Panagiotis v Police No. Scgrg-98-919 Judgment No. S6811

[1998] SASC 6811

PANAGIOTIS  v  POLICE
[1998] SASC 6811

Magistrates Appeal
Bleby J

1. The appellant in this matter was convicted, after a trial before a magistrate, of assaulting Vasiliki Tziortzis.  The offence is alleged to have occurred on 22 September 1995 at the home of Swaro Koupatsaris.  The appellant was found guilty by the magistrate and convicted on 25 June 1998.  He now appeals against his conviction. 

2. The prosecution case was that the appellant had been having an affair with Koupatsaris.  Someone had apparently told the appellant’s wife of that affair.  The appellant believed it to have been Tziortzis, the victim, who was a female friend of the appellant’s wife.  On the prosecution case, the assault took place at Koupatsaris’ home at about 2.00pm  on 22 September 1995.   The victim suffered quite severe and lasting injuries. 

3. Dr Arcondoulis saw the victim early in the afternoon of 22 September and he comprehensively described the injuries which he observed which, he said, were consistent with early bruising, and consistent with the approximate time at which the victim claimed that she had been assaulted. 

4. The defence case was that some altercation on that day at about that time did, in fact, occur involving the appellant, Koupatsaris and the victim, but that it was begun by the victim scratching the appellant.  The defence case was that there was an attempt to separate the two by Koupatsaris who then fell over with the victim.  The injuries observed by Dr Arcondoulis, it was said, were quite inconsistent with what happened in that event, namely, the falling.  The defence went further, however, and in addition to the appellant himself giving evidence led evidence from Haroula Spiropoulos.  Spiropoulos gave evidence of a fight in which she had been involved with the victim between 12.30 and 1.00am on the same day, 22 September, only some hours before the incident which is alleged to have occurred at 2.00pm on the same afternoon. 

5. Dr Arcondoulis could not exclude the possibility that the injuries he saw occurred at the time suggested by Spiropoulos.  Another doctor, a Dr Brook, considered the injuries described by the victim to be consistent with the Spiropoulos fight.  The victim denied that the Spiropoulos fight had occurred at all.  The victim’s character and credibility were severely attacked by the defence, and the defence sought to lead evidence of good character of the appellant to which I will refer in a moment. 

6. Not only did the defence argue, on a number of grounds, that the victim’s evidence could not be believed, but that there was a hypothesis based on the independent medical evidence which was consistent with the innocence of the appellant.   The defence also led evidence, including medical evidence, that the appellant was physically incapable of inflicting some of the injuries said to have been sustained by the victim. 

7. Crucial to the case was the finding by the magistrate as to what I call the Spiropoulos fight.  The magistrate accepted the evidence of Spiropoulos as a credible witness and found that the fight had, indeed, occurred.  In doing so, he had to reject the evidence of the victim.  But he found that the fight occurred some two weeks or, in one portion of his judgment, possibly two to three days before 22 September.  On that basis he discounted the evidence of the appellant and considered that most of the injuries could not have occurred in the Spiropoulos fight because they were fresh injuries on 22 September.  They must, therefore, have occurred as the victim described them in the altercation with the appellant. 

8. However, the magistrate’s finding that the Spiropoulos fight occurred either two to three days or two weeks before 22 September was just not open on the evidence.  That is conceded by counsel for the respondent.  There may have been some confusion in the magistrate’s mind concerning another incident about which some evidence was given.  However, there was no evidence to support any finding that a fight had occurred between the two when the magistrate found that it did.  That must call in question the validity of the magistrate’s conclusion and his acceptance or rejection of the evidence of the crucial witnesses.  For that reason alone, in my opinion, the verdict must be set aside. 

9. However, there are other aspects of the case which also cause some concern.  The credibility of witnesses and whether the appellant was likely to have indulged in a serious assault of this nature, were major issues in the trial.  As I said, the prosecution witnesses were seriously attacked on credit, as was, particularly, the victim’s character.  The defence sought to call evidence of good character of the appellant.  He, himself, gave evidence to the effect, amongst other things, that he had no criminal record at all.  There was some limited written character evidence before the magistrate. 

10. I received an affidavit from the appellant’s counsel as to one aspect of what occurred at the trial and that affidavit relevantly reads: 

    “At one point in reference to a comment from the Trial Magistrate I indicated that I intended to call further evidence as to the poor character and reputation of the alleged victim Tzortsis (sic) and in addition positive evidence from witnesses as to the good character and reputation of the accused.  The Magistrate indicated to me that he did not place much weight on character evidence.

    On the question of character evidence I referred His Honour to various authorities of the High Court and Court of Appeal particularly Murphy, Trimboli and Palazoff.  I understood His Honour to suggest that there was a problem with those decisions in that the court did not really consider all the facts and had not necessarily got it right.  His Honour apparently did not agree with those decisions.  I said in that case I could only agree to disagree with His Honour about the law.

    I further said that in those circumstances, and given His Honour’s views, there was no point in my calling the witnesses who had been arranged to give evidence of the good character and reputation of the accused.  His Honour confirmed the view that he placed little or no weight on character evidence save that it seemed the accused apparently had no criminal record (which I confirmed) and that would be sufficient for his purposes.”

11. In his reasons for judgment, the magistrate did not refer to the evidence of good character either in assessing the veracity of the respective witnesses or as to the likelihood of the events having occurred as the appellant described them.  There can be no question, on present High Court and Full Court authority, that positive character evidence goes both to credit and to the question of the guilt of the accused.  I refer generally to Murphy v R (1989) 167 CLR 94, R v Trimboli (1979) 21 SASR 577, and R v Palazoff (1986) 43 SASR 99.

12. The magistrate appears to have misdirected himself as to the use that could be made of such evidence, and to have failed to take into account in deciding the case what evidence there was as to the character of the appellant.  Had he done so, coupled with other aspects of the defence case, he may well have reached a different view of the appellant’s guilt.

13. There are also various passages in the magistrate’s reasons which suggest that his reasoning process overlooked the need for the prosecution case to be proved beyond reasonable doubt, and as if he was almost treating it as an exercise of proof on the balance of the probabilities or even some reversal of the onus of proof.  At p6 of His Honour’s reasons, having described the dilemma that was facing him, he said:

    “From the above, one can see that the prosecution’s difficulty is that (the) defendant’s story, in the main, is corroborated by the evidence of Smaro and he has generally told a consistent story to the police to that which he told the court.  The defendant’s problem is how did the victim obtain the injuries described by Dr Arcondoulis in evidence and in his report dated 31 May 1996.”

Perhaps more importantly on p10, the magistrate said:

“The prosecution has a problem in that the only eye witness to what occurred supports the defendant’s version of events.  On the other hand, the defence, to my mind, has problems in explaining how the victim sustained the injuries diagnosed by Dr Arcondoulis.”

It was not, of course, for the defence to explain anything.

1. It was put to me that it was demonstrable on the evidence that the victim could not possibly be believed and that I should record an acquittal.  I am not prepared to do so.   I am in no position to assess the credit of the various witnesses who gave evidence before the magistrate, and ultimately, that is what the case turned on. 

2. The appellant obviously has powerful arguments why the victim’s evidence should not be believed and why the prosecution has not discharged its onus of proof. But that, I think, is for determination by the trier of fact.   There is obviously, however, sufficient reason why the appeal should be allowed and why a new trial should be directed. 

3. Having said so, I have noted but I have not recorded the many criticisms by the appellant of the evidence that was led.  I have noted a number of other reasons, to which I have not referred, as to why the appellant’s evidence should have been believed.  Those are powerful criticisms, and having now become aware of what the defence case has been, I have no doubt that the prosecution will give careful consideration as to whether it should proceed upon a retrial.  However, for the reasons I have given, I am not prepared to go any further than I have. 

4. The order of the court will therefore be:

5. The appeal is allowed. 

1. I set aside the conviction and other orders made by the magistrate on 25 June 1998.

1. I direct a new trial by another magistrate. 

1. I grant liberty to the appellant to apply in relation to costs of this appeal and if so advised the costs of the trial.