Police v Munro - [2005] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MUNRO
Judgment of The Honourable Justice Sulan
23 March 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
The respondent was charged with various summary offences - at trial the magistrate asked to be provided with a copy of a witness's sworn statement which had not previously been marked for identification or tendered - the magistrate asked the witness questions referring to material contained within the statement - the magistrate dismissed the charges - whether the magistrate erred by making findings based upon a document which had not properly been admitted into evidence - whether the magistrate erred by descending into the arena - whether the magistrate erred by not affording the prosecution its statutory right to address the court at the conclusion of the evidence - whether the magistrate failed to give adequate reasons - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 288B; Evidence Act 1929 (SA) s 29; Summary Offences Act 1953 (SA) s 6(1), s 6(2), s 7(1)(a); Summary Procedures Act 1921 (SA) s 68(3), referred to.
Harwood v Police (1998) 71 SASR 300; Hrysikos v Mansfield (2002) 135 A Crim R 179; Kotz v Police (1999) 205 LSJS 176; Lawson v Lee (1978) 19 SASR 442; Newman v Byrne [1969] SASR 350; Papps v Police (2000) 77 SASR 210; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; The Queen's Case (1820) 129 ER 976; Yuill v Yuill [1945] 1 All ER 183; R v Musolino (2003) 86 SASR 37; The Queen v Prasad (1979) 23 SASR 161, considered.

POLICE v MUNRO
[2005] SASC 104
Magistrates Appeal
SULAN J
Introduction

The respondent, Paul Robert Munro, who I shall refer to as the defendant, was charged with disorderly behaviour in a public place, contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) (“the Act”), resisting police, contrary to s 6(2) of the Act, damaging property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) and assaulting a police officer, contrary to s 6(1) of the Act. The respondent pleaded not guilty to all charges. The magistrate dismissed all charges. The Police appealed the decision.
This appeal raises the issue of the extent to which a magistrate should question witnesses, and the conduct of a magistrate when questioning a witness. It deals with the procedure by which out of court previous statements are put to a witness. The prosecutor’s statutory right of address, and the extent to which a magistrate is required to give reasons for a decision are discussed.
Facts
The charges arose out of an incident on 10 July 2003 at the Sturt River Caravan Park. The prosecution case was that Constables Woods and Holmes, received a call to attend the Sturt River caravan park about a mental health issue. When they arrived they spoke to an ambulance officer regarding the mental health patient involved. At this time two or three men approached the constables. During the ensuing conversation one of the men became aggressive and asked the constables to leave the front of his house. This person was identified by Constable Woods as the defendant. He gave evidence that the defendant’s language was offensive, and that the defendant was acting in an agitated manner. The defendant asked the constables why they were parked outside the front of his house. The evidence of the police officers was that their car was not parked in front of the defendant’s property. Constable Woods warned the defendant on several occasions to leave the area as he was acting in a disorderly manner. The defendant responded with more abusive language and continued to ask why the constables were parked outside the front of his house. He demanded that they remove their vehicle.
The defendant walked off and said words to the effect of “Fuck you”. Constable Woods grabbed the defendant by the arm and told him that he was under arrest. Constable Woods said that the defendant resisted arrest by forcibly trying to shake his arm free. He continued to use offensive language. Constable Holmes attempted to assist Constable Woods in placing the defendant into the police vehicle. The defendant attempted to break free. As he did so the side mirror of the vehicle broke off. Constables Woods and Holmes restrained the defendant by putting him face down on the bonnet of the car. As they did so he head butted the bonnet on several occasions and bit Constable Holmes whilst he was attempting to restrain him. The bite left teeth marks on Constable Holmes’ hand. The constables radioed communications and a cage vehicle attended the caravan park. Other police officers attended and conveyed the defendant to the Sturt Police Station, where he was charged.
The prosecution called an ambulance officer, Simon Burke, to give evidence. During the cross-examination of Mr Burke, the magistrate asked to be provided with a copy of Mr Burke’s sworn statement. The statement had not previously been tendered or marked for identification. The police prosecutor handed the statement to the magistrate. She did not protest or make submissions about the course the magistrate had adopted. The magistrate then asked the witness questions referring to material contained in the statement. After the prosecution had closed its case, counsel for the defendant stated that the defendant would give evidence. The magistrate indicated that in respect of the charge of assaulting a police officer, the evidence of the prosecution witnesses was so unsatisfactory that, in accordance with the principle referred to in The Queen v Prasad[1], the charge should be dismissed. Counsel for the defendant then made a Prasad application. The magistrate ruled that the evidence was equivocal, bewildering and vague to the point that he had little faith in its accuracy or reliability. He applied Prasad and dismissed the charge of assaulting police.
[1] (1979) 23 SASR 161
The defendant gave evidence. At the conclusion of his evidence his counsel advised that he would be calling a second witness. The magistrate indicated that he did not require to hear any more evidence. The magistrate ruled that counts one, two, and three were not found proved beyond a reasonable doubt and dismissed the charges. The police prosecutor made no submissions with respect to the ruling dismissing the charges.
The appeal
The appellant complains that the magistrate erred in law in finding the respondent not guilty on all counts, and seeks orders that the findings be set aside and that the matter be remitted to the Magistrates Court for a re-trial. The appellant complains that the magistrate erred in law in the following respects:
·by purporting to make findings based upon a document which had not properly been admitted into evidence;
·by “descending into the arena”;
·by not affording the prosecution its statutory right to address the Court at the conclusion of the evidence, thus also denying the parties natural justice; and
·by providing inadequate reasons for the orders of acquittal.
Reliance upon a document which had not properly been admitted into evidence
The appellant submits that the magistrate erred by making factual findings based upon a statement which had not been admitted into evidence. The magistrate asked to be provided with a copy of Mr Burke’s sworn statement. The magistrate questioned Mr Burke on the contents of his statement. The appellant complains that through the use of this witness statement the magistrate descended into the arena.
The first question to be addressed is whether the process pursuant to which the statement was put to the witness was flawed and, if so, was there a miscarriage of justice. The manner in which Mr Burke’s witness statement was put to him was irregular. Section 29 of the Evidence Act 1929 (SA) provides:
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.
The purpose of the section is to allow a cross-examiner to avoid the consequences of the rule in The Queen's Case[2], in which the court ruled that if a cross-examiner wished to cross-examine a witness about a previous statement made in writing, the witness must be shown the document before any questions could be asked upon it. If the witness admitted making the statement the statement could be read as part of the cross-examiner's case. If the witness denied making the statement another witness could be called to prove it was the witness's statement and then read it as part of the cross-examiner's case.[3]
[2] (1820) 129 ER 976
[3] See Cross on Evidence, Seventh Australian Ed at 564 [17540-17545] adopted in R v Musolino (2003) 86 SASR 37 [105]
The decision in The Queen’s Case has been criticised by a number of commentators, including Wigmore, who referred to it as unsound of principle and of practical inconvenience in trials.[4] One of the main criticisms centred around the requirement that the cross-examiner was required to tender the statement as part of his or her evidence. Prior to the change of procedures in South Australia, whereby counsel for an accused now addresses the Court after the prosecution address[5], the effect of the rule was that the party tendering the statement was required to address before his or her opponent. In criminal trials before juries, it was considered by some that the loss of the right to address the jury after the prosecution address disadvantaged the accused. A further disadvantage was the requirement to put the whole statement in evidence as part of the cross-examiner’s case. That may have resulted in previous consistent statements on other topics becoming part of the cross-examiner’s case. Not surprisingly, cross-examiners were often reluctant to put the complete statement into evidence. Section 29 was enacted to overcome what was considered to be a rule which created unfairness to the cross-examining parties.
[4] Wigmore at [1259], see Cross on Evidence, Seventh Australian Ed at 564 [17540]
[5] Section 288B(2) Criminal Law Consolidation Act 1935 (SA)
The section requires a process to be followed in cross-examining a witness who has made a previous inconsistent statement. A witness may be asked about a previous statement made in writing. The cross-examiner can cross-examine about the contents of a document without showing it to the witness. If the witness cannot recall what he or she had said on a prior occasion, the witness can be invited to refresh their memory from the document. If the witness acknowledges a previous inconsistent statement, then the cross-examiner is not obliged to put the statement in evidence. The witness can be asked to explain an acknowledged prior inconsistent statement without the document having to be tendered in evidence. But if the witness does not acknowledge or recall the prior inconsistent statement, before evidence can be called to prove the contradictory statement, the contents of it must be put to the witness, including the occasion when the witness made the statement.
It is necessary when documents are referred to in cross-examination to ensure whether they are being used to refresh memory, or whether they are being used to establish a prior inconsistent statement. If counsel places a document in front of a witness without first asking the witness if he or she can recall what they said in a previous statement, for the purpose of directing the witness’s mind to an inconsistency, including an omission, then the witness is not refreshing memory. The opposing counsel can seek to require the cross-examiner to tender the statement, or that part of the statement to which the cross-examiner is referring. The court can also require the party to tender the statement, or part of it.[6]
[6] Hrysikos v Mansfield (2002) 135 A Crim R 179 at 198-199 [71-75] [80]
The procedure required to be followed when cross-examining on a prior statement was ignored in this instance. The magistrate adopted the extraordinary course of calling for the statement of the witness. The situation arose after counsel for the defendant asked the witness in cross-examination the following:
Q.His Honour asked you did you hear what the policemen may have said to him, namely what offence he’d committed for being under arrest, you said you didn’t hear that.
A.No, I didn’t.
Q.Well, you see, I’ve got a copy of your statement – and I will come back to that in a minute – but according to your statement you said ‘Police then grabbed the male person by the arm and I heard one of the police officers say “You are under arrest for disorderly behaviour”’.
HIS HONOUR: Sorry, what is the question?
XXN
Q.The question: do you remember saying that to the police in your statement.
A.I could have, it’s been a long time since I’ve -.
Counsel asked a number of questions about the events, including when the police first approached the witness after the day of the incident. The witness gave evidence that it was some twelve months after the incident that the police first came to see him to take a formal statement. The witness acknowledged that he made no notes of his own at any time, prior to the police attending upon him to take a formal statement. It was during that part of the cross-examination that the magistrate called for the statement, which the prosecutor handed to the magistrate. At that stage, the cross-examiner had not asked any further questions about the contents of the statement, other than the questions to which I have earlier referred.
When the witness was asked about his conversations with the police officer some twelve months after the incident, he said that he recalled the occasion but could not recall in detail the questions that the police officer had asked of him. The magistrate then asked:
HIS HONOUR
Q.How come you can remember the police officer saying ‘You are under arrest for disorderly behaviour’ a year later. Why do you think that that sticks in your memory it’s a year later.
A.Yes. The disorderly behaviour bit doesn’t stick in my memory but I remember him being under arrest and the whole thing – I mean, it’s the first situation like that I’ve been in when I was in the ambulance service so it’s not something you really forget.
Q.Sure, but do you remember him using the word ‘disorderly behaviour’.
A.I wouldn’t – I wouldn’t know what the charge was, no.
Q.So is that something that was suggested to you by the police officer or is that your actual own recollection, because it’s in your statement at point 7. Do you want to read it. I think you should, this is your statement. I do not want your statement to be in any way fudged by police officers, do you understand me.
Q.Yes.
STATEMENT SHOWN TO WITNESS.
The procedures for cross-examining a witness about that witness’s prior statements were not followed. The witness was, in effect, told to read his statement. The questioning from the magistrate then continued:
Q.It is very clear and it is very direct.
A.Yes.
Q.Why do you think that you can remember that a year later but now you can’t remember it, or is it possible that this was suggested to you by the police officer when he took your statement; is that a possibility.
A.I don’t think so. I mean, if I said it then I must have heard it and I just haven’t been thinking about this since the last time I was here so, you know, I haven’t read this since then.
Q.I think that the point Mr Cole is going to make after your evidence is completed is that it is highly unlikely that you would remember words a year later and yet now you can’t remember it. Why is it that you could remember it in November this year. It is a good question and I’m the one that has to assess whether or not your statement is absolutely pure or whether it’s been tainted innocently by the police suggesting things to you; do you understand the issue.
A.Yes.
Q.It is very important for me because this guy will be found guilty or not guilty largely based on your testimony. So do you think that it’s possible that the police used the word ‘disorderly behaviour’ or do you think that that’s something that you independently recall in July and, if it was, how come you can’t remember it now. I just want the truth, whatever it might be.
A.I don’t know why I can’t remember it now.
Q.So is it possible that the police actually gave you that terminology ‘disorderly behaviour’.
A.Yes, it’s possible.
Apart from not allowing the witness an opportunity to acknowledge the statement was his and to put to the witness those parts of it which it was said were inconsistent, and if the inconsistency was acknowledged, giving the witness an opportunity to explain the inconsistency, the magistrate put his own observations to the witness in a manner which did not give the witness an opportunity to consider the previous statement or proffer an explanation. The witness was not asked to acknowledge that the statement had been made by him, or whether he could recall making certain statements. The cross-examiner then referred to passages in the statement. It was not suggested to the witness that these passages were inconsistent with his evidence. Suggestions were put to the witness that the police had included observations in the statement, which the witness had not made. The suggestions were denied.
At one stage, the following was put:
HIS HONOUR
Q.The point is, Mr Burke, and you would appreciate this, if Mr Cole wasn’t questioning you about this issue you would never have to admit that you might be wrong about the 10 m and what he will be asking me later is to say: well, how much of Mr Burke’s evidence is fair dinkum? It is all very well for people to make statements to the police and make it look good but you are being tested now and so I’m left with some doubt as to if this wasn’t pursued you would have said 10 m and that would have been the end of it. But now you are saying it is less than 10 m. Which is it. I need to know the truth and if you’re not sure you have to say ‘I’m not sure.’ You cannot guess at this, this is this fellow’s future that I’m in control of and that you have a large part in.
XXN
Q.You see, I’m suggesting to you that perhaps the reason that appears in your statement is because the policeman, Mr Wood, suggested that to you and said ‘This fellow was intoxicated and you could smell his breath, do you agree with that, Mr Burke?’ ‘Yes, I agree with that’. That’s how it comes out in your statement.
HIS HONOUR
Q.Is that possible.
A.I don’t think so, no.
Q.No, it is possible.
A.No.
Q.So how do you explain that you could smell his breath and he was 10 m away. I know you have answered that but doesn’t that make your story a little dodgy, you tell me. How can you be emphatic about 10 m.
A.Well, I can’t be emphatic about the distance, I mean, I’ve never been in this situation before, I’ve never been in court before. I’ve never been asked questions like this before.
Q.Sure, but you understand the importance of –
A.Yes, I do understand the importance of it all and, I mean, if I say that I could smell it then obviously I could, but I’m not going to – I can’t give you, you know, if it was 11 m or 9 m or wherever it was.
Q.Well, it couldn’t be 9 m, it couldn’t be 11 m, it might have been 1 or 2 m. There is no way that you can smell someone’s breath from – well, I don’t think there is, is there. Can you smell breath from, say, 4 m, 3 m. I mean, how close was he – 10 and 2 and 3, there is a lot of difference.
A.Yes, there is.
Q.I’m not interested in guesswork. So, as I say, it might look good in a statement but that’s not good enough for me. I want to know what the truth is. How close was he.
A.I’m not sure how close he was.

Section 29 of the Evidence Act was not complied with when the statement was shown to Mr Burke. No inconsistent statements were put to Mr Burke. He was not asked whether he recognised his statement when it was handed to him or if he had signed each page of his statement. Mr Burke was not invited to refresh his memory from his statement. Further, there is no evidence that the witness acknowledged that it was his statement. The process that was undertaken by the magistrate was irregular. The magistrate was given Mr Burke’s witness statement by consent at the start of the witness’s cross-examination. The statement had not been marked for identification nor tendered. The magistrate, in dismissing the charges, relied upon discrepancies between the witness’s testimony and the statement he made to the police. The magistrate failed to identify precisely to what he was referring. The dilemma that this causes an appeal court is that the statement is not in evidence. The procedure adopted by the magistrate was unfair to the witness. The findings of the magistrate were based upon an assessment of the witness’s reliability in circumstances in which the witness had been unfairly cross-examined, and not in accordance with the proper procedure. In my view, this resulted in an unfair trial and, on that ground alone, the appeal must be allowed.
The magistrate’s questions to Mr Burke
Counsel for the appellant submits that through the use of the witness statement produced to Mr Burke, the magistrate erred by entering the arena. She submits that although it is proper for the magistrate to put questions to the witness to clarify answers, or where it is believed that the question may have been misunderstood, that the irregular and protracted participation of the magistrate with respect to the witness Mr Burke would not have allowed him to observe the demeanour of the witness during the cross-examination. Mr Burke was the third and final witness for the prosecution. During examination-in-chief, the magistrate intervened several times. An example of the manner in which he spoke to the witness during examination is as follows:
Q. The police were saying that to him
A. They were saying, ‘Don’t bang your head on the car.’
Q. But who was banging the head on the car.
A.The defendant – the person that they arrested.
Q.The defendant was banging his own head on the car.
A.Yes.
Q.The police weren’t banging the head.
A.No.
Q.You are quite sure about that.
A. 100% positive.
…
Q.Did you prepare a statement in regard to this case.
A.Yes
Q.Did you read anyone else’s statement in regard to this case.
A. There was no-one else’s statement to read.
Q.You haven’t read any police statements of notes or anything.
A.No.
Q.You haven’t discussed this with any police.
A. No.
In cross-examination of the witness the magistrate put further questions to him. He called for the witness’s statement and asked the questions to which I have previously referred.
The magistrate engaged extensively in examining the witness. In Yuill v Yuill[7], Lord Greene M.R said:
It is, of course, always proper for a judge – and it is his duty – to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject.[8]
…
A judge who observed the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.[9]
[7] [1945] 1 All ER 183
[8] Ibid at 185
[9] Ibid at 189
The court concluded that it could find no trace of any tendency of the judge to take sides or to press a witness in any way which could be considered undesirable. Lord Greene M.R was of the view that the judge was only endeavouring to ascertain the truth.
In Newman v Byrne[10], the magistrate dismissed a charge of driving a motorcar while under the influence of liquor. Counsel for the appellant complained that the magistrate, to an unjustified extent, examined the witnesses. Mitchell J found, that despite the extensive cross-examination by the magistrate who had, to some extent, usurped the function of the cross-examiner, that there had been no miscarriage of justice. She said:
An appellant who seeks a new trial upon the ground that the court has excessively intervened during the examination or cross-examination of witnesses, can obtain that order if he establishes that the interference was such that it may well have resulted in a miscarriage of justice. I am unable to find that this is the position in the present case. There were deficiencies in the evidence of the prosecution which would have been apparent to the Special Magistrate even had he permitted the counsel for the defence to conduct the cross-examination unaided, and the probabilities are that he would, on reasonable grounds, have decided in any event that he was not satisfied that the charge against the respondent had been made out.[11]
[10] [1969] SASR 350
[11] Ibid at 353
It cannot be said in this case that there were obvious deficiencies in the prosecution’s evidence or that in all probability the charges against the accused would, on reasonable grounds, have not been made out. The prosecution called two police witnesses and Mr Burke. The magistrate rarely intervened in the examination of the police witnesses. Their evidence supported the case for the prosecution. The magistrate concluded that the police officers’ evidence was equivocal, bewildering and vague in regard to the biting incident such that he had little confidence in the accuracy or reliability of their evidence. The magistrate referred to the officers as being poor witnesses. He made no findings about their evidence as regard to the charges of disorderly behaviour, resisting police and damaging property. As to the evidence of Mr Burke, the magistrate went beyond clarifying answers. He questioned the witness at length about his statement to the police and repeatedly questioned the witness as to why he could not remember what was in his statement. He put propositions to the witness which went beyond permissible examination of the witness. In so concluding, I am not suggesting that it is impermissible for a judge to be robust in asking a witness questions. If a cross-examiner has failed to explore a topic which a magistrate considers to be relevant, it is not impermissible to question a witness on that topic. Nor is it impermissible for a magistrate to test a witness’s testimony. However, there are limits to the manner and number of questions that may be asked.
The questions asked by the magistrate went beyond elucidation of an obscure answer. The questions he asked suggest that he had formed a view about the police witnesses, and that he was seeking to support his view by suggesting to Mr Burke that the police officer had made suggestions to him about the contents of his statement. As a consequence, it was put to Mr Burke that his statement may have been tainted by the police officer whose purpose was to influence his evidence. The placing of pressure on the witness by suggesting that his evidence stood between the defendant being acquitted or found guilty went beyond what is permissible. The clear impression gained from the magistrate’s questions and statements was that he found the police witnesses unreliable, and that he suspected that the witness had somehow been coached in his evidence. The magistrate appeared to have pre-judged the case, having heard and disbelieved the police witnesses. Having decided that the police witnesses were not to be believed, he then put suggestions to Mr Burke to support his views. The magistrate did not exhibit a calm and dispassionate approach to the evidence.
Our system is an adversarial system, and the conduct of a case is in the hands of the parties and should not be taken over by a judge or magistrate. The magistrate took over the case for the defendant. As a consequence, the trial was unfair and resulted in a miscarriage of justice. The appeal on this ground must succeed.
The failure to afford the prosecution an opportunity to address the court
The appellant complains that the magistrate erred in law by not affording the prosecution the statutory right to address the court at the conclusion of the evidence. Section 68(3) of the Summary Procedure Act 1921(SA) provides inter alia that the practice before the court upon the hearing of any complaint in respect of the right of addressing the court shall be in accordance with the practice for the time being of the Supreme Court upon the trial of an action. Section 288B of the Criminal Law Consolidation Act 1935 (SA) provides that at the conclusion of the evidence, the prosecutor and the defendant are entitled to address the court on the evidence.
The appellant relied upon an affidavit of Kylie Baker, the police prosecutor who conducted the prosecution. Constable Baker stated that she was not asked whether she wished to make any closing submissions at the conclusion of the evidence.
The defendant relied upon affidavits of Mary-Anne Forde, a solicitor, who deposed that the police prosecutor was standing at the bar table when the magistrate outlined his concerns about the prosecution case and weaknesses in it. Ms Forde stated that the police prosecutor did not seek to make any submissions. The respondent also relied upon an affidavit of Russell John Cole, who acted as counsel in the proceedings. Mr Cole deposed that the magistrate entered into a discourse with the prosecutor, and indicated to the prosecutor that he had major issues with the credibility of the two police officers and with Mr Burke’s evidence. Mr Cole further deposed:
It appeared to me that the prosecutor was given the opportunity to make submissions but chose not to do so and then resumed his seat at the bar table.
It was submitted by the respondent that the police prosecutor had an opportunity to address the magistrate, but declined to do so.
In order to resolve the issue, it would be necessary that Ms Baker swear a further affidavit in answer to the suggestion that she was given an opportunity to address the magistrate, but declined to do so. If there is a conflict between the deponents’ accounts, it would be necessary that they be cross-examined. Having decided to allow the appeal on other grounds, I consider it unnecessary to resolve the question of whether the police prosecutor was given the opportunity to address, but declined to do so.
The failure to give adequate reasons
The magistrate gave an ex tempore judgment. He concluded that the two police officers were poor witnesses, and he declined to rely upon their evidence. He referred to their evidence as equivocal and bewilderingly vague.
As to the independent witness, Mr Burke, the magistrate concluded that because there was conflict between Mr Burke’s statement to the police and his testimony, that cast doubt over his evidence.
In Sun Alliance Insurance Ltd v Massoud[12], the primary issue considered by the court was whether, in arriving at certain conclusions, the trial judge failed to give adequate reasons, and whether such failure amounted to an error necessitating a new trial. Gray J, with whom Fullagar and Tadgell JJ agreed, said:
In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.[13]
[12] [1989] VR 8
[13] Ibid at 18
In Lawson v Lee[14], Hogarth ACJ, Bright and King JJ said:
We therefore state the following practice as being appropriate for Courts of summary jurisdiction. When constituted by a legally qualified magistrate they ought to give reasons in which they state their findings on disputed issues. These reasons do not have to be long but they should be coherent, intelligible and comprehensive.[15]
[14] (1978) 19 SASR 442
[15] Ibid at 446
In Papps v Police[16], Gray J, with whom Olsson and Wicks JJ agreed, held that a failure to give adequate reasons constituted an error of law.
[16] (2000) 77 SASR 210 at 216
In Kotz v Police[17], Martin J said:
The authorities also emphasise that justice must be seen to be done. While the adequacy of the reasons in this regard will depend upon the circumstances of each case, in a contested matter where difficult questions arise concerning the use of highly prejudicial evidence, in my opinion the reasons should disclose the use that the magistrate has made of the contentious evidence (cf Fleming v The Queen). In such circumstances the failure to give adequate reasons cannot be excused on the basis that the magistrate is presumed to know the law and to have applied it correctly. As mentioned, a presumption of that nature may be a sufficient answer in many circumstances, but not where a number of complicated questions arise that involve the use of highly prejudicial evidence.[18]
[17] (1999) 205 LSJS 176
[18] Ibid at 182 [25]
The statement of Martin J is apposite to this case.
I recognise that courts of summary jurisdiction are busy courts and magistrates are under pressure to make decisions and deliver reasons in a timely way. Magistrates deal with many cases and, more often than not, are required to give ex tempore judgments. Nevertheless they are required to give sufficient reasons so that an independent review can effectively take place. Unless the reasons are adequate, a court of review cannot properly review the case.[19] The reasons do not have to be lengthy, but must be such that the appellate court is able to ascertain the reasoning upon which the decision is based.
[19] See Harwood v Police (1998) 71 SASR 300
Although the magistrate made it clear that the reason for finding the defendant not guilty was based upon his assessment of the prosecution witnesses, there is little analysis of their evidence. It is unclear from the judgment upon what factual matters there was a conflict, nor is there any reasoning as to how the magistrate resolved conflicts in the evidence. The reasons were limited to conclusions about the credibility of the police officers and the reliability of Mr Burke’s evidence. There was no analysis of the evidence. The decision contained bare conclusions, without an adequate reasoning process.
The magistrate made no reference to the evidence of the defendant or to his credit. This court is left to assume that the magistrate, having considered all the evidence, accepted the evidence of the defendant, or at least was not satisfied beyond reasonable doubt about the guilt of the defendant. The failure to refer to the defendant’s evidence requires the appellate court to speculate as to the magistrate’s reasons for dismissing the charges. The magistrate’s reasons were inadequate. The final decision in this case turns on the assessment of the witnesses and their credibility. It is not possible for this court to review the evidence without seeing or hearing the witnesses. The inadequacy of the reasons and the failure to review the evidence in sufficient detail must result in a new trial.
Order
The appeal is allowed. I order that the matter be remitted to the Magistrates Court for re-hearing by another magistrate.