Police v Brown - [2017] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BROWN
[2017] SASC 112
Judgment of The Honourable Justice Peek
29 August 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
The appellant was found guilty by a Magistrate of assault causing harm to Ms Conboy, his then partner (the complainant).
Shortly after the subject incident, the appellant was interviewed by police and admitted to punching the complainant about five times to the head. His explanation for doing so was that he had lost his temper after she had threatened to tell his 9 year old daughter, G, who was then sitting in another room of the house, of her mother’s (the appellant’s ex-wife’s) infidelity; he stated that the complainant was not posing any physical threat to either G or himself.
The defence case at trial, however, was that the appellant acted in defence of himself or G in that he believed that the complainant was about to physically attack himself or G.
The grounds of appeal were that the Magistrate erred in his assessment of: the appellant’s police interview; the evidence of the complainant’s mental health; aspects of G’s evidence; and the prior inconsistent statements of the complainant. It was also contended that the verdict was unsafe and unsatisfactory.
Held (dismissing the appeal):
(1)     The Magistrate did not err in relation to assertions in the police interview that the complainant was “verbally aggressive” or “pushing”; such assertions were overshadowed by the surrounding admissions of conduct which could not be construed as self-defence or defence of another.
(2)     The Magistrate carefully assessed the evidence relating to the complainant’s mental health, including the evidence of her ex-husband, and correctly considered its impact on her reliability as a witness.
(3)     In circumstances where defence counsel did not call Dr Bem to give evidence, the Magistrate was correct to conclude that the cross-examination in relation to his notes was of limited assistance in resolving the key issue at trial.
(4)     It was open to the Magistrate to reject aspects of G’s evidence and accept the evidence of the complainant in light of G’s age, that she was testifying at trial some years later, and had a poor memory of other events which occurred around the time of the assault.
(5)     The cumulative effect of any inconsistencies as between the complainant’s evidence at trial and her witness statements was not substantial and did not call into question the reliability of the essential narrative. In any event, it is not established that the Magistrate disregarded these matters.
(6)     Having regard to the cumulative effect of the above findings, the trial evidence, reasons of the Magistrate, and submissions on appeal, the verdict is not unsafe or unsatisfactory. Further, the finding beyond reasonable doubt of guilt was supported by the evidence.
Criminal Law Consolidation Act 1935 ss 15, 20(4), 353(1), referred to.
Bromley v The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Brown

Details

AGLC: Police v Brown [2017] SASC 112
Case: [2017] SASC 112
Decision Date: 29 August 2017

CaseChat Overview and Summary

In the matter of Police v Brown, the appellant appealed against his conviction and sentence for assaulting the complainant. The case was heard in the Supreme Court of South Australia. The appellant challenged the conviction on several grounds, including the sufficiency of evidence regarding the complainant's conduct and the magistrate's consideration of provocation.

The legal issues before the court were whether the evidence supported the magistrate's findings, particularly concerning the complainant's behavior and the appellant's belief that she was about to reveal sensitive information to his daughter. Additionally, the court examined whether the magistrate correctly applied the law regarding provocation as a defence. The court was tasked with determining if the magistrate's decision was open to the grounds of appeal raised by the appellant.

The court found that the magistrate had appropriately considered all relevant evidence, including the complainant's emotional state and the appellant's perception of her actions. The court noted that while the complainant did not directly threaten violence, her behavior was sufficiently provocative to justify the appellant's reaction. The court held that the magistrate's findings were supported by the evidence and that the legal principles applied were correct. The court rejected all grounds of appeal, affirming that the appellant's conviction and sentence were appropriate.

The Supreme Court dismissed the appeal and upheld the magistrate's decision. The appellant's conviction for assault was therefore confirmed, and he was to serve the sentence as determined by the magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 3 of appeal is rejected.Ground 5: The evidence of Mr Conboy (the complainant’s ex-husband) Ms Matson acknowledged in argument that Mr Conboy did not give evidence as to actual violence being observed by him. Indeed he said: ‘Yes, sometimes she would get angry during the conversations but never physically, never physically towards me.’ His evidence was confined to assertions that the complainant became very emotional; became very dogmatic; would go over the same points again; would not back down; would get to a point where she probably was not really in control of herself; would be very emotionally agitated. There were two high points of the appellant’s submissions concerning his evidence. First, that the complainant had both broken his car window with a brick and had committed the arson offence. Although neither of these matters involved violence towards Mr Convoy or putting him in danger, they were of course serious matters evincing a high degree of loss of control. However, it is clear that the Magistrate was well aware of that and took them into account. The second highpoint was that Ms Matson strongly relied upon the following passage in re-examination of Mr Conboy:QWith regards to your decision to separate, around 2012, Ms Matson put to you that you wanted to have your friend Don, at least on one occasion there?AMm-hmm.QI want to get it quite clear, is that for the purposes of protection or is that for the purpose possibly of a witness as to what went on?ABoth.QWhy did you need him there as a protection if she had not threatened you or made you feel discomforted before?AI don’t know. She, I think on that day I didn’t know what was going to happen. No doubt Mr Conboy was wary of the complainant at the time referred to, but it is important to note that the prosecution do not dispute that the complainant lost control during the subject incident and inexcusably threatened to inform G of the infidelities of her mother. The prosecution are correct in their contention that the nature or extent of Mr Conboy’s previous apprehensions can have little, if any, bearing on the critical issue of whether the complainant may in fact during the subject incident have offered violence to G or the appellant such as to give rise to the belief that the appellant now claims that he had. It is plain that the Magistrate directed himself concerning the relevant evidence and appropriately took it into account. Ground 5 of appeal is rejected.Ground 6: Dr Bem’s records As noted above, Dr Bem was not called as a witness and nor were his clinical notes tendered as evidence. Several entries in Dr Bem’s notes were put to the complainant by counsel for the appellant during cross-examination. On some occasions, the complainant accepted that the note put to her accorded with what she had said to Dr Bem. However, on other occasions, when the complainant disputed the accuracy of the note, it was not later proved by counsel and the mere question cannot now be relied upon.

Decision

Reasons for decision

PEEK J

There is, of course, a wider way in which a Magistrates appeal of this type may be approached, and that is to engage a broader review of the whole evidence to determine whether guilt was proven beyond reasonable doubt, as adumbrated by Perry J in Taylor v Hayes.[8] While the matters in the first sentence of the preceding paragraph would indicate that that type of review was not sought here, in fairness to the appellant himself, I have read and re-read the evidence, the reasons of the Magistrate, and both the written submissions and transcript of the oral submissions of the appellant with that broader approach in mind. However, I conclude that such a ground, correctly drawn, would also not succeed. Ground 7 of appeal is rejected.[8] (1990) 53 SASR 282, 289-292. Success on such a ground of appeal would lead to the Information being dismissed rather than to an order for a re-trial. This a broader based appeal than an appeal against a jury verdict under s 353(1) Criminal Law Consolidation Act 1935 (although success under s 353(1) also leads to a verdict of acquittal). Conclusion The Magistrate concluded as follows:I find that Mr Brown was so appalled that something which he had controlled, namely the information regarding his marriage breakdown could have been told to his daughter in a blunt, uncaring or aggressive circumstance, given Ms Conboy’s emotional state at this time, her behaviour lead exactly to what he said – it pushed him too far. He lost his temper and struck her in an outrage as to what she might have said. The Magistrate thus found that the complainant did say words that led the appellant to understand that she was about to reveal to G the matter of her mother’s infidelities in blunt, uncaring or aggressive circumstances. As the Magistrate rightly observed, its effect on the appellant was highly provocative; he lost his temper and he struck her in outrage. In some jurisdictions, at some times, provocation has been a defence to assault charges less than murder, but that has never been the case in South Australia, and the appellant was therefore correctly found guilty of the present charge. It will be open to the Magistrate to take into account this matter of substantial provocation of a person otherwise of good character on finalisation of the present proceedings.Disposition No ground of appeal is made out. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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