McKenzie v Police

Case [2015] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MCKENZIE v POLICE

[2015] SASC 78

Judgment of The Honourable Justice Nicholson

20 May 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Appeal against conviction. On 13 March 2015, following a one day trial in the Christies Beach Magistrates Court, the appellant was convicted of the offence of basic assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935. The charged offence resulted from an incident that occurred during a game of Australian Rules Football. The appellant was alleged to have struck his direct opponent with a closed fist to the face away from the play, resulting in the victim sustaining a broken jaw.

Four fundamental contentions were relied on: the prosecution case was not fully put to the appellant during cross-examination; the Magistrate failed to direct himself as to the law underpinning a charge of assault under section 20(4); the Magistrate failed to properly weigh and evaluate the oral evidence submitted at trial; and the Magistrate failed to provide adequate reasons supporting his finding of guilt beyond reasonable doubt.

Held: Appeal allowed on the basis of the fourth contention.  The Magistrate’s reasons as to the burden of proof and its application were not consistent with a finding of guilt beyond reasonable doubt.  The conviction is set aside and the matter remitted to the Magistrates Court for re-trial before a different Magistrate.

Criminal Law Consolidation Act 1935 (SA) s20; Evidence Act 1929 s34P, referred to.
Police v McKenzie [2015] SAMC 20; Browne v Dunn (1893) 6 R 67; Bryant v Police [2003] SASC 260; Baird v Police SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130; Giumelli v Johnston SASC, unreported, Judgement 1880, 2 October 1989; Watherstone v Woolven (1987) 139 LSJS 366; Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Liberato v R [1985] HCA 66, (1985) 159 CLR 507; Abnett v Korber SASC, unreported, Judgment 9363, 2 September 1986, considered.

MCKENZIE v POLICE
[2015] SASC 78

Magistrates Appeal:  Criminal

NICHOLSON J.       

Introduction

  1. This is an appeal against conviction. The appellant was charged, by way of information and summons dated 12 March 2014, with the offence of basic assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The charge arose out of an incident that occurred during a game of Australian Rules Football between the Edwardstown Football Club and the Happy Valley Football Club. The appellant, representing Happy Valley, is alleged to have deliberately punched…

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McKenzie v Police [2015] SASC 78
Case
[2015] SASC 78
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CaseChat Overview and Summary

The case of McKenzie v Police involved the appellant, McKenzie, who was convicted of assault by the Magistrates Court of South Australia. The incident in question occurred during a football game when McKenzie struck the complainant, causing injuries to the complainant's face. McKenzie appealed the conviction to the Supreme Court of South Australia, arguing that the Magistrate failed to apply the correct criminal burden of proof and that there was inadequate reasoning provided for the decision. The court was required to determine whether the appeal should be allowed, the conviction set aside, and a new trial ordered.

The primary legal issue the court had to decide was whether the Magistrate applied the correct criminal burden of proof in the original trial. McKenzie argued that the Magistrate did not properly consider the evidence and failed to provide adequate reasons for the conviction. The court also needed to assess whether the Magistrate's decision contained sufficient reasoning to demonstrate that the criminal burden of proof was correctly applied. Furthermore, the court had to consider if the error in applying the burden of proof was so significant that it warranted a new trial.

In its decision, the court found that the Magistrate's judgment did not provide adequate reasons to demonstrate that the correct criminal burden of proof was applied. The court held that the Magistrate's reasoning did not sufficiently address the evidence presented and did not clearly establish that the burden of proof was correctly applied. Consequently, the court concluded that the appeal should be allowed, and the conviction set aside. The matter was remitted to the Magistrates Court for re-trial before a different Magistrate, ensuring that the correct legal principles were applied in the new trial.

The court made the following orders: 1) the appeal was allowed; 2) the appellant's conviction for assault was set aside; and 3) the matter was remitted to the Magistrates Court for re-trial before a different Magistrate.

Orders

Orders of the court

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Background

Background to the litigation

The notice of appeal was filed on 27 March 2015. However, an amended notice of appeal was provided to the Court and to the respondent two days prior to the hearing of the appeal which took place on 6 May 2015. Permission to file the amended notice of appeal was not opposed and was granted. The amended notice relies on various overlapping grounds which can be grouped so as to give rise to four fundamental contentions. The appeal should be allowed and a new trial ordered because I am not persuaded that the Magistrate necessarily applied the criminal burden of proof (the fourth contention). As such, I will deal only briefly with the appellant’s other contentions.Factual background The football game was a semi-final match in the Southern Football League and took place on the afternoon of 7 September 2013 at Bice Oval, Christies Beach. At the commencement of the game the appellant and the complainant were matched up, that is, marking one another with the complainant playing in the position of half-forward flank and the appellant in the corresponding position of half-back flank. The eyewitness accounts given at trial as to the precise manner by which the complainant sustained his injury differed in critical respects. However, the following is common ground. At approximately the 10 to 15 minute mark of the first quarter, Happy Valley registered a behind.[1] Edwardstown’s resultant kick-in from its goal square took the play to about the 50 metre arc of the end it was defending. As the possession of the ball was being contested by a congested group of players near the boundary, the appellant and the complainant were jogging, at slow pace and in very close proximity to one another, through the middle of the ground. At a location approximately 40 metres away from the play, the complainant was struck to the left side of his face by the appellant and fell to the ground. He was awarded a free kick and, after taking the free kick, was assisted from the ground.[2] [1] In Australian Rules Football points can be scored by kicking a goal between the defending team’s central posts (six points) or kicking to the side of one of the central posts but between that post and another, outer, post (one point). The latter is referred to as a “behind” or, affectionately, by devotees of other football codes, as a point for trying.[2] No match official, including the umpire, gave evidence and there was no evidence before the Magistrate concerning why the free kick was awarded. The complainant was taken to the Emergency Department of the Flinders Medical Centre for treatment. Scans revealed two fractures to his lower mandible and a partly erupted molar tooth on his lower left side in line with the posterior fracture. The latter was thought to be consistent with having been caused by the injury to his jaw. The following day the complainant had an operation in which two plates and screws were inserted into the fracture sites of his lower mandible. The molar tooth lying in the fracture line was extracted. The complainant spent two nights in hospital. He continues to experience pain and discomfort as a result of the injury, particularly when eating.

Evidence

Evidence Before The Court

The appellant was charged, in accordance with the rules of the competition, with the offence of “striking”. A (football) tribunal hearing was convened on 17 September 2014. The appellant pleaded not guilty to the charge. However, the charge was found to have been made out and the appellant was suspended for a number of matches. The Magistrate, quite correctly, directed himself to ignore these events. However, the complainant reported the incident to the South Australian police which resulted in these proceedings. The evidence led at trial The prosecution adduced evidence from the complainant and from Mr Brenton Hales, a spectator. According to the complainant, he and the appellant were about 40 metres away from the play with no one else in their near vicinity. The complainant was jogging through the centre of the ground and the appellant was following close behind but slightly to the complainant’s left. As he was watching the play downfield he was struck by the appellant with a closed right fist to the left side of his jaw. After he fell to the ground, the appellant stood over him and said “I told you I would get you”. During cross-examination, the complainant admitted that he did not see the actual strike occur. However, he recalled seeing a fist as it came into contact with his face. He deduced that he had been struck by a “closed fist roundhouse blow” to the face. It was put by counsel for the appellant that the complainant’s account was merely a reconstruction of events based on his conversations with club officials at training in the week following the game. This was denied. The complainant agreed with the general propositions that pushing and shoving commonly occurs away from the play during a game of Australian Rules Football and that players often get seriously hurt in the normal course of a game. However, the complainant maintained that this incident was different in that it involved a deliberate act of violence occurring away from the ball and outside the rules of the game. It was put to the complainant that leading up to the incident he had been acting aggressively towards the appellant, that he had been throwing his elbows, arms and fists around at other players in a “liberal” manner and that, on at least two occasions, he had illegally struck players from Happy Valley away from the ball. The complainant strenuously denied those allegations. Mr Hales attended the game in his role as a talent scout and recruiter for South Adelaide, a club in the South Australian National Football League. He arrived only a few minutes before the incident occurred. Mr Hales was about 30 or 40 metres from where the incident took place and said that he had an unrestricted view of what unfolded. He recalled seeing a Happy Valley player punch an Edwardstown player to the jaw whilst they were walking towards the southern end of the oval. The Edwardstown player fell to the ground as a result. He later identified the two players involved as the complainant and the appellant. According to Mr Hales, the two were side by side at the time of the incident with the appellant on the complainant’s right-hand[3] side. Mr Hales said that the appellant struck the complainant on the left side of his face with his right fist. [3] In this respect, Mr Hales’ evidence was inconsistent with that of the complainant, the appellant and the appellant’s team manager (Mr Brenton Page) who all recalled the appellant being on the left. The relative positions of the protagonists at the time the blow was struck was of importance to the defence case for a reason to be explained.

Decision

Reasons for decision

NICHOLSON J
The Magistrate may well have been persuaded beyond reasonable doubt but I cannot be satisfied of this given these modes of expression. In this respect, the observation of Von Dousa J in Abnett v Korber[36] is apposite and determinative.The mere recital of a correct direction on the onus of proof at the commencement or conclusion of a judgment will not justify the result if, upon consideration, the court’s reasoning or findings illustrate either that an incorrect onus of proof was applied in fact or that there was evidence, not rejected by the court, which left open reasonable doubt about elements of the offence charged.[36] SASC, unreported, Judgment 9363, 2 September 1986 at pp6-7.Conclusion I allow the appeal on the basis of this fourth contention. I have not had the advantage of seeing and hearing the witnesses and given my conclusion above with respect to the third contention, I consider that the appropriate exercise of the discretion is to order a re-trial. I make the following orders:1. appeal allowed;2.the appellant’s conviction for assault is set aside; and3.the matter is remitted to the Magistrates Court for re-trial before a different Magistrate.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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