Peter Andrew Taleporos v SA Police No. SCGRG 93/2246 Judgment No. 4538 Number of Pages 6 Appeal and New Trial Appeal General Principles

[1994] SASC 4538

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Appeal and new trial - appeal - general principles - interference with judge's findings of fact - Appeal against conviction of appellant by magistrate - observations as to role of an appellate court in reviewing conclusions of fact made by trial judge - distinction between inferences drawn by trial judge from undoubted facts and conclusions of trial judge which turn upon a view taken of conflicting testimony - decision of magistrate fairly open to him - appeal dismissed. SS Honestroom v SS Sagaporack (1927) AC 37; Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors
(1985) 59 ALJR 842; Warren v Coombes (1979) 142 CLR 531; Powell v Streatham Manor Nursing Home (1935) AC 243 and Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, applied.

HRNG ADELAIDE, 21 April 1994 #DATE 10:5:1994

Appellant in person

Counsel for respondent:     Miss W A De Palma

Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal against the conviction of the appellant, by a stipendiary magistrate, of one count of fighting in a public place, one count of resisting police officers in the execution of their duty and four counts of assaulting police officers in the execution of their duty. All offences were said to have arisen out of an ongoing series of incidents which occurred at Mount Gambier on the night 20/21 May 1992.

2. The sole ground stated in the notice of appeal is that the convictions are unsafe and unsatisfactory and cannot be supported, having regard to the whole of the evidence.

3. Although the appellant had legal assistance for the purposes of the trial and to lodge the notice of appeal, that assistance was not available to him on the hearing of the appeal. The appellant appeared in person, having earlier submitted to the Court a written outline of his complaints, together with a document which appears to be an analysis of the evidence prepared by his former solicitor for the purpose of instructing counsel.

4. I have studied both of these documents by way of amplification of the oral submissions made by the appellant to me. Although the appellant was at a serious disadvantage in having to argue his appeal in person, I am satisfied that the document prepared by his solicitor fully traverses the relevant points; and I have treated it as being of the nature of detailed written submissions. I have also read the reasons for decision published by the learned trial magistrate and, as necessary, studied the transcript and exhibits related to the trial.

5. It should be said at the outset that the trial extended over some seven hearing days and the transcript of evidence runs to about 600 pages. The evidentiary material is thus voluminous; and the matter was complex in the sense that many witnesses gave evidence and a significant series of what were contended to be conflicts of fact and factual inconsistencies fell to be resolved.

6. As the learned magistrate accurately summarised, such was the void between the version of events deposed to by the appellant and the relevant police officers that there was no room for mistake. Quite clearly either the prosecution case or the defence case was based upon a substantial distortion of the truth. There was a need for a close scrutiny and analysis of all of the evidence, as he readily recognised.

7. At the end of the day the learned magistrate decided the issue of credibility adversely to the accused and the relevant defence witnesses, preferring the general thrust of the evidence of the police witnesses. In so doing he recognised that certain inconsistencies had been identified in the cross examination of the police witnesses and that due allowance needed to be made for their professionalism as witnesses, by way of contrast with the appellant and other lay witnesses.

8. In the course of his lengthy written reasons for decision he expressly identified the major factual issues in contention and the competing versions proffered by the prosecution and defence. He considered the inconsistencies relied upon by the defence and also, in particular, serious allegations of physical misconduct said to have been exhibited by the police towards the appellant. For reasons expressed by him, he rejected the substance of the allegations made by the appellant where these conflicted with the narrative events deposed to by the police officers. In relation to the allegations of mistreatment the learned magistrate expressly concluded that the appellant had, at the very least, been guilty of "gross distortion and exaggeration in the account" which he gave to the Court.

9. It is timely to record that, in a case of this nature, the approach to be adopted by this Court, in discharge of its appellate function, is that adverted to by the High Court in Warren v Coombes (1979) 142 CLR 531 at 537 et seq and reiterated in authorities such as Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (1985) 59 ALJR 842 at 844, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries and Anor v Australian National Railways Commissioner and Anor (1993) 177 CLR 472.

10. Those pronouncements derive from what was pointed out by Lord Sumner in S.S. Hontestroom v S.S. Sagaporack (1927) AC 37 at 47 in these terms:-
    "... not to have seen the witnesses puts appellate judges
    in a permanent position of disadvantage as against the trial
    judge, and, unless it can be shown that he has failed to use
    or has palpably misused his advantage, the higher Court
    ought not to take the responsibility of reversing
    conclusions so arrived at, merely on the result of their own
    comparisons and criticisms of the witnesses and of their own
    view of the probabilities of the case. The course of the
    trial and the whole substance of the judgment must be looked
    at, and the matter does not depend on the question whether a
    witness has been cross-examined to credit or has been
    pronounced by the judge in terms to be unworthy of it. If
    his estimate of the man forms any substantial part of his
    reasons for his judgment the trial judge's conclusions of
    fact should, as I understand the decisions, be let alone."

11. As was stressed by the High Court in Brunskill and Anor v Sovereign Marine and General Insurance Co Ltd and Ors (at 844):-
    "The authorities have made clear the distinction which
    exists between an appeal on a question of fact which depends
    upon a view taken of conflicting testimony, and an appeal
    which depends on inferences from uncontroverted facts."

12. In Warren v Coombes the High Court drew a very careful distinction between those types of case in which the question at issue is the proper inference to be drawn from facts which are not in doubt, on the one hand, and those in which the trial judge has come to a conclusion upon the question of which of the witnesses, whom he has seen and heard, are trustworthy and which are not. In the latter case the situation is that referred to by Lord Atkin in Powell v Streatham Manor Nursing Home (1935) AC 243 at 255, who commented that a Court of Appeal:-
    "... must recognize the onus upon the appellant to satisfy
    it that the decision below is wrong: it must recognize the
    essential advantage of the trial judge in seeing the
    witnesses and watching their demeanour. In cases which turn
    on the conflicting testimony of witnesses and the belief to
    be reposed in them an appellate court can never recapture
    the initial advantage of the judge who saw and believed."

13. That approach has strongly been re-inforced by the dictum of Brennan, Gaudron and McHugh JJ in the recent case of Devries and Anor v Australian National Railways Commission and Anor (supra), found at page 479 of the relevant report, to the effect that:-
    "More than once in recent years, this Court has pointed out
    that a finding of fact by a trial judge, based on the
    credibility of a witness, is not to be set aside because an
    appellate court thinks that the probabilities of the case
    are against - even strongly against - that findings of fact.
    If the trial judge's findings depends to any substantial
    degree on the credibility of the witness, the findings must
    stand unless it can be shown that the trial judge 'has
    failed to use or has palpably misused his advantage' or has
    acted on evidence which was 'inconsistent with facts
    incontrovertibly established by the evidence' or which was
    'glaringly improbable'.

14. All of these are trite and well known principles, but it is critical to restate and recognise them in the context of the present appeal.

15. In the course of his written submission to the Court, the appellant sought to refer to a number of factual issues - including assertions of improper behaviour on behalf of police officers towards him on various occasions prior to 20 May 1992, in circumstances which have no relationship to the present case. It must be said that, quite apart from the fact that there was no evidence as to these before the learned magistrate or this court, they really were (and are) of no legal relevance whatsoever to the issues arising in the present case. At best they served to indicate that the appellant has had something of an unhappy history of interactions with the police at Mount Gambier.

16. In so far as the submissions of the appellant and the analysis prepared by the appellant's solicitor bear on the facts directly under consideration on this appeal, they amount to assertions that the police officers were simply not telling the truth and had been guilty of unprovoked and highly improper assaults on and treatment of the appellant on the night in question.

17. The appellant strongly contends that police witnesses were telling a tissue of lies. The memorandum apparently prepared by the former solicitor for the appellant, for consideration by counsel, is highly critical of the performance of some police officers as witnesses and of what are said to be serious inconsistencies in their evidence. I take it from a reading of the reasons published by the learned magistrate that these, in large measure, do no more than reiterate what was, essentially, submitted by counsel to him in the course of addresses at the trial.

18. The fundamental problem which the appellant faces is that, conscious of all of these criticisms, the learned magistrate preferred the police officers as witnesses of truth, as to the substance of their narratives; and rejected the appellant as being a non-credible witness, notwithstanding the other witnesses called by him.

19. This was not a case to be decided by reference to inferences arising from accepted or found facts. Rather it was a case in which the narrative facts, as found, directly and necessarily determined the outcome of the prosecutions. There was evidence before the learned magistrate upon which, having studied the demeanours of the various witnesses and the logical probabilities of the evidence which they gave, he could, quite reasonably, have come to the conclusions which he ultimately expressed. Indeed, the story told by the appellant concerning the manacles said to have been placed upon his legs, for example, stretches credulity more than somewhat. The only feature of the conclusions and decisions of the learned magistrate which I find a little surprising - even given the obviously intoxicated state of the appellant at the time - is the relatively modest penalty imposed, bearing in mind what were said to be significant assaults on several police officers.

20. In the course of her careful and detailed analysis of the memorandum of the appellant's solicitor and the evidence bearing on the topics identified in it, Miss de Palma, of counsel for the respondent, directed attention to evidentiary material which was available, subject to the conclusions to be drawn as to its accuracy and weight, which could amply justify the conclusions arrived at by the learned magistrate.

21. Whilst I have carefully considered all of the submissions proffered by the appellant, there is simply no basis, consistent with well settled principle, upon which this appeal can be allowed. The decision come to was fairly open to him on the evidence and I can see no footing on which I can go behind his findings as to credibility.

22. The appeal must, accordingly, be dismissed. However, before parting from this matter, there is one aspect of the case which attracts specific comment. It is beyond question that, having been charged, the appellant was, on the night in question, strip searched and placed naked in a padded cell, where he languished, in that condition, for at least four hours and possibly longer. At the time the ambient temperature was below ten degrees celsius. At no stage was the appellant issued with any blankets or other means of keeping warm, he had been involved in various physical exchanges and was exhibiting overt signs of injury (albeit, perhaps not of a patently serious type), no attempt was made to have him medically examined and he was in extreme discomfort as time went by.

23. Even on the assumption that he was intoxicated and pugnacious and even assuming that, in the circumstances, a strip search was warranted, no justification has been suggested for either the state in which he was left or the period over which that continued. The obvious inference was that this was a deliberate situation engineered by one or more police officers to discipline the appellant for the trouble which he had caused.

24. Such treatment must roundly be condemned as quite intolerable and improper. It is fortunate that it did not lead to some serious, adverse medical condition, for which the police officers concerned might well have been liable to civil action. In all fairness Miss de Palma did not seek to attempt to support what obviously took place.

25. I direct that a copy of these reasons be transmitted for consideration by the Commissioner of Police, so that some appropriate investigation of the circumstances may take place. I further direct that, as necessary, the material relevant to these proceedings, including the transcript of evidence, be made available for the purposes of any such investigation.