SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARKS v POLICE; ROACH v POLICE
[2019] SASC 50
Judgment of The Honourable Justice Nicholson
4 April 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE - GENERALLY
Appeal against findings of guilt by a Magistrate. The appellants' charges arose from the same incident and the trials and appeals were heard together.
The appellants travelled from Victoria with their sports team on an end of season trip and were involved in an incident at a hotel. Both appellants were charged with one count of aggravated assault (count 1) and one count of aggravated assault causing harm (count 2). Following a trial before a Magistrate, the appellant, Marks, was convicted of both counts and the appellant, Roach, was convicted of only count 2.
On appeal, both appellants complained that the failure of the prosecution to call particular witnesses resulted in a miscarriage of justice. Marks further contended that the failure of his trial counsel to properly present his case in a number of respects denied him a fair trial.
Roach contended that the Magistrate failed to adequately direct herself in respect of various matters and that her Honour's reasons were inadequate in various respects. Roach contended that the Magistrate erred in failing to find that the element of causation of the complainant's injuries in respect of count 2 had been made out by the prosecution.
Held, dismissing both appeals, none of each appellant's grounds of appeal has been made out.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 15, s 20, referred to.
Fox v Percy (2003) 214 CLR 118; Craig v The Queen [2018] HCA 13; TKWJ v The Queen (2002) 212 CLR 124, applied.
Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293; R v Sabet [2018] SASCFC 18; Corfield v Police [2017] SASC 170; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Police v Kyriacou (2009) 103 SASR 243; R v Hurst [2011] SASCFC 152; R v Kennedy [2017] SASCFC 170; R v Birks (1990) 19 NSWLR 677, discussed.
Jones v Dunkel [1959] HCA 8; Ali v The Queen (2005) 79 ALJR 662; Nudd v The Queen (2006) 80 ALJR 614, considered.
MARKS v POLICE; ROACH v POLICE
[2019] SASC 50Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
These reasons concern two appeals against convictions recorded in the Magistrates Court. The charges of which the appellants were convicted arose from the same incident and the trials and appeals were heard together.
The appellants, Daniel Marks and Luke Roach, were arrested following an incident at the Alma Hotel, Norwood in October 2016.[1] They were each charged with one count of aggravated assault[2] and one count of aggravated assault causing harm.[3] The complainant for count 1 was Dennis Lubajo, a security officer at the hotel and the complainant for count 2 was Gary West, the duty manager of the hotel. The circumstance of aggravation with respect to each count was that the offence was committed in the company of one or more other persons.[4]
[1] A third man, Stefan Terzievski, was also arrested and charged with the same offences but, at the close of the prosecution case at trial, the Magistrate made a finding of no case to answer with respect to that defendant.
[2] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for three years.
[3] Contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is imprisonment for four years.
[4] Pursuant to section 5AA(1)(h) of the Criminal Law Consolidation Act 1935 (SA).
Following a trial before a Magistrate, Marks was convicted of both counts and Roach was convicted of only count 2.[5] Marks appeals against his conviction on both counts and Roach against his conviction on count 2.
[5] Police v Roach, Terzievski and Marks, judgment of Magistrate S O’Connor, 30 April 2018, file No. AMC-17-17699 (hereafter, “Magistrate’s reasons”).
The offending alleged at trial
On the evening of Saturday 15 October 2016, the appellants attended the Alma Hotel. They were members of a group of footballers who had travelled from Victoria on an end of season trip.
Shortly after midnight, there was an altercation between the Victorian group and another group of patrons on the dance floor inside the hotel. A member of the other group, Darcy Hourigan, suffered a head injury during the altercation as a result of Roach striking him with a glass or bottle. Roach was charged with aggravated assault causing harm with respect to this act and pleaded guilty to that charge at commencement of the trial.
Having been alerted to the injury suffered by Hourigan, the duty manager West and security officer Lubajo removed Hourigan from that part of the hotel and took him to an area in an alcove at the front of the hotel on Magill Road in order to attend to his injury. West obtained a first aid kit and then returned to the alcove to administer first aid to Hourigan. A friend of Hourigan, a man named Jarred Mason, was also present in the alcove or proximate to it.
Members of the Victorian group, including the appellants, and members of Hourigan’s group each exited the hotel via doors on the side adjacent to Magill Road. The prosecution alleged at trial that, while West and Lubajo were tending to Hourigan in the alcove, the appellants, together with a third person, approached the group in the alcove acting in an aggressive manner and committed the aggravated assaults, each participating in a joint criminal enterprise. Roach struck West to the face with a closed first and Marks then struck West to the side of the face with a closed fist, causing West to fall to the ground. West was knocked unconscious and suffered multiple fractures and contusions to his face and head.
The prosecution alleged that, as Lubajo moved to protect West, Marks punched Lubajo to the side of his head and his stomach. The appellants and the third man then walked away from the hotel. Police arrived shortly afterwards and arrested the three men.
Aspects of the incident in the alcove were captured on a CCTV camera mounted inside the hotel. This vision was played at trial and on appeal. Both West and Lubajo subsequently identified Roach in a photo identification procedure.
The trial
The trial was heard over a period of four days on 24 and 25 July 2017 and 9 and 10 October 2017, with written closing submissions subsequently provided by all parties and oral closing submissions made by each of counsel for Marks and Roach on 14 December 2017. The prosecution adduced evidence from Hourigan, West, Lubajo and five police officers.
According to Hourigan, after having been struck on the dance floor, he was taken by West and Lubajo to the outside alcove where they started to administer first aid. Lubajo was standing to the side assisting West who was squatting down in front of Hourigan. While in the alcove Hourigan saw three males attack West and Lubajo. Hourigan said he was “too dazed to see what was going on, who hit who, what was going on there”. However, he described West being struck from the side and rendered unconscious and seeing a friend and Lubajo pushing and shoving the three men to try and remove them.
West said that, after being alerted to an altercation between patrons, he accompanied Hourigan outside with Lubajo before leaving to obtain a first aid kit. He returned to the alcove and squatted in front of Hourigan to attend to his head injury. He saw three males come along the footpath past the alcove. The nearest to him was blonde and wearing a ripped, striped t-shirt which appeared to be covered in blood. A second man was wearing a black t-shirt and a third, a white t-shirt. The men were behaving aggressively and shouting. West put his hand out in front of him and shouted “no, no, no”. He could recall nothing after that until waking up in the same position with police in attendance. West later identified Roach as being involved in this incident in a photo identification procedure.
Lubajo said in evidence that as he was shining a torch on Hourigan and, as West was administering first aid, three men ran towards them. The first had brown hair and was wearing black jeans and a ripped white shirt with maroon hoops. Hourigan shifted his head to the side in a protective motion and said “that’s the guy who hit me”. According to Lubajo, this man then struck West to the face with a closed fist.[6] Later in his evidence, Lubajo said that this man also kicked West in the face. Whilst Lubajo was trying to protect West, a second man, wearing black jeans and a black t-shirt with letters PSA DNA on its front and back then struck West’s left ear area with his right fist which rendered West unconscious.[7] The same man then struck Lubajo to his left ear. A third man wearing black jeans and a white t-shirt joined in and struck Lubajo. The three men punched Lubajo to the head and stomach a number of times. Lubajo then described how, with the assistance of other crowd controllers, the altercation came to an end and the three assailants left the immediate area. Lubajo pointed out the three assailants to police who had arrived soon after and the three assailants were arrested. Lubajo also identified Roach in a photo identification procedure.
[6] It can be inferred that the Magistrate was satisfied that this man was Roach, see Magistrate’s reasons at [11], [43], [44], [49], [52] and [54].
[7] It can be inferred that the Magistrate was satisfied that this man was Marks, see Magistrate’s reasons at [11], [43], [44], [49], [52] and [54].
The appellant Roach did not give evidence. However, the appellant Marks did. He said that he had been told to leave the hotel after trying to intervene in the altercation between the two groups on the dance floor. He was walking along Magill Road when a “short guy in a white top” yelled at him and threw a bottle at him. In her reasons, the Magistrate made a finding that this person was Hourigan’s friend, Mason, and this has not been disputed by the prosecution. Marks described four to five men running towards him, including Lubajo who punched him to the face twice. Being unaware that Lubajo was a security officer at the hotel, he tried to fend him off by pushing him with an open palm before being struck by the same man who had earlier thrown the bottle. He said that because he was recovering from a disabling leg injury he had been unable to run at the time.
When Roach was arrested on the night he was wearing a ripped white t-shirt with maroon hoops that had blood on it. When Marks was arrested on the night he was wearing a black t-shirt with the letters PSA DNA.
The Magistrate’s reasons
The Magistrate in her reasons summarised the evidence of each of the witnesses and directed herself with respect to various matters including matters of law, the criminal burden of proof including where self-defence is raised, the approach to be taken with respect to identification evidence and her assessment of the witnesses generally. Her Honour was very critical of perceived shortfalls in the police investigation but ultimately concluded in this respect as follows.[8]
As far as these charges are concerned, the shortfalls in the investigation and the failure to call Mason and other crowd controllers as witnesses had not led to any miscarriage of justice.
[8] Magistrate’s reasons at [53].
The Magistrate’s discussion and analysis of the evidence and statement of findings of fact was detailed and extensive.[9] It is apparent from the Magistrate’s reasons that her Honour paid careful attention to the evidence. Her Honour’s essential findings and conclusions[10] can be summarised as follows.
[9] Her Honour provided a detailed summary of the evidence given by all witnesses at [7] to [21] of the Magistrate’s reasons and at [42]-[55] provided a lengthy analysis of the evidence which incorporated her findings of fact.
[10] Magistrate’s reasons at [42]-[55].
(i)West suffered multiple fractures to his right lower orbit and his sinus was broken in two places. He suffered bruising and a large cut across the side of his face.[11]
[11] Whilst the Magistrate records this matter as part of her summary of the evidence of West and makes no express finding to this effect, it is to be inferred that her Honour was satisfied with respect to this evidence (Magistrate’s reasons at [9]). The fact that West suffered these injuries is not disputed by either appellant. What is disputed and dealt with later in these reasons is the question of whether or not the Magistrate sufficiently identified and provided sufficient reasons for a causal connection between the assault of West by Roach on the one hand and the assault of West by Marks on the other and the suffering of these injuries. See Roach appeal ground 7 set out below.
(ii)The injuries to West constituted “harm” for the purposes of subsection 20(4) of the Criminal Law Consolidation Act 1935 (SA).[12]
[12] Subsection 20(4) provides “a person who commits an assault that causes harm to another is guilty of an offence”. It was this subsection pursuant to which both Marks and Roach were charged in connection with the alleged assault of West in count 2. “Harm” is defined in section 21 to mean “physical or mental harm (whether temporary or permanent)” and “physical harm” is defined to include “pain”.
(iii)Lubajo was a credible witness and his evidence was plausible and logical. This was so notwithstanding a number of inconsistencies between his statement to police and his evidence in court. The Magistrate identified a number of these but found them to be of no significance to her overall assessment of Lubajo’s evidence.
(iv)Marks was an unreliable witness “who blatantly reconstructed events to exculpate himself and his friends”. Marks’ evidence contained “glaring inconsistencies”, explanations given by Marks were contrived and his narrative was implausible. The Magistrate provided a number of examples of Marks’ evidence that she characterised as reconstruction designed to exculpate himself and his friends. Her Honour analysed his evidence at some length in support of her conclusion that it was implausible.
(v)Three men hurried or ran from the designated footpath into the alcove area.
(vi)The assault against West was aggravated because all assailants decided to deviate from the footpath into the alcove and the only reasonable inference is that they were involved in a joint enterprise and were complicit in each striking West on one occasion in quick succession.
(vii)Three different versions given by Marks during the trial as to how he came into conflict with Lubajo were specifically rejected.
(viii)Roach was identified by his distinctive attire – a white shirt with maroon hoops soiled with blood. He was wearing this shirt when arrested.
(ix)Marks was identified by his distinctive t-shirt (black with PSA DNA letters) and by his having implicated himself in the incident by his complaints about Lubajo and Mason.
(x)Roach and Marks were the aggressors and cannot suggest that they were being called upon to defend themselves.
(xi)Any suggestion that Lubajo started a fight or moved from the alcove to the footpath area to attack either Roach, Marks or anyone else was specifically rejected.
(xii)Lubajo’s involvement was to the effect of defending himself given that he was being punched and he was acting within the ambit of his duties as a crowd controller who had been caught by surprise by a sudden uncontrollable altercation.
(xiii)The prosecution case was insufficient to prove beyond reasonable doubt that Stefan Terzievski (the third accused) was the third person who entered the alcove and struck West.
(xix)Any physical confrontation in which Lubajo was involved commenced in the alcove and there was no reason or necessity for the three men who entered the alcove to approach Hourigan, West and Lubajo given that the incident inside the hotel involving Hourigan was well over and West and Lubajo were unknown to the assailants.
(xx)Lubajo was at all times acting as a crowd controller attempting to protect Hourigan, West and others from an assault by those intent on perpetrating unnecessary violence.
(xxi)Roach and Marks were two of the three assailants who deviated off the footpath to enter the alcove and assault West. They were aggressors, not acting in self-defence. Both struck West with a fist “and are jointly responsible for his injuries”.
(xxii)The assault of Lubajo comprised a separate incident not a continuation of the assault of West. The prosecution have been unable to prove Roach was involved in the assault of Lubajo. However, the prosecution has proved that Marks and an unknown third assailant assaulted Lubajo.
Grounds of appeal
Both appellants complain of the failure of the prosecution to call particular witnesses. Counsel for Marks relied on submissions of counsel for Roach with respect to this ground of appeal.
Roach
It was conceded on appeal by counsel for Roach that Roach was correctly identified by Lubajo as the man who first struck West with his fist in the alcove.
Roach raised the following grounds of appeal.
1.The Learned Magistrate’s reasons were inadequate.
2.The Learned Magistrate erred by failing to give adequate directions in respect of the evidence.
3.The Learned Magistrate erred in failing to direct herself adequately as to prior inconsistent statements.
4.The Learned Magistrate erred [in] failing to direct herself adequately as to self defence or defence of another.
5.The Learned Magistrate erred in failing to direct herself adequately or at all on the prosecution failure to call the witness Mason.
6.The Learned Magistrate erred in failing to direct herself adequately about the inadequacy of the Police investigation.
7.The Learned Magistrate erred in failing to find the element of causation of the Complainant’s injuries in respect of count 2 had been proven by the prosecution.
8.The Learned Magistrate erred in failing to direct herself adequately or at all in respect of joint criminal enterprise.
9.There has been a miscarriage of justice and an unfair trial by virtue of the manner in which the prosecution case was conducted.
Marks
Marks’ amended grounds of appeal contained three grounds. On the hearing of the appeal, the third ground was abandoned.
By his first ground of appeal, Marks complains that the prosecution did not call material witnesses which denied Marks a fair trial and resulted in a miscarriage of justice. This ground is particularised as follows.
1.1The evidence of the witness “Mason” was central to the appellant’s claim of self-defence in relation to the witness Lubajo. Failure to call this witness denied the appellant the opportunity to put facts relevant to this claim of self-defence to the court.
1.2The evidence of other crowd controllers and patrons was central to the narrative of events. Failure to call these witnesses resulted in the appellant’s account of events antecedent to the incident in the alcove being challenged without proper basis.
1.3Relevant evidence as to the identification of the persons in and near the alcove during the incident was not before the court.
By his second ground of appeal, Marks contends that the failure of his trial counsel[13] to properly present his case denied him a fair trial, resulting in a miscarriage of justice. The notice of appeal particularises a number of specific complaints with respect to the conduct of trial counsel.
[13] Different counsel appeared for Marks on the appeal.
2.1He did not cross examine prosecution witnesses Hourigan and West and therefore did not put [Marks’] case to either witness;
2.2He failed to take adequate instructions from [Marks] which led to him putting a version of events to the witness that did not accord with the evidence of [Marks];
2.3He did not properly advise [Marks] of his right to silence;
2.4He improperly conceded that the CCTV footage was of no utility in the Magistrate’s assessment of the evidence;
2.5He failed to apply for the adjournment of the trial until the matter was fully investigated, statements obtained and proper disclosure made;
2.6He failed to adequately address the court in respect to legal and factual matters, inconsistencies in the evidence, and legal considerations, leading to unchallenged findings being made by the Magistrate;
2.7He made improper concessions in his address concerning inconsistencies in [Marks’] evidence;
2.8He failed to adduce medical evidence in respect of [Marks’] physical impairment at the time of the incident.
The appeal
An appeal pursuant to section 42 of the Magistrates Court Act 1991 (SA) is by way of rehearing to be conducted in the manner described by White J in Martin v The Department of Transport, Energy and Infrastructure.[14]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[15]
(Footnote in original)
[14] [2010] SASC 141 at [38].
[15] See generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29], Warren v Coombes (1979) 142 CLR 531 at 551.
It follows that I must make a full and independent review of the evidence before the Magistrate and come to my own conclusion, but always paying due regard to the usual advantages enjoyed by the Magistrate in seeing and hearing the witnesses give their evidence. To assist in this respect, the CCTV vision that was before the Magistrate was viewed in Court during the hearing of the appeals. Counsel for Roach provided an aide memoire to the Magistrate which served to identify persons and describe events as might be discerned from the CCTV vision. For the purpose of the appeal, counsel for the respondent provided a supplementary aide memoire identifying those aspects of Roach’s document not agreed to by the respondent. Marks did not argue against the reliability of the Roach aide memoire. Both aides memoire were received on appeal by way of submission and to the extent that counsel for either appellant can be understood as having made concessions on their client’s behalf.
At the hearing of the appeals, each of the three parties sought to tender fresh evidence by consent. Roach read an affidavit of his solicitor Megan McDowall affirmed 25 July 2018 and produced an audio recording by his solicitor of an interview conducted by police with Jarred Mason. Marks read three affidavits sworn by himself on 24 July 2018, 30 July 2018 and 10 August 2018 and two affidavits sworn by his solicitor, Sarah Elizabeth Grimwade, on 20 July 2018 and 23 July 2018. The respondent read an affidavit of Kimberley Jade Ballans, sworn 6 July 2018, save for paragraphs 7 and 12 thereof.[16]
[16] Ms Ballans was counsel for the prosecution at trial.
During the appeal, the essence of the defence cases crystallised. Roach conceded that he hit West first with a single punch. However, this was for a defensive purpose; largely but not entirely in response to actions of Mason.
Marks maintained that he did not hit West at all. He engaged in an altercation with Lubajo by way of self-defence when Lubajo attacked Marks without Marks realising that Lubajo was a crowd controller.
According to both appellants and in reliance on the evidence of Marks, while West, Hourigan, Lubajo and others, including Mason, were in the alcove, the appellants and others came along the footpath. As they were adjacent to or past the alcove, Hourigan, at this point seated on the ground, said words to the effect of “that’s the guy who hit me”. On the defence case, Mason reacted to this and threw a bottle. He also appeared to “shape up” aggressively in close proximity to and in the direction of the appellants. West appeared to raise his arm or arms. According to counsel for Roach, it is in this context that West was struck by Roach and fell to the ground.
Marks’ evidence was to the effect that, following the altercation on the dance floor, he was asked to leave by a security officer. He met Roach and approximately five other members of their group outside and walked along Magill Road. A “short guy with a white t-shirt” threw a bottle in his direction and then ran towards him with around three or four others, one of whom was Lubajo. Lubajo then approached him aggressively and punched him twice to the face at which point Marks scuffled with Lubajo by way of self-defence.
The CCTV
The CCTV that captured the incident is of very poor quality. The camera by which the vision was recorded is located inside the hotel. Part of the external alcove and footpath where the incident took place is visible through closed glass doors which at times captured reflected coloured light from the adjacent dance floor. The CCTV images are blurry and distant and lack clear colour, light and shape. Movements are jerky because of the small number of frames per second, not in real time and extremely distorted. The CCTV camera angle only picked up a portion (probably less than half) of the alcove. It is not possible to assess relative distances between individuals and objects.
The CCTV vision was viewed at the hearing of the appeal. At trial and at the hearing of the appeal, agreement was reached between the parties as to the identity of some of the individuals visible in particular frames.
The action of potential relevance which has been captured occurred within a very short time; a matter of seconds. A group of three males come into view as they draw in line with the alcove while walking along Magill Road. The vision captures the friend of Hourigan, the man agreed to be Mason, moving his arm in a manner consistent with him throwing an object towards the three men. This occurs prior to any striking of West or other persons. Based on the CCTV vision alone, it is at least a reasonable possibility that the violence said to have been perpetrated by Roach and Marks thereafter occurred as a response to this conduct by Mason.
On my review of the CCTV vision, in conjunction with concessions made by counsel for both Roach and Marks, it is consistent with the following propositions (apart from (d) as qualified below).
(a)West, Hourigan, Lubajo and others, including Mason and a security guard called Michael are to be seen in the alcove.
(b)Roach and Marks with others come along the path and draw adjacent to the alcove.
(c)Mason appears to react to something.
(d)Whilst not evident from the CCTV vision, it is common ground that Mason reacted to Hourigan saying words to the effect “that’s the guy that hit (or glassed) me”.
(e)Mason’s initial action is consistent with him throwing something, likely to be a bottle. He then appears to “shape up” aggressively in close proximity and in the direction of Roach and Marks.
(f)According to the submission by the appellants, at or about this time West raised or extended his arm or arms while in a standing position. This is not clear on my viewing of the CCTV vision although cannot be discounted as a reasonable possibility.
(g)Roach and Marks appear to react to something.
(h)West then appears to be hit by someone and falls to the ground.
The CCTV vision is consistent with a finding that one punch was delivered to West by, as now admitted, Roach. It does not provide direct support for a second punch to or any kicking of West but is not inconsistent with either. Nor is there any direct support for or against the admitted altercation between Marks and Lubajo which must have happened off camera. As such, there is no direct support for or against Marks’ claim of self-defence. The vision as recorded by the CCTV is not sufficient, of itself, to prove the prosecution case against Roach or its case against Marks beyond reasonable doubt. However, it is not inconsistent with either case. The prosecution cases depended on the Magistrate accepting the evidence of Hourigan, West and Lubajo and, in particular, the latter.
Consideration of the Roach appeal
Roach’s appeal grounds need to be considered in the context of the manner by which the Roach defence was conducted at trial and his concession made on appeal.
The primary defence at trial was that Roach did not hit West. Lubajo was directly cross-examined by counsel for Roach[17] to this effect. Lubajo had earlier given evidence that he had seen a person hit Hourigan on the dance floor and that he saw that same man punch West in the alcove. The cross-examination on this topic proceeded as follows.
QAs I understand your evidence you say that Mr West was struck in the face by that person with his right fist.
AYes.
QI put it to you that didn’t happen. I suggest that’s wrong what you say about that.
AI say no.
QI suggest you’re making that up … you’re making up the fact that the same man hit Mr West.
AThat is the same man that hit Mr West – did see it with my eyes.
Counsel for Roach did not cross-examine Lubajo in an attempt to lay a foundation for a submission of defensive purpose. Nor did counsel cross-examine West or Hourigan to this effect.
[17] Who was also counsel on appeal.
It is to be inferred that counsel’s instructions at least to this point were to the effect that Roach was not the person who hit West. The written submissions provided to the Magistrate by counsel at the end of the trial substantially comprised a discussion of general legal principles under the headings The Charges, Cause Harm, Self Defence and Defence of Another, Inadequate Police Investigation and Prosecution Failure to Call Witnesses. There was a modest reference to the evidence with respect to Cause Harm, Prior Inconsistent Statements and Prosecution Failure to Call Witnesses.
The section on Self Defence and Defence of Another consisted of five and a half pages single spaced devoted exclusively to extracts from other cases dealing with other facts. There is no mention of any evidence that might be said to have raised for consideration (and requiring the prosecution to exclude beyond reasonable doubt) a defensive purpose on behalf of Roach.
In his oral submissions counsel argued that there was no evidence,
of who struck [West] such as to cause the injuries that the prosecution allege, the harm which are the serious injuries to him.
This was counsel’s primary submission. In making it in these terms, counsel elided two critical issues; first, had it been proved that Roach hit West at all and second, if so, had it been proved that Roach is legally responsible for the serious injuries suffered by West. Counsel then submitted that if the Magistrate were not to be so satisfied, her Honour should move to:
the lesser alternative charge of basic assault for the one punch and … has to be satisfied that [Roach] is guilty of that in that he didn’t act defensively.
(Emphasis added)
In this respect, counsel later referred the Magistrate to the written submission setting out the law on self-defence and characterised Mason, a potential but not presented witness, as “crucial on the question of self defence”. Counsel also referred the Magistrate to the CCTV vision. He submitted that, prior to West being seen falling to the ground, Mason could be seen throwing something and shaping up aggressively and West could be seen with his arm extended whilst standing up – “Him extending his arm might be interpreted potentially as being an aggressive act”.
Ultimately, counsel submitted to the Magistrate in these terms (which essentially pre-figured the submission on appeal).
In other words here they are, West or Lubajo or Mason or one or other two other (sic) of them are all together in close proximity and therefore in company and potentially giving rise to an apprehension on the part of a person such as Roach that they are acting aggressively towards him given that, in particular, the conduct of Mason towards him … .
Counsel submitted that self-defence had been raised on the evidence and “not rebutted” by the prosecution.
Roach’s defence at trial can be reduced to these three propositions:
(i)it had not been established beyond reasonable doubt that Roach hit West;
(ii)if found that Roach did hit West, it had not been established beyond reasonable doubt that Roach caused the injuries (harm) suffered by West and therefore he could only, at most, be liable for common assault; and
(iii)in any event, there is sufficient evidence to require self-defence to be considered by the Magistrate and the prosecution had not excluded it beyond reasonable doubt.
The defence was entitled to put its case in the alternative. Even if he had not done so, the Magistrate would have been obliged to consider whether the prosecution had excluded self-defence, as a reasonable possibility, if there had been evidence sufficient to raise the issue.[18]
As earlier indicated, by the time of the appeal, proposition (i) above had been conceded and only propositions (ii) and (iii) remained. I will return to the issue in (ii) later in these reasons. However, as to the issue in (iii), the Magistrate, following her Honour’s review of the evidence, expressed herself satisfied that Roach struck West and that Roach was the aggressor not acting in self-defence.[19] Her Honour had earlier found that West “in no way could be seen to be an aggressor”.[20]
[19] Magistrate’s reasons at [54].
[20] Magistrate’s reasons at [50].
Leaving aside for the present the absence of Mason from the trial, the Magistrate’s findings that Roach and Marks, as aggressors, both struck West were plainly open to her. Given her assessment of the evidence from the prosecution witnesses, these findings were inevitable. In this latter respect, the usual advantages the Magistrate enjoyed from having heard and seen the witnesses give their evidence must be properly allowed for.[21] On my review of the evidence, including the CCTV vision, none of her Honour’s findings as to how the incident came about and the circumstances of the incident itself can be said to be glaringly improbable or contrary to incontrovertible facts or uncontested testimony or compelling inferences from other established facts, such as would justify interference.
[21] See generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29], Warren v Coombes (1979) 142 CLR 531 at 551.
The Magistrate early in her reasons briefly directed herself on the law relevant to a claim of defensive purpose.[22] The direction was succinct but, bearing in mind it was not addressed to a jury but to an experienced judicial officer, it was sufficient in the circumstances of this case. It is true, as Roach complains, that this direction was stated by reference to the observation that “Marks contends that he acted in self defence [with respect to Lubajo]…”.[23] However, it cannot be contemplated that her Honour either overlooked the principles she had noted or applied some other principle when expressly finding that Roach had not acted defensively.
[22] Magistrate’s reasons at [24].
[23] It is quite understandable that the Magistrate introduced her directions on self-defence this way given that Marks gave evidence expressly claiming that he was set upon by Lubajo and that Marks responded defensively whereas Roach did not give such evidence and his counsel treated the issue of self-defence with a very light brush.
Before leaving this issue, it will be convenient to identify briefly the basis for a successful claim of defensive purpose and to contrast this with the factual basis available to Roach on the evidence taken at its highest.
Subsections 15(1), (3)(a) and (5) of the Criminal Law Consolidation Act provide as follows.
(1)It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
. . . .
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence or in defence of another; or
(b) …
. . . .
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
In Colosimo v Director of Public Prosecutions (NSW),[24] Hodgson JA (with whom Handley and Ipp JJA agreed) stated the following two propositions which, whilst stated in the context of the relevant New South Wales legislative provision, are equally applicable with respect to section 15 of the Criminal Law Consolidation Act.
In my opinion, the following principles are applicable in this case.
(1)By reason of the onus of proof provided by s 419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. Thus, in relation to s 418(1)(a), there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused’s response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation: to that extent, I agree with R v Imadonmwonyi [2004] VSC 361 at [21] and R v Mekic [2004] SASC 44 at [5].
(2)It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused’s relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances.
[24] [2006] NSWCA 293 at [19].
It is also important to note that a person relying on a claim of defensive purpose must have acted and believed themselves to have acted for a defensive purpose.[25] To engage willingly in a fight is not to act in self-defence. Further, self-defence can never be called in aid to justify retaliation or revenge if the danger is over and the occasion for self-defence is at an end.
[25] Putting these matters in a positive form for ease of explanation, but subject of course to the prosecution obligation to exclude beyond reasonable doubt.
The evidence, at its highest, relied on by Roach[26] as raising defensive purpose when he struck West can be summarised as follows.
(i)There was a group in the alcove supporting Hourigan, that included Hourigan, West, Lubajo, Mason and perhaps the crowd controller called Michael. A group of men can have an intimidatory aspect to it.
(ii)As Roach and Marks, possibly with others including Terzievski walked along the footpath drawing adjacent to the group in the alcove, the words, “that’s the man that hit me” were spoken, Mason threw a bottle in their direction and shaped up in their direction and West, while standing, raised or extended an arm or arms saying “no, no, no”.
Within a second or two, Roach and Marks[27] had entered the alcove and punched West to the head and a fight erupted.
[26] This applies also with respect to Marks and his striking of West which may explain why Marks has never relied on self-defence in the alternative to his defence based on his wrongful identification as an assailant of West.
[27] In this section I have referred to and will continue to refer to Marks as well as Roach in the context of the assault on West, as found by the Magistrate. However, it must be remembered that Marks makes no claim of self-defence with respect to West (contra with respect to Lubajo). Marks at all times has maintained that he was wrongly identified and that he had no part to play in the assault on West.
It is helpful, in this context, to revisit the evidence of West and Lubajo concerning West’s conduct. West said this.
I was just bent over putting my gloves on in the first aid box and as I looked up three males came around and started getting aggressive and shouting, so I put one hand out and just said “no, no, no”.[28] And then from that I don’t remember.
He said he put his arm up as an instant reaction; a defence mechanism. The alcove was inset and formed part of the hotel exterior wall. There was evidence that its dimensions were approximately six metres long by two metres deep. Given the geography of the alcove with reference to the adjacent footpath there was, according to West, no need for anyone wanting to walk along the footpath to be anywhere near where he was squatting. West was not directly challenged on these matters.
[28] West gave this evidence twice in chief; on one occasion he said that he had said “no, no” and on the second, “no, no, no”.
Lubajo said in chief that the three defendants came around the corner, that it all happened very quickly, that West turned around and, while standing, put his hands out, that the three men ran towards “us” and (the man now identified as Roach) punched West in the face with a closed fist. Lubajo said that, as that happened, the other male in the black t-shirt (identified by other evidence as Marks) also went and hit West. Lubajo also said that when West “put his hand out” it was “palms up”. As earlier noted, Lubajo was not cross-examined in an effort to lay a foundation for defensive purpose with respect to the assault on West.
In my view, there was no evidence sufficient to even raise for the Magistrate’s consideration the issue of self-defence by Roach. Such a defence was contrary to Roach’s primary case. But more tellingly, the obvious and lawful conduct available to Roach and his group including Marks was to keep walking. Whilst Mason’s conduct may have been perceived as “a call to arms”, Roach did not have to answer the call. His conduct was (on the evidence at its highest) a response to Mason’s aggressive and threatening behaviour; a response constituted by willingly engaging in fighting by way of retaliation.
Further, and illustrative of the conclusion that Roach and Marks simply wanted to and chose to fight, they first struck West and not Mason. West’s conduct, whilst in the alcove with Hourigan, of putting out his surgical gloved hands palm upwards, could not possibly have engendered a belief in Roach or Marks that West posed a serious threat. Neither Marks nor Roach gave evidence to this effect. Further, this is not an inference available on the basis of those beliefs and perceptions that a person in the position of Roach or Marks could reasonably hold in the circumstances.[29]
[29] Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at 19 (proposition 2).
This was not a case where they physically engaged with Mason who may have presented a threat (albeit one they could have walked away from) and in the course of which West was injured. This was a case of Roach and Marks retaliating to Mason’s conduct by going straight for West. As I have found, in the absence of evidence from Roach there was nothing in the evidence to suggest that Roach might have genuinely believed there was a threat from West nor that his conduct in punching was necessary.
The Magistrate was correct to dismiss any suggestion of self-defence by Roach in the succinct manner she did. I now turn to consider the appeal grounds for Roach. Given my reasons to this point, some of the grounds can be dealt with briefly.
Grounds 1 and 2 – asserted inadequacy of reasons and inadequacy of directions in respect of the evidence
Roach contends that the fundamental requirements for adequate reasons had not been observed by the Magistrate and that this is so notwithstanding the apparent length and content of the published reasons. Counsel has pointed to a number of features of or particular criticisms directed to aspects of the reasons. The requirements for adequate reasons have been variously described on numerous occasions by appellate courts but the following statement by Stanley J in R v Sabet,[30] is sufficient given the circumstances of the case against Roach.
Those statements of principle in AK v Western Australia were affirmed and applied by this Court in R v Cotton[31] and again in R v Ricciardi.[32]The matters upon which reasons are required and the extent of those reasons, will vary depending on the issues and the evidence in the case.[33] It can be seen that the obligation imposed on the trial judge extended to a requirement that the judge identify the critical factual issues relevant to her verdict, identify the evidence relevant to the resolution of each issue and explain the process of reasoning by which the issue was resolved. However, a minute explanation of each step in the reasoning process and detailed findings on every issue of fact is not required.[34] There is no obligation on a judge to refer to every argument which has been put.[35] A trial judge is entitled to make a finding that a particular witness’ evidence is rejected, without identifying, or indeed without there being any particular reason for rejecting the witness’ version over and above acceptance of conflicting evidence. It is not essential that any specific shortcomings in the witness’ evidence be identified. Where a decision rests on a matter of impression, there is no requirement for the judge to elaborate upon his or her reasons for decision.[36] There will be cases in which little can be given by way of explanation.[37]
(Footnotes in original)
[30] [2018] SASCFC 18 at [29].
[31] [2015] SASCFC 17.
[33] R v Ricciardi [2017] SASCFC 128 at [109], (2017) 128 SASR 571 at 593.
[34] R v Keyte [2000] SASC 382 at [48] and [54], (2000) 78 SASR 68 at 78-80.
[35] R v Power [2003] SASC 77 at [76], (2003) 141 A Crim R 203 at 212.
[36] R v Power [2003] SASC 77 at [59], (2003) 141 A Crim R 203 at 210-211; R v Beard [2004] SASC 411 at [13].
[37] R v Power [2003] SASC 77 at [64], (2003) 141 A Crim R 203 at 211.
In this case, insofar as the charge against Roach concerning the assault of West was concerned, there were no contentious issues of law to be ruled upon. The relevant issues were essentially factual and were: whether or not Roach in fact struck West in the alcove (although this factual issue has disappeared given Roach’s concession that he did strike West); whether or not any such striking was lawful, that is, was not committed for a defensive purpose; and whether or not a joint criminal enterprise could be inferred between West and at least one other person[38] such that Roach was responsible in law for all of the injuries suffered by West whether or not caused by Roach’s punch.
[38] On the Magistrate’s findings the other participants in the joint criminal enterprise were Marks and a third unidentified person.
The Magistrate reviewed the evidence at some length and gave reasons for why she accepted the evidence of the prosecution witnesses and rejected the evidence of Marks. Roach did not give evidence. The Magistrate stated the necessary factual conclusions, that is, that Roach was an aggressor not acting in self-defence who struck West with his fist and that he was jointly responsible with Marks and a third person for West’s injuries.
The main witness relied upon by the prosecution to prove the charge was Lubajo. However, the Magistrate also had regard to the CCTV vision.[39] The Magistrate gave reasons for expressly finding Lubajo to be a credible witness and for acting upon relevant aspects of his evidence. Her Honour was entitled to accept the evidence of Lubajo. Further, the oral evidence relied upon by the prosecution, as given by Lubajo and to a lesser degree by Hourigan and West, was consistent with that which could be discerned from the CCTV vision. The CCTV vision was not inconsistent with the oral evidence relied upon in any material respect. Given that the probative value of the CCTV vision was, at best, marginal, there was no need for the Magistrate to describe and analyse it as part of her reasons for rejecting the Roach or, indeed, the Marks defences.
[39] In footnotes 23 and 24 of the Magistrate’s reasons, her Honour made express mention of particular (timed) frames of the CCTV vision.
It is true that, with respect, the Magistrate’s reasons were not a perfectly crafted dissertation. But they were sufficient to explain the basis upon which the Magistrate reached her conclusions as against Roach when considered in the context of the trial issues. Any criticism of the Magistrate’s reasons has even less force on appeal once Roach conceded that he was the person shown in the CCTV vision as punching West in the head and being the first person to strike him. I reject these grounds of appeal.
Ground 3 – asserted inadequacy of the Magistrate’s approach to prior inconsistent statements by Lubajo
The Magistrate identified a number of inconsistencies in Lubajo’s evidence that were relied upon by Roach. They are by and large relatively minor and the type of inconsistencies one might expect to emerge with a witness who has gone through a quite traumatic experience with things happening very quickly. It is not uncommon for witnesses to give a police statement soon after the traumatic event which is at variance as to matters of detail when compared with evidence given quite sometime later at a trial.
None of the inconsistencies relied upon by Roach in this case related to issues central to Lubajo’s account of the events concerning Roach’s culpability. The Magistrate was obliged to assess the whole of Lubajo’s evidence and quite entitled to accept it on the critical issues implicating Roach, notwithstanding the series of inconsistencies relied upon by Roach. In any event, the Magistrate’s acceptance of the critical aspects of Lubajo’s evidence has not been shown to be inconsistent with incontrovertible facts or uncontested testimony, or to be contrary to compelling inferences from other established facts or otherwise to be glaringly improbable. As such, the advantage the Magistrate had in seeing and hearing Lubajo give his evidence must be respected.[40] I reject this ground of appeal.
Ground 4 – the Magistrate’s asserted failure to direct herself adequately as to self-defence or defence of another
[40] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).
I have already dealt with this matter at some length; the contention is not made out.
Ground 5 – the Magistrate’s asserted failure to direct herself adequately with respect to the prosecution’s failure to call the witness Mason
It is not easy to comprehend precisely the nature of the complaint under this ground. Counsel for Roach made lengthy submissions before the trial Judge and on appeal, but at a very high level of generality, as to the asserted importance of Mason to the defence case. The submissions as to how Mason may have assisted the defence rose no higher than speculation.
At the end of the day, Mason was not called by the prosecution and as I understand the position this constitutes a separate complaint by Roach (ground 9). However, the fact that Mason was not called by either party and did not give evidence is simply a matter that the Magistrate was confronted with when it came to the task of assessing the evidence that was adduced. The only direction the Magistrate might have given herself (but, in my view, one so orthodox as to be unnecessary for an experienced judicial officer) is along the lines of when finding the facts the Magistrate was not to speculate about what evidence Mason might have given had he been called to give evidence.
Plainly, the Magistrate was aware of Mason’s absence from the trial and her Honour was critical of the police investigation insofar as it involved Mason. In my view, she could go no further than this in terms of directing herself on the prosecution failure to call Mason and its relevance to her Honour’s task.
As it happens, the lack of evidence from Mason did not trouble her Honour given the strength of the prosecution case through the witnesses it did call. Whilst Mason might have been material on questions of identification (although even this is speculative), the identification case against Roach was strong and, ultimately, has not been challenged on appeal. Mason’s relevance to the question of defensive purpose has already been set out at some length and, again, it can only be speculation as to anything he might have had to say on that topic. I am not satisfied that the Magistrate erred in any way in failing to direct herself adequately or at all on the prosecution’s failure to call the witness Mason.
Ground 6 – the Magistrate’s asserted failure to direct herself adequately about the inadequacy of the police investigation
The Magistrate directed herself at some length on difficulties and inadequacies she had perceived with respect to the police investigation. Her Honour was quite critical. Her Honour took this into account as part of her assessment and acceptance of the trial evidence in the critical respects. In my view, there was little else her Honour could do.
Again, her task was to review the evidence, make findings of fact and apply the law to those findings of fact. In this, the Magistrate was dependent on the evidence that the parties presented during the trial. To the extent that there were perceived to be difficulties with the prosecution case arising out of the absence of a witness (for example, Mason) or inadequacies in the police investigatory process, such were matters that upon coming to the attention of the Magistrate were to be taken into account when assessing whether or not her Honour was otherwise satisfied beyond reasonable doubt of the prosecution case. The Magistrate catalogued a number of asserted inadequacies in the police investigation but concluded, after some detailed analysis of the available evidence:
As far as these charges are concerned, the shortfalls in the investigation and the failure to call Mason and other crowd controllers as witnesses had not led to any miscarriage of justice … Marks’ grievance [against Mason for throwing a bottle] does not impact upon the strength of the prosecution case.
(Emphasis supplied)
There was no failure by the Magistrate to direct herself adequately about the inadequacy of the police investigation.
Grounds 7 and 8 – the asserted failure to find the element of causation with respect to West’s injuries to have been proved and (related to this) the asserted failure to direct adequately in respect of joint criminal enterprise
An essential element of the offence of aggravated assault causing harm, charged with respect to Roach’s punching of West to the face, is that the assault perpetrated, in fact, caused harm. The Magistrate found, to the effect, that West was punched in the head once by Roach. West was also punched by Marks and perhaps others. According to Lubajo, it was the second punch by Marks that caused West to fall unconscious to the ground. According to Lubajo, the man in the white shirt with maroon hoops, that is, Roach, also kicked West in the face although her Honour made no express finding to this effect. There may have been other physical contact with West but these are the only three contacts identified by the Magistrate. The Magistrate made the following findings material to this issue.[41]
(i)The injuries to West (earlier described as multiple fractures to his right lower eye orbit, the sinus broken in two places and bruising and a large cut across the side of the face) constituted “harm” for the purposes of subsection 20(4) of the Criminal Law Consolidation Act.
(ii)Hourigan provided confirmation that three male persons were involved in the attack on West (although the prosecution failed to prove the identity of the third assailant).
(iii)Roach and Marks were two of the three assailants who deviated off the footpath to enter the alcove and assaulted West.
(iv)The assault of West was aggravated because all assailants decided to deviate from the footpath into the alcove and the only reasonable inference is that they were involved in a joint enterprise and were complicit in each striking West on one occasion in quick succession.
(v)Roach and Marks were aggressors and cannot suggest they were being called upon to defend themselves.
(vi)Both Roach and Marks struck West with a fist and are jointly responsible for his injuries.
[41] Magistrate’s reasons at [42]-[54].
Counsel for Roach contended, inter alia, that the evidence was insufficient to establish that the single punch by Roach caused any or all of the physical injuries suffered by West and that these injuries might have been caused by some other person, presumably either Marks or the third identified assailant or both, found also to have been involved. Further, to the extent that the Magistrate relied on principles of joint criminal enterprise in this respect, her Honour did not properly or at all direct herself with respect to those principles.
During argument it was put to counsel for Roach that, independently of any proved causation of the injuries actually suffered by West, the punch by Roach caused harm given the nature of the definition of harm for these purposes, as provided for in section 21 of the Criminal Law Consolidation Act. In other words, it ought to be inferred that a single punch to the face in fact caused harm, if only “pain”.[42] Counsel submitted that was not the way in which the prosecution had elected to run its case and that the case had been presented on the basis that the harm caused to West, as relied on by the prosecution, was the physical injuries in fact suffered as have earlier been set out. Counsel submitted that the prosecution should be bound by the way it had conducted its case and obliged to demonstrate a causal nexus between the single punch by Roach and the harm specifically relied on by the prosecution.
[42] See earlier at fn 12.
If the former approach were open, there would be little doubt that causation of harm would have been made out; it would then be a matter for the Magistrate at the time of sentencing to make any necessary further findings as to the factual basis for sentencing, insofar as the extent or nature of the harm that was in fact caused was concerned. However, it is unnecessary for me to consider this issue further. I am satisfied that the Crown did prove its case with respect to causation of harm in the wider sense. Furthermore, I am satisfied that the Magistrate reasoned, appropriately, albeit again succinctly, to this effect. In this respect, I repeat and accept the written submission by the respondent which was in these terms.
A finding of joint criminal enterprise was clearly open; the three men (including Roach and Marks) who approached Hourigan, West and Lubajo in the alcove each decided to veer off the natural straight pathway; each hurried or ran from the designated footpath into the alcove area; there was no other reason or necessity for them to do so; and each of Roach and Marks were complicit in each striking West on one occasion in quick succession. These circumstances prove beyond reasonable doubt, as a matter of inference, that Roach and Marks had an instantaneous understanding or arrangement that amounted to an agreement that they would commit an assault on West in circumstances where they both assisted in carrying out that crime. In such a case of joint enterprise, it does not really matter which strike on West (or both) caused his injuries.
I would add to this that on her Honour’s findings there were in fact three assailants. And by parity of reasoning it would not matter which of the assailants in fact caused which (if any) injury. I am also satisfied, although her Honour did not expressly state this, that her Honour’s acceptance of Lubajo’s evidence included an acceptance that one of the three men (according to Lubajo, Roach) kicked West while he was on the ground.
In the circumstances where three men (even where one is unidentified and even were it to be the case that Marks’ appeal succeeded so that a second man remained unidentified) join in an assault on another person, such typically, although not necessarily always, will give rise to an orthodox situation of joint criminal enterprise. The Magistrate did not need to spell out to herself the detailed direction, as to the elements of a joint criminal enterprise, that ordinarily would be given to a jury. The finding that there was a concerted attack on West by three men was entirely open to her Honour upon her acceptance of the evidence of Hourigan and Lubajo. There was no other evidence, including from the CCTV vision, that would permit this Court, on appeal, to depart from her Honour’s acceptance of that evidence.[43]
I accept the respondent’s submission that the concerted nature of the attack was sufficient to support findings beyond reasonable doubt as to the aggravated nature (in company) of the offending and that each of the three participants was criminally responsible for all of the harm in fact suffered by West. I reject grounds 7 and 8.
Ground 9 – the asserted miscarriage of justice and unfair trial by virtue of the manner by which the prosecution case was conducted
Roach complains about the failure of the prosecution to call Mason and other persons near or in the alcove, in particular, the crowd controller, Michael, to give evidence.
The nature of the prosecution’s role and extent of its obligations with respect to the fundamental requirement of the criminal justice system in this country that an accused receives a fair trial according to law and, in particular, the circumscription of the prosecutorial discretion to call witnesses has been discussed extensively in a number of appellate decisions.[44] The principles relevant to a prosecutor’s decision whether or not to call a material witness have been conveniently summarised, largely by reference to a number of the authorities referred to in the previous footnote, by Stanley J in Corfield v Police.[45]
[44] See, for example, Richardson v The Queen [1974] HCA 19; (1974) 131 CRL 116, Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563, R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450, and, more recently, in this Court, see the extensive discussion and analysis of various decisions by Hinton J (with whose reasons Peek and Nicholson JJ agreed) in R v M, RS [2018] SASCFC 37.
[45] [2017] SASC 170 at [25].
Those principles are:
1.A prosecutor in deciding how the prosecution case will be presented and what evidence will be adduced, has the responsibility of ensuring that the prosecution case is presented with fairness to the accused.
2.In deciding whether to call a witness the prosecutor may be required to take into account many factors, including whether the evidence of a particular witness is essential to the unfolding of the prosecution case, whether the evidence is credible and truthful, and whether in the interests of justice it should be subject to cross-examination by the prosecution.
3.The prosecutor should decide in the particular case what are the relevant factors and in the light of those factors determine the course which will ensure a proper presentation of the prosecution case conformably with the dictates of fairness to the accused.
4.To avoid a miscarriage of justice, a prosecutor should call all available material witnesses. They include those whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eyewitnesses of any events which go to prove the elements of the crime and will include witnesses notwithstanding that they give accounts inconsistent with the prosecution case.
5.However, the prosecutor has a discretion not to call in the prosecution case an eyewitness if the prosecutor judges that there is sufficient reason for not calling the witness, as, for example, where the prosecutor concludes the witness is not reliable and trustworthy or is otherwise incapable of belief. This applies even to a witness who is essential to the unfolding of the narrative on which the prosecution is based.
6.A decision whether or not to call a person who can give material evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it. A mere suspicion about the unreliability of the evidence is insufficient.
7.In most cases where a prosecutor does not wish to lead evidence from a person able to give material evidence but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defendant and then, if necessary, re-examined.
8.Frequently, eyewitnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the prosecution. It is where it is apparent that the eyewitness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the prosecution not calling that witness will arise.
9.Overriding all the particular guidelines and formulations is the general obligation imposed upon a prosecutor to act fairly in the discharge of the function which he performs. That is the guiding and fundamental principle to be kept in mind as new and unusual situations emerge.
10.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
(Footnotes omitted)
The involvement of Mason at the time of the altercation in and near the alcove has already been outlined in quite some detail. An appreciation of the extent of his involvement is based on the CCTV vision and inferences to be drawn from that vision in conjunction with the oral evidence that was adduced on behalf of the prosecution. As far as the question of identification of Roach as one of West’s assailants is concerned, Mason’s evidence would be of no consequence given the admission by Roach. It is conceivable (and I put it no higher) that Mason may have been able to assist on the question of identification of Marks as being West’s second assailant and on the issue of self-defence concerning the attack on West. However, this is entirely speculative and loses any force once considered in the context of the information available to the prosecution concerning Mason.
Mason was arrested on the night and initially charged with the offence of affray. Ultimately, that charge was not proceeded with. However, Mason was interviewed by the police under caution and during the interview was advised that he would be charged with the offence of affray. A recording of this interview and a transcript by way of an aide memoire was made available on the appeal. Mason provided a description of what he had observed of the incident on the dance floor. As to the events concerning his friend, Hourigan, receiving first aid in the alcove. Mason said this.
As that was happening, a guy, a couple of guys walked around the corner. One with a ripped shirt and one with a black shirt and then from what I remember the two workers sorta everybody was yelling and then the two workers stepped in front of us … and I sorta remember seeing the manager getting hit and also the security guard getting attacked as well. I think one of them might have hit the floor from that point. And then, from then I remember seeing the guy in the black shirt sort of yelling at me and then to be honest all I remember is getting hit a couple of times. Um and then sort of just everybody either walked off or ran off down the street. And that’s what I remember from – happening.
Later in the interview Mason described how much alcohol he had been drinking that night and in answer to a question as to how he would assess his level of intoxication he said:
Um … I was at that point pretty intoxicated. But then things sort of kick in, you see your friend bleeding and you sorta just … .
When asked if what he had told the police to that point in the interview was all that he could remember, he answered “yes”. Mason was unable to agree that he picked up something and threw it at another patron or that he had been involved in some punching himself whilst on the dance floor. It was put to him by the police officer that he had used unlawful violence towards another person by picking up something and throwing it at them and punching to which Mason replied “To be honest, I have no recollection of that”. He gave as a reason for this that he had been drinking.
Mason said nothing during the interview that would lend any support to the defence of Roach or Marks concerning the incident involving either West or Lubajo in or near the alcove. In particular, he told the police nothing that might be of assistance to either defence concerning the issue of defensive purpose or identification of any of the assailants.[46]
[46] But cf; his reference in the extract set out earlier to a ripped shirt and a black shirt that would have been of assistance to the prosecution case on identification.
According to the affidavit evidence received on the appeal, the legal representatives for both Roach and Marks were provided with the police apprehension report concerning Mason prior to trial. The police apprehension report contained the following observations.
Subsequent viewing of CCTV of the incident revealed that the accused [Mason] had a significant involvement during a subsequent, separate altercation whilst on the footpath outside the Tavern.
. . . .
Closed circuit television (CCTV) footage of the incident … reveals the accused [Mason] standing on the footpath outside the Alma Tavern. The footage clearly shows the accused throw an object at another male patron before becoming involved in a fight with this male, throwing several punches with both of his arms.
It was also recorded in the police apprehension report that when informed by the police of what they had observed on the CCTV, the accused, Mason, stated that he could not remember throwing anything at any other patron or otherwise.
Prior to trial, the prosecution also advised the defence that there was no police incident report or investigation diary relevant to Mason.
Late in the prosecution case and after the prosecution police witnesses Tonkin and Bulcher had been cross-examined concerning Mason, a conversation occurred at the bar table between counsel for Roach and prosecuting counsel. Counsel for Roach said words to the effect of “are you calling Mason?” to which the prosecutor replied with words to the effect of “George, why would I do that?”. However, at no time prior to the presentation of closing submissions at the trial did counsel for Roach or Marks:
(i)disclose to the prosecutor that Mason would be an important witness for the defence;
(ii)ask the prosecutor to call Mason as a witness or to make him available for cross-examination; or
(iii)seek from the Magistrate a direction that the prosecution consider or reconsider calling Mason as a prosecution witness or otherwise explain why Mason was not being presented.
On appeal, counsel for Roach maintained that the evidence of Mason was “crucial” to the Roach defence and, in particular, to the issue of defensive purpose. However, as already observed, counsel did not cross-examine any of the prosecution eyewitnesses in an attempt to lay a foundation that would permit defensive purpose to be raised on the evidence. Further, on the information known to the prosecution concerning Mason and provided to the defence, there was no reason to think Mason would have provided any assistance to the defence in this respect.
To suggest that the cross-examination of Mason might have given rise to evidence in support of a defensive purpose is a matter of speculation only.[47] In this respect, the observations of the plurality in Australian Securities and Investments Commission v Hellicar,[48] mutatis mutandis, are apposite.
A conclusion that it was “unfair” for ASIC not to have called Mr Robb as its witness necessarily proceeded from an assumption that ASIC’s conduct denied the defendants in the proceedings some advantage or subjected them to some disadvantage. That advantage or disadvantage was never identified. General reference was made to the defendants being denied the opportunity to cross-examine Mr Robb. But to what effect? No reason is advanced to suppose that Mr Robb would have sworn to a positive recollection … .
[47] The situation is quite different from that in R v M, RS [2018] SASCFC 37 where the evidence likely to have been given by the missing witness was known and an assessment of its potential materiality in the context of a jury trial was possible.
[48] [2012] HCA 17; (2012) 247 CLR 345 at [163] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the circumstances that have been outlined, including the fact that no request was made for Mason to be called or presented for cross-examination, I am not satisfied that the prosecutor erred in the exercise of her prosecutorial discretion in not calling Mason.
In any event, the defence bears the evidentiary onus of establishing a miscarriage of justice even if there had been a failure by the prosecutor in this respect.[49] As has earlier been explained, there is nothing in the evidence that was adduced at trial from which an inference could be drawn that might serve to raise the question of self-defence and nothing in Mason’s record of interview with the police that might have assisted in this respect. As such, the question of whether or not there has been a miscarriage of justice becomes speculative at best. It cannot be said that the omission to call Mason deprived Roach of a chance of acquittal on the basis of defensive purpose that was fairly open or would have been fairly open had Mason been called.
[49] Geitonia Pty Ltd v Inner West Council [2016] NSWCCA 186 at [82] (Price J) and [164] (Adams J).
At one point, counsel for Roach submitted that the Magistrate should have given herself a Jones v Dunkel[50] direction concerning the absence of Mason. However, as a general proposition, it will be inappropriate to draw such an inference against either the prosecution or the defence in a criminal matter.[51] In any event, for reasons already set out there is nothing in this matter that would suggest that such a direction was appropriate particularly given that the prosecution had called three eyewitnesses directly involved in the altercation and no request was made for Mason to be called as a witness.
[50] [1959] HCA 8; (1959) 101 CLR 298.
[51] Police v Kyriacou [2009] SASC 66; (2009) 103 SASR 243 at [11]-[14] (Gray J), [62] (Sulan J) and [86] (Kourakis J).
Further, a Jones v Dunkel inference could not have assisted the defence. Such an inference would only have been to the effect that Mason’s evidence would not have assisted the prosecution case and that the trier of fact might, by virtue of the absence of the witness concerned, more readily draw an inference in favour of the other party that is available on the evidence that is before the Court. In this case there was simply no evidence from which an inference in favour of Roach concerning defensive purpose could arise and a Jones v Dunkel direction would have added nothing to that. The failure to call a witness does not diminish the cogency of the evidence that is in fact led at trial.[52]
[52] Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [9], [153]-[155] and [164]-[170] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The defence criticisms of the prosecution for not calling the crowd controller called Michael or other persons who may have been in the vicinity at the time West was assaulted carry less weight than those concerning the failure to call Mason. Again, no relevant request or application was made or cross-examination undertaken by defence counsel. There is nothing in the evidence to suggest that other witnesses not called would have been of assistance to the defence. In Police v Kyriacou,[53] Gray J (with whose reasons Kourakis J agreed) said this.
In the present proceeding the prosecution presented the victim of the assault and two eyewitnesses as witnesses for the prosecution. In my view the prosecution in the circumstances of this trial, a summary proceeding, was under no obligation to call every person present in the vicinity who may give material evidence on an issue in the trial. This is particularly so in circumstances where a number of eyewitnesses were called and gave evidence. There was no request by the defence that the absent witnesses be called as part of the prosecution case. There was no request by the defence that the absent witnesses be presented for cross-examination. There was no application by the defence that the magistrate invite the prosecution to consider calling the absent witnesses. There was no material proffered either at trial or at the appeal to suggest that the absent witnesses could give evidence that would resolve any contentious issues arising at the trial.
These comments are apposite to the present circumstances. No miscarriage of justice has been demonstrated.
[53] [2009] SASC 66; (2009) 103 SASR 243 at [18].
The High Court in Craig v The Queen,[68] has more recently considered the circumstances in which a miscarriage of justice might be established as a result of counsel giving incorrect advice material to an accused’s decision whether or not to give evidence. In Craig, the court[69] made the following observations of general application.
The appellant’s complaint is with the application of an objective test drawn from the judgments in TKWJ v The Queen to the Court of Appeal’s determination that the incorrect advice did not occasion a miscarriage of justice. As the appellant observes, the analysis in TKWJ is concerned with challenges to forensic judgments that are within counsel's remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.
By contrast, the appellant points out that his challenge is not to a forensic choice made by counsel but to the circumstance that counsel’s incorrect advice was material to a forensic choice which was reserved for him to make personally. The appellant’s argument is posited on the proposition that the accused’s informed choice to give evidence is an essential condition of a fair trial according to law. At its widest, the argument is that any material error in legal advice on the accused’s choice to give evidence denies that a choice not to give evidence is an informed choice and for that reason occasions a miscarriage of justice. The appellate court, on this analysis, does not stay to consider the causal relation between the incorrect advice and the conduct of the trial or its outcome.
(Footnotes omitted)
[68] [2018] HCA 13.
[69] Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ at [23]-[24].
Marks does not contend that he was unaware of the choice whether or not to give evidence by reason of counsel having failed to advise him in this respect. Such an “extreme” circumstance may give rise to a miscarriage of justice because a fair trial requires that the accused be aware of the entitlement to give evidence or not to give evidence and whether or not either choice might be considered wise or unwise in the circumstances. This is not Marks’ case and as such the circumstances discussed in R v Kennedy[70] can be put to one side. In that case, counsel failed to advise of the existence of the choice. The accused had a pre-existing but erroneous belief that he was obliged to give evidence whereas had he been aware of the choice he would have remained silent. As was the case in the present matter, the accused’s evidence was not accepted, was strongly criticised and turned out to be quite disadvantageous to the accused.
[70] [2017] SASCFC 170.
On the question of giving evidence, Marks’ case is that he was denied an informed choice as to whether or not to give evidence. He maintains that he was not properly advised of the advantages and disadvantages and the risks inherent in his giving evidence and being cross-examined on inconsistencies with his police record of interview.[71]
[71] Marks also complains that he was cross-examined on consistencies between the evidence he gave in chief and his counsel’s cross-examination of Lubajo. However, this is not a matter that counsel could previously have advised about. This is a matter where, if any complaint is to be sustained, counsel erred in putting his instructions by way of cross-examination of Lubajo.
Where the contention is that there has not been an informed choice, the analysis of whether or not there has been a miscarriage of justice “looks to the nature and effect of the incorrect legal advice on the accused’s decision”.[72] In such a case, it is necessary that an appellate court be satisfied that, but for the incorrect advice, the accused would have made a different choice.[73]
[72] Craig v The Queen [2018] HCA 13 at [33].
[73] Craig v The Queen [2018] HCA 13 at [37].
A number of Marks’ contentions as to inadequate advice or actions by trial counsel are such as to properly be characterised as forensic judgments within counsel’s remit. In R v Birks,[74] Gleeson CJ (with whom McInerney J agreed) said this.
In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information would be put before a tribunal of fact, and the tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case …
After quoting from relevant authority, Gleeson CJ went on to observe.[75]
There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.
It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.
[74] (1990) 19 NSWLR 677 at 683.
[75] R v Birks (1990) 19 NSWLR 677 at 684.
Generally, an accused will be bound by counsel’s forensic choices including those made without or contrary to instructions and it is only where the appellate court is persuaded that no rational forensic justification can be objectively discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.[76]
[76] See, for example, Craig v The Queen [2018] HCA 13 at [23] and [33], TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [16]-[17] (Gleeson CJ), [27] (Gaudron J with whose reasons Gummow J agreed), [95] (McHugh J), [107]-[108] (Hayne J with whose reasons Gummow J agreed), R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ with whom McInerney J agreed), R v Kennedy [2017] SASCFC 170 at [60]-[61] (The Court).
Where there is no rational forensic justification, the question of whether or not a miscarriage of justice has, in fact, occurred will depend on an analysis directed to whether or not there is a significant possibility, fairly open, that counsel’s impugned conduct affected the outcome.[77]
[77] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [26] and [49] (Gaudron J with whom Gummow J agreed), [52] and [79] (McHugh J), [103]-[104] and [108] (Hayne J with whose reasons Gummow J agreed), Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [18] (Hayne J with whose reasons McHugh J agreed), [99] (Callinan and Heydon JJ), Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [24] (Gummow and Hayne JJ) and [158] (Callinan and Heydon JJ).
I turn now to consider the particular complaints relied on by Marks under appeal ground 2. I can proceed relatively briefly in this section.
Whilst it is to be accepted, on the basis of Marks’ affidavit evidence, that counsel at trial did not prepare for and present the case in an ideal manner or in a manner that other counsel might have preferred, I am not satisfied that any of the complaints made in this respect either standing alone or in combination have led to a miscarriage of justice. In this respect, I have read and considered the trial transcript, viewed the CCTV vision and have taken into consideration the oral and written submissions of all parties provided at trial and on appeal.
Marks complains that his counsel did not cross-examine Hourigan and did not put Marks’ case to either witness (ground 2.1). The question of which witnesses to cross-examine and what questions to ask a witness in cross-examination are quintessentially matters within counsel’s remit. Different counsel will inevitably make different decisions in these respects. As it happens, none of the three defence counsel at trial cross-examined Hourigan and the cross-examination by other counsel of West was quite limited. This is a reflection by the limited assistance those witnesses were able to give during examination in chief by way of eyewitness accounts of the events said to involve Roach or Marks. Neither had identified Marks during evidence in chief and, I agree with the respondent’s submission that a decision to cross-examine may well have risked adducing evidence corroborating Lubajo’s evidence of the involvement of Marks. The decision not to cross-examine Hourigan and West was a forensic decision of counsel for which there was a rational justification.
In any event, there is nothing in the evidence to suggest a significant possibility or a chance fairly open that any cross-examination, had it been undertaken, would have had a material effect on the Magistrate’s findings.
It is also contended by Marks that Hourigan and West (and other witnesses) should have been shown and cross-examined on the CCTV vision. As earlier indicated, I have examined the CCTV vision carefully and have set out in my reasons concerning the Roach appeal the material matters that can be discerned or inferred from the CCTV vision. These matters are entirely consistent with or at least not inconsistent with the prosecution case against both Roach and Marks. The CCTV vision lends no assistance to (although is not inconsistent with) the defence cases. Having had the benefit of viewing the CCTV vision with the assistance of counsel for all parties and the concessions made as to who can be identified in that vision, it is difficult to see how either West or Hourigan would have been able to further assist by viewing and commenting on the CCTV vision.
In any event, the Magistrate expressly rejected the account given by Marks and made her findings of fact largely on the basis of the oral testimony that she accepted from the prosecution witnesses and, in particular, insofar as Marks is concerned, from Lubajo. Further, Lubajo was cross-examined by counsel for Terzievski by reference to a version of events largely consistent with Marks’ case. No material concession was adduced.
As was the case with Roach, the Magistrate’s acceptance of the critical aspects of Lubajo’s evidence concerning Marks has not been shown to be inconsistent with incontrovertible facts or uncontested testimony or to be contrary to compelling inferences from other established facts or otherwise to be glaringly improbable.[78] There is nothing in the CCTV vision of this character.
[78] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).
Marks has also complained about his counsel’s failure to obtain accurate instructions and, in particular, that this caused a version of events to be put to Lubajo in cross-examination that did not accord with the account given by Marks in evidence (ground 2.2). Marks has deposed to aspects of the Lubajo cross-examination which Marks says were not in accordance with his instructions. In my view, these even taken in combination, are relatively minor in the overall scheme of the defence as presented on behalf of Marks. The respondent accepts that trial counsel may have erred in this respect and that there were some inaccuracies in the version of events put in cross-examination to Lubajo. However, the Magistrate’s rejection of Marks’ own evidence had a much more detailed and reasoned basis than simply the fact of these relatively minor inconsistencies put to Lubajo. Her Honour was satisfied that there were glaring inconsistencies and apparent reconstructions by Marks particularly with respect to his police record of interview in comparison with his evidence at trial. I am not satisfied that any more accurate cross-examination of Lubajo, had it taken place, would have given rise to a significant possibility, fairly open, that the outcome of the trial would have been different.
Marks has complained that counsel did not advise him adequately on the question of whether or not it would be in his best interests to give evidence in his own defence (ground 2.3). I have earlier set out these various criticisms. There is no doubt, that the rejection by the Magistrate of Marks’ evidence was important to the ultimate outcome. Marks has pointed to a number of considerations which, had he received further advice as to possible implications these considerations may have had for the acceptance or rejection of his evidence, might have caused him to decide not to give evidence. However, Marks has said on oath that he was more than happy at the time to give evidence and, importantly, that he cannot now say whether or not he would have given evidence had he been properly or further advised.
In the circumstances, it is unnecessary to form a concluded view as to whether counsel failed in his obligations with respect to the matters complained about. It cannot be said that any such failure would have led to a miscarriage of justice. This Court is in no position to know whether evidence would have been given in any event or, if so, what form the evidence would have taken and, in any event, how that evidence (if reformulated) would have been received by the Magistrate. I agree with the submission of the respondent that the situation deposed to by Marks, consistently with the reasoning in Craig,[79] means that Marks has failed to establish that but for any such inadequate advice he would not have given evidence.
[79] Craig v The Queen [2018] HCA 13 at [34]-[37].
Marks has deposed to a complaint that counsel failed to adduce evidence in chief from him about the fear he felt at the time of the incident with Lubajo (not a particular of ground 2). In this respect, I note that Marks has not set out in his affidavit evidence how he felt at the time or why he reacted in the way he says he reacted, that is, Marks has not provided the Court on appeal with the evidence he would have given had he been allowed the opportunity. Nevertheless, even if the nature of that evidence can be inferred, any lost opportunity to provide that evidence will not, in the circumstances, have given rise to a miscarriage of justice. This is because the Magistrate accepted Lubajo’s evidence that Marks was the aggressor and that Lubajo had only ever, himself, acted in self-defence. It is highly unlikely that evidence given by Marks to the effect that he felt fearful and felt obliged to react defensively would have had any impact on this finding. This finding having been made, the evidence that Marks now says he was deprived of giving would not have advanced his defence.
Marks further complains that his counsel did not make sufficient efforts or efforts at all to ensure that other witnesses including, in particular, Mason, were made available by the prosecution (ground 1). I have already dealt with this matter at some length both in the context of the Roach appeal and under appeal ground 1 for the Marks appeal. I agree with the respondent’s submission that the fact that none of three counsel for the defendants made any request or application with respect to the non-attendance of witnesses suggests that there was a rational forensic justification for not doing so. In addition, as I have earlier explained, there is no evidentiary basis to infer that Mason or any other person would likely have given evidence to advance Marks’ defence case. In the circumstances where the absence of Mason and other witnesses from the trial has not been demonstrated to have caused a miscarriage of justice (see earlier). It cannot be said that any failure by Marks’ counsel to take steps to have these witnesses attend (on the assumption that this was not a rational forensic decision) could have given rise to a miscarriage of justice.
Marks has complained about the failure of his counsel to arrange for medical evidence to corroborate Marks’ evidence to the effect that he was suffering from a significant leg condition and was unable to run in the manner described in the evidence (ground 2.8). No evidence of that nature has been presented on appeal. For this reason, but in any event given the relatively minor significance of the issue, it has not been established that any such failure by counsel would have led to a miscarriage of justice. I am not satisfied that the adduction of such evidence had it been made available would have given rise to a significant possibility fairly open that the outcome of the trial with respect to count 1 (the Lubajo assault) would have been different.
Marks complains about counsel’s unjustified concessions concerning the CCTV vision and his failure to recognise the importance of and address the issues raised by the CCTV vision (ground 2.4 and part of ground 2.6). I have already dealt with the limited, if any, probative value of the CCTV vision when considered in the context of the issues that arose at trial with respect to both Roach and Marks. Given my earlier conclusions in this respect and the limited, if any, scope for the CCTV vision to undermine the Magistrate’s acceptance of the prosecution witnesses (in particular, insofar as Marks is concerned, Lubajo) I am not satisfied that any failures by counsel with respect to the CCTV vision has led to a miscarriage of justice.
Grounds 2.5 (failure to apply for an adjournment until the matter fully prepared), 2.6 (failure to adequately address the court) and 2.7 (making of improper concessions) all concern judgments made by counsel and falling within his remit. It has not been established that any of the decisions made or not made by counsel in these respects were forensic decisions without any rational basis. As such, Marks should be held to counsel’s decisions. In any event, no miscarriage of justice arising from the manner by which the trial was conducted in each of these respects has been demonstrated.
Conclusion
None of the grounds of appeal raised by either Roach or Marks has been made out. I dismiss both appeals. Whilst neither appellant has raised a ground of appeal in the nature of the convictions being unsafe or unreasonable having regard to the evidence, on my review of the evidence and of the Magistrate’s reasons, I have no misgivings about the Magistrate’s findings.
- AGLC
- Marks v Police; Roach v Police [2019] SASC 50
- Case
- [2019] SASC 50
- Decision Date
CaseChat Overview and Summary
The court first examined the adequacy of the Magistrate's reasons, applying principles from previous cases. It was established that the Magistrate was not required to provide exhaustive explanations but needed to identify critical factual issues, relevant evidence, and the reasoning process. The court found that the Magistrate's reasons were sufficient and that there was no miscarriage of justice in the manner the trial was conducted. The court dismissed several grounds of appeal related to counsel's decisions, as these fell within the ambit of counsel's professional discretion.
Ultimately, the court concluded that none of the grounds of appeal were substantiated. Both appeals were dismissed, and the convictions were affirmed as safe and reasonable based on the evidence presented. The CCTV footage, while not conclusive, did not contradict the prosecution's case, and the Magistrate's reliance on the testimony of key witnesses was justified. The court held that the CCTV footage provided no direct support for or against the claims of self-defence or the additional altercations that occurred off-camera.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
The CCTV vision is consistent with a finding that one punch was delivered to West by, as now admitted, Roach. It does not provide direct support for a second punch to or any kicking of West but is not inconsistent with either. Nor is there any direct support for or against the admitted altercation between Marks and Lubajo which must have happened off camera. As such, there is no direct support for or against Marks’ claim of self-defence. The vision as recorded by the CCTV is not sufficient, of itself, to prove the prosecution case against Roach or its case against Marks beyond reasonable doubt. However, it is not inconsistent with either case. The prosecution cases depended on the Magistrate accepting the evidence of Hourigan, West and Lubajo and, in particular, the latter.Consideration of the Roach appeal Roach’s appeal grounds need to be considered in the context of the manner by which the Roach defence was conducted at trial and his concession made on appeal. The primary defence at trial was that Roach did not hit West. Lubajo was directly cross-examined by counsel for Roach[17] to this effect. Lubajo had earlier given evidence that he had seen a person hit Hourigan on the dance floor and that he saw that same man punch West in the alcove. The cross-examination on this topic proceeded as follows.QAs I understand your evidence you say that Mr West was struck in the face by that person with his right fist.AYes.QI put it to you that didn’t happen. I suggest that’s wrong what you say about that.AI say no.QI suggest you’re making that up … you’re making up the fact that the same man hit Mr West.AThat is the same man that hit Mr West – did see it with my eyes.Counsel for Roach did not cross-examine Lubajo in an attempt to lay a foundation for a submission of defensive purpose. Nor did counsel cross-examine West or Hourigan to this effect.[17] Who was also counsel on appeal. It is to be inferred that counsel’s instructions at least to this point were to the effect that Roach was not the person who hit West. The written submissions provided to the Magistrate by counsel at the end of the trial substantially comprised a discussion of general legal principles under the headings The Charges, Cause Harm, Self Defence and Defence of Another, Inadequate Police Investigation and Prosecution Failure to Call Witnesses. There was a modest reference to the evidence with respect to Cause Harm, Prior Inconsistent Statements and Prosecution Failure to Call Witnesses. The section on Self Defence and Defence of Another consisted of five and a half pages single spaced devoted exclusively to extracts from other cases dealing with other facts. There is no mention of any evidence that might be said to have raised for consideration (and requiring the prosecution to exclude beyond reasonable doubt) a defensive purpose on behalf of Roach. In his oral submissions counsel argued that there was no evidence, of who struck [West] such as to cause the injuries that the prosecution allege, the harm which are the serious injuries to him.This was counsel’s primary submission. In making it in these terms, counsel elided two critical issues; first, had it been proved that Roach hit West at all and second, if so, had it been proved that Roach is legally responsible for the serious injuries suffered by West. Counsel then submitted that if the Magistrate were not to be so satisfied, her Honour should move to:the lesser alternative charge of basic assault for the one punch and … has to be satisfied that [Roach] is guilty of that in that he didn’t act defensively.(Emphasis added)