Police v Diano - [2014] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DIANO
[2014] SASC 128
Judgment of The Honourable Justice Peek
5 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for assault.
After a trial by Magistrate, the appellant was found guilty of assault causing harm contrary to s 20(4), Criminal Law Consolidation Act 1935. Police alleged that while at a city nightclub he had thrown an empty glass bottle at the victim (who was then fighting with another person) and that serious injuries were caused when the bottle hit his head and broke. The appellant denied throwing the bottle, but the Magistrate accepted both the evidence of the victim of being hit in the head with something hard, and two other witnesses who observed the appellant throw the bottle, hitting the victim. He appeals on grounds that the Magistrate erred in finding the charge proven beyond reasonable doubt having regards to the circumstances surrounding the identification process, and that the charge was not proven beyond reasonable doubt on the evidence.
Held per Peek J (dismissing the appeal):
1.      The Magistrate carefully considered the evidence given by each of the witnesses and correctly directed herself as to the dangers of identification both generally and as related to the particular circumstances here.
2.      It was open to her Honour to accept the evidence of witnesses who stated that they observed the appellant throwing the bottle and reject the denials of the appellant.
3.      The charge was proven beyond reasonable doubt; none of the particular matters raised by the appellant raise a doubt as to his guilt of the offence.
Criminal Law Consolidation Act 1935 (SA) ss 20(4), 21, referred to.
R v Bridgland [2013] SASC 203; R v Bridgland [2014] SASCFC 80, applied.

POLICE v DIANO
[2014] SASC 128
Magistrates Appeal

PEEK J. Appeal against conviction for assault.
After a trial before a Magistrate, Keith Lionel Diano, the appellant, was convicted of the offence of assaulting Mr David O’Hagan (David)[1] thereby causing him harm contrary to s 20(4) Criminal Consolidation Act 1935 (the Act).
[1] The Magistrate refers to the various witnesses by their Christian names, no doubt for the good reason that that was the way in which the witnesses referred to each other in their evidence. It would be too confusing if I were not to do the same.
The offence was alleged to have been committed during the early hours of 8 May 2011 at the Red Square Hotel in Hindley Street (Red Square) in the course of a fight between David and Mathew Williams (Matt).
Two other patrons, Ms Bianca Scheffler (Bianca) and Mr Jon Robinson (Jon), gave evidence that they were watching the fight between David and Matt and during…

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 Diano

Details

AGLC: Police v Diano [2014] SASC 128
Case: [2014] SASC 128
Decision Date

CaseChat Overview and Summary

The appeal arises from a conviction for assault occasioning actual bodily harm. The appellant was found guilty by a magistrate of using a glass bottle to strike David, causing him injuries. The appeal was heard in the County Court of Victoria. The central issue before the court was whether the appellant was properly convicted of assault occasioning actual bodily harm by throwing a glass bottle at the victim. This hinged on the credibility of the evidence and whether it was established beyond reasonable doubt that the appellant threw the bottle at David.

The court examined the evidence presented, particularly the testimonies of various witnesses. The Magistrate rejected the appellant's evidence as implausible and contrived. The court found that the appellant's account of events was inconsistent and contradicted by other evidence, including the statements of other witnesses and medical evidence regarding the nature of the injuries sustained by David. The court also noted that other witnesses placed the appellant in close proximity to the incident and observed the bottle being thrown. The court concluded that the evidence of Jon and Bianca, along with the medical evidence and David's account, supported the finding that the appellant threw a glass bottle at David.

The court found the appellant's evidence to be unreliable and unconvincing. It was held that the appellant had acted aggressively and disproportionately in throwing the bottle, particularly given the presence of security officers who could have intervened. The court upheld the magistrate's findings, concluding that the prosecution had proven beyond reasonable doubt that the appellant threw the bottle at David, causing him injuries. The appeal was dismissed.

The court confirmed the conviction and sentence imposed by the magistrate, upholding the finding that the appellant was guilty of assault occasioning actual bodily harm.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Magistrate considered the evidence of the appellant at length. Her Honour rejected his denial of throwing a bottle, concluding that his evidence was “implausible” and “contrived”. I consider that that conclusion was justified, as was her Honour’s decision to accept the evidence of Jon and Bianca and to reject the evidence of the appellant (and that of Matt in so far as it could be relevant) beyond reasonable doubt. The Magistrate’s assessment of the evidence of Matt The Magistrate stated:[7]Matt’s evidence was of little weight given the inconsistency between his out of court statement to police and what he said in court. On 8 May 2012, 12 months after the incident, he told police the defendant spoke to David and then they moved away, but soon after David returned. He told police that because of David’s body language, he thought he would hit him. He saw David storming towards him so he ducked his head and put his hands on the top of his head to protect himself and felt a punch to the back of his head. His statement to police meant his face pointed towards the ground and from this position he would be unable to track the defendant’s movements at the relevant time. This statement is inconsistent with his evidence that the defendant did not throw a glass bottle or object. The only reason for him to change his account of what he can recollect and fabricate evidence is to support the defendant’s account.[7] Reasons for Decision, [44]. On reading Matt’s examination-in-chief, one sees that his evidence is even more insubstantial than would appear from the Magistrates summary above. When he was cross-examined by the prosecutor on his previous statement to police, it became very clear that he had previously emphasised that his sole attention during the relevant time was upon David with whom he was having the altercation. It would therefore follow that his assertion that he did not see the appellant holding or throwing a bottle had very little bearing on the question of whether the appellant did in fact throw a bottle unobserved by him. Matt, on his evidence, failed to see anyone throw a bottle, but the evidence of Jon and Bianca, coupled with the medical evidence and the evidence of David that he felt something extremely hard, allowed for the finding of the Magistrate that someone did so. I consider that her Honour’s assessment was well justified.The Magistrate’s findings of fact The Magistrate proceeded to make the following findings of fact:[8][8] Reasons for Decision, [51]-[59].David received his injuries inside Red Square. He did not receive his injuries fighting with Matt. David’s injuries are consistent with being struck by an object or glass bottle, thrown by a person in close proximity to the fight between David and Matt. A glass bottle was thrown at him, which struck his face. Bianca, Danika, Jon, Sarah and the defendant were in close proximity watching the fight between David and Matt.The defendant threw a glass bottle that made contact with David.At the relevant time the defendant was not being threatened by David, but was concerned about his friend Matt because David started the fight and was punching at Matt. Assuming the defendant was motivated to defend Matt, his action in throwing a bottle was not reasonably proportionate to the threat David posed to Matt, particularly as security officers were in close proximity, as shown by the speed in which they intervened.It was disproportionate to throw a glass bottle and this act was one of aggression and inappropriate in the circumstance. As such prosecution have proved beyond reasonable doubt and the defendant cannot raise self-defence.I find that a sudden, unexpected fight between David and Matt led the defendant, in the spur of the moment to use the glass bottle he was holding and assault David by striking him with the glass bottle.I find the defendant was knowingly holding the glass bottle before determining to throw it at David and that in these circumstances the glass bottle was an offensive weapon when he threw it because at that time he was holding it for the purpose of causing personal injury or incapacity.

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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