Police v Kyriacou

Case [2009] SASC 66

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 66

Full Court:   Gray, Sulan and Kourakis JJ

GRAY J

  1. This is an appeal from a decision of a judge of this court allowing an appeal from a magistrate.  

  2. 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…

Continue reading Police v Kyriacou

Sign in free to access the full text

Details
AGLC
Police v Kyriacou [2009] SASC 66
Case
[2009] SASC 66
Decision Date

CaseChat Overview and Summary

The case of Police v Kyriacou involved a respondent who was convicted by a Magistrate of assault after making a threatening gesture towards a complainant at St Basil’s Nursing Home. The prosecution did not call all eyewitnesses present during the incident. The respondent appealed to a single Judge of the Supreme Court, arguing that the Magistrate erred by not inferring that the uncalled witnesses would not have assisted the prosecution. The appeal was subsequently brought to the Full Court.

The primary legal issue before the court was whether the Magistrate erred in concluding that the prosecution had proved the charge of assault beyond reasonable doubt. This involved considering the principle in Jones v Dunkel, which holds that a failure to call witnesses may lead to an inference that their evidence would not have assisted the prosecution. The court had to determine if the Magistrate should have entertained reasonable doubt due to the incomplete evidence presented.

The Full Court allowed the appeal, holding that it was reasonably open to the Magistrate to find the charge proved beyond reasonable doubt. The court found that the Magistrate’s reasons for the verdict were adequately explained and clear, and there was no requirement for the Magistrate to make findings on every disputed fact. The Full Court concluded that the Magistrate was not in error and restored the conviction and sentence imposed by the Magistrate.

The final orders of the court were to allow the appeal and restore the conviction and sentence imposed by the Magistrate. The decision underscored the importance of the trier of fact weighing all evidence and relevant inferences in determining guilt.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.