Police v Pearl - [2006] SASC 149

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v PEARL
[2006] SASC 149
Judgment of The Honourable Chief Justice Doyle (ex tempore)
11 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
The respondent was charged with assaulting a person other than a family member contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA) - the assault was alleged to have been committed on a four year old child - the respondent pleaded not guilty in the Magistrates Court and was acquitted - the Police appeal against the acquittal - whether the Magistrate erred in finding the evidence of two witnesses unreliable - consideration of the weight to be given to the evidence of the witnesses - consideration of the adequacy of the reasons of the Magistrate as a whole - no error made out - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 39(1), referred to.

POLICE v PEARL
[2006] SASC 149
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Pearl was charged on complaint with assaulting a person other than a family member contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). He pleaded not guilty. After a short trial completed within a day, the Magistrate found him not guilty. The police appealed. The complaint is that the Magistrate erred in his approach to the facts and in his findings, the police seek a re-trial.
The alleged assault was on 3 July 2004. The trial was in March 2006.
Mr Pearl is 62 years of age and he is friendly with Ms Elliott, who is a neighbour of his. She has a son, Declan, and he was about four years old at the time of the alleged assault. He was the victim of the alleged assault. Mr Pearl occasionally went on outings with Ms Elliott and Declan. On the day in question they went to a McDonald’s restaurant, arriving about 10.30 am they said. They purchased food and went to a table. That much is common ground between Prosecution and Defence, apart from a divergence as to the time at which events occurred, which I do not think matters much.
Also at McDonald’s were Ms Thomson with her two sons aged three and four, and her mother, Mrs Thomson. Ms Thomson said that she noticed what she thought was a grandfather, his daughter and grandson. This must have been Mr Pearl, Ms Elliott and Declan. She said she saw them come in and sit down at a table.
Ms Thomson described an incident which must have occurred not much later in which the boy, who must have been Declan, ran into the playground next to the eating area. The man chased him, caught him and dealt with him very roughly. She was about four metres away. Then the man carried the boy out through the restaurant into the car park where she said he punched the boy on his left side. It is agreed that it is this latter incident that is the subject of the charge.
The three people, the boy, the man and the woman then left in a car. She said she saw the man strike the boy again while in the car. She was shocked by what she saw, and a few days later reported the matter to a government department.
Her mother had been in the playground with her two grandsons. She saw the boy, who again must have been Declan, run into the playground. She saw the man come in after him and then she lost sight of them for a short time. They were obscured by playground equipment. Then she saw the man pulling or dragging the boy out of the playground.
The next thing she noticed was the man and the boy in the car park by the side of a car or close to the side of a car. She saw the man punch the boy on the left side and the boy fell down. She was upset and did notice what they did next.
A police officer spoke to Mr Pearl about the matter on 11 July, Mr Pearl made no admissions.
Mr Pearl gave evidence. He described Declan as “a handful”. On the day in question he said Declan misbehaved. Declan threw food because he did not like what he was given. Mr Pearl decided that they should leave. Then Declan made a dash for the playground. Mr Pearl ran after him and picked him up by the hands and carried him out to his car. Declan was trying to get away from him. Declan then threw himself on the ground again when they were outside. Declan was prodding Mr Pearl with a stick which he had got from somewhere and which Mr Pearl tried to grab. Declan was yelling. In the end they put Declan in the car and drove off.
Mr Pearl denied hitting Declan, but agreed he might have smacked him.
Ms Elliott described how Declan began throwing food, and when Mr Pearl said “Let’s go”, Declan “did a runner as usual”. Mr Pearl went after him. Declan threw himself on the ground as a form of non-cooperation. He was screaming. Mr Pearl was trying to pull him up. Ms Elliott cleaned the mess off the table and they all left the restaurant, Mr Pearl with Declan. Mr Pearl was trying to put Declan in the back seat of the car and Declan was prodding him with a stick. Ms Elliott grabbed the stick, and I gather helped strap Declan in, and then they drove off.
She said Declan had been diagnosed as over-active. She said that he could be difficult to handle at times. She firmly denied that Mr Pearl struck him. She said no-one was allowed to punch Declan. She said that the alleged punch could not have happened.
There was a fairly significant conflict between the two sets of witnesses as this summary indicates. Neither Ms Thomson or Mrs Thomson saw the food throwing. They also described Declan as well behaved. There was evidence from Mr Pearl and Ms Elliott to the contrary about his behaviour, both in relation to food throwing and throwing himself on the ground. There is one other feature of the case that warrants a mention. Two police officers came into McDonald’s shortly after the incident, but the Thomsons did not report it to them. Ms Thomson said that she was in shock.
The Magistrate accepted that Ms Thomson and Mrs Thomson were truthful, but he was not satisfied of the accuracy or reliability of their evidence. He was not affirmatively satisfied on the evidence of one version of events or the other as it happened. He said:
I am now left in a predicament where I cannot see my way clear to say one version of events occurred or the other did. Frankly, I tend to think the punch was not delivered. There may have been a hit which may have been misinterpreted. It is a reasonable possibility. In these circumstances I have to give the benefit of the doubt to the defendant and the charge has therefore not been proven beyond reasonable doubt.
The Magistrate’s reasons are sparse. In effect he did no more than refer to some matters that the Thomsons had not observed, and some minor deficiencies in their evidence. I agree with Mr Ahern that of themselves these things are not particularly significant. But he did say he found believable the evidence from Mr Pearl and Ms Elliott about Declan’s misbehaviour, and obviously thought it odd that the Thomsons did not see this. While again no-one could regard this as a decisive matter, I agree with the thrust of the Magistrate’s comments that it is a little surprising that neither of the Thomsons saw either aspect of the bad behaviour, that is the food throwing or Declan throwing himself on the ground on two occasions.
Mr Ahern rightly criticised the sparsity of the reasons. He made the point that the misbehaviour by Declan might have occurred after the Thomsons first observed Declan and when they were not looking. That is a possibility I acknowledge. He criticised the weight apparently put by the Magistrate on the failure to approach the police at McDonald’s. Again I agree that could not be regarded as a decisive matter. I am not sure that the Magistrate did either. However I consider that the Magistrate was entitled to put it into the scales. I also agree with Mr Ahern that the matters identified by the Magistrate are not of great weight taken together, but on the other hand they are matters that he was entitled to take into account. There is no indication that the Magistrate treated them as decisive.
More importantly, one part of the defence evidence was obviously credible or believable. That is the evidence relating to Declan’s behaviour. That evidence did raise in the Magistrate’s mind a real possibility that there had been a misinterpretation of the events by Ms Thomson and Mrs Thomson.
I can understand that on the evidence the Magistrate might have been left uncertain, and unable to be satisfied beyond reasonable doubt of the Prosecution case. As I have said, the reasons he gave are sparse and a number of Mr Ahern’s criticisms are well made. But having read the evidence myself, I am, not surprised that he reached the conclusion that I have already set out.
He did have evidence from apparently credible witnesses on each side. I say that because he said nothing adverse about the evidence of Mr Pearl or Ms Elliot. He has also said that he found very believable one part of their evidence. One would think that if there are aspects of the evidence that caused him to have any significant doubt about the credibility, he would have said so. Even this is not decisive, I merely make the point that it appears that he had before him evidence from witnesses on each side that was apparently credible.
He also had a version of events from Ms Elliott and Mr Pearl that did give rise to the possibility of the misconstruction of events. I can understand that in a setting where the child has thrown himself on the ground, and on two occasions Mr Pearl had to attempt to lift him up, Declan being non-cooperative, that it is possible that what was happening would be misinterpreted.
As I said, I agree with Mr Ahern’s criticisms about the sparsity of the reasons but on the other hand, they do not contain what I would regard as any critical flaws. The difficulty is simply their sparsity, I do not find it surprising that the Magistrate could not make a finding beyond reasonable doubt.
The matters to which he referred and alluded were capable of giving rise to a doubt. There are no objective facts or uncontested facts that present an obstacle to his conclusion. There is nothing inherently improbable in the evidence that was given by Mr Pearl or Ms Elliott.
In the end, really everything turned on the impression that the witnesses made and it appears to me that the evidence of Mr Pearl and Ms Elliott must have left him in a state of doubt. That must be the reason why he said what he did say.
It must be concluded that he was not able to reject the key aspects of their evidence and he would have to do so to have convicted Mr Pearl.
Accordingly, in all the circumstances, I consider that the Magistrate was right to dismiss the complaint. I think he was entitled to reach the conclusion that he did reach, namely that he was not in a position to find for one version of the events over the other. Of course, he did not have to do that, but to convict he had to be satisfied beyond reasonable doubt. While his explanation for his conclusion is not as clear as one would have hoped it would be, in my opinion it is not so flawed that it cannot stand.
For those reasons, I reach the conclusion that no error has been demonstrated in the Magistrate’s approach. Accordingly the Magistrate was right to dismiss the complaint.
It follows that I dismiss the appeal.