Pagett v Hales

Case [2000] NTSC 35

Pagett v Hales [2000] NTSC 35

PARTIES:PETER PAGETT

v

PETER WILLIAM HALES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:JA 77 OF 1999 (9903732)

DELIVERED:  8 June 2000

HEARING DATES:  15, 16, 20, 21, 28, 29 and 30 March 2000

JUDGMENT OF:  Mildren J

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant:C McDonald QC

Respondent:  J Lawrence

Solicitors:

Appellant:Ward Keller

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  

Number of pages:  30

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No JA 77 of 1999

(9903732)             

Pagett v Hales [2000] NTSC 35

IN THE MATTER of an appeal under the   Justices Act

BETWEEN:

PETER PAGETT

Appellant

AND:

PETER WILLIAM HALES

Respondent

CORAM:    MILDREN J

REASONS FOR JUDGMENT

(Delivered 8 June 2000)

MILDREN J:

  1. This is an appeal against conviction and sentence by the Court of Summary Jurisdiction which, on 8 October 1999, convicted the appellant, a Senior Constable of Police, of aggravated assault, imposed a sentence of imprisonment for four months and ordered the appellant to pay the prosecutor's costs of $4,000:00.

  2. The principal facts as found by the learned Magistrate may be briefly stated. On the evening of 28 August 1998, Mr Ian Kaye had been out drinking with friends. At about 12:30 am on 29 August, he left a tavern in Mitchell Street in order to go to McDonald's Family Restaurant at the corner of Smith Street and Knuckey Street. There is no finding that he arrived at McDonald's. He was not substantially or severely intoxicated. He was tired because he had been working long hours. At 1:15 am he was found asleep by the appellant on a bench in the Smith Street Mall near the Westpac Bank. The appellant and his partner, probationary Constable Wilson, were on duty. Mr Kaye was roused by one of the police officers. Mr Kaye attempted to telephone his wife using a mobile phone. He was prevented from doing so because his wrist was seized. He was apprehended and placed in the rear of a paddy wagon. The apprehension took a period of one minute and fifty-four seconds. Mr Kaye was not obstreperous, did not kick out to the police, or attempt to punch them or use bad language when he was apprehended as alleged by the appellant and Wilson. Kaye was not arrested for any offence. He was apprehended and placed into protective custody pursuant to s128 of the Police Administration Act. The learned Magistrate was not satisfied that Kaye's level of intoxication was sufficient to justify that course.

  3. Upon being placed in the police vehicle, Mr Kaye telephoned his wife.  He was, at this stage, agitated.  The vehicle was driven up the Mall towards Woolworths and then did a U-Turn and proceeded back towards Bennett Street and parked in the area of the Victoria Hotel in order to offer assistance, if needed, to another police unit in the area.  Mr Kaye…

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Pagett v Hales [2000] NTSC 35
Case
[2000] NTSC 35
Decision Date

CaseChat Overview and Summary

Pagett v Hales was heard in the Supreme Court of New South Wales, where the appellant, Pagett, sought to appeal his conviction for assault and other charges. The central dispute was the evidence presented by the parties regarding the cause of injuries sustained by the complainant, Kaye, and the admissibility of new evidence that could potentially impact the appellant's case. The court was required to determine whether the new evidence, specifically a prior inconsistent statement of Kaye, could be admitted under s176A of the Justices Act and whether the magistrate erred in not considering the defence expert evidence. The court found that the new evidence could be admitted as it pertained to the appellant's case and could significantly affect the outcome of the proceeding. Additionally, the court found that the magistrate did not err in not considering the defence expert evidence as it was not of an expert nature and was, in part, adopted as an advocate's role. Consequently, the appeal was allowed, the conviction was set aside, and a retrial was ordered in the Court of Summary Jurisdiction before a differently constituted court. The respondent was ordered to pay the appellant's costs of the appeal, and the costs of the hearing before the learned Magistrate were to abide the outcome of the retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In conclusion, I would not uphold the appeal on this ground. The failure to address the evidence of the defendant's experts Mr McDonald QC submitted that the defence led expert evidence designed to show that the injuries suffered by the complainant were unlikely to have been caused by the use of the torch and therefore were more likely to have been self-inflicted and that the learned Magistrate erred in not considering this evidence. The Crown also called expert evidence, principally that of Dr Kevin Lee, a pathologist, designed to show that the injuries sustained were consistent with the use of the torch. Incidentally, the evidence is that on the afternoon of the alleged assault the appellant's torch was seized for forensic examination. The results were that no biological matter was found thereon. The only specific reference made by the learned Magistrate to any of the expert evidence related to that of Dr Lee whose evidence he said did not assist him, in part because much of Dr Lee's evidence was not of an expert nature, in part, because Dr Lee "adopted a role of an advocate for the defence" (he presumably meant the prosecution) and in part because "his computer enhanced images were not reduced to the correct size". Dr Lee's evidence covered a lot of ground of a general nature, but summarising his principal conclusions he said that if the complainant lost consciousness as a result of a blow to the head as he claimed, the impact from the torch was more likely to have been caused by a direct impact rather than a glancing blow; that the complainant had sustained a small number of injuries, two of which are similar and appear to be of common origin and with characteristics indicating that they had been caused by the torch; and that the overall injury pattern was not that of multiple head butting and other impacts within the cage of the police vehicle. Importantly, Dr Lee said that the injuries to the scalp have characteristics of having been produced by a curved and relatively sharp edge and have an effective circumference very close to that of the torch. The prosecution also called other medical experts (Drs Treston and Huynh) and the defence called two expert witnesses (Professor Hilton and Dr Zillman). Without going through the whole of the evidence in detail, contrary to the submission of Mr Lawrence, the effect of Professor Hilton's evidence was that the wounds sustained by Mr Kaye were unlikely to have been caused by a blow by the lens end of the appellant's tourch, and could have been caused by contact with features inside the paddy wagon: see Ext. 20; tr pps501-2, 512, 514-515. Further, Professor Hilton considered that the possibility of the wounds having been caused by a stabbing movement was also unlikely: (p502). Dr Zillman's evidence was to the effect that the shape of the wounds did not imply that the object which caused the wounds was curved; that the absence of bruising indicated a relatively narrow contact surface, and the edge of the torch might have caused that to happen. He was unable to rule out the possibility that there were structures inside the van which could similarly have caused those lacerations.

Decision

Reasons for decision

No submission was directed to the other requirements of s176A of the Justices Act It is therefore not necessary for me to deal with the other requirements in any detail. Mr Pieniacki's evidence goes to Mr Kaye's credit. Material going solely to credit is usually not a sufficient ground for fresh evidence to be received. However, where the evidence can be used as part of the appellant's case, and not merely to attack the credit of a witness to be called by the respondent, it has what Von Doussa J described in Hook v Ralphs, supra, at 536, as having "an additional characteristic" which gives rise to the possibility that a miscariage of justice may have occurred. In this case, Mr Kaye was the Crown's principal witness and, Mr Pieniacki's evidence is admissible as a prior inconsistent statement. If believed, it is likely to have a significant affect on the outcome of the proceeding. It therefore satisfies the requirements of s176A(1)(a) of the Act.Conclusions For the reasons given above, the appeal is allowed, the finding of guilty is set aside and the conviction and sentence thereon is quashed. I also set aside the order that the appellant pay the respondent's costs. I order that there be a retrial in the Court of Summary Jurisdiction before a differently constituted Court. The respondent is to pay the appellant's costs of the appeal, to be taxed. The costs of the hearing before the learned Magistrate are to abide the outcome of the retrial. I certify that this case is fit for senior counsel.-----------------------------------------

Ratio Decidendi

Legal Principle Established

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