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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Police

Details

AGLC: Johnson v Police [2011] SASC 220
Case: [2011] SASC 220
Decision Date: 9 December 2011

CaseChat Overview and Summary

In the case of Johnson v Police, the appellant was found guilty of aggravated assault under section 20(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant appealed against the conviction, arguing that the Magistrate failed to properly consider the entirety of the evidence and did not adequately justify the acceptance of the victim’s evidence due to its inconsistencies. The appellant further contended that the Magistrate erred in awarding certain costs against him. The Supreme Court of South Australia was tasked with determining whether the Magistrate had assessed the totality of the evidence, whether the Magistrate’s credibility findings were within his discretion, and if the evidence satisfied the burden of proof beyond reasonable doubt. Additionally, the Court had to consider whether the Magistrate correctly awarded specific costs against the appellant.

The Supreme Court held that the appeal should be dismissed. The Court found that the Magistrate had correctly assessed all the evidence presented and appropriately considered it within the circumstances of the case. The Court also determined that the Magistrate's findings on credibility were within his discretion and that the evidence was sufficient to satisfy the trier of fact beyond reasonable doubt. Furthermore, the Court concluded that the Magistrate correctly exercised his discretion in awarding particular costs against the appellant.

The evidence in this case included testimony from the victim, Dr Lecons, who treated the victim's injuries, an independent witness named Kevin Langley, who witnessed part of the assault, and the police officer who interviewed the appellant. There was also CCTV footage, though of poor quality, showing events before and after the assault. The Court emphasised that while some independent evidence was available, the Magistrate’s determination largely depended on the evaluation of the credibility of the appellant and the victim. The Supreme Court found no errors in the Magistrate's assessment of the evidence or his exercise of discretion in awarding costs.

In conclusion, the Supreme Court dismissed the appeal, affirming the conviction and the costs awarded by the Magistrate. The Court found that the Magistrate had correctly evaluated the evidence and exercised his discretion appropriately.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.