Lusted v Mokomoko
[2012] TASSC 72
•23 October 2012
[2012] TASSC 72
COURT: SUPREME COURT OF TASMANIA
CITATION: Lusted v Mokomoko [2012] TASSC 72
PARTIES: LUSTED, Sergeant Gary
v
MOKOMOKO, John Abraham
FILE NO/S: 687/2012
DELIVERED ON: 23 October 2012
DELIVERED AT: Hobart
HEARING DATE: 23 October 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Generally – Powers and duties – Reasons – Duty to state reasons – Dismissal of charges – Whether sufficient reasons for decision given.
Robinson v Chatters [2010] TASSC 66, applied.
Aust Dig Magistrates [1009]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: R Foon
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Douglas & Collins
Judgment Number: [2012] TASSC 72
Number of paragraphs: 19
Serial No 72/2012
File No 687/2012
SERGEANT GARY LUSTED v JOHN ABRAHAM MOKOMOKO
REASONS FOR JUDGMENT EVANS J
23 October 2012
The respondent was charged with common assault in that on 6 December 2011, at Legana in Tasmania he unlawfully assaulted Kylie Chivers by picking her up around the waist, shaking her and then throwing her to the ground. The charge was heard by Magistrate R Marron, who dismissed it.
The applicant has applied for a review of that dismissal on the ground that his Honour erred in law in failing to provide sufficient reasons for the dismissal.
Law
I adopt as the applicable law that which was said in Robinson v Chatters [2010] TASSC 66 by Wood J, at pars[74] – [81]. It is as follows:
"74 It is worthwhile considering the principles that apply in some detail. I set out now the principles governing this case and of general application regarding the extent and nature of the duty to provide reasons. The principle of over-arching importance is that in assessing whether reasons are sufficient, reference is to be had to the purpose of the obligation to give reasons. The scope of the reasons to be given is related 'to the function to be served by the giving of reasons': Soulemezis (supra), per Mahoney JA at 270. In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, Mahoney JA stated, at 386: 'reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.' Therefore, it is necessary that the reasons contain enough detail to enable an appeal court to effectively discharge its functions and for the parties to understand why they have won or lost (Mahoney JA in Soulemezis, at 270; Beale, at 442, per Meagher JA).
75 This consideration has been characterised as of primary importance in determining the content of the reasons: Beale (supra), at 444. It has been neatly described as "the touchstone of ability to understand why the decision was made" (Athens v Randwick City Council [2002] NSWCA 83. See too Pettit v Dunkley (supra), per Asprey JA, at 382: the reasons should state the findings and reasons for the decision adequately for the 'purpose of enabling a proper understanding of the basis upon which the verdict has been reached').
76 Other well settled statements of principle examining the nature and extent of the duty to provide adequate reasons are as follows:
·There is an obligation to reveal the reasoning for resolving points critical to the issues between the parties (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at par[58]). The reasons must do justice to the issues posed by the parties' cases: Pollard (supra), at par[59]. It is necessary to at least state the grounds which have led the judge or magistrate to the 'conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues': Kirby P in Soulemezis at 259. There is an emphasis in these observations that the reasons should address the 'issues between the parties'.
·The extent and content of reasons will also depend upon the way the trial was conducted and the arguments that were presented: R v Keyte (2000) 78 SASR 68, Beale (supra), at 442.
·In Beale, Meagher JA noted three fundamental elements useful to consider at 443 - 444, and I summarise:
1There should be reference to relevant evidence (evidence critical to an issue in a case must be dealt with in reasons: Mifsud v Campbell (1991) 21 NSWLR 725, at 728). Where conflicting evidence is given both sets should be referred to.
2The setting out of any material findings of fact and any conclusions or ultimate findings of fact reached. Where one set of evidence is accepted over a conflicting set of significant evidence, the findings as to how a magistrate or a judge came to accept the one over the other should be set out.
3Reasons should be provided for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.
·A tedious examination of detailed evidence or a minute explanation of every step in the reasoning process is not required: Kirby P in Soulemezis, at 259. The reasons need not be lengthy or elaborate. An elaborate argument may not require an elaborate answer (Mahoney JA in Tatmar (supra), at 386; see also Mahoney JA in Soulemezis, at 271).
·There is evident in the cases a legitimate anxiety about enlarging the scope of the duty beyond the essentials set out above. There are good reasons why the duty should not be unduly burdensome. This is particularly the case with busy trial courts and even more so with magistrates courts : Beale at 444, Kirby P in Soulemezis, at 259 – 260, Pollard at par[56], Nevermann v R (1989) 43 A Crim R 347, at 350, Porter J in Phillips at 71, Garrett v Nicholson [1999] WASCA 32, at 248.
77 The judicial duty of a magistrate to provide reasons was considered by Underwood J (as he then was) in Australian Securities Commission v Schreuder [1994] TASSC 127, at par[21]. A useful summary of some of the general principles was stated as follows:
'1Make findings with respect to the essential facts relied upon by the complainant and the defendant relevant to the elements of the charge.
2Where the evidence with respect to those facts was in dispute or unclear, state the basis for making such findings.
3Where appropriate, state what inferences he drew from the facts found and where necessary, the basis for drawing such inferences.
4To expose the reasoning process which resulted in the orders made to the scrutiny of the parties and any appellate court.'
78 In this case the credibility of witnesses was an important issue having a bearing on the findings and conclusions to be drawn. The nature and extent of the duty to provide reasons in relation to the credibility of witnesses has been considered in a number of cases. Recently in Phillips v Arnold (supra) the Full Court considered whether it was sufficient for a magistrate to state merely that the particular evidence accepted by the magistrate was "preferred". The Full Court was concerned with reasons given by a magistrate with respect to a charge contrary to the Road Safety (Alcohol and Drugs) Act 1970. It was concluded by the Full Court that a mere statement of a preference for one witness over another witness was not a sufficient expression of reasons for a finding that a charge has been proved beyond reasonable doubt (pars[67] and [75]). The analysis of Crawford CJ and Porter J and the cases cited reveal the rationale for requiring more than a mere statement of preference. It is only if some explanation is given can an appeal court come to terms with the issues and determine the appeal, and only if some explanation as to why a witness's evidence is preferred that a party will be able to understand why he or she has lost the case.
79 It was submitted for the defendant that the obligation to provide reasons was affected by the conclusion reached and whether it was a finding of guilty or not guilty. It was argued that a finding of guilt requires different kinds of reasons, as I understand the argument, less detailed and less extensive reasons, than a finding of not guilty. Of course, there is no argument that the obligation to consider carefully all the evidence is the same.
80 In order to provide the basis for a conclusion that the charge is not proved beyond reasonable doubt, it may not be necessary to traverse the evidence as extensively and in the same amount of detail as would be done if the conclusion was that the charge was proved. In order to expose the reasoning for a conclusion that a charge is not proved, the reasons may focus on the evidence and factual findings that bear on that conclusion. It is acknowledged that there are some differences regarding the content of the reasons that arise as a consequence of the standard of proof. However, the principles that I have referred to, set out above, regarding the nature and extent of the duty to provide adequate reasons apply with equal force to cases where the conclusion is to dismiss the charge.
81 The purpose of the reasons is the same regardless of the conclusion as to whether the charge is proved or not. The reasons must provide the parties and the appeal court with an understanding of why the magistrate or judge was left with a reasonable doubt. The prosecution is entitled to know why it has lost. Therefore, the findings of fact and reasoning that underpin the conclusion reached must be provided. The reasons ought to do justice to the issues posed by the parties' cases so that justice can be seen to be done. It can be seen from a consideration of the general principles that they nicely accommodate all cases regardless of the conclusions reached and the findings involved. The nature and extent of the duty to provide reasons expounded in these principles is not diminished or watered down because the finding is one of not guilty."
Background
Kylie Chivers and John Mokomoko were in a relationship for about 13 years. They had two young children. On 28 August 2011, they moved from the Gold Coast to Tasmania. His employment on the Gold Coast and in Tasmania was in the security business. On 24 October 2011, Ms Chivers told Mr Mokomoko she was going to leave him and return to the Gold Coast where her friends and family lived. At this time they were residing in a home at Legana and they continued to do so.
Julie Thomas is Ms Chivers' mother. Mrs Thomas travelled to Tasmania from the Gold Coast in order to be here on 4 December 2011, the birthday of one of Ms Chivers' children. Consequent upon Ms Chivers' decision to leave Mr Mokomoko, it was arranged that when Mrs Thomas returned to the Gold Coast following her visit, Ms Chivers and her two children would go with Mrs Thomas.
Mr Mokomoko was upset about Ms Chivers' intended departure. He was suspicious that she was seeing someone else. He was agitated by the extent to which she was using her mobile phone, and suspicious because she seemed to be ensuring that he did not get access to it. He felt that she had not given him a genuine reason for leaving him.
Ms Chivers, the children and Mrs Thomas were booked on a flight to leave Tasmania at 6am on 7 December 2011. On the evening of 6 December 2011, Mr Mokomoko returned home with wine and chocolates in a last ditch effort to "sort things out" with Ms Chivers. He did not succeed. At about 9pm that night, Ms Chivers, the children, her mother and Mr Mokomoko were all at the home.
Evidence
Ms Chivers said that immediately prior to the incident in issue she walked out of the house in order to take some items to a car. Having done so she turned around to find Mr Mokomoko behind her. He accused her of seeing someone else. She said that was ridiculous, and mentioned his use of the online dating service "RSVP", and him telling women via that service that she and their children had already gone to the Gold Coast. As she moved to go into the house he grabbed at her mobile phone. The phone was in her hand as, when outside, she had received a call from her brother. As Mr Mokomoko held her phone and left hand, he put his right arm around her waist and lifted her to his hip. She was yelling at him to let her go, yelling for help and trying to grab her phone with her right hand. She said he "pushed me off like threw me kind of onto the ground", and at the same time gained control of her phone. She fell onto her bottom and hands in a seated position. He threw her phone at the house. It smashed. As she got up, her mother handed Ms Chivers her mother's mobile phone and told her to phone the police, which she did. When the police arrived she was still crying and very shocked.
When cross-examined she explained that Mr Mokomoko was behind her when he lifted her onto his hip and dropped her. He had grabbed her around the waist as he lunged for her phone. She denied pushing her phone in his face and did not agree that he had not thrown her phone, or that, as he wrenched it from her hand, it broke, or that the phone's rubber cover had remained in her hand. She said that when the phone was thrown, the sim card flew out, the cover came off and its front was smashed.
Julie Thomas said that at about nine to quarter-past nine that night she was sitting at the doorway from the home to the yard. Her daughter walked past to go outside and Mr Mokomoko followed her. She immediately got to her feet and "charged after" them because she was concerned. By the time she got to them, Mr Mokomoko had Ms Chivers up in the air on his hip or side. He was holding her around the waist with his right arm. They both had their left arms up in the air and one of them had Ms Chivers' phone in their hand. Mr Mokomoko sort of flung Ms Chivers and she ended up on the ground. Ms Chivers was yelling, "Mum" and, "Stop". When on the ground Ms Chivers screamed hysterically. Mrs Thomas handed her own mobile phone to Ms Chivers and told her to call the police. As Ms Chivers went around the corner of the home to phone the police, Mrs Thomas asked Mr Mokomoko, "Why did you do that?". One thing that she could recall him saying in response was, "At least I got that fucking phone". He asked who Ms Chivers was calling and when told that it was the police he said, "I could lose my licence".
When cross-examined, Mrs Thomas said that the whole time she had been at the Legana home she had been uncomfortable and had a horrible feeling. She was upset for Mr Mokomoko as well as her daughter and grandchildren. She tried not to leave Ms Chivers and Mr Mokomoko alone together. She stayed with Ms Chivers the whole time she was there. As to Mr Mokomoko flinging Ms Chivers, she said he had been holding her in the air from behind and just plonked her down on the concrete in front of him. He had then thrown Ms Chivers' phone on the concrete. She was questioned about inconsistencies between what she had said to the police on the night in question and in her evidence. When re-examined, she agreed that she had told the police, "I then saw John holding Kylie up in the air, shaking her around trying to grab her mobile phone".
Police Officers Sally Swifte and Daniel Knights were called to the Legana home at about 9.25pm that night. Officer Swifte said Ms Chivers was "really visibly upset … shaking, crying, stammering …". Officer Swifte took a statement from Ms Chivers who said Mr Mokomoko had picked her up and thrown her on the ground, and described how her phone had been broken. Officer Swifte was shown, an Apple iPhone with a cracked screen.
Officer Knights said that when he arrived at the home Mr Mokomoko was in the front yard and he stayed with him while Officer Swifte spoke to Ms Chivers inside. Officer Knights said that Mr Mokomoko was "fairly quietly spoken … fairly reserved" and at no point did he say that he had been assaulted by Ms Chivers. When Officer Knights was cross-examined, it was put to him that Mr Mokomoko had said that he had been struck by Ms Chivers, that Officer Knights replied, saying that Mr Mokomoko could have her charged and Mr Mokomoko responded, "What's the point?" Officer Knights said he did not believe that that was correct, he did not think that conversation had taken place, and he did not remember Mr Mokomoko raising any allegations against Ms Chivers.
Later that night Officers Swifte and Knights took Mr Mokomoko to the Launceston Police Station where they conducted a recorded interview with him in which he made no comment.
Mr Mokomoko denied assaulting Ms Chivers. He said that prior to the night in question he had been using a dating site, RSVP, in an endeavour to provoke a reaction from Ms Chivers. When Ms Chivers walked out of the house that night he followed her. They spoke mainly about the dating site RSVP. Ms Chivers' phone rang and she made a comment that he was not the only person that was seeing someone else and pushed her phone into his face. He grabbed her phone with his right hand. She pulled backwards and he went with her for four or five yards. The entire time they both had hold of the phone "it was sort of like a tug of war". She struck him about four times to the side of the head with her right hand. He turned his face away so that she was only hitting him on the side of the head. He was still holding on to the phone and gave it a big pull and it went flying in the opposite direction. The phone came out of its case and Ms Chivers ended up holding the case. He said:
"When I turned to see where it went I actually didn't observe if Kylie went backwards or not because I was more concerned to see if I could retrieve the phone. It may have happened that as she was pulling in her direction she may have lost her balance, but I did not see her fall, and I did not see her get up. But it is possible."
Ms Chivers called to her mother to phone her brother. It was a waste of time trying to find Ms Chivers' phone because it was pitch black, so he walked inside. As he walked in he passed Mrs Thomas coming out. She mentioned something but he just continued inside, as by then there was no point in discussing anything. He stayed inside until the police arrived and then went out to meet them.
When Mr Mokomoko was cross-examined, he denied that his conversation with Ms Chivers had been fairly heated, and when asked what the issue was, he said:
"The issue was more the phone. I mean the phone had been the property of my company …"
He said he had grabbed the phone rather than walking away from Ms Chivers because the phone was the property of his company. He denied losing his temper and said he had never lost his temper. He denied concocting his evidence that Ms Chivers had assaulted him, and said he had told Officer Knights that Ms Chivers had struck him and that the officer said, "Well you can always lay a complaint", and he had responded, "What's the point". It was put to him that he had never previously asserted that Ms Chivers had assaulted him, and he said that he had discussed it with his lawyer on the first day they met. As to why he had not mentioned any of this when interviewed by police, he said that having been a security guard for over 32 years, he knew from past experience not to make any comments to police before speaking to a lawyer. It was put to him that he could not have it both ways, he could not be someone who knew not to make a comment to police, and also someone who told Officer Knights that he had been assaulted. He was asked, "Which one is it?", and in effect replied that it was both.
Decision
In the course of explaining his decision to dismiss the charge, the learned magistrate said:
"… the 16th of December was no ordinary day in the lives of Miss Chivers and Mr Mokomoko, the children, and their grandmother, Julie Thomas. Not just because of the alleged assault but because it was the last night that the family would be together as Miss Chivers and her mother and the two children were to leave Tasmania at 6am the following day, [and] thus bringing to the end the 13 year relationship. It would be inconceivable that this would not be seen as a very emotional time.
On the day in question Miss Chivers was packing with the help of her mother. Mr Mokomoko arrived home while this continued. At some point Miss Chivers went outside to take a call or to read or relay a text message. Mr Mokomoko followed her outside he said to talk to her. He was clearly not happy with the level of phone traffic, text and calls, on the phone on that day and on previous days. Mr Mokomoko says that the phone was thrust at him by Miss Chivers and he grabbed it. Miss Chivers says that Mr Mokomoko lunged at her and grabbed the phone. Whatever happened Mr Mokomoko initiated the action in physically grabbing the phone.
Given what I have heard in evidence the phone had clearly been in constant use by Miss Chivers, who according to Mr Mokomoko, took it to bed with her. I have no doubt that any attempt to separate Miss Chivers from the phone would have brought an immediate reaction from her. What happened next is the subject of disputed evidence. Essentially on one hand Miss Chivers says that Mr Mokomoko picked her up around the waist, had shaken and thrown her to the ground. And on the other Mr Mokomoko says that he and Miss Chivers were struggling for possession of the phone and that she fell as a result.
Whatever happened, it happened very quickly, in seconds according to [Mrs Thomas] in circumstances where it was very dark.
Const Swifte who attended gave evidence of the demeanour of the complainant as shaking and crying and Miss Chivers says that it was in these circumstances when her statement was taken that explains any difference between the evidence that she gave and the contents of her statutory declaration.
Const Knights, who also attended, gave evidence that Mr Mokomoko's demeanour as quietly spoken, reserved and confident.
All the civilian witnesses gave reasonably confident evidence and direct answers in cross-examination. There was no evidence of the alleged injuries. I accept that the bruises would have been less likely to have been observed on the night, but may have come up later. There was no follow up undertaken or photos taken. In any event it is not evidence that would have reasonably supported the prosecution case in establishing that Mr Mokomoko had thrown Miss Chivers to the ground as on Mr Mokomoko's evidence she did indeed fall to the ground but as a result of trying to get the phone and in the struggle. That she ended up, therefore, on the ground is not an issue, how she got there is.
In considering what occurred I take into account the following. There had never been a previous incident in the 13 years of relationship, a point conceded by Miss Chivers. It is of some significance that in the weeks prior to the alleged incident, after having been advised by Miss Chivers of her intentions, that there was no suggestion of any other incident that had occurred in that period. That Mr Mokomoko's demeanour according to Const Knights was, as I've said, quietly spoken, reserved and confident. There is no evidence of any shouting or behaving preceding the alleged incident that may have given some warning or insight of something that was about to occur. There was no evidence that Mr Mokomoko was affected by alcohol or any other substance.
Miss Chivers' evidence was that he had arrived home on that final evening with champagne and chocolates knowing that in the circumstances as Mr Mokomoko said that the family were leaving, his family were leaving the next day. If it had slipped his mind that this was going to occur it was brought home very quickly when he observed the packing that was going on continuously.
Mr Mokomoko said that he had worked in the security industry for a very long, a number of years, he did not have a temper, he did not get angry and he remained calm. It could be said, however, that every person has their limit and given that this was all happening on the last night this may well have been such a moment.
Mr Mokomoko says that he wanted an explanation as to why Miss Chivers was leaving and he hadn't got one. His venture onto a dating agency website was said by him to have been undertaken to provoke a reaction. It may well have been that in grabbing the phone this was also designed to provoke a reaction.
I cannot rule out as a reasonable possibility the evidence that suggests that what happened was the way in which Mr Mokomoko described and that is that Miss Chivers falling while struggling for the phone. Miss Chivers described and gave a physical demonstration of how at one stage both she and Mr Mokomoko had an arm extended and in their – together in their efforts to obtain the phone the awkwardness of this position may well have left open this possibility. As to exactly what Ms Thomas saw I would say this that her own caveat on her evidence that it happened in seconds and that it was very dark also leaves me in some doubt.
Taking all this into account I am not satisfied beyond a reasonable doubt that the charge is made out. The charge is dismissed. Thank you."
I am persuaded that his Honour failed to provide adequate reasons for dismissing the charge. My reasons for so concluding stem largely from his Honour's erroneous perception that Mr Mokomoko said that Ms Chivers had fallen as a result of struggling for possession of her phone. He did not. What Mr Mokomoko said is quoted in par[15]. He did not see Ms Chivers fall, and he did not see her get up. He said it was possible that she may have lost her balance and gone backwards when pulling on her phone. In his reasons, his Honour elevated Mr Mokomoko's postulation of this possibility to a statement by Mr Mokomoko that Ms Chivers did indeed fall to the ground as a result of struggling for her phone. I have italicised the three parts of his Honour's reasons that evidence this error. His Honour compounded this error by, in substance, focussing on the possibility so raised to the exclusion of the allegation in issue, that is, that Mr Mokomoko had lifted and dropped Ms Chivers. The evidence of Ms Chivers and her mother was of an incident quite different to the tug of war over a phone described by Mr Mokomoko. Their evidence was that Mr Mokomoko had lifted Ms Chivers from behind to his hip and dropped her to the ground. Without any further elucidation, the possibility that Ms Chivers may have fallen as suggested by Mr Mokomoko does not explain why his Honour was not satisfied beyond reasonable doubt by the evidence of Ms Chivers and her mother that Ms Chivers was lifted and dropped. In the absence of any explanation for not accepting their evidence, I conclude that his Honour failed to give adequate reasons for his decision.
The respondent's acquittal is quashed. It is ordered that the complaint be remitted for rehearing by another magistrate.
3