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 its course they each saw the appellant throw an empty bottle and saw it hit David’s head. The prosecution case is that injuries were caused when the bottle broke on making contact with his face. David did not see the bottle being thrown and could only give evidence of his injuries (which were consistent with having been caused by a thrown bottle) and of feeling being hit by an extremely hard object.
The appellant gave evidence denying throwing anything at David and called Matt who gave evidence that he did not see the appellant throw anything at David. The Magistrate accepted the evidence of Bianca and Jon and rejected that of the appellant. On 28 February 2014, the Magistrate delivered her judgment finding the charge proven beyond reasonable doubt and delivered detailed reasons.
On 1 April 2014, the Magistrate sentenced the appellant. Her Honour recorded a conviction and released him on a bond in the amount of $1,000 to be of good behaviour for two years (and to pay court costs of $207, victims of crime levy of $320, and prosecution costs of $100).
The course of the filing and hearing of the appeal
Mr Caldicott had represented the appellant at trial and filed an appeal (against conviction only) on his behalf on 17 April 2014, seven weeks after the Magistrate had delivered judgment. The notice of appeal “settled by Mr Caldicott” states as follows:
The appellant seeks an extension of time within which to appeal, upon the following grounds:
1.The draft notice was completed within 14 days but due to a clerical error within my firm, the appeal notice was not filed. Upon checking to see when the appeal was listed, it was discovered that the appeal notice was not filed.
The grounds of appeal are:
1.The Magistrate erred in the process of identifying the defendant as having committed the commence [sic] having regard to the circumstances of how the identification process occurred.
The appellant seeks the following orders:
1. The order imposed by the Magistrate be set aside.
2. Any other orders the Court deems fit.
The application for an extension of time
The four week delay[2] in filing the appeal was caused by an error in Mr Caldicott’s office and not by the appellant. I grant an extension of time within which to file the appeal to 17 April 2014.
[2] The time limit for filing the appeal was 21 days and not 14 days as apparently assumed by Mr Caldicott.
The hearing of the appeal
Following the filing of the notice of appeal, Mr Caldicott’s office took no further part in the appeal process. The appeal was due to be heard in May but was adjourned on several occasions on the basis that the appellant was seeking alternative legal representation. The appeal was finally heard on 25 August 2014 with the appellant appearing in person.
The grounds of appeal
The original ground of appeal filed was drawn in a slovenly manner and appears as reproduced above. I assume that it was intended to mean something along the lines that “the Magistrate erred in finding the charge proven having regard to the circumstances surrounding the identification process”. I also assume that the finding of guilt is challenged on the basis that guilt of the offence charged was not proven on the evidence beyond reasonable doubt. Accordingly, I granted leave to the appellant to amend the grounds of appeal by substituting the following:
1The Magistrate erred in finding the charge proven beyond reasonable doubt having regard to the circumstances surrounding the identification process.
2The charge was not proven beyond reasonable doubt on the evidence before the Magistrate.
The prosecution evidence
The Magistrate gave very detailed reasons in which her Honour carefully summarised the evidence of each of the witnesses. The appellant on the hearing of the appeal did not criticise those summaries, apart from raising some specific matters with which I will deal below.
The evidence of the victim
David gave evidence that he was a patron at Red Square in the early hours of 8 May 2011 and that sometime between 2am and 3am he was involved in a physical altercation with Matt. He stated that “in the process of having the altercation with Matt I got hit with something extremely hard and then I don’t remember much after that.” David was later found to have sustained the following injuries:
·a shattered jaw bone;
·an eight centimetre lip laceration that penetrated the entire lip and required 30 sutures; and
·the loss of a front tooth, a broken incisor on the left side of his mouth and several chipped teeth.
It was not disputed that these injuries constituted harm within the meaning of s 21 of the Act.
The evidence of Bianca
Bianca gave evidence of the background leading up to the fight between David and Matt (of the cherchez la femme variety). She gave evidence that she was introduced to the appellant only a few minutes before she saw the appellant throwing the bottle which hit David during the course of that fight. The Magistrate summarised that evidence thus:
Bianca was aware that there was an issue brewing because earlier that night David had expressed a wish to establish whether Danika was unfaithful during their relationship by commencing a new relationship with her current boyfriend, Matt. At Red Square, when standing just off the dance floor and near the entrance to a back room, Bianca saw Matt approach David and heard them raise their voices, become angry and punch each other. When less than one metre away, and standing in a circle that surrounded the fighters, she saw the defendant throw a bottle with an over-arm action and hit David. She remembers that Danika, Jon, Sarah and Keith were standing in the circle around David and Matt. She described the bottle thrown as a Smirnoff bottle with a black label. When she saw Danika trying to force her way between David and Matt, Bianca grabbed her to hold her back.
The evidence of Jon
Jon gave evidence that he knew the appellant, having gone to the same school and having seen him from time to time over the previous two years. He gave evidence of the fight between David and Matt and his observations of the appellant throwing the bottle which hit David during the course of that fight. The Magistrate summarised that evidence thus:[3]
Jon remembers standing in a passageway between rooms, with the defendant standing to his left. Matt was standing in front of him and David, Sarah and Danika stood to his right. He was one metre away when David confronted Matt about Danika. David appeared to be annoyed and he argued with Matt before throwing a punch at Matt, which led to a scuffle. His next recollection is seeing the defendant approach from his left side and with an over-arm action the defendant threw a glass bottle which connected with David’s face. He was no more than a metre away from David when he saw the defendant throw the bottle. He saw that the glass bottle was a 600-millilitre Smirnoff bottle, which he described as similar in size to a beer bottle.
Security officers then took hold of the defendant, Matt and David and escorted them from the premises. Jon ran outside to follow this group and when he saw the defendant outside, he said to him, why the hell did you do that?
[3] Reasons for Decision, [17]-[18].
The evidence of the appellant
The appellant gave evidence that Matt was a friend of his and that they arrived at Red Square together at about 12:30am. Notably, he gave evidence that he saw and recognised Jon at Red Square. The Magistrate summarised the essence of the appellant’s evidence thus:[4]
He saw and recognised Jon, whom he had known for a few years and saw occasionally. He saw David approach and yell at Matt and there was an altercation between them, although at the time he had no idea what the dispute was about and did not understand why they were in a bear hug and yelling. Prior to this night he did not know David. He walked over and grabbed Matt and encouraged Matt to walk away by saying, there is nothing here, move on. In response David asked, who are you? After David was told, he replied, so you are Keith and then walked away.
He turned away but soon after saw Matt being held by security officers and he intervened and grabbed Matt. Danika was nearby when he intervened. His actions did not prevent the security officers taking Matt outside and he followed behind. He saw Danika come outside and police officers asked security officers what was occurring. The three of them were spoken to by police officers. As Matt spoke to a police officer, he remembers David trying to make contact with Matt and himself, but was prevented from doing so by the presence of police officers.
When spoken to by police, the defendant said he had no comment to make. He denied seeing David injured and denies any involvement. He considers that Bianca and Jon lied to the court.
[4] Reasons for Decision, [24]-[26].
The evidence of Matt
The appellant called his friend Matt to give evidence. The Magistrate summarised that evidence thus:[5]
At Red Square, David approached him. The defendant was standing next to him speaking to Jon before approaching him to speak about Danika. David said Danika he thought had cheated on him. This conversation became heated then it got sorted out. Danika walked off, and then David followed her, uttering a few words. David came back and swung a punch, but Matt avoided it by ducking. Then there was a tussle and Matt remembers being on top of him before being dragged out by bouncers. At no stage did he throw any punches. And at no stage did he see the defendant with a bottle in his hand and did not see the defendant throw anything at David.
The next time Matt saw David they were outside of Red Square in Rosina Street. Shortly afterwards, the defendant walked unaided out of the hotel through the same exit.
Before David was taken away in an ambulance, he said to the defendant and Matt, This isn’t over. The defendant drove Matt home.
[5] Reasons for Decision, [28].
The Magistrate’s reasons
The Magistrate carefully considered the evidence of all of the witnesses and directed herself as to such matters as drinking patterns and state of intoxication; the potential distracting nature of such matters as the movements of patrons, the volume of the music, and conversation; and the fact that the throwing of a bottle at David would have been unexpected.
The Magistrate’s directions and warnings as to identification evidence
The Magistrate gave careful directions as to the dangers of identification evidence generally and as related to the present circumstances in particular. Her Honour referred to the fact that several identifying witnesses may make the same mistake. Her Honour noted that while such dangers are particularly important in relation to the identification of strangers, they are also relevant to the asserted recognition of known persons.
The Magistrate also correctly observed, in relation to Jon, that the evidence was of the recognition variety. In relation to Bianca, who had been introduced to the appellant only minutes before the incident, her Honour correctly observed that her identification evidence could not be dismissed as a mere fleeting glance of a complete stranger.
Dock identification
Both Bianca and Jon performed dock identifications of the appellant in Court. At trial, Mr Caldicott objected to that made by Bianca but not that made by Jon, no doubt because it was conceded that Jon well knew the appellant. It may have been better if the dock identification of Bianca had been excluded in circumstances where she had not performed a formal identification process. However, it is clear that the Magistrate did not place any weight on the dock identification.
The Magistrate’s assessment of the evidence of Jon and Bianca
The critical evidence for the prosecution case was that of Jon and Bianca. Her Honour carefully scrutinised their evidence having regard to all matters that might bear upon their credibility and reliability. After taking these matters into account, her Honour observed:[6]
… Bianca and Jon were about a metre away with an unobstructed view of the altercation between David and Matt. Neither has any doubt that the defendant threw a glass bottle and they gave a consistent demonstration of how the defendant threw the bottle. Both made immediate observations of the injuries the bottle caused to David’s face.
…
… The defendant was known to Jon; they attended the same school and had seen each other over the previous two years. Although Bianca did not know the defendant prior to this night she was introduced to him and spoke with him minutes before the altercation between David and Matt.
I consider Bianca and Jon were truthful, helpful witnesses, who have always maintained that the defendant threw the bottle. Jon immediately challenged the defendant about throwing the bottle. They were steadfast in their evidence of watching the defendant who was approximately one metre away and seeing him throw the bottle. I accept their evidence as reliable.
[6] Reasons for Decision, [43], [48].
I do not detect any error in the Magistrate’s approach or her consideration of the above evidence.
The Magistrate’s approach to the defence case
The Magistrate dealt in detail with the defence case.
The Magistrate’s assessment of the evidence of the appellant
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.

These findings are all well supported by the evidence. It can be seen that, even though the appellant did not raise it, her Honour also correctly addressed a possible defence of “defence of another” and rightly rejected that defence in the circumstances of this case.[9]
[9] Cf R v Bridgland [2013] SASC 203; R v Bridgland [2014] SASCFC 80.
Specific matters raised by the appellant on the appeal
I will refer to three submissions made by the appellant on the hearing of the appeal.
First, the appellant submitted that “Jon admitted having up to 20 standard drinks and Bianca up to around 14 standard drinks”. The matter of intoxication was specifically dealt with at trial. As to Bianca, she stated that she had a couple of drinks (small glasses) at a friend’s home, one or two drinks at the Hilton Hotel, one or two drinks at HQ, and no drinks at Red Square. There was no admission by her that she was intoxicated and nowhere in the trial transcript was it suggested that she had 14 standard drinks, or anything of that order. As to Jon, he stated that he had about three drinks at the Seaford Tavern, four or five drinks over two hours at the Hilton Hotel and two or three drinks at HQ. He stated that in total he had from eight to 11 Coronas but agreed that it could possibly have been more. Nowhere in the trial transcript was it suggested that he had 20 standard drinks, or anything of that order. Of course, I agree that the matters of drinking alcohol and the degree of effect that may have had on the witnesses were important. However, the Magistrate clearly took those matters into account as stated above.
Second, the appellant asserted that Red Square did not serve liquor in bottles but only in glasses (and hence he could not have thrown a bottle). There was no evidence in relation to this, but even if that assertion be correct, that would not mean that a patron might not have brought a concealed bottle inside or somehow or another obtained such a bottle at the premises.
Third, the appellant referred to the question of whether police officer Winton who gave evidence that he spoke to an adult male in Hindley Street, whom he named as the appellant, had actually spoken to David rather than the appellant. I agree that the conversation Winton recounted in Court from his notebook does appear to have been had with David (who was recounting the fight with Matt) rather than with the appellant and I am prepared to assume in favour of the appellant that that is so. However, while this may be a blemish on the trial, it does not advance the case on appeal for the appellant. The fact is that Winton in no way suggested that the person to whom he spoke in any way admitted to throwing a bottle – which is hardly surprising if he was in fact speaking to David. The Magistrate did not use the mistaken evidence of Winton in a way adverse to the appellant and the point falls to the ground.
Disposition of the appeal
I consider that her Honour’s warnings and directions were sufficient and that she was well entitled to make the findings that she did. I have considered the amended grounds of appeal and have undertaken the review of the evidence required by the second of those grounds. Neither ground is made out.
The appeal is dismissed.