Police v Tupe No. Scgrg-99-672 Judgment No. S314
[1999] SASC 314
•3 August 1999
POLICE v TUPE
[1999] SASC 314
Magistrates Appeal - Criminal
1 WILLIAMS J. This is an appeal against the dismissal of an Information by a Magistrate sitting at Adelaide on 3 May 1999.
2 The Information alleged that on 20 September 1997 at Royston Park the respondent, Tupe assaulted John Paul Richards thereby occasioning him actual bodily harm contrary to s40 of the Criminal Law Consolidation Act 1935.
3 Tupe pleaded not guilty and a trial ensued.
4 Immediately after the close of the prosecution case the Magistrate dismissed the charge in reliance upon the principle expressed in The Queen v Prasad [1979] 23 SASR 161 at 163 ("Prasad"). The Magistrate awarded costs to the respondent. The ground of appeal is that the Magistrate erred in dismissing the Information.
5 Upon the hearing of the appeal the appellant contended, inter alia,
(a) That this was an inappropriate case for the exercise of the discretion to dismiss the Information on the basis that the prosecution case was so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
(b) The Magistrate did not reject the victim as a witness of truth. She gave no reason for finding that his evidence, as to what occurred outside, is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. The fact that the victim is an ‘exaggerator’ does not mean that he did not sustain his injuries as he described.
6 The Magistrate delivered ex tempore reasons for her decision.
7 The respondent and alleged victim, Richards, had been drinking together at the Saracen’s Head Hotel on the evening of 19 September 1997. They were joined at the hotel by Dean Nicholls. All three were known to each other socially and Tupe had worked for Nicholls. Richards returned to the house at Royston Park, where he boarded, and fell asleep in the lounge room. He had been drinking beer for some hours at the rate of about three schooners per hour and had a further can when he arrived home between 11pm and 12pm.. He acknowledged having arrived at the hotel at about 8.30pm although it was suggested in cross-examination that he arrived there much earlier.
8 There was a sudden disturbance as Richards lay sleeping. The respondent burst into the house and was obviously angry. He was accusing Richards of having taken his pay packet of about $400. The owner of the house, Gebert, gave evidence which the Magistrate accepted. Gebert described what he observed and heard in the house. According to him the dispute moved up the hallway and out of the front door. At one stage Gebert saw a red Commodore vehicle pull up outside. Gebert recognised the car as Dean Nicholls’ car upon which Gebert had done work some months earlier. Richards saw Dean Nicholls in the car but was not called to give evidence. The car was very close to the point where the scuffle between Richards and Tupe eventually took place.
9 Gebert remained in the house and did not see the events outside the front door. Richards was the only witness called by the police who was in a position to observe these latter events. Gebert did hear the sounds of an argument outside the house.
10 There was an obvious conflict in the evidence of Gebert and Richards as to how Richards and the respondent came to move down the hall. It was this particular conflict which led to the Magistrate’s decision. Richards describes a physical struggle involving some punching as he was attempting to remove the respondent from the house. The description is rich in its generalities but lacking in detail. However, to be fair to Mr Richards, he was suddenly awoken and may not have had all his wits about him. He was subsequently observed by the police to be affected by alcohol.
11 According to the Magistrate, Gebert’s description of events did not support Richards’ version. I observe that Gebert, who was in a bedroom said at the outset of cross-examination:
"Q. And you could say you heard nothing which indicated that there was a fight going on in the hallway.
A. Yes, I would believe there wasn’t any struggle in the hallway because I couldn’t hear anything. If I heard the screendoor close I didn’t hear anything inside, I wouldn’t have thought anything was happening inside because if there had been I would have been out of the bedroom pretty quick.
Q. Because you didn’t hear anything like fist on face.
A. I didn’t hear anything."
12 Richards described a physical struggle outside the front door between himself and Tupe. In the course of this confrontation Richards ended up on the ground with Tupe on top of him. Tupe had his hand around Richards’ throat applying pressure and Richards then claimed to have lost consciousness.
13 As a result of Tupe’s actions Richards claimed to have suffered a bruised throat. It was established that he suffered a broken collarbone and an injury to his right thumb and knee. Richards agreed in evidence that his collarbone was probably damaged as the two men fell to the ground. A witness, Constable Horgan, who was called to the premises about 12.30am to deal with the disturbance noted scratches around Richards’ neck and face. Gebert gave evidence of Tupe’s aggressive invasion of the premises whereby he kicked in the front door and split the door frame. Gebert also heard the subsequent argument out the front of the premises and later observed a fresh tear to Richards’ shirt. There was medical evidence to suggest how the collarbone and thumb injury may have been caused.
14 Richards could not say with any claim to certainty exactly what happened.
"Q. How did you end up on the ground.
A. Inside the struggle right, when myself and Clem was struggling, (sic) getting passed the front door onto the carpark out the front. I don’t know, I most probably lost my footing or he knocked me down, I can’t remember to tell you the truth. All I remember besides that I had blurry vision at the same time. (sic).
Q. What happened to you on the ground.
A. Clem had his hand around my throat, I was choking, trying to get free of it and I lost consciousness and the time I come to the Holden which was parked out the front was driving away."(sic).
and
Q. Is it the case (...) you have trouble remembering the precise details of what you were doing to him and what he was doing to you as you were trying to get him down the hallway, is that right.
A. I am not a commentator, mate."
and
"Q. Is it the case you cannot say you were punched to the ground or pushed to the ground or kicked to the ground or tackled to the ground.
A. Something like that in the ensuing melee.
Q. Is it true to say you remember being on the ground but you don’t remember how you got there.
A. I remember how I got there, I was inside the struggle." (sic).
15 The respondent told investigating police he did not know Richards. Nicholls was also unhelpful to police enquiries. Richards and Nicholls had apparently been drinking with Tupe earlier in the evening. It is not surprising that in her remarks the Magistrate anticipated the possibility that Tupe and Nicholls might have a problem with credit if they gave evidence.
16 In reaching her conclusion the Magistrate said that she exercised the Prasad discretion with the following matters in mind;
if the matter proceeded she perceived that costs associated with the trial would double;
she thought it ‘on the cards’ that she would not believe the defendant nor his witness but nevertheless believed that a finding of guilt could not be made ;
the victim was "an exaggerator";
she was unable to say, and if the case proceeded felt she would never be able to say, how the victim sustained his injury;
she was unable to exclude the possibility that the defendant had acted in self-defence ;
she felt that because the victim’s evidence as to what occurred inside the house was inconsistent with the evidence of the witness Gebert, whom the Magistrate found was a truthful and reliable witness, she could not accept the victim’s evidence as to what happened outside the house. I have quoted below the Magistrate’s words on this important point.
17 The relevant principle was formulated in Prasad per King CJ at 163 as follows:
"...a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it."
(emphasis added).
18 In order to justify the use of this power it was necessary in this case that the Magistrate should have formed the requisite conclusion as to the lack of weight and reliability in the evidence which constituted the prosecution case. However, the matter is not at large in terms of the test. The Magistrate is required to judge the evidentiary situation against an objective standard. It is only in circumstances where no reasonable tribunal could safely convict in light of the evidentiary deficiencies that the discretion may be exercised.
19 In my review of the Magistrate’s remarks I have made due allowance for the fact that they were made ex tempore. Nevertheless, I note the remarks of Duggan J in Harwood v Police (1998) 71 SASR 300 at 305 as to a Magistrate’s duty to provide adequate reasons in contested matters in busy trial courts. As far as I can discern, the closest that the Magistrate comes to stating and recognising a principle is contained in the following remarks:
"If the weight of the evidence is such that no matter what is said during the defence case at the end of the day I am not going to be able to bring from a finding of guilty. This is one of the rare cases I think it is probably proper to give myself a Prasard(sic) direction given the state of the day the matter goes on the costs will at least double. And I am quite satisfied that in this case I am not going to be able to bring from a finding of guilty even as is quite on the cards I don’t believe a word the defendant or his witness have to say."
20 Later, the Magistrate said:
"If I can’t rely on [Richards’] evidence about what happened inside the house where there is other evidence about what happened, I do not see that I can rely on his evidence about what happened outside the house at a time when there was no-one else present who could give evidence which sheds light on the veracity of the victim’s evidence.
In short I do not know what happened when they went outside. I am not going to know what happened even if I reject every word the defendant and his potential witness would have to say.
For that reason I Prasard(sic) myself to use the colloquial term...."
21 It is apparent that the Magistrate did not apply the test in Prasad although she referred generally to the principle. Indeed, the test if applied, would not have been satisfied in view of the state of the evidence. The cross-examination effectively foreshadowed a defence of self-defence. There were questions arising on the evidence which deserved to be answered and, if none were supplied, then an inference was available. The respondent’s lies to the police about his knowledge of Richards and his denial of being present at the house were matters which, at the end of the day, might be of importance. The injury suffered by Richards was clearly of significance and had to be brought into account. Similarly, the way in which the disagreement was outlined in evidence by Mr Gebert, who vividly described Tupe as a man who was not apparently in control of himself, required consideration.
22 All the matters to which I have referred arose out of the prosecution case and required assessment. Some might reasonably take the view that Richards’ evidence gained support from the other witnesses. I do not consider that the objective test which I have mentioned could be satisfied. The Magistrate has not correctly identified the relevant test. This was not a case in which the principle of Prasad could have been applied in the particular circumstances.
23 The appeal will be allowed and the Magistrate’s orders will be set aside. There will be an order that the case be remitted for re-hearing before another Magistrate.
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