Oates v Koehler

[2020] TASSC 60

[2020] TASSC 60

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Oates v Koehler [2020] TASSC 60
PARTIES:	OATES, Craig Anthony
v
KOHLER, Renee
FILE NO:	1906/2020
DELIVERED ON:	4 December 2020
DELIVERED AT:	Hobart
HEARING DATE:	27 November 2020
JUDGMENT OF:	Brett J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Corroborative evidence – Finding of guilt open to the magistrate – Motion to review dismissed.

Evidence Act 2001 (Tas), s 66(2).
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Beechey v McDonald [2010] TASSC 47, referred to.

Aust Dig Magistrates [1348]

REPRESENTATION:

Counsel:

Applicant:	H Bassett
Respondent:	E Bill

Solicitors:

Applicant:	Walsh Day James Mihal
Respondent:	Director of Public Prosecutions

Judgment Number:	[2020] TASSC 60
Number of paragraphs:	17

Serial No 60/2020 File No 1906/2020

CRAIG ANTHONY OATES v CONSTABLE RENEE KOEHLER

REASONS FOR JUDGMENT BRETT J
4 December 2020

1             On 23 August 2019, the applicant appeared before Magistrate Fairley in the Devonport Magistrates Court in respect of his application for a restraint order against Jaeyden Wardle. Mr Wardle had previously obtained a restraint order against the applicant. There was clearly a history of animosity between the two men, who had previously lived in close proximity to each other.

2             Both men were present in the courtroom on this day. The proceedings were constituted by a brief discussion between the applicant and the magistrate. When the magistrate made it clear to the applicant that he was not intending to make the order, the applicant stormed out of the courtroom. He was brought back in by police and security at the request of the magistrate. The proceedings concluded soon after, and the applicant again left the room. Mr Wardle alleges that, as the applicant walked past him towards the exit, he raised his elbow and brought it into contact with Mr Wardle's body, in a motion which Mr Wardle described as "a medium brushing motion". The applicant was subsequently charged on complaint with one charge of common assault and one charge of breach of restraint order, on the basis of this allegation.

3             The complaint was heard and determined by Magistrate Topfer on 15 July 2020. Her Honour found that the assault had been committed by the applicant. Her Honour dismissed the charge of common assault on the basis that it was subsumed within the charge alleging a breach of the restraint order on the basis of the assault, and convicted the applicant of the latter charge. The applicant now moves this Court to review the finding of guilt. The sole ground of review is that "there was not evidence before the learned magistrate on which she was reasonably entitled to hold that the charge was proved". It is uncontroversial that this ground can only succeed if I am satisfied that on the evidence, it was not open to the magistrate, as a reasonable person, to come to the conclusion which she did: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21.

4             Before moving on to consider this ground of review, I should make the point that my failure to review the magistrate's decision to dismiss the assault charge on the basis that it was subsumed within the breach of the restraint order, should not be taken as expressing implicit approval for that decision. In taking that course, the magistrate acceded to a submission of defence counsel based on comments of Evans J in Beechey v McDonald [2010] TASSC 47 at [7]. I think care should be taken before attributing any significance or force to those comments in respect of the question which was the subject of the submission to the magistrate in this case. With great respect to the learned judge, his Honour's comments in Beechey v McDonald concerning this question were clearly obiter and not responsive to argument before him. In this case, the respondent has not sought to review the magistrate's dismissal of the charge, although the respondent's counsel made it clear that she did not accept that the charge had been correctly dismissed. Because this order was not the subject of review, the question was not argued before me and, accordingly, I do not wish to express a view at this time.

The evidence

5             The magistrate was provided with an audio recording of the hearing before Magistrate Fairley, as well as statutory declarations by the lawyer acting for Mr Wardle, Ms Abercromby, and two police officers, who were both police prosecutors and in court at the relevant time. The recording makes it clear that both the applicant and Mr Wardle were present in court during the hearing. The discussion between the magistrate and the applicant was relatively brief, but the magistrate made it clear to the

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applicant that he did not intend to grant the order. The recording suggests that the applicant was upset

by the magistrate’s comments and this is borne out by the uncontested evidence of the lawyer and

prosecutors. At one point in the discussion, the magistrate can be heard to say to the applicant, "Don't go anywhere yet. I haven't given you a date." The evidence from the lawyer and the police makes it clear that the applicant had stormed out of court at this point. The magistrate then indicated that he should be brought back into court, and one of the police officers and a security guard went after him and returned him to the court. The applicant can also be heard to say, just before he left the court, "Well, I'll have to deal with it myself then, won't I". Ms Abercromby and Sergeant Judges both depose that the applicant had turned towards Mr Wardle when he said this.

6             After the applicant returned to the court, there was a further brief discussion with the magistrate, and then the applicant left again. Each declarant noted that this occurred, but does not say that he or she saw any contact between the applicant and Mr Wardle. Ms Abercromby deposes that she was deliberately not looking at the applicant at this time. The evidence of the assault was provided by the oral testimony of Mr Wardle. His evidence was that as the applicant was leaving the court the second time, he was standing near the door and in front of the first row of seats. He denied a suggestion in cross-examination that he was in fact sitting in the second row of seats when the applicant left the court, and therefore it would have been impossible for the applicant to touch him. Mr Wardle said that he was "standing the whole time because I was standing when he hit me". He also said that he was standing "because I was addressing the magistrate". He described the physical contact as "There was no injury, no it was more of a less of a medium brush than like a full elbow." He said that the applicant shouted abuse after he had left the courtroom.

7             Mr Wardle's evidence was that immediately after the hearing, outside the courtroom, he made Ms Abercromby aware of the assault. She told him that she would send an email to the police. This evidence was corroborated by Ms Abercromby's declaration. She deposed that in the foyer of the court immediately after the hearing, Mr Wardle told her "that Mr Oates had elbowed him in the stomach". The following day, she sent an email to Sergeant Judges, advising him of this and enquiring as to whether police would take action. Ms Abercromby also confirmed in her statement that, at least at the time that the applicant had made the comment about taking things into his own hands, Mr Wardle was seated or standing in front of the middle of the front row of the public gallery.

8             The prosecution also presented oral testimony from Shakia Whitlander, who accompanied Mr Wardle to the hearing. Ms Whitlander described the proceedings generally in similar terms to the other witnesses. Her testimony included the following:

"I was sitting behind Jaeyden and Adam was sitting beside me. Mr Oates got up repeatedly and was raising his voice and went to walk past Jaeyden and I saw his arm move into Jaeyden but I didn't see it connect because I was right behind Jaeyden, but Jaeyden moved back just as his elbow went in and then he kept walking out the door."

9             In cross-examination, Ms Whitlander said that this incident took place when the applicant left the courtroom on the first occasion. She did not see him leave the second time, because she had already been told to leave the court herself.

10           The applicant gave evidence. He confirmed that he had become upset during the hearing, that he had been required to return to the court after he left the first time, and that when he left at the end of the proceedings, he simply walked straight out the door. He denied a suggestion in cross-examination that as he was walking out, he had "grazed" his elbow with the intention of striking Mr Wardle. He also said that as he left the court Mr Wardle was "standing back behind the security guard". He said Mr Wardle was with a lady and "they were sitting behind him, in the last row".

11           Adrian Smith, the applicant's son-in-law, also testified that he had attended the hearing. He was in the courtroom during the entire hearing and was behind the applicant when he left the court on both

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occasions. His evidence was that the applicant did not go near Mr Wardle, and that there was no possibility that he had touched him. He denied that the applicant had raised his arm as he was leaving the court.

The magistrate's decision

12           At the conclusion of the hearing, the magistrate adjourned until later in the day, and then delivered a decision with oral reasons. Her Honour analysed the evidence in considerable detail. She observed that there was a direct conflict between the prosecution and defence evidence, and that it was an oath on oath case. The magistrate correctly reminded herself that to convict the applicant she had to be satisfied beyond reasonable doubt as to the truth of Mr Wardle's evidence.

13   The magistrate then said:

It if had not been for Miss Abercromby's statutory declaration and Mr Wardle's contemporaneous account of what had occurred, I would have not have been so satisfied beyond reasonable doubt. I may have had a belief as to what may have occurred but with out that I would not have been satisfied, but ultimately I am satisfied beyond reasonable doubt as to the truth of Mr Wardle's evidence.

He did a clear and coherent account of what had occurred. He did not exaggerate what had happened when he described being elbowed more as a medium brush as he walked out, and because he also told Ms Abercromby immediately after the event that he'd

been elbowed in the stomach, the witness – the witness gave – confirmed she'd seen
Mr Oates move and Mr Wardle move back after that movement of the elbow. There's
very little space between where Mr Oates was – Mr Wardle was standing and as Mr Oates moved out and while Mr Adrian Smith said he did not see Mr Oates elbow –
he did not see Mr Oates elbow Mr Wardle, I believe that he may well not have noticed

it as – the nudge as he walked past.

While Mr Oates denied that he elbowed Mr Wardle and stated that he couldn't have because Mr Wardle was in the second row, ultimately I do not believe that he was in the second row. I accept Mr Wardle as a teller of the truth and so the charge is proved."

Discussion

14           The evidence was clearly sufficient to enable the magistrate to be satisfied of guilt beyond reasonable doubt. Her Honour had the benefit of seeing and hearing the witnesses give evidence. It is apparent from her reasons that she was well aware of the marked dispute on the evidence, and that she needed to be satisfied beyond reasonable doubt that the assault had taken place, and not simply weigh the evidence of the prosecution against that of the defence.

15 Her Honour placed some weight on the fact that the applicant had made an immediate complaint to Ms Abercromby. That evidence was admissible as an exception to the hearsay rule, having regard to s 66(2) of the Evidence Act 2001. Accordingly, it was admissible to prove the existence of the facts asserted by Mr Wardle in the representation. Further, it was a piece of circumstantial evidence in the nature of recent complaint. The fact that the complaint had been made immediately to Ms Abercromby was capable of being viewed by the magistrate as consistent with the truth of the complainant's allegation. The magistrate clearly and correctly used this evidence as providing support for the prosecution case.

16           The complainant's version was supported by other evidence. Ms Whitlander's evidence suggested that she had seen a movement of the applicant's elbow consistent with the allegation. The magistrate was entitled to accept this as corroborative evidence, notwithstanding that the witness may have been mistaken as to the sequence. It was also clear on the evidence that the applicant was upset and still angry when he left the courtroom on the second occasion. This is consistent with the allegation of assault. Finally, Mr Wardle's evidence that he was standing as the applicant left the courtroom at the end of the proceedings is consistent with the audio recording. Although the transcript attributes the

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relevant conversation to the applicant, it is clear from the audio recording that it was, in fact, the complainant who raised a problem with the proposed date, given a conflicting medical appointment, and that this was the last conversation addressed to the court in the proceedings. Both counsel accept that it was the complainant speaking at this time. I accept Ms Bill's submission that the magistrate correctly inferred from this that the complainant was likely to be standing during this conversation which, as he claimed in evidence, would have been when the applicant was leaving the courtroom. This provided the opportunity for the assault, and was inconsistent with the defence evidence on this point.

17           Having regard to all of the evidence, I am satisfied that the finding of guilt was open to the learned magistrate. The motion is dismissed.