Police v Kyriacou
[2009] SASC 66
•6 March 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v KYRIACOU
[2009] SASC 66
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
6 March 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
EVIDENCE - WITNESSES - IN GENERAL
Respondent was convicted by a Magistrate of one count of assault - act constituting assault consisted of making threatening gesture to complainant - prosecution did not call all eyewitnesses - respondent appealed to a single Judge of this Court on the ground that the Magistrate erred in failing to draw an inference that the witnesses who were not called would not have given evidence that assisted the prosecution case - Judge determined that Magistrate should have entertained reasonable doubt as to respondent's guilt.
Held: appealed allowed - it was reasonably open to the Magistrate to find the charge proved beyond resonable doubt. Magistrate's reasons adequately explained reason for verdict - Magistrate's reasoning was clear - Magistrate not required to make findings on every disputed fact.
Application of the principle in Jones v Dunkel discussed.
Criminal Law Consoldiation Act 1935 (SA) s 39; Magistrates Court Act 1991 (SA) s 42, referred to.
Jones v Dunkel (1959) 101 CLR 298, distinguished.
Azzopardi v The Queen (2001) 205 CLR 50; Bandi v Mingot (1976) 12 ALR 551; Blatch v Archer (1774) 1 Cowp 63; Dyers v The Queen (2002) 210 CLR 285; Longman v The Queen (1989) 168 CLR 79; O'Donnell v Reichard [1975] VR 916; Payne v Parker [1976] 1 NSWLR 191; R v Apostilides (1984) 154 CLR 563; R v Buckland [1977] 2 NSWLR 452; R v Newland (1997) 98 A Crim R 455; R v OGD (1997) 45 NSWLR 744; R v Riscuta; R v Riga [2003] NSWCCA 6; Ratten v The Queen (1974) 131 CLR 510; Richardson v The Queen (1974) 131 CLR; RPS v The Queen (2000) 199 CLR 620; Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Spence v Demasi (1988) 48 SASR 538; Taylor v Hayes (1990) 53 SASR 282; Tims v Police [2008] SASC 141; Weissensteiner v The Queen (1993) 178 CLR 217; Whitehorn v The Queen (1983) 152 CLR 657; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, considered.
POLICE v KYRIACOU
[2009] SASC 66Full Court: Gray, Sulan and Kourakis JJ
GRAY J
This is an appeal from a decision of a judge of this court allowing an appeal from a magistrate.
Jack Kyriacou, the defendant and respondent, was charged with the offence of assault. Following a trial before a magistrate, he was convicted. His appeal to a judge of this court was allowed, principally on the basis that the magistrate failed to draw a Jones v Dunkel inference against the prosecution. The defendant submitted that there were a number of witnesses to the alleged assault whom the prosecution failed to present as part of its case. The Judge on appeal reasoned that this failure allowed the drawing of an inference that those witnesses could not have assisted the prosecution case and as a consequence concluded that there was a reasonable doubt about the defendant’s guilt.
Sulan J in his reasons for judgment has reached the conclusion that the appeal should be allowed and that the conviction recorded by the magistrate should be restored. I agree with his conclusion and the orders that he proposes. I respectfully adopt his resume of the history of the matter and of the trial evidence. I agree with his reasons. However I wish to add my own observations with respect to the proper approach to be taken in the circumstances of the present proceeding, to the drawing of a Jones v Dunkel inference.
The adversarial system leaves to the parties the responsibility for determining the ground upon which to contest an issue, the witnesses to be called and the questions to be asked. This is subject to duties to the court, the rules of evidence and the overriding obligation of the judge to ensure fairness.[1] The system necessarily assumes subject to the foregoing, that parties may withhold evidence, decline to ask certain questions, or not call witnesses where to do so is to their advantage and despite the fact that such witnesses or evidence may assist the court.[2] It is further assumed that the parties know the evidence that a particular witness may or may not give and thus decide whether or not to call that witness or ask particular questions from an informed position.
[1] Ratten v The Queen (1974) 131 CLR 510 at 517.
[2] Payne v Parker [1976] 1 NSWLR 191 at 194.
It is accepted that a trier of fact will weigh all evidence according to the proof which it is within the power of one side to have produced and in the power of the other to have contradicted.[3] The trier of fact may in certain circumstances draw an inference adverse to a party who does not give evidence, ask certain questions, or call a witness who it is expected may give material evidence for that party on an issue in dispute.[4] These principles were discussed in Weissenstener[5] where Mason CJ, Deane and Dawson JJ observed:
The reasoning process whereby the failure of a party to give or to call evidence is taken into account in evaluating evidence which is before the court has long been recognized by the law and is not confined to the criminal law. In Blatch v Archer Lord Mansfield observed: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
And in R v Burdett, a case which was decided before an accused could give evidence on his or her own behalf, Abbott CJ said: "In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?"
[3] Blatch v Archer (1774) 1 Cowp 64 at 65; 98 ER 969 at 970; Weissensteiner v The Queen (1993) 178 CLR 217 at 225. A contemporary example of this is to be found in the Longman warning ; see Longman v The Queen (1989) 168 CLR 79
[4] Jones v Dunkel (1959) 101 CLR 298; Bandi v Mingot (1976) 12 ALR 551; Weissensteiner v The Queen (1993) 178 CLR 217: RPS v The Queen (2000) 199 CLR 620: Azzopardi v The Queen (2001) 205 CLR 50.
[5] Weissensteiner v The Queen (1993) 178 CLR 217 at 225. (Footnotes omitted)
The drawing of one particular inference has been labelled as the Jones v Dunkel[6] inference. Sulan J has traced the history of Jones v Dunkel which I respectfully adopt.
[6] Jones v Dunkel (1959) 101 CLR 298.
In Brandi v Mingot[7] Gibbs ACJ, Stephen, Mason and Aickin JJ referred to the following observations from O’Donnell v Reichard[8] as correctly characterising this inference:
…where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case.
[7] Bandi v Mingot (1976) 12 ALR 551 at 559.
[8] O’Donnell v Reichard [1975] VR 916 at 929.
However their Honours held that the inference could not be elevated to a conclusion that the absent witness’s evidence would have exposed facts unfavourable to the case of the party failing to call that witness. Rather, the inference was limited to concluding that the absent witness’ evidence would not have assisted the case of the party who would normally have been expected to have called that witness.
In Weissensteiner Mason CJ, Deane J and Dawson J, explained the rationale behind the rule:[9]
…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
[9] Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228.
In Buckland Street J commented on the use that may be made of the inference: [10]
The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness…. At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party.
[10] R v Buckland [1977] 2 NSWLR 452 at 458.
Although these processes of reasoning identified in Jones v Dunkel are applicable both to criminal and civil trials,[11] in a criminal trial the general rule has been established that it is inappropriate to draw such an inference against either the prosecution or the defence. It has been said that the propriety of drawing such inference must be considered in the light of the burden of proof, the right to remain silent, and the duties of the prosecutor.[12]
[11] Weissensteinr v The Queen (1993) 178 CLR 217 at 225; Newland (1997) 98 A Crim R 455 at 456; R v OGD (1997) 45 NSWLR 744 at 752.
[12] RPS v The Queen (2000) 199 CLR 620 at [28]-[29] per Gaudron A-CJ, Gummow, Kirby and Hayne JJ; Azzopardi v The Queen (2001) 205 CLR 50 at [64]; Dyers v The Queen (2002) 210 CLR 285 at [9]-[10].
Consideration of the burden of proof and the right to remain silent has led to the conclusion that as a general rule a trial judge should not direct the jury that an accused is expected to give or call evidence and that the failure to do so where the prosecution case calls for an answer gives rise to an inference that neither the witness or the accused could assist the accused’s case.[13] To do otherwise undermines the burden of proof and the right to silence. It is to be emphasises that this is only a general rule. However, it has been noted that exceptions to this general rule will be rare.[14]
[13] Dyers v The Queen (2002) 210 CLR 285 at [5]; Azzopardi v The Queen (2001) 205 CLR 50 at [64].
[14] Weissensteiner v The Queen (1993) 178 CLR 217; Azzopardi v The Queen (2001) 205 CLR 50 at [64].
Consideration of the prosecutor’s duty to call all witnesses who may give material evidence on an issue in dispute, irrespective of whether such evidence is or is not favourable to the prosecution,[15] has led to the conclusion that as a general rule a trial judge should not direct the jury that an accused would be expected to call the witness. If the witness could give material evidence then the prosecutor is duty bound to call that person.
[15] Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 294; Richardson v The Queen (1974) 131 CLR 116 at 119, Whitehorn v The Queen (1983) 152 CLR 657 at 663-4, 674-5; R v Apostilides (1984) 154 CLR 563 at 575.
Having regard to the content of the prosecutor’s duty to call all witnesses who may give material evidence on an issue in dispute. Gaudron and & Hayne JJ in Dyers observed: [16]
…as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[16] Dyers v The Queen (2002) 210 CLR 285 at [6].
It has been pointed out that this statement is no more than obiter.[17] However in my view, as a general rule it is correct. If a prosecutor does comply with his or her duty, no reason arises to give a Jones v Dunkel direction. If a prosecutor does not comply with his or her duty then, generally speaking, the opportunity to give a Jones v Dunkel direction is enlivened. Having said that, the direction should not be given without the trial judge first inquiring of the prosecutor as to why he or she has not called a witness who it is expected can give material evidence on a fact in issue.[18]
[17] R v Riscuta; R v Riga [2003] NSWCCA 6 at [99]-[103] per Heydon JA, with whom Hulme J and Carruthers AJ.
[18] Dyers v The Queen (2002) 210 CLR 285 at [17]; R v Apostilides (1984) 154 CLR 563 at 575.
A Jones v Dunkel inference is only available where all preconditions necessary to it operating as a logical conclusion to be drawn from the absence of the witness are met. That is, it must be within the power of the particular party to call the witness, it must be natural for the party to call the witness in that the witness would ordinarily be expected to shed light on the issue favourable to the party, the witness must be one whose evidence is not unimportant, cumulative or inferior to what has already been adduced, the witness must not be equally available to both parties, and there must not be an obvious or proved, and satisfactory, explanation for the failure to call the witness.[19]
[19] Wigmore on Evidence, 3rd Ed Vol II para 285-289; J D Heydon, Cross on Evidence, 6th Ed, [1215]-[1219]; Spence v Demasi (1988) 48 SASR 538 at 547-8; Payne v Parker [1976] 1 NSWLR 191 at 201-202 per Glass JA.
In Dyers Gaudron and Hayne JJ discussed the obligation of the prosecution with respect to the evidence to be adduced at trial. In this respect they observed:[20]
As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.
[20] Dyers v The Queen (2002) 210 CLR 285 at [17]. (Footnotes omitted)
In the present proceeding the prosecution presented the victim of the assault and two eyewitnesses as witnesses for the prosecution. In my view the prosecution in the circumstances of this trial, a summary proceeding, was under no obligation to call every person present in the vicinity who may give material evidence on an issue in the trial. This is particularly so in circumstances where a number of eyewitnesses were called and gave evidence. There was no request by the defence that the absent witnesses be called as part of the prosecution case. There was no request by the defence that the absent witnesses be presented for cross examination. There was no application by the defence that the magistrate invite the prosecution to consider calling the absent witnesses. There was no material proffered either at trial or at the appeal to suggest that the absent witnesses could give evidence that would resolve any contentious issues arising at the trial.
Even assuming in the present proceeding that it was appropriate to draw an inference that the evidence of the witnesses who were not called would not have assisted the prosecution case, it would be incorrect to reason that as a result the prosecution had failed to prove its case beyond reasonable doubt.
It is important to recognise that an adverse inference drawn from the failure of a party to give evidence or to call a witness is an inference drawn as part of the process undertaken by the trier of fact in reasoning to a conclusion. In the context of a jury trial, therefore, it is not for the judge to direct a jury that they draw such an inference. The trial judge may, however, comment upon the evidence. In doing so the judge may tell the jury that they can, should they so choose, draw an inference adverse to an accused or the prosecution on account of their failure to call a particular witness.[21]
[21] Azzopardi v The Queen (2001) 205 CLR 50 at [49]-[50].
The correct position is that the trier of fact would have to weigh all the evidence led in the trial and to have regard to all relevant inferences that may be drawn in deciding whether the charge had been proved.
Conclusion
I would allow this appeal. I would restore the order of the Magistrate. I agree with the Orders proposed by Sulan J.
SULAN J: This is an appeal against a judgment of a single Judge of this Court allowing an appeal from a Magistrate who found the respondent guilty of assault. In short, the respondent threatened the victim by approaching her with a clenched fist and abusing her, thereby resulting in her being in fear. The Magistrate recorded a conviction against the respondent and released him upon the respondent entering into a bond in the sum of $200 to be of good behaviour for a period of two years, and to appear before the Court for sentence if he failed to comply with the conditions of the bond. The Judge set aside the conviction and ordered a retrial before a different magistrate.
The appellant appeals that Judge’s decision and seeks orders that the conviction and sentence imposed by the Magistrate be restored. In allowing the appeal, the Judge considered that the failure of the prosecution to call witnesses who were present at the time of the incident led to an inference that their evidence could not assist the prosecution case. The Judge concluded that failure, coupled with inconsistent evidence of the witnesses who gave evidence, should have caused the Magistrate to entertain a reasonable doubt about the guilt of the respondent.
The appeal raises questions of the application of the principle in Jones v Dunkel[22] and whether the Magistrate was in error in concluding that the case against the respondent had been proved beyond reasonable doubt.
[22] (1959) 101 CLR 298.
For the reasons which follow, I would allow the appeal and order that the conviction and sentence be restored.
Facts
The incident occurred at St Basil’s Nursing Home at St Peters on 27 November 2005. The respondent gave evidence and denied the allegations. Three eyewitnesses gave evidence. There were differences in their recollection of the events
On 27 November 2005, the respondent was visiting his mother at St Basil’s, where she is a resident. She shared a room with two other residents, Ms Hope Cooke and Ms Helen Kabouris. Both the respondent’s mother and Ms Kabouris suffer from dementia. There was no evidence about the state of Ms Cooke’s health.
Upon entering the room, the respondent noticed that Ms Cooke’s walking frame was wedged between her bed and his mother’s bed. He became angry and threw the walking frame out of the room and into the hallway. The noise of the walking frame being thrown into the hallway attracted attention. Ms Catherine Sheean, Dr Nishant Hurria, Mr Peter Zientara, Mr Theo Fontoglier and Ms Martine Smith, all staff members, came to the room to investigate. Ms Sheean is a registered nurse. The other staff members were care workers at St Basil’s at the time of the incident. Ms Kabouris and her two sons were also present. Ms Sheean, Dr Hurria and Mr Zientara gave evidence at the trial.
Ms Sheean said that, when she arrived, the respondent was standing next to his mother’s bed. She denied that he was feeding his mother at the time. She said that Ms Cooke was on the floor on her hands and knees crying and claiming that the respondent had pushed and hit her. She said that the respondent told Ms Cooke to “shut up”, and referred to her as a “liar” and a “fucking bitch”. He also told Ms Cooke that she should ‘go elsewhere’. Ms Sheean told the respondent that Ms Cooke was not going anywhere, as the nursing home was where she lived. She then helped Ms Cooke stand up and led her out of the room. The four other carers left the room with her.
Ms Sheean went to her office and consulted with her supervisor. They decided that the respondent should be asked to leave. She returned to the room, along with the four carers, and asked him to leave. She said that she was calm and polite. The respondent replied, “I’m not fucking leaving. I want to feed my mother”. He repeatedly made similar comments. Ms Sheean said that he then approached her with a raised clenched fist and said, “I’m going to fucking hit you, you bitch”. She said that he held his fist approximately 15 centimetres from her face. He repeatedly made comments to the effect of, “I’m going to fucking hit you”. One or more of the staff members present told the respondent not to hit Ms Sheean. The threat to hit her, coupled with the raising of his fist, is the conduct which amounted to the assault.
Immediately following the incident, Ms Sheean and the four staff members left the room. The police were called and the respondent was escorted from the premises.
Dr Hurria, Mr Zientara and the respondent each gave evidence. Senior Constable John Anderson was called. His evidence related to removing the respondent from the nursing home premises and taking statements from the witnesses.
Dr Hurria said that when he arrived in the room, the respondent was feeding his mother. Ms Cooke was sitting on the end of her bed crying and claiming that the respondent had pushed her. The respondent claimed that Ms Cooke was lying. He was swearing at her. Dr Hurria said that Ms Sheean told him to stop behaving in that manner. The respondent continued to shout. She then asked him to leave, but he refused. He was yelling and abusive towards Ms Sheean. Dr Hurria said that, after asking the respondent to leave, Ms Sheean left to speak to her supervisor. She returned after five minutes. She said to the respondent, “I ask you to leave the premises”. This appeared to further anger him, and he raised his fist towards her while continuing to yell abuse at her. Dr Hurria said that the respondent was standing about 30 to 40 centimetres from Ms Sheean. He referred to the respondent waving his first in a threatening manner and using abusive language. He was not specific about any threat that was uttered. In evidence‑in‑chief, he said:[23]
[23] Appeal Book, 25-6.
Q.She again asked Mr Kyriacou to leave the premises and what happened then.
A.He got really angry and he raised his fist and he was still yelling and being abusive and this time to Cathy.
Q.When you say he raised his fist could you demonstrate to the court how he actually did that.
A.He raised his hand clenching his fist.
Q.Clenching his hand.
A.Yes.
HIS HONOUR
Q.So you are indicating with your right hand raised to about head height, is that right.
A.Yes. He was just standing about say 30 to 40 cms from Cathy but he didn’t hit her but he threatened to hit her.
XN
Q.What do you mean exactly when you say he threatened to hit her. What did he do.
A.Means he just stopped like that (INDICATES). Raised his fist but he actually didn’t hit her and –
Q.At the time that Mr Kyriacou did that was he standing still or was he moving at all.
A.I can’t really say he just did that and she was just next to him and he just raised his fist and suddenly he stopped that’s what I can remember.
Dr Hurria did not give evidence of the exact words used by the respondent when he threatened Ms Sheean. He denied saying anything to the respondent, and also denied that anyone else had said anything to him along the lines of ‘don’t hit her’. In cross-examination, Dr Hurria did not agree the respondent was holding a spoon in one hand and a cup in the other hand. He said that, prior to the respondent threatening Ms Sheean, he had put the food on to a tray and was not holding anything.
Mr Zientara said that, as he and Ms Smith were investigating the loud noise caused by the walker being thrown into the hallway, he heard a raised voice say, “You’re a fucking liar”. There was yelling coming from the room. When Mr Zientara and Ms Smith arrived in the room, Ms Sheean, Dr Hurria and Mr Fontoglier were present. The three residents, Ms Kabouris’ two sons and the respondent were also in the room. Mr Zientara was not able to recall if the respondent was feeding his mother when Mr Zientara entered the room. Ms Cooke was sitting on her bed crying. She said that she had been pushed over. Ms Sheean told the respondent that his behaviour was inappropriate and that he had to leave. He responded by saying, “No, I’m not going to leave, I’m going to fucking feed my mother”. The respondent raised his arm in a threatening and extremely aggressive manner and lurched towards Ms Sheean, who retreated backwards. Mr Zientara described the respondent raising his arm up as if he was going to punch Ms Sheean. This forward movement may have put the respondent approximately four feet from Ms Sheean, who retreated. Ms Sheean then left the room. While the incident was taking place, Mr Zientara said that he did not say or do anything, he simply observed. He said that Mr Fontoglier may have said words to the respondent to the effect of “calm down” or “take it easy”, but nothing further. In cross‑examination, when it was suggested to him that the respondent did not raise his right hand in a clenched first, he responded that he saw that occur.
The respondent gave evidence that he went to St Basil’s on 27 November 2005 to feed his mother. He had been attending the nursing home each day, as his mother was unable to feed herself. When he arrived, his mother was in bed. He saw Ms Cooke’s walking frame jammed between his mother’s bed and Ms Cooke’s bed. He said that previously he had complained to staff at St Basil’s about Ms Cooke leaving her walking frame between the beds. He threw it into the hallway. When he first entered the room, Ms Cooke was sitting on her bed. He drew the curtain around his mother’s bed immediately after throwing the walking frame into the hall. He denied saying anything to Ms Cooke. Once he had thrown the walking frame into the hall, he sat down and began feeding his mother, what he referred to as, a “slush drink”. This is a water and jelly mixture. He used a spoon held in his right hand to feed his mother. He held the cup containing the slush drink in his left hand.
The respondent said the first person to enter the room after he had thrown the walking frame into the hallway was Mr Fontoglier, who arrived within 15 or 20 seconds of the frame being thrown. He asked the respondent what had happened, and the respondent replied, “I don’t want to talk about it”. Dr Hurria then arrived, closely followed by Ms Sheean. Mr Zientara and Ms Smith were the last to arrive. The respondent said that at this time he assumed Ms Cooke was still sitting on her bed, where she had been when he entered the room. The first thing he remembered Ms Sheean saying to him was that he had to leave. He responded by telling her, “I’m not going anywhere until I feed my mother and give her her medication”. Ms Sheean continued to ask him to leave, in a manner which he described as intimidating. He said that he became abusive and was swearing at her, telling her that he was not going to leave. He admitted repeatedly telling her to “fuck off” and “get fucked”. Ms Sheean remained in the room for a couple of minutes, then left. She returned and again told him to leave. He was still feeding his mother the slush drink. The respondent told Ms Sheean, “Fuck off, I’m not going anywhere”. He denied ever raising either of his hands to Ms Sheean, and said that he was holding the slush drink and spoon at all times while she was in the room. He accused the carers who had given evidence of ganging up on him and concocting a false story.
Neither Mr Fontoglier nor Ms Smith were called to give evidence. Ms Kabouris’ two sons were not called. Ms Janni Overduin, the manager of the home, from whom a statement was taken, was not called. There is no suggestion that she was an eyewitness to the incident.
The respondent had been unhappy for some time with the way he perceived his mother was being treated at St Basil’s. He had complained previously about the manner in which his mother had been treated.
The magistrate’s findings
Counsel for the respondent submitted that the Magistrate could not be satisfied of the respondent’s guilt on the prosecution evidence. He drew the Magistrate’s attention to the differences in the evidence of Ms Sheean, Dr Hurria and Mr Zientara, and submitted that the Magistrate could not accept Ms Sheean’s account of what occurred in the room. It was further submitted that the Magistrate should give himself a direction of the type described in Jones v Dunkel because of the failure of the prosecution to call Mr Fontoglier, Ms Smith and the two sons of Ms Kabouris to give evidence. He submitted that the Magistrate ought to draw the inference that, had those witnesses been called, they would not have advanced the prosecution case.
In a carefully reasoned judgment, the Magistrate stated:[24]
[24] Appeal Book, 79-80 [15] – [16].
Mr Edwardson submitted that I should give myself a “Jones v Dunkel” direction concerning the failure of the prosecution to call as witnesses, Theo, Martine Smith, and the two sons of Helen Kabouris. He argued that it was incumbent upon the prosecution to call these people as they were potential eye witnesses. There had been no explanation given as to why they had not been called as witnesses. In those circumstances, Mr Edwardson argued, I ought to direct myself that it was open to infer that those persons’ evidence would not have helped the prosecution case. It followed from that submission, that Mr Edwardson invited me to take that inference into account when assessing the prosecution case and whether the charge has been proved beyond a reasonable doubt.
Jones v Dunkel Direction
The rule was explained in O’Donnell v Reichard (1975) VR916 [sic] (Full Court) by Newton and Norris JJ. After referring to Jones v Dunkel (1959) 101 CLR 298 they said (at 929)
“The law might be stated to be that where a party without explanation fails to call as a witness he might reasonably expected [sic] to call, if that persons’ evidence will be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that persons evidence would not have helped that party’s case. If the jury draw that inference, then they may properly take into account against the party in question for two purposes, namely:
(a) In deciding whether to accept any particular evidence, which has been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b) In deciding whether to draw inferences of fact which are open to them upon the evidence which has been given, again in relation to matters with respect to which a person not called as a witness could have spoken.”
Having considered a number of authorities, the Magistrate said:[25]
In my view, the persons Theo, Martine Smith, and the two sons of Helen Kabouris are persons who it could ordinarily be expected the prosecution would call. Each of those people could reasonably be expected to give evidence which would elucidate the matter. There has been no explanation for the failure to call these people. Accordingly, I give myself a direction in the terms enunciated in O’Donnell v Reichard above.
It is obvious from the direction that the inference is not one which must automatically be drawn. It depends very much on the circumstances. In the present case, I note that the investigating police only took statements from the witnesses called, and one other who does not appear to have been an eyewitness. To my mind, it is not a necessary inference that Theo, Martine Smith and the two sons of Helen Kabouris would not have assisted the prosecution case. I therefore decline to draw that inference. Should I be wrong in that conclusion I note the remarks of Street CJ in R v Buckland (1997) 2 NSWLR 452 at 457 concerning the effect of such an inference. His Honour stated:
“At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him.’
Had I drawn such an inference it would not have altered the findings which follow.
I have had regard to each of the criticisms made by Mr Edwardson of the prosecution witnesses. It is true there are differences between their various accounts as to what was said, relative positions, and estimates of distances. However, it seems to me that these differences are explicable by reference to the perspective, involvement and recollection of the individual witness. Each of the witnesses maintained under cross‑examination that the defendant had raised his fist to Ms Sheean in a threatening manner. Two of the witnesses describe this action as accompanied by a forward movement of the defendant. Dr Hurria, was not specifically questioned on this topic but did say that having raised his fists the defendant “stopped”. His evidence is not inconsistent with the forward movement as described by the other two witnesses. I found the prosecution witnesses credible and truthful, and I find beyond reasonable doubt that the defendant did raise a clenched fist in a threatening manner to Ms Sheean.
[25] Appeal Book, 81-2 [23] – [25].
The Magistrate concluded that the respondent had been a “most unsatisfactory witness”.[26] He found that some of his evidence was remarkable and unbelievable. He rejected his version of events as a reasonable possibility. Accordingly, he convicted the respondent of assaulting Ms Sheean.
[26] Ibid, 82 [26].
The appeal judge’s findings
The respondent appealed. Counsel for the respondent submitted that the failure of the Magistrate to draw an inference that the evidence of each of the witnesses who were not called would not have helped the prosecution case is an error.
A further ground of appeal is that, had the Magistrate drawn such an inference, the Magistrate ought to have found that the prosecution had not proven the charge beyond reasonable doubt.
In her reasons, the Judge said:[27]
The learned magistrate presumably declined to draw the inference against the prosecution on the basis of the strength of the prosecution case having dismissed the inconsistencies between the evidence of the various witnesses as explicable by reference to their respective involvement and recollection. Some of those inconsistencies were however significant, such as the distance between Ms Sheean and the appellant at the relevant time, the use of threatening words by the appellant and whether the appellant was in the process of feeding his mother.
In this case the other witnesses to these events might have resolved some of the inconsistencies arising in the evidence. I therefore consider that the failure by the prosecution to call them should have caused the magistrate to entertain a reasonable doubt about the guilt of the appellant.
[27] Ibid, 91 [17] - [18]; [2008] SASC 257, [17] – [18].
The Judge found that the Magistrate erred both in declining to draw the inference, and in finding that the prosecution had proved the charge beyond reasonable doubt.
The Judge allowed the appeal, set aside the conviction and quashed the sentence. She ordered that the matter be referred back to the Magistrates Court for re-hearing before another magistrate.
Grounds of appeal
The appellant appeals against the Judge’s decision on the following grounds:
1. the learned appeal Judge erred in finding that the failure to call certain witnesses should have caused the learned Magistrate to entertain a reasonable doubt about the guilt of the respondent;
2. the learned appeal Judge erred in finding that the learned Magistrate did not explain why he refused to draw any adverse inference against the prosecution; and
3. the learned appeal Judge erred in finding that the learned Magistrate had completely accepted the evidence of the complainant when his reasons disclose the basis of the finding of guilt did not include all of the conduct of the respondent as alleged by the complainant.
Counsel for the appellant acknowledged that Ground 1 constitutes the primary ground of appeal, with Grounds 2 and 3 described as being limbs of that primary argument.
The nature of an appeal pursuant to s 42 of the Magistrates Court Act 1991
An appeal pursuant to s 42 of the Magistrates Court Act 1991 from a decision of a magistrate is an appeal by way of re-hearing. The appellate court must scrutinise and evaluate the evidence for itself in considering the appeal. In examining the evidence, it is necessary for the appeal court to be aware that it does not have the advantage of having heard and seen the witnesses.[28] The appellate court must give effect to its own conclusions on the evidence. The Judge proceeded upon this basis.
Jones v Dunkel and its application
[28] Taylor v Hayes (1990) 53 SASR 282, 291; Tims v Police [2008] SASC 141 at [26].
Where a party to proceedings has not called a witness that party might be expected to call, the trier of fact may be invited to infer from that failure that nothing that witness may have said would assist the case of the party expected to call that witness. An invitation to draw such inference is frequently referred to as a Jones v Dunkel direction.
It is convenient to consider the circumstances of Jones v Dunkel, and how the principle for which it stands was developed by the High Court. The plaintiff’s husband was killed when his truck collided with another truck driven by the defendant. There were no other witnesses to the collision. The position of the two vehicles after the collision was observed by those who arrived at the scene, as was the condition of the road at the point at which the collision occurred. The majority of the High Court (Kitto, Menzies and Windeyer JJ) concluded that it was open on the facts, which included the observations of the position of the vehicles after collision, for a jury to have legitimately concluded that the defendant had driven negligently and, thereby, caused the death of the deceased driver. The defendant did not give evidence. After the trial Judge had completed his summing up, a juror asked whether there was significance to be attributed to the failure of the defendant driver to give evidence. The trial Judge told the jury that the fact that the defendant driver had not given evidence left them in the position that they could accept the facts given by the plaintiff as proved, and the question for them then was whether they thought that, on the proved facts, an inference of negligence ought to be drawn.
The majority members of the High Court considered that direction was incomplete and amounted to a misdirection. Kitto J said that, added to the direction that the trial Judge had given, he should have directed the jury:[29]
… that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put a true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus (the defendant) had gone into the witness-box his evidence would not have assisted the defendant by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff’s evidence.
[29] (1959) 101 CLR 298, 308.
Menzies J said:[30]
In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
[30] Ibid, 312.
Windeyer J said:[31]
Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows : “The failure to bring before the tribunal some circumstances, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.”
This is plain commonsense. If authority be needed, two passages from R. v. Burdett may be cited. Abbott C.J. SAID: “No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected.” and Best J. said: “Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probably, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just.” [citations omitted]
The rule was explained by Cox J in Spence v Demasi, as follows: [32]
The general rule is that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence, may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case … the circumstances must be such as to make it natural for the particular party to call a witness in question.
[31] Ibid, 320-1.
[32] (1988) 48 SASR 536, 547.
The application of the rule to criminal proceedings has been the subject of discussion by the High Court and, in particular, whether a Jones v Dunkel direction is appropriate when an accused has not called witnesses who might have supported the accused’s testimony, or where the accused has not given evidence when his evidence may have rebutted inferences to be drawn from evidence called by the prosecution.[33]
[33] See Weissensteiner v The Queen (1993) 178 CLR 217, 227-9; Azzopardi v The Queen (2001) 205 CLR 50; Dyers v The Queen (2002) 210 CLR 285; RPS v The Queen (2000) 199 CLR 620.
In Dyers v The Queen, Gaudron and Hayne JJ said:[34]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
[34] (2002) 210 CLR 285, [5] – [6].
McHugh J held a contrary view. He acknowledged that, in criminal cases, there is less scope than in civil cases for drawing an inference from an accused’s failure to call witnesses or tender documents, that those witnesses or those documents would not have assisted the accused’s case. Nevertheless, there may be circumstances in which it is appropriate to give a failure to call a witness direction. Callinan J, with whom Kirby J agreed, dealt with the principle in Jones v Dunkel insofar as the failure of the accused to call evidence, but did not refer to the position of the prosecution. He said:[35]
The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial. This is not an exceptional case of the kind referred to by their Honours in RPS. There is no feature of it that takes it outside the general rule.
The first ground of appeal should therefore be upheld.
In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare. I need mention in relation to this ground one other matter only, and that is the appellant’s counsel’s acquiescence in the trial judge’s observations about the people who did not give evidence for the appellant. The trial took place before the decision of this Court in RPS. The appellant in any event takes no point about that acquiescence. It does not therefore stand as an obstacle to the upholding of ground one. Because the upholding of the first does not entitle the appellant to an acquittal it is necessary to consider the appellant’s other arguments. [citations omitted].
[35] Ibid, [121] – [123].
Counsel for the appellant contended that the general rule articulated by Gaudron and Hayne JJ in Dyers’ case was a correct statement of the law. He submitted that, before a court departs from this general rule and directs that an inference may be drawn against the prosecution as a result of a failure to call a witness who might be expected to have been called, it must be established that it was within the power of the particular party to call the witness; it must be natural for the party to call the witness in that the witness would ordinarily be expected to shed light on the issues favourable to that party; the witness must be one whose evidence is not unimportant, cumulative or inferior to what has already been adduced; the witness must not be equally available to both parties; and there must not be an obvious or satisfactorily proved explanation for the failure to call the evidence.
There is substance in the submissions of counsel for the appellant, although I do not accept that all the matters to which he refers are required to be established before the principle in Jones v Dunkel is applied. The matters to which counsel refers are relevant to the Court’s consideration whether to give a Jones v Dunkel direction. I observe the direction is simply a direction as to the process of reasoning open to a jury in arriving at its ultimate decision. I consider that the principle in Jones v Dunkel has limited application to criminal trials, and should rarely be given in respect of the prosecution’s failure to call witnesses. Insofar as its application in cases in which it is argued that the prosecution has failed to call a material witness, there are a number of factors to which a court should have regard before applying the principle.
First, the prosecution has a duty to call material witnesses. The prosecutor has a discretion as to what evidence will be adduced by the prosecution. The prosecutor, nevertheless, is under a duty to call all relevant witnesses or, if he has determined not to call a material witness, then that witness’s statement, if available, should be provided to the defence. Secondly, if no statement is available, then the identity of a potentially material witness should be provided to the defence and steps should be taken by the prosecution to make that witness available to the defence. Thirdly, it is open to defence counsel to ask the judge to make an inquiry of the prosecutor as to why the witness is not be called.[36] If an explanation acceptable to the court is given, then it is not appropriate for a Jones v Dunkel direction to be given in respect of the failure of the prosecution to call that witness. In deciding whether an explanation is acceptable, the court will have regard to the prosecutor’s discretion not to call a witness who the prosecutor considers is not honest or not reliable. A judge may direct the jury that the failure of a witness to have been called is a factor to which they are entitled to have regard when considering whether they are satisfied beyond reasonable doubt that the prosecution has proved its case.[37]
[36] Whitehorn v The Queen (1983) 152 CLR 657, 674-5 per Dawson J.
[37] R v Apostilides (1984) 154 CLR 563, 575.
The Magistrate had regard to the decision in Jones v Dunkel. He concluded that the persons who were present at the time of the incident who were not called by the prosecution were persons who it would ordinarily be expected that the prosecution would call. He considered that those persons could reasonably be expected to give relevant evidence. The explanation given by the prosecution for not calling the witnesses was that statements had not been obtained from them. The Magistrate correctly observed that the explanation alone is not a sufficient reason for not calling the witness. If a witness cannot be located and reasonable steps have been taken to find the witness, that may be a satisfactory explanation, but a mere failure to obtain a statement from a witness who was present and might have observed relevant events is not, of itself, a satisfactory explanation. It does not follow that any specific direction is required in the circumstances. Each case is to be considered on its own facts. It may be that it is obvious that the calling of additional witnesses will not assist either the prosecution or defence. It may be impractical to call further witnesses. There may be other reasons.
The Magistrate directed himself that it was open to draw the inference that the witnesses not called may not have assisted the case for the prosecution. He declined to draw that inference. He went further in concluding that, had he drawn such inference, it would not have altered his findings nor his conclusion that the case had been proved beyond reasonable doubt.
The Magistrate was satisfied beyond reasonable doubt on the evidence before him. He rejected the respondent’s account. It was open to the Magistrate to do so. No error has been demonstrated in the Magistrate’s reasoning.
The judge’s decision
The Judge took a different view and considered that there were significant inconsistencies between the witnesses on the issue of whether the respondent approached Ms Sheean with a clenched fist.
The appellant’s primary contention is that the Judge erred in finding that the failure by the prosecutor to call certain witnesses should have led the Magistrate to entertain a reasonable doubt about the respondent’s guilt. The Judge said:[38]
The learned magistrate presumably declined to draw the inference against the prosecution on the basis of the strength of the prosecution case having dismissed the inconsistencies between the evidence of the various witnesses as explicable by reference to their respective involvement and recollection. Some of those inconsistencies were however significant, such as the distance between Ms Sheean and the appellant at the relevant time, the use of threatening words by the appellant and whether the appellant was in the process of feeding his mother.
In this case the other witnesses to these events might have resolved some of the inconsistencies arising in the evidence. I therefore consider that the failure by the prosecution to call them should have caused the magistrate to entertain a reasonable doubt about the guilt of the appellant.
[38] Appeal Book 91, [17] – [18]; [2008] SASC 257, [17] - [18].
The Judge considered that the witnesses who had not been called by the prosecution may have been able to resolve the inconsistencies in the evidence of those witnesses who were called. I cannot agree. The Judge’s conclusion is speculative. The inconsistencies in the evidence will always be inconsistencies. The question is whether, despite the inconsistencies identified, the appellant has shown whether the Magistrate erred in concluding that the prosecution had proved the case beyond reasonable doubt. The fact that other persons who were present may or may not have given evidence about what occurred is but a factor to which the Court can have regard in deciding the ultimate question.
The Judge held that the failure of the prosecution to call the witnesses should have caused the Magistrate to entertain a reasonable doubt as to the guilt of the respondent. She referred to RPS v The Queen, in which Gaudron ACJ, Gummow, Kirby and Hayne JJ said:[39]
In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecution “has the responsibility of ensuring that the Crown case is presented with fairness to the accused” and in my cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused. [footnote omitted]
[39] (2000) 199 CLR 620, [28] – [29].
The Judge held that there were significant inconsistencies between the accounts given by the three eyewitnesses who were called. It followed that the Magistrate should have entertained a reasonable doubt. An analysis of the evidence of the witnesses who were called does not support the Judge’s conclusions.
Each witness called by the prosecution observed the respondent raise a clenched fist towards Ms Sheean. They each observed his aggressive and abusive attitude towards her. Dr Hurria said that when the respondent raised his fist, he threatened Ms Sheean. Any inconsistencies in the evidence might be expected in a case which relies upon a witness’s observations and subsequent recollection of an event of this kind. The Magistrate referred to the evidence and the inconsistencies in the differing accounts. Ultimately, he was satisfied beyond reasonable doubt on the evidence of the respondent’s guilt.
Findings in relation to the grounds of appeal
The Judge erred in finding that the appellant’s failure to call witnesses should have caused the Magistrate to entertain a reasonable doubt about the guilt of the respondent. The Magistrate directed himself correctly about drawing an inference against a party who has failed to call a witness that party might be expected to have called. Having considered the evidence given by those witnesses who were called, he declined to draw any inference against the prosecution. That course of action was open to him. The drawing of an inference against a party who has failed to call a witness that party might be expected to have called is discretionary, and must have regard to all of the facts and circumstances of the particular case. Put in another way, it was open to the Magistrate, having regard to the facts of this case and the way in which the trial was conducted, to take the view that the absence of any evidence from the other persons in the room did not detract from the evidence of the prosecution witnesses who were called. The Magistrate did not err in his approach.
Turning to the appellant’s claim that the Judge erred in finding that the Magistrate had completely accepted the evidence of Ms Sheean, the Judge said:[40]
It is implicit in the reasoning of the learned magistrate that in finding the charge proven he completely accepted the evidence of Ms Sheean, that is that the appellant lunged within 15 centimetres of her face whilst uttering a threat to hit her with other witnesses shouting at him to desist …
[40] Appeal Book, 90 [15].
The Magistrate said:[41]
I am satisfied beyond reasonable doubt the defendant intentionally raised a clenched fist to Ms Sheean, and that he accompanied that with a movement in her direction. I am satisfied beyond a reasonable doubt that he did so intending to raise a fear in her mind of imminent violence, and that she in fact feared imminent violence. I am also satisfied beyond reasonable doubt that Ms Sheean did not consent to this conduct. Accordingly, I return the verdict of guilty.
[41] Ibid, 82 [27].
The Magistrate made no finding that the respondent said that he was going to hit Ms Sheean. He made no findings about what may or may not have been said by the other carers who were present. It was open to the Magistrate to find the respondent guilty on the basis that he raised his fist towards her in a threatening manner. This conclusion does not require complete acceptance of Ms Sheean’s evidence.
Both Dr Hurria and Mr Zientara said that the respondent raised his fist at Ms Sheean in a threatening manner, and lunged towards her. Their evidence differed insofar as it described the relative position of the parties to one another and exactly as to what may have been said. Their evidence was consistent on the subject of the threatening gesture. The inconsistencies, which the Judge identified as the distance of the respondent from Ms Sheean when he raised his fist, and whether, prior to the incident the respondent was feeding his mother, are not so significant to justify the conclusion that the Magistrate was in error. The Magistrate’s conclusion that each of the witnesses accurately described the respondent raising his fist towards Ms Sheean and that he intended and did place her in fear justified his verdict that the respondent had assaulted Ms Sheean.
Inadequacy of reasons
Counsel for the respondent sought to attack the Magistrate’s reasons on the ground that he did not adequately explain his verdict. He argued that this was a further reason why the appeal Judge was correct in setting the Magistrate’s decision aside. Although it was not part of the respondent’s case before the Judge, this issue was raised in the respondent’s outline of argument. It was agreed by counsel for the appellant that the Court should hear argument on this ground and permit the appellant to file written submissions in reply.
The respondent argues that the Magistrate failed to adequately explain or analyse the differing accounts given by the witnesses called by the prosecution at trial. This criticism is both general, in terms of the Magistrate not explaining in sufficient detail how he reconciled the varying accounts given by the witnesses, and specific in that the respondent submits that the Magistrate made no finding in relation to the uttering of threats by the respondent. Counsel for the respondent contends that Ms Sheean’s evidence was that it was verbal threats from the respondent which caused her to fear that she would be struck. From this, the respondent argues that there was nothing in Ms Sheean’s evidence to support a finding that she feared imminent violence if the threats allegedly uttered by the respondent were not proved.
The appellant submits that the Magistrate gave adequate reasons in explaining how he had arrived at his verdict. In his written submissions, counsel for the appellant submits that the Magistrate accepted the prosecution witnesses and found them to be “credible and truthful”, as opposed to his characterisation of the respondent as “a most unsatisfactory witness”. Further, the Magistrate said that the evidential inconsistencies in relation to the distance between the respondent and Ms Sheean when he raised his fist were explicable by varying recollections of the witnesses, as well as their respective locations around the room. The appellant argues that this consideration is sufficient, and that the Magistrate was not required to enter into what was described by Kirby P in Soulmezis v Dudley (Holdings) Pty Ltd as:[42]
… a tedious examination or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.
[42] (1987) 10 NSWLR 247, 259.
The Magistrate summarised the evidence of each witness in his reasons and was alive to the various inconsistencies between the accounts given by the prosecution witnesses. He recorded that he found the prosecution witnesses to be credible and truthful whereas the respondent was unsatisfactory. The respondent’s evidence was rejected. While the Magistrate’s consideration of the inconsistencies between the evidence of the prosecution witnesses was brief, his reasoning is clear.
The respondent submitted that, absent an explicit finding in relation to the appellant uttering verbal threats against Ms Sheean, there cannot be a finding of assault. I do not agree. Both Ms Sheean and Dr Hurria gave evidence that the respondent threatened Ms Sheean.
The Magistrate, in a carefully reasoned judgment, concluded that the respondent moved in the direction of Ms Sheean with a raised clenched fist. He accepted the evidence of the prosecution witnesses that the respondent was abusive and aggressive. He concluded that the respondent intended to put Ms Sheean in fear at the time. There was sufficient evidence from which those conclusions were open. The Magistrate was not required to make findings on every disputed fact.
The respondent’s cross-contention in relation to the adequacy of the Magistrate’s reasons is rejected.
Order
The appeal should be allowed and the conviction and sentence entered by the Magistrate restored.
KOURAKIS J: I agree with the reasons of Gray and Sulan JJ. I would allow the appeal.
38
23
1