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 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
In his reasons for dismissing the charge the Magistrate firstly traversed the facts and pointed out many of the inconsistencies urged upon him by Ms Shaw in her submissions. Ms Shaw had invited him at that stage to bring in a verdict of not guilty. Having found that he was concerned as to the credibility of the salient prosecution witnesses when they gave evidence, and having directed himself on the test of no case to answer pursuant to the principles of Haw Tua Tau v Public Prosecutor[2] and R v Bilick & Starke,[3] the Magistrate then went on and said at [69]‑[77]:
[2] [1982] AC 136 at 151.
[3] (1984) 36 SASR 321 at 337.
In this case, I find that the version of how the assault was perpetrated on May by the Defendant is so significantly contradicted and contrasted by the evidence of Pitt, firstly, and then subsequently by Fragomeli and Sardelis, that applying the dicta of Bilick and Starke, such evidence, in my view, being thus contradicted and contrasted amounts to no evidence at all.
The issue of insignificant evidence or of no case for the Defendant to answer at the close of the Prosecution case, in my view, is a question of law to be determined. This is outlined in the case of May v O’Sullivan (1955) 92 CLR 654 at p 658.
The fundamental question to be decided is not whether the defendant ought to be convicted on the evidence as it stands but whether he could lawfully be convicted. The issue with respect to proof of every element of the offence is whether there is some evidence which, if accepted, would either prove the elements directly or enable its existence to be inferred.
This is also the dicta in the case of Zanetti v Hill (1962) 180 CLR 433: -
Where there are two possibilities on the evidence one of which must result in an acquittal and it is not possible to determine which of the two is more probable then there is no case to answer.
I remind myself consistently that a general weakness in any of the Prosecution’s evidence does not mean that there is insufficient evidence or no case for the Defence to answer.
However, in this case I am of the view that because of the inconsistencies I am not able to place any reliability on the credibility of any of the witnesses in the Prosecution’s case, particularly giving rise to the allegations of the assault and what transpired thereafter which also impact severely on the respective credibility of the civilian witnesses, and I find I am not in a position to come to any determination as regards a finding of fact on the Prosecution’s case.
I am of the view that, firstly, there is no case to answer in that the evidence adduced from the Prosecution’s case is not capable, in law, of supporting a conviction.
I also say that even if I were to accept all of the evidence of the Prosecution, including whatever inferences most favourable to the Prosecution case which are reasonably open are drawn and exercising a reasonable mind, I still cannot reach any conclusion of guilt beyond reasonable doubt, because I cannot exclude from the hypotheses raised by the Defence in cross-examination and the propositions put to Prosecution’s witnesses in cross-examination, I cannot exclude such all hypotheses and propositions which are consistent with the innocence of the Defendant.
I also continue to remind myself throughout the Prosecution’s case and my deliberations now, that the mere existence of an hypothesis consistent with innocence does not permit me to find a no case to answer but, nevertheless, I find that the Prosecution’s case is so perforated with doubt that I am not able to come to any finding of fact in favour of the Prosecution.
If I fall short of that option of no case in law, I nevertheless, still find that the Prosecution witnesses, particularly the civilian witnesses, have been so patently unsatisfactory in their evidence that I am satisfied at the close of the Prosecution case, without calling on the Defence, that the Prosecution’s evidence adduced thus far does not put me in a position where I can reasonably convict the Defendant in light of the evidentiary deficiencies in the Prosecution’s case and in those circumstances I will invoke a Prasad direction in favour of the Defendant and, accordingly, I find that Prosecution has not proved the charge against the Defendant and the charge against the Defendant is dismissed.
Appeal
Mr Longson, for the appellant, now argues that the approach of the Magistrate is erroneous. He firstly argues that the inconsistencies and imperfections in the evidence of the prosecution witnesses cannot justify the finding of no case to answer at law. It is to be noted that Ms Shaw at trial in fact did not ask for such a ruling. She asked for a Prasad direction.
I can only agree with Mr Longson’s first submission. The test of whether there is no case to answer at the end of the prosecution case is clearly set out in a number of decisions, but in particular in R v Bilick & Starke[4] where King CJ said:[5]
The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence.
His Honour then went on to deal with the appropriate test when the case is one of a circumstantial nature. That does not apply here.
[4] (1984) 36 SASR 321.
[5] (1984) 36 SASR 321 at 337.
Mr Longson argues that the Magistrate has erred in finding that there is no case to answer. No matter how contradictory the evidence may have been, there is still clear evidence which if accepted makes out the offence. Mr Longson also argues that that being so, the evidence presented was not that type which could be described as the product of a disorderly mind so as to amount to no evidence at all.
I find that the Magistrate has erred in so finding that in law there was no case to answer. He has also erred in saying the following at [75]:
… I still cannot reach any conclusion of guilt beyond reasonable doubt, because I cannot exclude from the hypotheses raised by the Defence in cross-examination and the propositions put to Prosecution’s witnesses in cross-examination, I cannot exclude all (sic) hypotheses and propositions which are consistent with the innocence of the Defendant.
He appears to have confused the test for a case to answer involving circumstantial evidence and that involving direct evidence. A case involving direct evidence is not concerned with the exclusion of an hypothesis consistent with innocence. That is the test at the end of the day when the case is based upon circumstantial evidence. Also, the Magistrate appears to have elevated the raising of an hypothesis by the defence in cross-examination to the status of some form of evidence. The fact that a question might be consistent with the innocence of a defendant does not elevate that to an hypothesis consistent with innocence. At any rate, such a test only applies to circumstantial evidence.
Despite those imperfections, the Magistrate then went on to say that even if he fell short in coming to that conclusion nevertheless he dismissed the charge as he is entitled to do in an appropriate case pursuant to the principles of The Queen v Prasad.[6] In that case King CJ, when discussing the principles of whether there is a case to answer at the end of the prosecution case, said:[7]
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed. (1976) p. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that 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. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.
[6] (1979) 23 SASR 161.
[7] (1979) 23 SASR 161 at 163.
The Magistrate found that the witnesses were so patently unsatisfactory that at the end of the prosecution case he could not safely convict on that evidence. He has a right to deal with the matter in that way. In deciding to do that, I find that the Magistrate is under no obligation to require the respondent to elect whether to give evidence or not before making a submission on the facts. I adhere to what I said in Workcover Corporation of South Australia v Trask,[8] when applying the decision of Tepper v Di Francesco.[9]
[8] [2007] SASC 339.
[9] (1984) 38 SASR 256 at 267-268.
Although the Magistrate in this case has erred when finding that there was no case to answer, both in the test that he applied and in his reference to the facts, nevertheless I can find no reason to interfere with his assessment of the witnesses in coming to the conclusion that he did as to whether the charge had been proved beyond reasonable doubt at the end of the prosecution case.
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.