Police v Hendriksson No. Scgrg-99-811 Judgment No. S451

[1999] SASC 451

POLICE v HENDRIKSSON
[1999] SASC 451

Magistrates Appeal

1 Millhouse J.      The respondent, now 21 years old, was charged with two counts of damaging property and one of making a false report to the police, all on 9 September 1997.
2 The property damaged was the shop front windows of two chicken shops on the Magill Road.  The false report alleged is telling the police that he had been attacked with a knife and injured by a man, who with another man, had broken the windows, when in fact, he had cut his hands on the glass, having broken the windows himself.
3 The respondent worked at one of the chicken shops, the other was only 50 metres or so down the Magill Road.  His employer had had his window broken several times before.  One of them was before the respondent worked for him.  The last time was some six weeks before 9 September. 
4 The respondent told police the window was being broken every other night.  He said he resolved to try to stop this by keeping watch: he feared that if it went on his hours of work might be cut down.  He drove his car, in the small hours of the morning of 9 September, to the area and parked it in a side street running into Magill Rd on the opposite side to the shops.  From his position he could not actually see the window of his employer's shop.  He sat in the car with the window up.  He had brought with him a balaclava (to keep himself warm, he said) and a hammer (the learned Magistrate once called it a "sledge hammer".  The respondent said he took it from among his father's tools.  His father is an electrician.  The chances are it is not a sledge hammer) to use against anyone breaking the windows.  He heard a noise.  He got out.  He saw two men near the employer's shop.  The window was broken.  One of the men was running away.  The other, on his approach, attacked him with a knife and cut his hands.   That man, too, then ran away.
5 The learned Magistrate describes the respondent's account of events as "an inherently improbable story" and so it is.
6 The respondent found he had locked himself out of his car.  He telephoned his mother who came to collect him and took him to the Royal Adelaide Hospital to have his wounds treated.  She stayed with him for part of the time but left him to telephone the police as she was afraid the shop might be burgled.
7 A doctor treated the respondent.  He made a note that the respondent said his hands had been cut by glass.  An examination did not shew any glass fragments in the wounds.  The mother was adamant that he told the doctor he had been attacked by a knife.
8 The respondent left the hospital with his mother and went back to Magill Road where the police already were.  Glass fragments were all over the footpath in front of each shop.  The police found the hammer and the balaclava and seized them.  They were later tested forensically.
9 Having originally gone to investigate a stabbing, the police ended by suspecting the respondent himself had broken the windows.  Hence the charges.
10 At the hearing, several police officers, the doctor from the Royal Adelaide Hospital, two forensic people and others gave evidence for the prosecution.  The respondent did not give evidence but his mother did.
11 The learned Magistrate having given long reasons, found the respondent not guilty.  The police have appealed.
12 At first I thought the appellants had an impossible task. It is very difficult to upset findings of fact made at first instance especially when the Magistrate has preferred the evidence of one witness to that of others (Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 @ 479).
13 The learned Magistrate preferred the mother's evidence to that of the prosecution witnesses:-
"The defendant's mother was clearly a truthful witness whose recall of the material events was better than the recall of any of the prosecution witnesses.  Where her evidence conflicts with that of any other witness I prefer her evidence.  These events were unusual and once off events so far as she was concerned, and for that reason details remain clear in her memory whereas for other witnesses this was simply one more thing in a busy work period when they already had too much to do and their memories of details have quickly faded into oblivion."
14 I am not sure what evidence there is, if any, to support the Magistrate's saying, "whereas for other witnesses this was simply one more thing in a busy work period when they already had too much to do and their memories of details have quickly faded into oblivion".  On a consideration of the evidence, however, and hearing the persuasive arguments of Miss Jenny Lee-Justine for the appellant I have concluded that in this instance the appeal succeeds.
15 The Magistrate relies on the mother on two matters. 
16 The first is what her son told the doctor, that he was cut with a knife, not glass.  There are two reasons why I suggest the Magistrate should not have so confidently accepted the mother's evidence.  The first is that the mother acknowledged she was not with her son for the whole of the time he was with the doctor.  She went away to telephone the police.  She cannot therefore know what was said between her son and the doctor in her absence.  The second is that the doctor made notes.
17 This is from his examination-in-chief:-
"A.  ... I offered him admission, I remember him, and I remember him very clearly because I told him what happened because he did tell me on that occasion that - I said `How did it happen?' and he said - because it is relevant to the examination as well `Somebody smashing the glass'.  He requested me to see whether there was any glass.  I exposed the injury, the laceration.
Q.   What do you mean by that.
A.   Exposed means, that means you hold under the bright light, you just look at the wound and make sure there is no glass.
Q.   Who mentioned the word glass.
A.   I think the person, the patient.
Q.   Did you make a note of what he said.
A.   I have to go through my notes again.  Yes, I have written in here that he was driving home, shop being broken into by two persons, stopped the car and while walking into - while watching being stabbed with the glass into the dorsal.  He told me that he was being stabbed by glass - so he came to me.
...
Q.   Was the word `knife' mentioned by Mr Henriksson (sic) anywhere in your notes.
A.   No.  He told me it was the broken glass.
Q.   What is your practice with respect to note taking of people's comments that they make about their injuries.
A.   Obviously it was not a deep laceration of the hand, because if it was a deep laceration you can expect that, you can damage more tendons and you would probably go through the whole - through the tendon, that means a complete laceration, probably that was partial laceration.  I have written in here it was `small laceration' and again it was superficial.  I think that's as much as I can help you."
18 The Magistrate does not seem to have taken into account that the doctor made notes: she has simply assumed (on what evidence I know not) that he was too busy to remember (or I suppose to make an accurate note). 
19 I have an obligation, sitting on appeal, to undertake an independent examination of the evidence to make my own assessment of both the sufficiency and quality of the evidence.  Having done so, with regard to the mother's evidence I think there are real defects in the Magistrate's reasoning.
20 The second matter on which the Magistrate relies on the mother's evidence is with regard to the glass particles found by the forensic people on the respondent's clothing and the hammer, and the significance of the findings.  In the course of a long, and, to me, confusing consideration of the forensic evidence, the Magistrate finds it neutral:-
"In this case, the most that can be said about the forensic evidence is that it is circumstantial evidence which becomes equivocal when the whole of the evidence is examined.  Although it occupied a good deal of trial time, at the end of the day it is a red herring which is best ignored, ..."
21 The Magistrate made no finding as to whether the respondent's injuries were caused by a knife or broken glass.  Nor did she make a finding on the significance of the glass particles. I conclude therefore that the mother's evidence on these matters did not affect the Magistrate's decision, as the matters themselves did not influence her.
22 Miss Lee-Justine also complained that the learned Magistrate did not look at the prosecution evidence as a whole: she has merely looked at individual pieces of evidences: she has not seen the wood for the trees. The Magistrate seems to have given herself a "Chamberlain direction". The High Court in Shepherd v The Queen (1990) 170 CLR 573 corrected the misapprehension, arising from what was said in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 that every piece of circumstantial evidence must be proved beyond reasonable doubt before there can be a conviction. As Dawson J says (@ 579):-
"The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused."
And so here.
23 When one looks at the whole of the evidence (I leave out of consideration the forensic evidence) the case against the respondent is very strong indeed.  Why was he there at all?   What an extraordinary coincidence that he happened to be keeping guard on that very night - the first time in six weeks that the windows of his employer's shop had been broken!  That is only a beginning of pieces of circumstantial evidence against him.
24 From where his car was parked he could not see the chicken shop he was purporting to protect: he did not have a direct line of vision to it.  He was found with a balaclava.  His protection was a hammer, an implement ideally suitable for smashing windows.  The hammer had glass embedded in it.  Glass fragments from both chicken shops were found on his clothing although he purported never to have been near one of them.  In Chamberlain's case Gibbs CJ and Mason (@ 535) stress the importance of looking at the whole of the evidence:-
"Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.  It is well established that the jury must consider `the weight which is to be given to the united force of all the circumstances put together.'
...
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference."
25 Because I regard the learned Magistrate as being in error in her consideration of what the respondent told the doctor and because she seems to have failed to view the evidence as a whole I do not think her decision should stand.
26 During her argument I suggested to Miss Lee-Justine that the best she could hope for was a rehearing and she acknowledged that.  The appeal will be allowed and the matter will be sent back to the Magistrate's Court to be heard by another magistrate.

3