Mason v Police - [2011] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MASON v POLICE
[2011] SASC 198
Judgment of The Honourable Justice White
17 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - GENERALLY
The appellant was convicted of aggravated recklessly causing harm - he appealed against the conviction on the grounds that the Magistrate had erred by making a finding of fact on an important issue by reference to an out-of-Court statement of the complainant which had not been adopted by him in the course of his evidence.
Held: whilst the Magistrate may have relied erroneously upon the out-of-Court statement, the effect of any such error was in favour of the appellant - no grounds upon which the conviction should be overturned.
Criminal Law Consolidation Act 1935 (SA) s 15, s 24; Evidence Act 1929 (SA) s 29, referred to.
R v Musolino (2003) 86 SASR 37; Alchin v Commissioner for Railways (1935) 35 SR NSW 498; R v Thynne (1977) VR 98; R v Fraser (1995) 65 SASR 260; R v Soma (2003) 212 CLR 299; Bull v The Queen (2000) 201 CLR 443, considered.

MASON v POLICE
[2011] SASC 198
Magistrates Appeal

WHITE J. On the morning of 10 February 2010, a series of unpleasant incidents occurred in the workplace at Smith’s Body and Paint Shop at Port Adelaide. The incidents culminated in the appellant striking the complainant, Mr Jefferies, with a baseball bat. The blow resulted in multiple fractures in Mr Jefferies’ left elbow, he having raised his arms in a protective manner.
A Magistrate convicted the appellant of the aggravated form of the offence of recklessly causing harm.[1] The appellant now appeals against the conviction. His notice of appeal contains a single ground of appeal, namely, that the verdict is unsafe and against the weight of the evidence. However, at the hearing, the appellant’s principal submission was that the Magistrate had erred by making a finding of fact on an important issue by reference to an out-of-Court statement of Mr Jefferies which had not been adopted by him in the course of his evidence.
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 24(2).
Background
As at 10 February 2010, Mr Jefferies had been working as a panel beater at Smiths for about four months. The appellant was his immediate supervisor. Their relationship had been marked by tensions.
Shortly after his arrival at work on the morning of 10 February, Mr Jefferies was reversing a vehicle into the workshop. The appellant “picked the gap”, ie, he drove his vehicle into the workshop through the narrow space between the reversing vehicle and the workshop entrance.
Mr Jefferies regarded this manoeuvre as reckless as it had nearly caused a collision. He was enraged and agitated on finding that it was the appellant who was responsible.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mason v Police

Details

AGLC: Mason v Police [2011] SASC 198
Case: [2011] SASC 198
Decision Date: 17 November 2011

CaseChat Overview and Summary

In Mason v Police, the appellant challenged his conviction for aggravated recklessly causing harm. The primary ground of appeal was that the Magistrate had erred by relying on an out-of-Court statement from the complainant, Mr Jefferies, which had not been adopted by him during his testimony. The appellant argued that this reliance led to an unsafe verdict against the weight of the evidence.

The court examined whether the Magistrate’s reliance on the out-of-Court statement constituted an error in law. It noted that under the Evidence Act 1929 (SA), a witness may be cross-examined about previous written statements without showing the document to them. However, if the cross-examiner intends to contradict the witness with the document, the witness must be alerted to the contradictory parts before the document can be presented. The court acknowledged that the Magistrate’s error, if any, had a favourable effect on the appellant, as it did not prejudice the appellant’s case.

The court concluded that the discrepancies in the evidence were minor and did not indicate any flaws in the Magistrate’s reasoning. Furthermore, the court found that any error in considering the out-of-Court statement did not provide grounds to overturn the conviction. The appeal was dismissed.

The final orders of the court were to dismiss the appeal, upholding the conviction of the appellant for aggravated recklessly causing harm.

Orders

Orders of the court

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Background

Background to the litigation

A Magistrate convicted the appellant of the aggravated form of the offence of recklessly causing harm.[1] The appellant now appeals against the conviction. His notice of appeal contains a single ground of appeal, namely, that the verdict is unsafe and against the weight of the evidence. However, at the hearing, the appellant’s principal submission was that the Magistrate had erred by making a finding of fact on an important issue by reference to an out-of-Court statement of Mr Jefferies which had not been adopted by him in the course of his evidence.[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 24(2).Background As at 10 February 2010, Mr Jefferies had been working as a panel beater at Smiths for about four months. The appellant was his immediate supervisor. Their relationship had been marked by tensions. Shortly after his arrival at work on the morning of 10 February, Mr Jefferies was reversing a vehicle into the workshop. The appellant “picked the gap”, ie, he drove his vehicle into the workshop through the narrow space between the reversing vehicle and the workshop entrance. Mr Jefferies regarded this manoeuvre as reckless as it had nearly caused a collision. He was enraged and agitated on finding that it was the appellant who was responsible. He swore at the appellant, who responded in terms of comparable stridency. It seems that the use of profanities was customary in the everyday interchanges in the workshop. Mr Jefferies then complained to Mr Humphreys (an estimator) and to Mr Hall (the body shop Manager). Mr Hall fetched the appellant and a “discussion” occurred between Mr Jefferies and the appellant. Both were upset, angry and swearing at each other. The Magistrate accepted Mr Jefferies’ evidence that the appellant had used words to the following effect (without the profanities) “I’ll get you, I’ll fix you”, and also considered it likely that Mr Jefferies had used “angry, colourful and possibly threatening terms”. The appellant then obtained a baseball bat from his car and went to his own workbay which was some 50 metres away from that of Mr Jefferies. He was joined by Messrs Hall and Humphreys. Both the appellant and Mr Jefferies remained upset and agitated and made their feelings obvious in the workshop. The Magistrate accepted that Messrs Hall and Humphreys intended to defuse the situation, by allowing the two men to have a verbal exchange in their presence. There was however a dispute as to what happened next. Mr Jefferies’ evidence-in-chief was to the effect that he had remained at his own workbay. He heard the approach of the appellant and Messrs Hall and Humphreys. He saw that the appellant was carrying a baseball bat over his right shoulder. The appellant approached to within five or six feet of him and, before he (Mr Jefferies) could complete an enquiry about what was going on, came further and struck him with the bat. At no stage in his evidence-in-chief did Mr Jefferies indicate that he had moved towards the three men at all.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Counsel also made submissions indicating that in some respects the Magistrate’s conclusions did not entirely reflect the evidence. It is not necessary to refer to these submissions in detail. Counsel acknowledged that some of the matters which he mentioned were of a peripheral kind. I consider that the discrepancies to which counsel referred were of a minor nature only and could not reasonably be understood as indicating flaws in the Magistrate’s reasoning.Conclusion For the reasons given above, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Counsel also submitted that the Magistrate had not considered in relation to Mr Jefferies’ evidence more generally the significance of his rejection of Mr Jefferies’ evidence on one important topic, namely, where he was when the assault occurred.Consideration When counsel was cross-examining Mr Jefferies at trial in relation to his statement to Mr O’Connell, he was doing so in accordance with s 29 of the Evidence Act 1929 (SA). Section 29 provides:A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.In effect, s 29 allows a cross-examiner to cross-examine as to previous statements made by the witness in writing, without the document being shown to the witness. If the witness admits the existence of the previous written statement the witness may be cross-examined without the statement being shown to him or her. However, if the cross-examiner wishes to challenge the witness by the document, the witness’ attention must be drawn to those parts of the document which are said to contradict the witness’ evidence before the document can be proved and tendered.[3][3] R v Musolino [2003] SASC 203 at [107]; (203) 86 SASR 37 at 50. In Alchin v Commissioner for Railways,[4] Jordan CJ discussed the evidential effect of the answers of a witness who is not a party to the litigation who was cross-examined under the New South Wales counterpart of s 29. Jordan CJ said:[I]t needs to be kept in mind that, in the case of a witness who is not a party, any evidence which may be elicited in cross-examination as to the contents of a former statement of his, whether written or oral, is not evidence in the cause of the facts contained in the statement. It is admissible only for the purpose of testing the value of the witness’s present evidence. If the witness distinctly admits that he made a previous inconsistent statement, the purpose of discrediting him by the inconsistency had been achieved, and the statement cannot be further proved in evidence unless it is otherwise admissible … .[5]This passage was approved by Doyle CJ in R v Fraser.[6][4] (1935) 35 SR NSW 498.[5] Ibid at 509.[6] (1995) 65 SASR 260 at 265. In R v Thynne[7] the Full Court of the Supreme Court of Victoria expressed a similar view to that of Jordan CJ in Alchin. The Full Court said:It is trite law that proof of such prior inconsistent statement statement in writing is not admitted in order to prove that the facts were as the witness stated them to be in his prior statement in writing; it is admitted only to demonstrate to the tribunal of fact how unreliable the witness is … If the witness, on such cross-examination, admits that he has in fact made the prior inconsistent statement, the purpose of discrediting him by the inconsistency has been achieved and the statement cannot be further proved unless it is otherwise admissible … The distinction between admitting a document merely to discredit the witness on the one hand and, on the other, admitting it to prove that the facts therein stated are true is clear to lawyers but it is impossible to be sure that a jury will understand and observe the distinction. … But the case of Birkett v AF Little Pty Ltd (1962) NSWLR 492 illustrates the importance of distinguishing between the case where a witness, on cross-examination, does no more than admit that he has made a prior inconsistent statement of fact, in which his answers are (as stated above) relevant only as going to discredit him, and the case where he goes further and swears that the prior inconsistent statement was a true statement of fact.[8][7] [1977] VR 98.[8] Ibid at 100.