Mohamad v McDonald
[2010] TASSC 45
•7 October 2010
[2010] TASSC 45
COURT: SUPREME COURT OF TASMANIA
CITATION: Mohamad v McDonald [2010] TASSC 45
PARTIES: MOHAMAD, Mohamad
v
McDONALD, Scott
FILE NO/S: 413/2010
DELIVERED ON: 7 October 2010
DELIVERED AT: Hobart
HEARING DATE: 4 October 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally.
Roughley v R (1995) 5 Tas R 8, applied.
Justices Act 1959 (Tas), s110.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: G T Stevens
Respondent: S Nicholson
Solicitors:
Applicant: E R Henry Wherrett & Benjamin
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 45
Number of paragraphs: 35
Serial No 45/2010
File No 413/2010
MOHAMAD MOHAMAD v SCOTT McDONALD
REASONS FOR JUDGMENT TENNENT J
7 October 2010
The applicant has applied to review his conviction by a magistrate on one count of assault. The allegation of assault arose out of an incident which occurred at a nightclub known as Curlys situated in Murray Street in Hobart. It was alleged that the applicant unlawfully assaulted Nawwar Alshawi ("the complainant") by punching him to the head.
The learned magistrate heard evidence from the complainant and a friend, a Mr Hesari, for the prosecution, and the applicant, a Mr Anagnostis and a Mr Yousef Mohamad for the defence. All the evidence was heard on 9 April 2010, the incident having occurred on 12 July 2009, some nine months earlier. The learned magistrate reserved his decision and delivered written reasons on 19 May 2010. He found the complaint proved.
The notice to review was in the following terms:
"1That the learned magistrate erred in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt.
2That the learned magistrate erred in law in finding that the complainant had suffered a broken jaw and that the injury corroborated the complainant's version of events
PARTICULARS
a There was no evidence admissible on the hearing that the complainant had suffered a broken jaw.
b The evidence given by the complainant as to the broken jaw was hearsay and inadmissible.
3That the learned magistrate erred in fact and/or in law in discounting the evidence of the applicant on the basis that it is likely that his recollection was impaired by alcohol.
4That the learned magistrate erred in law in finding that it was likely that the applicant had consumed alcohol at the nightclub when there was no evidence that the applicant had consumed alcohol.
5The learned magistrate erred in fact and/or in law in discounting the evidence of the applicant on the basis that he did not have a good recollection of events.
6The learned magistrate erred in fact in finding that the applicant denied approaching the complainant.
7That the learned magistrate erred in law in finding that evidence given by the witness Yousef Mohamad called for the defence should be discounted.
PARTICULARS
The finding that Yousef Mohamad's evidence lacks detail was not supported by the evidence.
The finding that Farzin Hesari would not appear and give false evidence when, had the evidence been false, he could simply not have appeared is unsupported by any evidence.
The finding that Farzin Hesari lacked a motive and that there was no explanation as to why he would give false evidence is irrelevant and places an onus of proof upon the defendant where there is no such onus.
8The learned magistrate erred in fact and/or in law in finding that the inconsistencies in the evidence of the complainant and Farzin Hesari were minor and consistent with a lack of collusion.
9The learned magistrate erred in law in failing to state any or any sufficient reasons in relation to the prosecution proving beyond reasonable doubt that the applicant was not acting in self defence."
Ground 2
In the course of his evidence, the complainant said he suffered a broken jaw on the right side and some bruising and swelling to his face. There was no medical evidence called in respect of the injuries, nor was there any expert evidence about how the injuries might have been caused. Counsel for the applicant at the hearing before the learned magistrate made no objection when the evidence about the broken jaw was led.
The learned magistrate was shown some surveillance footage from the nightclub. It did not show the assault, but showed events which occurred immediately after. It showed the complainant and the applicant moving at speed across an area in the nightclub, and ending up on the floor. The complainant is moving forwards and the applicant backwards. The broken jaw evidence obviously assumed some significance for the learned magistrate. When the complainant was giving his evidence, the learned magistrate intervened at one point to ask the complainant whether the move across the floor of the nightclub occurred before or after his jaw was fractured. The complainant said, "after". A little later, when the complainant was being cross-examined, the learned magistrate intervened, querying the relevance of a matter about which counsel for the applicant was questioning the complainant. His Honour said:
"Anyway what's the relevance of it? I mean what's the relevance to what happened after he had his jaw smashed?"
There was never any evidence, apart from that of the complainant, about when the broken jaw might have occurred. There was no evidence to suggest the complainant's jaw was "smashed". Not even the complainant said anything about, for example, suffering immediate pain when the injury was said to have occurred such as to identify the time.
In his reasons for decision, the learned magistrate set out a number of reasons why he preferred the prosecution case to that of the defence. He said:
"Mr Alshawi gave evidence that he suffered a broken jaw in the incident. This assertion was not disputed and is consistent with being struck by the fist by Mr Mohamad as alleged by Mr Alshawi and Mr Hesari."
On this review, counsel for the applicant submitted that the evidence of the complainant that he suffered a broken jaw was inadmissible. The basis of this submission was that the evidence was hearsay and, in itself, not relevant. The fact that an injury may have occurred is not an element of the crime of assault. However, that a particular injury may have occurred as a result of an application of force may be relevant if, for example, there is evidence from an expert that a particular application of force is likely to cause a particular type of injury consistent with that suffered by a complainant. There was of course no such evidence given in this case. In isolation, the evidence was not admissible. The learned magistrate should have excluded the evidence. He had an obligation to exclude inadmissible evidence even in the absence of an objection from counsel. See Roughley v R (1995) 5 Tas R 8.
The learned magistrate appears to have taken the view that the evidence was not disputed. The existence of a broken jaw may not have been challenged, in that it was not put to the complainant that he did not suffer such an injury. However, when it might have occurred was in issue, in that it was put to the complainant that it may have occurred during the course of the events after the alleged assault. On the evidence before him, it was not open to the learned magistrate to make a finding that the complainant had suffered a broken jaw based on the evidence of the complainant alone and, more particularly, that whatever that (a broken jaw) encompassed was consistent with a punch by the applicant.
I am satisfied that the learned magistrate made an error when he drew the conclusions that he did. Ground 2 should therefore succeed.
Grounds 3 and 4
The learned magistrate found at 9 of his reasons:
"Mr Mohamad had arrived at the nightclub approximately 2 hours before. He had consumed 'a couple of drinks before he arrived'. Although there was no evidence as to what 'a couple of drinks' meant or whether Mr Mohamad had consumed alcohol at the nightclub, it is likely that he had been drinking alcohol at the nightclub as well. It is likely that he was to some extent affected by alcohol."
The evidence of the applicant was that he arrived at the nightclub at about midnight. He was asked if he had been drinking before he got there. He said, "I probably would've had one, maybe two pre-drinks at home beforehand." He said he did not drink, I infer alcohol, at the club. Under cross-examination, it was put to him he had had "a little bit to drink that night". He responded by saying, "Two drinks before I went out". He denied that he was affected by alcohol.
The part of the reasons of the learned magistrate set out above appears to suggest that he is quoting evidence from the applicant. However, no such words appear in the transcript of the applicant's evidence. The evidence of the applicant was clear and unambiguous. He had two drinks at home, he had none at the club, and he was not affected by alcohol. There was no contrary evidence in respect of any of these points. There was no evidence at all upon which the learned magistrate could make the findings that he did. There was also no basis upon which he could draw any inference, which is what he appears to be doing when he talks about the effects of alcohol, that in some way the applicant's memory was adversely affected by alcohol.
The learned magistrate appeared in his reasons to rely on these findings about the applicant's alcohol consumption, and the effect it may have had upon him, as one of the bases for his conclusion that he preferred the evidence of the complainant and his witnesses to that of the applicant. The findings of the learned magistrate were, in my view, not based in evidence and could not in those circumstances form a valid basis for concluding that the evidence of one witness should be preferred to that of another.
Grounds 3 and 4 of the notice should therefore succeed.
Ground 5
The learned magistrate determined, as one of the bases upon which he found that he preferred the evidence of the complainant to that of the applicant, that the applicant did not have a good recollection of the events. In reaching this conclusion, the learned magistrate said:
"He stated 'He tried to grab me or hit me or something like that'. He stated that this phrase both in examination in chief and cross-examination.
He also stated in cross examination 'I'm not sure whether it was a punch or he tried to grab me. He was trying to do one or the other'."
The learned magistrate gave more details of the applicant's evidence during that part of his reasons in which he summarised the evidence of each witness. The applicant did indeed give evidence as found by the learned magistrate. However, he also provided other detail as to what occurred on this particular night and it does not appear, at least insofar as the transcript gives an accurate picture of what was presented to the learned magistrate, that he was evasive or prevaricating generally in any way. In the words highlighted by the learned magistrate, the applicant appeared simply to be saying that he really was not sure precisely what it was the complainant was trying to do. That does not demonstrate a lack of recollection. It is simply a statement of fact, that is, he did not know what the complainant was trying to do.
The evidence of the applicant needs to be considered as a whole, and not simply by reference to the comments referred to by the learned magistrate. A consideration of the whole of the evidence shows that the applicant's version of events was quite detailed. He was not confused about what he said occurred. There was at times some hesitation in answering questions about matters. However, that is to be expected from any witness unused to court proceedings, and giving evidence about events which occurred nine months before. His level of recollection appears to be no different from that of any other witness.
I am persuaded that there was no sufficient basis for the finding of the learned magistrate, and that he erred in making that finding on the basis of all the evidence before him, and in then using that finding to support a view that the evidence of the applicant should be rejected.
Ground 5 should therefore succeed.
Ground 6
Counsel for the respondent conceded this ground. The finding of the learned magistrate that the applicant denied approaching the complainant was clearly not in accordance with the evidence given by the applicant.
Ground 6 should therefore succeed.
Ground 7
Mr Yousef Mohamad, who was not related to the applicant, was called by the defence. He gave evidence that he had a conversation with Mr Hesari around Christmas about the incident at the nightclub. The transcript shows the following exchange:
"Can you tell us what that conversation was? It was pretty much along the lines that he didn't think that he could go to court because he reckons – apparently he was there and saw the incident, but he told –
HIS HONOUR: No, just tell us what he said, don't tell us what apparently is, just tell us what he said.
MR OLDING (resuming): What did he say?....He said that he couldn't go to court and tell something that didn't happen, or did happen but he wasn't there.
….
Did he say anything about not being there specifically or that he was there or -…. He wasn't there, like on the night he wasn't there and he told me that Nawar actually called him up and told him to come down.
Okay, did he say anything further about that conversation directly to you? No, that's it."
The witness was not shaken in cross-examination.
There was argument about the admissibility of this witness's evidence. It was ultimately admitted, but then discounted by the learned magistrate. The learned magistrate said in his reasons that he did not accept the evidence of Mr Yousef Mohamad and preferred the evidence of Mr Hesari. He gave a number of reasons for that position. Three of those reasons are dealt with by this ground. They were as follows:
"[5]Mr Yousef Mohamad's version of the discussion between him and Mr Hesari lacks detail as to place and content to give any confidence that his version is correct.
[3]There was no motive for Mr Hesari to give false evidence against Mr Mohamad to the Police or at the hearing. Although Mr Hesari was a life-long friend of Mr Alshawi's, he had also known Mr Mohamad for a number of years and was on friendly terms with him.
[4]It is unlikely that Mr Hesari would have told Mr Yousef Mohamad that he had not witnessed the nightclub incident and was going to give false evidence at the hearing.
No explanation has been given as to why Mr Hesari would tell anyone in Mr Yousef Mohamad's position that they were going to Court to give false evidence, particularly when the information might get back to the person against whom false evidence was to be given.
Even if Mr Hesari had previously made a false statement to the Police, he could have avoided giving false evidence in Court by failing to turn up at Court or advising the Police he could no longer recall the incident.
There appears to be no motive for Mr Hesari to give false evidence at the hearing against an acquaintance with whom he was on friendly terms who could face serious consequences if convicted."
The evidence of Mr Yousef Mohamad was that Mr Hesari told him he did not want to go to court and give false evidence. It was not that he was going to do so. As to the finding particularised in ground 7(b) of the applicant's notice to review, there was simply no evidence at all about this. The proposition was not put to any witness. It is simply a theory developed by the learned magistrate. As to the findings attacked by the particulars in ground 7(c), the learned magistrate has again developed theories as to why Mr Hesari would not give false evidence, and why he would not tell Mr Yousef Mohamad he planned to do so. In each case, the learned magistrate has commented that no explanation has been given, nor motive established, for why Mr Hesari might give false evidence or tell Mr Mohamad he was going to do so. The tenor of his Honour's findings was that the applicant had some sort of obligation to present to the court, in addition to the evidence of Mr Yousef Mohamad, a reason why Mr Hesari might give false evidence or talk to Mr Mohamad. He had not done so, therefore these findings were open.
With respect, there was no such obligation upon the applicant to present such evidence. There was also no basis upon which the learned magistrate could make findings adverse to the applicant's case because he had not discharged that obligation.
As to the attack particularised in ground 7(a) of the notice to review, Mr Yousef Mohamad told the court when the conversation occurred and what was in it. No-one asked him where it occurred. Cross-examination was limited. It was put to him the conversation did not occur and he was adamant it did. With respect, there was not much else that Mr Mohamad could tell the court. The manner in which the hearing had been conducted to the point where he gave his evidence is relevant to a consideration of this particular. The learned magistrate had frequently intervened in the proceedings and questioned witnesses directly. He had done so to an extent that the obvious ire of counsel was aroused at one point. It must be inferred that, had his Honour felt that Mr Mohamad's evidence was lacking in particular detail, he could have asked him to elaborate. He did not do so.
The ground of review asserts an error of law in finding that the evidence of Mr Yousef Mohamad should be discounted for the identified reasons. I am satisfied, having regard to what I have referred to as the errors in his Honour's approach to the matters identified, that this ground should succeed.
Ground 8
In concluding that he preferred the evidence of the complainant and Mr Hesari over that of the applicant, the learned magistrate found that:
"Mr Alshawi and Mr Hesari gave detailed and consistent versions of what occurred. Any inconsistencies were minor and consistent with a lack of collusion between the two."
There were of course a number of inconsistencies between the evidence of the two. These were:
· the complainant said that when the applicant walked up to him and punched him, he was standing talking to, amongst others, Mr Hesari. Mr Hesari, on the other hand, said that he was standing between 3 and 5 metres away from the complainant;
· the complainant said that after the initial punch, he was punched several times. He thought it was about three times but it could have been more or less. Mr Hesari said that he saw the applicant walk towards the complainant and "it looked like a punch towards his right side of his face and there was a scuffle …". He gave no evidence of any further punching;
· the complainant said that Mr Hesari picked him up that night in a black VW Golf motor vehicle and that when they arrived in the city, they parked in the library car park (across the road from the nightclub). Mr Hesari said he drove a silver Audi and parked in an accountant's car park around the corner;
· the complainant said that Mr Yianni Anagnostis was not with him when the assault occurred. Mr Hesari, however, said that Mr Anagnostis was one of the people standing with the complainant when the applicant approached.
It is perhaps doubtful whether the inconsistencies were minor. However, on the other hand they were so obvious that indeed it might be said they were consistent with a lack of collusion. The applicant bears an onus to demonstrate an error on the part of the learned magistrate. I am not satisfied he has done so in respect of this ground.
This ground should therefore fail.
Ground 9
It was conceded by counsel for the respondent that the issue of self-defence was raised on the evidence and that the learned magistrate, despite having apparently adverted to the concept when he intervened during the examination-in-chief of the applicant (see transcript of proceedings at 53 in line 43) and on other occasions while evidence was being given, made no reference at all to the issue in his reasons for decision. Where an individual is charged with assault and the issue of self-defence is raised, it is for the prosecution to satisfy the court that, in the circumstances as that individual believed them to be, he did not need to use force to defend himself. If the court is satisfied that force was needed, it is then for the prosecution to satisfy the court that the force used was unreasonable. In effect, the prosecution carries an onus to disprove the possibility that an accused person acted in self-defence.
While a magistrate in giving reasons for a finding is not obliged to delve into minute detail because he or she may be constrained by having to administer a busy court and perhaps give an ex tempore decision, where an issue such as self-defence in an assault case is raised, a magistrate, in my view, must deal with it, even cursorily. In this case, the reasons for decision were not given ex tempore, but in writing some five weeks after the hearing. It is an essential part of a prosecution case in respect of an assault to prove, not only that there was an application of force by one party to another, but also that that application of force was unlawful. In failing to deal with an issue which might have rendered the conduct of the applicant lawful, the learned magistrate has made an error.
Ground 9 should succeed.
Ground 1
This ground must succeed. Having regard to the errors which have been established as to the bases for a number of findings made by the learned magistrate, which findings were relied upon by him to reach his conclusion as to being satisfied beyond reasonable doubt as to guilt, it must follow that that ultimate conclusion must be flawed.
The proviso
Counsel for the respondent submitted that, even if I were satisfied that one or more of the grounds of review had been made out, I should have regard to the Justices Act 1959, s110(2)(ab). That section provides that a court may on the hearing of a review "in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion". Counsel for the respondent submitted that the evidence before the magistrate was, notwithstanding the asserted errors, still sufficient to have satisfied the learned magistrate beyond reasonable doubt as to the guilt of the applicant.
Counsel for the respondent referred the court to a summary of the relevant cases in Auspine Limited v Kent [2009] TASSC 38 at pars[14] and [15]. I do not repeat that summary in these reasons but apply the principles there set out to the present matter. I have no hesitation in concluding that this is not an appropriate case for the proviso to be applied. The learned magistrate made factual errors, and further made findings which were unsupported by the evidence. He used those findings to reach conclusions about the reliability of evidence of witnesses, which ultimately underpinned his finding as to the guilt of the applicant. In my view, those findings were flawed as a result of the basis upon which they had been made. There has as a consequence been a substantial miscarriage of justice.
Outcome
Both counsel submitted that, in the event that the notice to review was to succeed without the application of the proviso, the appropriate order was that the finding made by the learned magistrate on 19 May 2010, to the effect that the applicant was guilty of one count of assault, should be quashed and complaint number 9504/09 be remitted for hearing before another magistrate according to law. It is so ordered.
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