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 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 HONOUR
Q.You are indicating with your right arm raised head height with a clenched fist, is that right.
A.Yes.
XN
Q.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 HONOUR
Q.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.’
XN
Q.Was that just once or was it repeated.
A.It was many times he kept saying it.
XN
Q.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.
The appellant gave evidence in his defence and admitted telling Ms Sheean to ‘fuck off’ and that he said something like, ‘Get fucked, I’m not going anywhere.’ He said however that the whole time Ms Sheean was in the room, he was feeding his mother with what he described as a ‘slush drink’. He had the drink cup in one hand and a spoon in the other. He said his mother was a slow eater because she could not swallow. He denied ever raising his right hand with a clenched fist in the direction of Ms Sheean. In cross examination Ms Sheean denied the claim by the appellant that he was feeding his mother or that he had a spoon or a cup in his hands.
In addition to the complainant the prosecution called three other witnesses, namely Dr Hurria, Mr Zientara and a police officer, Senior Constable Anderson. Senior Constable Anderson attended at the home after the complaint had been made and took statements from Jenny Overdin, the manager of the home, Dr Hurria, Mr Zientara and Ms Sheean.
At the conclusion of the evidence, counsel for the defence referred to a number of inconsistencies arising out of the evidence of the prosecution witnesses and submitted that the magistrate could not be satisfied beyond reasonable doubt as the elements of the offence. He also submitted that the magistrate should give himself a Jones v Dunkel direction concerning the failure of the prosecution to call as witnesses Theo Fontoglier, Martine Smith and the two sons of Helen Kabouris. He submitted that as a result of that failure the magistrate should draw the inference that their evidence would not have helped the prosecution case.
The learned magistrate acknowledged that each of the persons named was a person who would ordinarily be expected to be called by the prosecution and he took into account that there was no explanation for the failure to call them. He declined however to draw the inference that they would not have assisted the prosecution case but did not explain why he reached that conclusion.
The Learned Magistrate found the prosecution witnesses to be credible and truthful and considered that any differences in their respective accounts were explicable by reference to their respective involvement and the recollections of each of them. By contrast he found the appellant to be a most unsatisfactory witness. He concluded beyond reasonable doubt that the appellant had intentionally raised a clenched fist to Ms Sheean and that he had accompanied that with a movement in her direction. He was satisfied beyond reasonable doubt that the appellant did so intending to raise a fear in Ms Sheean’s mind as to violence and that she in fact feared in violence. He therefore found the appellant guilty of the charge.
The appellant in his notice of appeal claims that the learned magistrate
1.Erred in law and fact in that he failed to draw an inference from the failure of the prosecution to call four eye witnesses that the evidence of each of those persons would not have helped the prosecution case;
2.Ought to have found, after drawing the inference giving appropriate weight to the failure of the prosecution to call the eye witnesses referred to in ground 1 hereof, that the prosecution had failed to establish the guilt of the appellant beyond reasonable doubt and dismissed the charge accordingly.
Pursuant to s 42 Magistrates Court Act 1991 an appeal to this court is by way of a re-hearing. As Gray J said in Tims v Police[1]
Supreme Court has wide powers when considering an appeal from a magistrate … the appellate court is required to examine for itself the magistrates assessment of the evidence bearing in mind that it does not have the advantage of seeing and hearing the witnesses.
[1] [2008] SASC 141 at [26]
In this case the issue for determination by the magistrate was whether the appellant had assaulted Ms Sheean which on the prosecution case consisted of the appellant raising a clenched fist and threatening to hit Ms Sheean intending to raise a fear of violence on her part. The Magistrate was satisfied that the raising of the fist by the appellant was accompanied by a forward movement which was intended to raised a fear in Ms Sheean’s mind of imminent violence and that she in face feared immediate violence. There was however a significant inconsistency between the witnesses on this topic. In the passage of evidence referred to above, Ms Sheean described the appellant as being within 15 centimetres when he approached her with his clenched fist. Dr Hurria however said that the appellant was standing about 30 to 40 centimetres away from Ms Sheean when he raised his fist and suddenly stopped. Dr Hurria said no-one else got involved in the incident. He recalled that the appellant was feeding his mother while standing on the left side of the bed. Due to the lapse of time he could not recall whether the appellant might have had a spoon in his right hand. Mr Zientara could not recall whether the appellant was feeding his mother but he recalled the appellant saying that he would not leave and that he was going to feed his mother first. Mr Zientara described the appellant raising his right arm to about head height with a clenched fist and that he sort of lurched forward. He however described a distance between Mr Sheean and the appellant of about six feet. He also mentioned that Theo was standing to the side so that he could have stepped in if there was any trouble. Mr Zientara said that he did not intervene but he recalled Theo turning around to the appellant and asking him to calm down.
The learned magistrate understandably took a poor view of the appellant. Even on the appellant’s version of events, his conduct was less than ideal and his suggestion that the witnesses had ‘ganged up’ against him and made false allegations would appear to be fanciful to say the least. A rejection of the evidence of the appellant however does not relieve the prosecution of the obligation to prove the offence beyond reasonable doubt.
In RPS v R (2000) 199 CLR 670, the court of Gaudron ACJ, Gummow, Kirby and Hayne JJ, when discussing Jones v Dunkel[2]:
In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor "has the responsibility of ensuring that the Crown case is presented with fairness to the accused" and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.
[2] (1959) 101 CLR 298 at [28–29]
It is implicit in the reasoning of the learned magistrate that in finding the charge proved he completely accepted the evidence of Ms Sheean, that is that the appellant lunged within 15 centimetres of her face whilst uttering a threat to hit her with other witnesses shouting at him to desist. None of the other witnesses called by the prosecution however gave any evidence as to any threat uttered by the appellant nor any statements made by anyone else in the room to the effect of ‘Don’t hit her’. The evidence of Dr Hurria, and to some extent Mr Zientara, lends some support to the evidence of the appellant that he was feeding his mother at the time that these events took place, which reduced the likelihood of an intention to assault Ms Sheean. If Mr Zientara’s evidence is to be accepted, the appellant was approximately six feet away when he raised his fist in the direction of Ms Sheean.
It is regrettable that there was no evidence called to show the dimensions of the room nor any indication of where the various witnesses were situated at the time that this assault is alleged to have occurred, particularly given the number of people who appeared to have been present, that is the appellant and his mother, Mrs Kabouris and her two sons, Ms Sheean and four other staff members. It also appeared that there were curtains around each of the beds in the room but the evidence is silent as to whether or not they might have affected the view of any of the witnesses. Given the evidence of some longstanding ill feeling between the appellant and the home as to the level of care provided to his mother and earlier disputes with Ms Sheean, it is surprising that the prosecution did not at least call evidence from Mrs Kabouris’ sons who would have been completely independent, or provide some explanation as to why they were not called.
The learned magistrate presumably declined to draw the inference against the prosecution on the basis of the strength of the prosecution case having dismissed the inconsistencies between the evidence of the various witnesses as explicable by reference to their respective involvement and recollection. Some of those inconsistencies were however significant, such as the distance between Ms Sheean and the appellant at the relevant time, the use of threatening words by the appellant and whether the appellant was in the process of feeding his mother.
In this case the other witnesses to these events might have resolved some of the inconsistencies arising in the evidence. I therefore consider that the failure by the prosecution to call them should have caused the magistrate to entertain a reasonable doubt about the guilt of the appellant.
In the circumstances I allow the appeal. I set aside the conviction and quash the sentence imposed by the learned magistrate. I am not however prepared to return a verdict of acquittal as it seems to me that the issue of calling appropriate witnesses is something that can be properly ventilated at a retrial. I therefore direct that the matter be referred back to the Magistrates Court for re-hearing before another magistrate.