Johnson v Police - [2011] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNSON v POLICE
[2011] SASC 220
Judgment of The Honourable Justice Kelly
9 December 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT
Appeal against conviction – appellant found guilty of one charge of aggravated assault pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) – appellant appealed on the ground that conviction unsafe – appellant complained that Magistrate failed to properly consider the whole of the evidence and failed to give adequate reasons for accepting victim’s evidence in light of its many inconsistencies – Magistrate also erred in awarding costs against the appellant – whether the Magistrate assessed the totality of the evidence – whether Magistrate’s findings on credibility open to him – whether evidence to satisfy trier of fact beyond reasonable doubt – whether the Magistrate correctly awarded certain costs against the appellant.
Held: appeal dismissed – the Magistrate correctly assessed all the evidence before the court and gave due weight and consideration in all of the circumstances – the Magistrate correctly used his discretion to award particular costs against the appellant.
Summary Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (SA) r 51, referred to.
Curnow v Police (2008) 100 SASR 290, considered.

JOHNSON v POLICE
[2011] SASC 220
Magistrates Appeal: Criminal

KELLY J: The appellant appeals against a conviction for one count of aggravated assault. The appellant was convicted after trial before a magistrate who delivered ex tempore reasons on 11 August 2011.
The charge arose out of an incident between two neighbours on 22 May 2010. On that date outside the premises of the appellant there was a confrontation on the roadway between the appellant and the victim during which the appellant struck the victim three times with an iron crowbar. The circumstance of aggravation was the use of the iron crowbar in the assault on the victim.
The appellant complains that the conviction is unsafe and unsatisfactory. Particular complaints advanced on appeal were: that the Magistrate failed to properly consider the whole of the evidence; that he failed to accord sufficient weight to the inconsistencies and unreliability in the victim’s evidence; that he erred in placing reliance on a prior inconsistent statement of one of the defence witnesses; and that he failed to give adequate reasons for accepting the evidence of the victim on the essential allegations after making adverse findings of credit about the victim.
In support of these grounds the appellant identified a number of aspects of the evidence which he contends are inconsistent with a finding of guilt, and to a number of errors allegedly made by the Magistrate in the course of his remarks which he argues reveal that the Magistrate failed to properly consider the evidence.
The appellant’s counsel pointed to the inconsistencies in the evidence of the prosecution witnesses, in particular the victim Mr Sunman. He submits that the Magistrate did not give adequate reasons for accepting the victim’s evidence in light of these infirmities and his finding that the victim was less than impressive. It was also contended that the Magistrate made three errors of fact which went to the heart of his reasons for finding the appellant guilty.
Nature of This Appeal
This is an appeal by way of rehearing. It is the duty of this Court to make its own assessment of the evidence, after giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses and after giving weight to any findings on credibility which depend largely, or in part, on demeanour.
The Evidence
The evidence before the Magistrate came from the victim, Dr Lecons a general practitioner who treated the victim for his sustained injuries, an independent witness named Kevin Langley who happened to be working on a neighbouring property and witnessed some, but not all, of the events surrounding the assault, and the police officer who interviewed the appellant. There was also some closed circuit television (CCTV) footage from cameras installed on the appellant’s property. The footage was of poor quality and did not show the actual incident but did show some of the events leading up to and immediately after the assault. Even though there was some evidence independent of the victim and the appellant, it is fair to say that the Magistrate’s determination of the issues before him depended largely on his evaluation of the credibility of the appellant and the victim.
I deal first with the errors of fact said to be made by the Magistrate. The first error was said to be comments made by the Magistrate in the course of summarising the evidence. The Magistrate said:
He [the appellant] conceded that this second confrontation on the roadway resulted in a screaming match between them but denied every [sic] striking the victim with the crowbar as alleged, and denied that there was any other physical contact between them at all.
In cross-examination it was put to him that Mr Langley, the earth moving contractor working on a neighbouring property, after hearing the commotion on the roadway had approached and he testified that he saw the defendant throw a punch towards the victim which missed, followed by a scuffle between the defendant and the victim and that punches were thrown by both parties which did land on each other. Even in the face of that evidence he continued to deny that there had been any physical contact between them.
[emphasis added]
Counsel for the appellant submitted that the italicised comments above demonstrate that the Magistrate misunderstood the evidence as in fact there was evidence from the appellant that he did have physical contact with the victim. Counsel pointed to the evidence of the appellant during the course of his cross-examination when he admitted in relation to the ongoing altercation with the victim “I’ve grabbed him like – we’ve grabbed each other by the scruff of the neck, he’s come at me so I’ve held him away with my hand”.[1]
[1] Transcript at 100.
Although taken in isolation the Magistrate’s remarks in the italicised passage above are equivocal, it is plain after reading both the whole of the appellant’s evidence and the Magistrate’s reasons that his Honour’s remarks were references to the denial of the appellant, even in the face of the CCTV footage, that he ever punched the victim during the incident on the roadway after the witness Mr Langley came upon the scene. That interpretation of the Magistrate’s remarks is reinforced by his comments elsewhere in the reasons when he said, with reference to the evidence of the appellant’s son, “[h]e also supported his father’s version that there was no physical contact between the defendant and the victim when Mr Langley (the big guy) arrived, totally contrary to Mr Langley’s testimony”. Therefore, I do not accept that there was any error of fact in those comments made by the Magistrate.
The next error was said to be the Magistrate’s use of a prior inconsistent statement of the appellant’s son to the police. It was said that the Magistrate used that statement to corroborate the victim’s version of events. The appellant pointed to a passage in the Magistrate’s reasons where he said:
There was also evidence from his 17 year old son who had been working on their fence with his father at the time in question, and he told the police that when the victim walked down the road past their property, that his dad said something to the victim at which the victim turned and approached their front fence. This is contrary to the defendant’s denial that he had said anything at all to the victim as he walked past his property. The defendant said in evidence that the victim decided to do a u-turn without any explanation whatsoever and that he approached his front fence and started abusing him. That to me is just an improbable scenario especially given their past history of antagonism and the son’s evidence confirmed that there was something said by his father that incensed the victim and caused him to turn around and approach their front fence. In court the son attempted to resile from that statement to the police and proceeded to corroborate his father’s evidence that nothing had been said by him.
The impugned remarks were made in the course of the Magistrate’s reasoning toward the conclusion that he was not ultimately prepared to rely on either the evidence of the appellant or the appellant’s son about the incident. The Magistrate delivered his reasons ex tempore immediately after the conclusion of the evidence. The reasons although detailed were not sequential or as lucidly expressed as might have been the case if judgment had been reserved. Nevertheless, the Magistrate’s reasoning is clear enough. I do not consider that the impugned comments when read in context indicate that the Magistrate improperly used a prior inconsistent statement of the son as positive evidence in the case. The Magistrate did, as he was entitled to, use the prior statement of the son in reaching the conclusion that the son could not be believed.
The final error said to have been made by the Magistrate about the facts was his comment that “[t]he son said that the victim had stomped on some olive plants but caused no damage”. This was said to be in plain conflict with the son’s evidence which was to the contrary.
What the son actually said was that the victim had stomped on the olive plants but only one of them was damaged. To that extent then, the Magistrate did make an error, however for the reasons which follow I do not consider that one minor slip in relation to the facts has led to any miscarriage of justice.
The next complaint is that despite having found that the victim was at times a less than impressive witness and that there were inconsistencies in his evidence and in some instances a tendency to minimise his involvement in the incident and exaggerate the appellant’s actions, the Magistrate accepted that the victim was truthful and reliable about the events which were the subject of the charge, without providing adequate reasons for doing so. In essence, this is a complaint that the Magistrate has therefore failed to give adequate reasons for the finding of guilt.
Counsel for the appellant pointed to a number of statements made by the victim during the course of giving his evidence, which he contends the CCTV footage and other evidence demonstrates to be false. He referred to the victim’s denials that he was involved in any scuffle with the appellant on the roadway. He also referred to the victim’s assertion that he went next door to feed the animals prior to the incident, and to the victim’s account of the altercation at the front fence prior to the assault on the roadway. All of these accounts were said to be contradicted by the CCTV footage, and to some extent by the police officer’s evidence that he observed plants in the area where the appellant said the victim stomped immediately prior to the physical altercation.
It was contended that all these matters combined with the fact that there was no corroboration on the CCTV footage which might support the account of the victim, should lead this Court to conclude that the conviction is unsafe.
Discussion
I have considered the whole of the evidence before the Magistrate, bearing in mind the particular criticisms of that evidence by the appellant’s counsel.
For the reasons which I have given I find the Magistrate, apart from the one error in relation to the observation about the son’s evidence that one of the olive plants had been damaged, did not make any error on the facts. I turn now to consider whether on the whole of the evidence the conviction is unsafe.
The assault the subject of the charge occurred against a background of ill feeling between the appellant and the victim. It was apparent from the evidence that both of them previously have faced charges in relation to each other and the victim has been previously convicted of assaulting the appellant. This is a matter which was uppermost in the Magistrate’s mind as appears from his opening remarks. This was not a reason why it was not open for him to determine, based on his findings on credibility, that the prosecution had proved its case beyond reasonable doubt in relation to this particular incident.
As I said at the outset, the issues which arose for determination by the Magistrate in this matter were to be determined almost wholly on the basis of his findings of credibility. The Magistrate correctly commented that the CCTV footage, while confirming inconsistencies in the victim’s version of events, was entirely inconclusive in relation to the events which were the subject of the charge.
His Honour’s reasons indicate that he took into account all of the inconsistencies, real and alleged, in the victim’s evidence including the alleged feeding of the animals prior to the incident, the stomping on the plants outside the appellant’s front fence, the punching at the fence, the scuffle after the charged assault and the nature and extent of the injuries suffered by the victim and his three year old son.
With respect to the particular complaint that the victim falsely claimed that his son had been struck, the victim provided a logical explanation for that mistaken belief. In the course of cross-examination he explained that he initially believed that his son had been hit by the crowbar during the assault and that was the reason why both he and his son attended the hospital after the incident. He said that was the reason why he claimed to other witnesses that his son had been hit by the crowbar. I consider in the light of that explanation that there is no substance in this particular complaint. No injury to the child was ever alleged by the prosecution. In any event there is nothing in the reasons given by the Magistrate to suggest that he did not properly take this and all of the other matters complained of into account in reaching the ultimate conclusion that the victim’s testimony about the actual assault was truthful and reliable.
The Magistrate in reaching his conclusion was entitled to take into account the medical evidence, so far as it went, in support of the victim’s account. The evidence of the injuries to the victim came from the police officer who recalled seeing some injuries to the victim’s wrist, hand area and forearm, and from Dr Lecons who gave evidence of his observations. Dr Lecons expressed the view that the injuries he saw were consistent with an assault with a blunt instrument. In addition there were some photographs of the victim which were taken on 23 May 2010. If accepted by the Magistrate, this was evidence that was, generally speaking, consistent with the account given by the victim of the assault by the appellant. There is no error in the Magistrate’s use of that evidence.
The Magistrate had a significant advantage which this Court does not have in that he saw and heard the witnesses. In my view the appellant has not demonstrated that the Magistrate’s findings of credibility are inconsistent with facts incontrovertibly established by the evidence or that they are glaringly improbable.
In many respects this was a straight forward trial in which the Magistrate was presented with two starkly differing versions of the events which were the subject of the charge. Although the CCTV footage was neutral as to the sequence of events which formed the subject of the charge, nevertheless there was some support in the CCTV footage for key aspects of the victim’s evidence, namely that he walked away from the fence, and the appellant jumped over the fence and went after him. Moreover, the evidence from Dr Lecons that the victim’s injuries observed by him were consistent with defensive injuries to ward off a blow, and that it was more likely that the two injuries observed by him were caused by two separate impacts, was also consistent with the victim’s account.
It is of some significance that the appellant did not deny that he jumped over the fence and followed the victim down the roadway while carrying the crowbar. Nor did he deny that he approached the victim on the roadway with the intention of confronting him.
This is not a case where the brevity of the Magistrate’s approach has deprived this Court of being able to properly examine the reasoning which led the Magistrate to conclude that the charge was proved. On the contrary, the Magistrate’s reasoning is clear. He acknowledged explicitly that the victim was at times less than impressive, that there were inconsistencies in the victim’s account, and that he had a tendency to minimise his involvement in the incident and exaggerate the appellant’s actions. In the end the infirmities in the victim’s evidence did not cause the Magistrate to doubt the reliability of the victim’s testimony as to the precise events the subject of the charge. As the trier of fact, the Magistrate was entitled to accept or reject some, all or none of the victim’s evidence. In reaching the conclusion he did he was entitled to take into account that there was evidence independent of the victim which supported the account given by the victim.
Having read the whole of the evidence for myself I consider that the Magistrate was entitled to approach the evidence in the way he did. The one error of fact which he made about the evidence of the appellant’s son regarding a peripheral matter, namely the actions of the victim when he first approached the fence prior to the altercation, does not cause me to doubt the reliability of the conviction.
After completing my own independent review of the evidence there is nothing which causes me to doubt the correctness of the conclusion reached by the Magistrate.
The final ground of appeal was against the costs order made by the Magistrate. This included an award of costs for the day that the trial was originally scheduled to start but which was adjourned because the Magistrate who was originally assigned to the matter disqualified herself. The result was that the appellant was ordered to pay costs which included an additional fee for the witness Mr Langley in the sum of $750.
Counsel for the appellant submitted that the Magistrate should have exercised his discretion not to order the appellant to pay the witness costs thrown away by the fact that the trial had to be aborted in those circumstances.
In Curnow v Police,[2] Debelle J discussed the issue of costs and the relationship between s 189 of the Summary Procedure Act 1921 (SA) and r 51 of the Magistrates Court Rules 1992 (SA). Section 189 of the Summary Procedure Act 1921 (SA) confers a wide discretion on the Court in relation to costs.
[2] Curnow v Police (2008) 100 SASR 290.
In this case it is apparent from the reasons of the Magistrate that he was very much alive to the history of the matter. As I have remarked earlier in these reasons, this was not a case where the issues to be determined were complex. The matter was in some respects quite straight forward. There appears to be nothing in the conduct of the matter which would suggest that the Magistrate would depart from the usual principle that the losing party should pay the costs of the trial. It is an inevitable part of the preparation for trial that there will be a number of pre-trial hearings and that from time to time adjournments are required for a variety of reasons, one of which may include the necessity for a judicial officer to disqualify himself or herself.

There is nothing which has been brought to my attention to indicate that the Magistrate did not have in mind all of the relevant factors when exercising his discretion pursuant to s 189 of the Summary Procedure Act 1921 (SA) to award costs against the appellant. I can see no reason why I should disturb that order.
For these reasons I dismiss this appeal.