NEALE v POLICE No. SCGRG-98-1078 Judgment No. S6849

NEALE v POLICE

[1998] SASC 6849

Magistrates Appeal

Perry J (ex tempore)

The appellant appeals against his conviction in the Magistrates Court sitting at Port Adelaide on charges of assault and wilful damage.
In fact, the appellant was charged on the one complaint with three counts. The first two counts alleged that on successive days, that is 23 and 24 September 1997, he assaulted Michelle Louise Tilley contrary to s39 of the Criminal Law Consolidation Act 1935. The third count alleged that on the second of those days, that is 24 September 1997, he caused wilful damage to a motor vehicle, the property of Michelle Tilley, by damaging its windscreen, contrary to s85(3) of the Criminal Law Consolidation Act 1935.
The appellant was represented by counsel and pleaded not guilty to the two assault charges but guilty to the wilful damage count.
The Crown case on the assault charge comprised evidence from the alleged victim, Ms Tilley, and a record of interview between the appellant and a police officer. The appellant gave evidence in his own defence, but did not call any other witnesses.
The learned trial magistrate delivered extempore reasons for judgment, finding the first of the assault charges proved, but dismissing the second assault charge.
At an adjourned hearing three weeks later, he heard submissions as to penalty. It then appeared that the appellant had been released on a bond to be of good behaviour for 18 months, the bond having been entered into on 30 January 1997. The commission of the offences upon which the learned magistrate convicted the appellant operated to breach the bond, so as, potentially at least, to activate the term of imprisonment of 14 days which had been suspended upon the appellant's entry into the bond. The bond had been imposed on a charge of damaging property, the property involved being a side mirror of a motor car.
As to the breach of bond, the learned magistrate took the view that it would not be in the interests of justice to estreat the bond and imprison the appellant. Instead, he exercised his discretion to extend the term of the bond by a period of 12 months.
The learned magistrate then proceeded to convict the appellant on the assault charge, upon which he ordered the appellant to pay a fine of $250.00. With respect to the wilful damage charge, as to which the appellant had apparently paid full compensation to the victim, he recorded a conviction without penalty.
At the hearing of the appeal I permitted the substitution of a number of grounds upon which the appeal then proceeded.
Put shortly, those grounds allege that the finding of guilt on one assault charge was inconsistent with the finding of not guilty on the other, which circumstances it is submitted renders the conviction for assault unsafe or unsatisfactory; that the learned magistrate failed to take into account sufficiently or at all the questions of self-defence or accident; that the learned magistrate failed to take properly into account failure by the prosecutor to call three witnesses; and that he failed to take into account evidence of alcohol consumption by both the appellant and Ms Tilley.
The appellant further complains that the learned magistrate erred in failing to allow counsel for the appellant to fully cross-examine the victim as to her previous police record and character. Finally, as some sort of makeweight, the appellant complains that the findings which led to the two convictions were unsafe, unsatisfactory and against the weight of the evidence.
Briefly, the circumstances of the first assault alleged were that according to Ms Tilley the appellant struck her with a billiard cue while they were both in the bar of the Producer's Hotel in the city.
The circumstances of the second assault are not so important for present purposes, as there was no conviction, but at all events Ms Tilley alleged that the appellant had an altercation with her at the house within which they were both living in a de facto relationship. She alleged in particular that he threw something across the room, she thought it might have been a chair, and that it injured her left knee leaving a scar, and that he then punched her in the head.
Subsequently, after they had thrown some items at each other, she alleged that the appellant picked up a glass jar, ran out into the driveway and smashed the front window of her car, presumably using the glass jar which he had picked up. That was the incident which resulted in the conviction for wilful damage.
I return to the circumstances of the assault which is alleged to have occurred at the Producer's Hotel.
Ms Tilley's evidence was that she was standing at the bar getting a drink, and although others were around her, she was alone in the sense that they were not her friends. The appellant was at a nearby pool table apparently playing pool. She turned around whilst still standing at the bar. She alleged that the appellant, holding the billiard cue in both hands, then struck her a hard blow in a downward motion, so that the billiard cue hit her on the shoulder. She said that she immediately started crying and sat down with the manager's wife for a time while the appellant was, to use her expression, “dragged” out of the hotel by three other men.
Ms Tilley alleged that the appellant had been drinking, she said ten beers, but that she had not had a lot to drink. She said that she had done nothing to justify him hitting her suddenly with the pool cue, but that he was prone to violence after drinking and that in such circumstances he often “goes psycho”.
Ms Tilley was cross-examined at great length over previous instances which had occurred between the parties in which the suggestion was that she had been violent and aggressive towards the appellant. There were one or two occasions when the learned trial magistrate clearly thought that the cross-examination was getting somewhat out of hand, and he curbed it by disallowing some questions. At another stage Ms Tilley said she needed to relax and needed a break, for which the magistrate adjourned for about 10 minutes. She was obviously emotional in the witness box. She used some swear words, and her demeanour in court was clearly antagonistic to the appellant. The hearing bore all the hallmarks of the acting out, in an acrimonious fashion, of the end of a relationship marred by bitterness and violence.
The appellant, who is aged 28 years, gave evidence explaining how he struck up a sexual relationship with Ms Tilley, how they lived at different addresses, and how on his account of the matter she had been continually emotional, taking Ephedrine, and at times erupting into violence. It is clear from his account of the matter that as he saw it, the relationship was in a stage of progressive deterioration at the time of the assaults in question, much of the blame for that being assigned by him to her conduct.
As to the incident in the hotel, his assertion was that she started picking on him. To use his account in evidence in chief:
“She was over at the bar to the side of me, at the side where the table was, at the bar. She was sitting down there watching but then she started slamming abuse for no particular reason. She just started picking on me. Basically I think she wanted to go in where the band was but I wanted to stay at the pool table so the abuse started flying. I told her to ‘piss off’. I want to play pool. She started more abuse. I said ‘Just piss off, I want to play pool’. With that she jumps like that (just what demonstration, if any, the appellant then gave is not clear from the transcript). I went like that to block what I thought was a punch as has happened before, and pool cue just brushed her arm and her hand, that's all that happened ... Three blokes came up to me and said ‘Hey you can't do that’. I said ‘I didn't mean to hit her with the pool cue. I thought she was actually going to hit me’. They said ‘Well you better leave mate’. They escorted me to the door and I walked off.”
Elsewhere in his evidence, and, in particular, for example, during the course of cross-examination, the appellant described Ms Tilley, as being aggressive, and that this was apparent from her voice and the language which she was using which was not “polite”.
In cross-examination, as opposed to the passage which I have quoted from his evidence in chief, he said that he hit Ms Tilley in the forehead, and that she ran into the cue.
In the course of his reasons for judgment, the learned magistrate summarised the account given by each of the parties as to what occurred in the hotel. He described the alleged victim, Ms Tilley, as emotional and prone to swearing and shouting. He said that he had no doubt that she did so on the night in question in the hotel. He went on, however, to say:
“As to the defendant's story that she lunged at him and he tried to protect himself by holding a cue up, I do not believe one word of it. I carefully observed the defendant and his mannerisms, his method of answering the prosecution, his slight changing of the facts left me in no doubt at all that he was not telling the truth.
I am satisfied beyond reasonable doubt that he struck the victim with the pool cue, and had no reason to do so, other than the fact that she was annoying him through stupid, abusive language, language which he was returning. It got to the stage clearly where he lost control and struck her. It was not such a savage blow as to knock her down, but it was a stupid and unreasonable thing to do.”
Turning to the grounds of appeal, in my opinion the alleged inconsistency between the conclusion reached by the learned magistrate as to the two assault charges is not made out.
There are some cases where an inconsistency in verdicts may lead the court properly to conclude that a conviction is unsafe. One such case was the case of Jones[1], referred to during the course of argument. But there is a world of difference between cases in which, for example, a child complains of a long period of sexual abuse in terms in which the alleged circumstances of each incident are indistinguishable from the other alleged incidents. In such situations, an inconsistency of verdicts may be a cause for concern.
[1] (1997) 149 ALR 598
Here, however, the factual circumstances of each alleged offence occurring on two different days were quite different. A separate body of evidence was proffered by the prosecution with respect to each count. The dismissal of the second of the assault charges does not necessarily imply that the learned magistrate did not regard Ms Tilley as worthy of credit. It may simply be accounted for by reason of the fact that, on the whole of the evidence relating to the second count of assault, he was not satisfied beyond reasonable doubt that it occurred in the manner which she suggested.
Furthermore, it is always open to a court to believe part of what a witness says and not another part. It is clear that the incidents alleged to have occurred between these two parties were a reflection of a deteriorating relationship and a relationship which was degenerating into mutual abuse and violence. In those circumstances, I see nothing inconsistent between a finding that, in the hotel, he assaulted her, but that her allegation that he assaulted her on another occasion was not made out beyond reasonable doubt.
As to the questions of self defence and accident, it is true that, in a case before a jury, if it is open for the jury to find that the Crown has not negatived self defence in terms of s15 of the Criminal Law Consolidation Act 1935, the judge must give a direction to the jury accordingly and the assertion of self defence must be considered.
Here, the learned magistrate heard evidence from both parties, which included the assertion by the appellant that he responded to a situation of aggression on the part of Ms Tilley.
Certainly, if the matter rested there, there would be the potential for a finding that he had acted in self defence, or that the possibility that he might have been so acting could not be excluded beyond reasonable doubt.
But it seems to me that the issue is concluded by reference to his ultimate factual findings. On the whole of the evidence, he eventually concluded that he could not believe the appellant's account of the matter. He clearly accepted Ms Tilley's account of the incident beyond reasonable doubt. On that basis, there could be no possibility of self defence. Likewise, there could be no possibility of accident.
True it is that the prosecution case was that the appellant had a considerable amount to drink. This might reasonably lead to the inference that the appellant's conduct was affected by his consumption of liquor. It may well have made him argumentative and more readily prone to violence. But it is a far cry to conclude that it was possible that he lacked the necessary intent, or that the assault, as described by Ms Tilley, had occurred by accident. The appellant was still on his feet. He walked away from the hotel. He was apparently in sufficient possession of his faculties to handle a cue in playing pool (although not without some criticism from Ms Tilley, apparently, as to how he was playing). None of the surrounding circumstances lend any support to the view that it was reasonably open on the evidence to conclude that there was even a possibility that his consumption of alcohol negatived the necessary intent, or voluntariness.
There is nothing in that ground of appeal.
The appellant, as I have said, also complains about the fact that his counsel was prevented from fully exploring Ms Tilley's background and previous history of violence.
In fact, counsel was given considerable latitude in that respect. During the course of the conduct of the appellant's defence, tendered before the learned magistrate was a printout of a list of prior convictions of Ms Tilley, which included convictions for damaging property, fighting, assaulting and resisting police. She was also cross-examined at great length as to violent incidents as between her and the appellant which had occurred during the time that they were living together. It is clear, from her demeanour in court, that she was prone to coarse language, and it is equally clear from the learned special magistrate's findings that he had no doubt that she was capable, on occasions, of violence as well as abuse.
Exploration in depth of her previous violent behaviour was not something which the appellant was entitled to pursue in cross-examination at inordinate length. It was a collateral issue, and investigation of collateral issues must be kept within reasonable bounds. It seems to me, on reading the transcript, that the learned magistrate acted quite properly in confining the investigation of that aspect of the matter. As I have said, he allowed considerable latitude and a considerable volume of evidence was extracted, by one means or another, which could have left no doubt about the personality and character of Ms Tilley. Despite that, the learned magistrate reached a conclusion of guilt as to the first of the assault counts.
In my opinion, his conduct of the hearing in that respect cannot be open to serious challenge.
The appellant points to the failure of the prosecutor to call the three men who, on the appellant's own account of the matter, escorted him out of the hotel.
It will sometimes be the case that a failure to call witnesses may justify an inference that their evidence would not have assisted the party who might have been thought to be in a position to call them. That was the view which I took, for example, in Taylor v Hayes[2] with respect to the failure by the prosecutor in that case to call a number of police officers alleged to have been at the scene of an altercation.
[2] (1990) 53 SASR 282
Here, however, it is by no means obvious to me in whose camp the three men who escorted the appellant out of the hotel might reasonably be supposed to be in. One might equally well level against the appellant the argument that his failure to call them suggests that they were unlikely to support his case. Of course, it is for the prosecution to prove the charge, and there is no onus on an accused person to call any witnesses. But, in all the circumstances, I do not think that the failure to call the three men operates to the advantage or disadvantage of either party to these proceedings.
As to the broad ground of attack on the findings of the magistrate that they are unsafe, unsatisfactory and against the weight of the evidence, in my opinion that ground is not made out either. The mere fact that the court is confronted by two completely different accounts as to the circumstances of an alleged offence does not mean that any resultant preference of one account over the other is necessarily suspect. The learned magistrate had the inestimable benefit of seeing and hearing both of the parties to the incidents at some length. They were both cross-examined vigorously. It seems clear enough from the transcript of the trial that their demeanour made an impression on the learned trial magistrate; unfortunately for the appellant, an unfavourable impression so far as he was concerned.
It was perfectly open to the learned magistrate to prefer the evidence of Ms Tilley as to the first assault, and there is no reason to doubt the soundness of the conclusion he eventually reached as to that. There are a legion of cases in which courts of high authority have emphasised the limited circumstances in which an appeal court should feel free to interfere with findings of fact reached by a judge or a magistrate at first instance who has seen and heard the witnesses. There is no ground, in my opinion, to interfere with the convictions on that account.
For these reasons, the appeal is dismissed.
The appellant is to pay the respondent’s costs of and incidental to the appeal, which I fix at $150.00.

[1998] SASC 6849

15 September 1998