Lomans v Morony - [2002] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LOMANS -v- MORONY [2002] WASCA 105

CORAM: WALLWORK J
STEYTLER J
WHITE AUJ

HEARD: 17 DECEMBER 2001

DELIVERED : 7 MAY 2002

FILE NO/S: SJA 1109 of 1999

MATTER :Justices Act 1902
and
A Complaint No MH 2341 of 1998 in the Court of Petty Sessions at Mandurah

BETWEEN: STEPHEN JOHN LOMANS
Appellant (Defendant)
AND
KENNETH IAN MORONY
Respondent (Complainant)

Catchwords:

Appeal - Criminal law - Conviction of assault occasioning bodily harm - New Evidence - Whether prosecution witnesses conspired together - Whether complainant had exaggerated his injuries - Decided on the facts

Legislation:

Criminal Code, s 260

Result:

New evidence did not throw doubt on conviction
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant (Defendant) : In person
Respondent (Complainant) : Mr B Fiannaca

Solicitors:

Appellant (Defendant) : In person
Respondent (Complainant) : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Craig v The Queen (1933) 49 CLR 429
Gallagher v The Queen (1986) 160 CLR 392
Ratten v The Queen (1974) 131 CLR 510

WALLWORK J: The appellant in this matter appeals on the basis of fresh or new evidence against his conviction on the 25 May 1999 in the Court of Petty Sessions at Mandurah on a charge of unlawfully assaulting Mr McKain and thereby doing him bodily harm.

Background

At the trial the appellant was represented by counsel. He represented himself at the appeal.
At the trial, Mr McKain said in evidence that on Tuesday, 3 November 1998 at about midday he went to the Silver Sands Hotel at Mandurah to have a drink and because the Melbourne Cup was on. After he reached the hotel he socialised with his friends. He said that just after 7.00 pm on that evening, which was approximately seven hours after he had arrived at the hotel, he was playing pool with two of his friends. He had been drinking in moderation during the afternoon. Mr McKain said "I had a couple of scotches and coke, and some coke and just a few beers." He said he was not very affected by alcohol at all. He had turned around and there was a person on the ground 10 to 15 feet away from him. He thought that the person had tripped or had been pushed. He was getting up and "I just sort of went over and just give him a lift up. That was it, and I went back to my friends."
Mr McKain said that the defendant (appellant) had then come up to him. The defendant was there as a "bouncer". He had been drinking in the hotel before 7.00 pm when he was not acting in his role as a bouncer. The defendant came up to him and said "You've got to move on." Mr McKain said he had said to the defendant "What do you mean, move on?" He said the defendant had said to him "You've just got to move on." Mr McKain said "So after that was said, he walked around behind me and grabbed me by the neck, with his arm around my neck, and in my throat." The defendant "escorted" him outside.
Mr McKain said "I sort of blacked out at that time a little bit - when I was going out. Then he let go of me outside, pushed me up against the wall. He had his hands into my throat." He said the defendant was squeezing his throat. He said the defendant had told him "If you don't fuck off, I will fucking kill you."
Mr McKain said that at that stage he was gasping for breath. He could not get his breath. His friends had helped him across to the grass. He collapsed on the grass. The defendant had come down and given him his card and then returned back to the hotel. Mr McKain said he was bleeding from the side of his face due to the assault. He went to a friend's home. They rang the police. Later he went to the hospital.
Mr McKain said that the next day the front of his throat was extremely sore, as was the side of his throat and the back of his neck. He could not push his neck back. That day he could not breath properly at all. He felt like he was suffocating. He was given an injection by a doctor to free his airway. He also had a sore left shoulder. He stayed in bed for a few days. Thereafter, he had three lots of cortisone in his left shoulder and physiotherapy to his neck, without improvement.
At the time of the trial in May 1999 Mr McKain said he was still undergoing treatment from a doctor and a physiotherapist. He said he had been to the physiotherapist about nine times.
In cross examination Mr McKain said that during the afternoon he had had four or five beers. Some of them were gold he thought, and Emu Draft, middy size. He also had a couple of scotch and cokes. He had a couple of cokes, soft drinks. When he was asked "Well, you didn't think you were drunk…?" Mr McKain said "No, I've been drunk once or twice. I know what it's like to be drunk."
Mr McKain said the person who had fallen over was Mr Paul Lucas who had been with him, but had gone off socialising with other people. It was put to him that he had been asked to move along and he had refused to do so. He said that the defendant had asked him to move on twice. He denied that it had happened on about five occasions. He denied that he had said to the defendant that he was not moving on. He also denied that the defendant had put his hand up in "a palm out" motion and that he (Mr McKain) had actually walked into the defendant's hand, or that he had said to the defendant "I know that's an assault." He said the defendant had not turned him around, and then put a hold around his throat and taken him out of the hotel. He said the defendant had walked up behind him and put his arm straight around his neck, from the back.
The prosecution called a Mr Barry Thomas who was 39 years of age and an assistant manager of a caravan park. He had arrived at the hotel that morning at 11.00 am. He said that the defendant had come up to Mr McKain and said "You need to move on." When Mr McKain had asked him why, because he hadn't done anything, the defendant had grabbed him by the throat and dragged him outside. He said that outside "the bouncer" still had Mr McKain by the throat, up against a wall.
Mr Thomas said he would not have driven a car at that time, but he did not believe he was drunk. He said that outside the hotel, when Mr McKain was up against the wall, he had seen the defendant with his hands around Mr McKain's throat.
In cross examination Mr Thomas said that between 11.00 am and 7.15 pm on that day, he had been drinking beer and lemonade. He knew what he had been drinking but not how much. He agreed he was affected by alcohol by the time he left the hotel. When asked would he agree that at that time, Mr McKain was also affected by alcohol, he said "Yes".
Mr Thomas agreed that the defendant had asked Mr McKain, twice maybe, to move along but no way was it was five times "because it seemed like to me a couple of times - the next minute he was grabbed around the throat." He said Mr McKain had been grabbed by the defendant from the front around the throat. When asked "It's not possible that he was grabbed from behind?", he said "I don't think so, no. It was from the front." When he was asked again he said "No, it was from the front. I'm sure it was from the front." After he was continually questioned about that he ultimately said "No, but I was positive it was from the front."
Mr Thomas said he had not seen Mr McKain walk aggressively towards the defendant on two occasions. He said he did not think the defendant had put his hand up "opened palmed" and that Mr McKain had walked into it. He said Mr McKain had not moved towards anybody. He had seen Mr McKain grabbed by the neck.
Mrs Thomas said she had gone to the hotel with her husband at 11.00 am. It was after 7.00 pm when they left. She said that Mr McKain had been grabbed by the back of the neck. Generally, however, Mrs Thomas' evidence was similar to that of her husband. She said that outside the hotel, the defendant had had Mr McKain pinned up against the wall and had said "If you don't move on I'm going to kill you."
Mrs Thomas said Mr McKain had not been asked to move along before he was grabbed. It was after he was grabbed that he was asked to move along. She said Mr McKain had not walked towards the bouncer in an aggressive manner. She said that when Mr McKain was taken outside there was more than one bouncer. She said there would have been three bouncers at least.
The appellant (defendant) gave evidence and said he was the proprietor of a security company. He held various security licences. He had been in the crowd control industry for 11 years. This was the first charge he had faced arising out of that work. He had been at the hotel earlier that day to watch the running of the Melbourne Cup. He had had a couple of beers - mid‑strength. He had started work at 5.00 pm. He was sober. He had told the person who had been on the ground, whom he thought had been pushed over, to go to the end of the bar. He said that at that stage Mr McKain had come in between them and said "Listen, we are not going anywhere." He said he had said to Mr McKain "Mate, it's got nothing to do with you." He said Mr McKain had again interfered with him when Mr McKain said "I told you we are not going anywhere." Following that, the appellant said Mr McKain had come towards him. The appellant said he put up his hand and said to Mr McKain "Look, don't get so close". Mr McKain had said "That's an assault. I will have you charged, or something like that." The appellant said he had then asked Mr McKain to go to the end of the bar with his mate. Mr McKain had said "I told you we are not going anywhere." The appellant said he had then asked Mr McKain to drink up and leave. Mr McKain again said "We are not going anywhere." Mr McKain had then come towards him. The appellant said "…and I pushed him on the shoulder, spun him around and dragged him outside." The appellant said he had done that because "in that instance it could have escalated because the people that were around there were sort of pretty drunk."
The appellant said he was a crowd controller. His duties were to look after the hotel and the clients, stop the trouble, stop "underages", stop people becoming too intoxicated. He had believed that if Mr McKain stayed in that area "then that was just going to escalate and probably get a little bit out of control. It was a fairly packed place at that stage." He said he thought he had the right to ask Mr McKain to leave. It was one of his duties to remove people who refused to leave licensed premises. He had not applied a sleeper hold on Mr McKain. He would call it a headlock. When he had let Mr McKain go, outside, Mr McKain had just slumped to the ground. He had not crashed to the ground or anything like that. He said he had not held Mr McKain up against the wall outside the hotel with his hand around his throat.
The appellant said that Mr McKain had not been a reserved sort of person like he had been when giving evidence: "He was fairly intoxicated… the lady… she was drinking wine. The wine glass was on the table there. I don't know what else she was drinking, but they were pretty drunk." He said Mr McKain had been aggressive towards him. He could not talk him around or anything like that. There was no "tolerance." He was just not going to listen.
The appellant said there would not have been an incident if Mr McKain had not come across "and started getting in my face." He said Mr McKain had come from about three foot towards him fairly quickly before he had to restrain him. He said he could not recall how many times he had asked Mr McKain to move to the end of the bar, but it was probably over four or five times. He said that Mr McKain had been fairly loud and definitely aggressive. The appellant said he had put his hand out and Mr McKain had actually walked into his hand. He had asked him to go to the end of the bar with his mate so that he could sort the problem out. He said that outside the hotel Mr McKain had been aggressive and obnoxious "You know, very loud."
Mr Lindsay, the proprietor of the hotel, gave evidence and said that his instructions to crowd controllers were that "always, any problem customers are to be removed and removed straight away, and any sort of customers that are intoxicated and at the stage where they have had enough, are to be removed from the premises or asked to leave." When asked whether he had had any difficulties with the appellant's security operations at the hotel he said "Quite the opposite. He has been excellent." He said that on that evening he had seen Mr McKain moving towards the appellant in a rather aggressive manner. "He had a wild look in his eyes."
Mr Lindsay said he had been at the bar and had had a clear view of what was going on at that time. He said he had seen the appellant grab the person who had been walking towards him and take him out the door. He said that when he had seen Mr McKain coming towards the appellant "He [Mr McKain] looked like he was about to do something. As I say, he had a fairly wild look in his eyes." In cross examination he said "It can best be described as wild, upset." He said he had been about five metres away but he had a clear view of Mr McKain's face.
Another witness, Mr Turner, also a crowd controller, said that he had seen Mr McKain telling the appellant "I'm not moving anywhere, I'm staying right here." He said "…All I know is the guy wouldn't move out of the road and he was just in Steve's face saying 'Look I'm not going anywhere; basically." It was after that that the appellant had grabbed that person. Mr Turner had had to take another man out.
Another witness, Mr K J McDonald, a security officer with Alcoa, who also operated a delicatessen at Falcon, said that he had seen the appellant exit the door of the hotel with a gentleman in front of him. When Mr McKain had been released, "he went to his knees." He had not seen the appellant put "that fellow" up against the wall of the hotel with his hand around his neck. When asked was it something he could have missed, he said "No, there were too many people around." When Mr McKain had sunk to his knees "He paused there for a while and then he got up. That's when he became quite vocal." There were other people there being vocal.
Mr McDonald said that after Mr McKain had been released, "he went to his knees, he rose, the other doorman came out with the other guy. There was talking going on and then Mr Lomans had gone back into the hotel." Mr McDonald said "I was watching the whole scenario."
In cross examination, when it was put to Mr McDonald that Mr McKain had been pushed up against the wall and had had his throat grabbed when he came out of the doorway, Mr McDonald said "There is no wall within 15 or more feet of the doorway."
A Mr R A Coin, a bricklayer, said that he had heard Mr McKain say "I'm not going anywhere. I'm not moving anywhere mate." And "he tucked his chest up and stood in towards Steve. I just walked passed and laughed…" He said "Mr McKain had come face to face, he came close." He said he had gone past them to the toilet and had just shaken his head "And I thought, you know, silly bugger." He had heard the appellant say something to Mr McKain along the lines of "Don’t worry about it mate. I've got it under control." That was when Mr McKain had said "I'm not going anywhere" - and he came face to face - he got in Steve's face, so to speak." He said "Well, this gentleman actually stood up - stood up to Steve and walked towards Steve and said… 'We are not going anywhere'."

The Decision at the Court of Petty Sessions

In his decision the learned Magistrate found that bodily harm had been proved. He accepted that Mr McKain had been having difficulty with breathing on the following day and had been given injections; also that he had sustained an injury to his shoulder. He accepted that Mr McKain had needed treatment from a physiotherapist and that all those matters amounted to bodily harm caused by the particular incident.
The Magistrate found that Mr McKain had been unable to resist because the defendant had put him in a position where he was blacking out. "One would have to say that that was caused by the defendant using one of these sleeper holds to some extent." The Magistrate said that Mr McKain had fallen to the ground when he got outside. The Magistrate said "That’s excessive, to cause that sort of problem."
The learned Magistrate then said he was greatly concerned with what the defendant had said and added "I could well imagine the defendant dragging people out by the same method and them lapsing into unconsciousness and it being written off: 'Well, he flaked out, Sir. He had had so much to drink he flaked out.' This fellow perhaps wasn't as drunk."
There was no evidence that the defendant in this case had been dragging people out with the result that the people lapsed into unconsciousness "and it being written off: 'Well, he flaked out, Sir. He had had so much to drink he flaked out.'"
The learned Magistrate then went on to say "He knows how to do it. He's trained in it. You've just got to put a bit of extra pressure in a certain way and it happens. I would have to find that that's what he did this time. That's excessive."
The learned Magistrate said "The job of a crowd controller or security person is not to involve themselves in violence. If this person is behaving unruly, he is not in a position to take it into his own hands to use violence of that nature. He might be entitled under common law to use reasonable force, what is necessary to take the person out. He went beyond that."
The learned Magistrate found that Mr McKain was not being aggressive to the defendant. He said "He might have stood up to him and said he is not going out, but that's not enough." The Magistrate found that there had been absolutely no effort by the defendant to settle the matter down. He said he was satisfied that the defendant had told Mr McKain that he had to move along and if he was not going to, he could go outside. The learned Magistrate said "That was the sort of an ultimatum and I'm quite sure Mr McKain was saying 'What have I done wrong?'" The learned Magistrate said "He's done nothing wrong. That was right from the start. The defendant - even if he had grounds to take him out, he had no grounds at all to use that sort of force."
In my opinion the learned Magistrate was entitled to come to the finding that the charge had been proved. Although he expressed some opinions which, with respect, were not relevant to the facts he had before him such as "I could well imagine the defendant dragging people out by the same method and them lapsing into unconsciousness and it being written off: 'Well he flaked out, Sir. He had had so much to drink he flaked out,'" the Magistrate did not in my opinion err in coming to his final conclusion.
However, the learned Magistrate did not, in my opinion, do justice to the witnesses called by the defendant. For example, when he said "Mr Lindsay, I don't believe he saw anything. The only evidence he can give, he didn't see a thing, didn't know a thing. Didn't know how he was taken out, didn't know how it was started. All he knows was this fellow was approaching him in this aggressive manner and he saw a wild look in his eye, nothing else. And I would have to decide that his evidence is not worth anything and likewise this other fellow, the last one Coin, he gave evidence. He had a skin full himself and all he knows was that he fronted up to the defendant and said 'I'm not going anywhere.' I don't put much weight on their evidence at all." He also said that Mr McDonald did not see anything, "he went on inside any way."
The learned Magistrate's found that "McKain's evidence on that is consistent because McKain had a very good recollection of everything that happened there in detail. And I would have to accept that he wasn't drunk, unlike Mr and Mrs Thomas. They were there seeing it and their recollection was very fuddled." A little further on his Worship said "…but McKain had everything in fairly good focus and even the defendant's evidence agreed with his, in everything, virtually."

The learned Magistrate said that he would have to make the finding on the evidence that in so far as Mr McKain had approached the defendant and started being aggressive to him, and that's why he was put out - "Well, as I said, that didn't matter, but I would have to make the finding on the evidence that McKain did not do that. He was a modestly behaved restrained person in the box. And to say that he had wild eyes, is just - that's what one of them said. And the fact that he gives evidence like that casts doubt upon the evidence of them all. They're all mates anyway. And I would have to make the finding if necessary, that McKain did not approach Mr Lomans in this aggressive manner. He was just standing there saying "Why do I have to go? I've done nothing wrong." His Worship said "It's fairly obvious that the defendant assumed that he pushed him (the man on the ground) over. The charge is proven."

On Appeal

Following the conviction an application for leave to appeal was lodged by the appellant. On the 10 April 2000 Scott J gave written reasons for his decision that the appeal should be dismissed.
Scott J referred to s 260 of the Criminal Code which provides:
"In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful."
With respect to the appeal on the grounds of duplicity, Scott J held that in his opinion there was only one incident and one continuous assault which had occurred both inside and outside the licensed premises. His Honour said that that was sufficient to deal with the first three grounds of appeal which concerned the question of duplicity.
The fourth ground of appeal was:
"The learned Magistrate erred in fact and law in rejecting the evidence of defence witnesses when there was no evidential basis for doing so."
Scott J found that essentially the learned Magistrate had accepted the prosecution witnesses in preference to those called on behalf of the appellant and that his Worship had been entitled to reach that conclusion. His Honour dismissed the appeal.

New Evidence

The appellant then applied for leave to appeal on the grounds of new evidence. The first hearing on that matter was before a Court comprised of Malcolm CJ, Owen and Steytler JJ.
The appellant there submitted that the significant thing about the new evidence he had obtained was that Mr McKain had over stated his injuries to the Magistrate and the Magistrate had thought that the appellant had used more force than was necessary to take Mr McKain outside. The appellant submitted that that was never the case.
The appellant submitted that the new evidence would establish that Mr McKain had exaggerated his injuries and therefore his evidence should not have been believed. Secondly, it was relevant to whether or not the force used had been in excess of that which would have been reasonable in the circumstances.
The appellant submitted that the Magistrate had believed Mr McKain "But there were so many things that weren't true that Mr McKain had said, and I have new evidence to prove that what he was saying was made up, which would shed some sort of doubt on the truth of his story." The appellant told the Court that all the way along he had said he had never used the force which Mr McKain said he had used.
The appellant contended that an affidavit of Mr Paul Lucas revealed that Mr McKain had told Mr Lucas that the witnesses had got together.
Paragraph 8 of Mr Lucas' affidavit sworn 26 July 2000 is as follows:
"Dave also told me that after the incident at the Silver Sands Tavern, between Mr Lomans and himself, that he and his friends/witnesses talked together to work out how he [Dave] would 'get back' at Mr Lomans."
At the conclusion of the application for leave hearing on the 21 November 2000, Malcolm CJ referred to the proposed admission of fresh evidence concerning the allegation that Mr McKain and his friends/witnesses had talked together to work out how Mr McKain would get back at Mr Lomans; also the second question concerning the fact that Mr McKain had played a game of Australian rules football after the incident and had kicked some goals.
The Chief Justice said:
"One matter which the applicant seeks to raise as a result of the evidence he now seeks to adduce is that the evidence of Mr McKain at the trial was false or misleading insofar as he exaggerated the continuing state of the injuries he claimed to have suffered."
The Chief Justice said:
"… if there is fresh evidence which in the Court's view is probably capable of acceptance and likely to be accepted by a jury and which is so cogent in the opinion of the Court that being believed is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage of justice which has occurred because of the absence at the trial of the fresh evidence."
His Honour said it was at least arguable that had the evidence then available in the form of new evidence, been available and adduced at the time of the trial, there was a reasonable possibility that the result would have been different. That was enough to justify the Court in granting leave to appeal.
His Honour said:
"The leave which I would grant would be on the following ground namely on the basis of the evidence referred to in the affidavit of Paul William Lucas, sworn 26 July 2000 and the affidavits of the applicant, sworn 16 June and 12 October 2000, it is likely that the learned Magistrate would not have made the following findings namely:
(a)That the evidence of the complainant was very credible.
(b)That the evidence of the complainant should be preferred over the evidence of the applicant and other defence witnesses.
(c)That the complainant suffered bodily harm as a result of the incident, and
(d)That in removing the complainant from the hotel the applicant used excessive force."
At the hearing before this Court the relevant affidavits were tendered in evidence and Mr Lucas, Mr McKain and the appellant gave evidence.
Mr Lucas said that after Mr McKain and his witnesses had gone back to a house after the alleged assault, Mr McKain had asked persons at the house if they would come to court and be his witnesses: "That's when they spoke about it. And they agreed."
Mr Lucas was then asked "Yes, but they didn't sit down and talk together to work out how he would get back at Mr Lomans, did they?" Mr Lucas said "Well I suppose not, no." There was also other evidence from Mr Lucas to the same effect.
It was submitted for the respondent that Mr Lucas had resiled from suggestion that there had been some kind of conspiracy between Mr McKain and his witnesses. In my opinion that submission was made out and Mr Lucas's evidence disposes of that aspect of the appeal which alleges that the witnesses had got together to assist Mr McKain to "get back" at the appellant. That ground is not sustained.
The next ground is concerned with the fact that Mr McKain had told the learned Magistrate that after the incident he could not lift his arm properly. The appellant contended that despite this Mr McKain had after the incident, managed to play in two games of football as a full forward.
Before this Court it was established that one of those games of football was a picnic match. The other was a game in which Mr McKain had played in the seconds and kicked two goals, one from very close in and the other from not much further out.
In my opinion, none of the new evidence produced by the appellant establishes that Mr McKain was not telling the truth at the original hearing. Although photographs were produced by the appellant to show that Mr McKain had played football and Mr McKain admitted having done that, the evidence did not take the matter any further. In the appellant's own words the photographs "just basically proved that he was actually on the field."
The learned Magistrate did not rely only on the evidence concerning Mr McKain's shoulder injuries in coming to his conclusion that bodily harm had been caused to Mr McKain. He also relied on the evidence concerning Mr McKain's difficulties in breathing and his need for physiotherapy after the incident.
It was submitted for the respondent that in his evidence before the learned Magistrate the appellant had conceded that the method he had used to remove Mr McKain from the hotel might have amounted to a sleeper hold if he had applied more force than he had actually done; that the appellant had claimed that he had not used that degree of force which would cause a person to stop breathing. However, the learned Magistrate had rejected that evidence and had come to the conclusion that the force used was excessive and more than was necessary to remove Mr McKain from the hotel, even if the appellant had been justified in removing him from the hotel.
It was submitted for the respondent that nothing which had been put forward during the hearing of the appeal had detracted from the learned Magistrate's conclusion that he accepted Mr McKain's evidence that on the day after the incident he had not been able breath properly and was given injections. Neither had evidence been put forward to establish that Mr McKain's evidence before the learned Magistrate that he had suffered an injury to his shoulder as a result of which he could not lift his arm very high, should be departed from.
A medical report was produced to this Court which established that there had been a soft tissue injury to Mr McKain's neck and to his left arm, which had resulted in limited movement of the left arm. That was consistent with what Mr McKain had said in the Court at Mandurah. It was submitted for the respondent that all that the learned Magistrate had had to be satisfied about was the existence of bodily harm as a result of the injury on the 3 November 1998 and that there had been ample evidence from Mr McKain about that.
Mr Lucas confirmed before this Court that on the night in question Mr McKain had been complaining about pain in his neck and as a result he had been taken to hospital for treatment.
It was further submitted for the respondent that what Mr Lucas had said about Mr McKain's previous drinking habits and his drinking on the day in question at the hotel, had not undermined the learned Magistrate's findings. It was submitted that Mr Lucas' evidence had not indicated in a relevant way, what effect the drink had had upon Mr McKain on the day in question, because it had not indicated that it was Mr McKain's aggression which had caused the incident. It was submitted that Mr Lucas' evidence before this Court would not have made any difference to the learned Magistrate's conclusions, if he had heard it.
In my opinion all of the respondent's submissions are correct. Mr Lucas did not produce any new or fresh evidence which would be sufficient to upset the learned Magistrate's conclusions or the conviction.
The respondent's counsel's submissions that the evidence relied on by the appellant concerning Mr McKain's prior physical condition and his participation in the football games after the events in the hotel, would not have led the learned Magistrate to the conclusion that Mr McKain was not a credible witness are, in my view, correct.
I would also uphold the submission that none of the evidence produced by the appellant was such as should have led the learned Magistrate to the conclusion that he should not accept the evidence of Mr McKain over the evidence of the appellant and the other defence witnesses. Further, the appellant's new evidence was not such as would

lead to a conclusion that Mr McKain had not suffered bodily harm as a result of the incident.

The result is that the appellant has not produced new evidence sufficient to establish that there was a miscarriage of justice at the hearing before the learned Magistrate. The appeal should therefore be dismissed.
STEYTLER J: I have had the advantage of reading the reasons for decision of Wallwork J. I agree, for the reasons given by his Honour, that there is insufficient in the new evidence produced by the appellant to warrant the setting aside of his conviction.
The appellant was given leave to appeal against the decision of Scott J only upon the basis of the new evidence to which Wallwork J has referred. He relied upon that evidence in support of the proposition that, if that evidence had been available, the Magistrate in the Court of Petty Sessions would not have found the evidence of the complainant to be credible, would not have preferred the evidence of the complainant over that of the appellant and other defence witnesses, would not have found that the complainant had suffered bodily harm as a result of the incident and would not have found that, in removing the complainant from the hotel, the appellant used excessive force.
As has been pointed out by Wallwork J, the appellant, in obtaining leave to bring this appeal, relied upon three affidavits, being one sworn by Mr Paul Lucas on 26 July 2000 and two sworn by the appellant himself on 16 June 2000 and 12 October 2000 respectively.
Mr Lucas, in his affidavit, said, relevantly, that the complainant was a heavy drinker (who had once told Mr Lucas that he was an alcoholic) and that, after the incident the subject of this appeal, the complainant and his "friends/witnesses" had "talked together to work out how he … [the complainant] would 'get back' at … [the appellant]". As has been pointed out by Wallwork J, there was nothing in Mr Lucas' evidence (whether by way of affidavit or given orally at the hearing of the appeal) as to the complainant's state of intoxication on the day in question, or as to his drinking habits generally, which shed any new light on the findings made by the Magistrate. Wallwork J has also pointed out that, in his oral evidence, Mr Lucas essentially retracted what he had said in his affidavit about any conspiracy to "get back" at the appellant.
The appellant's own affidavit evidence, insofar as it raised anything new, related, relevantly, to only one issue, being whether or not Mr McKain had suffered the injuries alleged by him. He relied, in that

respect, primarily upon the fact that the complainant had later been photographed playing football.

For the reasons given by Wallwork J, it seems to me that there is insufficient in that evidence to warrant the upholding of the appeal.
As Wallwork J has pointed out, even if the complainant exaggerated his injuries, the fact remains that the medical evidence establishes, quite plainly, that the incident resulted in a soft tissue injury to the complainant's neck and to his left arm and that this resulted in limited movement of the left arm. There was also evidence, accepted by the Magistrate, that the complainant had experienced difficulties in breathing and had needed physiotherapy after the incident. There was consequently more than enough evidence to justify a finding that the complainant suffered bodily harm as a result of the incident.
It also seems to me to be plain, from the Magistrate's findings, that the evidence now produced by the appellant would not have affected his Worship's conclusion as regards the use of excessive force, even if he had reached the conclusion that the complainant had exaggerated his injuries. The Magistrate's finding in that respect depended at least as much upon his acceptance of the evidence led by the prosecutor as to the nature and degree of force used on the complainant as it did upon his Worship's findings as regards the nature and degree of the injuries suffered by the complainant. The injuries which were undoubtedly suffered by the complainant, as I have described them above, were, in any event, more than sufficient to support the Magistrate's finding in this respect.
I am consequently in agreement with Wallwork J that none of the grounds of appeal has been made out and that the appeal should accordingly be dismissed.
WHITE AUJ: I have had the advantage of reading the reasons to be published by Wallwork J. I agree with those reasons and have nothing further to add.