Malone v Tighe
[2007] WASC 20
•17 JANUARY 2007
MALONE -v- TIGHE [2007] WASC 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 20 | |
| Case No: | SJA:1099/2006 | 17 JANUARY 2007 | |
| Coram: | HASLUCK J | 16/01/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL JOSEPH MALONE EDWARD JAMES TIGHE |
Catchwords: | Criminal law Appeal Magistrates' Court Assault Evidence and matters relating to proof Whether assault unlawful Whether assault had as its purpose the prevention of the repetition of an act complained of Whether adequate reasons for judgment provided Magistrate addressed each element of offences Reasons for decision held to be sufficient Leave to appeal refused Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 9 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Harling v Hall (1997) 94 A Crim R 437 Liberato v The Queen (1985) 159 CLR 507 Nevermann (1989) 43 A Crim R 347 Pettitt v Dunkley [1971] 1 NSWLR 376 Pickett v State of Western Australia [2004] WASCA 291 Samuels v State of Western Australia [2005] WASCA 193 Skerritt v O'Keefe [1999] WASCA 183 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
EDWARD JAMES TIGHE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S P SHARRATT
File No : GN 3656 of 2004, GN 3657 of 2004
(Page 2)
Catchwords:
Criminal law - Appeal - Magistrates' Court - Assault - Evidence and matters relating to proof - Whether assault unlawful - Whether assault had as its purpose the prevention of the repetition of an act complained of - Whether adequate reasons for judgment provided - Magistrate addressed each element of offences - Reasons for decision held to be sufficient - Leave to appeal refused - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr D L Armstrong
Respondent : Mr S M Nunn
Solicitors:
Applicant : Altorfer & Stow
Respondent : State Solicitor
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Harling v Hall (1997) 94 A Crim R 437
(Page 3)
Liberato v The Queen (1985) 159 CLR 507
Nevermann (1989) 43 A Crim R 347
Pettitt v Dunkley [1971] 1 NSWLR 376
Pickett v State of Western Australia [2004] WASCA 291
Samuels v State of Western Australia [2005] WASCA 193
Skerritt v O'Keefe [1999] WASCA 183
(Page 4)
- HASLUCK J:
Introduction
1 The applicant, Michael Joseph Malone, seeks leave to appeal after being convicted of certain offences. The application raises issues as to whether the learned Magistrate applied the rules concerning burden of proof correctly, whether he gave sufficient weight to the evidence of the defence witnesses, whether he properly assessed the evidence of two police officers called by the prosecution as to the outcome of inquiries made by them at the scene soon after the incident in question. Issues are raised also as to the adequacy of the learned Magistrate's reasons for decision.
2 The application for leave to appeal was opposed by the respondent who was represented by counsel instructed on behalf of the State of Western Australia.
The charges
3 The applicant was charged that on 17 October 2003 at West End he unlawfully assaulted one John Montagu contrary to s 313(1)(b) of the Criminal Code; further, that he damaged a backhoe to the value of $3116.87 being the property of Geraldton Backhoe Hire Trading trading as Geraldton Backhoe contrary to s 80(1) of the Police Act 1892 (WA).
4 Section 313 of the Criminal Code as it stood at the time of the events underlying the charge arose deals with common assaults. The effect of the provision is that any person who unlawfully assaults another is guilty of a simple offence and is liable for the penalties stipulated.
5 Section 80(1) of the Police Act deals with wilful damage to property and provides that every person who destroys or damages any real or personal property of any kind whether owned by the Crown or any public authority or local government or by any other person is guilty of an offence.
6 I note in passing that by s 222 of the Criminal Code, a person who strikes, touches or moves or otherwise applies force of any kind to the person of another without his consent is said to assault that person and the act is called an assault.
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The hearing
7 The applicant entered pleas of not guilty to the two charges mentioned earlier. The charges were heard in the Magistrate's Court at Geraldton on 29 May 2006 before his Honour Magistrate Sharratt.
8 It was the prosecution case that on the morning of 17 October 2003 the complainant, John Montagu, was working at Fisherman's Wharf, Geraldton, doing work for the Port Authority. On the prosecution case, while talking to Wayne Dagnall and one of his workers, the complainant was hit from behind by the applicant with enough force to disorientate him.
9 It was alleged that the applicant was shouting and trying to grab hold of the complainant. The latter gave evidence to that effect, and said further that he kept backing away from the applicant. He eventually scrambled into the cabin of his backhoe, as a way of escape from the applicant.
10 On the prosecution case, as underpinned by the evidence of the complainant, the applicant then grabbed the cabin door of the backhoe with both hands and slammed the door shut with all his weight. As a consequence the door exploded and the complainant was covered in glass which cut his arms and legs.
The witness
11 The prosecution supported its case by calling the complainant, Mr Montagu, and other witnesses. The complainant said that he did not see the applicant approach him from behind and did not hear him call out. The complainant said in evidence that he was hit with sufficient force to propel him forward. He said further that the action of the applicant in slamming the door broke the window.
12 Mr Dagnall said in evidence that he went to the Geraldton Wharf to speak with the complainant on the morning in question. They talked and at that stage the applicant walked up to the complainant and hit the complainant in the back of the neck. The complainant stumbled and lost his footing. According to Mr Dagnall, the applicant then pushed the complainant in the chest with both hands. The complainant said, "What's wrong? What have I done?" The applicant said, "You know what you've done."
13 According to Mr Dagnall, the complainant climbed onto the backhoe, hopped into the cab and shut the door. The applicant then
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- opened the door and slammed the door and the glass blew out, whereupon the applicant walked off.
14 The prosecution called also Detective Tighe and Police Officers Payne and Burns. The two latter witnesses spoke of attending the scene referred to and the inquiries they made of the participants as to what had happened.
15 The applicant gave evidence at the hearing. He said that he was a self employed plumber and had a contract with the Geraldton Port Authority to lay three kilometres of underground vacuum sewerage at the Geraldton Fisherman's Wharf. He had two employees working on the contract, namely Lindsay Camp and Mr Ackley. He hired Dave Bell to dig the trench in which to lay the sewerage piping. The contract was supervised by Mr Silvio.
16 The applicant said that on 17 October 2003 he received a phone call from his supervisor Mr Silvio. He was told that a person had driven a backhoe onto the applicant's worksite at speed and in a dangerous manner and dumped some soil in the applicant's work area. The applicant promptly drove to the wharf and spoke to his workmen, who verified what Mr Silvio had said. On the applicant's account he then approached the complainant to warn him to stay away from his workers.
17 The applicant said that he saw the complainant talking to Mr Dagnall and another person. He yelled out to the complainant, probably twice, calling his name, and approached him. On the applicant's evidence, the complainant was half facing the applicant and turned away, ignoring the applicant. The applicant reached out with his right arm and grabbed the complainant by his left shoulder, pushed him forward and pulled him back and half turned him around to face him. The applicant told the complainant to stay away from the applicant's workers.
18 On the applicant's account of what happened, his intention was to warn the complainant about his behaviour, in that he, the complainant, had driven dangerously with a possibility of endangering lives. The applicant said that he did not assault the complainant; his purpose was to attract his attention. Apart from taking his shoulder, the applicant did not touch the complainant.
19 The applicant said that when the complainant got into the cabin of the backhoe, the applicant reached up, grabbed the door and closed it. On his account the door just shattered. The applicant was surprised because he did not expect it to shatter, so he walked away. The applicant agreed
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- that he was later spoken to by Police Officers Payne and Burns. The applicant was prepared to pay for the damage to the window but not to apologise as, according to him, he had done nothing wrong.
20 At the hearing the applicant also called Benjamin Morris Ackley and Lawrence Joseph Silvio. These witnesses spoke of the manner in which the complainant used his backhoe in driving the same on the site, but it was acknowledged by counsel before me at the application for leave to appeal that these two witnesses did not witness the altercation.
21 It emerges, then, that the principal witnesses with direct evidence to give as to what occurred at the time of the altercation were the complainant and Mr Dagnall, as witnesses called by the prosecution, and the applicant himself, as a witness presented by the defence.
Reasons for decision
22 Having reserved his decision, the learned Magistrate handed down his reasons for decision on 22 June 2006. In those reasons he began by noting that the prosecution had the burden of proving its case beyond reasonable doubt and of negativing any defences fairly raised to the same standard.
23 In essence the learned Magistrate found that the complainant and Mr Dagnall should be regarded as truthful witnesses. He spoke of them both standing firm under lengthy cross-examination. He considered that their evidence coincided and indeed he described their accounts as "dovetailing".
24 Having noted that the applicant's version conflicted with the evidence of the complainant and Mr Dagnall, the learned Magistrate made certain observations which by implication showed that he disbelieved the applicant's account of what happened.
25 The learned Magistrate said at page 3 of the transcript containing his reasons that the evidence of the applicant directly conflicted with that of the complainant and Dagnall. He said that Dagnall was an independent witness who had given his evidence, neatly dovetailing that of the complainant's evidence, notwithstanding that he had not seen the complainant for 12 months prior to the hearing.
26 The learned Magistrate said that he was convinced that Dagnall gave an accurate account of what occurred. He said further that in his view the complainant was to be regarded as a truthful witness. Thus, his Honour
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- made a finding that the complainant was truthful in his account of what occurred. In making that finding, the learned Magistrate referred to the fact that initially the complainant did not wish to press charges.
27 The learned Magistrate observed that these two prosecution witnesses stood firm under searching cross-examination. His Honour said that he was left in no doubt as to the veracity of their truth telling, and he found as a fact that the accused pushed Mr Montagu, without warning, hard in the back causing him to stagger forward.
28 His Honour went on to find that the applicant continued to push and grapple with the complainant, Montagu, as the latter backed away in an arc in an attempt to escape.
29 The learned Magistrate then proceeded to deal with a defence plea that the assault was justified by law in that the applicant used force that was necessary to prevent the repetition of an act or insult of such a nature as to be a provocation to him for an assault. His Honour disposed of this plea by holding that a reported act of negligent driving would not deprive an ordinary person of self-control.
30 Further, his Honour said that "he was not persuaded" that the assault had as its purpose the prevention of the repetition of the act complained of. This was evidenced by the fact that on his Honour's finding no warning was given. Moreover, the series of assaults were excessive. His Honour then said, at page 5 of the transcript of his reasons for decision that, "For these reasons I find the prosecution has negatived the defence beyond a reasonable doubt."
31 I pause here to note in passing that in the transcript the word "offence" rather than "defence" was used. But it is clear to me from the context that this is an incorrect transcription. The learned Magistrate is clearly referring to a defence being negatived and, thus, I believe that what he said as I have indicated, were words to this effect: "For these reasons I find the prosecution has negatived the defence beyond a reasonable doubt". I will proceed accordingly.
32 The learned Magistrate found the charge of assault proven, and went on to find the second charge of damaging property proven also. His Honour did not accept that the damage was due to an accident. He held that it was foreseeable that if one slammed the structure in question hard (that is, the cabin door the subject of the evidence at the hearing) it would break. These observations concerning foreseeability clearly
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- demonstrate that his Honour addressed the legal concepts bearing upon the question of whether an accident had occurred.
33 It was against the background of these findings, as set out in the Magistrate's reasons for decision, that on 22 June 2006 the applicant was convicted of the two charges before the Court. Having convicted the applicant of both charges on that date, some weeks later, on 31 August 2006, the Magistrate imposed sentences of a fine of $250 for the charge of assault and a fine of $200 for the charge of damaging property.
The appeal documents
34 The applicant now seeks to appeal from the convictions imposed by the Magistrate on 22 June 2006 on the grounds set out in the appeal notice filed by or on behalf of the applicant on 26 September 2006. The applicant sets out eight substantive grounds of appeal. In essence, it is said that the learned Magistrate erred in both fact and law in preferring the prosecution's evidence, and on the basis of this evidence convicting the applicant on both charges.
35 It is said that his Honour failed to give adequate reasons for his findings. It is said further that his Honour erred in law in failing to address every specific element of the subject charges and in failing to make findings in favour of the applicant in regard to the defences of provocation, prevention of repetition of insult and accident. It is said also that as to the plea of justification his Honour reversed the onus of proof.
Legal principles
36 I will turn to the grounds of appeal in more detail later. In the meantime, I feel obliged to note that appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA), but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA).
37 The present application was brought under s 9 of the Criminal Appeals Act, which provides that leave of the Supreme Court is required for each ground of an appeal. After an appeal is commenced the Supreme Court must not give leave to appeal on the ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
38 The approach to be applied to such applications was described in Samuels v State of Western Australia [2005] WASCA 193 at 55 to 61. In that case it was said that leave to appeal must not be granted unless the Court is satisfied that there is a reasonable prospect of the appeal
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- succeeding, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals.
39 However, at the same time, the fundamental principle must be recognised that criminal applicants ought not to be shut out from challenging judicial decisions bearing upon their rights or affecting their liberty except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
40 The ordinary meaning of the words taken in their context, which includes the legislative purpose, must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that form; in effect, that it has a real prospect of success.
41 However, it is important to bear in mind that because the test is directed to each ground, the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is there for determination on the appeal proper.
42 The question of whether each ground has a real prospect of success obviously requires that some consideration be given to additional provisions and principles.
43 By s 14 of the Criminal Appeals Act, the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing.
44 It is apparent from s 39 of the Act that an Appeal Court must decide the appeal on the evidence and material that were before the lower Court, but this does not prevent consideration of any evidence that the lower Court refused to admit.
45 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
46 However, in the case of a busy court, such as a Court of Petty Sessions, it is not always practicable or necessary for a full or detailed statement of reasons to be given in every case: Nevermann (1989) 43
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- A Crim R 347 at 350. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion. The sufficiency of fact finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183 at [146] to [147].
47 A failure by a decision maker to mention a matter expressly in his or her reasons does not reasonably give rise to an inference that it was not considered. In the absence of any credible evidence to the contrary, it is to be assumed that the decision maker has complied with all relevant duties and taken all matters into account: Pickett v State of Western Australia [2004] WASCA 291 per McClure J at [10].
48 Where there is a conflict in the evidence or the tribunal of fact prefers the evidence for the prosecution it must not convict an accused unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507.
49 A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
50 Where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use or has palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
51 Where a finding of fact is inconsistent with the evidence of a witness the judicial officer at first instance must be taken to have rejected the evidence of the witness: Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 62 ALR 53 at 56; see also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.
52 The question on appeal will often be not whether the Court would have formed a different view but whether the Magistrate's approach and view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
(Page 12)
General observations
53 Against this background, let me now make some general observations about the present case that will be of use in determining whether leave to appeal should be granted in respect of each or any of the grounds of appeal before me, on the basis that the ground in question has a real prospect of success.
54 First, the present case was a case in which the learned Magistrate was clearly conscious of the burden upon the prosecution to prove its case and to negate or negative any defence relied on beyond reasonable doubt. He enunciated that rule at the outset and purported to apply it.
55 To my mind, a reference by the Magistrate to not being persuaded by a plea or line of defence put up by the accused, albeit not well-chosen language, is, when seen in its context in this case, simply another way of saying that the defence plea in issue and the related evidence had not been sufficient to raise a reasonable doubt in the mind of the Magistrate.
56 In the face of a clear enunciation of the basic rule as to burden of proof, to my mind such a passing reference to not being persuaded cannot reasonably be construed as marking a reversal of the burden of proof.
57 Second, it is clear that the learned Magistrate preferred the credibility and thus the evidence of the two principal prosecution witnesses, Montagu and Dagnall and gave compelling reasons for doing so; namely, their evidence was mutually consistent and each had stood up to a lengthy cross-examination.
58 Moreover, Dagnall was an independent witness in that he did not have a direct interest in the outcome. Dagnall's evidence could therefore be regarded as evidence not only corroborating the account given by the complainant but was evidence also weighing against and rebutting the evidence given by the applicant. To my mind there are no indications that the learned Magistrate misused his advantage of seeing the witnesses.
59 All the indications are, when his Honour's reasoning as a whole is examined, that the learned Magistrate did eventually come positively to a belief beyond reasonable doubt that the evidence presented by the two principal prosecution witnesses should be accepted. It follows from the case law that in these circumstances an Appeal Court will be slow to interfere with the Magistrate's findings of fact because the Magistrate has had the advantage of seeing the witnesses.
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60 Third, I consider, speaking generally, that the reasons for decision provided by the learned Magistrate were sufficient. The decided cases, including cases such as Pettitt v Dunkley [1971] 1 NSWLR 376 at 381, being the case relied upon particularly by counsel for the applicant, establish that reasons must be provided in a manner that covers the central issues and permits the unsuccessful party to understand how the conclusions were arrived at.
61 However, Pickett (supra) and other cases show also that this precept must be seen in proportion, and will depend upon the circumstances of the case and the nature of the jurisdiction being exercised. Moreover, it is not necessary to make a full assessment of every witness, especially as to witnesses such as the police officers in the present case who were not present at the scene.
62 As I indicated in earlier discussion, it was said in Pickett's case that a failure by a decision maker to mention a matter expressly in his or her reasons does not reasonably give rise to an inference that the matter was not considered.
63 In this case, the learned Magistrate addressed the central issue as to whether the prosecution witnesses were credible and should be believed. As I have indicated, he provided persuasive reasons as to why their evidence should be preferred to that of the applicant, whose evidence was not corroborated. The learned Magistrate then dealt with certain matters of justification and excuse, and concluded that they had been sufficiently negatived to the required standard of proof.
64 Having regard to these general observations, let me now turn to the specific grounds the subject of the notice of appeal.
Ground 1
65 Ground 1 was that the learned Magistrate erred in law in accepting the evidence of prosecution witnesses John Montagu and Wayne Dagnall, without giving adequate reasons for the finding.
66 It follows from my general observations that in my view no error of law on the part of the learned Magistrate is revealed by this ground of appeal. His Honour gave reasons for preferring the evidence of the complainant and Dagnall to that of the applicant, bearing in mind that the latter's evidence was not corroborated. It was open to, and reasonable for, the learned Magistrate to prefer the evidence of the prosecution witnesses.
(Page 14)
Ground 2
67 Ground 2 was that the learned Magistrate erred in fact and law in failing to use, or misusing, the advantage he had in seeing and hearing Messrs Montagu and Dagnall, and in deciding the issue of the applicant's guilt on their evidence alone, and the evidence of Messrs Montagu and Dagnall was inconsistent as to the manner of the alleged assault and damage to the backhoe.
68 As I have indicated in earlier discussion, the learned Magistrate accepted that in regard to the substantive elements of the charges faced by the applicant, the evidence of the complainant and Dagnall was consistent. Ultimately, his reasons for decision turned upon his assessment of the credibility of the witnesses.
69 It follows from Devries' case mentioned earlier that when a Magistrate's findings depend to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the Magistrate has failed to use, or has palpably misused, his advantage of having seen the witnesses give their evidence, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or was glaringly improbable.
70 To my mind, for the reasons given by him, it was open to and reasonable for the learned Magistrate to prefer the evidence of the prosecution witnesses. It cannot be said that the evidence in question was inconsistent with facts incontrovertibly established by other evidence, or that the account given by the prosecution witnesses was glaringly improbable. Accordingly to my mind, no error of fact or law on the part of the learned Magistrate has been established, which is sufficient to support this ground of appeal. This ground of appeal does not have a real prospect of success.
Ground 3
71 Ground 3 was that the learned Magistrate erred in making no findings, and in failing to assess the evidence of the police, the applicant and his witnesses, so as to enable the applicant to know why he was unsuccessful in the defence of the charges against him.
72 I touched upon this aspect of the proposed appeal in my general observations. The only evidence relevant to establishing the elements of the charges against the applicant came from those witnesses who were
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- parties to, or witnessed, the assault and act of damage; namely, the complainant, Dagnall and the applicant.
73 The evidence of other witnesses, none of whom saw the assault or act of damage, was marginally relevant; that is, relevant only to the extent that it reflected on the reliability of the principal witnesses and provided an insight into the nature of the injuries caused to the complainant, or was relied upon to justify or excuse the applicant's assault on the complainant.
74 The learned Magistrate made findings of fact as to the manner of the assault that were defensible, and as to a case of the kind before him, his reasons were sufficient to show why he preferred the evidence of the complainant and Dagnall to that of the applicant and his witnesses. There is no error of law on the part of the learned Magistrate revealed by this ground of appeal. It does not have a real prospect of success.
Ground 4
75 Ground 4 was that the learned Magistrate erred in law in not assessing and resolving the conflict in the evidence of (a) Mr Montagu at trial, with his version of events, given to the police at the scene of the assault in 2003; and (b) the evidence of Messrs Lawrence Silvio and Benjamin Ackley as to Mr Montagu's conduct prior to the applicant's assault and damage to the backhoe.
76 In my view, although the learned Magistrate did not expressly refer to the evidence of the police or the prior statements made to them by the complainant, it was both open to and reasonable for the learned Magistrate to accept the complainant's evidence at trial, bearing in mind that it was corroborated by Mr Dagnall's evidence. This outweighed any inferences to be drawn from the complainant's prior statements or any suggestion of a lack of consistency between those statements, and the evidence given by the complainant at trial.
77 In my view, there is no error of law revealed on the part of the learned Magistrate by this ground of appeal. It does not have a real prospect of success.
Ground 5
78 Ground 5 was that the learned Magistrate erred in law in reversing the onus of proof, when he found that he was not persuaded the assault had as its purpose the prevention of any repetition of the act complained of.
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79 It follows from my general observations that there is no merit in this ground of appeal. I note in passing that in addressing the applicant's defence of accident, the learned Magistrate also correctly stated which party bore the relevant onus of proof.
80 Further, as I indicated in earlier discussion, the Magistrate was clearly alive to the issue of foreseeability as a matter bearing upon the notion of an accident. He made an express reference to this aspect of the matter and a finding in that regard.
Ground 6
81 Ground 6 was that the learned Magistrate erred in law in failing to consider and to make findings as to each specific element of the defence as a provocation, prevention of a repetition, of an act or insult and accident.
82 It is true that the learned Magistrate did not address each specific element of these offences or run through all issues arguably bearing upon them in their entirety. However, the learned Magistrate correctly identified the central flaw in each of these defences, and gave reasons as to why in light of the flaws in question the defences would not succeed. The decided cases suggest that in regard to a case of this kind his reasons were sufficient.
83 I do not consider that this ground of appeal has any real prospect of success.
Ground 7
84 Ground 7 was that the learned Magistrate erred in law in rejecting the defences outlined above by simply preferring the evidence of Messrs Montagu and Dagnall, and failing to have regard to whether the evidence of the applicant, his witnesses and police, might reasonably be true.
85 To my mind it was open to the learned Magistrate to prefer the prosecution's evidence to that of the applicant and the police officers, none of whom saw the alleged provocative driving of Mr Montagu, and the evidence of Messrs Silvio and Ackley, neither of whom saw the assault or the act of damage. Having preferred the testimony of the prosecution witnesses, the learned Magistrate correctly applied evidence of the prosecution to the defences in question.
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86 It follows from my general observations and the decided cases that this ground of appeal reveals no error of law on the part of the learned Magistrate.
Ground 8
87 Ground 8 was that the learned Magistrate erred in law in finding damage to the backhoe window was foreseeable and, therefore, that the prosecution had successfully negatived the defence of accident.
88 I consider that the learned Magistrate correctly addressed this issue in finding that the defence of the accident was not available to the applicant. He referred expressly to the concept of foreseeability as to why the relevant event should not be characterised as an accident. This ground of appeal does not have a real prospect of success.
Summary
89 It follows from these conclusions that it has not been demonstrated, in my view, that any of the applicant's grounds for appeal have a reasonable prospect of success. I consider that leave to appeal must be refused. I will hear from the parties as to whether any further orders are required.
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