Owens v Mulcahy

[1994] QCA 280

IN THE COURT OF APPEAL [1994] QCA 280

SUPREME COURT OF QUEENSLAND

C.A. No. 92 of 1994

Brisbane
[Owens v. Mulcahy]
BETWEEN:

MEGAN ELIZABETH OWENS

v.

RUSSELL JOHN MULCAHY Appellant

Fitzgerald P.
Pincus JA.

Williams J.

Judgment delivered 10/08/94

Judgment of the Court

APPEAL DISMISSED.

CATCHWORDS:CRIMINAL LAW - fresh evidence - appellant husband assaulted wife - after trial appellant discovered witness who allegedly saw wife assaulted by another person - whether the fresh evidence would have effected the decision below

Counsel:Mr. A. Rafter for the appellant
Mr. J. Hunter for the respondent
Solicitors:Gilshenan and Luton for the appellant
Director of Prosecutions for the respondent
Hearing Date: 04/08/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 10/08/94

The appellant has appealed against his conviction in the Magistrate Courts at Ipswich on 16 February 1994 for an assault occasioning bodily harm upon his wife on 9 June 1993. The appellant did not give or call evidence at his trial, which took place on 14 February 1994.

The complainant, the appellant's wife, gave evidence that when she arrived home from work at about 5.10 p.m. on 9 June 1993, the appellant abused her and accused her of "playing up with somebody from work". Later, the appellant went to college, arriving home at about 8.20 p.m.. He abused her again and she left the room. Later still, while she was sitting on the lounge room floor, the appellant began to abuse her again and then grabbed her by the hair on the right side of her head and pulled her back so that her head struck the floor. The next thing she recalled was waking up, lying on the floor. She then went and looked in a mirror and saw that she had a cut on her eyelid and she noticed that her arm was sore. She was aching all over.
The complainant left the house and made a telephone call to her brother from a nearby telephone box. Her parents subsequently arrived at the telephone box and took her to hospital. The doctor who examined her at about 10.35 p.m. that night observed that her injuries were a large bruised area over the right side of the scalp and a fine scratch above and below the left eye, and that on area on her head was very tender and her neck was very stiff.
Evidence was also given by the complainant's father and the police constable who initiated the proceedings against the appellant.

The police officer gave evidence of an interview with the appellant on 13 October 1993. In that interview, he denied assaulting his wife. He said that he went to bed on 9 June 1993 at about 9.15 p.m. and awoke at about 11.20 p.m.. He could not find his wife anywhere although the lights in the house were on.

He went to the garage and found his Holden motor vehicle was gone. He tried to ring his wife's parents, but the telephone was engaged. He then telephoned his own mother, who made a derogatory remark about his wife.

The appellant's first submission was that the Stipendiary Magistrate who convicted him, acting reasonably, ought to have entertained a reasonable doubt as to his guilt on the basis that, although there was evidence to support a conviction, the magistrate should not have accepted it. This submission was founded upon assertions that the appellant had denied the offence when he was interviewed by the police, the complainant's version of events was implausible, her father's evidence was unreliable, and three specific aspects of the complainant's evidence involved error. She exaggerated the size of the lump on her head, giving a description different from that of the doctor. Further, according to the doctor, she told him that the appellant had put or pulled his hand around her face, but at the trial she could not recall that conversation or how she suffered the injury to her eye. Finally, while her evidence was that she had no doubt that an injury to her elbow was somehow caused in the assault, the doctor considered that the elbow injury was at least several days old.
It is necessary to say no more of this ground of appeal than that a submission that, in the circumstances a reasonable magistrate, acting reasonably, could not convict is totally without substance.

By leave, the notice of appeal was amended to add a new ground, namely that, by reason of additional evidence now available but not available to the appellant at his trial and which could not have been available with reasonable diligence, there is a significant possibility that the magistrate would have acquitted the appellant if such evidence had been before him at the trial. It was submitted that the additional evidence is "credible", "cogent", "relevant" and "plausible", and reference was made to Mickelberg v. The Queen (1989) 167 CLR 259 at p.302. The additional evidence, it was said, "raises a significant possibility that the injury suffered by the complainant was suffered by her in an incident with her mother at the telephone box."

The new witness whose evidence was sought to be relied upon by the appellant swore an affidavit and was cross-examined, and affidavits were also sworn by the appellant and his solicitor. The solicitor spoke substantially of uncontentious matters, and his evidence need not be further referred to.

The appellant's affidavit was directed to providing a foundation for the evidence of the new witness. He was not cross-examined upon his affidavit, and so I will not comment upon his account of events. According to his affidavit, it was only on 13 October 1993, when he was interviewed by police, that he became aware that his wife had telephoned her brother from the local telephone box. Shortly afterwards, he commenced to try to find a witness among the occupiers of the houses in the vicinity of the telephone box "to see if they had seen my car that my wife would have been driving on the night in question .... or my wife at the phone box ... ". According to his affidavit, he made these inquiries because he "was trying to piece things together as I was at a loss to understand why my wife had left the matrimonial home and I couldn't understand why my wife would ring her brother who lived just outside Rockhampton whilst her parents lived only approximately 7 kilometres away in Algester. In fact, I don't think I believe that my wife had gone to that phone box." His inquiries "proved negative", and he "did not speak to the occupants of 62 Gregory Street, the then residence of the witness, ... at that time as there was nobody home when I knocked."

His affidavit went on to detail subsequent inquiries but only after he had been convicted. According to paragraph 11 of his affidavit, he again returned to inquire at the residence at 62 Gregory Street after his conviction because, "after hearing all of the evidence for the first time and considering it over a considerable number of days, in particular the evidence of my wife, the then complainant, the whole story did not make any sense to me."

On 10 March 1994, he made inquiries of occupants of residences in Gregory Street, again with negative results. However, on that occasion, a male person at 62 Gregory Street suggested that he speak to another male person who also resided there but was not then at home. After returning to 62 Gregory Street "on a couple of occasions", the appellant was able to speak to the other male on 15 March 1994. He was told that the male "had not seen anything but his girlfriend or fiance, I can't recall how he described her, had seen something but I would have to speak to her. I can't now recall what precisely he said but I was left with the impression that she may have seen something important."

He returned to 62 Gregory Street, on 7th April 1994 but nobody was home, and on 8th April 1994 when he "was only able to speak very briefly to the women ... as she was going out, as I recall." His affidavit then goes on to detail further contact on 10th April 1994 and subsequently. He received information and arranged for the woman to be interviewed by his solicitor which, in time, led to the new witness's affidavit.
The appellants affidavit also provided a foundation for the new witness's testimony in that he said that one of his vehicles was a "HQ Holden Sedan, blue in colour with a white roof, registration number ODS-242", which he discovered was missing when he looked in the garage on 9 June, 1993, after finding that his wife was not in their home, and that his parents-in-law at that time had a "white Holden Commodore Berlina".
In her affidavit, the new witness said that on 9 June 1993, between the hours of 9.30 p.m. and 10.15 p.m., she "heard a women scream in an angry, frightened sort of voice, 'Leave me alone Mum'. I only heard it the once, at that stage, but it made me curious so I pulled my curtain aside a little and looked out of my window. Across the road from my house there is a Telecom phonebox. I had a clear view of the phonebox on the other side of the road. There is a light in the phonebox and the area was clearly lit."

The affidavit then went on to say that there were two cars parked near the phonebox, "a white VK Commodore" and "an early 70's model HQ Holden which was blue with a white roof". She also "saw an elderly lady and gentleman in their mid to late sixties and a younger woman, who I would estimate to be in her early thirties standing near the phonebox."

She observed the older woman, "standing, literally shaking her finger at the younger woman", and "at this stage ... heard the younger woman repeat 'Leave me alone Mum'." Subsequently, she "observed the mother push the daughter into the phone box so that she hit the right hand side of her head on the phonebox. After she was pushed and hit her head she fell to the ground." Later, she added that "the mother pushed the daughter with both hands squarely in the chest. It appeared to me to be quite a forceful, angry sort of push. The telephone box was directly behind the younger woman so that she hit her head almost immediately. I don't think she stepped back or staggered back because she hit the telephone box. The young woman fell down onto the sidewalk. The sidewalk is grassed and there is no gravel there. There is a concrete footpath which runs along the sidewalk and the telephone box is also mounted on concrete."

Because she "did not want to get any further involved", she lowered the curtain and "did not pay any specific attention to the matter after that", although she remembered "hearing the cars start up."
As was doubtless obvious, it was necessary to explain how the witness could relate what she observed to a particular night ten months earlier.

Paragraph two of her affidavit was in the following terms:

"I remember the night of Wednesday, 9 June 1993. The date sticks in my mind as a close friend of mine died in a motor vehicle accident on that day. Also, generally of a Wednesday night I play darts through the Redlands Dart Association in and around the Redlands area but I had the flu that night and stayed at home, which is unusual of me of a Wednesday night."

Her oral evidence did not correspond with that paragraph. For example, "a close friend" had not died in a motor vehicle accident on that day. On the contrary, on some unspecified day, she received a letter from a friend telling her that someone with whom she had been to school had died in a motor vehicle accident, but was not even sure that that was true. The other basis for her memory was little more impressive. She had been in bed all day, and very busy because the telephone had continued to ring. She was still sick that night, and did not go to play darts. How she remembered that that occurred on Wednesday 9 June 1993 never emerged. Her fiance went to darts that night, but when he returned home she did not mention the incident to him as she did not think it important in the context of such a busy day. However, she mentioned it to him about a week later, although why she did so was not explained.

The only other specific matter to which I propose to refer is that, after she was spoken to by the appellant, the new witness initially could not remember the events of 9 June 1993, but "had it in my mind that I could remember something but I told him to come back as I wanted some time to think about it. He did so the following week I believe and I then told him what I saw." Apart from the generally unsatisfactory nature of the new witness's evidence, the Court had an opportunity to observe her in the witness box. It is unnecessary to conclude that she deliberately lied to say that her evidence that she saw an older woman (the complainant's mother) assault a younger woman (the complainant) near the telephone box at the material time is worthy of no credence whatsoever.

Accordingly, the evidence would have had no effect at all upon the magistrate's decision.

The appeal should be dismissed.