Police v English - [2014] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ENGLISH
[2014] SASC 104
Judgment of The Honourable Justice Peek
6 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction for assault.
The appellant was convicted of assaulting Mr Benton during the early hours of 16 December 2011 at the Emu Hotel in Morphett Vale. The appellant admitted that he had punched Mr Benton but asserted that he did so whilst acting in self-defence. The Magistrate rejected the evidence of the appellant and accepted the evidence of Mr Benton, and a security guard, Mr Jacobs, and found that self-defence was excluded. The appellant appealed against conviction.
Held per Peek J (dismissing the appeal):
1. None of the grounds of appeal, either individually or cumulatively, have any merit.
2. There is nothing to suggest that Mr Jacobs’ evidence was unreliable or that the Magistrate erred in taking a favourable view of it.
3. The Magistrate’s findings and conclusions were supported by the evidence; he correctly addressed the asserted defence of self-defence and rightly rejected it in the circumstances of this case.
4. The appeal is dismissed.
Criminal Law Consolidation Act 1935 s 20(4), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"self-defence"

POLICE v ENGLISH
[2014] SASC 104
Magistrates Appeal

PEEK J. Appeal against conviction for assault.
After a trial before a Magistrate, the appellant, James Joseph English, was convicted of the offence of assaulting Mr Benton, thereby causing him harm contrary to s 20(4), Criminal Law Consolidation Act 1935.
The offence was alleged to have been committed during the early hours of 16 December 2011, at the Emu Hotel at Morphett Vale. It is admitted that the appellant did punch Mr Benton and thereby caused him to fall to the ground, knocking his head, and thereby suffering injuries which amounted to “harm”. The only issue is whether the possibility that the appellant acted in self-defence was negatived by the prosecution beyond reasonable doubt.
The grounds of appeal
The grounds of appeal appear as follows:
1.That the Learned Magistrate failed to give sufficient weight to the evidence of the appellant.
2.That the Learned Magistrate gave undue weight to the evidence of the prosecution witnesses.
3.That the Learned Magistrate fell into error when assessing the whole of the evidence.
4. New evidence not available at trial has been made known to the defence.
At the hearing of the appeal, counsel for the appellant indicated that ground four of appeal was not pursued.
The evidence at trial
On the hearing of the appeal, counsel for the appellant stated that he did not differ with the Magistrate’s summary of the evidence, which I reproduce:[1]
[1] Magistrate’s reasons, [5]-[15].
Mr Benton’s Evidence
Benton gave evidence he had no recollection of the incident itself. He was 15 years and 10 months old at the time. He attended at the Emu Hotel with his cousin Riley. They had walked to the hotel, a distance of about 4 km after drinking at Riley’s home and arrived at the hotel at around about 12.30 am.
Benton was not allowed inside the hotel because of his age. Riley who was 20 years old went inside. Benton waited outside the hotel for Riley. He cannot recall how long he waited. His next recollection was waking in an ambulance. He had no recollection of being struck. He said that he had consumed, during the course of the evening, four 600 millilitre bottles of beer and he had been drinking since about 8 pm before walking to the Emu Hotel. He did not consider that he was drunk. He described himself as tipsy but not drunk or staggering.
Specifically, he did not recall any fight at the hotel and denied any attempt, which was put to him in cross-examination, to hit the defendant when, as it was put to him, the defendant was standing near the bottle shop.
Mr Jacobs’ Evidence
Mr Jacobs gave evidence he was on duty as a security guard at the Emu Hotel from 7 pm onwards the previous evening. He referred in his evidence to a fight or a scuffle near the bistro door. He was unable to say exactly when this occurred but it was after Riley had attended. He referred to punches being thrown during the course of that scuffle. He was not there at the start of the scuffle but was called to attend and he remembers breaking it up. He described the scuffle happening outside the hotel.
There was another security officer by the name of Thomas on duty that night. After breaking up the scuffle both he and that other security officer remained outside until all was clear. After breaking up the fight he saw Benton and the defendant in the car park. He said they were mouthing off at each other but they did not appear aggressive. They were about 10 m apart. Then he saw the defendant walk over to Benton and punch Benton in the face, the walking and the punch being one continual uninterrupted movement. Benton fell to the ground and the defendant ran off. Jacobs gave evidence that he chased him, saw police in the vicinity and called for their assistance; they in turn chased and apprehended the defendant.
He did not believe that Benton had been one of the people involved in the fight that he had earlier broken up. He described that fight and the incident when Benton was punched as two separate incidents. The fight involved Benton’s cousin Riley and two people who he described as ‘the twins’, one of whom was the defendant’s friend Jerry. Jacobs further gave evidence he was not aware of Riley’s whereabouts at the time Benton was punched. As I have said that punch occurred later and after the scuffle had been broken up.
In cross-examination he denied the suggestion that Benton ran at the defendant in an aggressive manner and further denied that the incident took part in a corner near the bottle shop. He maintained it occurred in the middle of the car park.
The Defendant’s Evidence
The defendant gave evidence and he is to be given credit for having done so. He said that he was at the Emu Hotel with friends Jerry and Josh, referred to as ‘the twins’. Before the scuffle broke out they went out for a smoke outside the bistro door. The defendant spoke to a young lady on the ramp outside the bistro door having a smoke. A group of men then came around the corner of the drive-in bottle shop. Riley was amongst them. The defendant described them as mouthing off and being smart. He subsequently described punches being thrown between them and Jerry and that a fight erupted around him. The fight then moved from the ramp into the car park and the defendant moved to a corner of the bottle shop to get away from the fight and to put himself in a position where he could not be hit from behind. He had referred to an earlier incident when he had been assaulted.
Two security officers appeared to try and take control of the situation. Having two security officers was ridiculously inadequate in the defendant’s view. At this stage he was about 8 m away in the corner. Benton walked up to him. As Benton approached the defendant said ‘What are you doing buddy?’ Benton kept coming. Again the defendant asked him what he was doing then Benton put his hand in a fist at about waist height and the defendant said he believed that he was going to be hit by Benton.
To save himself from being hit, he hit Benton in the face and Benton fell to the ground. At that stage he decided, to use his terms, ‘to call it a night’, and decided to run home. The security officer, Mr Jacobs, and another person who the defendant described as a ‘good samaritan’ chased him. He said to the good samaritan ‘You better not hit me mate I’m not going to stand for it’. He ran from them but subsequently when he saw the police giving chase he gave up and stopped.
In cross-examination he explained that as he ran, he saw Riley, the defendant’s cousin, and to use his words again, ‘jumping around like a prawn’. He also subsequently complained about the police apprehending him claiming he felt, again to use his words, ‘Like the shit had been kicked out of him’ by the police. He explained part of his record of interview saying ‘I knew I was going to get screwed in court’. He repeatedly stated that he did not start the fight and the fight came to him.
The Magistrate’s assessment of the witnesses
The evidence of Mr Benton
The Magistrate accepted the evidence of Mr Benton but, as his Honour correctly noted, the prosecution case as to the appellant’s involvement really depends entirely upon acceptance of the witness Mr Jacobs (and rejection of the evidence of the appellant).
The evidence of Mr Jacobs
The Magistrate took a favourable view of the evidence of Mr Jacobs. His Honour stated:[2]
Mr Jacobs, the security officer, in my view was an honest and reliable witness. He was frank in his evidence about what he could remember of the incident and what he could not remember. He did not seek to embellish his evidence at all or endeavour to construct what it was that he could not remember. He was frank about what he could not remember. He was an independent witness who had no bias or personal agenda and was disinterested, to use that word in its neutral sense, in the outcome of the proceedings before the court.
In my view he was only relating what he saw and heard from his actual recollection. He was sober at the time of the incident. He was acting in the course of his professional duties so his recollection is not impeded by the consumption of alcohol or anything of the like.
His evidence was clear and responsive, providing detail consistent with a solid recollection of the incident and the surrounding circumstances. His demeanour in court was convincing. He was cross-examined on his statements to police but in so far as I can see there was no material inconsistency between his evidence in court and what he had provided in his statements.
[2] Magistrate’s reasons, [21]-[23].
Counsel for the appellant in his written and oral submissions offered a number of criticisms of Mr Jacobs’ evidence and I have carefully considered all of these matters. I have come to the conclusion that these matters, when correctly understood in the context of all of the relevant evidence, do not impinge on the reliability of the evidence of Mr Jacobs or suggest that the Magistrate was in error in taking the view of his evidence expressed above.
The evidence of the appellant
The Magistrate took an unfavourable view of the evidence of the appellant. His Honour stated:[3]
The defendant demonstrated a volatile and aggressive demeanour in giving evidence. He exhibited a similar but less extreme version of his demeanour which is apparent in the recorded interview. He would try to make a point by becoming angry and aggressive. Even in evidence-in-chief he became aggressive. But more particularly, the account in his record of interview was internally inconsistent, sometimes contradictory. He begins in the record of interview by blaming his friend Jerry who ‘decided to be a bit of a hero. Fucking started hitting people. He’s a fucking wanker’. Then he totally contradicted that later by saying ‘Look mate all I did was have some guy come at me alright. He swung the first hit at my mate’, that’s Jerry, ‘my mate retaliated because he was probably frightened as well’.
At one stage in the record of interview he denied hitting anyone. Later he said ‘I’ll be fucked if I let some guy hit me before I hit him mate’ and then later says that he was acting in self-defence.
His evidence in court was inconsistent with his recorded interview. In court he said that the fight broke out between Jerry and others outside the bistro door, he backed himself into a corner near the bottle shop to protect himself and stay out of trouble and that Benton came at him while he was in that position. There was nothing in the record of interview of having [taken] such a defensive stance and no mention of backing into a corner for protection to avoid a fight with others. He claims he told the police at the time just after he was arrested. That was not put to the police and I reject that aspect of his evidence as contrived.
In court the defendant describes Benton as raising his right fist to waist or chest level. In the record of interview he demonstrates Benton with his hand and his fist right over his head. In court the defendant described the person Jerry was fighting as Benton’s cousin Riley and then it was Benton who approached him while he was standing in the corner. His explanation in the recorded interview at line 314 and following suggests that the person he hit was the same as the one who was in the fight with his friend Jerry.
[3] Magistrate’s reasons, [24]-[27].
It was not submitted that the Magistrate misdirected himself in the above passage or that the Magistrate took a fundamentally incorrect approach to the evidence of the appellant on the appeal. I consider that his Honour’s criticisms were well founded.
The Magistrate’s findings of fact
The Magistrate proceeded to make the following findings of fact:[4]
In all I found the defendant to be an unreliable witness and I reject his evidence entirely where it conflicts with that of Jacobs and that of Benton. There is no issue of self-defence arising on Jacobs’ evidence. On his account the two were about 10 m apart. The car park incident occurred well after the fight outside the bistro had been broken up. Both Benton and the defendant were mouthing off. The defendant then walked across to Benton. Benton made no aggressive or threatening gesture and the defendant punched Benton in the face immediately on arriving and Benton fell backwards hitting his head on the ground. The defendant then ran off before being apprehended by police who happened to be nearby.
As I have rejected the defendant’s evidence completely no issue of self-defence arises. To put it another way the evidence of Jacobs disproves beyond doubt any suggestion of self-defence raised by the defendant. I find that the defendant punched Benton in the face without warning following a verbal exchange between the two. I find the charge proven.
[4] Magistrate’s reasons, [28]-[29].
Consideration of the appeal
The Magistrate had the advantage of hearing and seeing the witnesses but, in any event, I can see no reason to differ with his Honour’s assessment of the witnesses, which appears completely in accord with the evidence and exhibits.
The Magistrate’s findings and conclusions are well supported by the evidence. His Honour has correctly addressed the asserted defence of self-defence and has rightly rejected that defence in the circumstances of this case; no reason for me to take a different view has been demonstrated. I consider that none of the grounds of appeal, taken singly or cumulatively, have any merit. I do not hold a doubt as to the guilt of the appellant.
Disposition of the appeal
I grant the necessary extension of time within which to appeal but I dismiss the appeal.