KUIPERS-LLOYD v Police - [2011] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KUIPERS-LLOYD v POLICE
[2011] SASC 43
Judgment of The Honourable Justice Duggan
1 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against the decision of a Magistrate to convict appellant of aggravated assault – offence related to the appellant allegedly striking a taxi driver following a dispute within a taxi in which the appellant was a passenger – whether important aspects of the victim’s evidence were inconsistent with the uncontested evidence, specifically if the injuries sustained by the victim were consistent with an attack through the driver’s side window – whether the version of the event given by the victim was a reconstruction – whether the Magistrate erred in drawing an inference adverse to the appellant by reason of the exercise by the appellant of his right to silence – whether the Magistrate erred by not giving sufficient reasons for accepting the evidence of the victim and rejecting the evidence of the appellant – whether the Magistrate erred in his treatment of some agreed facts.
Held: appeal dismissed – none of the points raised by the appellant disclosed any error of law – findings made by Magistrate were open on the evidence – there was sufficient evidence to establish offence of aggravated assault beyond reasonable doubt.

KUIPERS-LLOYD v POLICE
[2011] SASC 43
Magistrates Appeal: Criminal

DUGGAN J: The appellant appeals against conviction following a trial in the Adelaide Magistrates Court on a charge of aggravated assault.
The offence is alleged to have taken place on 17 April 2009 shortly after the appellant alighted from a taxi driven by the victim, Mr Kaushal. Mr Kaushal gave evidence that he picked the appellant up in Hindley Street at about 3.30am on Friday 17 April. Mr Kaushal then drove the appellant to 23 Ayre Street, South Plympton, the house the appellant shared with his partner, Ms Robyn Groocock.
Mr Kaushal said that it was apparent the appellant had been drinking alcohol. He said that, during the journey, the appellant made racist comments. According to Mr Kaushal, the appellant said that Indians were taking over the taxi industry and asked why Mr Kaushal did not go back to his own country. He called Mr Kaushal a “mother-fucker” and a “bastard”. At one stage Mr Kaushal threatened to stop the taxi. The appellant replied that it was up to Mr Kaushal, but they were close to his destination and, if Mr Kaushal wanted, he would leave the taxi and not pay the fare.
Mr Kaushal said that, when they arrived at the appellant’s destination, an argument arose in relation to the fare which was approximately $18. According to Mr Kaushal’s evidence, the appellant said it took a long time to get there and that, usually, it takes about six minutes.
Mr Kaushal said the appellant alighted from the taxi and the dispute over the fare continued. Eventually the appellant threw $20 at Mr Kaushal who gave him change. The appellant then went to the rear of the taxi and Mr Kaushal heard a noise which sounded like someone had hit the taxi.
According to Mr Kaushal, the appellant then walked to the driver’s side window which was open and abused Mr Kaushal who said that he was going to call the police. He said he was about to press the panic button in the taxi and, as he turned in the direction of the open widow, the appellant punched him two or three times to the head.
Mr Kaushal said that at this stage he “blacked out” and, when he regained consciousness, he was bleeding through the nose. He said he stepped out of the taxi and sat down alongside it. He called the police and was taken to the Flinders Medical Centre in an ambulance.
The police were tasked to the incident at approximately 4.00am and arrived at Ayre Street at about 4.15am. They spoke to Mr Kaushal who appeared dazed.
The appellant gave evidence before the Magistrate. He said he got into the taxi after coming out of McDonalds in Hindley Street. He said he assisted the driver by giving him directions. The driver told him he was using the GPS system. He said the driver did not go the shortest way and was argumentative about which route to take.
The appellant said he paid the fare when they arrived at the destination and, as he was walking towards the house, the driver yelled out, “You Australians are all the same”. The appellant said he turned around and said to the driver, “Well if you don’t like it here why don’t you go back to your own country?” The appellant said that the driver then “got racial about the issue”. According to the appellant, the driver said, “You know why we are all here, we are all here to fuck your mother”.
The appellant said that he was angry at the racial slur because he had not said anything of a racial nature to the driver. He said he came back towards the taxi and the driver started to drive off. He said he kicked the taxi on the rear right door. He said the taxi continued to drive down the street and he went inside. He denied punching the driver. He said he did not touch him.
According to the appellant’s argument there were important aspects of Mr Kaushal’s evidence which were inconsistent with the uncontested evidence. The first issue raised is whether the evidence of the injuries incurred by Mr Kaushal is consistent with his version as to how they were caused. Mr Vadasz submits that, according to the evidence, the injuries were on the left side of the face which is inconsistent with an attack through the driver’s side window while the driver was positioned in the driver’s seat.
Dr Rai examined Mr Kaushal in the emergency section of the Flinders Medical Centre. He said there were two small lacerations, one on the upper lip and the other at the base of the nose. The injury to the lip was at the mid-line of the lip. The injury at the base of the nose was on the left side of the nose. The nose was swollen.
The question whether the injuries were consistent with being caused by punches through the open driver’s side window depends upon the direction in which Mr Kaushal was facing at the time. According to his evidence he turned to face the appellant immediately before he was punched. If this occurred, the location of the injuries is consistent with them being caused by a blow or blows delivered through the open window on the driver’s side.
The other point made in this respect by Mr Vadasz is that there would have been signs in the taxi of Mr Kaushal’s heavy bleeding through the nose if he had continued to sit there during the time he was unconscious. He said he was unconscious for two or three minutes. There were signs of bleeding on the road adjacent to the driver’s side door.
Mr Kaushal said in evidence that, while he was seated in the taxi after the assault, his head was inclined backwards. He said the blood from his nose was deposited on his shirt. It cannot be said that the absence of signs of blood in the taxi is necessarily inconsistent with his version.
The next criticism of the prosecution evidence is that Mr Kaushal had no memory of the event immediately after the assault, and that his version is a reconstruction.
The evidence relied upon for this assertion is not altogether clear. Attention was drawn to the following passages in the evidence of Mr Kaushal:
QDo you remember the police coming to where the taxi was at Plympton.
AYes sir.
QYou do.
AYeah, I think the police came over there but I don’t know what happened after that.
QYou think the police came there but you’re not sure.
AI’m not sure.
QIt’s the case isn’t it that you didn’t remember what happened, that you had no memory of what happened until your sister came to the hospital.
AAfter work, until my sister came, but after work.
QNo memory of what happened to cause an injury to your face.
AAfter this man punch on my face.
QAfter somehow you got punched in the face, you have no memory until about 9, 9.30.
ANo, after I came out of my car to get some …, after I just blacked out and unconscious, after then approximately, I don’t know exactly how much time, then I come back to my senses, I just come out of my car to get … and lay down on the road and then I talked to an operator as well.
QTalked to who.
AAn operator as well, and police as well. After I don’t know what happened.
HIS HONOUR
QDo you remember after that waking up in the hospital.
AYes sir.
QSo you were lying on a hospital bed were you when that happened.
AYes sir.
QWhen you woke up and you were lying on the hospital bed, were you able to remember back to understand why you were in the hospital.
ANot immediately at that time, but when I just come back to home, my sister asked me what happened. I told her this kind of thing has happened with me after the guy had punched me up. I just lie on the road and then I just told her what had happened with me, but as they told me, the evidence I get to know like I went to hospital by ambulance.
QIs this what you’re saying. As you were speaking to various people about what happened, they said things which jogged your memory about some things, is that right.
AYes sir, yeah.
…
XXN
QDo you remember saying that you had no memory until after your sister came to the hospital.
AYes sir, but - .
QBut what.
AIf someone’s told me after they told me that this thing happened with me, after it I can say make it fresh in my mind like somewhere I get to know that this thing happened with me after the cops came over there. They told me the whole of the story of what happened after I just lie over there in pain. They told me what happened with me.
QSo people told you what happened to you.
AYeah, people told me what had happened to me after I get to know this thing happened with me.
QAfter people told you what happened, that refreshed your memory and you realised that’s what happened to me.
AYes sir.
QYou’ve really reconstructed a lot of what happened based on what people told you.
AWhat people told me on that as well and what come back in my mind, yes this thing happened with me. But I remember – I get to remember that yes, this thing happened with me and cops call me and after the ambulance came there and ask them I can drive but they told me I get …
…
REXN
QYou have been asked about the time when Constable Barber came to speak to you and asked about your recollection of the incident. Did you give a statement to Constable Barber.
AYes.
QYou were saying in relation to – you stipulated, I believe in paragraph 20 ‘At about 9.30 in the morning my sister came to the hospital, and that’s the first I remembered about what’s happened.’
AYes.
QWhat was the point when you were clear about everything that happened.
OBJECTION: MR VADASZ OBJECTS
OBJECTION UPHELD
The Magistrate made the following assessment of Mr Kaushal’s evidence:
In assessing the evidence of Mr Kaushal, I keep in mind that English is not his first language. His English is spoken with a noticeable accent. However, he seemed to have little difficulty in comprehending questions or in adequately expressing his answers. I formed a favourable impression of Mr Kaushal. I observed nothing in his evidence to suggest a lack of honesty, mistaken reconstruction, exaggeration or embellishment. I have complete confidence in the accuracy of his recollections up until the time he was struck in the head. That includes his evidence that he saw that it was the defendant who was the perpetrator of the blows.
Mr Vadasz submitted that in truth Mr Kaushal had no memory of what had occurred because of the effects of the assault perpetrated on him by someone other than the defendant. It was put that Mr Kaushal had reconstructed the events in question, being a process which began with a discussion between him and his sister when she collected him from the Flinders Medical Centre.
It is the case that Mr Kaushal suffered a number of blows to the head. I accept that he was rendered unconscious for a short period of time. It is undoubtedly the case that Mr Kaushal was distressed and in a state of confusion after he was struck. For that reason I will not place any reliance on Mr Kaushal’s kerbside identification of the defendant as his assailant, being an aspect of the matter I discuss further below.
However, I do not accept that Mr Kaushal had no, or an incomplete, memory of the events which occurred prior to being struck. In my view he had a clear and accurate memory of those events.
As mentioned, I place no reliance on Mr Kaushal’s identification to Constable Bartel of the defendant as his assailant. At that point of time Mr Kaushal was suffering from concussion and had immediately prior to the purported identification been in a state of unconsciousness for some minutes. On his own evidence his recollection of events after being struck was hazy. Moreover, the defendant was the only person then present who was not a uniformed police officer or uniformed St John’s Ambulance employee. In those circumstances it would be unsafe to have any cognizance of the identification, notwithstanding the highly favourable impression I have formed in relation to the credibility of Mr Kaushal.
In my view, these findings were open on the evidence. I have said that the evidence as to the matters upon which Mr Kaushal had little or no recall was not altogether clear. However, I think it is a fair reading of the passages in the evidence cited above that the difficulty in recalling occurred after the incident and in relation to its aftermath, not the assault itself. Dr Rai said that when he examined Mr Kaushal on the morning of the assault, Mr Kaushal had some difficulties of recollection, but did report that he had been punched in the face.
It is also apparent that the appellant complained of an assault when spoken to by the police and indicated the appellant as his attacker. The Magistrate stated that he did not use this incident as evidence of identification. Furthermore, the complaint cannot be used as evidence of the truth or as indicating consistency. However, it is of some relevance in determining whether Mr Kaushal had a recollection of events which took place up to and including the alleged assault. He was able to recall those events when spoken to by the police at the scene.
It was argued that the Magistrate erred in drawing an inference adverse to the appellant by reason of the exercise by the appellant of his right to silence.
The passage in the judgment which is relied upon to support this submission is as follows:
In his evidence the defendant sought to explain the inconsistencies between his account to police and his account to the court as having arisen from distress he was experiencing at the time of the interview as a result of the conduct of Constable Bartel. The defendant said he was in pain from injuries sustained from Bartel having applied the handcuffs unnecessarily tightly. It is the case that the defendant complained about the handcuffs at the commencement of the interview. Barber removed the handcuffs at that point and the defendant can be seen rubbing his wrists and I accept that the handcuffs left his wrists marked and red.
However, I do not accept that the defendant felt distressed or intimidated for any reason or reasons during the course of the interview. I reject his evidence on that aspect of the matter. There is nothing in the video of the interview that gives any indication that the defendant was feeling distressed or intimidated. He is shown to be forthright and dismissive of the suggestion that he had any involvement in the assault of Mr Kaushal. I note further, on this aspect of the matter, that the defendant gave contradictory evidence. He said on one hand that he had given a less than fulsome explanation during the interview because he was in pain and felt intimidated and virtually in the same breath claimed that he would have provided a detailed explanation if only he had been asked. Having carefully viewed the video of the interview, it is clear that the defendant was given every opportunity to provide as detailed an explanation of events as he deemed necessary.
These findings are not grounded on an inference adverse to the appellant by reason of his decision during the interview not to answer any further questions. The appellant put forward his version of the incident when questioned by the police. After doing so he said that he had made his statement and that he did not wish to add anything.
In cross-examination, the appellant said he would have had more to say to the police if he was not distressed or intimidated as he claimed to be. The Magistrate rejected that explanation and commented that the appellant was given every opportunity to provide a detailed explanation to the extent he considered necessary.
The Magistrate was not thereby reflecting on the appellant’s choice not to continue answering questions. The Magistrate observed that the video recording did not support the claim that the appellant was intimidated to the extent that he refused to answer any more questions.
After reviewing the video I am satisfied that this finding was justified. It is apparent that the appellant was not intimidated in any way. He did complain that the handcuffs were too tight and one of the police officers removed them. He gave forceful and confident answers to the questions which were asked of him. I disagree with the submission by Mr Vadasz that the police acted in a hostile manner towards the appellant during the police interview. The video recording speaks for itself in this respect.
It is further argued that the Magistrate made unjustified criticisms of the appellant when comparing his evidence with what he said in the interview with the police. The relevant passage in the reasons for decision is as follows:
In my opinion there were significant differences between the explanation the defendant gave to police and his evidence. For example, in the record of interview the defendant made no mention that he had walked to the driveway of his residence before there was any conversation between him and Mr Kaushal which contained racial references. Furthermore, in the record of interview the defendant said that he made the first racial reference at that point of time being ‘If you don’t like it in this country you should go home to your own country’. However, in evidence the defendant said the first reference to race was by Mr Kaushal, viz. ‘You Australians are all the same’.
In his evidence the defendant sought to minimise the aggressive nature of his discussion with Mr Kaushal regarding the fare. However, in the record of interview he gave a more accurate description being that he had said ‘a heap of expletives about the amount of money that I got charged’.
(Emphasis in original)
The Magistrate did not mistake the effect of the evidence with respect to each of the inconsistencies to which he referred. In my view it was open to him to take these matters into account when assessing the evidence of the appellant. I also reject the assertion that the Magistrate did not give sufficient reasons for accepting the evidence of the victim and rejecting the evidence of the appellant. In making these findings the Magistrate had regard to the legal framework within which he was required to consider the matter. He said:
I would be in error if I approached the matter by comparing and preferring one of the two versions, ie Mr Kaushal assaulted by defendant, or Mr Kaushal assaulted by unknown person. That is not my task. My task is to determine whether on my assessment of the evidence the prosecution has proven beyond a reasonable doubt that the defendant assaulted Mr Kaushal.

It was submitted on behalf of the appellant that the Magistrate erred in his treatment of some agreed facts. The agreed facts were set out in the following passage in the reasons for decision:
I was informed that two women, Robyn Helps and Clare Helps, who lived in a nearby residence had provided statements to police. I understand that they did not go outside but looked through a window of their house when they heard a disturbance. Neither of them was called, but the following facts were agreed:
1)Robyn Helps told police that she heard two male voices yelling abuse at each other.
2)Robyn Helps told police that she saw a male described by her as tall, medium build, wearing a white shirt, long dark pants and a white cap.
3)Clare Helps told police that she heard two male voices yelling.
The Magistrate dealt with the agreed facts as follows:
The agreed fact of Robyn Helps having told police that she saw a male wearing a white shirt and a white cap requires discussion.
In cross-examination Mr Kaushal said the defendant had been wearing jeans and a pullover. He was not able to remember the colour of the pullover. He said the defendant was not wearing anything on his head. He was not able to remember if the defendant had been wearing a white shirt.
Videotape of the arrest of the defendant and of the interview with police shows that he was then wearing a dark-coloured top. The defendant gave evidence that he had worn that top from the time he had left his house the previous evening. He said that he did not change his clothing during the 25 minutes or so that he was inside the house talking to his partner. Ms Lloyd-Grocock corroborated the defendant’s evidence in that respect. However, as I trust I have made clear, I have no faith in the accuracy of their evidence. Therefore I am not able to make a finding as to what type and colour of clothing the defendant was wearing when he got out of the taxi.
However, I accept the evidence of Mr Kaushal that the defendant was not wearing a white cap when he got out of the taxi. Therefore, I acknowledge that the description by Robyn Helps of a white-capped male person being in the street is a mystery.
I acknowledge that in the circumstances, the prosecution will suffer the consequences, if any, of Robyn Helps not being called to clarify the matter. Her absence from the witness box was not explained by evidence and so I must assume that she was available. There are no doubt a number of theoretical explanations of the agreed fact not being inconsistent with Mr Kaushal’s evidence, the most obvious being error on the part of Robyn Helps.
In some cases an unresolved factual anomaly of this nature would be sufficient to give rise to a reasonable doubt as to the guilt of the defendant. In this case, my confidence in the accuracy and the reliability of Mr Kaushal is such that a reasonable doubt does not arise for this or any other reason. That is, to the extent of inconsistency between the agreed fact and Mr Kaushal’s evidence, I immeasurably prefer the evidence of Mr Kaushal.
In my view, the reasoning and conclusion of the Magistrate cannot be criticised. He was aware of the significance of the agreed facts and that there may have been an inconsistency with the prosecution case. However, after considering the evidence as a whole, he concluded that the agreed facts were not of such a nature as to give rise to a reasonable doubt. The agreed facts did not establish the accuracy of Ms Helps’ observations. I am of the opinion that the conclusion reached by the Magistrate was open to him.
I have reached the conclusion that the findings made by the Magistrate were open on the evidence and, in particular, that there was sufficient evidence to establish the offence of aggravated assault beyond reasonable doubt. Furthermore, I am of the view that none of the points raised by the appellant discloses any error of law.
The appeal will be dismissed.