Lockwood v Police - [2010] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LOCKWOOD & LOCKWOOD v POLICE
[2010] SASC 120
Judgment of The Honourable Justice Vanstone
29 April 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeals against conviction heard together - appellants jointly charged with and both convicted for assault - appellants assert that magistrate took too great a role in questioning defence witnesses - contended that the questioning showed a preconceived view of the facts - submitted that magistrate failed to make necessary findings of fact.
Held: appeals dismissed - the intervention of the magistrate, though extensive, did not deprive the appellants of a fair trial and did not lead to a miscarriage of justice.
Galea v Galea (1990) 19 NSWLR 263, applied.
R v Arthur (1991) 163 LSJS 18; Yuill v Yuill [1945] P 15, [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55, discussed.

LOCKWOOD & LOCKWOOD v POLICE
[2010] SASC 120
Magistrates Appeal
VANSTONE J:
Introduction

After a trial in the Magistrates Court, the appellants Danny Lockwood (Danny) and Brenton Lockwood (Brenton) were convicted for aggravated assault upon Allan Betts, contrary to s 20(4) Criminal Law Consolidation Act 1935 (CLCA). Danny was further convicted for damaging property, contrary to s 85(3) CLCA, that property being Mr Betts’ car.
They now appeal against those convictions. The principal ground of each appellant is, in effect, that the magistrate took too great a role in the questioning of witnesses and in doing so demonstrated that she had a preconceived view of the facts.
Background
The appellants were the proprietors of the Saddleworth Hotel. There appears to have been underlying tension between Mr Betts and both appellants, either arising from or exacerbated by the appellants having previously evicted the victim’s partner from her role as publican of the hotel.
There is little common ground about the events of the relevant day, being 31 January 2009. But both sides did agree that about 3.30pm on that day the defendants and the victim were at the hotel. The prosecution case was that some time after leaving the hotel, Mr Betts was driving along a road he called “Golf Road”, on the outskirts of Saddleworth, with the aim of visiting his daughter. It was a dirt road bounded by farming land. He was out of his car when he saw a white VS Holden Commodore containing the appellants pulling up close to him. Mr Betts got back into his car. Both appellants left their vehicle. He said they both made demands about an amount of $6,000 which they claimed Mr Betts owed them. He said Danny approached him and hit him in the right arm with a baseball bat. (The photographs, exhibit P2, show that he suffered extensive bruising to the area under his right armpit.) Mr Betts said Danny then used the baseball bat to hit the driver’s side and back windows of Mr Betts’ Mitsubishi Magna, causing them to smash. While Danny was doing that, Mr Betts tried to drive away by reversing, but in the process came into collision with the rear of the Commodore. Mr Betts said that Brenton then opened the front passenger door of the Magna and proceeded to punch him four to six times. (Photographs within exhibit P2 show that the victim suffered bruising to the head.) Mr Betts said that while that was occurring Danny returned to the driver’s side window and again began to hit Mr Betts in the area of the right shoulder with the bat. Brenton grabbed Mr Betts’ keys from the ignition and threw them into the paddock. Mr Betts said the attack only ceased when he yelled out: “Stop it, you’ll end up killing me”. The defendants left. The victim got out of his vehicle and lay on nearby grass.
Mr Betts said that shortly, he tried to telephone his partner, but there was no answer. He then telephoned a friend called Mel, who lives at Saddleworth. Her partner’s name is the witness Farewell. He said they came to his location. In order to take him to hospital they needed to go away and get extra petrol and he gave them $20 for that purpose. When they returned they took him to the Riverton Hospital.
Danny and Brenton both gave evidence and further evidence was called by the defence, particularly as to alibi in the case of Danny. Danny said that he was not present at all when the incident occurred. He said that after leaving the hotel he went to his parents’ roadhouse, across the road, and had lunch. After lunch his brother Brenton borrowed his car, a white VE Commodore. He saw his brother upon Brenton’s return. He said Brenton had blood on his arm and ear and there was damage to his car.
Brenton claimed that it was Mr Betts who had followed him from the town. Brenton said he had taken his young daughter for a drive in Danny’s car. She wanted to look at animals. He said Mr Betts followed them at very close quarters and Brenton increased his speed a little to get away from him. He said about two kilometres from the town he pulled over, got out and stood alongside the rear passenger door. He said that Mr Betts drove straight at him and actually made contact with the left-hand side of the Commodore. It appeared to him that Mr Betts was trying to run over him. Brenton said, being very angry, he jumped into the passenger’s side door of Mr Betts’ car as Mr Betts was trying to engage reverse gear. There, he said, Mr Betts hit him to the ear. Brenton said he hit Mr Betts back and tried to grab the steering wheel and turn the motor off. He acted in self defence. He was concerned that Mr Betts might again ram the Commodore containing his daughter. There was a tussle over the keys. Eventually Brenton said he got back into his car, executed a U-turn and returned to his parents’ roadhouse. He denied having had a cricket bat or baseball bat with him and he denied smashing any of the Magna’s windows.
On the defence cases, there was nothing to account for Mr Betts’ injuries and the damage to his vehicle.
The magistrate accepted the evidence of the complainant and rejected the evidence of each appellant. She found the “whole scenario” painted by Brenton Lockwood to be improbable. She considered it improbable that, in a car of superior power, he would drive two kilometres up a dirt road and then get out of his vehicle, thereby making himself a target, to see if a person, who bore animosity towards him and tended to aggression, was going to drive by. The magistrate also rejected the evidence of Danny Lockwood. She said that he appeared to have come to court with a prepared script and seemed uncomfortable going beyond it. The magistrate also rejected the evidence of the other defence witnesses in key aspects.
Grounds of appeal
The grounds of appeal are identical for both appellants. I shall deal with them in sequence.
Ground 1
The learned magistrate erred by the descending into the arena inhibiting her ability to make findings on credit in an objective and unbiased way and demonstrating a preconceived view of the evidence.
The appellants submit that the magistrate’s excessive intervention in the cross-examination of defence witnesses inhibited a fair and rational assessment by her of the evidence. It was put that the magistrate had usurped the function of the cross-examiner and deprived herself of the advantage of dispassionate observation. It was put that the magistrate had, in effect, taken over the case for the prosecution.
Counsel argued that some of the questioning of the defence witnesses indicated that the magistrate had already drawn conclusions about the train of events leading to the charges. Counsel pointed to long stretches of questioning by the magistrate. An examination of the transcript of the trial bears out that the magistrate questioned Danny closely and at some length, the transcript of one interchange occupying five and a half pages. I note that this occurred after the police prosecutor had indicated that she had reached the stage where she would put allegations to the witness. Another later series of questions by the magistrate occupied some four pages of transcript. I also note that the first intervention of the magistrate in the cross-examination of Danny occurred within only a page or so of transcript of the cross-examination beginning. However, I would add to this observation that to this point the police prosecutor had, in my mind, asked not a single question likely to elucidate the truth of the matter. Counsel suggested that a number of the questions contained implicit criticism of the defendants’ actions on this day or even scepticism as to the version which was being put forward. Counsel pointed to further questioning which he said seemed to presuppose that Brenton had in fact inflicted damage to Mr Betts’ car. That passage involved the magistrate directing Danny’s attention to photographs showing the damage to the car and asking whether, upon his return to the parents’ roadhouse, Brenton had said anything which might have explained how that damage was caused.
Counsel pointed out that what he suggested was excessive interference by the magistrate also permeated the evidence of the appellants’ witnesses, notably Lara Lockwood. Counsel argued that the preconceived and entrenched views of the matter held by the magistrate were in turn reflected in the reasons that she gave.
In my mind there is some force in some of the observations and submissions made by counsel on this topic. The magistrate played a robust role indeed in questioning the witnesses. In doing so she demonstrated a degree of incredulity. I have some sympathy for that position, because on the defendants’ cases, there was absolutely no explanation for Mr Betts’ substantial injuries or for the extensive damage to his motor vehicle. If the defendants were telling the truth, then Mr Betts must have suffered the misfortune of first having an altercation with Brenton Lockwood at a lonely location in the country, and then have been attacked by another unknown individual, who also damaged his motor vehicle. However I do not agree that the questioning reflected “predetermined” or “preconceived” views of the matter. Whatever views the magistrate had – and ultimately expressed – were plainly reactions to the evidence she heard, including Danny’s examination-in-chief.
The overriding obligation on a judge or magistrate hearing a trial is to ensure that it is a fair one. Under our adversary system the primary task of eliciting evidence is that of counsel. In an ideal world there would be no need for the judge or magistrate to intervene in that process at all, because all relevant topics would be covered with optimum efficiency, any lack of clarity in a witness’s answers would be elucidated and cross-examination would comprehensively demonstrate any inherent contradictions, weaknesses and deficiencies in the witness’s story. However, there are many reasons why that does not always, perhaps not even usually, occur. There are many reasons why it will sometimes be necessary for a judge or magistrate to question a witness. Often, it will be necessary to remove ambiguity. Sometimes it will be necessary to assist a witness – perhaps a young witness or one suffering from a disability – to express his or her evidence (for example, R v Arthur (1991) 163 LSJS 18 (CCA). At other times it may be apparent that counsel had overlooked the interaction of evidence given by one witness with that of another, such as to leave uncertainty. Sometimes it will be to invite the witness’s attention to a difficulty or improbability perceived in their story, so that the witness has opportunity to understand and defuse the issue. The circumstances in which judicial intervention might be called for, or appropriate, cannot be circumscribed.
However, there are dangers inherent in participating in the questioning of witnesses. First, there are matters of perception. The judicial officer might, by such questioning, identify himself or herself with one party or the other. That might lead to a defendant or a party apprehending a discrimination or even bias against his case. Then there is the fact of it. The eyes of the judicial officer might become “clouded with the dust of conflict”: as Lord Greene MR put it in Yuill v Yuill [1945] P 15 at 20; [1945] 1 All ER 183. Denning LJ observed in Jones v National Coal Board [1957] 2 QB 55 at 64: “… an over-speaking judge is no well-tuned cymbal”. Then, the intervention may make it impossible for defence counsel to properly present the defence, or it might impede a witness in giving his account in such a way as to do himself justice. Therefore, it is as well for judicial officers to strive to ensure that by the tone and language of their interventions they maintain neutrality and that such interventions are no more than are necessary to achieve legitimate purposes.
In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed) at 281, offered some guidelines relevant to an appellate court in assessing a complaint of excessive judicial questioning. I set them out:
1.The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).
2.A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980 23 Crim LQ 88 at 95-96 and cases there cited.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion” see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby(1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.
5.It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).
6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.
I note the observation that although the underlying principles do not change, greater latitude in questioning and comment will be acceptable where a judge is sitting alone (number 2 above). I would add that one might often see and accept greater participation by magistrates than in a superior court. Often magistrates do not have the benefit of both sides being represented by legal practitioners and often, even where they do, those practitioners are less experienced. Indeed, much is learned by such practitioners from the moderate and colourless suggestions, guidance and interventions of experienced magistrates. In addition I note the observation in number 6 above of a trend in Australia to a more interventionalist bench, as a response to the increasing length and complexity of litigation. That trend has only continued in the 20 years since Galea’s case was decided. It should not be assumed that the very stringent approach taken in some of the older English cases would necessarily be followed in this country today. I stress, though, that I see this not as a change in, or development of, the underlying principles, but rather as a different appreciation of what is appropriate or permissible.
In the present case, I consider that the magistrate probably played a greater role in eliciting evidence and in confronting witnesses with the improbabilities raised by the evidence than was desirable. It is always difficult to express or encapsulate what amounts to excessive intervention. It is very much a question of judgment. In addition, as I said, what might amount to excessive intervention in one court and context, might not in another situation. However, the questioning by the magistrate did not have the effect of identifying the magistrate with the prosecution case. Nor did it impede the defence counsel in presentation of his cases. Nor was it intimidatory or such as to overbear any of the witnesses. It is true that in some passages the magistrate demonstrated scepticism. But that is something different from prejudgment or bias. I do not apprehend that there was any indication by the magistrate that she had closed her mind to any further evidence or argument. Indeed, the magistrate’s interventions were often designed to give the appellants and other witnesses a chance to answer the specific difficulties which the magistrate ultimately had with the defence cases.

In my view the intervention, though extensive, did not deprive the appellants of a fair trial.
Ground 2
The learned magistrate erred in asking defence witnesses their theories about the complainant’s injuries and thereby reversed the onus in using their responses as part of her reasoning process.
Ground 5
The learned magistrate placed undue weight on immaterial matters in assessing the evidence of the defence witnesses.
These two grounds reflected much the same argument. Counsel put that the magistrate inappropriately asked all the witnesses called by the appellants whether they had a view, consistent with the defence case, of how Mr Betts had sustained his injuries and how his car had become so damaged. Putting it in plain terms, the magistrate asked the witnesses how they accounted for the damage to Mr Betts’ car and his injuries.
The questioning of the defence witnesses as to their theories of what might have befallen Mr Betts was, strictly, objectionable. In at least one instance the magistrate pressed the witness to answer the questions on that topic in the face of the witness’s reluctance. There was no protest by defence counsel, but I do not think that questions by the court designed to elicit inadmissible material are ever such as to promote the ends of justice. Then, counsel argued that, having elicited from the defence witnesses their “theories” about the events, the magistrate, in her reasons, then criticised them for having proffered the theories that they did.
In my view counsel’s complaint about this topic is well made. It would have been better had the magistrate resisted the temptation to probe these witnesses in the way she did. While it could be thought that this material might go to the credit of the witnesses and might underpin a suggestion that the witnesses had engaged in a round table discussion about what had occurred, I do not consider that an appeal to credit can justify questioning of this kind. It will always be inevitable that members of a family involved in an incident such as this will discuss it. There will always be theories put about. It is to be preferred that such discussions remain outside the courtroom and that the rules of evidence are strictly applied.
However, that is not to say that what occurred undermined the fairness of the trial or led to a miscarriage of justice. The fact remained that on the defence evidence there was no apparent explanation for Mr Betts’ injuries or the damage to his vehicle. With or without any proffered theories, that point was a powerful one in favour of the prosecution case. On my reading, it was that point which the magistrate weighed, rather than an evaluation of the witnesses based on their “conferencing” about what had occurred. I reject the suggestion that questioning on this topic somehow had the effect of reversing the onus of proof.
Ground 3
The learned magistrate failed to make findings of fact on matters central to the trial.
Ground 4
The learned magistrate failed to resolve material inconsistencies between the evidence of the prosecution witnesses.
In support of these grounds several controversies thrown up by the evidence were raised. For example, Mr Betts asserted that the white Holden Commodore shown in the prosecution photographs was not the Commodore involved in the incident. Brenton said that it was. The relevance of this was that the appellants contended that the damage to the left rear fender of the Commodore was inconsistent with Mr Betts’ evidence as to the manner in which his vehicle had made contact with the car driven by the Lockwoods.
The appellants submitted that the magistrate failed to grapple with an inconsistency between the evidence of Mr Farewell as to the position in which Mr Betts’ car was at the time he arrived at the scene, compared with Mr Betts’ own evidence and the photographs. Then it is said that the magistrate did not resolve the question of whether Mr Farewell was left alone with Mr Betts when the woman “Mel” went to get petrol in readiness for the trip to hospital. Mr Betts had said that Farewell stayed with him while Mr Farewell said that he had gone with Mel.
The appellants complain that the magistrate did not resolve these issues in her reasons. I consider that the magistrate was not required to reach a finding on them. It seems fairly clear that the Commodore depicted in the photographs was indeed the one involved in the incident. The fact that Mr Betts claimed otherwise was of no particular importance. The description given by Mr Betts of the contact he made with the relevant Commodore was not particularly detailed. In any event, on his version, he was in no state to be making precise observations as to the manner of the contact. Even more, none of the witnesses was qualified to express views about the nature of damage that would be caused to a vehicle in the face of any particular impact. As to the position of the Magna, again I do not see this as an issue of such importance that the magistrate needed to resolve it. On the defence “theory”, if Mr Farewell were left alone with the victim, then it was conceivable that he had injured Mr Betts and damaged his car. However, that was only a theory. Mr Betts disclaimed any such events. The magistrate decided the case on the basis of direct evidence of what had occurred and not on the basis of hypothetical possibilities.
Furthermore, commendably, the magistrate gave ex tempore reasons for her findings. It is not to be expected of such reasons that they cover all the issues in the manner of settled reasons. Ex tempore reasons will necessarily be directed primarily to the issues which the judicial officer sees as being the key issues. In my view, the ex tempore reasons given in this case were well directed and comprehensive.
Remaining grounds
Grounds 6 and 7 were abandoned upon the hearing of the appeal. Ground 8, which related only to Brenton, was also abandoned.
Conclusion
In view of some difference between counsel at the appeal hearing about the correct approach to be taken upon an appeal under s 42 Magistrates Court Act 1991, I confirm that I have approached these appeals as rehearings of the trial on the papers. In my view the grounds of appeal have not been made out. My assessment of the evidence leads me to entertain no doubt of the correctness of the magistrate’s decision.
Each appeal is dismissed.