McCarthy v Police No. Scciv-02-1134

McCARTHY v POLICE
[2003] SASC 31
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged on complaint with one count of assault and one count of larceny. It was alleged that he committed the offences at Adelaide on 12^th June 2001 during the course of an incident at West Terrace. He denied the charges and after a trial before a learned Magistrate, he was found guilty and convicted of both charges and sentenced to 168 hours of community service and ordered to pay some fees and costs. He appeals against the convictions.
The prosecution case was that the appellant took a backpack from Mr Sorak whilst on a bus as it was stopping at a bus stop at West Terrace and ran off with his companions. He was chased by Mr Sorak and, during a scuffle over the backpack, he assaulted him. The backpack was retrieved by Mr Sorak. The charge of larceny was that the appellant stole the backpack and its contents.
The appellant acknowledged that he was on the bus and that he left it at West Terrace but he denied that he was involved in any incident with Mr Sorak or that he was with any companions.
The prosecution case was based in large part upon the evidence of Mr Sorak. He said that he boarded a bus at Old Reynella at about 12.06 pm to travel to the City. He sat at the rear of the bus on the near side. The bus was about half full of passengers. He saw a young man board the bus with four other young men. At least three of them were drinking bourbon and cola. The young man was alleged to be the appellant. According to Mr Sorak, the young man at first sat about two seats in front of him. When the bus stopped at the Flinders Medical Centre and some passengers left the bus and others boarded, the young man moved and sat next to Mr Sorak on the back seat, a little more than half a metre away. The other young men sat further along the bus.
Mr Sorak had a blue backpack, a wallet, keys, mobile telephone and a walkman. He listened to the walkman through headphones whilst on the bus. He claimed that he recognised the young man when he boarded the bus as a person with whom he had worked at Bi Lo at Christies Beach. He said that the young man had starting working at Bi Lo in about November 1998, he was not sure. Mr Sorak was working there at that time until January 1999. He did not have much to do with him when they were working at Bi Lo but they exchanged greetings and brief conversation on about two occasions. They worked in different departments. He did not remember his name. In cross-examination his evidence was that he had much more extensive contact with this young man when he was working at Bi Lo in that he saw him almost every day and spoke to him on many occasions. In re-examination he said that their paths crossed about four or five times a week.
During the journey on the bus, Mr Sorak said that the young man lunged at his backpack a few times as if he was trying to grab something. The bag was open and Mr Sorak closed it and moved it closer to him. When Mr Sorak looked at him, the young man withdrew his hand. Mr Sorak did not say anything to him on either occasion. At no time did the young man speak to Mr Sorak. He described the young man as “normal facial”.
According to Mr Sorak, when the bus reached West Terrace, one of the other young men pressed the stop bell. As the bus approached the bus stop, the young man grabbed the bag and motioned towards the other young men. Mr Sorak screamed at him to give it back and called upon the driver not to open the doors. The young man was then with the other young men near the centre door of the bus. Mr Sorak also went to the centre door and demanded the return of his backpack. At that stage he was next to the young man. The bus stopped, the doors opened and the young man and the other young men ran away. Mr Sorak followed. He had put the walkman and the mobile telephone in his pocket before he left the bus. He put each of them in a pocket. Mr Sorak chased the young man and caught up with him. The young man said something like “come on”. Mr Sorak grabbed the bag and he told the learned Magistrate that the young man kicked him in the head and he fell to the ground. The walkman and the mobile telephone fell out of his pockets. Mr Sorak got to his feet and again attempted to retrieve his backpack. One of the young men threw the walkman in his direction without the earphones. The group moved on to the roadway running off West Terrace. He was pushed on to the bonnet of a motor vehicle by one of the other young men. The group moved a short distance and the young man handed the backpack to one of the other men who returned it to the appellant. All of the young men then ran away across West Terrace. Mr Sorak did not recover the earphones or the mobile telephone. Two police officers saw Mr Sorak and took him to the transit police office and obtained a statement from him.
During the course of his evidence-in-chief, Mr Sorak identified the appellant in the courtroom as the person who had taken his backpack and assaulted him.
In cross-examination Mr Sorak said that he knew his assailant at Bi Lo and that his first name was Tom. He said that he had enough to do with him to know what he looked like and who he was. He said that he remembered talking to him one time and helping him because one of his female friends had told him that she liked him. Mr Sorak was with him for about four minutes on this occasion. He said that this girl used a nickname for him which was “Snappy Tom”. Later he agreed that when he first spoke to the police after the incident, he told them that the assailant had worked with him at Bi Lo and that he was not sure of his name but that it could be “Mark”. He said he could not remember if a person called Mark worked at Bi Lo with him.
He said that the police later told him that when they arrested the appellant that the name of the person with whom he worked at Bi Lo was Tom and Mr Sorak mentioned the nickname.
It is clear from Mr Sorak’s evidence that at no time during the journey on the bus or the incident at West Terrace did he say anything to the young man who took his backpack that he knew him or that he had worked with him at Bi Lo. He said nothing to him at all whilst on the bus when the young man was making moves to take the backpack even though they were sitting close together.
Mr Sorak said that the young man who took his backpack and assaulted him did not have a plaster cast on his arm. He said he did not recall a plaster cast. He said that the person who grabbed his backpack did so with two hands and that he had a firm enough grip to take it from him. He was again asked if he used both hands to take the backpack and he said “At least one”. In his statement to the police made on 12^th June 2001 he said that the person grabbed his backpack with both hands. He then said he could not recall. He acknowledged that a few days before the trial commenced he was told by the investigating police officer that when the appellant was arrested he had a plaster cast on his arm. He said he was not told anything about the colour of the plaster cast and he could not remember if he was told what hand was encased in the plaster cast. He denied that he had modified his evidence in view of the information which the police had given him about the plaster cast. He said that if he had told the police that the young man had used both hands, then that is what happened. He said that he did not see a plaster cast on the person who took his backpack and assaulted him. He said he did not look at his hands and he was shocked. He was concentrating on getting his bag back.
As has been mentioned, Mr Sorak told the learned Magistrate that the young man, whilst on the bus, reached towards his bag on two occasions. In a statement to the police made on 12^th June 2001, he stated, “Throughout the trip, he kept trying to reach into my bag”. His explanation for this difference was that he thought the Court “cared about the major things”. He did not know the Court “cared about this little thing”.
Mr Sorak said that he thought that the group of young men who got on the bus together were all about the same age. He said that he thought the appellant was part of that group. He knew the approximate age of the appellant and so he assumed that they were all about the same age. He thought they were all young men because of their appearance, clothes and behaviour. He denied that it was possible that because the appellant was seated on the bus near this group and he was known to Mr Sorak that he mistakenly mixed up the appellant’s face with them.
On 25^th July 2001 Constable Sampson showed Mr Sorak a folder containing 12 photographs. Mr Sorak said that he was told by Constable Sampson to see if the person, meaning the young man who assaulted him, was there. Mr Sorak said that immediately Constable Sampson opened the folder, he identified photograph 7, which is a photograph of the appellant.
The operator of the bus was Mr Hall. He told the learned Magistrate that he did not see or hear any altercation on the bus except that he thought that he heard one person yell at him. He said that when he stopped the bus at West Terrace he thought that four youths left the bus through, what he described as, the rear double doors. He had seen them through a rear mirror. When asked in cross-examination if he was certain as to the number of the youths, he said that he believed that the number was four. The bus had a surveillance camera but he did not know if it was operating.
The prosecution called two men who were passengers on the bus at the relevant time. Mr Nogaj boarded the bus at Happy Valley. He sat on the near side of the bus about four to five seats back from the driver and was facing the front. As the bus was stopping, he heard someone yell out “Don’t open the door” from the back of the bus. He saw about half a dozen people scrambling off the bus. He described two of them as taller teenagers of young adult age and three or four persons shorter and about age 13 or 14 years. He saw one of the taller persons carrying a bag and running away and the other taller person chasing him. The first taller person started to throw punches and one kick in the direction of the other person who was pursuing him. The shorter persons did not participate in the incident. He could not say if the kicks or the punches connected. Mr Nogaj said that he was certain that no-one else left the bus at the same time. In cross-examination he said that it was his vague memory that the person with the bag threw punches with both hands. He gave the following evidence:
“QYou saw the hands of the person punching.
AYes I could see.
QDid you notice anything particular about that person’s hands.
ANo, no. Not at all.
QLight coloured like mine.
AI suppose front and back.
QDidn’t have a long blue cast on his right hand.
ANo, I think - no. I can’t say I saw, no.
QOne would have thought so particularly if the cast were to cover the entire of the back of the palm of the right hand including up to the first joints of the fingers.
ANo, I can’t recall seeing that, no.
QThe person who was throwing the punches didn’t have that on their hand.
ADidn’t appear to be, no.
HIS HONOUR
QDidn’t appear to be, what do you mean by that.
AI said I just saw two exposed hands.
XXN
QTwo able bodied young men, not with any plaster on the hands. You could clearly see the front.
AI could clearly see, but appeared that way, yes.”
Mr Nogaj said that he thought the two taller men were about the same height. He went on to say that, when witnessing what he saw, he was not able to “make an absolute thing”. I understand that to mean that he could not be absolutely sure about every detail of what he saw because he said that it was “the action that was paramount to what was happening”.
Mr Nogaj was shown the folder of photographs but he could not identify the assailant.
Mr Wilson caught the bus at Morphett Vale. He said that he sat near the rear of the bus on the near side behind the centre opening doors, facing towards the front of the bus. He said that at Old Reynella at least four or five lads boarded the bus and sat behind him. He thought that others also boarded the bus at this time. As the bus stopped at West Terrace, the group of lads were in the stairwell at the centre doors shyacking. He said he did not take much notice until he heard one of them yell out, “Don’t open the doors, he has got my bag”. He did not see who had the bag. The group left the bus and ran across to the parklands. One person had an object which must have been the backpack. He was holding it out in front of him. He described him as five feet eight or nine inches tall, with fair skin, short hair and wearing a blue jacket and a blue baseball cap. The other young males were around the young person trying to recover his bag who was Mr Sorak. He said he did not see any physical violence towards Mr Sorak. He telephoned the police on his mobile telephone. He saw the group run off into the parklands. He estimated their ages at about 17 years.
About two weeks later Mr Wilson made a statement to the police and gave much the same description of the person who had the bag except that he added that he was of “chunky build”. He confirmed that description in his evidence. He said that he did not see his hands. He did not see any punches or anything which could be described as an assault. His view was not interrupted and he said that he had the group under observation from the time they left the bus until the bus moved away. After that time he was using his telephone.
Later he was shown the folder of photographs and was unable to identify the person he saw with the bag. He said that he did not think that there was another young person who was not with the group and who left the bus at the same time. In all, there were about five young people, including the person who was trying to retrieve his bag. He acknowledged that another young person could have left the bus and moved behind it as he was not looking in that direction. Eventually he said that there could have been an additional person who left the bus.
Mr Wilson said that he did not notice that the person who appeared to have taken the bag had a blue cast on his right hand. He said he did not know whether he would have noticed it if the cast had been on the hand.
The appellant was arrested on 21^st June 2001 by Constable Sampson. She and other police officers arranged to interview him but he declined to answer questions and to participate in a line-up until he had obtained legal advice. Subsequently he declined to answer questions or to participate in a line-up. On this occasion the police officers conducted a search of the appellant’s house but did not locate Mr Sorak’s mobile telephone or a blue jacket.
The appellant gave evidence. He said that about three days before the events, which are the subject of the charges against him, he had broken his right thumb and he was wearing a blue cast. The cast covered nearly the tip of his thumb and to the first joint of his fingers. His thumb was set in a fixed position but he had some use of his fingers. He is right handed. He said that he caught the bus because he had missed the train. He had not previously travelled by bus to the City. He was alone and sat by himself. He saw a few other persons on the bus sitting on a side seat who were drinking alcohol from cans. He said that one of them looked older than the others who appeared to be the same age as the appellant. He said that he sat immediately behind Mr Stuart, whom he described as an acquaintance, and that he did not change seats during the journey.
According to the appellant, he did not notice Mr Sorak on the bus. He had worked at Bi Lo at Christies Beach and he vaguely remembered Mr Sorak as having worked at the same place but he had not had much to do with him. However, he did not recognise him on the bus.
When the bus was at West Terrace, the appellant said that he pressed the bell for the bus to stop and made his way to the centre doors. The persons who had been drinking left their seats and stood near him. They were fighting around with each other. He heard someone yell out to the driver not to open the doors but he did not see who that person was. He said that the doors opened and he left the bus. He walked around the back of the bus and across West Terrace. He said that he knew something was going on because of what someone had yelled out and his concern about the persons who were drinking. When he was in the middle of West Terrace, he saw the group of persons who had been drinking. After he had crossed West Terrace, he looked again and he saw the group on a grassed area near a motor vehicle. He said he was “pretty sure” that the older person was throwing or punching a person on to the motor vehicle. He said he did not intervene because on a previous occasion he had been stabbed in the leg when an incident occurred in the City at the Sky Show.
The appellant denied that he had sat next to Mr Sorak on the bus or that he attempted to grab his bag. He denied that after leaving the bus he assaulted him. He said that he had a mobile telephone and acknowledged that he did not contact the police. He said he wanted to stay out of it and there were other persons around and perhaps even closer. Later he said that it did not occur to him to contact the police.
A letter from the Deputy Director of the Noarlunga Emergency Department of Noarlunga Health Services dated 4^th July 2002 was admitted into evidence. He stated that on 7^th June 2001 the appellant had a broken right thumb and a plaster cast was applied on 10^th June 2001. A video tape was taken of the appellant when he went with police officers upon being arrested and it can be seen that the plaster cast was still in position at that time.
The appellant called Mr Stuart who knew him. He said that the appellant boarded the bus alone and sat behind him. Mr Stuart said that the appellant was sitting on a seat at the side of the bus. He had a brief conversation with the appellant and noticed that he had a blue cast on his arm. He said that he did not think the appellant changed his seat in the bus during the journey. He did not see him sitting at the rear of the bus but he did not keep him under observation during the journey. He said that he did not sense that the appellant left his seat behind him at any time. He saw the appellant leave the bus and he heard someone say something about not letting someone off the bus. According to Mr Stuart, the appellant left the bus normally but rushed a little, as did about three or four teenagers. However, he said there was nothing unusual about his behaviour. He said that he did not look out of the bus at the appellant after he left. He said that he did not see any incident involving a person’s bag but he did hear someone call out “stop the bus”.
The learned Magistrate accepted the evidence of Mr Sorak, Mr Nogaj and Mr Wilson. He found them to be reliable and truthful witnesses. It appears that the findings are based substantially upon the demeanour of these witnesses but, in relation to Mr Sorak, also upon consistency in his recounting of what occurred. He rejected the evidence of the appellant and Mr Stuart. These findings were also based largely upon their demeanour. I need not set out the findings about the witnesses in any detail. They must be accepted unless plainly wrong which has not been established. However, that is not to say that the witnesses in the prosecution case were accurate, particularly Mr Sorak. Their evidence must be considered in the context of all of the evidence in the case and the inferences which may properly be drawn from the evidence which is accepted.
The evidence of Mr Sorak that the appellant was known to him from working together at Bi Lo and that he took the backpack and assaulted Mr Sorak was accepted. The learned Magistrate rejected the contention that Mr Sorak was mistaken in recognizing the appellant as the assailant. He found that the appellant was wearing a blue plaster cast and a blue jacket with long sleeves and that it was understandable, in the emotional circumstances of the incident, that he did not see the plaster cast. He found that Mr Nogaj and Mr Wilson also did not see the plaster cast but their opportunity to observe the assailant was relatively brief. He did not regard the failure to see the plaster cast as of any significance.

The learned Magistrate found that both charges against the appellant had been proved beyond reasonable doubt and the appellant was found guilty.
The first and second grounds of appeal complain about the approach of the learned Magistrate to the evidence of Mr Sorak that he recognised the appellant as the assailant through the use of the folder of photographs. These two grounds may be considered together and I shall discuss each matter raised by them.
The starting point in the argument of Mr Edwardson, who appeared for the appellant upon this appeal, but not at the trial, is that the learned Magistrate wrongly admitted, over objection, Mr Tait’s evidence as to what Mr Sorak told him after the incident on 12^th June that he had been assaulted and his bag was stolen when he left the bus. Mr Tait is a member of the transit police. He said that when he went to West Terrace and saw Mr Sorak, he told him that the person who assaulted him was known to him as Thomas and he had worked with him at Christies Beach. As has been mentioned, Mr Sorak told the learned Magistrate that he thought the name of the assailant was Mark and it was not until Constable Sampson told him the name Tom that he remembered the correct name. The learned Magistrate discussed this evidence and said:
“Nonetheless, [Mr Sorak] did claim quite consistently to both officers that his assailant had worked at Bi-Lo Christies Beach, and that [Sorak] was familiar with his assailant’s appearance. The former was a fact that subsequently proved correct. Coincidentally, not only did the defendant work at that location at the relevant time, he happened to be on the bus. One is moved to observe that Sorak possessed a degree of esoteric knowledge that defence counsel suggested was of no value considering the law relating to identification evidence.”
The evidence of what Mr Sorak said to the police officers was inadmissible. There was no basis of admissibility such as to refute recent invention or to establish a prior inconsistent statement. The learned Magistrate has used the evidence to show consistency on the part of Mr Sorak in the same way that evidence of a recent complaint in a sexual case may be used for that very purpose. The use of that evidence was an error. I am not sure what the learned Magistrate meant when he said that Mr Sorak had “a degree of esoteric knowledge”. That is an expression often used to describe knowledge that a person could only have if involved in some way in the subject matter of the knowledge. In the present case, Mr Sorak knew the appellant before the incident and that knowledge could not be regarded as esoteric knowledge in the usual sense.
At the trial the appellant objected to the admission into evidence of the folder of photographs and the selection of photograph number 7 by Mr Sorak on the ground that this evidence was inadmissible. It was submitted that the evidence was merely self serving because Mr Sorak was not identifying a stranger but claimed that the assailant was a person known to him. There can be no criticism of Constable Sampson because the police needed to know if the person who had worked at Bi Lo with the name Tom, and the nickname “Snappy Tom”, was the assailant. Constable Sampson sought information from Mr Sorak about that matter in a non-leading and non-suggestive manner.
The learned Magistrate embarked upon a discussion of R v Turner (2000) 76 SASR 163 and Murphy v The Queen (1994) 62 SASR 121. He concluded that the evidence was admissible and the question was one of weight rather than admissibility. He added, “I note in passing that the defendant did not take up the invitation to partake in a line-up”. These cases were concerned with evidence of identification not recognition. It was accepted in Murphy and by the majority in Turner that evidence of an out-of-court identification given by someone other than the person who made the identification is admissible to prove that the person identified was involved in the crime. In Murphy it was held that the evidence that the person depicted in a photographic slide appeared similar to the appellant was admissible as circumstantial evidence to be considered along with the other circumstances proved. I do not think these cases assist in the resolution of any issue in this case.
The reference by the learned Magistrate to the appellant not taking part in a line-up is of concern. This was not an identification case. Mr Sorak had told the police that he had recognised his assailant. An identification parade would not achieve anything except to enable him to point out the person he had recognised. However, what is of concern is that the learned Magistrate seems to have regarded the appellant’s refusal to take part in a line-up as a matter of significance. The appellant had been correctly informed by the police that he was not obliged to take part in a line-up. He had a fundamental right to decline to participate and his exercise of that right could not lead to any conclusion of guilt: R v McCarthy & Ryan (1993) 71 ACrimR 395 at 404. The learned Magistrate should have directed himself accordingly.
The learned Magistrate regarded Mr Sorak’s recognition of the appellant through the folder of photographs as circumstantial evidence. He said:
“It added a degree of consistency with his earlier purported identification of the defendant to police without many description details.”
And later:
“That allegation was, however, never put in so many words expressly and directly to Sorak as a specific allegation, although the allegation that Sorak could not be sure he identified correctly the principal offender among the youths certainly was. Nonetheless, Sorak was able to say the person who assaulted him was on the bus and used to work at the same supermarket a year and a half earlier. It was a degree of esoteric knowledge difficult for counsel to negate. Indeed, his presence on the bus was a proven fact at the conclusion of the prosecution case. The allegation that the defendant was coincidentally on the bus at the relevant time was a fact alleged and uncontested at the close of the prosecution case. Consequently, the photographic identification process added nothing except circumstantial consistency to Sorak’s account.”
I regard the evidence of recognition of the photograph of the appellant as inadmissible as there had been no issue that Mr Sorak knew the appellant. The issue at the trial was that he mistakenly confused the appellant and the assailant. If there was an assertion that the police had suggested to Mr Sorak that the appellant was the assailant, evidence of what he told the police could be admissible. There could be other reasons for the evidence to be admissible but no such reason existed in this case. Not only was the evidence inadmissible, but it was incorrectly used by the learned Magistrate as evidence of consistency. No suggestion of inconsistency had arisen.
The learned Magistrate then indicated that he had used the photograph recognition evidence for another purpose:
“While it is true that the recognition of a previously known person does not serve to strengthen the assertion that the same person was the one who assaulted Sorak on the 12^th June 2001, the defendant’s coincidental presence on the bus, and at the previous workplace, and Sorak’s alleged ability to instantly pick out the defendant’s photo, suggests mistaken identification of the principal assailant on the 12^th June 2001, is unlikely to the extreme.”
In my view, the fact that Mr Sorak was able to recognise the appellant in the photograph says very little, if anything, about whether he was mistaken in his belief that the appellant was his attacker. He had that belief before he saw the photograph which was simply a photograph of the person he claimed had attacked him.
There is another matter. There was no evidence to establish that photograph 7, selected by Mr Sorak, was a photograph of the appellant. Although it appears that the appellant did not contend to the contrary and the trial proceeded on the basis that the person depicted in the photograph was the appellant, that matter was not proved.
The first two grounds of appeal are established.
The appellant also complains that the learned Magistrate erred in directing himself as to what he considered to be lies told by the appellant in his evidence. I shall refer to this ground of appeal as ground three.
It may be seen that the learned Magistrate, having found that the prosecution witnesses were truthful and reliable, concluded that it followed that the appellant was untruthful. As has been mentioned, he also found that Mr Stuart was also untruthful. He said:
“In my very firm conclusion, the defendant has been untruthful, as has the witness Stuart. Lies may be told for a variety of reasons, and they are not necessarily conclusive of guilt. However those told with the obvious and only intention of concealing the defendant’s criminal actions complained about have the capacity to assist in the finding of guilt to the requisite degree required in these proceedings. Moreover, the possibility that Sorak was mistaken in identifying his tormentor and attacker over the hour long journey from Old Reynella, culminating in a face to face confrontation in the same broad daylight on and outside the bus in the city is remote, to say the least. This is so notwithstanding the dangers inherent in identification evidence mentioned in R v Turnbull and Others (1976) 3 WLR 445 and many other authorities.”
It seems that the learned Magistrate did use what he regarded as lies told by the appellant as positive evidence of his guilt because of the way in which he expressed this part of his reasons. In this case, the so-called lies are no more than a denial by the appellant in evidence at the trial that he was the assailant. They could not amount to positive evidence of guilt: see Harris v The Queen (1990) 55 SASR 321 at 323. Ground three is also established.
The remaining ground of appeal is that the learned Magistrate erred in proceeding on the basis that the only issue at the trial was whether the appellant was the assailant and that there was no issue that the crimes of assault and larceny had been committed by the assailant. The learned Magistrate had to be satisfied that all of the elements of each charge had been proved beyond reasonable doubt. The appellant had claimed that he was not involved in the incident. Lack of contest by him that the crimes were committed by someone did not absolve the prosecution from discharging the burden of proof.
The evidence clearly established the crime of assault. The evidence of Mr Sorak, Mr Nogaj and Mr Wilson was sufficient for that purpose even if Mr Sorak was wrong about the identity of the assailant. However, the evidence was not capable of proving the charge of larceny. What was clearly established is that the backpack was taken and kept by the assailant for a short time before he threw it to a companion who returned it to Mr Sorak. The particulars of the charge included that the item alleged to be stolen was the backpack or any of its contents. The walkman was returned and the mobile telephone was lost or taken. Neither of these items were part of the contents of the backpack. I do not think the evidence was capable of establishing beyond reasonable doubt that the assailant intended at any time to permanently deprive Mr Sorak of the backpack or any of its contents. This ground also is established and the finding that the appellant was guilty of larceny must be set aside and that charge must be dismissed.
The establishing of these grounds of appeal does not necessarily mean that the appeal against the conviction for assault must be set aside. The evidence of Mr Sorak that the appellant was the assailant remains.
There was other evidence which suggested that the appellant may not have been the assailant. It was conclusively proved that he had a broken right thumb and was wearing the plaster cast. It was an important matter for two reasons. First, Mr Sorak, Mr Nogaj and Mr Wilson all saw the assailant. I have summarised their evidence. Not one of them saw the plaster cast. Mr Sorak was in close proximity to the assailant on the bus for a considerable period of time. I have mentioned this evidence about whether the assailant used both hands. Mr Nogaj said that he saw the assailant’s hands. Mr Wilson said that he saw the assailant holding an object out in front of him after the group left the bus, although he said he did not see his hands. The failure of any of these witnesses to see a plaster cast on the assailant does not, in itself, establish that the appellant was not the assailant, but it is a matter which suggests that Mr Sorak may have been mistaken in connecting the appellant with the assailant.
The second matter is whether it is likely that a person who had so recently broken his thumb would engage in an attack of this nature using both hands. This matter is also not decisive but it required consideration.
The third matter is whether the description by Mr Sorak of what happened on the bus seems plausible. As his evidence progressed, he said he saw the appellant frequently at work and knew his name as Tom and his nickname. At no time did he say to his assailant, “Come on Tom leave my bag alone” or any similar words. If he knew him, it might be expected that he would have disclosed that matter to bring the interference with his bag to an end. That matter was not covered in his evidence and so he was not given the opportunity of giving an explanation. However, the fact that Mr Sorak said nothing to the assailant, whom he claimed to know, was a matter which should have been considered by the learned Magistrate when he assessed the plausibility of his story. Also, the learned Magistrate had to consider the significance of Mr Sorak not using the name Tom, or Snappy Tom, but the name Mark when first describing the assailant.
The next matter is the physical description of the assailant. Unfortunately there was little evidence about this matter. Mr Sorak said that he was six feet three inches tall. Mr Nogaj said that the assailant and Mr Sorak were taller than the other young people. Mr Wilson said that the assailant was five feet eight or nine inches tall. If that observation was correct, he was considerably shorter than Mr Sorak. There was no evidence as to the height of the appellant. The learned Magistrate did not consider the lack of evidence about the height of the appellant.
Both Mr Nogaj and Mr Wilson saw the assailant at the door of the bus before it opened and also outside the bus. Mr Nogaj saw more of the assailant outside the bus than did Mr Wilson. Both of them were shown the folder of photographs and neither of them identified the appellant. There may be a number of reasons why they did not identify him but their inability to do so was a matter to consider when deciding if Mr Sorak was correct in saying that the appellant was the assailant.
Not too much can be made of any of these matters standing alone, but their combined force was sufficient for the learned Magistrate to consider whether his impression about the reliability and accuracy of Mr Sorak’s evidence was correct or whether there was a reason to doubt his evidence that the appellant was the assailant. Also, the errors in the approach of the learned Magistrate which have been identified give cause to consider whether he erred in the matters to which he had regard when making his findings as to the credibility of Mr Sorak and the appellant and Mr Stuart.
I have come to the conclusion that the learned Magistrate did not have regard to the matters indicating that Mr Sorak could have been wrong in his evidence that the appellant was the assailant and whether he should have had a reasonable doubt about the matter. I do not suggest that Mr Sorak was untruthful or that by the time he gave his evidence he did not believe that the appellant was the assailant. I accept that he knew the appellant a year or so earlier. The appellant was on the bus. He had the opportunity to observe the appellant over a period of time, however he did say that he was not looking at the assailant very often and if the appellant’s story is true, he had his back to Mr Sorak. The incident was a frightening and distressing experience for Mr Sorak. He could have assumed that the group of young men and the appellant were together and that the one face he could remember was that of the appellant.
It is surprising to me that the appellant would behave in such an outrageous manner towards someone who knew him and could easily report him to the police. Of course, it is possible that the assailant did not know that the appellant would recognise him, but this is another matter which should have been considered by the learned Magistrate.
I have come to the conclusion that the learned Magistrate erred in his approach to the issue of the credibility of Mr Sorak, the appellant and Mr Stuart. It appears that he used inadmissible evidence to find that Mr Sorak had been consistent in his assertion that the appellant was the assailant. He has used that consistency as a basis for finding that Mr Sorak was a truthful and reliable witness. He has used that finding as establishing that the appellant told lies when he said he was not the assailant. He has used that finding as positive evidence of the appellant’s guilt. It appears that the learned Magistrate equated a finding that Mr Sorak was a credible and truthful witness with his being an accurate witness. They are different concepts. The latter had to be determined in the context of all of the evidence in the case. When that evidence was considered, there were reasons to question the accuracy of the evidence that the appellant was the assailant. That finding may have been open without an adverse finding as to the truthfulness of Mr Sorak. If the correct reasoning processes had been followed, the conclusion could have been that it had not been established beyond reasonable doubt that the appellant was the assailant.
I have not been able to reach a conclusion about these matters on the evidence because of the findings as to the credibility of the witnesses, however, I am satisfied that the conviction for assault cannot stand. Because the issues can only be resolved by findings as to the credibility of the witnesses, which I am unable to make having not seen or heard them, there should be a retrial of that charge.
I allow the appeal and set aside the convictions of assault and larceny. The charge of larceny is dismissed. I quash the sentence. I remit the charge of assault to the Magistrates Court to be heard by another Magistrate. It is for the Police to decide if the matter is to proceed. I realise that the offence was committed by the assailant over 18 months ago and there may be difficulties with a re-trial. However, in the circumstances a verdict of acquittal is not appropriate on this appeal.

[2003] SASC 31

7 February 2003