SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MULLEN v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2020] SASC 10
Judgment of The Honourable Justice Lovell
31 January 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The appellant, a carer at a nursing home, was convicted of aggravated assault causing harm. The victim was a resident of the nursing home. The prosecution relied on two statements of another resident which implicated the appellant in the offence. The witness was unable to give evidence in court and the statements were admitted pursuant to s 34KA of the Evidence Act 1929 (SA). The appellant appeals his conviction on the basis that the Magistrate erred in admitting the statements and impermissibly used prior consistent statements to bolster her credibility and reliability. Further, he contends the Magistrate erred in admitting the opinion evidence of the victim’s general practitioner as to how the injuries were sustained and that the verdict is unreasonable or unsupported by the evidence.
Admissibility of statements when witness not able to be called - general unfairness discretion - bolster rule - forensic disadvantage caused by inability to cross-examine - process error - outcome error - opinion evidence - whether the verdict is unreasonable or unsupported having regard to the evidence
Held, dismissing the appeal:
1. The Magistrate did not err in admitting the statements.
2. The Magistrate did not improperly use the bolster rule to support the reliability of the statements.
3. The Magistrate did not err in admitting the opinion evidence of the general practitioner.
4. The verdict was not unreasonable and unsupported by the evidence.
Criminal Law Consolidation Act 1935 (SA) ss 20(4), 269Y; Evidence Act 1929 (SA) ss 34KA, 34KB, 34KC, 34KD; Controlled Substances Act 1984 (SA) s 52A; Magistrates Court Act 1991 (SA) s 42, referred to.
House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144; R v Haines [2016] SASC 96; R v Fagan & Anor [2012] EWCA Crim 2248; Al-Khawaja & Anor v United Kingdom (2012) 54 EHRR 23; R v Ibrahim [2012] EWCA Crim 837; R v Lobban (2000) 77 SASR 24; Police v Dunstall [2015] HCA 26; Rozenes v Beljajev [1995] 1 VR 533; R v Christie [1914] AC 45; Dietrich v R (1992) 177 CLR 292; R v Turner [1975] QB 834; Palmer v R (1998) 193 CLR 1; Rowland v Police (2001) 79 SASR 569; R v Taylor [2014] SASCFC 112; Barca v The Queen (1975) 133 CLR 82; The Queen v Baden-Clay [2016] HCA 35; Police v Rosales [2017] SASC 118; Le Cornu v Thomas (DEWNR) [2019] SASCFC 154, considered.
MULLEN v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2020] SASC 10Magistrates Appeal: Criminal
LOVELL J.
Overview
The appellant, a carer employed at the Lourdes Valley Nursing Home (‘the Home’) was charged with assaulting a resident of the Home, Ms Elizabeth Hannaford on 19 November 2015. Ms Hannaford suffered from dementia. The appellant pleaded not guilty to one count of Aggravated Assault Causing Harm to Ms Hannaford contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). After a trial in the Magistrates Court the appellant was convicted. He appeals the conviction contending that the Magistrate made a number of factual and legal errors.
Background
The general background facts were not in dispute. Ms Hannaford, the alleged victim, was admitted to the Home in February 2015 due to a decline in her ability to care for herself. At the time of her admission Ms Hannaford suffered from:
·Alzheimer’s disease with symptoms such as confusion, anxiety and delirium;
·depression;
·eyesight difficulties; and
·impaired cognitive functioning which functioning declined further prior to 19 November 2015.
It was common ground that while at the Home, and prior to 19 November 2015, Ms Hannaford suffered a number of falls. Ms Sumalpong, a registered nurse who worked at the Home, gave evidence about falls Ms Hannaford suffered.
The occurrence of each fall was noted and summarised in the records of the Home, in particular the Accident and Incident Reports.[1] The records demonstrated that Ms Hannaford would deliberately fall on some occasions. For example, she would slide from her chair to the ground and remain there. This was regarded as attention seeking behaviour. On occasions, she would deliberately roll out of bed. The staff regarded, and recorded, that this was “normal” behaviour for Ms Hannaford. However, not all the falls documented were necessarily deliberate acts by Ms Hannaford. It was recorded that Ms Hannaford did not suffer any injuries due to the falls.
[1] Exhibit D1.
Ms Hannaford’s depression affected her motivation to move around the Home and this contributed to her physical and mental deterioration while a resident. Ms Hannaford would sometimes vocalise with strange sounds which were incomprehensible. Sometimes her response to a question was incoherent.
At the relevant time, Ms Hannaford shared room 124 with Ms Rogers in the Tollgate Ward of the Home. Ms Rogers suffered from a disease of the lungs and was continuously on oxygen. She also suffered from a bipolar disorder and anxiety. At that time, there were no concerns about her mental competency.
The room Ms Hannaford and Ms Rogers shared contained their beds, separated by a set of drawers. A curtain could be pulled across between the beds if privacy was required. Both residents had access to their own “call button” which could be activated to alert staff to attend room 124. Ms Hannaford’s bed had been lowered and sensor mats placed on each side of her bed as she had been assessed as a “falls risk”. How the alarm system operated was an issue on appeal. A mattress was placed on one side of Ms Hannaford’s bed to prevent injury if she fell out.
On the evening of 18 November 2015, Mr David Evans, a registered nurse, and the appellant, a carer, were the only staff working in the Tollgate Ward of the Home. Their shift commenced at 11.30 pm and finished at 7.30 am the following day. Mr Evans did not go into room 124, nor did he see Ms Hannaford during that shift. Mr Evans was aware, as the appellant had told him during the evening, that Ms Hannaford had been pulling at the bell and sensor power cords thereby activating the alarm. The appellant had responded to all the alarm calls relating to room 124.
At about 8.00 am on 19 November 2015, Ms Hannaford was observed to have a severely swollen and red face, particularly on the right side. Dr Kilmartin, Ms Hannaford’s treating general practitioner, was called and attended the Home. Dr Kilmartin examined Ms Hannaford and then Ms Hannaford was taken to the Royal Adelaide Hospital and examined in the emergency department by Dr Suplido. The police were notified. Dr Kilmartin’s opinion was that the injuries to Ms Hannaford were consistent with her having been assaulted.
Statements were taken from Ms Rogers as to what she had seen or heard during that evening. I deal with her statements in detail later in these reasons; her statements suggested that the appellant assaulted Ms Hannaford.
The appellant was questioned by police on 19 November 2015. The appellant conceded that Ms Hannaford had been “pulling” the cords out. This triggered an alarm and he had to go and plug them back in and cancel the alarm. The appellant said that Ms Hannaford had pulled the cords out on approximately five occasions. He denied yelling at Ms Hannaford or hitting her. When attending to the alarms, the appellant did not find her lying on the floor at any stage; on every occasion she was in bed. The appellant was unable to explain how Ms Hannaford had suffered an injury to her face.
Prior to trial, Sergeant Cooper, a police prosecutor, was assigned to prosecute the case. She proofed Ms Rogers and concluded that she was not a reliable witness. Sergeant Cooper considered that there was no reasonable prospect of conviction and the charge should be withdrawn. Sergeant Cooper gave evidence and her notes were tendered.
Issues on appeal
An important witness for the prosecution was Ms Rogers. She gave two statements to the police which implicated the appellant in the offence. At trial, she was unable to give evidence as she had passed away in 2017. The prosecution applied to tender her statements pursuant to s 34KA of the Evidence Act 1929 (SA) (‘the Act’). Over the objection of the appellant, the Magistrate admitted the statements. The appellant contends that the Magistrate erred in admitting the statements (Ground 1).
The appellant also contends that the Magistrate erred in admitting the opinion of Dr Kilmartin, Ms Hannaford’s general practitioner, as to the mechanism by which Ms Hannaford sustained her facial injury (Ground 2).
The appellant further contends that the Magistrate erred by relying upon the prior consistent statements of Ms Rogers as supporting her credibility and reliability (Ground 3). This is also relevant to Ground 1.
The appellant also contends that the Magistrate’s verdict was unreasonable or unsupported by the evidence (Ground 4).
The Magistrate’s judgment
At the beginning of the trial, the appellant objected to a statement of Ms Hannaford and two statements of Ms Rogers being tendered by the prosecution pursuant to s 34KA of the Act. It was conceded at trial, and on appeal, that neither witness could give oral evidence and therefore the statements were potentially admissible. Mr Barklay SC, for the appellant, submitted that the Magistrate, exercising the “general unfairness discretion” preserved pursuant to s 34KD of the Act, should exclude the statements. He was successful in relation to the statement of Ms Hannaford. The Magistrate refused to exercise his discretion to exclude the two statements of Ms Rogers. On appeal, the appellant challenged that ruling and submitted that the Magistrate erred in not excluding from evidence the two statements of Ms Rogers.
The Magistrate, appropriately, heard all the evidence led by the prosecution before considering the issue as to whether the two statements should be excluded in the exercise of his discretion. Although he delivered separate reasons for his ruling on the application to exclude the statements, it is clear that his reasons need to be read in conjunction with his reasons for his verdict.
Ground 1
The admission of Ms Rogers’ statements
Mr Barklay SC submitted that the Magistrate erred in admitting the statements of Ms Rogers. His fundamental submission was that the Magistrate ought to have excluded the statements in the exercise of the “general unfairness discretion”. In particular, he submitted that the Magistrate:
(a)failed to give sufficient weight to the forensic disadvantage suffered by the appellant because of his inability to cross-examine Ms Rogers;
(b)placed too much emphasis on the evidence said to have “corroborated” Ms Rogers’ account;
(c)misapplied the evidence as to how the alarm system worked and applied the evidence unfairly against the appellant;
(d)placed too much reliance on the medical evidence and, in particular, the evidence of Dr Kilmartin as to the cause of the injuries to Ms Hannaford;
(e)used prior consistent statements to conclude the statements were more reliable and therefore offending the “bolster rule”;
(f)gave insufficient weight to the fact that Ms Hannaford was a high falls risk, making her injuries from a fall more likely;
(g)gave insufficient weight to lies told by Ms Rogers and the forensic disadvantage to the appellant in not being able to pursue that topic;
(h)gave insufficient weight to Sergeant Cooper’s evidence generally and to her opinion that, having proofed Ms Rogers, she was an unreliable witness; and
(i)placed too little weight on the significant forensic disadvantage to the appellant in admitting the statements.
Some of the matters raised by Mr Barklay SC on this ground overlap with other grounds of appeal. In particular, a number of the matters raised are also relevant to Ground 4, namely, whether the verdict was unsafe and unsatisfactory.
That said, most of the matters raised by Mr Barklay SC in relation to Ground 1, other than (c) and (e), are couched in terms of the Magistrate “giving insufficient weight to” (or a similar phrase) a particular matter. The appellant challenges the exercise of the Magistrate’s discretion. The question on appeal therefore is whether the exercise of the discretion by the Magistrate involved error in accordance with the principles identified by the High Court in House v The King.[2] Those principles were expressed by the High Court in the following terms:[3]
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[2] (1936) 55 CLR 499.
[3] House v The King (1936) 55 CLR 499 at 505.
That is, the appellant must demonstrate error on the part of the Magistrate, in that he ignored relevant considerations, relied upon irrelevant matters, or made an error of fact or of law. These matters are generally referred to as “process errors”. If no process error can be identified the appellant must show an “outcome error”. That is, without identifying any precise error, the Magistrate’s discretion could not have been properly exercised except in favour of exclusion of the evidence. To put that last matter another way, the discretion could only have been exercised in a manner different from the way in which it was and that a substantial wrong has occurred.
In R v Lutze,[4] Vanstone and Parker JJ, although dealing with the sentencing discretion of a Judge, observed:[5]
In Kentwell the High Court again examined the nature of the error sufficient to enliven the jurisdiction of the Court of Criminal Appeal to interfere in a sentence. The plurality judgment of French CJ, Hayne, Bell and Kean JJ echoed the analysis of Hayne J in AB v The Queen (1999) 198 CLR 111 at 160, where his Honour posited the distinction between “specific error” of the types identified in House, as against manifest excess or inadequacy. The same dichotomy was referred to by Kourakis J (as he then was) in R v Horstman (2010) 269 LSJS 42, where his Honour compared “process errors” with “outcome error”.
The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen (2005) 228 CLR 357. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above.
In our view a complaint about the decision not to suspend a sentence must be subjected to the same process as applies where the length of a sentence is in issue.
A wrongful decision to suspend is a species of manifest inadequacy: Dinsdale at [6] per Gleeson CJ and Hayne J. Where such a complaint is made the question for the appellate court is: “Was it open to the court to suspend the sentence?” Only if the decision to suspend fell outside the range of permissible dispositions – having regard to the nature of the offending and the characteristics of the offender – would it be open to the appellate court to intervene.
(Emphasis added)
[4] (2014) 121 SASR 144.
[5] R v Lutze (2014) 121 SASR 144 at [45]-[49].
A submission that a judge or magistrate should have attached more or less weight to a particular consideration, or considerations, falls short of an assertion that the judge or magistrate made a specific error. Such submissions can only be particulars of an allegation that there is an “outcome error”.
Most of the complaints made by Mr Barklay SC are not allegations of process errors which of themselves would enliven the Court’s authority to intervene. At best, they only form part of the submission that there was an outcome error. Relying on those particulars, the appellant must establish that the discretion could only have been exercised in a manner different from that in which it was and that a substantial wrong has occurred.
Section 34KA of the Evidence Act
Before turning to the particulars of Ground 1, it is necessary to consider s 34KA of the Act. Section 34KA of the Act is a fundamental alteration to the rules of evidence which has the potential to cause unfairness to an accused. It relevantly states:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are as follows:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3) For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a) any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b) the statement's contents; and
(c) any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross‑examine the person); and
(d) any other measures that could be taken by the court in relation to the relevant person; and
(e) any other relevant circumstances.
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8) In this section—
prescribed proceedings means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008.
Section 34KA of the Act, however, is only part of the scheme that renders out of court statements admissible for the truth of what is contained in the statement. Sections 34KB, 34KC and 34KD of the Act seek to ameliorate the difficulties confronting an accused when the prosecution seeks to tender an out of court statement or statements and use the contents of the statements for the truth of what they contain. It is important, when considering the interpretation of s 34KA of the Act, to have due regard to its statutory context.
Section 34KB of the Act permits an accused to adduce evidence that affects the reliability of the statement and the credibility of the statement maker. It relevantly states:
34KB—Credibility
(1) This section applies if in prescribed proceedings—
(a) a statement not made in oral evidence in the proceedings (an out of court statement) is admitted as evidence of a matter stated; and
(b) the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement.
(2) In a case to which this section applies—
(a) any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person's credibility as a witness is so admissible in the proceedings; and
(b) evidence may, with the court's leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross‑examination as relevant to the reliability of the statement and the person's credibility as a witness but of which evidence could not have been adduced by the cross‑examining party; and
(c) evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself.
(3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
(4) …
An accused, pursuant to s 34KB of the Act, is entitled to call evidence that counters, to some extent at least, the unfairness inherent in s 34KA of the Act. Section 34KC of the Act empowers a court to direct an acquittal at the close of the prosecution case where it considers the evidence provided by the out of court statement to be so unconvincing that a conviction may be unsafe. That is an extension of the power to direct an acquittal.
Section 34KD of the Act relevantly states:
34KD—Court’s general discretion to exclude evidence
(1) In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a) the statement was made otherwise than in oral evidence in the proceedings; and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).
(3) …
Against this background it is necessary to consider the decision of Kourakis CJ in R v Haines.[6] The Magistrate, as he was bound to do, followed this decision. The facts in Haines[7] were unusual and are important in understanding the reasons for the decision of Kourakis CJ.
[6] [2016] SASC 96.
Veronica Haines was charged with the murder of her partner Benjamin Reid. The alleged murder occurred on 7 March 2015 during the course of an alcohol fuelled fight between Veronica and Benjamin. Veronica’s mother, Mrs Haines, was a witness to the altercation and the police took a statement from her shortly after the incident. On 20 March 2015, Mrs Haines swore an affidavit, prepared by the Aboriginal Legal Rights Movement (‘ALRM’), which gave a relevantly different account of the events compared to her earlier police statement.
At trial, it was accepted that Mrs Haines was too ill to give evidence. The prosecution sought to tender and rely upon Mrs Haines’ police statement.
Kourakis CJ heard evidence as to how the police statement was taken. He noted that the taking of the statement was not recorded on video and that other family members were excluded from the interview room. There were doubts as to whether the statement recorded the actual words of Mrs Haines; further Mrs Haines’ statements that her daughter acted in self-defence had not been immediately recorded. The health of Mrs Haines, at the time the statement was taken, raised doubts as to the statement’s “comprehensiveness and reliability”. Importantly, however, Kourakis CJ considered that if the statement taken by the police was admitted there would be a forensic contest at trial as to whether Mrs Haines’ statement made on the night of the incident was more likely to be reliable and truthful than the subsequent affidavit taken by ALRM. Absent Mrs Haines giving evidence, which she could not do, a jury could not sensibly reach a decision on the statements as there would be a credit issue. The inability to cross-examine Mrs Haines in those circumstances meant that the prosecution of the accused for murder would for “all practical purposes take place ‘on the papers’” [8]. Kourakis CJ excluded the police statement from evidence.
[8] R v Haines [2016] SASC 96 at [51].
Kourakis CJ stated, in relation to consideration of s 34KA of the Act:[9]
[9] R v Haines [2016] SASC 96 at [40]-[41].
Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include:
· The value of the evidence.
· The significance of the statement to the prosecution case overall.
· Whether the statement is supported in material respects by other prosecution evidence.
· Whether the statement constitutes a major part of the prosecution case.
· The reliability of the evidence that the statement was made.
· The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken.
· The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement.
· Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify.
The loss of the procedural right to cross-examine a prosecution witness in open court places an accused in a position of significant forensic disadvantage. It must be accorded substantial weight in the application of the general unfairness discretion. The more complex the subject matter of the statement, and controversial the circumstances in which it was taken, the greater will be that unfairness.
The Magistrate applied these criteria to the statements of Ms Rogers. Mr Barklay SC placed much emphasis on the comment by Kourakis CJ about the extent of the forensic disadvantage suffered by an accused due to the loss of the right to cross-examine.
A number of matters require comment. Parliament has declared that statements previously inadmissible at common law are, in certain circumstances, admissible. It has, through s 34KB, s 34KC and s 34KD of the Act, ameliorated, to an extent, the inherent unfairness in an out of court statement being admitted for the truth of its contents. Kourakis CJ, in Haines,[10] did not directly refer to s 34KB and s 34KC of the Act in his ex tempore reasons. It was, on the facts before him, unnecessary for him to do so. His comments, however, about the inability of the jury to determine the question of the credibility of the competing statements should be seen in the context of s 34KB of the Act.
In many cases, Haines[11] not being one of them, s 34KB of the Act would ameliorate the harshness of the operation of s 34KA of the Act. In Haines,[12] Mrs Haines had made two statements which were fundamentally inconsistent with each other. The jury, if the first statement was admitted, would be confronted with a second, and fundamentally inconsistent statement, from the same witness. The jury, as Kourakis CJ pointed out, would be asked to choose between fundamentally inconsistent statements. In the unusual circumstances of that case, s 34KB of the Act would be of little assistance to an accused.
It cannot be, and nothing in the comments of Kourakis CJ in Haines[13] suggests otherwise, that the inability to cross-examine would, of itself, amount to a sufficient reason to exercise the discretion to exclude a statement admissible under s 34KA of the Act. Indeed, Mr Barklay SC did not suggest that taken alone, the inability to cross-examine would necessarily lead to a statement being excluded. However, he placed great weight on his inability to cross-examine Ms Rogers when submitting that the Magistrate erred in failing to exclude her statements.
It is correct to observe that Parliament retained the court’s general common law discretions to exclude evidence. However, when considering the discretions retained by s 34KD of the Act, the Parliamentary intention, encapsulated in s 34KA of the Act, cannot be ignored. Parliament has provided a scheme whereby statements not normally admitted in evidence become, subject to the criteria set out in s 34KA(2) of the Act, admissible. That Parliament was aware of the potential unfairness to an accused can be inferred from the enactment of s 34KB and s 34KC of the Act, which sections ameliorate that potential unfairness.
Thus, the forensic disadvantage in not being able to cross-examine the statement maker is mitigated, to an extent, by s 34KB of the Act. Section 34KB(2)(a) of the Act enables an accused to adduce evidence that is relevant to the reliability of the statement and the statement maker. Section 34KB(2)(b) of the Act enables an accused, with the court’s leave, to adduce evidence of any matter which could have been put to the statement maker in cross-examination as relevant to the reliability of the statement and statement maker, but which evidence could not have been adduced by the cross-examining party. The width of this latter right was not the subject of argument before me and it is not appropriate for me to attempt to define its limits. It is, however, a section which, on its face, appears to allow an accused to call evidence that he or she would not have been able to call had the statement maker given evidence. A collateral issue, for example, going to credit only may be an example of the width of this section.
With the qualification of the relevance of the ameliorating provisions discussed above, I agree, with respect, with the analysis of Kourakis CJ as to the factors to be assessed when consideration is given to admitting an out of court statement. To put that another way, the extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement must be assessed in the context of the entire statutory scheme.
The appellant referred to and relied upon the English decisions of R v Fagan & Anor,[14] Al-Khawaja & Anor v United Kingdom[15] and R v Ibrahim.[16] These cases dealt with similar, but not identical, legislation. Also, the legislation had to be considered in the context of Article 6 of the European Convention on Human Rights;[17] this is not a relevant consideration in Australia. Further, the equivalent of s 34KD of the Act refers to different discretions to those available in South Australia. Those matters aside, the authorities are of some assistance when interpreting the relevant legislation.
[14] [2012] EWCA Crim 2248.
[15] (2012) 54 EHRR 23.
[16] [2012] EWCA Crim 837.
[17] European Convention on Human Rights, opened for signature 4 November 1950, ETS No 005 (entered into force 3 September 1953).
Appellant’s submissions
The appellant conceded that the statements made by Ms Rogers met the requirements of s 34KA of the Act and were therefore admissible. The appellant relied upon s 34KD of the Act and submitted that the Magistrate should have excluded the evidence in his discretion; all available discretions to exclude evidence are preserved by s 34KD(2) of the Act. In particular, the appellant relied upon what was described in R v Lobban[18] as the “general unfairness discretion”.
[18] (2000) 77 SASR 24.
It is necessary to consider the content of the “general unfairness discretion”. In Lobban,[19] the accused was charged with possession of cannabis for sale following the seizure of material from his vehicle and his residence. The material was analysed and certificates of analysis prepared which identified the material as cannabis. Later, most of the cannabis was destroyed by police. No sample of the cannabis was kept for evidentiary purposes as required by s 52A of the Controlled Substances Act 1984 (SA). The Full Court identified a “general unfairness discretion” which permits a court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial.[20] In Lobban,[21] the Full Court refused to exercise that discretion on the facts.
[20] R v Lobban (2000) 77 SASR 24 at 39-45 per Martin J (Doyle CJ and Bleby J agreeing); Police v Dunstall [2015] HCA 26.
In Rozenes v Beljajev[22] the Court accepted that a “general unfairness discretion” existed. The Court observed:[23]
In the present case the defendants accept that unfairness to the defendant means, not unfairness in some general sense, but that the defendant will not receive a fair trial. It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law: Dietrich v. R. (1992) 177 C.L.R. 292 at 299-300 per Mason c.J. and McHugh J., at 326 per Deane J. and at 362 per Gaudron J. The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v. Cross) put forward by the Attorney-General in McLean and Funk as the only discretions available for the exclusion of evidence other than confessional evidence.
[22] [1995] 1 VR 533.
[23] Rozenes v Beljajev [1995] 1 VR 533 at 549.
However, the Court went on to observe that while the existence of the residual discretion must be accepted, circumstances where this discretion could be exercised (other than confessional evidence) as opposed to the exercise of the discretion to exclude evidence where its prejudicial effect exceeds its probative value (the Christie[24] discretion) must be rare. Where the weight and credibility of the evidence cannot be effectively tested may be such an example.[25]
[24] R v Christie [1914] AC 45.
[25] Dietrich v R (1992) 177 CLR 292 at 363.
In Police v Dunstall,[26] an appeal from South Australia, the High Court was asked to consider the “ambit” of the general unfairness discretion. The majority of the Court found that, as neither party contested the existence of the general unfairness discretion it was inappropriate to determine the scope, if any, of that discretion.[27] As the majority noted:[28]
Kourakis CJ was right to conclude that admission of the evidence of the breath analysis reading did not make the trial of Mr Dunstall unfair. This conclusion and the circumstance that neither party contested the existence of the "general unfairness discretion" make it inappropriate to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, non confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial.
It remains to observe that the power of the court to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that requires the court to balance the interests of the defendant and those of the community. Where the evidence that is sought to be excluded is critical to the prosecution case and the basis of exclusion is said to be that admission of the evidence would render the trial unfair, the remedy lies in determining whether the circumstances justify a permanent stay and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a "general unfairness discretion".
(Emphasis added, footnotes omitted)
[26] [2015] HCA 26.
[27] Police v Dunstall [2015] HCA 26 at [47] per French CJ, Kiefel, Bell, Gageler and Keene JJ.
[28] Police v Dunstall [2015] HCA 26 at [47]-[48].
In this matter, the evidence of Ms Rogers is critical to the prosecution case. The basis of exclusion is said to be that admission of the evidence would render the trial unfair. Arguably the appellant ought to have sought a stay rather than rely on the “general unfairness discretion”.
Nettle J, in a separate judgment, did not doubt that the general unfairness discretion existed. However, he accepted that the difficulty is “in the delimitation of its content”[29]. Nettle J stated:[30]
There are, therefore, clear advantages to adhering to the notion that the fairness discretion is a residual discretion which applies where, although none of the recognised discretions is engaged, the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice.
[29] Police v Dunstall [2015] HCA 26 at [66].
[30] Police v Dunstall [2015] HCA 26 at [67].
Nettle J later observed:[31]
… As was earlier identified, the fairness discretion exists to ensure a fair trial according to law. A fair trial according to law is a fair trial according to law as the law may be affected by statutory modification, and in particular as it may be affected by statutory modification of common law means of proof. The discretion facilitates a fair trial according to law in that sense by enabling the exclusion of otherwise admissible evidence which would be productive of an unacceptable risk of miscarriage of justice. It does not exist to give effect to idiosyncratic notions of "fair play" or of "whether the forensic contest is an even one", still less to deny effect to statutory modifications of common law means of proof of which, because of idiosyncratic notions of what is fair, a judge may disapprove.
(Emphasis added)
[31] Police v Dunstall [2015] HCA 26 at [83].
The trial was run before the Magistrate on the basis that he should exercise the “general unfairness discretion”. The appeal was conducted on the same basis.
As Mr Barklay SC submitted, and I accept, the High Court in Dunstall[32] did not specifically overrule Lobban.[33] I am bound by the decision of Lobban.[34]
[34] R v Lobban (2000) 77 SASR 24; I note that other intermediate appellate courts have confirmed the existence of the general unfairness discretion.
The respondent submitted:
… there is scope for the exclusion of evidence in the exercise of the general unfairness discretion, including that which might be critical to the prosecution case, where it is admissible pursuant to s34KA. The respondent submits that confining the scope of the general unfairness discretion, in the context of ss34KA — KD of the EA, to a consideration of the forensic disadvantage created by the admission of the evidence, in the identifiable circumstances of the particular trial, is a more limited enquiry than whether the continuation of the proceedings is oppressive or unjust such as might warrant a stay. By only undertaking that more limited enquiry, any relevant unfairness only potentially arises upon receipt of all of the evidence in the trial, including, for example, that which might be tendered (and in this case was tendered) pursuant to s34KB. To allow for discretionary exclusion on this basis is not to ignore that parliament has rendered evidence of this type admissible under s34KA, but to recognise that evidence that is so admissible may nonetheless be productive of unfairness in those identifiable circumstances.
I will approach this appeal on the basis that the scope of the application of the unfairness discretion in the context of s 34KA of the Act is more limited than an application for a stay. To put that another way, it is easier for an accused to establish that this discretion should be exercised as opposed to establishing that a stay should be imposed.
The respondent did not attempt to define or otherwise articulate the content of the general unfairness discretion. Relying on the observations of Nettle J in Dunstall,[35] the question is whether the unfairness, if established, would result in an unacceptable risk of a miscarriage of justice. The onus remained on the appellant to persuade the Magistrate that he should exercise his discretion.
The Magistrate delivered Reasons for Ruling (‘Ruling’) relating to his decision to not exclude the statements of Ms Rogers; he delivered separate reasons for his verdict (‘Verdict’). The Magistrate, rather than having a separate voir dire hearing, heard all the prosecution evidence subject to the applications to exclude the statements of Ms Rogers and subject to the objection to Dr Kilmartin’s evidence about the cause of Ms Hannaford’s injuries. In that sense, the Magistrate’s reasons for his Ruling need to be read in conjunction with his reasons for Verdict.
Alleged Process Errors
I will deal first with the alleged “process errors” of the Magistrate: that he misapplied the evidence as to how the alarm system worked and applied the evidence unfairly against the appellant, and that he used prior consistent statements to conclude the statements were more reliable and therefore offended the “bolster rule”.
The alarm system
The room Ms Hannaford and Ms Rogers shared contained their beds, separated by a set of drawers. A curtain could be pulled across between the beds if privacy was required. Both residents had access to their own call button which could be activated to alert staff to attend room 124. Ms Hannaford’s bed had been lowered and sensor mats placed on each side of her bed as she had been assessed as a “falls risk”. The cords to the sensor mats ran to a power socket located on the set of drawers as did the cord to the call button.[36] The call button and the sensor mats operated separately. It was common ground at trial and on appeal that Ms Hannaford, on a number of occasions, pulled “the cords” out from the power socket which set off an alert on each occasion. On the night of the alleged offending, the appellant received the alerts and attended room 124. He told police that Ms Hannaford, on each occasion he attended, had pulled the cords out of the socket; on each occasion, when he attended, she was in bed.
[36] Exhibit P3.
The evidence established was that whether the call button was pressed or the sensor mat activated the alert/alarm was the same. The same alert/alarm was activated if the cords were pulled from the power socket. That is, the carer receiving the alert would not be able to determine the reason for the alert until he or she attended. All three variations are listed as “calls” on the alarm log.[37]
[37] Exhibit P4; T32.27-34.
The procedure for notifying staff of an alert is:[38]
·Alert is transmitted to the carer’s DECT phone.
·If not answered within three minutes, the alert passes to the enrolled nurse.
·If not answered within seven minutes, the alert passes to the registered nurse.
·If not answered within 10 minutes, the alert passes to the care manager’s DECT phone.
[38] T114.28-34.
Although it is not entirely clear, there was, in addition, a monitor in the nurses’ station showing the room number of the alert. The only method of cancelling the alert, no matter what its cause, was to activate a “green button” next to the patient’s bed.
Mr Barklay SC submitted that the Magistrate misunderstood the evidence of the alert/alarm system and misused the evidence when considering the exercise of his discretion.
As mentioned, the Magistrate delivered reasons for his ruling on the application to exclude the statements as well as delivering reasons for his verdict. Although he mentions the alert/alarm system in the Ruling, his comments are part of the narrative and are unremarkable. The misunderstanding, if it be one, is found in his Verdict. The Magistrate stated:[39]
I am however satisfied that the injuries did not result from a roll out of the right hand side of the bed as the mattress was there to catch her, and she did so numerous times from that height without reported injuries. Also, the defendant did not say any of the room 124 alarm attendances during a shift were as a result of the sensor mat triggering the alarm. The set of drawers on the right hand side of the bed are located close enough to the bed that it would be possible for Ms Hannaford to fall from a position higher than lying down and hit her face on the drawers causing bruising and swelling. For this to be the case she would have to fall and get back into bed without activating the sensor mat either because she did not put sufficient pressure on it or she had disconnected the cords.
(Exhibit references omitted)
[39] Police v Mullen, judgment of Magistrate P Foley, 27 February 2019, file No. AMC-17-9655 at [56].
The appellant submitted that the comment of the Magistrate that “the defendant did not say any of the room 124 alarm attendances during a shift were as a result of the sensor mat triggering the alarm” demonstrated that the Magistrate considered that different alerts would be sent for different situations. To put that another way, if Ms Hannaford stepped on the sensor mat, a different alarm would be sent than if she removed the power cords.
I consider that submission is misconceived. The remarks of the Magistrate need to be looked at in context. First, the Magistrate, in his Ruling, dealt with the appellant’s comments to Mr Evans, the registered nurse, during the evening in question, about attending to the alerts from room 124.[40] His remarks do not demonstrate any misunderstanding. Later in those reasons, the Magistrate again mentioned that the appellant did not refer to her (Ms Hannaford) as having been found out of bed but rather it was because she “had been pulling the cords out”.[41] Again his comments do not suggest any misunderstanding of the evidence. The Magistrate also dealt with the evidence, uncontested, that on previous occasions Ms Hannaford had been able to get out of bed without triggering the sensor mats.
[40] Police v Mullen, reasons for ruling of Magistrate P Foley, 26 November 2018, file No. AMC-17-9655 at [8].
[41] Police v Mullen, reasons for ruling of Magistrate P Foley, 26 November 2018, file No. AMC-17-9655 at [31], [33].
The context of the impugned passage is important. First, the remarks appear in his Verdict, not his Ruling. Secondly, the Magistrate is dealing with the possibility of a fall rather than an assault. Read in context, the Magistrate is simply paraphrasing what the appellant stated to the police; when he attended room 124 he did not find Ms Hannaford out of bed. While it is correct to observe that in the Verdict the Magistrate did not deal with the possibility that Ms Hannaford fell out of bed activating the sensor, got back into bed, and then also pulled the cords out, that is a different matter to the suggestion that the Magistrate misunderstood the evidence. The respondent conceded that the Magistrate may not have considered that possibility when reasoning towards the guilt of the appellant. I deal with that submission later in these reasons.
I reject the submission that the Magistrate misunderstood the evidence when considering the question of the exercise of his discretion.
The bolster rule
Generally, evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it.[42] The bolster rule stipulates that evidence is not admissible if it merely bolsters the credibility of a witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked.[43]
[42] R v Turner [1975] QB 834.
[43] Palmer v R (1998) 193 CLR 1 at [49] per McHugh J.
Mr Barklay SC submitted that, when exercising the general unfairness discretion, the Magistrate impermissibly used the fact that Ms Rogers had made two written statements and given an account to Sergeant Cooper to bolster the reliability of her statements. Mr Barklay SC was not able to point to any specific remark that supported, directly, his submission; he submitted it was a matter of inference.
Mr Barklay SC referred to the passage where the Magistrate stated:[44]
… While there was some material the defendant could have used to attack her credibility namely suggestions that she did not like the defendant and that others had told her to remain quiet it is the lost opportunity to test her reliability that creates the greatest forensic disadvantage. Had she given evidence it would have been the fourth occasion she was asked to tell her story and cross examination may have led to further inconsistencies or uncertainties. Whilst this puts the defendant at a forensic disadvantage, she had already given her account on three occasions and there is the evidence I’ve just referred to that corroborate parts of her account.
(Emphasis added)
[44] Police v Mullen, reasons for ruling of Magistrate P Foley, 26 November 2018, file No. AMC-17-9655 at [35].
Mr Barklay SC submitted that the reference to having “already given her account on three occasions” demonstrates, by inference, the Magistrate was impermissibly using the bolster rule to assess the reliability of the statements. I reject the submission. In context, the Magistrate was discussing the question of inconsistencies. The appellant had relied upon inconsistencies between the two written statements and the proofing notes of Sergeant Cooper to suggest that there were sufficient inconsistencies between the statements to warrant their exclusion. The Magistrate, as part of the narrative relating to the assessment of inconsistencies, mentioned the three accounts. The Magistrate was required, when considering the factors involving the exercise of his discretion, to consider the question of inconsistencies between the three statements. There is no suggestion in the Ruling or Verdict that supports the submission that the Magistrate impermissibly used the bolster rule to support the reliability of the statements.
In my view, the appellant has not established that the Magistrate made any process errors when exercising his discretion.
Factors relating to an outcome error
As discussed earlier, Mr Barklay SC referred to a number of factors which he submitted the Magistrate failed to give sufficient weight when exercising his discretion. The factors are interrelated. The forensic disadvantage of not being able to cross-examine, along with any other forensic disadvantage the admission of the statements might lead to, can only be assessed against the evidence in the case. This is the way the Magistrate, correctly in my view, approached his task when considering the exercise of his discretion.
As mentioned earlier, the manner in which the particulars are framed implicitly acknowledge that the Magistrate did consider the factors but not, in the appellant’s submissions, sufficiently. In his Ruling, the Magistrate specifically referred to, and dealt with, the factors enunciated by Kourakis CJ in Haines.[45]
[45] R v Haines [2016] SASC 96 at [40].
In determining whether the appellant has established an outcome error it is important to look at the Ruling and Verdict in their entirety.
In his Ruling, the Magistrate approached the question of the exercise of his discretion by initially considering the reliability of Ms Rogers’ statements. The Magistrate considered the way the statements were taken, Ms Rogers’ health at the time they were taken and whether the statements reflected, as best they could, her version of events and in her own words. Senior Constable Redmond gave evidence in relation to those matters. Ms Rogers’ mental health was good, the manner of taking the statements was appropriate and the statements reflected generally her own words of those matters and the Magistrate accepted his evidence. That finding is not challenged.
The Magistrate also considered the evidence of Sergeant Cooper, the officer who proofed Ms Rogers in June 2016, and recommended that the charge be withdrawn. The Magistrate noted the discrepancies[46] in the three accounts given and accepted that such inconsistencies “no doubt would have been explored in cross-examination”.[47] He took into account the advantage Sergeant Cooper had of actually having spoken to Ms Rogers. The Verdict expands on his assessment of Sergeant Cooper’s evidence.
[46] I note that Exhibit P9 was taken and signed after Sergeant Cooper’s proofing session.
[47] Police v Mullen, reasons for ruling of Magistrate P Foley, 26 November 2018, file No. AMC-17-9655 at [27].
The Magistrate noted, correctly, that he did not have to make findings beyond a reasonable doubt when considering the exercise of his discretion.
The Magistrate also, when considering the question of reliability, examined the evidence to see whether there was “corroboration” of Ms Rogers’ account. I consider that the Magistrate did not mean corroboration in the strict legal sense of that concept. A fair reading of his reasons demonstrates he meant evidence which supported her account, not evidence that corroborated it. Corroboration was not required.
When assessing the reliability of Ms Rogers’ statements, the Magistrate had regard to the timing of the alleged assault and the admission by the appellant that he was the only person who attended to the alerts from room 124 that evening. Further, he had regard to the evidence of Dr Kilmartin regarding the potential cause of the injuries. Dr Kilmartin opined that the injuries she recorded were consistent with Ms Hannaford having been assaulted; she could not rule out the possibility that the injuries were caused by a fall. I reject the appellant’s submission that the medical evidence was intractably neutral.
The Magistrate clearly had regard to the evidence of Ms Hannaford’s history of falling out of bed (hence the mattress), deliberate falls and her “wandering”. He also had regard to the evidence of Ms Bak and Mr Binns.[48]
[48] Police v Mullen, reasons for ruling of Magistrate P Foley, 26 November 2018, file No. AMC-17-9655 at [35]; Police v Mullen, judgment of Magistrate P Foley, 27 February 2019, file No. AMC-17-9655 at [52]-[53].
The respondent submitted that the Magistrate correctly identified the factors he had to have regard to when exercising his discretion. Clearly, the respondent submitted, the Magistrate considered: the value and significance of the evidence to the prosecution case, the reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements, the circumstances in which his or her statement was taken, the extent of the forensic disadvantage suffered by the appellant due to the loss of the common law procedural right to cross-examine the maker of the statement, and the forensic unfairness suffered by the appellant as a result of the admission of the statement, compared to the position of the appellant if the witness had been called to testify.
In particular, the respondent pointed to the admissions made by the appellant that he was the only person to attend room 124 in response to the alerts and his admission that he probably raised his voice a little “once or twice”. The appellant admitted that each time he attended the alerts Ms Hannaford was found in bed.
The respondent submitted that not only did the Magistrate acknowledge the relevant forensic disadvantage in the appellant not being able to cross-examine, he only admitted the statements after considering supporting evidence, despite having found the statements reliable.
The respondent submitted that, when considering the relevant forensic unfairness, regard must be had to the use the appellant made, appropriately, of s 34KB of the Act. Evidence was led pursuant to s 34KB of the Act which attacked Ms Rogers’ credibility and reliability. The Magistrate took those matters into consideration.
Mr Barklay SC further submitted that to admit the statements into evidence would be to have a trial “on the papers”, a concept that Kourakis CJ in Haines[49] described in the circumstances of that case as “too great to countenance”[50]. The facts in Haines[51] were, as mentioned earlier, unusual. The witness Mrs Haines gave two relevantly conflicting statements; a jury would have had to have chosen between them. One of them was clearly unreliable. It was in those circumstances that Kourakis CJ referred to the trial as being “on the papers”. Self-evidently, whenever a statement is admitted pursuant s 34KA of the Act, and the evidence is critical, it becomes, partially at least, a “trial on the papers”. That is not the sense, in my view, that Kourakis CJ was using that expression. I reject the submission that this matter would be a trial on the papers.
[50] R v Haines [2016] SASC 96 at [51].
Discussion
I reject the appellant’s submission that the Magistrate made a number of process errors. In my view, the Magistrate considered all of the relevant factors when exercising the general unfairness discretion. Undoubtedly there is, to an extent, forensic unfairness in the admission of Ms Rogers’ statements. The fact that a fundamental right, namely the right to cross-examine, has been taken away can be seen to be unfair. However, that issue is the product of the statutory modification of the common law means of proof.
The question is whether the unfairness, in admitting the statements, resulted in an unacceptable risk of a miscarriage of justice. To put that another way, on appeal, the appellant must establish that the discretion could only have been exercised in a manner different from that in which it was and that a substantial wrong has occurred. In my view, the appellant has not established that the discretion could only have been exercised in a different way. Indeed, in my view the Magistrate was correct in the manner in which he exercised the discretion.
If I am wrong in my conclusion about whether the Magistrate made any process errors then I would have to exercise the discretion afresh. Like the Magistrate, I would admit the two statements.
I dismiss Ground 1.
Ground 2
The appellant submitted that the opinion evidence of Ms Hannaford’s general practitioner, Dr Kilmartin, on the question of the cause of the bruising to Ms Hannaford’s face was inadmissible. Alternatively, Mr Barklay SC submitted that, even if the evidence was admissible, it was “intractably neutral” and the Magistrate erred in placing weight on the evidence.
Dr Kilmartin obtained her medical degree in 1991 from Flinders University. Since leaving university, she has practiced as general practitioner with a particular interest in the treatment of elderly patients, especially in the areas of dementia and palliative care. As part of her practice, Dr Kilmartin has treated patients who have suffered falls which requires taking a history and then an assessment of the severity of any injuries suffered.
Dr Kilmartin expressed her opinions as to the cause of the injury to Ms Hannaford’s face as follows:[52]
[52] T179.13-24; T179.33-180.24; T180.36-181.14.
QIn your opinion in terms of the extent of the bruising and swelling that you saw on Ms Hannaford that morning.
AYes.
QCould that degree of bruising and swelling have been caused by a fall from that bed.
ANo.
QWhy do you say that.
ABecause of the degree of the swelling that I observed on my examination. I would have expected that the force or impact needed to produce that amount of swelling would be more substantial than a fall out of that level bed.
…
QDoctor, were the injuries that you saw in cause consistent with having been caused by blunt force trauma.
AYes.
QCan you tell us what blunt force trauma is.
AAn injury that’s inflicted by an instrument that has no sharp and it usually creates a more diffuse swelling than one that’s caused by a sharp edged object.
QSo that would include possibly a punch.
AYes.
QAnd count it include any blunt object striking Ms Hannaford to the face.
AYes.
QCould it also include a fall from a standing position.
AYes.
QWas there anything about the injuries that you witnessed on Ms Hannaford that was inconsistent with a fall from a standing position.
AYes, she had no injuries anywhere else, no bruising and no complaints of pain or tenderness.
QWhy is that inconsistent with a fall from a standing position.
AIn general, if somebody falls from a standing position they either put their hands out to protect themselves or they will hit some other part of your body as they fall from a standing position. She had a singular injury to the right side of her face and I didn’t find any other injuries to suggest that she might have fallen from a standing position. Notwithstanding that, she can’t stand up on her own very easily.
…
QThat the lack of injuries isn’t consistent, the lack of injuries elsewhere isn’t consistent with a fall.
AIsn’t consistent with a fall from a standing position.
QFrom a standing position.
AAnd then –
QWhat is it about your experience –
AI see.
QThat allows you to say that. Is that what you were –
REXN
QThank you, yes.
ASorry. Well, based on my experience of examination of many other patients that have fallen from standing, they have other injuries. They have injuries to their hands, grazes to their elbows or shoulders. They often injure their back at the same time. So they’re usually multiple injuries when someone falls from a stand position.
Against that background, Mr Barklay SC cross-examined Dr Kilmartin as follows:[53]
[53] T181.21-183.13.
QDoctor, are you able to say how much speed someone would generate from a fall from two foot off the ground, do you know.
ANo.
QDo you know how much speed and velocity someone will pick up from say three foot or four foot.
AMore than two foot.
QYes, of course. But you’re not as a result of your qualifications able to give those sort of figures.
ANo.
QHave you done any specific study on the extent and injury that someone might suffer from a fall from about two to three foot.
ANo.
QYou say today that a fall from the bed to the ground wouldn’t cause those injuries. But you don’t know the level of force or speed or velocity that someone might gather over that period of time.
AI think my comments were in particular relation to that bed and that time and the circumstances surrounding it and I suppose that those injuries could not have been sustained by a fall out of that bed.
QBut do you agree with this, that really there’s a large degree of speculation on your part with respect to that.
AYes.
QI mean you would accept that you can’t discount if she rolled and fell in a way where she hit her head on the ground or hit her head on something on the way down. I mean you can’t exclude that she could suffer those injuries falling out of bed can you, really.
ABut she would have had to get herself back into bed after that to be found in bed by the carers the next morning.
QLet’s just forget all those assumptions and just stick with falling out of bed. You’re not able to exclude, are you, that a fall out of bed could account for those injuries. I mean you just don’t know, do you.
AAgain, I say it’s very specific in relation to that bed at that height that I don’t think it could have been sustained by a roll or a fall out of that bed at that height.
QWhat I’m asking you about is in relation to why you say that. Would you agree with this, that you can’t say whether her falling from that bed two foot to the ground may or may not have caused that injury to her face, can you. It’s possible. Sorry, Doctor, you have to answer.
AIt’s a very remote possibility because of what, the height. The height and the velocity. I can’t give you, I suppose, you know, meters per second but I know it would have been a very low velocity and in my experience a low velocity impact should not create that degree of swelling.
QBut do I understand it that you actually don’t understand because of any study that you’ve done what the velocity impact would be.
ACorrect.
QYou say that it would be a low velocity. When you say that you are just speculating, aren’t you.
AYes.
QYou’re not basing it on any actual study of velocity.
AExcept my experience.
QYour experience doesn’t extend to understanding the velocity from a two foot four, three foot four, four foot other than you get more velocity the higher you go.
AYes.
Dr Kilmartin’s opinion, as can be seen from the evidence, was limited. She expressed the opinion that Ms Hannaford’s injuries were unlikely to have been sustained by a roll out of her lowered bed which had a cabinet on one side and a mattress on the other. Dr Kilmartin’s evidence was that a fall from such a lowered position would not have generated sufficient force on impact to cause the injury she noted. She conceded that her expertise was limited to the concept that the further the distance the greater the velocity at impact. As the Magistrate observed, that concept is just a matter of common sense.
Dr Kilmartin conceded that if Ms Hannaford had not fallen out of bed, but fallen from a standing position, sufficient force may have been generated to cause the injury to the face. However, Dr Kilmartin stated she would, in those circumstances, have expected to see other injuries (I deal with this aspect later in these reasons).
Mr Barklay SC submitted that, as Dr Kilmartin had not performed any specific studies of “velocity” and “impact injuries”, she could not give an opinion. I consider that submission is misconceived. It is simply not necessary for her to have conducted any such study. Her medical qualifications and experience enabled her to give the opinions she expressed. Her lack of study in a specific area may go to the weight of the opinion but did not mean she was not qualified. I reject the submission that Dr Kilmartin was not qualified to express an opinion.
Mr Barklay SC further submitted that the Magistrate should have excluded Dr Kilmartin’s opinions, or given them no weight due to the injuries suffered by Ms Hannaford as shown in the photographs in Exhibit P10. Mr Binns took photographs, a few days after the alleged assault, of the bruising around the facial area of Ms Hannaford. In addition, he took photographs of marks, which may in part at least be bruising, to her right shoulder, right chest, right upper arm and possibly her left upper arm. The area covered by the marks is extensive.
Neither Dr Kilmartin or Dr Sulpido, the medical practitioner who examined Ms Hannaford when she was admitted to hospital, noticed or noted any injuries other than the bruising to her face. An assumption made by Dr Kilmartin, when giving her opinion about the cause of the injury to Ms Hannaford’s face, was a lack of any other injuries to other parts of her body.
During cross-examination Dr Kilmartin was asked:[54]
[54] T185.5-38.
QAnd if you put to one side this history that she was back in bed, is it the fact that you don’t consider it could have been caused by a fall because normally you would see other injuries to their body with a fall from standing.
ASo if I don’t consider the history that she was in bed, would I have accepted the injury as being caused solely by a fall, is that what you’re asking me?
QYes.
ANo.
QIs that because there aren’t any other bruises that you normally see associated with a fall.
AInjuries, yes.
QSo if she had, for example, bruises to other parts of her body then that would be consistent with what you see with people that have falls.
AOnly if the bruises are around the areas where I expect to see bruises if somebody actually fell, not bruises that appear somewhere else.
QFor example, I think you mentioned she might have a bruise on her shoulder if she’s gone down and hit her head. On her arm.
ASo if someone falls and hits the right side of their face you would expect to see other injuries, maybe on the right side of the body and depending on whether they tripped or whether they actually hit anything else coming down, there might be other injuries on other parts of their body.
QExactly. And the point is a fall is such a dynamic thing, I mean you can’t predict where the bruises are going to form on the body, can you. It just depends on what you hit, how you fall, the angle, that sort of thing, do you agree.
AYes.
Surprisingly, the photographs in Exhibit P10 were not shown to Dr Kilmartin by either the prosecutor or Mr Barklay SC. Of course, there is no onus on the appellant to prove anything. However, if the appellant wished to weaken or undermine Dr Kilmartin’s opinion the photographs needed to be put and her comments invited. In my view, that should have been done if the topic was to be pursued. Dr Kilmartin qualified her answer about other injuries by stating it would depend on where the bruising or injuries were located on a person’s body. It is hard to tell from the photographs whether the apparent bruising to other parts of Ms Hannaford’s body are as extensive as shown or are actually blood draining under the skin from the smaller injury or some other part of the body. Further, the statements of Ms Rogers imply more than one blow was delivered by the appellant (accepting for the purpose of this argument that any blows can be inferred). It may be, although of course it is unknown, that the apparent bruising to other areas of Ms Hannaford’s body are consistent with an assault. The evidence simply does not allow any conclusion to be drawn as both counsel took the matter no further. The Magistrate was, of course, bound to decide the case on the evidence. In that sense, the task was confined by the way the forensic case was fought. Neither party sought on appeal to have me re-hear the evidence of Dr Kilmartin.[55]
[55] Magistrates Court Act 1991 (SA) s 42(4).
I dismiss Ground 2.
Ground 3
I have already dealt with the appellant’s submissions on this topic when discussing Ground 1. I dismiss this ground of appeal.
Ground 4
Is the verdict unreasonable or unsupported having regard to the evidence?
Appeals from a Magistrate are governed by s 42 of the Magistrates Court Act 1991 (SA). The appeal is a re-hearing so it proceeds on the documents although, pursuant to s 42(4) of the Magistrates Court Act 1991 (SA), there is a power to re-hear witnesses or receive fresh evidence. On appeal from the Magistrates Court, this Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit. In Rowland v Police[56] Perry J observed:[57]
… it is the duty of this Court on the hearing of an appeal from a magistrate, to conduct an independent review of the evidence. It may allow an appeal, even if there is no overt error apparent on the face of the reasons given by the magistrate.
That is not to say that if a magistrate gives convincing reasons, apparently free from error, this Court may be reluctant to substitute its own views. But it must do so if it comes to a different view of the case after making an independent review of the evidence.
The question on the hearing of an appeal from a magistrate is not whether there was material upon the basis of which it was open to the magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.
[56] (2001) 79 SASR 569.
[57] Rowland v Police (2001) 79 SASR 569 at 573-574 [36]-[38].
Thus, the task of this Court on such an appeal is to reach its own view of the case by undertaking an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. The court must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, but if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or, if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
This approach was confirmed by the Full Court in R v Taylor.[58] Although dealing with the nature of the appeal pursuant tohttp:// s 269Y of the Criminal Law Consolidation Act 1935 (SA), Stanley J (with whom Kelly and Peek JJ agreed), in relation to appeals from a Magistrate, observed:[59]
… That right of appeal has been characterised as an appeal by way of rehearing. That requires a court on appeal to reconsider the materials before the trial judge along with such other materials as it may decide to admit and then make up its own mind. However in doing so the court is not to disregard the judgment appealed from, but must carefully weigh and consider it. However, if on full consideration, the court concludes the judgment was wrong, then the court must substitute for the judgment under appeal any order it considers that the court should make.
(Footnotes omitted)
[58] [2014] SASCFC 112.
[59] R v Taylor [2014] SASCFC 112 at [18].
The prosecution case against the appellant was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen,[60] Gibbs, Stephen and Mason JJ said:[61]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v. The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw": Plomp v. The Queen; see also Thomas v. The Queen.
[60] (1975) 133 CLR 82.
[61] Barca v The Queen (1975) 133 CLR 82 at 104.
In The Queen v Baden-Clay,[62] the High Court stated:[63]
For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
(Footnotes omitted)
[62] [2016] HCA 35.
[63] The Queen v Baden-Clay [2016] HCA 35 at [47].
The Magistrate, correctly in my opinion, refused to exclude the statements of Ms Rogers. There is therefore indirect evidence consistent with the appellant hitting Ms Hannaford. The Magistrate looked to supporting evidence as he was not prepared to act on the evidence of Ms Rogers alone. He relied upon the opinion evidence of Dr Kilmartin and admissions made by the appellant. The appellant was interviewed by Detective Brevet Sergeant Redmond at 3.30 pm on 19 November 2015. He told Detective Brevet Sergeant:
·He worked as a carer at the Home.
·The night had been uneventful.
·One lady started pulling her bell controls and power points; he had to go and plug them back in.
When asked to explain what happened in the room he replied:
Um she’s pulled out, you could see cause you get alarmed um whenever anything goes pulled out. Like I said she’s on a sensor mat which activates that she actually rolls out of bed and falls onto it, so you see it on our little deck (sic) phones you go and answer it, so that’s what I did I went in there um and you could see the light on her her bedside, excuse me, cupboard, and you could see she pulled all the plugs out of the sockets all the whole lot, um so I just asked her what was the reason you’re pulling them out and she couldn’t, she couldn’t tell me, and then, sometime she’s hard to get some words out her, she told me the little red light on the ceiling was was winking at her, and I said “it’s probably winking at you Lib” cause we call her Libby, I said um because she’d pulled the bell out cause it plugs into the socket, as soon as you pull it out it rings, it activates.
So she’d pulled all that out plus she pulled out a power pack for a sensor mount (sic) plus a power-cord for the bed, the whole kinda thing and she said that um it was causing a little red light to wink at her. I said “the only reason it’s winking at you Libby is cause you’re pulling the bells out” so I just plugged them back in, I said “don’t pull them out again cause you can actually break them if you keep keep doing it”. So probably for the next I reckon half an hour three quarters of an hour she did it a further four times.
The appellant agreed that he’d gone in to see her on approximately five occasions. The call records[64] suggest there may have been seven more occasions when the alarm was triggered. He did not see whether she had any injuries as there is not “a great night-light”. The appellant said that he didn’t even think to look to see if she had injuries because she “hadn’t rolled out of bed at all as you do, so no it’s just a matter of just asking why she was doing it and plugging them back in, that’s the only thing I could do, plug them back in because she is at a high risk of falling and rolling out of bed.”
[64] Exhibit P4.
The appellant confirmed that on every occasion he attended the room that evening Ms Hannaford was in bed. He agreed he would have seen her and Ms Rogers when he did a check at about 6.00 am.
It was appropriate for the Magistrate to assess the case on all of the evidence. The Magistrate was alive to the inconsistencies in the statements of Ms Rogers. He took into account those inconsistencies, and suggested lies, when assessing the weight he could give the statements. The Magistrate had regard to the fact that Ms Rogers expressed dislike for the appellant and he also had regard to Sergeant Cooper’s evidence. Further, he had regard to the evidence of, and accepted that there were, inconsistences between her statements
The Magistrate stated that he was not prepared to act on the statements of Ms Rogers without there being some support for her evidence. Ms Rogers stated that the appellant came into the room because Ms Hannaford was interfering with the power cords. Her evidence receives support both from the appellant and the alarm records. She stated that she heard sounds consistent with Ms Hannaford being hit by the appellant. Ms Hannaford’s injuries were consistent with her having been struck by a blunt object such as a hand or fist.
Looking at the totality of the evidence, the Magistrate concluded that the prosecution had proved the case beyond a reasonable doubt. In my view, it was reasonably open on the evidence for the Magistrate to convict the appellant. On appeal however, that is not the test. I must assess the evidence myself and if I consider the verdict to be wrong I must say so. On appeal, the question for me is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the Magistrate in seeing and hearing the witnesses, I am satisfied that the judgment under appeal is correct.
I have read and re-read the evidence, the reasons of the Magistrate, and both the written submissions and transcript of the oral submissions of the appellant. On my review of the evidence the Magistrate’s finding of guilt was clearly correct. Not only was the guilt of the appellant a rational inference, it is the only rational inference the circumstances enable me to draw.
In so finding I have not overlooked the submission by Mr Barklay SC that when reasoning towards guilt the Magistrate misunderstood the evidence of how the alarm system worked. I have already dealt with this submission when dealing with Ground 1. However, if I am wrong about my assessment of the Magistrate’s reasoning on this point, the Magistrate would have been in error.
In Police v Rosales,[65] Peek J observed:[66]
In Theophilus v Police I considered the circumstances in which an appeal under s 42 of the Magistrates Court Act 1991 may be dismissed even though a ground of appeal has been made out. I there followed the decisions of Napier CJ in Pelham v Homes, Bray CJ in Pope v Ewendt, and other later cases, all to the effect that a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
(Footnotes omitted)
[65] [2017] SASC 118.
[66] Police v Rosales [2017] SASC 118 at [95]; see also the recent discussion in Le Cornu v Thomas (DEWNR) [2019] SASCFC 154.
The appellant submitted that the Magistrate misunderstood the evidence of the alarm system by implicitly finding that pressure applied to the sensor mat triggered a different alarm to that triggered by pulling out the cords from the power socket. The appellant, at trial and on appeal, suggested that the prosecution could not exclude, at least as a reasonable possibility, that Ms Hannaford had fallen and injured herself in that fall. That is, her injuries were an accident of her own making. It was submitted that as the Magistrate misunderstood the alarm evidence his reasoning was defective and the reasonable possibility of an accidental fall had not been excluded. This was particularly so as Ms Hannaford had a history of falls from bed, wandering from her bed without triggering an alarm, and mechanical falls.
That submission needs to be considered in the context of all of the evidence in the case. It must be remembered that the appellant said that every time he attended an alarm that evening in room 124, Ms Hannaford was in bed; that is, he never found her out of bed. Further, he stated that on every occasion he attended room 124, the cords had been pulled out.
I accept that the same alarm is sent whether there is pressure on the sensor mat or the cords are pulled out of the power socket.
Returning to the appellant’s submission, for there to have been a fall as postulated by the appellant, Ms Hannaford would have had to stand up and then fall over by the bed or some other area near the bed, or possibly fall out of bed. Ms Hannaford either triggered the alarm by putting pressure on the sensor mat or possibly got out of bed and fell without putting pressure on the mat. She must have fallen with sufficient force to have caused the injury to her face. Having injured herself, Ms Hannaford was able to get up unassisted and then put herself back to bed and in a position in the bed that did not arouse any suspicion in the appellant that she had been out of bed. The evidence of Dr Kilmartin casts doubt on the ability of Ms Hannaford, if she fell, to get up unaided.[67] Having got back into bed, Ms Hannaford must have pulled the cords out of the power socket, triggering the alarm if it hadn’t already been triggered, before the appellant had a chance to cancel the alarm. Or possibly, the fall caused the cords to come out of the power socket thus triggering the alarm. However, she was able to get back into bed before the appellant entered the room and when the appellant entered the room, despite Ms Hannaford having injured herself, the appellant did not notice any injury to her face. While the lighting was not good, it was not pitch black in the room.
[67] See T186-187.
The statements of Ms Rogers exclude the possibility of an accidental fall. In my view, the submission of the appellant is pure speculation. On consideration of all of the evidence it is excluded even as a reasonable possibility.
Even if the Magistrate was in error in the way in which he dealt with the alarm evidence, a conviction was inevitable.
I dismiss Ground 4.
Orders
The appeal is dismissed.
- AGLC
- Mullen v Director of Public Prosecutions (SA) [2020] SASC 10
- Case
- [2020] SASC 10
- Decision Date
CaseChat Overview and Summary
The legal issues central to this appeal revolved around the application of Section 34KA of the Criminal Law Consolidation Act 1935 (SA), which pertains to the admissibility of out-of-court statements by unavailable witnesses. Specifically, the appeal questioned whether the Magistrate had correctly exercised his discretion under Section 34KD of the Act, which allows for the exclusion of such statements if their admission would cause unfairness to the accused. Mullen's counsel argued that the Magistrate failed to adequately weigh the disadvantages faced by Mullen in cross-examining the unavailable witnesses, particularly Ms Rogers, who was a fellow resident of the nursing home and had her own mental health issues.
The Supreme Court of South Australia examined the Magistrate's decision to admit the statements of Ms Rogers, despite Mullen's objections. The court assessed whether the Magistrate appropriately exercised his discretion to exclude these statements, considering the potential forensic disadvantage to Mullen and the reliability of the statements. The court found that the Magistrate had adequately considered the evidence and the potential unfairness to Mullen, and thus upheld the decision to admit the statements. The court also addressed other grounds of appeal, including whether the verdict was unreasonable or unsupported by the evidence, but found no merit in these arguments.
Ultimately, the Supreme Court of South Australia dismissed the appeal, affirming Mullen's conviction. The court held that the Magistrate's decision to admit the statements of Ms Rogers was justified under the Act, and that the verdict was supported by the evidence presented. Mullen's appeal was thus unsuccessful, and his conviction for aggravated assault causing harm stood.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: LOVELL J
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