POLICE v CUCUK No. SCGRG-98-1400 Judgment No. S84

[1999] SASC 84

Police v CUCUK
[1999] SASC 84

MAGISTRATES APPEAL (Criminal)

1. MILLHOUSE J: (ex tempore)           This is a quite unsatisfactory matter.  One morning in Rundle Mall the respondent exchanged unpleasant words with the victim.  The victim and his wife were waiting for Betts and Betts, the shoe shop, to open.  When it did open, the victim and his wife went in, downstairs.  After a short time the respondent followed and is alleged to have assaulted the victim by hitting him on the cheek.  He also pushed the victim into a display stand, causing it some damage. 

2. The respondent was charged with assault, s.39(1) of the Criminal Law Consolidation Act, and with wilful damage, s.85(3) of the Act.  He pleaded not guilty. 

3. At the end of the prosecution case, the learned special magistrate found a case to answer.  Mr Jon Lister for the accused invited the magistrate to give himself a Prasad direction, which he did.  As a result he said (and this I take in from the magistrate's reasons, in fact they are the magistrate's reasons):-

   "It is not the fault of the prosecution.  It is just that the witnesses have given various versions of the incident which I cannot confidently accept that evidence.  On that basis, having given myself that direction I find the evidence is so unreliable and so unconvincing that I could not at the end of the day, be satisfied beyond reasonable doubt. 

   The charge is not proved.  The charge is dismissed and the defendant discharged."

4. The magistrate ordered $2,000 costs against the prosecution.  The Crown has appealed.  Mr Martin Hinton appeared for the appellant and has argued the appeal with energy and thoroughness.  His complaint was that the learned magistrate should not have given himself a Prasad direction and his reasons are too thin. 

5. Accepting that the reasons were inadequate, I adjourned the hearing and had my Associate write to the learned magistrate, asking him to amplify his reasons.  After some time, we received a reply, in the course of which the magistrate wrote:

   "In discharge of that duty, I considered that the evidence presented by the prosecution was so lacking in weight and reliability (on the central issues) that no reasonable tribunal could safely convict on it.

   In any event, I wish to make the following observations:-

   (a).. I did not consider the defendant the aggressor, simply because he followed the victim and entered the store to confront him.  The defendant may have been acting stupidly or irrationally and may have behaved as a pest or a nuisance, but that does not make him guilty of assault;

   (b).. The key witness for the prosecution was the victim.  I was not impressed with his evidence nor with his demeanour and manner in which it was presented.  I was left with a clear impression that his evidence lacked veracity, sincerity, credibility and reliability.  I was left with considerable disquiet about his evidence generally;

   (c).. That disquiet was not quelled by the evidence given by the other three civilian prosecution witnesses;"

1. Mr Hinton is still not satisfied and has persisted with the appeal.  He has been anxious to direct me to the evidence shewing a strong prima facie case.  Perhaps so, but the learned magistrate simply has not been prepared to accept the evidence.  He saw and heard the witnesses and made up his mind about them.  He had had the opportunity of seeing and hearing them.  I told Mr Hinton I was not prepared to go behind the magistrate's findings. 

2. Mr Hinton complained that even with the letter, the learned magistrate had still not given sufficient reasons.  He hasn't set out what was wrong with each witness.  He referred me to what my brother Duggan J said in Harwood v Police (1998) 71 SASR 300. I entirely accept what my brother said about the duty of a magistrate to give reasons. I am inclined to agree that the reasons set out in the magistrate's letter are still not sufficient but I do not think I'd have much luck in asking again, the magistrate to amplify and say just why he did not accept the various witnesses.

3. Mr Hinton asked me to send the matter back for hearing by another magistrate.  I am not prepared to do that.  There comes a time when enough is enough.  The respondent has already been put through a lot.  The charges are quite serious but by no means the most serious.  It just would not be fair to him to allow the proceedings to drag on. 

4. The appeal is dismissed. 

MR LISTER:             I make application for costs in the usual way.

HIS HONOUR:         Yes, what do you say about that Mr Hinton?

MR HINTON:           I can't oppose costs in the usual manner.
HIS HONOUR:                  No, what do you ask for Mr Lister?

MR LISTER:............. I understand there's a recent decision of Mullighan J on costs, which I haven't yet read.  I understand that I am entitled to ask for all of the appellant's cost on the appeal.  Of course it's a matter for your discretion.

HIS HONOUR:......... What are all the costs?

...

HIS HONOUR:......... So you're asking for about $1,000?

MR LISTER:............. In effect, yes.

HIS HONOUR:......... Which is far more than we normally give, but I've always felt that the costs given in this jurisdiction were almost derisory.

MR LISTER:............. Yes, well they have been and I think that's what led to a serious argument before Mullighan J and his subsequent renouncement upon it.

...

HIS HONOUR:         Have you anything to say about the question of costs Mr Hinton, or the amount of the costs?

MR HINTON:   Yes, it's unfortunate that the accord that has existed for so long has now been whittled away.

HIS HONOUR:         For whom is it unfortunate?

MR HINTON:   Well it's going to have knock on consequences, in that the Crown doesn't have a budget for this and we're going to have to, in the future, ask for more than our $150.  I would ask that there still be some restraint -

HIS HONOUR:         Sauce for the goose is sauce for the gander in other words.

MR HINTON:   It's not a threat, but that's true, if we have to pay out, we collect.  It's unfortunate, I hope that to some extent, even though the $150 is derisory there can still be restraint exercised and I would ask that you not order costs in the full amount.

It does also have, in the long term, an access to justice issue.  People who might run an appeal, not the Crown, but people like Mr Cucuk will be put off if they think they have an arguable case, but suddenly, they're going to be confronted by the Crown asking for $2,000.  That is very unfortunate.  I hope there will be some restraint.

HIS HONOUR:         What are you suggesting

MR HINTON:   I will split the difference with him.

HIS HONOUR:         $500?

MR HINTON:   Yes.

HIS HONOUR:         What do you say Mr Lister?

MR LISTER:    I'm not going to press any harder than I've already pressed it.

HIS HONOUR:         Alright you can have $500 then.