Police v Taylor - [2017] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TAYLOR & ANOR
[2017] SASC 101
Judgment of The Honourable Justice Bampton
7 July 2017
MAGISTRATES - ORDERS AND CONVICTIONS - ACQUITTAL
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Police appeal against the decision of a Magistrate.
Mr Taylor and Mr O’Halloran were charged with assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The Magistrate determined that, due to significant conflict between the evidence given by the prosecution witnesses, he could not be certain which account of the events ought to be accepted. Accordingly, the Magistrate found he could not be satisfied of the prosecution case beyond reasonable doubt and acquitted the defendants.
The police complain that the acquittals were against the weight of the evidence, that the Magistrate erred in failing to give sufficient weight to the prosecution witnesses’ evidence and that the Magistrate erred in the findings he made.
Held, dismissing the appeal:
1. The Magistrate was correct in dismissing the Information against the defendants.
2. It has not been demonstrated that the Magistrate erred.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
R v Calides (1983) 34 SASR 355; Weinel v Rojas (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994); Semple v Williams (1990) 156 LSJS 40; DPP (Cth) v Brown (1994) 72 A Crim R 527, discussed.

POLICE v TAYLOR & ANOR
[2017] SASC 101
Magistrates Appeal: Criminal

BAMPTON J: Mr Taylor and Mr O’Halloran were charged on a Magistrates Court Information with aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation alleged was that the offence was committed in company.
Mr Taylor and Mr O’Halloran pleaded not guilty and were acquitted following a trial heard on 13 September 2016 and 20 December 2016.
The police on appeal complain that the acquittals were against the weight of the evidence and that the Magistrate erred in his findings. The police seek orders allowing the appeal, setting aside the acquittals, and remitting the matter for retrial.
For the reasons that follow, I dismiss the appeal.
The case alleged against Mr Taylor and Mr O’Halloran
The police alleged that in the afternoon of 13 January 2015, Mr Taylor and Mr O’Halloran assaulted Andrew Meldrum (“Mr Meldrum”) following an incident of road rage. The incident occurred when Mr Meldrum stopped his car at a stop sign at the intersection of High Street and Ayers Street, Gawler, having been beeped by Mr O’Halloran who was driving behind him in a green Ford (“the Ford”). Mr Meldrum asserted that he left his car to find out why he was being beeped. He alleged that upon approaching the Ford, Mr O’Halloran threw open the driver’s door into him, got out of the car, grabbed him and began punching him. It is alleged that Mr Taylor got out of the front passenger seat of the Ford and also punched Mr Meldrum, striking him in the back of his head.
On the prosecution case, Mr Meldrum did not engage in the physical altercation at all, and merely tried to protect himself. Mr Meldrum suffered a split lip and bruising to his head, the left side of his face, and arm. Both of his ears were bruised and his right ear required stitching.
The defence case
It is Mr O’Halloran’s case that Mr Meldrum was the aggressor, that he was annoyed by the beeping, that he approached the Ford, dented the driver’s door, grabbed him by the throat, punched him and put him in a headlock. It was Mr Taylor’s case that he acted in defence of Mr O’Halloran.
The evidence at trial
At trial, the police called five witnesses; Mr Meldrum, his wife Mrs Meldrum, two onlookers unknown to the parties Ms Bartholomew[1] and Ms Dimmick, and Sergeant Kearney, who attended the scene of the incident. The recordings of both Mr O’Halloran’s and Mr Taylor’s police interviews were played to the Court and the statement of Dr Emily Gibson was tendered by consent.
[1] I note that when Ms Bartholomew was asked whether she knew Mr Meldrum she said no but that she had seen him four times at court. By reference to the Court file, it is inferred those four occasion would have been the trial on 13 September 2016 and the occasions when the trial was listed for hearing but did not commence on 7 April, 7 July and 8 July 2016.
Mr Taylor gave evidence in his defence. Mr O’Halloran did not give evidence.
Mr Meldrum
Mr Meldrum gave evidence that he was driving on High Street, Gawler at around 4.00 pm on 13 January 2015 at a speed of approximately 40 to 45 km/h. His wife was in the passenger seat. He said that a car behind him “was trying to make me go a little bit faster – beep, beep, beeping me, trying to you know make me accelerate and get out of his way”.
Mr Meldrum said he ignored the beeping at first but then, thinking that it may have been to indicate that something was wrong with his car, decided to stop. Mr Meldrum said he did not say anything to his wife in the car about the beeping. He said he was not angry or frustrated when he stopped his car and approached the Ford, he simply wanted to find out what was wrong. He stopped his car at the stop sign at the intersection of High Street and Ayers Street.
It is apparent from the evidence that as Mr Meldrum did not pull over to the side of the road but stopped in the carriage way of the road at the stop sign, the vehicles behind also had to stop. The Ford had to stop immediately behind Mr Meldrum’s vehicle and a number of other vehicles behind the Ford also had to stop.
Mr Meldrum got out of his car and approached the Ford “to find out what his problem was, why he kept beeping me”. He said that as he approached the driver’s side car door of the vehicle he said, “What’s your problem”. The driver “just threw his driver’s side door open, straight into me”. Mr Meldrum said he was not sure whether the door split his lip. He tried to push Mr O’Halloran and the door back. Mr Meldrum alleged that Mr O’Halloran then jumped out of the car and, using his left hand to grab him, began punching him to the face and head with his right hand. Mr Meldrum gave evidence that he tried to shield his face with his hands, but did not retaliate. Mr Meldrum said that “the other lad got out of the passenger side of the car, came around and started punching me in the back of the head” five or six times. At some point while being punched by both of the men, Mr Meldrum said that he fell to the ground on his knees and the punching continued while he was on the ground. Mr Meldrum said all the punches were to his head, that “they tore my t-shirt off me and I was just covered in blood”. He said he “never laid a hand on either of them”. Mr Meldrum said his wife and another woman yelled at the men to stop, but they did not. At some point, they did stop hitting him and ran back to their car and drove off. Mr Meldrum said he suffered a split lip, bruising to the back of his ears and one ear required stitches as a result of the punches. Exhibit P2 is a collection of photos of the injuries sustained by Mr Meldrum.
In cross-examination, Mr Meldrum said that he assumed the beeping was to give him “A bit of a hurry up”. He denied that he was driving at a speed of 20 to 25 km/h and maintained that he was driving just under the speed limit of 50 km/h. Mr Meldrum was asked how he was feeling at the stage when he heard a second set of beeping after he had driven over a pedestrian crossing. He said that he “just assumed that they were trying to get past me or they were trying to tell me something”. He denied it was annoying. He was asked whether he would pull over as soon as he could if “they were trying to tell [him] something”. Mr Meldrum said it is “not possible to pull over on that road as soon as you could, you would block the road completely”. It was put to him that he did block the road when he stopped. He responded saying, “Well there’s a stop sign there, you have stop at the stop sign”. It was put to him that he did not have to leave his car at a stop sign. He replied, “Well if you want to find out what the problem is yes you do”. It was put to him that he was blocking the road by leaving his car at the stop sign. He said, “Only temporarily”.
He agreed that he did not check to see if anything was wrong with his car when he got out of his car, nor did he ask Mr O’Halloran whether anything was wrong with his car. He also denied denting the driver’s door of the Ford.
Prior inconsistent statements were put to Mr Meldrum. The first such statement is in his first statement to police, taken soon after the incident on 13 January 2015. In this statement, Mr Meldrum did not mention going to the driver’s door of the Ford after he got out of his vehicle. Nor does he mention that he was struck in the mouth by the car door or that the door opened into him.
Mr Meldrum agreed that it was not until police spoke with him on 16 June 2016 when he responded to police queries about the damage to Mr O’Halloran’s car door that he referred to attending at the door of the Ford. In his second statement of 16 June 2016, Mr Meldrum said that if there was damage to the door it could have happened when Mr O’Halloran opened the door suddenly without warning, using a lot of force, hitting his right leg, and causing him to lose balance. He also said in this second statement that “At the time I remember feeling some pain in my leg as the door hit against me”.
Mr Meldrum told the Magistrate in evidence-in-chief that “he slammed the door open in me face and started punching me” and:
He just threw his driver’s side door open, straight into me. I’m not sure whether that’s split my lip or not, but then he just jumped out of the car, started throwing punches, I tried pushing back, pushed the – him back and the door back and then, you know, the other lad got out of the passenger side of the car …
In cross-examination, Mr Meldrum said that he got within one foot of the driver’s side door and that he tried to stop Mr O’Halloran from getting out of the car, so there was some pushing, back and forth, of the car door. He agreed that as he pushed back on the driver’s door he would have hit Mr O’Halloran. He said that “I never touched his door with my knee or my leg”. He denied that he hip and shouldered the driver’s door or that this caused Mr O’Halloran to get out of the car.
Mr Meldrum attributed the difference in his accounts about what happened at the driver’s door to forgetfulness and said that he did not really recall the incident with the door hitting his leg but it was the only way he could explain that there might be damage to the door.
Mr Meldrum denied grabbing Mr O’Halloran by the throat, punching him, and putting him in a headlock. He denied that Mr Taylor said, “Get off of my mate” and became involved in the altercation in an attempt to stop him fighting Mr O’Halloran. He denied that Mr Taylor tried to drag him away.
Mrs Meldrum
Mrs Meldrum said that when the beeping occurred, she said something to her husband about there being a problem. In cross-examination, Mrs Meldrum maintained her husband was driving at about 40 km/h and no slower and that he was not annoyed about the beeping.
Mrs Meldrum said that she saw her husband was about a foot from the Ford when the Ford’s driver’s door flung open and the driver got out. She did not know if the door hit her husband. Mrs Meldrum explained that she had undergone surgery a few months prior to the incident “right across my stomach so I couldn’t move”. She gave evidence that as her husband approached the door of the Ford, “I’d seen the door fly open and the young man jumped out and that’s what I seen and that’s when I got out”. She was asked in cross-examination whether she agreed that she did not tell the police when she provided her statement about the door of the Ford flinging open and that she simply said that the driver had gotten out of the driver’s seat as her husband was approaching. Mrs Meldrum said maybe she did not say that to police as it was stressful on the day and she was pretty confused. She maintained that the manner in which the driver got out of the Ford caused her to get out of the car as she was concerned for her husband.
Mrs Meldrum said that Mr Taylor got out of the car at about the same time she did. She admitted in cross-examination that she may have missed something as she exited her car. Mrs Meldrum said that Mr Taylor punched the back of Mr Meldrum’s head. She saw both men hit her husband. Her husband did not retaliate, and he did not put Mr O’Halloran in a headlock. She said she repeatedly said, “Please stop” to the two men. She said it was when her husband fell to the ground that the men left him alone. She agreed she grabbed her husband at the end of the altercation when he was on the ground. She said she helped him up. She denied grabbing Mr Taylor and trying to pull her husband away. She said her husband’s t-shirt was ripped, that he was bleeding from his ears and lips and his face was bruised.
Ms Bartholomew
Ms Bartholomew gave evidence that she had just got out of her car in the car park across from the stop sign on High Street when she saw a white Toyota stopped at the stop sign and a green Ford behind it. She described seeing an older man getting out of the white car and heading towards the Ford. She came to know that the older man was Mr Meldrum after the incident. She said Mr Meldrum raised his arms and said, “What’s the problem?”. She said Mr Meldrum did not go up or get close to the Ford and that he remained between the two cars. She asserted that the driver of the Ford got out of his car and started punching Mr Meldrum “into his face, his chest, and then started kicking him as well”. She gave evidence that Mr Meldrum was punched about 10 times and that Mr Meldrum had his arms up around his face in an attempt to protect himself. He did not punch back.
Ms Bartholomew said that the passenger in the Ford got out of the car after a few seconds and started laying into Mr Meldrum, punching and kicking him. She said the fight crossed to the other side of the road onto the footpath and she thought Mr Meldrum fell onto the footpath, “where they proceeded to start into him”.
Ms Bartholomew said that Mr Meldrum was in the foetal position trying to protect his body. She gave evidence that while he was in this position the two other men were both kicking him. She said she saw blood, yelled at them to stop, and rang the police, whereupon the two men looked up, got back into their car, reversed back, and took off.
After the Ford left, Ms Bartholomew asked Mr Meldrum to come down to the car park where she was so she could assist him.
In cross-examination, Ms Bartholomew maintained that she had a good view of the incident from her location in the car park which was lower than the road above where the incident occurred. She said that the kicking did not start until Mr Meldrum had fallen over onto the footpath, that the kicks were going into his guts, and that he was being kicked by both men. When Mr Taylor’s counsel suggested that Mr Taylor ripped the shirt when he was pulling on it from behind, she said that was a lie. She said that “at no stage was anyone behind Andrew, they were always in front of Andrew”, that both Mr O’Halloran and Mr Taylor were face to face with Mr Meldrum and that no one approached or punched Mr Meldrum from behind.
Ms Bartholomew said that what alerted her to the incident was that she heard horns honking, that she looked up and saw the two cars stopped. Ms Bartholomew did not mention hearing a car horn in her statement to police or in evidence-in-chief. Ms Bartholomew denied the incident started at the door of the Ford, saying Mr Meldrum did not get as far as the Ford’s door. She denied Mr Meldrum kneed or pushed the driver’s door of the Ford. When it was put to her that it was after Mr Meldrum kneed or pushed the door that the driver of the Ford got out she said, “That’s a lie”.
She said she did not hear the Ford’s passenger say anything like “Stop hitting my mate”. She maintained Mr Meldrum was only hit from the front, not the back. She did not see anyone in a headlock. She did not see or hear Mrs Meldrum at her husband’s side telling the men to stop. She also asserted that Mrs Meldrum did not leave her car, that she was definitely not at the side of the melee and that she did not break the fight up.
Ms Dimmick
Ms Dimmick was driving along High Street when she came to a stop behind other vehicles and noted three males and a female about three or four cars ahead on her right side. She described seeing two taller men with shaggy hair and another man with shaved hair. The taller men were “significantly younger and the other man was older I thought he was in his in his 50s”. She said she saw the two younger, taller men hitting and kicking the older man. She said it all “happened really quick, so it was quite quick”. She said the older man did not hit back. She did not know what started the incident. She could not see where the younger men came from “in terms of whether one got out of the driver’s seat or came from the side”. She described the younger man with lighter, blonder hair punching first and the other younger man punching “after” and delivering less punches. She asserted that the younger “fair haired one” was doing most of the kicking. She said the older man was kicked less than five times but more than twice and that the kicks struck the man “lower”. She said the older man fell to the ground “quite quickly” and was kicked at least twice whilst on the ground. She saw a female and heard her yell “stop”. She said the incident came to an end in a matter of seconds and that, from what she could recall, what stopped it was a man who got out of his car in front of her and headed toward “the direction of the fight and the two young people walked – ran off – and got in their car”.
Ms Dimmick did not recall anyone trying to pull anyone away during the incident or any males speaking.
In cross-examination, Ms Dimmick was asked about the statement she gave police two days after the incident. It was suggested to her that when she spoke to the police she said, “Whilst they were moving across the road it looked like the group was fighting” and “They appeared to be punching and fighting each other” and “I did get the impression from watching them cross that it was two onto one”. Her answer was, “If that’s in my statement I said that, yes”. It was put to her that this suggests that there were three people fighting, two onto one. She said:
I saw two people punching and kicking another man and I never saw the other man punching and kicking back and initially, naively, I thought it was a fight. Altogether a fight but that does not mean that the two people – there were three people were punching and kicking.
It was put to her that she did not say this to the police. She said, “So my words were not clear enough in my statement to point out that there was only two people punching and kicking then”. She said in retrospect she would be much clearer in her statement. She agreed that she did not tell the police that there were two people punching and kicking when she gave her statement. She was asked whether she told police that they appeared to be punching and fighting each other. She said, “Perhaps I meant that the two people were punching and fighting”.

She agreed that when she first spoke to police she told them that one of the males had shaggy, light brown hair. In fact, she said, “I could only tell one had shaggy, light brown hair”. It was put to her that she did not describe to the police a man who was blonder and she answered, “Perhaps as lighter, that’s how I described it as being the lighter one”. She said there were two young men, one had lighter hair and one had blonde hair. She agreed that the only description of the two young men she gave police was that one of them had shaggy, light brown hair. She was asked whether she had a recollection of the other young man having blonde hair or lighter blonde hair and she replied, “Yes”. She agreed that she told the police that she saw the shaggy hair man punch and kick constantly at one of the other males. She was asked whether she agreed that at no time did she describe in her statement 15 January 2015 a young man having blonde hair participating in punching and fighting and she said if that is in her statement then “I have to say at the time of this statement that’s what I recall”.
Ms Dimmick said she did not know which of the men kicked the older man while he was on the ground. She also maintained that she did not see anyone standing behind the older man hitting him.
Sergeant Kearney
Sergeant Kearney gave evidence that he was called to the scene of the incident on 13 January 2015. On arrival, he saw two elderly people in a vehicle who appeared shaken and distressed. Sergeant Kearney took a statement from Ms Bartholomew and other police officers took statements from Mr and Mrs Meldrum. Following his attendance at the scene and having been given the registration number of the Ford, Sergeant Kearney ascertained the name of the owner of the Ford by conducting checks of the police computer systems. He telephoned Mr O’Halloran who accepted his invitation to attend the police station to talk to him about the incident.
Dr Gibson’s statement
Dr Gibson examined Mr Meldrum on 13 January 2015. Mr Meldrum reported to her that he had been in an incident, had been punched by two men to his head and had fallen down. Dr Gibson noted that Mr Meldrum had bruising to his upper left arm and a bruised lower lip with a superficial laceration to his lip which did not require stitches. She noted a posterior partial thickness laceration to Mr Meldrum’s right ear that required four stitches and a bruise to the back of his head.
Mr O’Halloran’s Record of Interview
Mr O’Halloran stated in his interview with police that Mr Meldrum’s car was travelling at about 20 km/h along High Street. He gave the horn a couple of “little honks” as he could not overtake. He said Mr Meldrum got out of his car, came to his driver’s door and said “what’s your problem” in an aggressive manner and grabbed his car door to pull him out. Mr O’Halloran said he held the door shut and Mr Meldrum hip and shouldered it, putting a dent in the car, which made him “a little angry”. He got out of the car and asked Mr Meldrum “what’s your problem”. He said that Mr Meldrum grabbed him by the shirt, started elbowing him in the face, grabbed him by the throat and pulled him to the floor. Mr O’Halloran said Mr Meldrum was a big man and that he, Mr O’Halloran, was “little compared to him”, “he was taller than me … like he was a like big fella, like compared to me … I’m only skinny like, he is pretty well built”. Mr O’Halloran said he was 6’2 and weighed 65 kg. He said he threatened to kick Mr Meldrum if he did not stop. He told police that he could have done some damage because he had his steel cap work boots on at the time. He said he was on the floor when Mr Taylor came to his aid and started hitting Mr Meldrum. Mr O’Halloran did not recall hitting Mr Meldrum “it was more like me trying to push him away from myself”. He said he may have punched Mr Meldrum once but he did not recall punching him. Mr O’Halloran referred to a man coming up after the altercation yelling at him and Mr Taylor as if they were in the wrong. Mr O’Halloran told police he was only defending himself.
Mr Taylor’s interview and evidence
In his Record of Interview, Mr Taylor stated that after Mr O’Halloran beeped the horn for about three seconds on two occasions, Mr Meldrum “stormed” towards their car, went to open the driver’s door and then put his knee up to restrain it. He said he saw Mr Meldrum take a swing at Mr O’Halloran and saw both of them in a headlock and on the ground together. He said he tried to get Mr Meldrum off his friend. He swung at Mr Meldrum eight times, connecting five times. He also grabbed his shirt, which ripped. He said he acted in defence throughout the incident and was pulled off by a lady.
At trial, Mr Taylor said that when Mr Meldrum was at the driver’s side window of the Ford he said:
“What’s your problem little cunts.” He was just going on and on and on and he was just saying, “What’s your problem, what’s your problem”, like, “I’m allowed to go slow if I want”, rah, rah, rah, rah, rah, rah, rah. Then all of a sudden it was on. Pretty sure actually he said “do you want to fight or something”.
Mr Taylor said Mr O’Halloran said he did not want to fight and told Mr Meldrum to get out of the car or words to that effect. Mr Taylor said that was when Mr Meldrum went to open the door handle, “it was sort of like in this whole motion of swifting and lunging at the door, door panel handle, whatever he was trying to do, not too sure”. Mr Taylor said that he thought that Mr Meldrum was actually trying to get Mr O’Halloran out of the car and start a fight. He described Mr O’Halloran getting out of the car saying words to the effect of “I haven’t got a problem” and “just get back in your car”. Mr Taylor said that at this stage Mr Meldrum just lunged at Mr O’Halloran, who attempted to duck out of the way but ducked down into a sort of headlock and Mr Meldrum was straight into it and they were “straight into a tussle”.
Mr Taylor said he became involved because he thought Mr O’Halloran could be severely hurt. He said he yelled at Mr Meldrum to stop or else he would hit him. Mr Meldrum had his arm around Mr O’Halloran’s neck when Mr Taylor punched Mr Meldrum’s left ear. Mr Meldrum turned 180 degrees, with Mr O’Halloran in a headlock, and they both fell down. Mr Taylor said there was not any kicking. He gave evidence that he continued to hit Mr Meldrum, but only twice to his cheek.
In cross-examination, it was put to Mr Taylor that he did not mention Mr Meldrum saying “Do you want to fight, What’s your problem little cunts, I am allowed to drive slowly” in his statement to police and that he was making it up as he went along. Mr Taylor refuted this, saying that he referred to arguing and yelling in his statement. Mr Taylor denied that Mr O’Halloran swung open the car door as Mr Meldrum got close and started throwing punches. Mr Taylor also denied that he got out of the car to join in punching Mr Meldrum. He said that yelled at Mr Meldrum to stop saying “if you don’t get off my mate I’m going to start hitting you”. He said his first punch missed Mr Meldrum but the second connected and they, Mr Meldrum and Mr O’Halloran, fell to the ground. He said he punched Mr Meldrum perhaps three more times on the ground, but that he was not certain. Mr Taylor said it was Mrs Meldrum yelling that seemed to stop the fight. He described her saying “Stop Andrew. Stop. Stop hitting my husband” and “this would never have happened if you had got out of the car”. Mr Taylor said Mrs Meldrum grabbed his left shoulder and pulled him back. Mr Taylor maintained that Mr Meldrum was the aggressor, that Mr O’Halloran did not strike Mr Meldrum and that he, Mr Taylor, acted in defence of Mr O’Halloran.
The Magistrate’s decision
The Magistrate found that the police had not proved the case against Mr O’Halloran and Mr Taylor. The Magistrate stated in his detailed reasons that he could not be certain which account of the events ought to be accepted, particularly with respect to who initiated the physical violence. He noted that there were various discrepancies in the prosecution witness accounts which were difficult to reconcile.
The Magistrate, citing R v Calides,[2] determined that it was not possible to be satisfied beyond reasonable doubt that Mr O’Halloran intentionally applied force to Mr Meldrum, as he was unable to exclude the possibility that Mr Meldrum initiated the conflict by denting Mr O’Halloran’s vehicle, and grabbing Mr O’Halloran when he exited the vehicle. Further, he stated that the prosecution had not disproved the defence of another in respect of Mr Taylor’s involvement in the fight.
[2] (1983) 34 SASR 355.
In reaching this conclusion, the Magistrate made several key findings. These included the following:
·The “tooting” caused annoyance to Mr Meldrum. Though Mr Meldrum stated this did not annoy him, human experience would be to the contrary.
·He did not accept that Mr Meldrum stopped at the stop sign because he believed the defendants were trying to convey that something was wrong, as he did not check his car to see whether something was wrong. He noted that Mr Meldrum should not have stopped where he did, as it held up other traffic.
·He was not convinced that Mrs Meldrum saw everything that happened initially at Mr O’Halloran’s vehicle.
·He found that Ms Bartholomew, while an honest and genuine witness, was unreliable. The medical evidence did not support her allegation that Mr Meldrum was kicked in the way she described, particularly if Mr Taylor and Mr O’Halloran were wearing steel capped work boots.
·He also found that it was difficult to reconcile the evidence of Ms Dimmick, although an honest and genuine witness, with that of Ms Bartholomew and the medical evidence with respect to kicking.
·He noted that Mr Taylor agreed that he struck Mr Meldrum five times but he maintained he did so in defence of Mr O’Halloran because Mr Meldrum kept fighting and punching Mr O’Halloran while he had his arm around Mr O’Halloran’s neck. It was during this time that Mr Meldrum’s shirt was ripped. The shirt coming off could be consistent with Mr Taylor trying to pull Mr Meldrum away from Mr O’Halloran.
·He did not accept that Mr O’Halloran merely gave Mr Meldrum a “little honk” when driving. He referred to Mr Taylor having described it as being much longer. Mr O’Halloran said in his police interview that he got angry when Mr Meldrum gave his door a “hip and shoulder” and then got out of his vehicle. The Magistrate also referred to Mr O’Halloran’s report that Mr Meldrum came at him, that he was pulled to the floor and that he may have hit Mr Meldrum once.
The appeal
The police complain on appeal that:
·The acquittals were against the weight of the evidence;
·The Magistrate erred in failing to give sufficient weight to the evidence of the prosecution witnesses;
·The Magistrate made findings that were inconsistent with facts incontrovertibly established by the evidence; and
·The Magistrate made findings that were glaringly improbable.
Ground 1
The police submit that the account of the key features of the incident given by Mr Meldrum, including that about the movement of the driver’s side door, the involvement of Mr Taylor, that Mr O’Halloran punched the complainant repeatedly, that Mr Meldrum did not punch back and that he did not have anyone in a headlock, were corroborated by his wife’s evidence.
The evidence of Ms Bartholomew, a witness not previously known to Mr or Mrs Meldrum, is also said to support Mr Meldrum’s account of the incident, in particular that “The driver of the Ford got out of his vehicle and he just started hitting into Andrew”, that Mr Meldrum did not retaliate and merely put his arms up to protect himself, that Mr Meldrum did not place anyone in a headlock and that Mr Meldrum ended up on the ground in the foetal position.
While Mr and Mrs Meldrum did not give evidence that Mr Meldrum was kicked by the respondents, both Ms Dimmick and Ms Bartholomew did, meaning that it was not straightforward to conclude that Mr Meldrum was not kicked.
Mr O’Halloran’s case, by way of his interview, was not put that he acted in self‑defence, but rather that he did not strike Mr Meldrum at all, despite conceding that he may have “done it once”. It is submitted that the Magistrate did not consider the possibility, in the alternative to finding that Mr O’Halloran personally assaulted the complainant, that he was guilty by way of joint enterprise.
It is contended that the evidence of the prosecution witnesses corroborated each other, clearly supported the case against Mr O’Halloran and Mr Taylor and was not undermined by the minor discrepancies between their evidence. As such, the acquittals were against the weight of the evidence.
Ground 2
The Magistrate is said to have failed to have given sufficient weight to the evidence of the prosecution witnesses, being unduly influenced by discrepancies between the various witnesses’ accounts of the incident and between individual witnesses’ statements given to police and the evidence they gave in court.
Rather than focusing on important issues that were determinative of whether the prosecution had proved the elements of the offence, such as whether Mr O’Halloran struck Mr Meldrum, the Magistrate was preoccupied by peripheral matters, such as whether Mr Meldrum dented the door of Mr O’Halloran’s vehicle or grabbed Mr O’Halloran as he alighted from his vehicle. The Magistrate did not appear to consider the combined weight of the prosecution evidence, such as by comparing the witnesses’ evidence in respect of the punching and kicking, but gave unmerited weight to the finding that there was no medical evidence to support the kicking, despite the medical evidence not specifically addressing that issue.
Analysis of grounds 1 and 2
In my view, the discrepancies between the witnesses’ evidence referred to by the Magistrate are not minor. Having read the evidence I can understand that the Magistrate was left uncertain and unable to be satisfied beyond reasonable doubt of the prosecution case. Each of the prosecution lay witnesses made observations that were inconsistent with other aspects of the prosecution case which raised valid concerns for the Magistrate about the reliability of the witnesses. The following are examples of the discrepancies between the prosecution witnesses’ accounts of what occurred before and during the incident.
Evidence of Mr and Mrs Meldrum of events while in their car
Mr Meldrum said that he did not say anything to his wife in the car, whilst the beeping occurred on High Street. Mrs Meldrum said that while in the car and three-quarters of the way along, she said to her husband that she wondered what the problem was and he said he did not know, “All we said is, ‘They’ve got a problem’ towards the end”. She said she did say “Someone’s tooting” and Mr Meldrum just said “Yeah”.
Evidence relating to Mr Meldrum’s contact with the Ford
I have referred to the differences in Mr Meldrum’s accounts of how events unfolded at the car door, which changed from no reference to the car door, to being struck on the leg by the door, to denying being struck by the door on the leg and stating that he was struck in the mouth by the door.
Mrs Meldrum said that she could not say if Mr Meldrum was standing far enough away from the door to not be hit by it when it was opened. She said she saw the door open and the driver jump out. She conceded that she might have missed something as she opened her door. She said the altercation “probably started” near the driver’s door of the Ford, but it worked right out into the centre of the road and her husband was probably about a foot or so away from where the car door opened.
Ms Bartholomew said that Mr Meldrum was nowhere near the car door and that the confrontation occurred between the two cars. Ms Dimmick said she did not see how the altercation started.
Evidence regarding the interaction between Mr Meldrum and Mr O’Halloran prior to any altercation
Mr Meldrum said that words were exchanged between him and Mr O’Halloran. Mrs Meldrum impliedly suggested that there was no interaction as the car door was flung open when Mr Meldrum was near the door.
Ms Bartholomew did not see any interaction at all between Mr Meldrum and Mr O’Halloran prior to the altercation and said, “It was straight into punching”.
Evidence regarding Mr O’Halloran’s exit from the Ford
Mr Meldrum said that he pushed the car door back to prevent Mr O’Halloran from getting out of the Ford, and that there was some pushing back and forth.
Mrs Meldrum said that Mr Meldrum got close to Mr O’Halloran’s door, “the door flung open, young lad jumped out…”. She said that she did not see Mr Meldrum come into contact with Mr O’Halloran’s car door at all and that the driver “got out very quickly” from the car.
Ms Bartholomew said that she did not see Mr Meldrum touch the other car at all and that he was never standing beside the driver’s side door of the Ford.
Ms Dimmick said that when she looked up the group was standing on the road itself, on the driver’s side.
Evidence regarding the nature of the assaults
Mr Meldrum said he was punched to the face and head by the driver of vehicle. He said that he was punched to the back of the head by the passenger of the vehicle. He said that he was not punched to the body. Mr Meldrum described falling to his knees.
Mrs Meldrum said that the driver punched her husband in the face and that the passenger punched him in the head.
Ms Bartholomew said that the driver punched Mr Meldrum’s face and chest and kicked him as well. She said that the passenger punched Mr Meldrum to the head and chest. She said that both men kicked into Mr Meldrum’s guts and described the force as “[seeming] pretty hard”. Ms Bartholomew said that “at no stage was anyone behind Andrew, they were always in front of Andrew”, that both Mr O’Halloran and Mr Taylor were face to face with Mr Meldrum and that nobody approached or punched Mr Meldrum from behind. She said that both younger males were shoulder to shoulder, facing Mr Meldrum. She said Mr Meldrum was in the foetal position after he fell to the ground.
Ms Dimmick said that she saw two younger males kicking and punching the older male (at the same time) and that the blows struck around the head. She described that Mr Meldrum was kicked in the lower part of his body. Ms Dimmick said that she only saw the two younger males in front of the other male, not one in front and the other behind.
Evidence regard Mrs Meldrum’s involvement
Mr Meldrum said that Mrs Meldrum got out of the car and told the men to stop. Mrs Meldrum said that she got out of the car as soon as she saw the driver of the Ford fling the car door open and jump out.
Ms Bartholomew said that Mrs Meldrum was in the car during the altercation and that she was not at the side of the melee telling them to stop. She also said that Mrs Meldrum did not get out of the car until she and her husband moved to the car park.
Ms Dimmick said that she could not be sure that she saw Mrs Meldrum with the group and that “She appeared what I would say was right at the end…”.
As submitted by Mr O’Halloran and Mr Taylor, the following matters also give rise to concern regarding the reliability of the prosecution witnesses:
·The fact Mrs Meldrum and Ms Dimmick did not see how the incident started;
·Ms Bartholomew’s failure to tell the police about hearing the horn honking;
·Ms Dimmick’s failure to describe the hair colour of both respondents in her initial statement, only describing one as “blonder” when she gave evidence; and
·Ms Dimmick’s statement to police was that she saw a group fighting together, as opposed to two people attacking another.
The police complain about the Magistrate’s comment that he found that it was difficult to reconcile the evidence with respect to kicking. Mr Meldrum was a competent complainant who gave clear evidence that he was only punched to his head. He also told the Magistrate he was able to look after himself. Neither Mr Meldrum nor Mrs Meldrum gave evidence of any kicking or punching to any part of Mr Meldrum’s body other than his head and face. There were no injuries complained of that corresponded with where Ms Bartholomew and Ms Dimmick said Mr Meldrum was kicked. I infer from the evidence that Mr Meldrum did not report that he had been kicked to “guts” or any other part of his body.

The police also contend that the photos of the injuries should have been used by the Magistrate to consider whether the bruising depicted in photos AM6, AM9, and AM13 may have been caused by kicking. Each of these photos depict Mr Meldrum’s ears. There was no evidence from either Ms Bartholomew or Ms Dimmick that Mr Meldrum’s head was kicked. AM16 is a photo of a bruise on Mr Meldrum’s left inner upper arm. There is insufficient evidence to draw any conclusion as to the aetiology of this bruise.
Grounds 1 and 2 are not made out.
Ground 3
With respect to the third ground of appeal, the police submit that the Magistrate’s findings implicitly suggest that the force used against Mr Meldrum was necessary and proportionate to respond to any threat he posed, which is inconsistent with the established facts. The police say that the extent of the injuries to Mr Meldrum, a 64 year old man, inflicted by the respondents, both of whom were in their early 20s, and by reference to their height and weight, fit tradesman, belie any suggestion that they were caused in an act of defence. Even if Mr Taylor was acting in defence of Mr O’Halloran, the injuries show that the force used was excessive, and that Mr Taylor’s actions went beyond defensive actions and constituted an assault.
Analysis
There was no medical evidence or other expert evidence led regarding the force required to inflict the injuries or how the injuries would have been sustained by Mr Meldrum. This ground of appeal is not made out.
Ground 4
The police contend that it was glaringly improbable that Mr Meldrum was the aggressor, that Mr O’Halloran was acting in self-defence, and Mr Taylor in defence of another. It is said that, even if Mr Meldrum had approached Mr O’Halloran’s vehicle in an aggressive manner and instigated a physical altercation with Mr O’Halloran, as a man of 64 it is highly unlikely that he would have continued as the aggressor against two young men who would have appeared to be stronger and fitter than Mr Meldrum. Additionally, even if Mr Meldrum and Mr O’Halloran both fell to the ground, it was highly unlikely that it was necessary for Mr Taylor to punch Mr Meldrum while on the ground in order to protect his friend. Further, it is glaringly improbable that Mrs Meldrum, having recently undergone abdominal surgery, would have attempted to pull Mr Taylor away.
To the extent the Magistrate’s findings reflect these suggestions, it is said that they cannot be upheld on appeal because of their improbability.
In respect of the Magistrate’s finding that the prosecution had not disproven defence of another, the police submit that there were ways in which Mr Taylor could have acted in defence of Mr O’Halloran, such as by attempting to restrain Mr Meldrum, before resorting to punching and kicking Mr Meldrum. Further, Mr O’Halloran’s comment in his record of interview that a man had “…come up after all this and was yelling at us, like we were in the wrong. I was only defending myself,” during the conflict is said to undermine the assertion that Mr Taylor was acting in defence of Mr O’Halloran.
Analysis
Mr Meldrum told the Magistrate that he was an ex-serviceman and he could look after himself. Mr O’Halloran described himself as skinny. He said Mr Meldrum was he was taller than him “…like he was a like big fella, like compared to me … I’m only skinny like, he is pretty well built”. It is clear that there was an altercation between Mr Meldrum and Mr O’Halloran before Mr Taylor entered the fray. It is not, in my view, improbable that if Mr Meldrum was the aggressor that he could have continued being the aggressor against the two younger men.
It was Mr Taylor’s evidence that Mr Meldrum had his arm around Mr O’Halloran’s neck when he punched Mr Meldrum’s left ear, that Mr Meldrum turned 180 degrees with Mr O’Halloran in a headlock, and they both fell down. He said he hit Mr Meldrum twice to his cheek. It is not improbable that Mr Taylor might have seen the need to continue trying to protect and extricate Mr O’Halloran by hitting Mr Meldrum once they had fallen to the ground particularly if they fell while in the headlock.
It was Mr Taylor’s evidence at trial that Mr O’Halloran was already in the headlock when he had shouted at Mr Meldrum to let go. He said that Mr Meldrum was throwing Mr O’Halloran around in the headlock “like a dog would do with a play toy, just rag dolling…”. He maintained that he screamed at Mr Meldrum giving full warning. He said when Mr Meldrum did not let go he was a bit hesitant as to what to do as he had never been in that situation before. He was worried about Mr O’Halloran so decided that he had to take control and punched Mr Meldrum in order to prevent his friend being hurt. Mr Taylor said Mr Meldrum did not react:
[H]e just kept going. He just seemed like he just – yeah, like a fly landed on you and you just shoo it off sort of thing. Just kept going.
Mr Taylor asserted that Mr Meldrum still had Mr O’Halloran in the headlock when they fell to the ground with Mr Meldrum on top to start with. They rolled to the side. Mr O’Halloran was flaying around, trying to get Mr Meldrum off him and Mr Meldrum was pushing his way down onto him. Mr Taylor gave evidence that his punches appeared to have no effect and he was quite annoyed because Mr Meldrum did not stop and he was “getting quite frustrated because he couldn’t help the situation. I was just watching my mate being beaten up. I felt quite hopeless to be honest”. Mr Taylor said he continued to hit Mr Meldrum until Mrs Meldrum pulled him off to get to her husband. On my reading of the evidence, defence of another is not improbable.
It is reasonable to infer from Mrs Meldrum’s evidence that, despite her mobility restrictions, she was able to move if she considered it necessary. For example, she said that as soon as she saw the driver’s door of the Ford open and “a young lad jumped out [she] got out of the car”. She also said that upon seeing the door open “and Andrew was there… and I seen it I just quickly turned around and opened my door got out”. She also agreed that she grabbed her husband at the end of the altercation when he was on the ground. It is not improbable that she could have grabbed Mr Taylor.
This ground of appeal is not made out.
The respondents’ submissions
Mr O’Halloran and Mr Taylor submit that the diametrically opposed accounts about what happened at the driver’s door, with Mr Meldrum stating that he was the victim of an attack started by Mr O’Halloran and joined by Mr Taylor, while they contend that Mr Meldrum was the aggressor, grabbing Mr O’Halloran in a headlock, with Mr Taylor joining only in defence of his friend, duly caused the Magistrate concern as to where the truth lay.
Mr O’Halloran and Mr Taylor argue that the incident was one of road rage, in which the obvious conclusion on all of the evidence, and applying common sense, is that Mr Meldrum was annoyed or angered by the beeping, and got out of his car with the intention of remonstrating Mr O’Halloran. The fact that Mr Meldrum did not check his car after stopping to see if there was indeed a problem with the car as he claimed also gives weight to the fact that Mr Meldrum did not think the beeping concerned his car, and intended to remonstrate Mr O’Halloran. They submit that common sense and the common experience of human behaviour suggest that Mr Meldrum’s account of approaching Mr O’Halloran’s vehicle calmly is improbable.
Mr O’Halloran submits that given the doubt raised by the discrepancies in the witnesses’ evidence, and the diametrically opposed accounts of how the violence was initiated, the Magistrate correctly acquitted him.
Mr Taylor contends that the evidence left open the following possibilities:
·That he thought Mr Meldrum was the aggressor and the violence erupted due to that aggression;
·That due to his perception that Mr O’Halloran was likely to be the subject of continuing assault by Mr Meldrum, he felt compelled to act;
·That after giving a verbal warning, he felt that he needed to strike Mr Meldrum in furtherance of his effort to stop the assault on Mr O’Halloran;
·He struck Mr Meldrum and pulled on his shirt in furtherance of his attempts to stop the violence against Mr O’Halloran;
·That striking with fists and pulling on a shirt were reasonable applications of force given the circumstances; and
·His version of events did not materially differ between police interview and trial, and he maintained that it was only the intervention of Mrs Meldrum that stopped Mr Meldrum and freed Mr O’Halloran.
Mr Taylor submits that the prosecution did not negative these possibilities beyond a reasonable doubt and, accordingly, the Magistrate was correct to acquit him.
Conclusion
Considering the significant conflict between the evidence given by the prosecution witnesses, the version of events recounted in Mr O’Halloran’s record of interview, and the evidence given by Mr Taylor, I do not find it surprising that the Magistrate was not in a position to find for one version of the events over the other.
The trial was based on questions of fact and turned on the impression that the witnesses made at trial. The Magistrate explained why he had concerns about the reliability of Ms Bartholomew and Ms Dimmick. He also said he was not convinced that Mrs Meldrum saw everything and he explained the difficulty he had reconciling Ms Dimmick’s evidence with that of Ms Bartholomew. The Magistrate did not accept Mr Meldrum’s evidence that the “tooting” did not annoy him. He also stated that the “possible inconsistency” between Mr Meldrum’s statements to police and his evidence raised a “potential issue of reliability”. The Magistrate did not accept that Mr O’Halloran only gave a “little honk”. The Magistrate did not make any adverse comment about Mr Taylor’s evidence.
Counsel for the police criticised the weight the Magistrate put on what occurred at the door of the Ford and “who started it”. I agree that this could not be regarded as a decisive matter. In my view, it was a matter the Magistrate was entitled to consider in his assessment of the whole of the evidence. There is no indication that the Magistrate treated it as decisive of the matter to the exclusion of other evidence. His Honour was not affirmatively satisfied on the evidence of one version of events or the other:
[94]In this case I am not certain which account should be accepted, especially at the defendant’s vehicle, in effect who started it, i.e. who grabbed who first. I have also referred to various discrepancies in the prosecution witness accounts which are difficult to reconcile.
Having read the trial evidence, the Magistrate’s reasons, and having had regard to the written and oral submissions of counsel, the Magistrate did not, in my view, err in his assessment of the evidence or the findings he made.
I can understand that on the evidence the Magistrate was left uncertain and unable to be satisfied beyond reasonable doubt of the prosecution case. The matters to which he referred were capable on my assessment of giving rise to doubt. There are no objective facts or uncontested facts that present an obstacle to his conclusions. The evidence does not prove beyond reasonable doubt that Mr O’Halloran deliberately assaulted Mr Meldrum, nor does it establish that he engaged in a joint enterprise with Mr Taylor. The evidence also does not disprove that Mr Taylor acted in defence of Mr O’Halloran. There is nothing inherently improbable in the evidence that was given by Mr Taylor or in the statement of Mr O’Halloran.
Clearly, the Magistrate was not able to reject the significant aspects of the defence case which he was required to do in order to convict Mr Taylor and Mr O’Halloran.
The Magistrate was, in my view, correct to dismiss the Information against both Mr O’Halloran and Mr Taylor. It has not been demonstrated that the Magistrate erred in his approach and that the Court should exercise “an exceptional discretionary power” in order to correct a decision that was “plainly wrong on any reasonable interpretation of the recorded evidence and (where relevant) the inferences which patently arise from it”.[3]
[3] Weinel v Rojas (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994). Olsson J also expressed similar views in Semple v Williams (1990) 156 LSJS 40 and DPP (Cth) v Brown (1994) 72 A Crim R 527.
I dismiss the appeal.