Perry v Police - [2016] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PERRY v POLICE
[2016] SASC 25
Judgment of The Honourable Justice Vanstone
23 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Appeal against conviction - appellant found guilty of assault of his former domestic partner - whether conviction was unsafe and unsatisfactory - whether inconsistencies in complainant's evidence made her evidence unreliable - whether Magistrate erred in failing to direct himself as to other possible explanations for the complainant's distress before using it in consideration of the complainant's credibility.
Held: Appeal dismissed. The Magistrate considered those aspects of the complainant's evidence highlighted on appeal and determined to accept her evidence despite them. He was entitled to do so. The Magistrate was entitled to place weight on the distress of the complainant and was not required to first exclude other possible explanations for the complainant's distress.
Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 18, referred to.
R v Mitrovic [1999] SASC 478; R v Pitman (1985) 38 SASR 566, distinguished.

PERRY v POLICE
[2016] SASC 25
Magistrates Appeal: Criminal

VANSTONE J: After a trial in the Magistrates Court, Roger David Perry was found guilty of the aggravated assault of his former partner. He now appeals against his conviction arguing that, such were the deficiencies in the evidence called in support of the charge, he should have been acquitted.
Background
The prosecution alleged that in the early hours of Wednesday, 8 October 2014 the appellant unlawfully entered the complainant’s home and climbed into bed with her as she slept. The complainant awakened and a confrontation followed. She then told the appellant to leave. The appellant pushed the complainant into her daughter’s room and on to the bed, placing his hands over her mouth to keep her quiet. The appellant held her down. At this point, she attempted to hit a fan against the window to make noise. He placed one arm around her throat, which the complainant said, along with his hand over her mouth, caused her to lose consciousness. After blacking out a second time, the complainant awoke in a pool of her own urine. She called out to awaken one of her children and the appellant released his grip. The complainant fled, seeking the assistance of a neighbour. The police were called.
In addition to the complainant, the prosecution called Senior Constable Heard, who was tasked to attend the complainant’s home on that night, and Senior Constable McGradey, who arrested the appellant (at the complainant’s home) about three weeks later.
Arguments on appeal
On appeal, counsel for the appellant submitted that the verdict was unsafe and unsatisfactory. It was argued that the Magistrate erred in accepting the complainant’s evidence, given a number of infirmities in her credibility.
Counsel submitted that the complainant’s evidence should not have been afforded weight because it was unreliable and inconsistent with other evidence. Three critical examples were offered in support of this contention. First, while the complainant stated in her evidence-in-chief that during the assault she lost consciousness, in cross-examination, after it was put to her that this was not in her original statement to police, she retracted her statement and clarified that she did not lose consciousness but, rather, “blacked in and out”. Counsel submitted that there was no real distinction between the two and that this demonstrated unreliability or dishonesty.
Next, when the complainant was cross-examined on the nature and extent of her injuries, she stated, “I had grazes the next day. It was pointed out I had grazes on my bottom of my chin and grazes on all sort of different parts of my body”. Later, in cross-examination, she said that the graze on her chin was not a graze, but was a discolouration and that she was not certain that the injuries were even sustained during the offending. Then, in cross-examination, the complainant was evasive about her history of mental illness and drug use, and denied particular allegations put to her, despite clear evidence supporting them.
In addition to these more prominent examples, counsel for the appellant raised further inconsistencies that he submitted demonstrated the complainant’s unreliability. He put that while the complainant claimed that the evening of the assault was the first time she had ever urinated in her clothing, there was evidence that she had once done so during a hospital admission. Further, while the complainant described in evidence-in-chief how she attempted to hit a pedestal fan against the window before losing consciousness and dropping the fan, in cross-examination she said that before losing consciousness she dropped the fan because she was too weak to hold it. Counsel for the appellant argued that the scale of the inconsistencies rendered the complainant unreliable and unconvincing.
It was also submitted on behalf of the appellant that the Magistrate erred by using evidence of the complainant’s distress to bolster her credibility. While Senior Constable Heard gave evidence about the complainant’s distressed and alarmed demeanour on the evening of the assault, counsel submitted that the Magistrate ought to have directed himself as to other possible explanations for the complainant’s distress, and that he should have excluded other explanations for it before using it to bolster the complainant’s credibility. Counsel relied on R v Mitrovic [1999] SASC 478 and R v Pitman (1985) 38 SASR 566.
Analysis
I do not consider that the inconsistencies in the complainant’s evidence identified by the appellant render the verdict unsafe or unsatisfactory. I have read the transcript of the complainant’s evidence for the purpose of evaluating the suggested inconsistencies. In my view, such variances as these illustrate a lack of clarity in aspects of her account, rather than an attempt to mislead the Court. I accept the respondent’s submission that the differing descriptions reflected the complainant’s confusion about what was happening to her at the time. This was made clear by the witness in cross-examination when she said:
My mistake if it comes across like that yes, I don’t really know what happened to me all I know is I couldn’t breathe and I was blacking in and I was blacking out.
Similarly, even if the complainant were mistaken as to whether she told police that she had lost consciousness, that would not necessarily undermine her credibility.
I consider that the complainant’s references to her injuries are explicable on the basis that she was unclear about the extent of them. She did not look in the mirror, nor was she photographed immediately after the incident. As she said, the injuries were more prominent the next day, and it was police who referred to them and suggested that they could have been as a result of the incident.The complainant voluntarily corrected herself when she said “[w]ell it wasn’t a graze, it was a discolouration”. While this may indicate a lack of clear thinking, I do not think it indicates unreliability. Plainly, her powers of expression were not well-developed.
The Magistrate observed that the complainant downplayed her previous mental health issues and illicit drug use and found that such a response was not unusual. It was open to him to take that view. It is clear that the complainant was reluctant to speak about her mental health and her drug use at a much earlier time in her life. That is understandable. In reference to the incident where she was detained in Glenside Hospital in 2009, she stated:
[I]t was all a big mistake that I made, it was a massive mistake that I made and the only one big mistake that I’ve really made in my lifetime that has affected a lot in my lifetime and I’ve learnt from that mistake.
It is clear that her detention at Glenside marked a traumatic time for her. Her failure to recall that on this occasion she had urinated on herself is neither here nor there. As noted by counsel for the respondent, it is understandable that the complainant might have failed to recall this, as she was then in a state of mental stress and under sedation. It does not erode her reliability as to the assault. It was open to the Magistrate to find that she had urinated during the assault. Further, I am not convinced that there was inconsistency in relation to the fan. The distinction between dropping the fan because she was too weak to hold it and dropping the fan because she was losing consciousness is one without a difference.
Inconsistencies of this nature are commonly seen in the evidence of persons who have undergone a traumatic incident. The Magistrate was entitled to accept the complainant’s evidence notwithstanding them. His Honour’s reasons make clear that he took them into account, but found that they were not matters of substance.
I do not accept the appellant’s argument that the Magistrate was only entitled to conclude that the evidence of the complainant’s distress added to her credibility if he first discounted all other explanations for it. The appellant’s counsel argued that it was the defence case at trial that the complainant had “worked herself up” and therefore that the distress was equivocal.
The appellant referred to R v Pitman (1985) 38 SASR 566 and R v Mitrovic [1999] SASC 478 in support of this argument. Both cases concerned appeals against rape convictions. In Pitman, White J said at 567:
[S]igns of distress may be left to the jury as potentially corroborative when the signs are consistent only with having been caused by the alleged sexual assault and are not consistent with having been caused by other events raised by the evidence.
However, those cases were decided in the context of the then requirement that the jury be warned of the danger of convicting for a sexual offence in the absence of corroboration of the complainant’s evidence. The use of distress as corroboration was always contentious as it was seen to lack independence. The common law rule as to corroboration in sexual cases was abolished by Act No 7 of 2008, the Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 18, operating 23 November 2008. Hence, in the case on appeal there was no applicable threshold test governing the use of this evidence. Evidence of the distress of the complainant was simply a circumstantial fact in issue. Therefore, there was no need for the Magistrate to exclude other explanations before using it.
My reading of the evidence discloses that it was open for the Magistrate to find the complainant’s evidence convincing. None of the criticisms made of the evidence gives rise to misgivings about the Magistrate’s acceptance of it. There was support for it. Evidence given by Senior Constable Heard of his inspection of the scene, including his sighting of a wet patch on the floor of the bedroom and objects strewn around the room, including a fan, provided support for the complainant. The fact that the complainant urinated suggests she did have at least an absence, if not a loss of consciousness, as she said. Moreover, in a later conversation between Senior Constable McGradey and the appellant at the Mount Barker Police Station, the appellant stated “things did get a little rough”. The Magistrate declined to put any weight on this statement. It seems to me, however, that this statement tended to place the appellant in the complainant’s house and suggested some form of altercation with the complainant. I consider the statement to be revealing.
It was for the Magistrate to evaluate the evidence and to reach a decision. As I have said, I can find no error in the manner in which he performed his role, or in his conclusion. In those circumstances the appeal must fail.
Conclusion
The appeal is dismissed.