Kolusovski v Police - [2013] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KOLUSOVSKI v POLICE
[2013] SASC 78
Judgment of The Honourable Justice Gray
30 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Appeal by defendant against conviction and sentence - defendant convicted following a trial in the Magistrates Court of one offence of assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) committed on 4 February 2012 - Magistrate imposed a fine of $1,000.00 and made an order restraining the defendant from contacting the complainant or the complainant's wife - whether Magistrate failed to have regard to alleged inconsistencies in the prosecution evidence - whether sentence imposed was manifestly excessive.
Held: Appeal dismissed - Magistrate's findings of fact were open on the evidence - sentence imposed by Magistrate was appropriate.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 19A, referred to.

KOLUSOVSKI v POLICE
[2013] SASC 78
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction and sentence.
The defendant and appellant, Johnny Kolusovski, was charged with the offence of assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that on 4 February 2012, he assaulted the complainant at Brahma Lodge. The defendant pleaded not guilty. He appeared in person at the trial and on appeal.
Following a trial before a Magistrate, the defendant was convicted of the offence as charged. The Magistrate imposed a fine of $1,000.00 and ordered the defendant to pay a victims of crime levy of $320.00 and prosecution fees of $100.00. Pursuant to section 19A of the Criminal Law (Sentencing) Act 1988 (SA), an order was made that the defendant not approach or contact, either directly or indirectly, the complainant or his wife. It was further ordered that the defendant not assault, harass or intimidate the protected persons.
It was the prosecution case that the complainant and his wife were neighbours of the defendant. They had been neighbours for about 10 years. On Saturday 4 February 2012, at about 11.30 am, the complainant and his wife returned home from shopping. The complainant parked his motor vehicle in the driveway of their home. He saw that the defendant was lying down working on a water pipe in the defendant’s driveway. The defendant called out that he wanted to speak to the complainant. The complainant went to the end of the driveway and met the defendant. The defendant accused the complainant of trying to break into his house the night before and of having threatened his mother. The complainant denied having done so and said to the defendant, “Johnny you’re a liar”. In response, the defendant punched the complainant on the chest. It was the prosecution case that the complainant had a bruise on his chest as a result of the blow that had been struck by the defendant.
On the prosecution case, the complainant’s wife witnessed the incident. She heard the defendant accuse the complainant of threatening his mother and heard the complainant deny the allegation. She then heard the defendant accuse the complainant of having been in the defendant’s garage. She then observed the defendant punch the complainant on the upper left side of his chest. At that time, the complainant had been standing upright, facing the defendant, with his arms by his side. The complainant’s wife gave evidence of observing the bruise on the complainant’s chest.
The police were called and attended about 15 minutes later. Constable Ainslie gave evidence of his attendance and of speaking to the complainant in the front yard of his home. The complainant showed him a mark on his chest and made a complaint about the assault. Constable Ainslie then attended the defendant’s home and arrested the defendant.
It was the defence case that there had been no altercation as alleged. The defendant gave evidence that at the time of the alleged assault, he was shopping with his mother and was not at home. He had left his home at about 9.00 am and returned after midday. Following his return, he was at home with his mother discussing trimming a grapevine when the police arrived. He said that he did not see or speak to the complainant that morning before the police arrived.
The defendant gave evidence that the police came to his home at about 12.30 pm and told him that he had been reported for an assault on his neighbour. He informed Constable Ainslie that this was a diversionary tactic and that the complainant suffered from attention deficit disorder, panic attacks and was mildly retarded.
In evidence, the defendant asserted that the night before the alleged incident, he had spoken to the complainant between 11.00 pm and 11.30 pm. He, at that time, informed the complainant that the complainant’s wife and stepson had come over to his home to look for a bird and had ransacked his shed. He said that he put verbal pressure on the complainant to put pressure on his wife to keep their problems on their side of the fence. He informed the complainant that he would take the matter to the Small Claims Court and that he would go to the Law Society.
The defendant gave further evidence that his mother, who lived at his premises, had informed him the night before that she had been confronted by the complainant’s wife and stepson in the shed. They said that they were looking for a bird and were abusive to his mother. He claimed that there was damage to the side sheeting of the garage and to the holding and locking mechanism of the door.
When cross-examined, the defendant maintained that he had been shopping on the morning of 4 February 2012 and had not returned until shortly after midday. He said that he was not surprised by the police visit as he was expecting that they would attend in relation to the incident of the previous evening. He said that he was taking medication in respect of anxiety, depression and pain. He denied being upset with the complainant in relation to the incident of the previous evening, and said that the complainant had been a good friend and had helped him in the past. The defendant asserted that he only wanted compensation. He denied that he had been working on a water pipe that morning. He claimed to have done so about two weeks earlier. He described the police conduct in arresting him as, “opportunistic, like paedophiles and like child molesters, they want to get people slam dunked in the court”.
The defendant’s mother gave evidence. She recalled the police attending on 4 February 2012, but asserted that she did not know the reason for their attendance. She recalled going shopping with the defendant at Prospect and that they had gone to Pooraka for petrol. She recalled that they arrived home at about 20 or 10 minutes before midday. On their return, she sat in the backyard.
The defendant’s mother also gave evidence that at about 11.00 pm on 3 February 2012, the neighbours, being a lady and the lady’s son, entered her garage looking for a bird. She asserted that the lady shone a light in her eyes and the young man said, “fuck you, fuck your brother also and I kill you”. She said that later that night she informed the defendant of what had happened.
During final submissions, the defendant raised further matters. He complained of pain arising from a dislocated shoulder and a fractured scaphoid bone, injuries that he had allegedly sustained while overseas. A letter from his general practitioner recorded that the defendant had first attended the medical practitioner in relation to these injuries on 8 February 2012. X-rays taken some time later did not reveal any fracture.
Four photocopied receipts were tendered by the defendant. All were dated 4 February 2012, indicating purchases at Prospect, Northpark and Pooraka, between 11.10 am and 11.58 am. When asked why the originals of the receipts were not produced, the defendant asserted that he had received advice from a solicitor to photocopy the receipts because originals fade. He asserted that the originals were either discarded, at home or in his solicitor’s office.
The Magistrate reserved judgment. In his considered reasons, his Honour addressed the onus of proof in the following terms:
The prosecution carries the onus of proving beyond reasonable doubt each element of the offence charged. The words ‘reasonable doubt’ in this context have the meaning that they ordinarily have in the English language. The defendant is not obliged to undertake to prove anything; at all stages the prosecution carries the onus of proving guilt. The defendant is presumed innocent until proven guilty. If I have a reasonable doubt about the proof by the prosecution of any element of the charge the defendant is entitled to the benefit of that doubt. Further, if at the end of my deliberations I am unable to determine where the truth lies between competing accounts of events, then the law provides that my finding must also be one of not proven beyond reasonable doubt. I may accept all or part only of a witness’s evidence. It does not follow that because a witness is rejected on one matter that that witness should be rejected on others.
The Magistrate carefully analysed the evidence. His Honour described the complainant and his wife as “impressive witnesses” and reached the conclusion that there was nothing implausible about their evidence. The Magistrate was unimpressed by the defendant and described him as being excitable and difficult to follow. The Magistrate noted that the defendant had a tendency to give long, rambling answers that would depart into irrelevant matters. The Magistrate considered the defendant to be evasive. His Honour was critical of the defendant having, without any proper foundation, attacked the character of the complainant, his wife and the attending police officer.
The Magistrate considered that aspects of the defendant’s evidence were unlikely. His Honour took the view that the defendant’s asserted conversation with the complainant on the evening of 3 February 2012 was most unlikely. His Honour also considered that it was unlikely that, if the alleged incident the previous evening had have occurred, the defendant would not have been upset. The Magistrate observed that the medical evidence did not confirm the defendant’s claims. In particular, there was no diagnosis of a fractured scaphoid bone; either from the general practitioner or from the radiologist’s report. The general practitioner’s report confirmed the prescription of analgesics to help control pain.
The Magistrate did not consider the receipts to be probative. All the receipts were for cash and none of the receipts were linked to the account of the defendant. The Magistrate noted that it was significant that the originals were not produced and that no satisfactory explanation had been offered for that non-production. His Honour observed that the receipts could have been issued to anyone.
The Magistrate addressed the question of the credibility and reliability of the witnesses:
In conclusion, I have not placed any weight on the evidence given by the defendant. I did not consider he was either honest or reliable in the evidence he gave. Nor have I placed any significant weight on his mother’s evidence. I am satisfied that she believed that there had been an incident in the garage the night before the alleged assault and had complained about it to the defendant. I am not satisfied of the reliability of her account about that incident. She is an elderly person in ill health. She appeared anxious and bewildered in court. In parts of her evidence she openly looked to the defendant for a lead.
Rejection of the defendant’s evidence does not prove the prosecution case. The defendant does not have to prove anything. It is for the prosecution to prove its case beyond doubt.
As indicated earlier, I do not have any reservations about the honesty or reliability of the complainant and his wife. I accept their evidence that they saw (and were able to see) the defendant lying in his driveway when they returned from shopping, that the defendant then accused the complainant in keeping with his mother’s allegations from the night before and when the complainant refuted those allegations, the defendant responded by punching the complainant in the chest. Their evidence clearly established that the defendant intentionally applied force to [the complainant] by punching him to the chest without [the complainant’s] consent and without any lawful justification or excuse.
The Magistrate found the charge proved beyond reasonable doubt.
The notice of appeal complained about the whole of the judgment. The defendant contended that the Magistrate had made a mistake in finding that the charge had been made out. He attached to his notice of appeal particulars which asserted that the Magistrate failed to have regard to serious inconsistencies and contradictions in the evidence of the witnesses for the prosecution. He claimed that there were more than one hundred “mistaken truths”. It was further asserted that the Magistrate had ignored the defence evidence, including the medical evidence. The defendant also contended that the Magistrate had ignored the fact that the police had been “creating, fabricating, doctoring to a varying degree and manufacturing corroboratory evidence”. It was said that the evidence of the complainant’s wife failed to corroborate the complainant’s account.
The defendant provided a written outline of submissions in which he elaborated on the particulars contained in his notice of appeal. The defendant, in his outline, emphasised his complaint that the witnesses for the prosecution had given deceitful and dishonest evidence. He repeated many of these submissions orally on the hearing of the appeal.
In my view, the defendant has not made out any ground to warrant an interference by this Court with the Magistrate’s findings. The Magistrate had the advantage of seeing and hearing the witnesses. The complainant’s account was corroborated in material respects by his wife. To my mind, there was no material inconsistency in their evidence. The mark on the complainant’s chest was also observed by the attending police constable.
The attack on the evidence of the police officer was entirely without foundation. The Magistrate was correct to reject these allegations.
I also consider that the observations made by the Magistrate concerning the defendant were open on the evidence. In his reasons, in this respect the Magistrate observed:
The defendant was not an impressive witness. He was excitable and difficult to follow. He had a tendency to give long rambling answers and depart on irrelevant detail. He was evasive at times and attacked the character of both the police and the complainant and his wife without any proper foundation.
Aspects of the defendant’s evidence seemed unlikely. His account of the conversation he claimed to have had the night before with the complainant about the alleged incident in the garage and taking him to the small claims court for compensation and that he would go to the Law Society and that [the complainant’s wife] and her son were ‘laying low’ was an unlikely scenario. It also seemed unlikely to be the case, as the defendant insisted, that he was not upset by the alleged incident in the garage, or angry at the complainant, claiming they had been good neighbours and he simply wanted compensation. Having regard to the inherent unlikelihood of the defendant’s account in contrast to the straight forward evidence of the complainant and his wife, I have no hesitation in accepting the complainant’s evidence that there was no such conversation at all the night before. In my view the defendant’s account of that conversation was contrived in an effort to provide an explanation for the police being called by the complainant, namely, as a ‘diversionary tactic’.
The medical evidence that the defendant produced is equivocal and does not confirm the defendant’s claims. The letter from Dr Tsavdaridis does not purport to be a diagnosis of a fractured scaphoid but rather confirming that analgesics had been prescribed to cope with pain the defendant had complained of. The report from Bensons was made in the order of six months after the incident and does not confirm a fractured scaphoid.
The cash register receipts are not proof the defendant was elsewhere at the time of the alleged incident. All of the receipts are cash. None are linked to any account of the defendant. The receipts could have been given to anyone. There is nothing independent of the defendant’s evidence to show that they were given to him at the time of purchase. The weight to be attached to this evidence is further diminished by the failure to produce the original of the receipts without any satisfying explanation.
I consider that, having regard to these matters, the Magistrate was entitled to reject the defendant’s testimony. I also consider that it was open to the Magistrate to conclude that the evidence of the defendant’s mother was unreliable.
The Magistrate correctly concluded that his rejection of the defendant’s testimony and that of his mother did not make out the prosecution case. In accordance with authority, the Magistrate considered the other evidence in the trial. He reached the conclusion that he accepted the evidence of the complainant and his wife as both credible and reliable. This allowed the conclusion that the charge had been proved beyond reasonable doubt. My review of the evidence confirms that this was a verdict, not only open, but fully justified by the evidence.
The defendant complained about the sentence and, in particular, the protection order. No basis was advanced to suggest error. The defendant asserted that the order was unnecessary. I do not consider the order to be inappropriate. The Magistrate was entitled to take the view that such an order was necessary in all of the circumstances.
Conclusion
The appeal is dismissed.