house. Mr Johnson submitted that this would have affected the view the magistrate took of Tamara’s credit. The topic in my view is of little or no significance as to the events which are alleged to have occurred on the morning in question and falls within the category of a mistake made by a witness on an insignificant point. I doubt whether it could have affected the magistrate’s view on credibility.
Finally Mr Johnson pointed to some Facebook entries which he said he gave his solicitor to demonstrate that Tamara was in some form of a “relationship” with a young student at her school. She denied any relationship and maintained they were just school friends. Mr Johnson’s solicitor did cross-examine Tamara about this “relationship” but did not use the contents of the materials which Mr Johnson had provided to her. It is my view that there would have been great difficulty in tendering much if not all of this information. It would have necessitated showing its provenance. One document in particular, the text of a long communication between Tamara and the young man, is unexplained and does not have the appearance of the other Facebook entries. Its provenance is quite uncertain.
Mr Johnson argued that it was the combination of these three matters which would have caused the magistrate to take a different view as to Tamara’s credit. As I have indicated the magistrate took a favourable view of her credit.
I considered whether it was appropriate, having regard to Mr Johnson’s submissions, that the solicitor should be asked to provide an affidavit as to the matters raised by Mr Johnson. In the end I decided that it was not necessary to ask the solicitor to prepare such an affidavit. On Mr Johnson’s evidence the material which he refers to was all in the possession of the appellant and his solicitor when the trial took place. It is difficult to see how it would come within the definition of fresh evidence. It more points to an allegation of incompetence of the solicitor. Counsel conducting a trial has to make judgments in the normal course of the trial as to whether something is going to advance the case of the client or whether for other reasons it is dangerous to embark upon such a cross-examination. There could have been many forensic reasons why a decision was made not to use the material.
However, for the reasons which I have given I do not consider that there was any significant possibility that any acts or omissions of the solicitor, even if they could be established, affected the outcome of the trial. First, the new evidence had to be properly proved, and there is considerable doubt about that, but even if it were, I do not consider that there is a significant possibility that the magistrate would have acquitted the appellant had that further information been placed before him.
Conclusion
In all the circumstances it is my view that the conviction recorded against the appellant is not unsafe and unsatisfactory.
Accordingly I dismissed the appeal.