Mason v Molloy
[2007] WASC 260
•11/01/2007
MASON -v- MOLLOY [2007] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 260 | |
| Case No: | SJA:1044/2007 | 25 OCTOBER 2007 | |
| Coram: | JENKINS J | 1/11/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SIMON JAMES MASON RACHEL KIMBERLEY MOLLOY |
Catchwords: | Criminal law Appeal from decision of magistrate Assault occasioning bodily harm Adequacy of magistrate's reasons Whether magistrate was entitled to rely on the nature of the complainant's injuries Accident |
Legislation: | Criminal Code (WA), s 317(1) |
Case References: | DeVries v Australian National Railways Commission (1993) 177 CLR 472 Riley v The State of Western Australia [2005] WASCA 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RACHEL KIMBERLEY MOLLOY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G W BAYLEY
File No : JO 8147 of 2006
Catchwords:
Criminal law - Appeal from decision of magistrate - Assault occasioning bodily harm - Adequacy of magistrate's reasons - Whether magistrate was entitled to rely on the nature of the complainant's injuries - Accident
Legislation:
Criminal Code (WA), s 317(1)
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S M Stocks
Solicitors:
Appellant : Mark Andrews & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DeVries v Australian National Railways Commission (1993) 177 CLR 472
Riley v The State of Western Australia [2005] WASCA 190
(Page 3)
- JENKINS J:
The decision under appeal
1 This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Joondalup on 21 May 2007. The appeal is against the magistrate's decision to find proven the charge in Prosecution Notice JO8147 of 2006, being a charge of assault occasioning bodily harm.
Grounds of appeal
2 The first ground of appeal alleges that the magistrate's verdict was against the weight of the evidence because the prosecution failed to prove that the appellant was not acting in self defence. The basis of this ground is that the appellant and another witness gave evidence which raised self defence. There was only one prosecution witness who could give evidence about how the complainant came to be injured. It is alleged that the magistrate failed to give adequate reasons as to why he preferred the evidence of that witness to the evidence of the appellant and his witness.
3 The second ground of appeal alleges that the magistrate erred in law in finding that the prosecution had negatived the defence of accident beyond reasonable doubt. The particulars to this ground allege that no evidence was adduced that the appellant intended to cause bodily harm and the injuries to the complainant could not be said to have been foreseen by the appellant or to have been foreseeable by an ordinary person.
Details of charges and proceedings
4 The prosecution notice alleged that on 14 May 2006 at Woodvale the appellant unlawfully assaulted Justin Paul Dorney and thereby did him bodily harm, contrary to the Criminal Code (WA) s 317(1).
5 The appellant entered a plea of not guilty and his trial took place before the magistrate on 21 May 2007. At the conclusion of the evidence, the magistrate gave extempore reasons for his decision to find the charge proven. The matter was adjourned for sentence at a later date.
Details of the evidence
6 The prosecution case against the appellant consisted of the evidence of the complainant, Mr Dorney, an eye witness, Mr Danny Moore, and a police officer, Constable Rachel Molloy. Additionally, the prosecution tendered photographs of the injuries to the complainant and a medical report.
(Page 4)
7 The appellant gave evidence in his own defence and called an eye witness, Mr Sean Hall.
8 Mr Dorney, aged 32, gave evidence that on 14 May 2006 he went to a hotel in Woodvale to watch a soccer match which was screened at the hotel. Between the time of arrival at about 9 pm and the time he left at approximately 1 am he had approximately 4 - 5 pints of beer. Mr Dorney recalled putting his beer down and leaving the hotel through a doorway. He then recalled waking up after he had been injured. His injuries included a cut on his left eyebrow which required six stitches, a cut on his right cheekbone which required approximately five stitches, a split lip, a broken nose and a broken right cheekbone.
9 In cross-examination Mr Dorney confirmed that he had gone to the hotel with a number of friends, including Mr Moore; a close friend. He also confirmed that he did not know the appellant.
10 Mr Moore, aged 27, gave evidence that he was at the hotel with the complainant. He believed that they arrived at between 7 pm and 7.30 pm. He also said that he had approximately four to five pints of beer during the evening. He said that when he was leaving the hotel with the complainant and some other friends, he saw two young men about 19 or 20 years of age squaring off in what he described as a 'drunken stupor'. He walked over to them and stood between them and told them to 'settle down'. He said that a couple of the friends of one of them jumped over his shoulder, grabbed the young man who was in front of him and a bit of a scuffle broke out. He said that the complainant came in grabbed one of those young men. The appellant then punched the complainant from behind. His evidence continued as follows:
Where did he hit Justin?---Around the cheekbone, I would say.
What happened after he had been hit?---Justin obviously fell to the ground.
…
When you say he fell to the ground, what position did he fall?---Face down.
11 Mr Moore said that he then chased the appellant.
12 He was asked what the complainant was doing immediately before he was hit by the appellant. He said that the complainant had a young man by the shirt and he was removing him from the scuffle which had broken out.
(Page 5)
13 In cross-examination, there was confusing evidence about the angle and direction from which the appellant entered the scuffle. The upshot of the evidence is that Mr Moore testified that the appellant came at the complainant from behind the complainant's right shoulder. He then punched the complainant using a round arm hook. He said that the complainant was knocked out and landed on the pavement. He said that he fell face first like a tree falling. He said that it was hard to tell from where he was which part of his face he fell on.
14 Mr Moore said that he witnessed the assault on the complainant from approximately two to three metres away from the left side of the complainant.
15 Mr Moore denied that a security guard had then grabbed the appellant and that they had both fallen over. He said that the appellant immediately ran off and he chased him. He confirmed that he had seen the complainant fall face forward onto the pavement. He said that no one had kicked the complainant whilst he was on the ground and therefore all the injuries shown in the photographs were caused either by the punch to the right cheek area of the complainant or from his fall to the ground. He denied that the complainant had been in any other fights or was showing aggression during that evening. He denied that the complainant had come up behind the appellant as he was bending over to help a friend, and punched him to the back of the head. He said that the complainant did not throw any blows. He denied that in response to the complainant hitting the appellant on the back of the head, the appellant had turned around and swung one punch at the complainant. He insisted that the complainant was punched from behind and that he fell onto his face.
16 Constable Molloy gave evidence that she attended at the scene and some two months later conducted a video record of interview with the appellant. The appellant gave the same version of the facts in the videoed record of interview to that which he gave in evidence.
17 Constable Molloy confirmed that on the evening in question, the appellant had called the police from the premises in which he had sought refuge after being chased by Mr Moore.
18 The appellant, aged 20, gave evidence that he and his friends had also gone to watch the soccer match screened at the hotel. He had two beers before arriving at the hotel at approximately 9.30 pm. At the hotel he had three pints of Guinness. After the hotel closed he and his friends were standing outside the hotel waiting for a taxi. He was in a group of
(Page 6)
- three people. At that point he was a bit tipsy. He noticed two other males in the parking lot pushing each other. He recognised one of them and he walked over and asked what was going on. The person he recognised was angry because he had been pushed over. A scuffle then developed between about six people. He said that punches were being thrown and the group involved increased to about eight to ten people. He said that he then saw his acquaintance on the ground and he walked over to him, to help him. He said that he then got hit in the back of the head. He said it was not 'like super powerful or anything'. He let go of his friend and he turned around and got hit again. He got up and turned and as he was turning his body he saw the complainant behind him with his hands up and, in his turn, he swung a punch at him. He said at that point the complainant was standing with his hands in fists, apparently in a fighting stance. He assumed that the complainant was going to hit him again so he hit the complainant to stop him from hitting him. He said that it was quite a powerful blow. He was on the turn and his body weight was shifting around. At this point in his evidence a portion of the tape recording is missing. The appellant then said that a bouncer put his arms up under his arms and pulled him back and that he was then on the ground. He assumes that the bouncer fell over the kerb as he backed back. He did not see what happened to the complainant after he delivered his blow. He said that Mr Moore then came over and started to kick him whilst he was on the ground. The bouncer helped him up and he ran away.
19 The appellant said that he threw the one punch because he was being punched and he believed that if he had not thrown that punch he would have been punched again.
20 In cross-examination, the appellant said that he could not be sure that the person standing behind him was the one who had hit him. However, he had been hit and there was only one person behind him so he hit him.
21 The final witness was Mr Hall. Mr Hall gave evidence that he was a close friend of the appellant's. He attended at the hotel with him on the evening in question. He said that he was outside the hotel with the appellant at about 1 am waiting for a taxi. He saw a fight in the car park. He then saw the appellant near the fight, attending to a friend on the ground. He said he then saw the appellant get hit once in the back of the head, spin around and hit the person who struck him in the head. Mr Hall identified that person as the complainant. He said that he witnessed the incident from approximately three to four metres away and he had an unobstructed view.
(Page 7)
22 He said that he saw the complainant strike the appellant to the back of the head with his right fist. He said the blow seemed quite hard. He then saw the appellant spin around and hit the complainant with his right hand to the left side of the complainant's face. He said that he did not see what happened to the complainant after the blow was landed. He said that initially the complainant fell back but after that he was watching the appellant and did not see anything. The last image he had was of the complainant going backwards. He did not see him hit the ground. He said that the appellant stepped away as soon as he struck the blow and he was then approached by bouncers. The appellant kept heading out of the area. Later, he saw the appellant laying down and people standing around him.
23 In cross-examination, Mr Hall said that he did not see the security guards grab the appellant; he saw them approach him.
24 A medical report tendered by the prosecution stated that the complainant's injuries consisted of a transverse laceration above the left eyebrow and a transverse laceration below the right eye, over the cheek. There were a number of areas of tenderness and bruising involving the jaw both left and right side, over the cheek and below the left eye. There was some tenderness and erythema (superficial inflammation of the skin) over the right cheekbone. There was also an abrasion and some tenderness present over the bridge of the nose. The examining doctor considered that the complainant may have sustained a non-displaced fracture of his nose.
25 The photographs tendered by the prosecution showed the complainant's injuries. What is apparent from the photographs is that the complainant had redness, bruising and swelling of both eyes; the right eye being more affected. There is an area of injury on the left eyebrow and what may be a vertical laceration on the left cheekbone. There is also swelling, an abrasion and a laceration of the right cheek. There is swelling and abrasion of his nose. There is apparent swelling of his lips and in particular an abrasion and what may well be a split lip on the left upper lip. There is some abrasion on the left side of his chin.
26 The magistrate, in his reasons, summarised the prosecution and defence case. There is no complaint made about his summary and therefore I will not detail it. After summarising Mr Hall's evidence, the magistrate noted that his vision of what occurred seemed to be quite narrow.
(Page 8)
27 The magistrate noted that the appellant admitted that he had hit the complainant once to the left jaw but said that it was in self defence, alternatively that the injuries were caused by accident.
28 The magistrate then dealt with a submission that had been put to him by the appellant's counsel that some of the complainant's injuries could have been sustained when he was involved in fighting either before or after the incident with the appellant. The magistrate stated that in his view there was no evidence of this and he found that the complainant's injuries were caused when he was struck to the head and fell flat on his face. The magistrate found that there was no other scenario which was consistent with the facts and the injuries to the complainant which were described in the medical report and displayed in the photographs.
29 The magistrate also found that the injuries were consistent with the evidence of Mr Moore, namely that the complainant was struck to the right side of the face in the area of the cheek, such a blow consistent with the injury to the cheekbone sustained on the right side by the complainant. The magistrate said he was satisfied that the complainant then fell forward and struck his face on the ground. Again, the magistrate found that the injury to the left eye and the grazes on the left side of the face as seen in the photographs were consistent with the complainant falling to the ground in that manner. The magistrate found that the injuries were not consistent with the complainant being hit in the left jaw as contended by the defence and the injuries could not have been caused by the complainant falling backwards as suggested by the defence.
30 The magistrate found that he accepted Mr Moore's evidence without any hesitation. He said that the blow which struck the complainant came from the complainant's right and slightly behind causing the complainant to fall forward. The magistrate found that there was no view of the evidence which was consistent with injuries that could have been received when he fell backward. Consequently, the magistrate believed that the complainant must have been struck at least from the side and slightly behind.
31 The magistrate found that the evidence of Mr Moore was truthful, consistent and consistent with the injuries sustained by the complainant.
32 The magistrate commented that the appellant and Mr Hall's evidence was that the appellant was struck in the back of the head by the complainant who then acted in self defence by turning and striking the complainant face on. The magistrate found that if that had been the case
(Page 9)
- the complainant would have fallen backwards not frontward and he would have expected him to have sustained a significant injury to the left jaw as well as to the back of the head. The magistrate said he did not accept that the complainant struck the appellant to the back of the head. He said that the appellant gave no evidence of any injuries or bruising to the back of his head that would be consistent with such a blow.
33 The magistrate found that the evidence of Mr Hall was inconsistent with the evidence of the injuries to the complainant. He noted that it was in some parts consistent with the evidence of the appellant.
34 The magistrate found that the complainant had no reason to strike the appellant because he was not initially involved in the fight, did not know any of the participants and did not know the appellant. He said that it was clear that the appellant did join in the fight because he knew his acquaintance who was involved in it and he did not accept that the appellant acted in self defence. He found that the appellant hit the complainant to the right jaw from the right side with a round arm causing the complainant to fall unconscious to the ground and to sustain injuries to his face.
35 In respect to accident, the magistrate noted that as a matter of law, for accident to be found arising from an application of force, the injuries sustained must be both unforeseen and unforeseeable. The magistrate stated that in his view, if you hit somebody hard to the head it was almost inevitable that you would cause bodily harm, either because of the blow directly or because the person will fall to the ground and sustain injuries in that manner. He therefore found that the injuries were foreseeable.
36 He found the offence proved.
Ground 1
37 In his written submissions the appellant contended that the evidence of Mr Hall needed to be totally discounted by the magistrate as to the circumstances of the assault before the charge could be proved. He submitted that the magistrate did not discount the evidence of Mr Hall to that extent and, in failing to do so, erred.
38 In his oral submissions the appellant's counsel elaborated upon that submission. He conceded that the magistrate had found that the evidence of Mr Hall was inconsistent with the evidence of the injuries and to that extent had discounted it. However, he submitted that it was not open on the evidence for the magistrate to decide that Mr Hall's evidence was
(Page 10)
- unreliable because of the nature of the complainant's injuries. He submitted that if the complainant had been knocked unconscious by the blow he may have fallen forwards onto his face even though his first movement after the blow was backwards. He submitted that it was not open to the magistrate to make the findings he did as to whether the injuries were consistent or inconsistent with the various witness' accounts without expert evidence.
39 In my view, there are two sub-issues raised by the appellant in this ground of appeal. The first is whether the magistrate adequately disclosed his intellectual reasoning for his decision to rely on the evidence of Mr Moore and to reject the evidence of the appellant and Mr Hall. The second is whether, to the extent that he did disclose that reasoning, it is adequate to sustain his findings.
40 The duty of a magistrate or a trial judge to give reasons for his or her decision is well known. It is sufficient for me to rely upon the summary of the relevant principles provided by Steytler P in Riley v The State of Western Australia [2005] WASCA 190 where his Honour said:
While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 - 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] - [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283. [32]
41 In respect to an appeal court's approach to findings of fact, the appellant relied upon DeVries v Australian National Railways Commission (1993) 177 CLR 472, 479 where Brennan, Gaudron and McHugh JJ, in a joint judgment said:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set
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- aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with fact incontrovertibly established by the evidence" or which was "glaringly improbable".
42 The magistrate's reasons were more than adequate to disclose his intellectual processes leading to his decision. It is plain to me, from reading the magistrate's reasons, that the magistrate believed the evidence of Mr Moore to the required standard because as the magistrate said, it was truthful, consistent and consistent with the injuries sustained by the complainant. The magistrate discounted, or found the evidence of the appellant and Mr Hall to be unreliable because he felt that, on their version of the events, the complainant would have fallen backwards, not frontwards, and would have sustained a significant injury to the left jaw as well as to the back of the head. In deciding not to rely upon the evidence of the appellant and Mr Hall, the magistrate also noted the following matters:
1. Mr Hall did not see the complainant fall to the ground or see the appellant fall to the ground with the bouncer as the appellant said happened;
2. The appellant and Mr Hall's version of the incident was inconsistent with the evidence of injuries to the complainant;
3. The complainant had no reason to strike the appellant; and
4. The appellant voluntarily joined in the scuffle because an acquaintance of his was involved in it.
43 Thus, the magistrate's intellectual processes are apparent from the reasons which he expressed.
44 I reject the point made in the appellant's particulars to ground 1 that the magistrate's reasons should be criticised because he failed to make an adverse finding as to Mr Hall's credibility or reliability. The magistrate did make an adverse finding as to Mr Hall's reliability for the reasons detailed above.
45 This then raises the second issue, as to whether the magistrate was entitled to conclude that Mr Moore's version of events was to be believed beyond reasonable doubt, in part, because it was consistent with the complainant's injuries and that the defence version of events should be disbelieved because it was inconsistent with the complainant's injuries.
(Page 12)
46 One of the difficulties with the appellant complaining that the magistrate used the injuries and their likely cause as a basis for deciding to believe Mr Moore's evidence, is that the appellant's counsel at trial submitted to the magistrate that he should conclude that the severity and nature of the injuries was such that they could not have been caused by one punch and a fall to the ground and must have been caused by the complainant fighting with others, either before or after the incident with the appellant. It is rather unfair on the magistrate to have asked him to make findings of fact as to how the injuries occurred and then to appeal when the findings were not favourable, on the basis that there was insufficient evidence or insufficient expert evidence to enable the magistrate to decide how the injuries were caused.
47 Further, whilst there will be cases where it is necessary for expert evidence to be given about the cause of injuries, this was not one of them. The findings of the magistrate relied upon everyday experience and commonsense.
48 I am not persuaded that the magistrate was not entitled to rely upon the nature of the injuries and the evidence from Mr Hall and from Mr Moore as to how they saw the complainant begin to and actually fall. In the words of the joint judgment in DeVries,the magistrate did not act on evidence which was inconsistent with facts 'incontrovertibly established by the evidence' and neither did he act on evidence which was 'glaringly improbable'. I dismiss this ground of appeal.
Ground 2
49 The appellant's counsel on appeal only faintly pressed this ground. He was wise to do so.
50 It is unnecessary for me to detail the law of accident. It is sufficient for this appeal for me to note that there is no appeal from the magistrate's statement that in order for the prosecution to negative accident it had to prove that the injuries sustained by the complainant were both unforeseen and unforeseeable. The prosecution did not have to prove that a reasonable person would have foreseen the exact injuries which the complainant received.
51 The prosecution did not attempt to prove that the appellant foresaw the possibility of these injuries. Rather, it submitted that they were foreseeable.
(Page 13)
52 The magistrate's view was that it is foreseeable that if you hit somebody hard to the head it is almost inevitable that you will cause bodily harm either from the blow directly or from a fall to the ground as a consequence of being knocked unconscious or knocked off one's feet. I can do no better than wholeheartedly agree with the magistrate's opinion. It is regrettable that far too often magistrates and judges hear cases where the complainant has received a blow to the head and has suffered bodily harm or more serious bodily injury, even death, as a consequence. It is entirely contrary to the experience of the courts to suggest that a reasonable person would not foresee that bodily injury is likely to occur as a result of even a single blow to the head.
53 In his written submissions, the appellant suggested that there was no evidence to support the magistrate's finding that the appellant's blow was 'hard'. However, he acknowledged in oral submissions that the appellant himself had given evidence that his blow was 'quite powerful'. It is true that there is then a portion of the transcript of evidence which is missing. However, the appellant's evidence appears to be quite clear as to the force of the blow he struck.
54 I dismiss this second ground of appeal.
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