Lakatos v Police No. Scciv-04-5

LAKATOS v POLICE
[2004] SASC 73
Magistrates Appeal: Criminal

BESANKO J This is an appeal by a defendant against a conviction recorded against him by a magistrate. The defendant was convicted of the offence of assaulting a family member contrary to s 39 of the Criminal Law Consolidation Act 1935.
The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
The Prosecution Case
The defendant is Mr Duro Lakatos. It is convenient to refer to him in these reasons as Mr Lakatos. The victim is Mrs Maria Lakatos. At the time of the alleged assault, Mr and Mrs Lakatos had been married for approximately 40 years and both had come from the former state of Yugoslavia. The alleged assault took place in the matrimonial home at Modbury Heights in the State of South Australia on 6^th May 2003 at about 7.00pm.
Mrs Lakatos gave evidence that she and her husband were sitting in the lounge room. An argument started, and it was at this point that the assault took place. Mrs Lakatos was sitting in a chair and Mr Lakatos approached her, and he grabbed her by the neck and started shaking her backwards and forwards. Mrs Lakatos said that Mr Lakatos was choking her, and threatening to kill her. Mrs Lakatos said that the shaking motion backwards and forwards happened three or four times. Mr Lakatos had both his hands on a skivvy which covered Mrs Lakatos’ neck. Mrs Lakatos said that she could not breathe.
Eventually Mr Lakatos let go, and Mrs Lakatos left the room and went into another room to telephone the police. At this point, Mr Lakatos again approached Mrs Lakatos and he grabbed her by the right wrist. She was holding the telephone receiver which he took from her and put down. He then placed both his hands on Mrs Lakatos’ throat, and again he started shaking her and threatening to kill her. Mrs Lakatos said that he was strangling her and that she was having difficulty breathing. Eventually, Mr Lakatos pushed her very hard back onto a chair.
Mrs Lakatos said that she then picked up her handbag and left the house. She went to a neighbour’s house across the road, and the police were contacted.
Mrs Lakatos suffered a sore neck as a result of the alleged assault, and she saw a doctor the following day. The doctor, Dr Zankov, arranged for an X‑ray to be taken of Mrs Lakatos’ neck. Mrs Lakatos commenced taking medication.
Two police officers attended at the matrimonial home, and then at the neighbour’s house shortly after the assault. Senior Constable Jason Olsen was called as a witness by the prosecution. He said that he and Constable Lucy Ayres attended at the matrimonial home at about 8.40pm on 6^th May 2003. They spoke briefly with Mr Lakatos. They then went to the neighbour’s house. They took a statement from Mrs Lakatos. Senior Constable Olsen said that during this time Mrs Lakatos was very upset and continually had to stop because she was crying. He did not see any physical injuries, but he did observe that Mrs Lakatos was very distressed.
Mr Lakatos was arrested that evening and he was interviewed by Constable Ayres at the Holden Hill Police Station. Senior Constable Olsen was present during the interview.
Constable Lucy Ayres was not called as a witness at the trial. She had sworn an affidavit, and the affidavit was tendered and became an exhibit. As I understand it, there was no objection to the tender of the affidavit. Constable Ayres’ evidence was similar to that of Senior Constable Olsen. She said that Mrs Lakatos was extremely distressed, and that she was crying and shaking. She said that Mrs Lakatos asked that an application for a restraining order be made as she was in fear for her life. Her affidavit contains the following statement:
“Due to the emotional state of Mrs Lakatos I was only able to obtain a brief statement as she continued to cry throughout our conversation. I did not observe any external injuries but was informed by Mrs Lakatos that she had had neck and back problems for the last few years which is aggravated every time she is physically assaulted and has attended the doctors numerous times regarding her injuries.”
Mrs Lakatos’ statement to Constable Ayres suggests that she had been assaulted on a number of occasions in the past. Constable Ayres’ evidence of what Mrs Lakatos told her is hearsay. Although no objection was taken at trial to the tender of Constable Ayres’ affidavit, Mr Lakatos contends on appeal that the Magistrate erred in relying on the hearsay evidence. There is no explanation from counsel for Mr Lakatos as to why he did not object to this part of Constable Ayres’ affidavit.
The record of interview between Constable Ayres and Mr Lakatos was also tendered as an exhibit. In the course of the interview Mr Lakatos admitted that he had argued with his wife on the night in question, but he denied that he had in any way assaulted his wife.
The Defence Case
Mr Lakatos gave evidence. He said that he was in the matrimonial home at about 7.00pm on 6^th May 2003, and that an argument developed between his wife and himself. He suggested in his evidence, and indeed in his interview by the police, that his wife suffered from some sort of problem related to her mental health. He said that in the course of the argument Mrs Lakatos became very angry and that he was trying to calm her down. He said that during the argument Mrs Lakatos told him that she had been “verbally abused enough” and that she was going to call the police. He said that he never made any contact with Mrs Lakatos. He said that at the time of the argument his wife was dressed up and preparing for something and that that was unusual. He said that she told him that he was going to lose his children and grandchildren and that she was going to “strip” him “to the bones”. Mr Lakatos said that she also told him that “I made some phone calls and I know my rights”.
In short, Mr Lakatos agreed that he had argued with his wife, but denied that he had assaulted her. He suggested that his wife had planned to get him into trouble.
Mr Lakatos called Dr Zankov. Dr Zankov is a medical practitioner, and he saw Mrs Lakatos on 7^th May 2003. Mrs Lakatos complained of a sore neck and referred to events which occurred on the previous day. Dr Zankov said that there were no outward signs of any injuries. There were no signs of any bruising. Dr Zankov said that if Mrs Lakatos had been assaulted such that she had difficulty breathing then he would have expected to have seen some external signs. Dr Zankov said:
“Q.In evidence, Mrs Lakatos said that she was grabbed around the neck, she was shaken to an extent of 40 to 60 degrees, this occurred 3 or 4 times, to such an extent that she found it difficult to breathe. In light of that evidence, is that consistent with her presentation to you.
A.Well, if she had difficulty breathing I would expect some external signs to see.”
Dr Zankov did not observe any injuries to Mrs Lakatos’ wrist. Dr Zankov was asked whether Mrs Lakatos’ presentation was consistent with her having been choked once again and shaken four to five times. He said:
“A.I cannot say exactly whether it was because it would depend on the severity, the impact, how she was shaken. She was certainly tender in her neck on the lower part of her neck and she did have difficulty moving her head. To what extent that was done I cannot ascertain from just the tenderness on examination.”
Dr Zankov said that if Mrs Lakatos was shaken with such ferocity that she had difficulty breathing then he would have expected to see some bruising. He did acknowledge that there may be other reasons why Mrs Lakatos might have had difficulty breathing. Dr Zankov said that he would have expected to see bruising if the assault had taken place in the circumstances put to him even though Mrs Lakatos’ neck was covered by a skivvy. In cross‑examination Dr Zankov gave the following evidence:
“Q.Was there anything about the injuries that she presented that in your opinion is inconsistent with the story you have heard today or what she told you.
A.As I said it is not inconsistent, it is the impact, the ferocity with which she said that she had been grabbed, yes.
Q.Could you explain further what you mean.
A.There is inconsistency with either the ferocity with which she had explained, that she was grabbed and shaken and then fell on the stool.
Q.But you didn’t see what happened did you.
A.No, no.
Q.So other than what she told you that don’t know what happened on that night.
A.Exactly, I don’t know.
Q.So the injuries that she presented in your opinion are consistent with what she said had happened.
A.Yes.”
The Magistrate’s Reasons
The Magistrate found that Mrs Lakatos was a frank, direct and thoughtful witness. He said that he accepted Mrs Lakatos as truthful, accurate and reliable.
The Magistrate said that Mr Lakatos was a proud person who had formed the view that his wife suffered from some kind of mental illness. The Magistrate said that Mrs Lakatos did not display any sign of mental illness or instability during her time in the witness box. He found her to be a composed and cooperative witness.
The Magistrate rejected any suggestion that Mrs Lakatos had in some way manipulated the evidence in order to deprive Mr Lakatos of his share of joint assets. The Magistrate found that Mr Lakatos had violently assaulted Mrs Lakatos. He found that Mr Lakatos had not told him the entire truth or had misinformed himself and coloured his evidence to reflect his alleged difficulties in controlling the behaviour of Mrs Lakatos. The Magistrate said that he did not believe Mr Lakatos. He rejected his evidence where it was in conflict with the evidence of Mrs Lakatos. He rejected any suggestion that Mrs Lakatos had fabricated all or any of her evidence, and he found that she had been assaulted in the way she described in her evidence.
The Magistrate considered the contents of the record of interview between Constable Ayres and the defendant, and he set out passages of the interview in his reasons. He said that Mr Lakatos was cooperative with the interviewing police officers and that he denied assaulting his wife or threatening to kill her. The Magistrate accepted the record of interview as a correct record.
The Magistrate referred to the affidavit evidence of Constable Lucy Ayres, and the evidence of Senior Constable Olsen.
The Magistrate referred to Dr Zankov’s evidence and he said:
“Although external signs of neck injuries were not observed by Dr Zankov, Mrs Lakatos I find did attend on Dr Zankov as a consequence of neck and other injuries sustained by the defendant’s actions.
Dr Zankov reported at page 66 that and I quote:
‘…she was certainly tender in her neck on the lower part of her neck and she did have difficulty moving her head.’
And later at page 67 Dr Zankov said and I quote:-
‘Q.What exactly from your notes were the injuries that were presented to you.
A.Soft tissue injuries of the neck.’
Mrs Lakatos also had an X‑ray of her neck.
This medical consultation was required I find as a direct consequence of the defendant’s unlawful use of force on the victim on 6^th May 2003. The prosecution has a heavy onus of proof to discharge. The defendant is presumed innocent of the charge. I have carefully reviewed all the evidence with the distinct advantage of seeing and hearing from all the witnesses.”
The Magistrate found the charge proved beyond reasonable doubt having regard to his findings in relation to Mrs Lakatos’ evidence, the police reports and Dr Zankov’s medical report.
Issues on Appeal
There are four grounds of appeal. They are as follows:
“1.The Magistrate had regard to hearsay evidence contained in the Exhibit P1.
2.     The Magistrate erred in placing weight on the police evidence.
3.     The Magistrate failed to properly assess the medical evidence.
4.     The verdict is unreasonable and is not supported by the evidence.”
As to the first ground, Mrs Lakatos’ statement to Constable Ayres about previous assaults was hearsay and inadmissible. It may have been inadmissible on other grounds as well. However, no objection was taken to the evidence at trial, and it was admitted. If the Magistrate relied on the evidence then it would be necessary for me to consider whether the failure to object at trial precludes a challenge on appeal. It seems that a failure to object at trial is not conclusive in the sense of precluding a challenge on appeal (The Queen v Kelly (1975) 12 SASR 389 at 395). Any explanation by counsel as to the reason no objection was taken will be relevant to a consideration of the issue. A number of the cases dealing with the issue of the significance of a failure to object at trial are discussed by Steytler J in A Child v Andrews (1994) 12 WAR 552. However, it is unnecessary for me to make a decision as to the significance of the failure to object because I do not think the Magistrate relied on the evidence. While it is true that he referred to the police evidence, there is no suggestion that he relied on evidence that Mrs Lakatos had been assaulted on previous occasions in order to reach his conclusion. The Magistrate was an experienced magistrate, and it would have been obvious to him that that would be an impermissible line of reasoning.
The Magistrate did not err in admitting the evidence in circumstances in which there was no objection to its tender. Furthermore, I do not think that he relied on the evidence, and therefore I would reject this ground of appeal.
As to the second ground of appeal, Mr Lakatos complains of the fact that the Magistrate appears to have placed some reliance on the observations of Mrs Lakatos’ condition made by Senior Constable Olsen and Constable Ayres on the night of the alleged assault. Both police officers made observations that Mrs Lakatos was very upset, that she was crying and that she was in a distressed condition and both gave evidence to this effect. As I understood it, the argument was not that the evidence was not relevant and admissible, but that the Magistrate erred in the weight he placed on the evidence. It is no doubt true that people may be upset for a variety of reasons, but the observations of the police officers as to Mrs Lakatos’ condition shortly after the alleged assault was a relevant item of circumstantial evidence. I do not think the Magistrate erred in relying on the evidence of the police officers as to what they observed of Mrs Lakatos’ condition on the night of the alleged assault. Nor do I think that the Magistrate placed too much weight on the evidence. It is obvious from a consideration of his reasons as a whole, that the Magistrate did not place equal weight on the evidence of the police officers and the evidence of Mrs Lakatos. It is apparent that the most important consideration in the Magistrate’s mind was that he accepted beyond reasonable doubt that Mrs Lakatos gave a truthful account of what had occurred. The Magistrate did not err in taking that approach.
As to the third ground of appeal, Mr Lakatos submitted that the Magistrate disregarded the evidence of Dr Zankov and that he was not entitled to do that. He referred to R v Hall (1988) 36 A Crim R 368. In that case the New South Wales Court of Appeal discussed the circumstances in which the tribunal of fact in a criminal trial may reject medical evidence. Roden J said (at 370 ‑ 371):
“It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that ‘the jury were entitled to regard (the medical evidence) as not entirely convincing’, and ‘their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister’. After consideration of both Matheson and Bailey, the following statement of principle was made:
‘These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence on the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.’
The effect of those decisions is accurately summarised in Professor Smith’s commentary on Walton in [1977] Crim LR 747 at 748:
‘If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence.’
In the present case, the medical evidence was all one way and the nature of the appellant’s conduct was such that there was much in the facts and surrounding circumstances which tended to support it, rather than lead to a contrary conclusion. Those facts and circumstances, and Dr Barclay’s opinion based on them, are set forth fully in the judgment of Allen J and do not require restatement. I have concluded that these were verdicts against the medical evidence, and that in the light of the evidence as a whole, they cannot be sustained.”
This case is not a case in which the medical evidence was all one way. At best for Mr Lakatos, it might be said that Dr Zankov gave opinion evidence to the effect that if the assault had occurred with the ferocity suggested by Mrs Lakatos’ version of events then he would have expected to see some bruising on her neck. That is no doubt an important matter which must be carefully considered. However, it does not mean that the Magistrate was bound to find that there was a reasonable doubt as to whether Mr Lakatos committed the assault. The Magistrate was required to consider all of the evidence including the evidence of Dr Zankov.
The Magistrate made reference to the fact that Dr Zankov did not observe any external signs of neck injuries, and he made the point that Mrs Lakatos went to see Dr Zankov because of her neck injuries, and that she complained to him of those injuries. The Magistrate did not refer to the view that might be taken of Dr Zankov’s evidence, namely, that if the assault had occurred with the ferocity suggested by Mrs Lakatos then he would have expected to see bruising on her neck. It would have been preferable had he done so and had he explained why that evidence did not give rise to a reasonable doubt as to whether Mr Lakatos committed the assault. However as I have said, the most important consideration in the Magistrate’s mind was that he accepted beyond reasonable doubt that Mrs Lakatos gave a truthful account of what had occurred. Her evidence was sufficient to establish the commission of the offence. In my opinion, the Magistrate was entitled to take that approach, and Dr Zankov’s evidence was not such that the Magistrate could not accept and act on the evidence of Mrs Lakatos and find the offence proved beyond reasonable doubt.
As to the fourth ground of appeal, Mr Lakatos submitted that where the prosecution case depends upon the evidence of one witness the Magistrate should carefully scrutinise the evidence. He also made the point that there was no corroboration of Mrs Lakatos’ version of events. I think the Magistrate has carefully scrutinised the evidence, and I do not think the verdict is unsafe on that ground. The other point made by Mr Lakatos in relation to this ground of appeal was that the medical evidence raised a reasonable doubt as to the veracity of Mrs Lakatos’ account. I have already dealt with that point.
Conclusion

For these reasons the appeal must be dismissed.

[2004] SASC 73

18 March 2004