Pickford v Kitto

[2001] TASSC 67

[2001] TASSC 67

CITATION:             Pickford v Kitto [2001] TASSC 67

PARTIES:  PICKFORD, David Alexander Andrew
  v
  KITTO, James Collingwood

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA31/2000
DELIVERED ON:  22 June 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  20 March 2001
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Evidence and course of trial -Cross-examination and evidence in reply - Failure by defence to challenge witness on contested matter in cross-examination - Challenge only made by defendant when cross-examined - Whether inference adverse to the defendant could be drawn.

Browne v Dunn (1893) 6 R 67, referred to.

Aust Dig Magistrates [97]

REPRESENTATION:

Counsel:
             Applicant:  M J Brett
             Respondent:  D G Grey
Solicitors:
             Applicant:  W T McMillan & Co
             Respondent:  Zeeman Kable & Page

Judgment ID Number:  [2001] TASSC 67
Number of paragraphs:  15

Serial No 67/2001

File No LCA 31/2000

DAVID ALEXANDER ANDREW PICKFORD v JAMES COLLINGWOOD KITTO

REASONS FOR JUDGMENT  CRAWFORD J
  22 June 2001

1. The respondent applied against the applicant for a restraint order under the Justices Act 1959, s106B. He claimed that the applicant had threatened to kill or injure him and, unless restrained, was likely to carry out the threat, and that the applicant had behaved in a provocative or offensive manner which was likely to lead to a breach of the peace and, unless restrained, the applicant was likely to behave in the same or a similar manner again. A defended hearing of the application was conducted by a magistrate over the course of two days and the decision was reserved. Before he could make a restraint order, the learned magistrate had to be satisfied on the balance of probabilities that the application had been sustained.

1. On 17 November 2000 his Worship published reasons for being so satisfied.  A restraint order was accordingly made.  In summary, its terms were that for the next 12 months the applicant was restrained from directly or indirectly approaching, threatening, harassing, abusing or assaulting the respondent and he was required to keep the peace towards him. 

1. The applicant has moved the Court to review the restraint order upon the following grounds:

1The learned magistrate erred in accepting the evidence of Mr Ian Kitto that the applicant had made statements to him during a telephone conversation on 23 August 2000 that "he would get even any way he could, that Marcus would lose his two properties, that Jamie's career would be destroyed and that the two boys would be six foot under and he would be in Risdon.

2The learned magistrate erred by finding that the failure of the applicant's counsel to challenge the evidence of Ian Kitto in respect of statements made during a telephone conversation between the applicant and Ian Kitto on or about 23 August 2000, entitled the magistrate to draw an inference adverse to the applicant.

3The learned magistrate erred by failing to consider and/or explain the nature of the inference of fact which he was prepared to draw as a result of the failure to challenge the evidence of Mr Kitto.

1. All of the grounds raise for consideration evidence given by the respondent's father, Mr Ian Kitto, of a telephone call he received from the applicant; the failure of the applicant's counsel to put to Mr Ian Kitto in cross-examination that his version of the telephone call was wrong; evidence given by the applicant about the conversation; and submissions made in closing addresses by counsel for the parties.  So far as is relevant to the motion to review, the following matters occurred.

1. When giving evidence-in-chief as a witness called by the respondent, Mr Ian Kitto said that on 23 August the applicant telephoned him on Mr Kitto's mobile at about 8.30 or 9 o'clock.  He was asked what Mr Pickford said and his reply was:

"Oh well he just, I didn't have much to say at all, I was just told to get even was what David was going to do and that any way he could get even, he would do so, that he didn't know who (inaudible) David on and he said that Marcus would lose his two properties and Jamie's career would be destroyed and he'd be in Risdon and the two boys would have no life, they'd be six foot under.  And he explained that his phone was running out of battery and then the phone went dead."

1. Counsel for the applicant only cross-examined Mr Ian Kitto about that in a limited way:

"The conversation you said you had on that night with David Pickford, you say he telephoned you?  ...  Yes he did.

And was he upset?  ...  He was upset, he wouldn't have said that otherwise.

You were upset?  ...  I was very upset.

Even before the phone call?  ...  It was my birthday and it should have been a good day for me and I was upset.

Now you'd known him for three years before this - that conversation - you didn't believe what he said, he'd do, did you?  ...  Who are we talking to?

Dave, about David, when David rang you that night, the night of your birthday?  ...  I was hoping he wasn't going to carry out that threat, I was hoping that wouldn't happen."

1. In his examination-in-chief, the applicant's counsel asked the applicant some questions about the telephone call:

"And did you make contact with him that evening?  ...  I think I spoke to him on two occasions.  Once in the afternoon, my wife, after I told her what was going on, she went shopping and when she came back she had a birthday cake and I phoned him up to invite him up for that and I am sort of not 100% certain but the chances are I did phone him that night.

How were you feeling that night?  ...  Pretty lousy.  Yeah, lousy.

So you believe you could have rung him?  ...  Yeah.  But more than anything, it was just to check on how everything was because I think Ian was pretty distraught over all that was going on as well.

Do you recall what you might have said to him in that second phone call?  ...  Um, not really.  I probably would have asked him if he was - if everything was okay, if he was intending to come around, because I told him that Joan had brought a cake for him.

Now you heard his evidence that you - the two boys were going to be six foot under.  Can you recall saying that?  ...  I don't think so.  It is just - it is not in my nature."

1. The respondent's counsel cross-examined the applicant about the matter in the following passage:

"Now you were asked some questions by Mr McMillan about the conversation that you had on the telephone with Ian Kitto?  ...  Mm.

Now as I recall it, there was no objection made to what was said and Mr Kitto wasn't challenged as to what you said on the telephone.  So let's go back to you have telephoned Ian Kitto up, this is after you have now had the arguments with James Kitto.  Now it is correct you broke down on the phone, you cried and he was upset?  ...  Mm.  That happened on a few occasions.

I see, yes.  And on that occasion, you were upset and you blamed the whole break-down upon the two boys, that is, James and Marcus.  That is correct, isn't it?  ...  I don't recall talking about James at all.  I can recall saying to Ian that, you know, I wish we could get all the problems sorted out, calmly get together and talk with Marcus.  And that was when Ian said to me about he was only listening to James, he didn't have any control over them, they were running riot and that and that was basically - I don't recall if that was in the conversation that night or one of the nights before.  I mean, I can't be 100% certain that I made that phone call that night.  I have got some vague recollection of it.  But I thought it would have been more along the lines of, as I said before, just checking to see how his health was that night, just to remind him that my wife had bought a birthday cake for him if he wanted to come around.

Didn't you say to him that you were going to ruin James's career?  ...  No.  How am I going to ruin a solicitor's career.

But that is what you said to him?  ...  No, I didn't.

And that you were going to smash Marcus?  ...  No.

And that you felt that you would end up in Risdon?  ...  No.

And the two boys would be six foot under?  ...  No.

They will be dead?  ...  No.  I never said anything such thing.  The nearest we have come to discussion on death with Ian was at one stage I can remember saying to him, I wish we could bury all this and that was just in reference to all the troubles and that.

So could you have said something like bury on that phone conversation you had with Ian that night, that is, the 23rd?  ...  It is possible, but I don't think so.  From memory, I ¾

You couldn't have said that you might bury his boys?  ...  No, no.  Just bury all this.  You know, just all the ill-will and the, you know, the problems.  Ian and I just wanted to get the business up and running again and that was why we tried to organise a meeting on the Sunday before."

1. Once all of the evidence had been given, closing submissions were addressed by counsel to the learned magistrate.  At one point in the course of those of the applicant's counsel, the learned magistrate interrupted and drew counsel's attention to Mr Ian Kitto's evidence of the telephone call from the applicant.  The relevant passage is the following:

"Just before you leave the evidence, what do you say as to the evidence of the phone call from - alleged phone call from your client to the applicant's father that night.  I mean, as I recall it, and I haven't been back through my notes in detail, Mr Ian Kitto gave that evidence and I don't recall whether it was challenged in his cross-examination and I think your client denied it when he was giving his evidence.  What do you say as to that?  …  Well what I can make of it ¾"

Counsel then made submissions, for about a page of transcript, in which he dealt with some of the conflicts between Mr Kitto's evidence and that of the applicant, concerning the telephone call.  He did not address what had been raised by the learned magistrate about Mr Ian Kitto not having been challenged in cross-examination concerning his version of that conversation.  His Worship brought counsel's attention back to it in the following passage:

"HIS WORSHIP:  It wasn't challenged Mr McMillan, he wasn't challenged as to it.

MR McMILLAN:  Well that was that early, that's the first occasion the matter had been said and one takes instructions and in the course of the court hearing ¾

HIS WORSHIP:  I understand what you're saying.

MR McMILLAN:  Bearing in mind that it was a very upsetting experience for Mr Ian Kitto and Mr Pickford, I would suggest that to put a version of events as Mr Pickford eventually gave could have created some difficulties.  To take instructions on the run in an emotionally charged situation can be quite difficult but that's the only basis I can indicate to you as an explanation for perhaps the matter not being put in correct terms.  But that aside ¾

HIS WORSHIP:  Yes, anyway you've covered what I was asking you. You were about to go onto something else as I understand."

1. Shortly after, counsel for the respondent made his closing address.  At the outset, he submitted there were four major matters about which a finding would need to be made and the third he identified as "the threat by Pickford in the telephone conversation to Ian Kitto and certainly it's my very precise recollection that it was never challenged".  Counsel returned to that subject near the end of his closing address:

"Shortly afterwards we have a telephone conversation on about the time of Ian Kitto's birthday where James - I'm sorry, where Mr Pickford rings up and Ian Kitto says that he made the threat, Your boys will be six foot under and I'll be in Risdon.  And he wasn't cross-examined at all on that point and then when Mr Pickford gave his evidence he was very, very unsure as to what he said in that telephone conversation and the explanation was that he was upset."

1. In the reasons for his decision, the learned magistrate dealt with a substantial amount of evidence and made observations about the credit of various witnesses.  When it came to the matter in point, his Worship said:

"There is one further matter which I wish to canvass.  In my mind it is probably the most telling evidence given in support of this application.

Mr Ian Kitto gave evidence that approximately 8.30 or 9 PM one evening (which happened to be his birthday) which I assume to be either the 23rd August or shortly thereafter he received a phone call from the Respondent at his home.  He said that the Respondent told him he would get even any way he could, that Marcus would lose his two properties, that Jamie's career would be destroyed and that the two boys would be 6 foot under and he would be in Risdon.

Mr Kitto was cross examined about that conversation.  He said that the Respondent was upset otherwise he would not have said it.  He said it upset him and he was hoping the Respondent was not going to carry out the threat.

It was noteworthy that it was not put to Ian Kitto by Mr McMillan that the statement was not made.  I had expected the Respondent to explain why he made the statement when he gave evidence however he subsequently denied making it.  It is unfortunate that Ian Kitto was not tested on that point.  The Respondent was represented by experienced counsel who in most other respects was meticulous in his cross examination of witnesses.  The only inference I can draw from the failure to challenge Mr Kitto is one which is adverse to the Respondent.

Indeed, as I have said several times before, I regarded Mr Ian Kitto as a truthful witness and I accept his evidence that the Respondent did make this statement to him.  Whether he was upset or not is irrelevant.  It was a chilling statement to make to a father concerning his children.  It leads me to the conclusion that the Respondent is not capable of controlling himself when placed under emotional pressure.  This was evident to a certain extent when he was in the witness box.  He broke down and cried on several occasions whilst giving evidence about quite routine matters.  I am satisfied that he has a potential for violence particularly where the Applicant is concerned.  Clearly the Applicant infuriates him.

…

I am satisfied on the probabilities that the Respondent did offer some threat to the Applicant on the day in question using words to the effect of those related by the Applicant.  The objective facts that I have referred to do, I believe, support such a finding.  I am also satisfied as I have said, that he made the threatening statement to Mr Ian Kitto over the phone."

1. The third ground of the motion to review raises an alleged failure on the part of the learned magistrate to consider or explain the nature of the inference which was drawn adversely to the applicant.  There is no substance in the ground, for it is plain what his Worship intended by his words.  Mr Ian Kitto had given evidence‑in‑chief concerning the content of what was said to him by the applicant in the course of the telephone call in question.  Mr Kitto's evidence was clear in that regard.  In the course of cross‑examination by the applicant's counsel, no challenge whatever was made concerning what the applicant had said.  All counsel cross-examined about was whether the applicant and Mr Kitto were upset at the time and whether Mr Kitto believed what the applicant had said to him.  In his examination‑in‑chief, the applicant's evidence of the telephone conversation was exceedingly vague, and he did not deny Mr Kitto's version of it.  He said that he did "not really" recall what he had said.  As to whether he said to Mr Kitto that his two sons were going to be six feet under, he merely said "I don't think so" and that "it is not in my nature".  It was only in the course of cross-examination that he positively denied what Mr Kitto had attributed to him. 

1. The obvious inference which was open from what had occurred, was that the applicant's denials were a recent invention.  It is obvious to me that the learned magistrate was referring to the drawing of that inference when he indicated that the only inference he could draw was one adverse to the applicant.  The drawing of that inference was justified in the circumstances of what had taken place before the learned magistrate.  Although his Worship only gave as his reason for drawing it the failure of the applicant's counsel to challenge Mr Kitto's version of the conversation in cross‑examination, and was justified in so doing under the principles of Brown v Dunn (1893) 6 R 67, the drawing of the inference was further justified in light of the applicant's evidence.

1. It was submitted for the applicant that his counsel gave a satisfactory explanation to the learned magistrate for not relevantly cross-examining Mr Kitto and that the drawing of the inference was accordingly not justified.  I confess to not understanding what counsel meant when he addressed the learned magistrate in the way he did.  His Worship said that he understood, but what his understanding was is not apparent to me.  If counsel had stated that his instructions were that the applicant had said no such things and he forgot to cross-examine about the matter, or that he had not had a reasonable opportunity to obtain instructions and so there was no basis for him to challenge Mr Kitto's version of the conversation, the drawing of the inference might not have been appropriate.  But I can find nothing in counsel's words, as they appear in the transcript, to persuade me that his Worship was wrong to draw the inference in the circumstances of the case.

1. I therefore conclude that none of the grounds of the motion to review have been sustained.  The motion will be dismissed.