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

1. 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.

2. 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

3. 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. 

4. 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. 

5. 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.

6. 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”.

7. 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.

8. 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.

9. In cross-examination, Mr Jefferies admitted that in a statement to a WorkCover investigator, Mr O’Connell, on 11 March 2010, he had said that he had walked a few steps towards the appellant and Messrs Hall and Humphreys.  I will refer in more detail to this statement shortly, as the evidence concerning it provides the basis for the complaint of the appellant on the appeal.

10. Each of the appellant, Mr Hall and Mr Humphreys said that the incident occurred in the appellant’s workbay.  They said that Mr Jefferies had come to to that workbay in rather aggressive manner.

11. The Magistrate rejected the evidence of Messrs Hall and Humphreys and the appellant on this topic.  He found that the three men had walked towards Mr Jefferies at his workbay, that the appellant was carrying his baseball bat, and that Mr Jefferies saw them coming. 

12. The Magistrate thought it likely that Mr Jefferies took a number of steps (more than three) from his work area towards the three men.  His finding was as follows:

    [91]Having regard to the statement made by Mr Jefferies to Mr O’Connell on 11 March 2010, I consider it likely that Mr Jefferies took a number of steps (more than three) from his work area towards the defendant and Messrs Hall and Humphreys, who were accompanying him, as they approached.  As I have said, I reject the evidence that the incident happened in the close vicinity of the defendant’s workbay.  I find beyond reasonable doubt that Mr Jefferies believed he was going to have it out verbally with the defendant.  I reject the evidence of the defendant and Messrs Hall and Humphreys that Mr Jefferies said, at the last moment before Jefferies was hit, that he was going to cave the defendant’s head in.  In the context of all of Jefferies’ evidence and my view about his credibility generally, I do not regard the inconsistency between his evidence at trial and what he said to Mr O’Connell as being indicative of untruthfulness, nor of unreliability which would exclude the findings which I make.

13. In a later paragraph the Magistrate referred again to his finding “that it is likely that Mr Jefferies took more than three steps towards the defendant believing that he was going to have it out verbally with him”. 

14. The Magistrate made a number of findings regarding the appellant’s state of mind as he approached Mr Jefferies.  He considered it likely that the appellant did intend to strike Mr Jefferies with the baseball bat, and likely that, as he was about to strike Mr Jefferies, he had used words to the effect that he was going to hit Mr Jefferies.  Nevertheless, the Magistrate accepted that it was reasonably possible that initially the appellant had been holding the bat without any intention to use it against Mr Jefferies, and that he had taken the bat with him simply as a deterrent. 

15. The Magistrate also accepted that it was at least a reasonable possibility that the appellant perceived and believed that Mr Jefferies was about to attack him.  The Magistrate reached that conclusion even though he considered that any such belief by the appellant was “somewhat irrational”, bearing in mind that Mr Jefferies was unarmed and that the appellant himself was flanked by two men who were in a position of authority over both him and Mr Jefferies.

16. The Magistrate then made the following finding concerning the appellant’s blow to Mr Jefferies:

    [94]I find that the defendant raised the bat, at least to about a horizontal level or higher, taking the grip with two hands and swung it at Jefferies from behind his shoulder.  In making this finding I reject beyond reasonable doubt the evidence of the defendant, as he initially gave it, that he lifted the bat upwards and forwards with one hand from the position next to his right leg.  I find that Jefferies realised the blow was coming and raised his arms to protect himself, upon which he was struck on the elbow, causing the harm which is alleged in the medical evidence.  Again, whilst I regard it as probable that the defendant struck Mr Jefferies without a genuine belief that he was under attack, I nevertheless consider it a reasonable possibility that he did believe he was under attack by Mr Jefferies and that Jefferies might use his fists or perhaps take the bat from the defendant and use it against him.  I also consider it a reasonable possibility that, in the heat of the moment, the defendant considered it necessary to strike Mr Jefferies to avert the attack …

    The Magistrate went on to conclude, however, that while the appellant might have genuinely believed that striking Mr Jefferies was necessary and reasonable for a defensive purpose, the prosecution had proved that the blow was not reasonably proportionate to the threat which the appellant believed to exist.[2]

    [2] CLCA s 15(1).

17. In general, the Magistrate accepted the evidence of Mr Jefferies and rejected the evidence of the appellant, Mr Hall and Mr Humphries on those topics on which it differed from Mr Jefferies.

    Appellant’s Submissions

18. Counsel focussed on the Magistrate’s finding at [91] that it was likely “that Mr Jefferies took a number of steps (more than three) from his work area towards [the appellant] and Messrs Hall and Humphreys” as they approached.  He submitted that that finding did not have a proper foundation in the evidence.  None of Mr Jefferies, Mr Hall, Mr Humphreys nor the appellant himself had given evidence that Mr Jefferies had taken a limited number of steps towards the approaching group.  Instead, as previously noted, each of Messrs Hall and Humphreys and the appellant had described Mr Jefferies coming all the way to the appellant’s workbay. 

19. The statement made by Mr Jefferies to the WorkCover investigator, Mr O’Connell, on 11 March 2010 included the following:

    O’Connell:  Were you preparing to fight?

    Jefferies:I walked up to him to confront him, but not really to fight him, no.  I was just going … I thought we were going to have a verbal abusive match and just get on with it …

    …

    O’Connell:What happened as he walked back in, as Mr Mason walked back in after he had got the baseball bat?

    Jefferies:He was walking with Geoff and Colin talking to them.  I could see this.  I walked over.  I just stood there for a few seconds and didn’t have much time to think about it.  I just thought well this is stupid.  I walked probably no less than 10 [sic] towards him as in from my toolbox and said What are you doing with that?  He then proceeded before I could finish my sentence to hit me over the … or go for my head actually … but hit me, my elbow with the baseball bat.

    (Emphasis added)

    In cross-examination Mr Jefferies denied that the “10” was a reference to metres and asserted, without challenge, that he had said “10 feet”.  Mr Jefferies’ statement to Mr O’Connell that he had walked “no less than 10 feet” towards the appellant was, at least on one view, inconsistent with his evidence-in-chief to the effect that he had remained at his workbay.

20. The appellant’s submission on appeal was that, although Mr Jefferies had acknowledged making the statement in these terms to Mr O’Connell, he had not acknowledged its truth.  This meant that the statement could not be regarded as evidence of the facts asserted in it.  Its only significance in the trial had been to undermine Mr Jefferies’ credibility.  The Magistrate had erred in regarding Mr Jefferies out-of-court statement as evidence upon which he could make a finding of fact. 

21. 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

22. 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.

23. 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.

24. 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.

25. The same principles were touched upon, although not discussed in detail, in R v Soma.[9]  Similarly, in Bull v The Queen,[10] McHugh, Gummow and Hayne JJ said that “the contents of the prior inconsistent statement affect the credit of the witness and are not evidence of any other matters asserted in the statement”.[11]

    [9] [2003] HCA 13; (2003) 212 CLR 299.

    [10] [2000] HCA 24; (2000) 201 CLR 443.

    [11] Ibid at [79]; 466.

26. Thus, the answers of a witness concerning an out-of-Court statement are not evidence in the trial of the facts contained in the statement.  The position may be different in relation to a witness who is a party because, in that instance, the witness’ answers may constitute admissions against interest.  Mr Jefferies, although the victim of the assault alleged against the appellant, could not be regarded as a party to the prosecution.

27. Mr Jefferies’ evidence that the incident occurred at his workbay is not necessarily inconsistent with him having taken a few steps towards the appellant and Messrs Hall and Humphreys.  The workbay is apparently a large area, and it is at least theoretically possible that the steps which he did take were still within his own workbay.  Counsel for the appellant at trial did not put to Mr Jefferies that there was an inconsistency between his evidence, on the one hand, and his statement to Mr O’Connell, on the other.  One cannot be sure therefore that by acknowledging his statement to Mr O’Connell, Mr Jefferies was thereby acknowledging an inconsistency.

28. Nevertheless, I consider it appropriate to proceed on the basis that there was an inconsistency, at least in the sense that Mr Jefferies’ account of the incident in his evidence did not include an element of the account which had been given to Mr O’Connell (ie, the taking of some steps).  Mr Jefferies made no mention of taking such steps in any of his evidence, as the following passage indicates:

    I stood on my toolbox, packing my tools away, still looking and thinking what the hell was he – this is just stupid.  But when he came within 5-10 feet of me I thought shit what I am I gonna do, I turned around basically within a split second, he has taken 3 flying jumps and I have gone what the, and before I could get it out, he struck me.[12]

    [12]   T18.

29. I also consider it appropriate, despite some indications to the contrary, to act on the basis that Mr Jefferies had not adopted his statement to Mr O’Connell in the trial, nor sworn to its truth.

30. However, even in these circumstances, I do not consider that the Magistrate’s conviction of the appellant should be disturbed.  A major issue at the trial was that of whether the incident took place at the appellant’s workbay (as the appellant and Messrs Hall and Humphreys said) or at Mr Jefferies’ workbay (as he said).  If it was the former, it made it more likely that it was Mr Jefferies who was the aggressor and therefore more difficult for the prosecution to exclude self-defence by the appellant as a reasonable possibility.  If the latter, it was more likely that it was the appellant who was the aggressor, and less likely that he was acting in self-defence.

31. On this issue, the Magistrate decisively rejected the evidence of the appellant and Messrs Hall and Humphreys.  He was very suspicious that the evidence of the three men was the result of collusion. 

    [90]I find that the defendant walked, together with Mr Hall and Mr Humphreys, towards Mr Jefferies at his workbay.  In making this finding, I reject the evidence that Mr Hall and Mr Humphreys and the defendant that the incident happened in the close vicinity of the defendant’s workbay.  I am mindful that it may be thought that this finding implies that these three men have colluded in [their] evidence.  As would have been clear during my discussion of their evidence, I am highly suspicious that this has occurred but I make no such finding …

    Earlier, the Magistrate had discussed individually the evidence of the witnesses.  He described Mr Jefferies as having given his evidence in a manner which was clear and direct and endeavouring to be truthful at all times; he described Mr Hall as an unsatisfactory witness whose evidence in some respects was “contrived” and, in other respects, “had an air of unreality”; and he described Mr Humphreys as “not an impressive witness” who gave “the strong impression that his evidence was tailored to favour the defendant, rather than to be an unvarnished account of events”.  Finally, in relation to the appellant, the Magistrate said that he did not find him to be a credible witness.

1. In this context, the Magistrate’s finding that Mr Jefferies had taken a few steps towards the group of the three men was, if anything, a finding which was favourable to the appellant.  Absent that finding, there was scarcely any evidence upon which the Magistrate could have found that the appellant did genuinely believe that it had been necessary for him to act as he did for a defensive purpose.  It was because the Magistrate was satisfied that Mr Jefferies had taken a few steps towards the group that he considered that the prosecution had not excluded, as a reasonable possibility, that the appellant did genuinely believe that his conduct was necessary for a defensive purpose.

2. In short, the Magistrate may have been in error in basing a finding on an out-of-court statement which had not been adopted by Mr Jefferies in his evidence, but that was an error which favoured the appellant.  It does not warrant the conviction being overturned.

3. Counsel for the appellant also submitted that the Magistrate had not considered in his assessment of the overall reliability of Mr Jefferies’ evidence the inconsistency between his evidence that he had stayed at the workbay, on the one hand, and his acknowledgement that he had told Mr O’Connell that he had moved some steps towards the group of three men.  That submission cannot be accepted.  The Magistrate specifically referred to the potential impact of this inconsistency on Mr Jefferies’ credibility more generally – see [91] of his judgment quoted earlier in these reasons.

4. 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

5. For the reasons given above, I dismiss the appeal.