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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 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
Case: [1992] SASC 3587
Decision Date: 27 August 1992

CaseChat Overview and Summary

The appeal in the case of Luis Alberto Gonzales v John Kenneth Daire was heard by the Full Court of the Supreme Court of South Australia. Gonzales, the appellant, was convicted of the offence of common assault against Edward Reys. The appeal contested the conviction on multiple grounds, including the admissibility of evidence, the weight given to certain testimonies, and the relevance of the appellant's attire during the incident. The legal issues centred on whether the Magistrate erred in considering specific pieces of evidence and whether the conviction was against the weight of the evidence. The court examined the credibility of the testimonies provided by Reys, Goni, and the appellant, along with the relevance of the appellant's rings and the lack of testimony from the interpreter, Mr. Laurent.

The Full Court found that the Magistrate was justified in considering the complaints made by Reys to the police and a medical practitioner as evidence of consistent conduct, which is permissible when a jury or magistrate is warned of its potential dangers. The court also found that the Magistrate did not completely disregard the evidence of Goni but instead gave it limited credence, which was permissible given Goni's credibility issues. Additionally, the court ruled that the failure to call Mr. Laurent did not prejudice the appellant's case as his testimony was not essential to the prosecution's case. The court further held that the appellant's argument concerning the relevance of his rings was unconvincing, as he had the opportunity to present corroborative evidence if he wished. Ultimately, the core of the Magistrate's decision was her belief in Reys' testimony over the appellant's.

Given these findings, the Full Court dismissed the appeal, affirming Gonzales' conviction of common assault. The court's decision underscored the importance of the credibility assessments made by the Magistrate, which were pivotal in reaching the conviction.

Orders