Police v Zare-Saisan - [2011] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ZARE-SAISAN
[2011] SASC 46
Judgment of The Honourable Justice David
8 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
Appeal against Magistrate’s dismissal of complaint – prosecution witnesses gave inconsistent evidence – Magistrate found no case to answer – Magistrate found even if there was a case to answer the charge could not be proved beyond reasonable doubt.
Held: Appeal dismissed – Magistrate erred in finding no case to answer – there was evidence which if accepted would have made out the offence – Magistrate was entitled to find the charge could not be proved beyond reasonable doubt – Magistrate found witnesses patently unsatisfactory – Magistrate had the benefit of seeing the witnesses – no reason to interfere with Magistrate’s findings as to witnesses.
Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
The Queen v Prasad (1979) 23 SASR 161; R v Bilick & Starke (1984) 36 SASR 321, applied.
Workcover Corporation of South Australia v Trask [2007] SASC 339; Tepper v Di Francesco (1984) 38 SASR 256; Haw Tua Tau v Public Prosecutor [1982] AC 136, considered.

POLICE v ZARE-SAISAN
[2011] SASC 46
Magistrates Appeal: Criminal

DAVID J: This is an appeal by the police (“the appellant”) against a Magistrate’s dismissal of a complaint. Abbasgholi Zare-Saisan (“the respondent”) was charged and pleaded not guilty to assault causing harm to Indiana May on 17 February 2008 at Stonyfell contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
At the conclusion of the prosecution case the Magistrate dismissed the complaint because he found there was no case to answer or alternatively that at that stage of the proceedings, even if there were a case to answer, the case could not be proved beyond reasonable doubt. In taking the latter alternative, he applied the principle set out in The Queen v Prasad.[1]
[1] (1979) 23 SASR 161 at 163.
The appellant appeals against the dismissal of the complaint at that stage of the proceedings.
Facts
On the evening of 16 February 2008 the respondent was the authorised driver of a taxi van with installed equipment to convey a wheelchair passenger. In other words it was capable of carrying more people than a normal car.
Ms May, the alleged victim, had attended the 21^st birthday party of her best friend at Stirling. A number of other prosecution witnesses including her boyfriend at the time, Timothy Pitt, were also present at the party.
The respondent’s taxi had been radioed to pick up some departing guests and arrived at the party in Stirling at about 3.00am or shortly after. Ms May and Mr Pitt, along with a number of others, got into the taxi van. It proceeded from the South Eastern Freeway to Portrush…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] SASC 46
Decision Date: 8 April 2011

CaseChat Overview and Summary

The appellant in this case, Police v Zare-Saisan, appeals against the magistrate's dismissal of a complaint against the respondent, who is alleged to have assaulted Ms May while she was a passenger in his taxi van. The court was required to determine whether the magistrate erred in finding no case to answer, given the inconsistencies in the prosecution witnesses' evidence, and whether the magistrate was correct in dismissing the charge on the basis that even if there was a case to answer, the charge could not be proved beyond reasonable doubt.

The court found that the magistrate erred in finding no case to answer, as there was evidence which, if accepted, would have made out the offence. However, the magistrate was entitled to find that the charge could not be proved beyond reasonable doubt, given the inconsistencies and unreliability of the prosecution witnesses' evidence. The magistrate had the benefit of seeing the witnesses and evaluating their credibility, and there was no reason to interfere with his findings.

The appeal was dismissed, and the final orders were that the appeal be dismissed and the decision of the magistrate be upheld. The court found that the magistrate's assessment of the prosecution witnesses' credibility was sound and that there was no appealable mistake in his dismissal of the charge. The inconsistencies and unreliability of the prosecution witnesses' evidence meant that the charge could not be proved beyond reasonable doubt, even if there was a case to answer.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the dismissal of the complaint at that stage of the proceedings.Facts On the evening of 16 February 2008 the respondent was the authorised driver of a taxi van with installed equipment to convey a wheelchair passenger. In other words it was capable of carrying more people than a normal car. Ms May, the alleged victim, had attended the 21st birthday party of her best friend at Stirling. A number of other prosecution witnesses including her boyfriend at the time, Timothy Pitt, were also present at the party. The respondent’s taxi had been radioed to pick up some departing guests and arrived at the party in Stirling at about 3.00am or shortly after. Ms May and Mr Pitt, along with a number of others, got into the taxi van. It proceeded from the South Eastern Freeway to Portrush Road, before turning right into Greenhill Road. It then travelled east until it turned left into Hallett Road to travel towards Kensington Road. Evidently, there was some altercation about the payment of the fare. The taxi van stopped short of Kensington Road on Hallett Road, approximately opposite St Peters Girls’ College. Whilst people were exiting the van it took off with Ms May still inside with nobody other than the respondent. After it took off Mr Pitt ran after the van as did another passenger and witness, Gene Sykes Bidstrup. The taxi van turned left into Kensington Road to travel west and Mr Pitt was still in pursuit. Whilst chasing the taxi van he hailed down and was picked up by a passing vehicle driven by a witness, Sebastian Fragomelli, and another witness who was a passenger in the vehicle, Foster Sardelis, aged 13. The taxi van stopped and, on the appellant’s case, relying on the evidence of Ms May, Mr Fragomelli and Mr Sardelis, May was on the ground on Kensington Road being kicked by the respondent. The kicking was the basis of the charge. On being approached by the three witnesses, the respondent got back into his van and left. The witnesses having picked up Ms May, although there were differing versions as to how this happened, drove off in pursuit. They eventually followed him to the Hindley Street police station, having first gone to the Norwood and Wakefield Street police stations in pursuit. At the trial it was agreed that, on attending a general practitioner on 18 February 2008, Ms May suffered the following injuries:·Abrasions to the front and right upper arm;·Abrasions to the right front side of her chest;·Abrasions to the inner side of her right elbow;·Abrasions on her right buttock;·Abrasions on her right knee;·Abrasions on her right rib cage just above the hip level;·Abrasions on her left knee and on her upper left shin. In submissions both before the Magistrate and before me, the respondent’s counsel, Ms Shaw QC, pointed out a number of inconsistencies in the evidence of the appellant’s witnesses at trial. I set out the most important examples:·There was conflict in the evidence as to where the taxi was heading when it left Stirling. Ms May gave evidence that it was to the city, a witness Mr Riggs said it was going to Mr Pitt’s residence, and Mr Nicholson, who gave evidence, said it was going to Hallett Road.·Ms May said that when the taxi van stopped on Kensington Road, shortly before the Glynburn Road intersection, she got out through the sliding door and ran along Kensington Road towards the east. She said she reached the Myall Avenue intersection with Kensington Road where she said the defendant, who had chased her, pushed her down and, when she was on her back, kicked her in the ribs on her right side. She then tried to hail a taxi. The taxi, however, did not stop for her. She then flagged down the vehicle in which Mr Pitt was travelling. This is to be contrasted with the evidence of the witnesses in the vehicle, namely, Mr Pitt who did not see her get kicked, Mr Fragomelli who said she was getting kicked repeatedly, and Mr Sardelis who said he saw that she was repeatedly being kicked but in a statement given to the police in May 2010 said it was only one kick. None of Mr Pitt, Mr Fragomelli nor Mr Sardelis saw the taxi described by Ms May.·Mr Pitt gave evidence that when Ms May got into Mr Fragomelli’s car she said she had been kicked by the taxi driver, whereas both Ms May and Mr Fragomelli denied such a conversation taking place.·There was a difference in descriptions in the pursuit of the respondent’s car. The descriptions by Mr Pitt and Ms May indicate inappropriate if not dangerous driving, while the description by Mr Fragomelli, on the respondent’s argument in his own interests, indicates the contrary. Ms Shaw pointed out, both to the Magistrate and myself, Mr Fragomelli’s willingness to not tell the truth for his own protection.·CCTV footage from the final destination of both vehicles, namely the Hindley Street police station, was introduced into evidence. The Magistrate found that the CCTV evidence contradicted the evidence of Mr Pitt, who said that on stopping at the Hindley Street police station he ran towards the defendant’s taxi van and attempted to remove the ignition keys to prevent the defendant from leaving the scene. Ms Shaw in argument and the Magistrate in his reasons point out that it would have been impossible for the respondent to leave the scene without colliding with Mr Fragomelli’s car. The Magistrate also came to the conclusion that the only reason that Mr Pitt ran towards the respondent’s van was in a fit of vengeance to attack him. Because of those inconsistencies and his assessment of the prosecution witnesses in general, the Magistrate found that there was no case to answer and dismissed the charge.The Magistrate’s reasons

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although I am entitled to look at the matter afresh, I am conscious of the distinct advantage that the Magistrate had when assessing the reliability and credibility of the prosecution witnesses that were called, especially in his careful evaluation of the numerous inconsistencies between their testimony. In relation to that aspect of his reasons the appeal fails.Conclusion Although I find that the Magistrate erred in finding there was no case to answer, I can find no appealable mistake in his dismissing the charge pursuant to the principles of The Queen v Prasad in the way that he did. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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