Mahoney v Smith

[1992] QCA 195

[1992] QCA 195

COURT OF APPEAL

PINCUS JA DAVIES JA DEMACK J

CA NO 63 OF 1992

DESMOND PATRICK MAHONEY

v.

BRUCE ANTHONY SMITH	Appellant
BRISBANE
... DATE 4/6/92

JUDGMENT
PINCUS JA: This is an appeal by Mr Bruce Anthony Smith who was
charged before a Stipendiary Magistrate in respect of two
matters. He was charged that on 31 October 1991 he unlawfully
assaulted his wife and thereby did her bodily harm; that is the
offence defined by s 339. He was also charged with using
insulting words to a police officer. After hearing the evidence
and submissions the Magistrate came to the conclusion that the
appellant, Mr Smith, was guilty on the first charge but not
guilty on the second.

Mr Smith has appeared for himself today to argue that the Magistrate was wrong in convicting him in respect of the first charge, that is the s 339 charge. The matter arises out of a domestic dispute and it appears from what Mr Smith has told us, during the course of argument today, that there is a long history of unhappiness between himself and his wife which he associates with what he says to be his wife's tendency to alcoholism.

It appears to me however that the issue which was before the Magistrate was not a resolution of the domestic difficulties to which Mr Smith referred, but a fairly simply question and that is: was it correct, as the complainant said, that she was pushed down some stairs?

Mr Smith has referred to the fact that the Magistrate had some difficulty with the complainant's evidence and in fairness to him perhaps the passage should be read. It is as follows - this is in the Magistrate's reasons: "However, whatever the extent of the problem may be, there is one [that is, a drinking problem] and there is a problem which is worse than Mrs Smith herself admits to, at least that much is clear. That then is perhaps the explanation for the inconsistencies in her evidence. Mrs Smith was quite emotional and confused in many matters when giving evidence. Yet she was emphatic and adamant when it was suggested to her that she grabbed the suitcase and fell down the stairs while holding onto it. She answered 'No, no, no.'". The Magistrate then went on to discuss the complainant's evidence further.

The conclusion which he ultimately came to is worth reading in some detail. The Magistrate said at p 120 of the record: "However, it is important in this case that her evidence [that is the complainant's evidence] is substantially corroborated by fairly independent evidence. Mr Smith was in the habit of discussing his problems with the Dicksons. The Dicksons were friends of his and it would seem that Mr Dickson even only yesterday and the day before was carrying on friendly conversations with Mr Smith. They were still acting in a friendly manner towards each other." And then there is a passage I will not read and the Magistrate went on: "I accept beyond reasonable doubt the evidence of both Mr and Mrs Dickson that Mr Smith admitted to them that he had pushed Mrs Smith down the stairs. That admission is substantial and sufficient corroboration for me then to accept at least that part of Mrs Smith's evidence that Mr Smith pushed her down the steps on the first occasion. I accept Mrs Smith's evidence that she was injured ...", and so forth.

The Magistrate made it clear that had the evidence of Mrs Smith stood alone, he could not have been satisfied beyond reasonable doubt. He decided that the balance was turned in favour of the prosecution by the evidence of the Dicksons which has been referred to in the course of the argument. Their evidence was really, as it seems to me, fairly clear that admissions were made which were of an incriminating kind by the appellant, Mr Smith, in a discussion with Mr Colin Dickson and his wife.

It should be added that the appellant, Mr Smith, appears to have come here under some misapprehension as to the function of an appellate court. He has taken the view that we have the task of examining the circumstances which occurred some years before this incident, those which have occurred since and, in general, reviewing the whole matrimonial history with a view to determining whether or not these people - that is, Mrs Smith and the two Dicksons - were telling the truth.

The fact is that we do not have that function. Our task is to determine whether, on the evidence which we find in the record, the Magistrate appears to have made an error or appears to have come to a conclusion which was reasonably open to him on the evidence. It is not our task to determine what we would have done had the case been before us. That would be a difficult matter for us to undertake, because we have not seen these witnesses.

What we have to do is determine whether it is shown that the Magistrate was in error. It seems to be clear that that has not been shown and I, for myself, would dismiss the appeal.

DAVIES JA: I agree.

DEMACK J: I agree.

PINCUS JA: The order of the Court is the appeal against conviction is dismissed.

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