Kyriacou v Police - [2008] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KYRIACOU v POLICE
[2008] SASC 257
Judgment of The Honourable Justice Nyland
22 September 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
Criminal Law - appeal against conviction for assault - inconsistency of evidence between witnesses - magistrate declined to draw adverse inference as a result of failure by prosecution to call certain witnesses.
A rejection of the evidence of the appellant did not relieve the obligation of the prosecution to prove the offence beyond reasonable doubt - appeal allowed - conviction set aside and sentence quashed - matter referred back to Magistrates Court for rehearing before another magistrate.
Criminal Law Consolidation Act 1935 (SA) s 39(1); Magistrates Court Act 1991 (SA) s 42, referred to.
Jones v Dunkel (1959) 101 CLR 298; Tims v Police [2008] SASC 141; RPS v R (2000) 199 CLR 670, considered.

KYRIACOU v POLICE
[2008] SASC 257
Magistrates Appeal
NYLAND J
Introduction

This appeal is from a conviction recorded by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 1 April 2008. The appellant was charged on complaint that on 27 November 2005 at St Peters he assaulted Catherine Sheean, contrary to the provisions of s 39(1) Criminal Law Consolidation Act 1935. The appellant pleaded not guilty. Following trial the appellant was found guilty and was released on a bond in the sum of $200 to be of good behaviour for a period of two years.
Background
The incident which gave rise to the charge occurred at a nursing home at St Peters, where the appellant’s mother has been a resident for a number of years. She suffers from dementia and requires considerable assistance with her care. The appellant regularly visited the home to assist his mother with feeding, the administration of medication and other tasks. Mrs. Kyriacou shared a ward with two other residents, namely Hope Cooke and Helen Kabouris. There is no evidence as to the dimensions of the ward or the exact position of each of the resident’s beds, but it seems that Mrs Kyriacou occupied the bed farthest from the door, Mrs Cooke the middle and Mrs Kabouris was closest to the door.
On 27 November 2005, the appellant visited his mother at about the same time as Mrs Kabouris was being visited by her two sons. The appellant acknowledged that he behaved inappropriately when he arrived at the room by throwing Mrs Cooke’s walking frame across the room. He said that the frame had been wedged between his mother’s bed and that of Mrs Cooke as had happened on a number of other occasions. The crashing…

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.

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Details

Case: [2008] SASC 257
Decision Date: 22 September 2008

CaseChat Overview and Summary

The appeal in the case of Kyriacou v Police concerns a conviction for assault recorded by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 1 April 2008. The appellant, Kyriacou, was charged with assaulting Catherine Sheean on 27 November 2005 at St Peters. The appellant pleaded not guilty and, after trial, was found guilty and released on a bond of $200 to be of good behaviour for two years. The case revolves around an incident that occurred in a nursing home where the appellant’s mother was a resident. The prosecution alleged that Kyriacou assaulted Mrs Sheean, while the appellant claimed that his actions were inappropriate but not assaultive. The appeal focuses on the magistrate's refusal to draw an adverse inference due to the prosecution's failure to call certain witnesses, which the appellant argued was a crucial factor in the case.

The primary legal issues in this case pertain to the adequacy of the evidence presented by the prosecution to prove the offence of assault beyond reasonable doubt. The court had to consider whether the magistrate was correct in declining to draw an adverse inference from the prosecution's failure to call specific witnesses. Furthermore, the appeal scrutinized the weight and credibility of the evidence given by the witnesses and the overall sufficiency of the prosecution's case. The court had to determine if the rejection of the appellant’s evidence relieved the prosecution of its burden of proof, which it ultimately concluded did not.

In addressing these issues, the court found that the rejection of the appellant's evidence did not absolve the prosecution from proving the offence beyond reasonable doubt. The court held that the magistrate should have drawn an adverse inference due to the prosecution's failure to call certain witnesses, which could have significantly impacted the outcome of the case. The court found that this failure undermined the reliability of the prosecution’s case, leading to an unfair trial. Consequently, the appeal was allowed, the conviction was set aside, and the sentence was quashed. The matter was remitted to the Magistrates Court for a rehearing before a different magistrate.

In conclusion, the Supreme Court of South Australia allowed the appeal, set aside the conviction, and quashed the sentence. The court ordered that the case be remitted back to the Magistrates Court for a rehearing before another magistrate. The decision highlights the importance of the prosecution's duty to present a complete and reliable case, and the need for adverse inferences to be considered when key witnesses are not called.

Orders

Orders of the court

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Background

Background to the litigation

This appeal is from a conviction recorded by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 1 April 2008. The appellant was charged on complaint that on 27 November 2005 at St Peters he assaulted Catherine Sheean, contrary to the provisions of s 39(1) Criminal Law Consolidation Act 1935. The appellant pleaded not guilty. Following trial the appellant was found guilty and was released on a bond in the sum of $200 to be of good behaviour for a period of two years. Background The incident which gave rise to the charge occurred at a nursing home at St Peters, where the appellant’s mother has been a resident for a number of years. She suffers from dementia and requires considerable assistance with her care. The appellant regularly visited the home to assist his mother with feeding, the administration of medication and other tasks. Mrs. Kyriacou shared a ward with two other residents, namely Hope Cooke and Helen Kabouris. There is no evidence as to the dimensions of the ward or the exact position of each of the resident’s beds, but it seems that Mrs Kyriacou occupied the bed farthest from the door, Mrs Cooke the middle and Mrs Kabouris was closest to the door. On 27 November 2005, the appellant visited his mother at about the same time as Mrs Kabouris was being visited by her two sons. The appellant acknowledged that he behaved inappropriately when he arrived at the room by throwing Mrs Cooke’s walking frame across the room. He said that the frame had been wedged between his mother’s bed and that of Mrs Cooke as had happened on a number of other occasions. The crashing noise attracted Ms Sheean’s attention as she was doing the rounds. She went to the ward with four other staff members, namely Dr Nishant Hurria, now a dentist working in Portland in Victoria, but a carer in the home at the time of the alleged incident, a nurse called Theo Fontoglier, a care worker called Martine Smith and another carer, Peter Zientara. There is a conflict in the evidence as to where Mrs Cooke was sitting when Ms Sheean entered the room but Ms Sheean said she found Mrs Cooke on the floor in tears, claiming that the appellant had hit her. Ms Sheean also said the appellant was using abusive language towards Mrs Cooke. Ms Sheean said she escorted Ms Cooke from the room, but then returned accompanied by the other four and told the appellant to leave. Her evidence at trial was:Q.What did you do then after you finished that phone call.A.After then I gathered all four of my staff members again and went into room one with all my witnesses and I went in there and I very politely asked Jack Kyriacou to leave the premises, saying that he has upset Hope Cooke and that I would like him to leave.Q.Can you tell the court how Mr Kyriacou reacted to you saying that to him.A.He did not react very well at all. He became verbally and physically hostile in which he verbally refused to leave. He said, ‘I’m not fucking leaving. I want to feed my mother.’ There was a myriad of refusals to leave. It was all sort of the same thing of ‘I’m not leaving. I’m not fucking going anywhere.’ He came walking towards me with a clenched fist held it up to me shaking ‘I’m going to hit you, you bitch.HIS HONOURQ.You are indicating with your right arm raised head height with a clenched fist, is that right.A.Yes.XNQ.Could you tell the court Ms Sheean approximately how far Mr Kyriacou’s fist would have been from you at the time he approached you in that fashion.A.Approximately 15 cms.Q.How would you in your own words describe Mr Kyriacou’s manner and demeanour at the time he was actually doing that.A.Enraged.HIS HONOURQ.You say 15cms to what point of your body.A.To my head.Q.And the words that he used were.A.‘I’m going to fucking hit you, you bitch. I want to fucking hit you.’ And, ‘I’m going to fucking hit you.’XNQ.Was that just once or was it repeated. A.It was many times he kept saying it.XNQ.Can you tell the court how that made you feel.A.I felt scared for my safety. I felt like I was going to be hit. Q.What did you do then as a result of Mr Kyriacou approaching you in this fashion.A.I walked backwards to try and distance myself from his clenched fist. Three of my staff there were actually male and they advised him, ‘don’t hit her. Don’t hit her. Don’t do it Jack.’Q.Were there any other objects or persons between yourself and Mr Kyriacou at the time that he came towards you.A.No, there wasn’t.Q.What did you do after you created some distance between yourself and Mr Kyriacou.A.After that Jack Kyriacou actually came lunging towards me again with a clenched fist and said ‘I’m going to fucking hit you, you bitch. I want to fucking hit you.’ He did it again and again and again. He did it several times. Each time I walked backwards trying to distance myself from his clenched fist an staff once again said, ‘Don’t hit her. Don’t you hit her.’Q.Did he hit you.A.No, I left the room with all of my staff.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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