Jordan v Rutland
[2020] TASSC 61
•18 December 2020
[2020] TASSC 61
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Jordan v Rutland [2020] TASSC 61 |
| PARTIES: | JORDAN, Brendan John |
| v | |
| RUTLAND, Anthony (Sergeant) | |
| FILE NO: | LCA 836/2020 |
| DELIVERED ON: | 18 December 2020 |
| DELIVERED AT: | Launceston |
| HEARING DATE: | 24 July 2020 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Appeal against finding of guilt on one count of assault and one count of trespass – Whether finding of guilt was reasonably open to magistrate – Conclusions drawn by magistrate clearly open.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Cuthbert v Coates [2018] TASSC 7, cited.
Aust Dig Magistrates [1153].
Criminal Law – Particular offences – Assault – Generally – Definition of assault – Elements of the offence – Finding that the applicant was subjectively reckless in applying force to the complainant sufficient to amount to an assault.
Tasmania v Oates [2017] TASSC 39, applied.
Aust Dig Criminal Law [2208]
REPRESENTATION:
Counsel:
Applicant: M Doyle Respondent: S Nicholson
Solicitors:
Applicant: Clarke & Gee Respondent: Director of Public Prosecutions
| Judgment Number: | [2020] TASSC 61 |
| Number of paragraphs: | 16 |
Serial No 61/2020
File No LCA 836/2020
BRANDAN JOHN JORDAN v SERGEANT ANTHONY RUTLAND
| REASONS FOR JUDGMENT | BRETT J 18 December 2020 |
1 The applicant was charged with two offences arising out of events which occurred at Falmouth on 24 September 2018. It was alleged that the applicant had assaulted the complainant after an argument between them, by driving his motor vehicle at her and striking her with it. It was also alleged that he had then driven off, thereby failing to stop and give assistance, in breach of s 33(2) of the Traffic Act 1925.
2 After a hearing conducted on 3 and 17 March 2020, Magistrate S Cure found the applicant guilty of both charges. Although he had pleaded not guilty to both, his counsel had, in submissions, conceded his guilt with respect to the failing to stop charge. However, he maintained his dispute as to guilt in respect of the alleged assault. The applicant now seeks to review the magistrate's finding of guilt on that charge.
3 The sole ground of review is that that finding was not reasonably open to the magistrate on the evidence. The principles applicable on a review based on this ground were summarised by me in Cuthbert v Coates [2018] TASSC 7 as follows at [4] and [5]:
The test applicable to a review of a magistrate's findings of fact upon the evidence, pursuant to s 107 of the Justices Act 1959, is not in dispute. That test was succinctly stated by Crawford CJ (with whom Blow and Porter JJ) agreed, in Phillips v Arnold [2009] TASSC 43, 19 Tas R 21:
'A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117.'
The reviewing court is not entitled to 'weigh the evidence and reach its own conclusions', Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454 per Porter J. The only question for me is whether the conclusion reached by the magistrate was reasonably open on the evidence.
4 The complainant is a woman who was, immediately before the relevant events, driving past a farm property. The applicant was then employed as the manager of that farm. The complainant's evidence was that she noticed what she believed to be an injured lamb in a fenced paddock. She stopped her vehicle on the side of the road and entered the property to assist the animal. She conceded that she had trespassed on the farm by doing so. While she was in the paddock attending to the lamb, she was approached an employee of the farm, and then by the applicant. A dispute developed between the applicant and her about her actions in entering the property and attending to the lamb, which the applicant regarded as interfering with the farm's livestock. There was some dispute on the evidence as to what actually took place, but it is clear that both she and the applicant angrily expressed their respective points of view. Eventually, the applicant took possession of the lamb and took it over to his utility motor vehicle, which was parked on the opposite side of the road and facing in the opposite direction, to that of the complainant's vehicle.
5 The offences were alleged to have been committed during the events which followed next. It was common ground that the applicant drove his vehicle away from its parked position in the direction
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in which it was facing. It was also common ground that, after travelling a short distance, the applicant estimated approximately 200 metres, he executed a U turn and came back towards the complainant's vehicle which was still parked on the side of the road. The applicant said he did this because he wanted to view and record the complainant's registration number.
6 In the meantime, the complainant had returned to her vehicle, got into it and shut the door. Her evidence was that she tried to take a photograph of the applicant's vehicle as he drove off in order to record his registration number, but it was difficult to do so through the window of her car. Accordingly, she got out of the car and walked towards the grass verge of the road at the rear of her vehicle in order to take the photograph. She saw that the applicant's vehicle had performed the U turn and it was on the verge of the road on her side of the road, travelling towards her. She said that she "expected that he would complete the U turn and just go back onto the asphalt and drive off, but he just kept coming, he just kept coming on the verge instead of completing the turn and going onto the asphalt". She was taking photographs of the applicant's vehicle with her phone at this time. She said she was looking at the screen and "all of a sudden I had an excruciating pain through my left leg, I felt momentum of something hitting me and realised it was his vehicle". She recalled being twisted around by the impact, her phone "going" and then falling into the ditch at the side of the road. She then felt "gravel spraying over" her, heard and saw the applicant's vehicle driving off, and was then approached and provided with assistance by a passer-by.
7 The complainant was treated at the scene by an ambulance and transported to hospital. She gave unchallenged evidence that she suffered and was treated for a fracture of her left leg as a consequence of the collision. She also suffered an injury to her right thumb. The existence of these injuries and details of the surgical and other treatment provided to the complainant were confirmed by medical reports admitted into evidence without objection.
8 The applicant gave evidence. His version was also expressed in a recorded interview with police which was conducted on the same day as these events. In evidence, he said that he had performed the U turn in order to obtain the complainant's registration number. He was doing so in accordance with his employer's policy, which required him to report incidents of this nature. He stopped his vehicle behind the complainant's vehicle, on the same side of the road, in order to view and write down her registration number. He estimated that the distance between the vehicles was then two to three car lengths. The complainant was still in her vehicle when he started to write the number on a pad. When he looked up, she was out of the car and walking towards his vehicle. He decided to drive off, to avoid further confrontation. He indicated and had started to move his vehicle forward to turn onto the asphalt. The complainant was still approaching his vehicle with her phone raised. He described what happened next in the following terms:
"Okay. And what happens then?.....As I've done that she went to step to her right out
of the path and she was still looking at her phone – I didn't believe she'd got the number
and she as I've done that, she went to step to her right out of the path and she was still
looking at her phone and I didn't believe she got the number and she – she just propped in the one spot and lent like that and as she did, the corner of my bullbar was – it – itstruck her, just right in the corner of the bullbar. person."
Did you intentionally drive at her?.....No.
Did you intend to hit her?.....No.
Did you think I will hit her if I drive on?.....No.
9 The prosecution case was that the applicant had intentionally driven into the complainant, or, in the alternative, was guilty of subjective recklessness in doing so. In order to establish the latter, it was necessary for the prosecution to prove beyond reasonable doubt that he had actually realised that
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there was a risk that he might collide with the complainant, and had recklessly continued to drive, notwithstanding that risk: Beechey v McDonald [2010] TASSC 47; Tasmania v Oates [2017] TASSC 39. On the complainant's evidence, the requisite state of mind could be inferred from the fact that the applicant had driven his vehicle at her, rather than returning to the road. Her evidence was clear that she was stationary on the grass verge of the road, well off the asphalt, at the point of collision and had not stepped into the path of the vehicle. The applicant's version was, in essence, that he was moving onto the asphalt in order to drive off, and that the collision only occurred because the complainant stepped into the path of his vehicle.
10 There were two other important pieces of evidence. Firstly, a series of three photographs from the complainant's telephone, taken as the vehicle approached her immediately before the impact, were admitted in evidence. The first shows the applicant's vehicle some distance away. The applicant said that this photograph showed his vehicle in the position in which he had stopped to write down the number. He said the complainant was still in her vehicle when he stopped. On his version, the complainant must have taken this photograph after she exited her car and was walking towards him. The complainant's version was that she was out of her car and in a stationary position on the verge of the road when the applicant's vehicle returned to that position, and when she took the three photographs. They were taken in immediate succession, as the applicant's vehicle was moving towards her. The second photograph shows the vehicle when it had almost reached the complainant, and the third shows the vehicle virtually at the point of impact. In the second photograph, a notebook can be seen in the possession of the applicant, which is consistent with his evidence that he had noted the registration number of the complainant's vehicle. Further, in that photograph, the front wheels of the applicant's vehicle are turned, consistent with the vehicle being steered onto the road. However, it is also apparent that each of the photographs is taken from a position which is off the asphalt and on the gravel verge of the road. It is apparent from the third photograph that the complainant is in this same position at the point of impact. The photographs provide cogent support for the following factual conclusions:
That the applicant has driven his vehicle along the verge towards the complainant as she is taking
the photographs, to the point where he has collided with her. That the complainant is stationary in a position well off the road, at least while the three photographs are being taken. As the photographs were taken in quick succession up to the point of impact, the only reasonable inference is that the applicant was in this position when the vehicle collided with her. That from the position of the applicant's vehicle in the first photograph, there was ample room for
the applicant to return his vehicle to the road well before reaching the complainant's location.11 The second piece of evidence is the oral testimony of Toni Jones. Ms Jones was, at the relevant time, driving a vehicle in the opposite direction to that in which the applicant's vehicle was facing, towards the position of the complainant and the applicant. Ms Jones saw the applicant's vehicle collide with the complainant. She described the collision in the following terms:
"And we got to the bottom of that and as we sort of came around a small bend I was looking obviously ahead cause I was driving and I noticed a car take off from the side of the road at speed and a woman went flying and was hit by that vehicle.
Okay now when you say went flying what do you mean when you say flying?.....The – the – she actually left the ground and – and went flying down the ditch on the side."
12 Ms Jones said that the complainant was standing on the side of the road when she was struck by the vehicle. She marked the position in a photograph, which clearly shows the complainant's position on the gravel verge, well off the bitumen surface of the road. This was also consistent with her description of events to the police in a 000 call, which she made immediately after the collision. When asked in cross-examination if it was possible that the collision had "happened straddling the gravel and the bitumen", she said, "No. She was ... definitely on the gravel."
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13 The learned magistrate gave ex tempore reasons for her decision to find guilt proved in respect of the assault charge. Her Honour accepted the substance of the complainant's version as accurate, and in particular rejected the applicant's assertion that the complainant had stepped out in front of his vehicle. Her Honour observed that the photographs taken by the complainant clearly demonstrated that the applicant had driven at her and that he had ample room and time to drive back onto the bitumen well clear of the complainant's position. Her Honour considered that the "fact that he drove off at speed was a matter significant to his state of mind". This was a reference to the fact that the applicant did not stop to assist the complainant despite being aware that his vehicle had collided with her. It is clear that her Honour was not drawing an inference that the applicant drove off because he was conscious of his guilt. The magistrate had earlier in the hearing correctly discussed with counsel the preconditions required in order to use evidence of flight for such a purpose. Rather, it seems to me that the magistrate was simply noting that the applicant's conceded action in driving off was consistent with doing so in anger, which was in turn consistent with Ms Jones' observation that he had driven off "at speed". This was all, in turn, consistent with the prosecution assertion that the collision had occurred as a result of the subjective recklessness of the applicant.
14 Ultimately, her Honour concluded as follows:
"I'm satisfied that he drove at her but I'm satisfied that not – but I'm not satisfied beyond
reasonable doubt that he drove at her deliberately but I am satisfied that he drove at her and he drove at her in such a way that he was reckless and would have foreseen that he could have hit her and continued in his behaviour anyway or in his conduct anyway and I'm satisfied that he had plenty of time to drive out onto the bitumen and I'm not satisfied that she jumped out in front of him but that he is responsible for the application of force with a reckless state of mind therefore I'm satisfied in all the circumstances that charge 1 is made out."
15 In my view, the learned magistrate's reasoning is unimpeachable. There is no question that the photographs and the evidence of Ms Jones support the complainant's version that she was standing on the verge, well off the bitumen at the time that the applicant's vehicle collided with her. Further, it is obvious from the photographs that the applicant had ample time and room in which to drive back onto the bitumen without reaching the complainant's location. Not only was the finding of guilt open to the magistrate, it was the only reasonable conclusion available on the basis of the evidence accepted by her. While her Honour reasonably concluded that she was not satisfied that the applicant had intentionally driven into the complainant, the evidence overwhelmingly supported the conclusion that he had deliberately driven his vehicle extremely close to her, in circumstances in which he must have contemplated the possibility of colliding with her. Having regard to the photographic evidence and the evidence of Ms Jones, her Honour was justified in rejecting the applicant's evidence that the complainant had stepped in front of his vehicle. The magistrate was entitled to infer that the applicant must have contemplated the risk that his vehicle may collide with the complainant, but had recklessly continued to drive close to her, notwithstanding that risk. The consequent application of force therefore constituted an assault.
16 I am satisfied that the finding of guilt was reasonably open to the learned magistrate on the evidence. The motion is dismissed.
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