McKenna v Lyons - [2018] TASSC 54

[2018] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: McKenna v Lyons [2018] TASSC 54

PARTIES:  McKENNA, Angela
  v
  LYONS, Jason

FILE NO:  2031/2017
DELIVERED ON:  19 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  16 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Appeal against finding of guilt on one count of common assault – Whether finding of guilt was reasonably open to the magistrate – Evidence of injuries and from eye witness support magistrate's finding – Finding of guilt clearly open to the magistrate.

Cuthbert v Coates [2018] TASSC 7, applied.
Aust Dig Magistrates [1153].

REPRESENTATION:

Counsel:
           Applicant:  In person
           Respondent:  S Thompson
Solicitors:
           Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 54
Number of paragraphs: 14

Serial No 54/2018
File No 2031/2017

ANGELA McKENNA v CONSTABLE JASON LYONS

REASONS FOR JUDGMENT BRETT J

19 October 2018

The applicant was charged on complaint with one count of common assault, arising from events which occurred on 14 November 2015. She was alleged to have punched her former partner's girlfriend in the face during a verbal exchange between them, after a chance meeting on the dance floor during the course of a musical event. The complaint was heard by Magistrate T Jago. On 5 May 2017, her Honour found that the charge had been proved. The applicant was fined the sum of $650, although the magistrate did not record a conviction.
On 14 July 2017, well outside the 21 day time limit imposed by the Justices Act 1959, s 107(3), the applicant filed a notice of motion seeking review of both conviction and sentence. On 8 November 2017, Pearce J extended that time limit to the date of filing of the notice. His Honour granted the extension of time on the basis of grounds of review which asserted that:
(a)the magistrate could not, as a reasonable person, on the evidence before her, have been satisfied beyond reasonable doubt of the applicant's guilt in respect of the charge; and
(b)the sentence imposed was manifestly excessive.
The applicant appeared before me on the hearing of the motion without legal representation. It became clear during the course of submissions that she had no complaint in relation to the severity of sentence. Her concern was with the finding of guilt, and she pressed the ground relating to that finding. However, the applicant, in effect, abandoned the ground relating to sentence. That concession was appropriate. It is beyond argument that a modest fine without conviction in respect of a relatively serious assault was within the proper sentencing discretion of the magistrate.
In relation to the ground which attacks the finding of guilt, the question for me is whether such a finding was, on the evidence before the magistrate, open to her as a reasonable person. That ground can therefore only succeed if I am satisfied that the magistrate, as a reasonable person, could not have been satisfied of the applicant's guilt, beyond reasonable doubt: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21. As I noted in Cuthbert v Coates [2018] TASSC 7 at [5]:
"The reviewing court is not entitled to 'weigh the evidence and reach its own conclusions', Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454 per Porter J. The only question for me is whether the conclusion reached by the magistrate was reasonably open on the evidence."
The person against whom the offence was allegedly committed was Serena Anderson. Ms Anderson was, at the time in question, in a relationship with the former partner of the applicant. It seems that the relationship between the applicant and her former partner was somewhat acrimonious, although prior to the events in question, Ms Anderson and the applicant had not met.
On the day of the alleged offence, both women were present at the Pear Tree Café at Sisters Beach. They were both there to listen to the performance of a local musician. By the time of the relevant events, each of them had consumed some alcohol.
At one point during the performance, while they were both on the dance floor, a conversation commenced between them. The evidence of each was that this was the first time they had met and conversed, and the conversation commenced pleasantly. However, it is common ground that the conversation became tense when it traversed matters relevant to their respective relationship with applicant's former partner. Each blamed the other for taking the conversation in that direction. Ms Anderson's evidence was that, after some tense exchanges, the applicant accused her of smirking at her and then she felt, "an excruciating pain" in her face. She did not see what caused this pain, but quickly realised that her face was bleeding profusely. The applicant's version was that Ms Anderson kept touching her on the breast as she was talking to her, and was also stepping towards her, causing the applicant to step backwards. Eventually the applicant asked Ms Anderson to stop touching her on the breast. Shortly after this, Ms Anderson raised her hand as if to strike the applicant. The applicant knocked her hand out of the way, but did not strike her in the face. Each disputed in cross-examination the version of the other.
Photographic and medical evidence established that Ms Anderson had suffered a significant wound to the bridge of her nose, together with a nasal fracture. These injuries were, of course, consistent with Ms Anderson's version. The defence claimed that the injuries, in particular, the wound on the nose, were also consistent with the applicant's version. The applicant asserted that Ms Anderson was wearing a large ring with protruding studs. It was suggested by her counsel that the wound to her nose could be explained by the ring being forced across her face when the applicant knocked Ms Anderson's arm away.
The musician gave evidence that she had witnessed the relevant events. She did not know either woman well, and can reasonably be regarded as an independent witness. She had not consumed any alcohol and was only some metres away from the women at the time of the said events. She said that she saw the applicant punch Ms Anderson "on the nose or the middle of the face". She did not recall seeing Ms Anderson's arms move towards the face of the applicant immediately before this happened. In cross-examination, she said that the punch was in the nature of a jabbing motion.
Finally, a man who knew the applicant gave evidence that soon after the relevant events, the applicant had walked past him and said something to him about the relevant events. Although he was somewhat vague as to what was actually said, the applicant conceded in her testimony that she had said to him, "I think I've done something really stupid, I think I've hit Josh's girlfriend."
After reserving judgment, the magistrate delivered detailed reasons for her decision that the charge had been proved. Her Honour found Ms Anderson "to be an honest and believable witness", and was impressed with her accuracy and honesty. The magistrate was satisfied that the musician was a truly independent witness. She was close to the women, unaffected by alcohol, and clearly in a position to see what had happened. The magistrate was satisfied that the witness described seeing the applicant punch Ms Anderson. Her Honour was also satisfied that the injuries and the comment made by the applicant to the male after the event, were consistent with her having committed an assault, and inconsistent with any suggestion that she had knocked Ms Anderson's hand away in self-defence.
In my view, the evidence overwhelmingly established that the applicant had unlawfully assaulted Ms Anderson. The evidence of the injuries, and the independent evidence of the musician, in my view clearly and overwhelmingly support the magistrate's finding. The applicant suggested in submissions that the evidence of the musician could be reconciled with her version, but I do not agree. That witness clearly described a punch to the face, and excluded a defensive motion. Her evidence corroborated the testimony of Ms Anderson. On Ms Anderson's version, there was no room for a finding that the applicant had acted in self-defence. Even if she had acted defensively, there can be no real suggestion that the applicant acted reasonably by punching Ms Anderson with considerable force to the middle of the face.
Accordingly, the finding of guilt was clearly open to the learned magistrate. It follows that there is no merit in the ground of review.
The motion is dismissed.