Martin v Visser
[2000] TASSC 173
•20 December 2000
[2000] TASSC 173
CITATION: Martin v Visser [2000] TASSC 173
PARTIES: MARTIN, Stewart Martin
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 23/2000
DELIVERED ON: 20 December 2000
DELIVERED AT: Launceston
HEARING DATE/S: 9 October 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - The hearing - Generally - Whether failure of prosecutor to call witnesses resulted in conviction being unsafe and unsatisfactory - Whether adverse inference should have been drawn - Need for reasons to be given by magistrate.
Jones v Dunkel (1959) 101 CLR 298; Burston v Brooks A91/1996; Richardson v R (1974) 131 CLR 116; R v Apostolides (1984) 154 CLR 563, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: P Sherriff
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2000] TASSC 173
Number of paragraphs: 29
Serial No 173/2000
File No LCA 23/2000
STEWART ASHLEY MARTIN v SGT CLAAS VISSER
REASONS FOR JUDGMENT CRAWFORD J
20 December 2000
Following a defended hearing the applicant was convicted of one count of disorderly conduct, contrary to the Police Offences Act 1935, s13(1)(c). The section made it an offence for a person to engage in disorderly conduct in a public place. Particulars of the charge in the complaint were that on 9 April 2000 in St John Street, a public place at Launceston, he engaged in disorderly conduct by yelling, waving his arms about and grabbing hold of a police officer. He has applied to review the finding that the complaint was proved and the conviction. There are three grounds of the motion to review:
1That the magistrate erred in law by failing to give sufficient reasons.
2That the magistrate erred in law and the finding that the complaint was proved was unsafe and unsatisfactory because he failed to draw an adverse inference against the complainant, as a consequence of the complainant's unexplained failure to call the manager and other staff members of the St James Hotel.
3That the finding that the complaint was proved was unsafe and unsatisfactory.
The prosecution called two witnesses, Detective Constable Maher and Detective Constable Elmer. The defence called two witnesses, the applicant and his brother, Richard Martin. I will relate some of what those witnesses said.
Detective Constable Maher said that he and Detective Constable Elmer were on duty in York Street and came to the St James Hotel, from which the applicant's brother had been ejected. Outside the hotel were the applicant, his brother, the hotel manager, two hotel bouncers and other people. Although it appeared that the brother had been ejected, both he and the applicant were attempting to gain entry back into the hotel. The brother was extremely intoxicated. There was a commotion, which was largely caused by the brother, but the applicant was also causing a problem by trying to re-enter with his brother. The bouncers told him that his brother was not welcome. Constable Maher knew the hotel manager, David Manshanden, who told him that they were not allowed in. Constable Maher did not know the two bouncers.
At an early point of time, the police officers identified themselves to the applicant. It was Constable Maher's evidence that he spoke to the applicant and asked him to move along the street and away from the hotel, and to take his brother with him. The officer could see that they were causing problems for the hotel staff and was of the view that further problems could be caused if they were allowed to remain there. The applicant responded by saying that he was studying law and he did not have to do anything. He was yelling and waving his arms about. A number of patrons of the hotel had come out onto the street to observe what was going on. Constable Maher told the applicant that he would be arrested if he did not move on and cease his behaviour.
Eventually the applicant and his brother moved along the footpath towards St John Street. The two police officers followed behind them and told them to keep moving a number of times. From time to time the applicant and his brother stopped and turned around. The applicant's brother was staggering around as he walked up the street. It was a distance of about 20 metres to the corner and they then proceeded around the corner into St John Street. Constable Maher was not sure but thought that the applicant rounded the corner ahead of his brother, and he was not sure when the brother went round. However, he was positive that the brother did proceed round the corner at some stage. Constable Maher denied having hold of the applicant by the wrist and that he had one hand on the applicant's chest, pushing him along the street and around the corner. He said that the applicant walked in front of the officers, taking some steps forward and then turning around to face them. There was no physical contact until in St John Street, when the applicant grabbed hold of the top of the officer's shirt with his hand. Constable Maher was unable to say where Constable Elmer and the brother were at that point of time. He said that he took hold of the applicant and called out to Constable Elmer to assist him, who responded quickly. The applicant was told that he was under arrest for disorderly conduct and he was handcuffed. By that point of time, there were quite a number of people who had come out of the hotel, and there were other police officers also present in St John Street. Other people were arrested, but not the brother. Constable Maher thought that someone tried to intervene in the arrest of the applicant, but he did not think that it was the brother. The applicant was taken to police headquarters where he was charged and bailed. Constable Maher had not subsequently spoken to the manager of the hotel, nor to the bouncers. They had not been asked whether they would be prepared to give evidence.
Evidence was given by Detective Constable Elmer that he and Constable Maher came across the applicant and his intoxicated brother at the front of the hotel. He said that both of them were attempting to enter the hotel and causing problems for the security staff, who were telling them that they could not come back in. The brothers were arguing that they wanted to do so. The police officers identified themselves and asked the two men to leave the front of the hotel and move on. At that point the applicant began yelling and waving his arms about. He continued yelling, which caused patrons to come out of the hotel onto the street. He was saying that they did not have to move on and used expressions like "this is bullshit", waving his arms around and "just generally carrying on".
The brothers started to move off up York Street and round the corner into St John Street. Constable Elmer said that as they proceeded up York Street, they were turning around and the applicant continued carrying on, yelling out such things as "we don't have to go anywhere", "I am studying law" and "this is rubbish". Initially he was doing so when within sight of the hotel, but they moved out of the sight of the hotel when they rounded the corner into St John Street. It was Constable Elmer's recollection that both the applicant and his brother walked round the corner with the two officers only a few metres behind, but he had no further recollection of seeing the brother again until a much later point of time.
Constable Elmer said that in St John Street his attention was diverted by a group of people who had come out of the hotel. They were very vocal and had followed them round the corner into St John Street where he was dealing with them. He glanced round and saw the applicant grab hold of the front of Constable Maher's shirt. He then went to assist Constable Maher, at which time the applicant was told he was under arrest for disorderly conduct and he was handcuffed. Other persons who had left the hotel then became involved, but the detail of the way in which they did so was not asked of Constable Elmer.
The applicant's evidence was that he had consumed only two beers throughout the evening and was not affected by alcohol, but his brother was clearly intoxicated. They were attending a birthday party in a function room at the hotel. Because of the way his brother was acting, security staff requested the brother to leave the premises. The brother was not happy about that and the applicant said that he urged him to leave. The brother was escorted out by one of the security staff. Outside the hotel his brother "was quite vocal towards the security guard who had asked him to leave and I was trying to calm him down". The applicant denied trying to go back into the hotel and said that he was waiting outside for his brother's friends to leave the hotel and join them outside. It was his evidence that although his brother was clearly agitated about being asked to leave, he was not trying to get back inside either. The applicant's evidence was that he was between his brother and the security guard, trying to calm things down and was not himself being loud.
It was his evidence that the two police officers then approached and identified themselves. They said that if he and his brother did not leave the area they would be arrested for loitering and he responded that he did not think that they were loitering. Constable Maher asserted that they were and he in turn responded that they were waiting for friends to come out of the hotel to accompany his brother home. Constable Maher reasserted they were loitering. The applicant denied that he was loud or that he was waving his arms about. However, his brother became quite agitated and vocal, saying that the officers had no right to be doing what they were, emphasising what he was saying by pointing his finger towards the officers. Constable Maher grabbed his brother by the finger and told him to stop pointing at him, whereupon the applicant told the officer to let go of his brother's finger and that the officer had committed an assault. Constable Maher then poked his brother in the chest several times asking whether, each time he did it, it was an assault, and the applicant told him that he believed it was. He then asked Constable Maher for his badge number, and Constable Maher responded that he did not have to give it to him. The officers then turned their attention to the applicant and away from his brother. The applicant accepted that he may have told Constable Maher in the street that he was studying law, because he was in fact doing so.
The applicant's evidence continued. Constable Maher told them to leave and Constable Maher grabbed him by the lower arm or wrist, put his other hand on the applicant's chest, and pushed him "slightly" up the street. The applicant therefore walked backwards up the street to the corner about 40 to 50 metres away and then round into St John Street. He said it would not be right to describe Constable Maher as shoving him, but the officer was restraining one of his arms and had his other hand on his chest. To the best of the applicant's knowledge, his brother did not leave the immediate vicinity of the hotel while this was going on.
The arrest came about, according to the applicant's evidence, when in St John Street Constable Elmer asked "are we going to take this fellow away", and Constable Maher said "yes, we'll do him for disorderly conduct". He was then arrested and handcuffed. The applicant denied the officers' assertions that he grabbed hold of the front of Constable Maher's shirt.
The applicant agreed that a group of people had left the public bar and that in St John Street there was a large group of people making a disturbance on the other side of the road, after he had been arrested. However, he said that there was no disturbance in the immediate vicinity while he was being forced to move backwards on the footpath and while he was being arrested.
Since the incident, the applicant had been back to the hotel on two occasions in an attempt to speak to a security guard, with a view to asking him to give evidence, but he had been unsuccessful in ascertaining the identity of the guard.
In his evidence, the applicant's brother, Richard Martin, accepted that he was affected by alcohol and was escorted outside by security staff, having been asked to leave the hotel. He said that once outside he was hassling a bouncer, because he did not want to leave, and the applicant was trying to settle him down. Richard Martin was saying that he wanted to go back inside and he accepted in evidence that he was "being a disturbance basically". The two police officers then walked up and identified themselves and told Richard Martin to move on and that he was loitering. The applicant asserted that they were not loitering. Richard Martin said something else and pointed at them and one of the officers grabbed hold of his finger and told him not to point. The applicant told the officer that he was not allowed to grab or touch people for no reason, and that what the officer had done was an assault. The officer then poked Richard Martin asking "so every time I do this, that's an assault?" The applicant said "yes".
It was Richard Martin's evidence that the officer then grabbed hold of the applicant by his arm and the applicant backed off and walked away up the street and around the corner. The officers were aggressive saying "go" and "just get out of here, leave, you're loitering". In cross-examination Richard Martin was asked whether the applicant was making a bit of noise and he responded, unconvincingly I think, "well I don't know, like" and on being pressed said "like I said, there was confusion, there wasn't just us three, there was a group of people out the front and yeah". He accepted that his memory was not altogether clear about some things, particularly concerning what was said. He did not see his brother arrested in St John Street because he had not rounded the corner himself.
In cross-examination, Richard Martin was asked why it was, if his brother had done nothing wrong but was being pushed away and out of sight by a police officer, that it took him one or two minutes before he went round the corner himself. His answer was:
"Oh I don't know, as I say I had, had a bit to drink and there was other stuff going on, I don't know, there was confusion and it was only a short distance from there to the corner and yeah."
He agreed that he was not concerned about the fact that his brother was pushed up York Street and round into St John Street. He was questioned as to whether it did not concern him that a police officer was doing something which he thought was unjust and he responded:
"Well I'm not sure what the other officer was doing, I might have been talking to him, like I say I'm patchy because like I was pretty pissed, that's why I got kicked out originally."
When asked whether he was in a hurry to get round the corner he said that he did not know and could not remember.
At the conclusion of the evidence, counsel for the applicant submitted to the learned magistrate that an adverse inference should be drawn against the prosecution because of the failure of the prosecutor to call as witnesses the hotel manager and the two bouncers. Clearly the learned magistrate was unimpressed by the submission. He told counsel that "I don't know that I'm with you on that one" and that "I think that's making a bit much of it really, to suggest that people like that should have been called." His Worship told the prosecutor that he did not need to hear him in response, and reserved his decision until the following week, when he gave his reasons for finding the complaint proved. In the course of those reasons he did not explain why he rejected the submission that an adverse inference should be drawn against the prosecution arising out of the failure to call the manager and the bouncers.
In the course of his reasons the learned magistrate mentioned that the defence case involved an assertion that the applicant and his brother were simply waiting outside the hotel for friends of the younger brother to come out and to accompany the younger brother home, whereas the prosecution case was that they were demanding to be let back in and were making things difficult for the security personnel, who were refusing readmission to both the applicant and his brother. His Worship briefly summarised the prosecution witnesses' versions of events and then said:
"The defence say that it did not happen like that and that there was no grabbing of the officer's shirt. The defendant says he was taken hold of and was pushed backwards up the street without his younger brother accompanying him. His younger brother says that he did not accompany the defendant, but he was unable to say why it was that he didn't accompany him, even thought the defendant on the defence account had been removed when he had done nothing wrong. The younger brother was clearly drunk and, indeed, acknowledged that he could not remember what exactly was said. Even so, he was prepared to assert that certain things were said.
His testimony, I view, quite frankly as debased currency. It makes no sense that police would risk inflaming what appeared to them to be a difficult situation and possibly make it worse by taunting the defendant in the manner alleged - that is, by assaulting his younger brother in the way it was claimed. More over, by assaulting him in front of a growing crowd of patrons whom the police say were attracted outside by the defendant's behaviour, that would seem to me to make no sense. Nor does it make sense that the police would move only the defendant off and leave his drunken brother behind to continue trying to re-enter the hotel. Nor does that brother's account of not accompanying the defendant up the street make sense, when on the defence account, the defendant was moved away when he had done nothing wrong.
I formed a distinct preference for the prosecution witnesses and for the prosecution evidence and I prefer that evidence. I accept that evidence in preference to the evidence for the defence and where that evidence is in conflict I reject it.
I find the complaint proved."
In support of the first ground of the motion, that the learned magistrate failed to give sufficient reasons, counsel for the applicant referred to a number of aspects of the reasons which were given. Firstly, he submitted that the facts, upon which the learned magistrate based his reasons, were wrong. That was not raised by the ground and a complaint of a wrong finding of fact is an insufficient basis for reviewing a magistrate's decision. Nevertheless, I will deal with what was raised. It was submitted by counsel that the learned magistrate wrongly found as a fact that the applicant's version was that he was waiting outside the hotel with his brother, whereas the applicant had never asserted that. A statement of what the applicant's version was would not, of course, amount to a wrong finding of fact, but to a misunderstanding of the applicant's evidence, but it seems to me in any event that it was counsel who misunderstood the evidence and not the learned magistrate. His Worship said that the defence case, that is to say, the applicant's case, involved an assertion that he and his brother were simply waiting outside the hotel for friends of the younger brother to come out and to accompany the younger brother home, whereas the prosecution case was that they were demanding to be let back in and were making things difficult for the security personnel. So far as concerned the evidence of the applicant and the police officers, all of that was correct. The applicant gave evidence denying that he was trying to go back into the hotel and said that he was waiting outside for his brother's friends to leave. He also denied that his brother was trying to go back in. I note that the applicant's evidence in those respects was to some extent at odds with the evidence of his brother.
Next, the applicant's counsel complained that the learned magistrate wrongly found that Richard Martin accompanied the applicant up York Street and around the corner into St John Street. However, that was a finding which was reasonably open on the evidence. The applicant and his brother gave evidence contrary to it, asserting that the brother did not leave the immediate vicinity of the hotel, but their evidence was not accepted. Constable Maher's evidence was that the two men moved off up York Street with the two officers following them. He was positive that Richard Martin, as well as the applicant, rounded the corner. Constable Elmer gave similar evidence. Both officers accepted that once round the corner, they did not pay attention to Richard Martin and could not say precisely where he was. Having regard to the learned magistrate's preference for the evidence of the police officers, I conclude that the findings made about the matter were reasonably open on the evidence.
The last fact found by the learned magistrate which, according to counsel for the applicant, was wrong, was described by counsel as the rejection by the learned magistrate of the defence version of the events that the applicant and his brother were told by an officer that they were loitering. The learned magistrate made no finding of that kind at all, certainly not directly. The closest his Worship came to it was when he said that he had formed a distinct preference for the prosecution evidence and accepted it in preference to the defence evidence, where it conflicted.
In further support of the first ground of the motion, counsel for the applicant referred to the failure of the learned magistrate to give reasons for rejecting his submission that the manager and security staff of the hotel, should have been called by the prosecutor. More accurately stated, the submission was that an adverse inference should be drawn by the learned magistrate against the prosecution, because of the failure of the prosecutor to call those persons as witnesses. I will deal further with this aspect of the case when considering the second ground of the motion, but I am not persuaded that a reviewable error was committed by the learned magistrate by failing to give reasons for not drawing that adverse inference. The so-called rule in Jones v Dunkel (1959) 101 CLR 298 is that the unexplained failure by a party to give evidence or to call witnesses may, not must, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. I note the doubt expressed by Zeeman J in Burston v Brooks A91/1996 at 6 concerning whether the rule in Jones v Dunkel applies to the prosecution in a criminal case. In any event the rule does not give rise to an inference that the uncalled evidence would in fact have been damaging to the party not calling it. Further, the significance to be attributed to an unexplained failure to call a witness, will in the end depend upon whether it should be inferred that the witness was not called because the party who might have been expected to call the witness feared to do so. I am unpersuaded that the learned magistrate should have drawn the inference in this case. There was no evidence establishing which of the material events were witnessed by the manager and the security officers. Many of the events happened away from the front of the hotel. It is apparent that a considerable number of people were on the streets. The charge was of disorderly conduct in St John Street, out of sight of the hotel. The event which was the immediate precipitant of the applicant's arrest occurred out of sight of the hotel. In the course of receiving the submission of the applicant's counsel in this regard, the learned magistrate commented "what, you think that a sledge hammer should be used to crack a nut, you're saying everybody in sight should be called as a witness" and "I think that's making a bit much of it really, to suggest that people like that should have been called". His Worship plainly considered and rejected the submission. He was not obliged to articulate detailed reasons for all of his findings and determinations. His obligation to give reasons extended to reasons for finding that the complaint had been proved.
Also in support of the first ground, that the learned magistrate failed to give reasons, it was submitted by the applicant's counsel that no specific reason was given for rejecting the applicant's evidence. I do not agree. The learned magistrate did give such reasons. They were:
·It made no sense that police would risk inflaming what would appear to be a difficult situation, and possibly make it worse, by taunting the applicant in the manner alleged (by him and his brother), that is, by assaulting his younger brother in the way it was claimed.
·It made no sense that the police would assault his brother in front of a growing crowd of patrons who had been attracted to the scene.
·It made no sense that the police would move the applicant off and leave his drunken brother behind to continue trying to re-enter the hotel.
·His Worship formed a distinct preference for the prosecution witnesses and evidence over the applicant's evidence.
The second ground of the motion to review was that the learned magistrate erred in law, and his finding that the complaint was proved was unsafe and unsatisfactory, because of his failure to draw an adverse inference against the complainant, as a consequence of the unexplained failure of the prosecutor to call the manager and security staff of the hotel. I am not persuaded that the learned magistrate ought to have drawn such an inference in the circumstances of this case, and I refer to my earlier comments. In support of his assertion that the finding that the complaint was proved was unsafe and unsatisfactory, counsel for the applicant cited Burston v Brooks A91/1996. In so far as that case was decided on its facts, I find it of no assistance, but I understand that counsel referred to it because the judge referred to Richardson v R (1974) 131 CLR 116 and R v Apostolides (1984) 154 CLR 563. In the former case, the High Court said at 121 - 122, that notwithstanding that a prosecutor has a discretion and that there is no rule of law requiring him to call a particular witness, the decision of the prosecutor not to call a particular witness can constitute a ground for setting aside a conviction and granting a new trial if, when viewed against the conduct of the trial taken as a whole, it gives rise to a miscarriage of justice. In Apostolides at 577 - 578, the High Court approved of that statement and added:
"So, if a prosecutor fails to calls a witness whose evidence is essential to the unfolding of the case for the Crown the central question is … whether in all the circumstances the verdict is unsafe or unsatisfactory."
I am not persuaded that the failure to call the manager or members of the security staff of the hotel resulted in the finding that the complaint was proved, was unsafe and unsatisfactory. There was, as it turned out by the time the defence case had been presented, a conflict between the prosecution case and the defence case concerning what had occurred immediately outside the hotel in York Street. I am aware of no reason why the prosecutor would have been aware of the extent of the conflict until the defence case was presented. That goes some way to explain why the prosecutor and the other police officers did not think to interview the manager and security staff, as do the fact that the charge was of an offence committed away from the vicinity of the hotel and the fact that the immediately precipitating event to the applicant's arrest almost certainly occurred when they were not present. The defence could have called those witnesses. Indeed, the applicant gave evidence that he endeavoured to ascertain the identify of one of the security officers but he was unsuccessful. On the basis of his evidence, he could not be described as having been persistent in that regard, but he did make some enquiries. I have no information which enables me to ascertain what the manager and other staff members of the hotel might have said if they had given evidence. My conclusion is that I cannot be satisfied that the finding that the complaint was proved, was unsafe and unsatisfactory. For all I know, their evidence may have been of little or no assistance to either side of the case.
The third ground of the motion to review is that the finding that the complaint was proved was unsafe and unsatisfactory. At the hearing of the motion, counsel for the applicant provided four particulars of the basis upon which that was asserted and I have dealt with all of them. They concerned the failure of the prosecution to call the manager and the security staff, whether an adverse inference against the prosecution should be drawn as a result, the failure to give reasons for rejecting the applicant's evidence and the failure to give reasons for finding that Richard Martin accompanied his brother up the street in front of the two police officers. There is no merit in the ground.
If the learned magistrate had dismissed the complaint, not being satisfied beyond reasonable doubt that it was proved, I would not have been surprised, as I think it would have been an appropriate finding on the evidence. Nevertheless, I am of the opinion that the evidence justified the finding that the complaint was proved. This is a case where a finding either way was reasonably open on the evidence. The reasons given by the learned magistrate for the conclusion he reached were brief, but I am not persuaded that they were inadequate, nor that there is any other basis raised by the grounds of the motion to review, for setting aside the finding.
For these reasons the motion will be dismissed.
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