Luis Alberto Gonzales v John Kenneth Daire No. SCGRG 2417 of 1991 Judgment No. 3587 Number of Pages 6 Criminal Law and Procedure

[1992] SASC 3587

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), LEGOE(2) AND COX(3) JJ

CWDS
Criminal law and procedure - particular offences offences against the person - Common assault - prior verbal threats - complaints by victim to the police and medical practitioner admissible - evidence of consistent conduct - relevance of dress rings worn by the accused. Cross on Evidence 4th ed p.17120. Whitehorn v R (1983) 152 CLR 657, distinguished. Browne v Dunne
(1894) 6 R 67, discussed.

HRNG ADELAIDE, 4 June 1992 #DATE 27:8:1992
Counsel for appellant:     Mr P A Cuthbertson
Solicitors for appellant:    Elston Gilchrist
Counsel for respondent:     Mr W C Chivell
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 MOHR J The appellant was convicted of the offence of common assault. The incident giving rise to his conviction happened on the 17th January 1991. 2. The circumstances giving rise to the charge were that the alleged victim, one Edward Reys was from 10th December 1990 the chairman of an organisation known as Casa Australiana Housing Association. It was concerned with providing houses for its members in some cases it let houses and became responsible for their maintenance. The appellant had earlier been secretary of the Association. 3. As at 17th January 1991 the appellant was a tenant of a house which he held as tenant from the Association. He complained that some plumbing needed maintenance. He complained to the Residential Tenancy Tribunal and it was on 17th January 1990 that his complaint came on for hearing. The appellant and some others connected with the matter were Spanish speakers. The Tribunal appointed a Mr. Laurent as interpreter. The appellant was accompanied to the hearing by a Mr. Goni and a Mr. Canales. The chairman, Mr. Reys, attended in his official capacity. The hearing was held in the late afternoon and the appellant was successful. 4. The prosecution which gives rise to the appeal resulted in the appellant being convicted. 5. The evidence of Mr. Reys was that after the hearing before the Tribunal was completed he left the hearing room and while waiting for a lift the appellant, speaking in Spanish, made threats in relation to him. Mr. Reys did not leave in the lift with the appellant, Goni and Canales. He waited for the next lift and left with Mr. Laurent. They left the building and walked along Grenfell Street to the Harris Scarfe car park. He was, he said, waiting for a lift to take him to the level where he had left his car. Mr. Laurent was not with him. He became aware of a movement behind him and was then struck a blow to the back of his head. He turned and saw the appellant who thereupon struck another blow to the right side of his face near the brow. He then tried to leave but the appellant continued to punch. Some missed and others made no significant contact. He warded off the blows with an attache case and pretended to operate a mobile telephone which he held in his left hand. He pretended to call the police. The appellant thereupon left but not before spitting on him. 6. Mr. Reys said he then used his mobile 'phone to contact the police and, he said, was told to attend at the Angas Street Police Station and make a Statement. He located his car, drove to the vicinity of the Police Station, found a place to park and then attended and made a Statement. The fact of his making the Statement was an agreed fact at the trial. There was some dispute at the hearing of the appeal as to the exact terms and meaning of their agreement but the learned Special Magistrate who heard the matter and after some argument before her considered that the fact had been agreed. I do not propose to canvas the arguments addressed to this Court on the matter as I consider the matter closed by the Magistrate's understanding of what transpired before her. 7. To continue with Mr. Reys' account. After making his statement he returned home and after eating and showering he went to Dr. Shimeld's surgery. The doctor made notes of his observation and the complaints made to him. He found that Mr. Reys complained of pain and difficulty in moving his head. Mr. Reys gave evidence along the lines of the account set out above and Dr. Shimeld also gave evidence. 8. The prosecution also called Mr. Goni. He spoke of the time he, the appellant and Mr. Canales were waiting for the lift outside the Tribunal's hearing room. At that time, he said, the appellant said "like he was going to get him, in Spanish". As the group left and walked towards Harris Scarfe he said the appellant "was looking back all the time". As they neared Harris Scarfe the appellant said that Mr. Reys had left the Tribunal building with the interpreter. When they reached the car park the appellant told Mr. Goni and Mr. Canales to go to the car. The appellant said something in Spanish to the effect "go and get in the car I'm going to kill the bastard". Mr. Goni and Mr. Canales went in a lift to their car. The last he saw of the appellant at that time he was entering Harris Scarfe's store. When they were driving out of the car park approaching the "pay" window the appellant ran up the exit ramp towards them and got into the car. As they left the car park, according to Goni, the appellant was saying "I fixed him up. I spat at him and I punched him". Under cross examination he admitted that he had spoken to a Mr. Black, the appellant's solicitor, and told a quite different story. He had, he admitted, said that the three of them had left together and remained together and that he had last seen Mr. Reys making enquiries at the Tribunal's counter. He said that he had been lying to Mr. Black but that he had told the truth to the Court. 9. The appellant gave evidence. He denied making the remark attributed to him while waiting for the lift. His version was that he left the Tribunal hearing with Mr. Goni and Mr. Canales and walked to the car park. They all took a lift to the third floor, got into the car and left. He had not seen Mr. Reys since last seeing him at the Tribunal. He denied that he had made the remarks attributed to him by Mr. Goni. He gave evidence that he always wore two dress rings on his right hand. He showed the Magistrate the ring he said he was wearing on 17th January. She noted "the ring has raised shoulders on a gold band enclosing a hard diamond like stone". 10. The Magistrate was impressed by Mr. Reys. She said "Mr. Reys presented as an educated articulate and ostensibly credible and reliable witness who under cross examination did not resile to any degree from his allegation and denied suggestions put to him by defence counsel that his version of events was fabricated". 11. She referred to Dr. Shimeld's evidence to the effect that there were no bruises or lacerations on Mr. Reys' face but that he had palpated on several occasions to establish consistency with the complaint of soreness in the right side muscle of the neck. 12. She referred to Mr. Goni's evidence and remarked on the inconsistencies between his evidence in chief and his conversation with Mr. Black. She said "Whilst in these circumstances one has to be extremely wary of Gonis' evidence and cannot place great reliance upon it, it does support that given by Mr. Reys". 13. The Magistrate spoke of the appellant as a witness. She said he "was clearly ill at ease in the witness box; and even while seated in the body of the Court during the hearing exhibited a degree of nervousness that did not seem warranted in all the circumstances". 14. She went on to add, and this is one of the matters complained of, in speaking of the appellant:
    "His uncompromising denial that anything at all took
    place between he and Reys, notwithstanding the agreed fact that
    shortly after the alleged assault Reys attended at the police
    station and made a statement to police, and that subsequently he
    attended at a medical practitioner's Clinic later in the day
    where he was examined and observations recorded. The defendant
    simply said nothing at all happened." 15. She remarked later:- "I was unimpressed by the defendant and the manner in which he gave his evidence." She accepted the evidence which led to a finding of guilt being proved beyond reasonable doubt. 16. The matter went on appeal to a single Judge of this Court. The grounds of appeal then were as follows:-
    "1 The Learned Special Magistrate erred in:-
    (a) finding that the evidence of the report by the alleged
    victim E. Reys, at the Adelaide Police Station of the 17th of
    January, 1991 and the subsequent attendance by Reys upon Dr.
    Shimeld complaining of injuries was corroborative of the
    evidence given by Reys;
    (b) failing to draw an inference adverse to the Prosecution
    case from the failure of Reys to provide investigating police
    officers with the names of any witnesses able to directly
    corroborate Reys' evidence when, upon the evidence of Reys,
    such witnesses were in existence;
    (c) placing excessive weight upon Dr. Shimeld's evidence that
    the complaints of Reys to him were consistent with an assault as
    described;
    (d) placing any weight upon the evidence of Joseph Goni;
    (e) failing to draw any inference from the Prosecution's
    failure to call Mr. Laurent to give evidence which evidence
    could reasonably have been expected to support the evidence of
    Reys if true;
    (f) erred in finding that the defendant bore on (sic) onus to
    explain the attendance of Reys at the Adelaide Police Station
    and at Dr. Shimeld's rooms on the 17th January, 1991;
    (g) erred in finding that there was insufficient evidence that
    Gonzales was wearing dress rings on his right hand at the time
    of the alleged assault;
    (h) erred in placing any, or in the alternative excessive,
    weight upon the demeanour of Gonzales in the witness box.
    (j) erred in placing any, or in the alternative excessive,
    weight upon the demeanour of Gonzales whilst in the body of the
    Court.
    2 That the conviction was against the weight of the evidence in
    all the circumstances.
    3 Any other grounds of Appeal that Gonzales may be advised to
rely on." 17. The learned Judge rightly found that Ground 3 was no ground at all. 18. Ground 1(a) was rather differently stated before this court thus:- "2. That the learned Appeal Judge erred in accepting the finding of the learned Trial Magistrate that the complaints by the alleged victim to the police and to his medical practitioner shortly after the alleged assault were admissible for use as evidence of conduct consistent with an assault having occurred." 19. His Honour dealt with this ground by referring to Cross on Evidence 4th (Loose leaf ed.) para.1728c page 17120 where the author states:- "There is no established rule that evidence of the fact that a complaint was made is admissible in all cases of personal violence and the authorities are in conflict." 20. The author diminishes the conflict by the citations in the text. He went on to point out that the fact of the complaints could only show consistent conduct and that, as when a jury is warned of the use which could be made of such complaints and the danger of them being self serving inventions, the magistrate could be assumed to be aware of this, she was entitled to have regard to them as being some evidence of consistent conduct. I agree. 21. The third ground of appeal before this Court was:- "3. That the learned Appeal Judge erred in finding that the learned Trial Magistrate had completely put aside the evidence of Mr. Goni. The appellant would contend that the learned Trial Magistrate did rely upon the said evidence and that the said evidence was so discredited that the learned Trial Magistrate should not have relied upon it." 22. The ground considered by the appeal Judge at the hearing of the first appeal was that the Magistrate erred in "placing any weight upon the evidence of Goni". 23. I have already set out the Magistrate's remarks in dealing with the evidence of Goni. His Honour said "I think she put it aside completely". I do not agree. I think she gave some credence to Goni and she was entitled to do so. She heard and saw him and although he admitted lying to Mr. Black and this change of face did as the Magistrate said detract greatly from his evidence she was still entitled to make the limited use she did of his evidence. 24. Ground 4 before this Court was:- "4. That the learned Appeal Judge erred in accepting that the learned Trial Magistrate should not have drawn an inference adverse to the Prosecution case from its failure to call the interpreter, Mr. Laurent Riera." 25. As the learned trial Judge pointed out the Magistrate did not mention the evidence of the threats at all. In any event as pointed out the interpreter was not a witness to whom the remarks in Whitehorn v. R (1983) 152 CLR 657 at 664 apply. 26. He was available to either party. The first ground of appeal reads:-
    "1. The learned Appeal Judge erred in failing to accept
    the appellant's argument that the Prosecution had failed to
    comply with the rule in BROWNE -v- DUNNE in so far as it related
    to the evidence of the appellant wearing a dress ring at the
    time of the alleged assault and further that the appellant had
    been prejudiced by the said failure as he was thus denied the
    opportunity to call evidence in corroboration." 27. This was a new ground which was not argued before the Magistrate nor before the first appeal Judge. The appellant in his outline of argument put the matter thus:-
    "Ground 1
    1. The appellant asserted that he was wearing a ring on his
    right hand at the time of the alleged assault (page 40 lines 9
    and 20).
    2. This fact was relevant as one might have expected an injury
    or mark on the alleged victim consistent with having been caused
    by the ring and there were none (page 7 line 33, page 8 Line 22,
    page 9 line 1 and line 30).
    3. The alleged victim was unable to recall whether or not the
    appellant was wearing a ring (page 17 line 30).
    4. It was never suggested to the appellant that he was not
    wearing a ring.
    5. Accordingly, counsel for the appellant would not have
    considered it necessary to call independent evidence that the
    appellant habitually wore a ring on his right hand nor that he
    was wearing it on the day in question and the appellant was
    therefore deprived of the opportunity to call such evidence." 28. With all respect I cannot see the force of this argument. It seems that the wearing of the ring and the fact that Reys had no lacerations loomed large in the appellant's defence at first instance. He could if he wished have called whatever evidence in support of his contention that he was wearing a ring or rings as he saw fit. It is not without significance that before the appellant had made his assertion that he was wearing a ring or rings, Mr. Goni had given evidence, whatever his credibility may have been, and he was asked no questions about a ring or rings. In the appellant's case he had accompanied the appellant to the hearing before the Tribunal and afterwards as had Mr. Canales. So far as Mr. Reys was concerned he merely said he did not notice whether the appellant was wearing rings or not. 29. If in those circumstances the appellant's then counsel did not consider it necessary to call independent evidence so be it. 30. At the core of the Magistrate's finding of guilt was her belief of Mr. Reys and her disbelief of the appellant. 31. I would dismiss the appeal.

JUDGE2 LEGOE J I agree.

JUDGE3 COX J I do not think it necessary, in order to dispose of this appeal, to decide the interesting question whether evidence of a fresh complaint by an alleged assault victim is admissible, to show consistency of conduct, only in sexual cases. The parties formally agreed to the fact that Reys had a conversation with a police officer at a particular time after the alleged assault, and evidence was given of the nature of that conversation, and of a subsequent complaint to Reys's doctor, without objection from defence counsel. It is by no means clear that it was put to the learned Magistrate that the defence accepted the relevance of the evidence for one limited purpose only. It was never of more than peripheral significance, and that is the way the Magistrate regarded it. Her decision turned in the main upon her impression of Reys and the appellant in the witness box. Subject to my reservation about the evidence point, I agree substantially with the reasons prepared by Justice Mohr. I would dismiss the appeal.