McKenzie v Bennett
[2000] WASCA 217
•18 AUGUST 2000
MCKENZIE -v- BENNETT [2000] WASCA 217
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 217 | |
| Case No: | SJA:1073/2000 | 26 JULY 2000 | |
| Coram: | WHEELER J | 18/08/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | BRENTAN JOHN MCKENZIE BRIAN MICHAEL BENNETT |
Catchwords: | Justices Appeal Children's Court Reasonable apprehension of bias Justices Appeal Children's Court Witnesses Motives to lie Proof of guilt beyond reasonable doubt Correct test applied Justices Appeal Children's Court Evidence Witnesses Consideration of discrepancies in prosecution and defence cases Credibility Turns on own facts |
Legislation: | Nil |
Case References: | Galea v Galea (1990) 19 NSWLR 263 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Palmer v The Queen (1998) 193 CLR 1 Appleton v Pavlos, unreported; SCt of WA; Library No 980079; 26 February 1998 Ciminata v Reynolds [2000] WASCA 97 Grassby v The Queen, (1989) 168 CLR 1 Harling v R (1997) 94 A Crim R 437 Minga v Cramp, unreported SCt of WA; Library No 950330; 11 July 1995 Vakauta v Kelly (1989) 167 CLR 568 Webb v The Queen (1993-1994) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BRIAN MICHAEL BENNETT
Respondent
Catchwords:
Justices - Appeal - Children's Court - Reasonable apprehension of bias
Justices - Appeal - Children's Court - Witnesses - Motives to lie - Proof of guilt beyond reasonable doubt - Correct test applied
Justices - Appeal - Children's Court - Evidence - Witnesses - Consideration of discrepancies in prosecution and defence cases - Credibility - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Ms H L Marshall
Respondent : Ms V R Campbell
Solicitors:
Appellant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Galea v Galea (1990) 19 NSWLR 263
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Palmer v The Queen (1998) 193 CLR 1
Case(s) also cited:
Appleton v Pavlos, unreported; SCt of WA; Library No 980079; 26 February 1998
Ciminata v Reynolds [2000] WASCA 97
Grassby v The Queen, (1989) 168 CLR 1
Harling v R (1997) 94 A Crim R 437
Minga v Cramp, unreported SCt of WA; Library No 950330; 11 July 1995
Vakauta v Kelly (1989) 167 CLR 568
Webb v The Queen (1993-1994) 181 CLR 41
(Page 3)
1 WHEELER J: This is an appeal against conviction, the appellant having been convicted of assault occasioning bodily harm arising out of an incident which took place at the senior high school which the appellant was then attending. Before turning to the grounds of appeal, it is convenient to recount in some little detail the way in which the case developed.
The Course of the Trial
2 The complainant's evidence was that at recess he had been in the toilet block of the school with a friend of his called John, that the appellant then entered the toilet block and appeared to be staring him, and that he asked the appellant what he was looking at. The appellant then shrugged and left. Later, shortly before the end of the lunch break, the complainant was in the canteen area and saw the appellant with a group of about a dozen of his friends. Something (it is not quite clear what) prompted the appellant to ask another person what was going on and the appellant then hit the complainant twice to the face. He sustained a black eye and apparently some minor fractures.
3 In cross-examination, it was put to the complainant that a number of witnesses would give evidence as to some aggression on his part towards the appellant both at recess and then, by way of a push with his fists to the chest or stomach area at lunchtime. He denied that anything of the kind had taken place. So far as the lunchtime incident was concerned, the evidence of the complainant was supported by two teachers who gave evidence in very similar terms. They said they saw a gathering of students, which indicated that something was about to take place. They noticed the appellant standing with a group of his friends and saw the appellant apparently say something to the complainant and then hit him twice in the head. One of the two gave evidence of being near the group of the appellant's friends immediately before this incident and expressed the view that they were obviously watching the complainant; he overheard one of them mention the complainant's name. Both said that they had an unobstructed view of the entire incident and saw nothing in the nature of a push or punch to the stomach or chest area by the complainant at any time.
4 The appellant then gave evidence. His account of the incident at recess was that he was in the toilet block and that while he was in there the complainant asked what he was looking at; he shrugged, went to the toilet and then went to wash his hands. He said that after he had washed his hands, as he was walking through the door, the complainant
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- "smashed" him into the wall and threatened to get him after school. He said that only he and the complainant were in the toilets at the time. Near the drink tap he was pushed by the complainant; he then walked off and got a drink, walked around a corner (perhaps around two corners) and came to where his friends were. He could hear the complainant yelling at him but he was not sure what was being yelled. Then, in the canteen he said that at lunch the complainant and his friend walked up to him where he was with a few friends, called him a number of names, pushed him with two fists in the chest and then "came at him" with his right hand as if he were trying to hit him. It was only then, he said, that he retaliated, punching the complainant in the face.
5 At the point in the appellant's evidence when he was recounting the push in the chest, the following exchange took place:
"HIS WORSHIP: Just before we go on … I am concerned here. The prosecution evidence, as I'm sure you will agree, is exceedingly strong. We've got a bunch of young people who have obviously been lined up to give evidence today, and I'm very concerned that they're placing themselves or may be placing themselves in jeopardy.
…
This is an issue I'm sure you've discussed with your client, but I really feel obliged to raise it at this point. It is very strong prosecution evidence indeed.
MS MARSHALL: Yes Sir. It may appear to be that way. I feel my witnesses are also strong witnesses, so what can I do? I have to call them. …
HIS WORSHIP: Well, be that as it may, as long as they're aware."
6 Counsel for the complainant volunteered to speak to the witnesses at lunchtime and his Worship suggested that "They need to be warned".
7 Jarrad Miles, who was then in Year 11 at high school, gave evidence. He had been a friend of the appellant's since primary school. His evidence was that at recess he sat or stood near the appellant and another friend and that the complainant then walked passed and started cursing. He recounted the language used by the complainant. He said the complainant was with the complainant's friend John. At lunchtime he said
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- that he saw the complainant push the appellant with two clenched fists but said nothing about the other raising of the arm and his evidence was that the complainant then tripped over. In cross-examination, he appeared to agree that the appellant punched the complainant without there being any provocation other than perhaps an "exchange of words" and he agreed that it was possible that the complainant did not trip, but fell, as a result of the punches.
8 Matthew Alan Taylor gave evidence that he was standing outside the toilets getting a drink when he saw the appellant come "flying out" the door having been pushed or being pushed by the complainant and another person. He said he was standing outside the toilets near the drink taps. At this stage, his Worship intervened again, saying, "I really am concerned Ms Marshall. We're getting a different version again now. We really are." He noted that he was concerned that the young people who would give evidence were placing themselves in jeopardy of being charged with perjury. He noted that the evidence that was being given was different from that of the appellant himself. The witness then withdrew and the following exchange took place, which I think it is appropriate to set out in full:
"HIS WORSHIP: It's one thing for a defendant to come along and say, 'I didn't do it. It's not me,' or 'I did it because of this, that and the other reason.' But once we start having the situation where he's bringing all his friends along to back him up and, as I've just heard, back him up with a different story to what he himself has said, in the face of an exceedingly strong prosecution case, they are placed in very serious jeopardy, and it really does concern me. If you insist and if they are going to give their evidence, yes, I have no choice; I'll hear it. But I'm just concerned that they don't understand the implications of what's happening, and I wonder whether or not you should further discuss the matter with them.
MS MARSHALL: Well, I have discussed the matter. I don't - - they're just telling it how they saw it, so, I mean, perhaps if we can come back after lunch and I consider it. It's just - -
HIS WORSHIP: I'm not delaying things until after lunch. We'll break for lunch at 1 o'clock. But I'm not suggesting that we stop from now until 2.15. This will be finished today.
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- MS MARSHALL: Well, I've explained to them that they've got to tell the truth and the consequences if they don't, and they're telling me that that's the truth, so I'm - -
HIS WORSHIP: Well, I mean, you've heard the prosecution case. You've heard the prosecution case. The defence case is that every one of the prosecution witnesses is lying, under oath, on every point. On every point.
MS MARSHALL: Well, not on every point.
HIS WORSHIP: And now we've got a situation where we're having a witness for the defence coming along, telling something that is significantly - on a particular point - - we've only just got into his evidence but it's already significantly different on a point to something the defendant himself has said.
MS MARSHALL: I'm not quite sure what you mean by that, sir.
HIS WORHSIP: There was no evidence from the defendant that he came out of the toilet, being pushed in the back by the defendant (sic complainant). Each witness that's come for the defence - the previous fellow and the defendant and now this fellow - is giving evidence about different words having been spoken, and I'm concerned that it appears we're going to have a string of witnesses this afternoon that are all going to be giving different versions of the situation, and it's almost inevitable in the face of such a strong prosecution case that they're placing themselves in some considerable jeopardy.
Now, I think they need - - it's inappropriate, I think, for me to give each witness a stern warning about the dangers of perjury, because in my experience where that's done by the court it can inhibit the giving of evidence in any event, event honestly given evidence. But I do think it's important that they have that warning, and my suggestion is that we adjourn for 5 minutes while you speak to the witnesses, pointing out my concerns, and if they then, having had that warning, wish to give their evidence on oath then, so be it. So be it.
MS MARSHALL: Okay.
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- HIS WORSHIP: So I think we'll adjourn for 5 minutes so that can happen. And I wouldn't have raised it again, Ms Marshall, had it not been that we've got a different - - a point of significant difference here, in my view, to what the defendant has already given evidence about."
9 Following the adjournment, counsel for the appellant applied for his Worship to disqualify himself on the basis that his mind was already made up. His Worship refused to do so. The relevant passage of the transcript is:
"HIS WORSHIP: No. No. No. That's not the case. I'm simply wanting them to be warned of the dangers. I mean, the evidence is quite clear, Ms Marshall. We have a discrepancy between what the last witness said and what the defendant has said. There is no question that the prosecution case is very strong. Now, whether the defence case is very strong also is another issue.
But my concern is that in the face of a very strong prosecution case, which you must acknowledge is the case - -
MS MARSHALL: Well, all the witnesses - -
HIS WORSHIP: - - in the face of that we have now discrepancies appearing in the defence case. I'm simply concerned that they be warned.
MS MARSHALL: They've been warned.
HIS WORSHIP: Very well. We will continue."
10 Other friends of the appellant then gave evidence. They had accounts that differed from the appellant's evidence on the issues of who had entered the toilet block first and what was said at recess. They also gave somewhat different accounts of what had occurred at lunchtime. Although all of them said that the complainant had struck or pushed the appellant first, some said that their attention had been attracted because it appeared to them that clearly there was going to be fight while others said that nothing unusual was taking place prior to the push or attempted blow by the complainant. Some of the witnesses appeared to be attempting to assist the appellant in a way which perhaps went beyond their personal knowledge; for example, Mr Taylor conceded that at recess he had not
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- actually seen the appellant being pushed but commented that he "just had a look on his face that he'd been pushed".
The Magistrate's Findings
11 His Worship adjourned for a short time after addresses from defence counsel and the prosecuting sergeant. He noted that the element of bodily harm was admitted and he noted of course that the burden of proof was on the prosecution. He took the view that there was no possibility of mistake in the evidence of the prosecution witnesses; rather, he said that the differences in the accounts meant that this was a case in which the only possibility was that one or the other set of witnesses was deliberately lying.
12 In my view, that was clearly a proper view to take of the evidence in this case. Although it was put to his Worship that the teachers, for example, might not have seen the entirety of the incident in the canteen, their evidence was plainly that they had seen it from beginning to end, that they had seen the appellant approach the complainant and that they had then seen the appellant strike the complainant with no intervening action on the part of the complainant. They explained their reasons for believing that they had had a clear view of the entire incident.
13 His Worship noted that the complainant gave evidence well and did not waiver during the course of the cross-examination and that the same could be said of the teachers who gave evidence. He said that each of the prosecution witnesses impressed him with the way in which they gave their evidence and with their demeanour. His Worship continued:
"That, of course, is not the end of the matter, for the situation is that if the defence also is able to present credible evidence and consistent evidence, then the defendant must be given the benefit of any doubt that might arise from trying to decide who is telling the truth; either the prosecution witnesses or the defence."
14 His Worship went on to say that it was important to examine not only the evidence in this case but to consider what motive there might be for anyone to lie to the court. He noted that the defence witnesses were close friends of the appellant. He noted that the complainant might have a motive to lie in order to cover up bad behaviour on his part, which might have provoked the appellant and, although there was no cross-
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- examination on that point, his Worship referred also to criminal injuries compensation as a further potential motivation for a complainant.
15 His Worship noted that there were two witnesses - the two teachers - who apparently had no motive to lie. He observed:
"I had just racked my brain and I couldn't imagine any motive there. Now, all of that, and the fact that the teachers have no conceivable motive to come to court to commit perjury, together with the fact that each of the teachers gave their evidence, in my view, extremely clearly, extremely well, gives their evidence considerable weight."
16 His Worship then said that in determining whether or not anyone had lied, it was helpful to see whether their version differed from that of others who had given evidence. He could see no relevant discrepancies amongst the evidence of the prosecution witnesses. However, so far as the defence witnesses were concerned, his Worship saw a number of discrepancies and he then analysed them. They involved questions of whether the appellant and the complainant had been in the toilets alone, or with the complainant's friend John (who did not give evidence and who was said by the complainant to have been on holiday at the time of the trial); the question of whether the appellant's friends were in a position to view what happened at the toilet, the appellant having said that they were around a corner at the time, differences in the words spoken, which were not matters of simply a difference in a word here or there but very significant differences; and then differences in relation to what sort of push occurred in the canteen, whether the complainant fell over or was tripped over and whether anyone in the canteen was expecting a fight. His Worship then made findings of facts, which were based upon accepting the evidence of the complainant.
Grounds of Appeal
17 There are nine separate grounds of appeal, and one proposed additional ground of appeal. It is not necessary to set them all out. Some are minor and can be disposed of at once. Ground (e) relates to an apparent refusal by his Worship of a request by counsel for the defence to have access to the tape-recording of the proceedings during the luncheon adjournment. There is no evidence of how this request came to be made, or what its purpose was said to be, or of what reasons may have prompted the apparent refusal of the request. Although it was said that the refusal indicated a further bias on his Worship's part against the appellant, I do
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- not see how this can be so. For all one knows, based on the evidence before me, his Worship may have been listening to the tape himself during the luncheon adjournment. Other appropriate reasons for refusal might readily be imagined.
18 Grounds (g) and (h) deal with the way in which his Worship dealt with apparent discrepancies in the evidence. While it is of course true that one might expect honest witnesses to have inconsistencies in their evidence both internally and as between each other, and it may be often be said that the hallmark of a concocted story is complete consistency between witnesses, in my view it was certainly open to his Worship to regard the discrepancies in this case as amounting to more than the sort of minor variations which are to be expected of truthful witnesses. Particularly in relation to the way in which the varying accounts of the incidents at recess were given, it was open to his Worship to form the view that the appellant's witnesses were attempting to assist him by painting a picture of a relatively serious incident which they had not actually witnessed, with obvious implications for their credibility.
19 Ground (i) suggests that the learned Magistrate failed to give adequate consideration to a pre-sentence report prepared by the Ministry of Justice. It is true that his Worship indicated extreme impatience with the report. His dissatisfaction apparently stemmed from the fact that, rather than suggesting what might have been the causes of the offending behaviour, or any issues with which the appellant needed to deal in order to avoid future offences, it repeated at a number of points the appellant's denial that the offence had occurred at all and set out a number of matters which his Worship took the view would more properly have been the subject of a plea in mitigation by the appellant's counsel. There is no appeal against sentence, nor is there any suggestion that the sentence imposed was disproportionate to the offence, and it seems to me that this ground can have no bearing on the appeal against conviction.
20 The two principal bases of the appeal are his Worship's alleged bias, as evidenced by his twice repeated concern about the possibility of perjury charges against defence witnesses, and the fact that his Worship asked himself the question, in effect, "Who has a motive to lie?"
The Bias Issue
21 So far as the question of bias is concerned, although one of the grounds of appeal tends to suggest that his Worship's insistence on the witnesses being warned might have inhibited the way in which they gave
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- their evidence, this ground does not appear to me to have been pressed. The exchanges between his Worship and defence counsel largely took place in the absence of witnesses (except for one short passage) and his Worship was careful to ensure that witnesses were not warned by him but by defence counsel, who could presumably be entrusted with the task of doing so in a manner which did not unduly inhibit the giving of evidence. Further, in closing submissions, counsel for the appellant noted that the evidence which the witnesses gave was consistent with the witness statements which had been provided to her, so that it appears that the warnings did not alter the substance of the evidence given by the witnesses.
22 The principle governing questions of bias is not in dispute in this case. It is that a Judge should not sit to hear a case if in all the circumstances the parties or an informed member of the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a Judge to adopt the approach that he or she should automatically accede to an application by one party on the grounds of a possible appearance of prejudgment or bias: Livesey v New South Wales Bar Association (1983) 151 CLR 288.
23 There seem to me to be two issues involved in the alleged bias here. First, there is a complaint about his Worship expressing a view at all about the strength of the prosecution case or perceived discrepancies between the evidence of defence witnesses prior to the conclusion of the trial. So far as those matters are concerned, it should be recalled that to a degree, it may be the duty of a trial Judge to expose the development of his or her thinking so that a party has an opportunity to correct any preconceptions or wrong impressions and to persuade: Galea v Galea (1990) 19 NSWLR 263 at 278-80 per Kirby ACJ.
24 In referring to the strength of the prosecution case, his Worship afforded counsel for the appellant an opportunity to focus attention during the examination of the appellant's witnesses, if it were possible to do so, upon any matters which might affect the credibility of those witnesses by, for example, exploring with the appellant's witnesses the question of whether the teachers did indeed have the unobstructed view which they considered that they had had. Drawing attention to what appeared at that time to him to be significant discrepancies in the evidence of the defence witnesses meant that counsel was, at that relatively early stage of the defence case, in a position to clarify perceived discrepancies in
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- examination in chief, perhaps to reconsider whether to call all of the witnesses proposed to be called on behalf of the defence, or at least to look ahead to closing addresses and to give particular consideration to the way in which those discrepancies might be explained. Observations of that kind occurred on two occasions only, and following the application that he disqualify himself, his Worship rightly referred to the fact that he had not heard the entirety of the defence case and that the possibility was certainly open that it might also be a "strong case". I do not see any error in drawing attention to those developing views.
25 It is understandable that concern for the young witnesses who were to give evidence might have been enlivened in his Worship's mind. Indeed, it appears from the course of later cross-examination of the witnesses that even after they had been warned on two occasions of the danger of giving false evidence by counsel for the appellant, their understanding of the seriousness of such a course was, at the least, hazy. For example, Mr Ballantyne was asked in cross-examination, following the two warnings, whether he understood the ramifications if he was caught out telling lies in court. His answer was, "Oh, not really, but you just get in trouble." He amplified that by referring to it as "pretty big trouble". However, it is in my view unfortunate that his Worship twice referred, prior to the calling of all defence witnesses, to his concern that they might be in danger of being charged with perjury. One can see how a reference of that kind might, taken in isolation, lead a reasonable bystander to the view that his Worship had an impression that anyone who gave evidence contrary to what he had described as a strong prosecution case would perhaps be committing perjury.
26 It is always relevant to ascertain whether the witness understands the seriousness and importance of the task of giving evidence in court. That is why particular inquiry is made before the evidence of children can be received, and why questions designed to test whether the witness understands the significance of the occasion are permissible in cross-examination. However, it is in my view most undesirable for a judicial officer to say anything, prior to hearing the evidence of witnesses, which suggests that he or she suspects that those witnesses may not give evidence in accordance with their oath. While the concerns which prompted his Worship's exchanges with counsel are understandable, it is my view that the form which those exchanges took was most undesirable.
27 Notwithstanding my misgivings, I have arrived at the view that in the particular circumstances of this case, his Worship's remarks would not, taken in the context of the trial as a whole, have led a reasonable observer
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- to the perception that his Worship was biased, or had pre-judged the case. His Worship, on the first occasion, expressed no more than a "concern" and counsel for the appellant volunteered then to discuss the matter with witnesses during the luncheon adjournment. On the second occasion too, his Worship expressed himself as having a "concern", although a strong one. However, in the course of discussions with counsel, his Worship's expressed reason for not wishing to warn witnesses himself was that it could inhibit the giving of honest evidence, thereby clearly recognising that the appellant's witnesses may be honest witnesses. It is plain from the transcript that, when the other witnesses gave evidence following these exchanges, his Worship noted their evidence with care, ensuring that the volume and speed of their evidence enabled him to hear and to take notes, asking clarifying questions, and intervening at times to ensure questions were put to them correctly.
28 When his Worship came to give reasons, he recognised that it was not necessary for the defence case to be strong, but rather that "credible" evidence presented by the appellant would then require that the benefit of any doubt that might arise be given to the appellant.
29 It should also be noted that during the course of cross-examination of the appellant's witnesses by the prosecuting sergeant, his Worship intervened on a number of occasions either to suggest that cross-examination was not relevant, or to note that inconsistencies suggested by the prosecutor did not arise. For example, during the cross-examination of Mr Taylor, the prosecutor said, "Well I'm putting it to you, Matthew, that you didn't see anyone push [the appellant]". His Worship then intervened to say, "I think he's already indicated he didn't see." It is apparent that his Worship had a good grasp of the evidence of each witness, and was concerned to ensure that it was understood fairly.
Motive to Lie
30 So far as lies are concerned, it is not my understanding of Palmer v The Queen (1998) 193 CLR 1 that the question of whether a witness has a motive to lie is always irrelevant, as the appellant's counsel appears to suggest. The court in that case recognised that if the complainant were thought to have a motive to lie, it would be permissible to put that to her, and that the jury could take account of any motive which she might have in assessing her evidence. Rather, the court emphasised that question of whether a witness has a motive to lie should not be made the central question of a trial, displacing the question of whether there exists a reasonable doubt in respect of the accused's guilt, and that the absence of
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- a motive to lie does not enhance the credibility of a witness (particularly since the court cannot always be satisfied that it would be aware of a motive if one existed).
31 In this case, the learned Magistrate correctly stated that the question was whether there was a reasonable doubt arising from any of the evidence as to the appellant's guilt. As I have already noted, it was a case in which it appeared that the only explanation for the range and significance of the differences between the appellant's witnesses and the prosecution witnesses was that some of them must have been lying. He did not err in noting that the complainant could have a motive to lie and that the appellant's witnesses might also have a motive to lie in their friendship with the appellant. Those were matters that were capable of affecting his assessment of the credibility of those witnesses.
32 Against that background, asking the question of why the teachers would have a motive to lie may be seen as no more than an attempt by his Worship to examine, fairly, the question of whether any like factors might exist in relation to the evidence of the teachers. If they could conceivably have a motive not to tell the truth, his Worship was displaying a willingness to take that into account in assessing their credibility.
33 In the way in which his Worship then expressed himself, it might be argued that he fell into error in saying that the fact that the teachers had no conceivable motive to commit perjury, together with the fact that they gave their evidence extremely clearly and well, together "gives their evidence considerable weight". That might be read as suggesting that the absence of motive enhanced their credibility. However, it is to be remembered that it was a decision delivered extempore, albeit after a short break. It is equally possible, particularly in circumstances where his Worship had already expressed a very favourable view of the demeanour and consistency of the evidence of the teachers, that he was saying no more than that it had weight because of that fact and that there was nothing which he could find by way of a motive to lie to set against that favourable impression.
34 Nor can it be said, in my view, that the question of "who has lied?' was the "central theme" of his Worship's reasons. He gave attention to the demeanour of the witnesses and also carried out a detailed analysis of what appeared to him to be significant discrepancies in the evidence of those witnesses called on behalf of the appellant. That examination of the discrepancies occupied the greater part of his reasons. Those discrepancies led his Worship to the view which he expressed that, "they
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- are not truthful witnesses". In those circumstances, in my view, a fair reading of his Worship's reasons leads to the conclusion that his satisfaction beyond reasonable doubt of the guilt of the appellant rested primarily upon discrepancies between the evidence of the appellant's witnesses and upon a favourable impression of the demeanour of the prosecution witnesses, with the question of the motive of certain witnesses to tell lies forming but one strand in his assessment of the evidence of those witnesses.
35 For the reasons which I have given I would dismiss the appeal.
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