PORTOKALLAS v Police - [2004] SASC 273

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PORTOKALLAS v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction - appellant convicted of assault occasioning actual bodily harm following trial in magistrates court - appellant submitted on appeal that magistrate had failed to give adequate reasons for findings - task of appellate court to independently assess advantage of magistrate who observed witnesses give evidence - no error - appeal dismissed.
Criminal Law Consolidation Act 1935, ss 39(1) and 40, referred to.
DeVries v Australain National Railways Commission [1992-1993] 177 CLR 472, applied.

PORTOKALLAS v POLICE
[2004] SASC 273
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against conviction. The appellant was charged on complaint jointly with Peter Tertipis and Michael Theodorus Liacopoulos, that on or about 6 October 1999 in Torrensville, he assaulted Frank Antonio Tedesco, a person above the age of 12 years, thereby occasioning him actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935 (“CLCA”). The trial came on for hearing before a stipendiary magistrate sitting in the criminal jurisdiction of the Magistrates Court at Adelaide on 4 February 2003. The appellant and the other two defendants were represented by counsel at the trial. Each of them pleaded not guilty to the charge against them.
At the conclusion of the prosecutor’s opening address, an application was made by the prosecutor to amend the information with respect to Tertipis to remove the charge of assault occasioning actual bodily harm and in lieu thereof substitute a charge of common assault pursuant to s 39(1) of the CLCA. Prior to the close of the prosecution case, the prosecution tendered no evidence against Tertipis and the charge against him was dismissed and an acquittal recorded. Tertipis subsequently was made available by the prosecution for cross-examination by counsel for the defendants.
The principal witness for the prosecution was the alleged victim, Frank Tedesco. Tedesco said that eight months prior to the alleged offence, he had met a woman called Elena and formed a relationship with her but that ceased in early September. It was suggested to Tedesco in cross-examination that he had continued to bother her with incessant and sometimes abusive phone calls. Tedesco denied this but said that he had received a call from Elena, in the course of which a man came to the phone and threatened to kill him and to break his legs. Tedesco said he hung up but received about another eight calls from what appeared to be the same person. Eventually the man said he wanted to meet Tedesco. An arrangement was made to meet in the carpark of Kentucky Fried Chicken (KFC) on Henley Beach Road. Tedesco said that he arrived there between 11.50 and 11.55 pm and waited in his car. He saw a car drive up and two men walked towards him. He described one as having a baseball cap which he was wearing backwards. He had small spectacles, was unshaven and obese, that is, overweight. The other was clean shaven, had brown hair, and as they got closer he could see the glint of a ring on his right hand. Tedesco went on to say, however, that the person with the baseball cap was the one who had the ring which appeared to reflect the light. He said the man with the baseball cap then asked him about sending an e-mail to Elena. The man then mumbled some sort of abuse and turned to his right and walked away a few steps and appeared to be making a mobile phone call. Tedesco identified the appellant as the man who was wearing the baseball cap. Tedesco said that the man then came back, turned around and punched him in the face with his right hand and that was the hand that had the big chunky gold ring. Tedesco said the very first punch was to his left side around the eye area. That punch knocked off his glasses so he could not see very clearly after that. There were another two punches following but he lost count after three, that were to the jaw area, upper lip of his left-hand side. He said that after he had been punched the second man turned around to his right hand rear side and after about the third punch, the second man began kicking his legs. Tedesco said that after the first punch he reacted by stepping back as the blow was relatively strong. Tedesco was asked how long the assault lasted and he said that it seemed like an eternity but “it was quick it may have been five minutes at the most”. The magistrate queried his estimate of five minutes and Tedesco then said he was not sure and said that it may have been eight minutes. He then said “it was five minutes. Not more than five minutes”.
Tedesco said that he tried to get his hands up to protect his face but they were trying to get him to the ground because they were both kicking his legs. He said his only thoughts then were to get away from them. It was a bit blurry but he ran away pretty much in a big circle away from them. He said he knew there was no way he was going to identify them as he had never seen them before and that the only way to do it would be to get the registration licence plate number on their car. Tedesco said that although he was stumbling he kept running and he ran around to the front left of their car and tried to move towards the back but the third man in the car exited the vehicle and tried to trip him as he was running past. He managed to move to the back of the vehicle, however, and had a quick glance at the licence plate number which he memorised. He then moved towards Henley Beach Road. Tedesco said the registration number was UEU 032 and he was able to remember it until that day. He described the car as white with four doors and said it looked like an old Magna. Tedesco said he saw the two men walk back to their vehicle and he then called his brother on his mobile to come to collect him. He recalled going to the police station. He said he was dazed and in shock.
Tedesco later attended the Queen Elizabeth Hospital where he received treatment for his injuries. He was subsequently treated by a Dr Thompson and also saw Dr Ozols, a dentist. Tedesco made a full report to the police the following day. Photographs were taken of his injuries which were tendered in evidence (Exhibit P1).
Tedesco was subsequently cross-examined by Mr Kenny who appeared for the appellant, as well as Mr Stokes who was representing Liacopoulos. Tedesco described his initial statement that it was the man with no baseball cap and who was clean shaven that had the glint of the ring in his right hand as “bad communication”. He maintained it was impossible for it to have been that particular man. He denied that he had got the men the wrong way around.
It was put to Tedesco that at some stage he had pulled out a knife in his right hand and held it like a hammer with the blade sticking up. Tedesco denied that anything like that had happened and said there was never any knife. Tedesco said that he was struck by both men but it was the man with the baseball cap and the predominant ring who struck him in the face.
Both counsel asked Tedesco why he did not simply leave when he saw three men arrive instead of one. He responded that at that stage he did not have any suspicions that they were there to beat him up. Mr Stokes cross-examined Tedesco about the description he had given to the police about the men which referred to the man who had first spoken to him as being “about 21 years of age with a baseball cap, dark colour and a backwards position, wearing a gold ring on the little finger of his right hand” but no description of any other person. Tedesco said, however, that he was sure of what they looked like as it was “pretty hard to forget the faces once you have been punched up by them”.
In response to a question put to him by Mr Stokes Tedesco reiterated that he did not have a knife and that he had attended the meeting totally unarmed. He was asked how he remembered the appellant. He said that he had only seen him and Liacopoulos in previous court appearances. He was asked whether he recognised them from the night or from the fact that they had been in court and he said he recognised them from the night.
Tedesco’s brother, Carlo Tedesco gave evidence that he had received a phone call at about midnight on 6 October 1999, as a result of which he had attended at the KFC carpark and collected his brother who appeared battered and cut. He subsequently took his brother to the Holden Hill police station and then to the Queen Elizabeth Hospital to have his injuries dealt with.
A number of other witnesses gave evidence for the prosecution but the magistrate described that evidence as vague and lacking in credible detail and he did not have regard to it in reaching his decision. It is unnecessary, therefore, for present purposes to deal with that aspect of the matter.
Senior Constable Robert Clark was the police officer who investigated the matter. He gave evidence in the course of which an affidavit sworn by him on 19 August 2002 was submitted by consent (Exhibit P8), as well as the records of interview which were conducted with the appellant (Exhibit P11) and with Liacopoulos (Exhibit P9).
Officer Clark seized a men’s gold ring from Liacopoulos’ house which is the gold ring appearing in photographs 6, 7 and 8 of Exhibit P1, but the ring was later released to Liacopoulos’ father as it was his property. Officer Clark said that the subject of a knife was raised by the appellant and that at the commencement of his interview with him, a knife with an aqua coloured handle which was contained in a black case was produced (Exhibit P10).
Tertipis was made available for cross-examination by the prosecution. He was with the appellant and Liacopoulos when they drove to KFC on the night in question but he remained in the car whilst the other two went over to Tedesco. Tertipis could not hear any conversation but said that he saw Tedesco produce a knife. He said there had not been any physical contact between any of the three men before the knife was produced. He identified the knife (Exhibit P10) as looking like the one he saw. He said that after Tedesco pulled out the knife there was a kerfuffle. He saw Tedesco drop the knife. Tedesco then ran away and the appellant returned to the car with it.
Neither the appellant nor Liacopoulos gave evidence at the trial. The appellant relied upon his statement to the police as contained in his record of interview. That interview was conducted on 28 November 1999 at the Port Adelaide police station. In that interview, the appellant could not remember what clothing he was wearing but when asked whether he was wearing a baseball cap, said he usually did. When asked about jewellery he said he usually wore a small round ring and a small gold ring and he was probably wearing those that night. He referred to the meeting at KFC and the production of the knife by Tedesco as follows:
“Oh he goes ‘Oh just wait a second man, let me make a phone call’. Bends over to pick up the phone. I said ‘Look, man, I’m going’. All right, he grabs the phone and as, as he was grabbing the phone I see him putting something under his jumper and I, I saw, I saw like the handle straight away. So I said to Michael, I said ‘Mike, let’s go’ in Greek and I said to him ‘Let’s go because he’s just grabbed a knife and he’s, he’s got it under his jumper’. And Michael’s going ‘No, no, he hasn’t go nothing, man, I didn’t see him grab nothing. And we’re talking in Greek now, all right, so he wouldn’t understand’. And I go ‘Mike, let’s go, he’s got the knife under his jumper and I swear we should just jump in the car and go’. And by the time I said that he’d pulled it out and Michael’s just, because he’s done self-defence, like with his cousin or something, quick thinking, he just gave him a couple of quick punches and he dropped it and he picked it up and jumped in the car and we took off and then, you know, heard about this a couple of days ago and I just, you know, was bulk surprised.”
He repeated the assertion about the knife on other occasions during the interview. The appellant said that after Liacopoulos hit Tedesco he heard something drop and Liacopoulos said “Let’s get out of here”. He said he thought Liacopoulos gave him the knife when they were in the car. He said the knife case was next to the knife “Like he dropped it, the case fell out of his jumper, Michael grabbed it, put it back in the case, I think”.
There was a further reference to the knife in the record of interview (at p33-35):
“DETECTIVE YORK …
Q.He drops the knife.
A.Mm hm.
Q.You pick up the knife.
A.Mm hm.
Q.Did you pick it up.
A.[No], er Michael picked it up and – No, I picked it up. I picked up the case, Michael – No, I picked up the knife, Michael picked up the case.
Q.All right.
A.He gave me the case.
Q.And that’s in the car.
A.Um, the case.
Q.Well you tell me.
A.No, no, no, no, no. He had the whole thing under here.
Q.Yeah.
A.He pulled it out and was holding one in one hand and one in the other.
Q.Yeah.
A.He dropped it, then I, I picked up the knife, Michael picked up the case. I picked up the knife like that like an idiot, and Michael picked up the case although he gave it to me to put it in there. Well it was either in the car or as I was getting in the car.
Q.Right.
A.And he kept coming towards us even after I’d had the knife, you know, even after we were about to get in the car he kept on coming towards us. I said just, go ‘Look, fuck off man and just leave us alone’. And that’s when Michael just took off pretty fast, you know.
Q.And the knife that you’ve brought in today, that is the knife you’re talking about.
A.That is the knife that he dropped, that he produced, yeah.
Q.And you kept possession of that night, that knife –
A.Mm hm.
Q.From that time.
A.Yeah.
Q.Where did you keep it.
A.Yeah, I kept it in my shed under, under some shelves. I left it there on purpose because I knew, I heard from someone else that he had gone to the cops, from that dude from the café, all right, and I knew straight away ‘cos when he rang me up and, and was saying, you know, ‘Do you know frank …’ blah, blah, blah, this and that, ‘he’s gone to the cops’ blah, blah, blah, and due to some shit and then hung up and I thought ‘I’m keeping it, I’m [going to] keep it, because if anything happens then, you know what I mean, that’s his knife.
Q.Have you seen the knife before.
A.Other than the time when – [No]. I’ve never met the guy before, you know what I mean.
Q.It doesn’t belong to you.
A.[No], Absolutely not.
SENIOR CONSTABLE CLARK:
Q.The knife doesn’t belong to Michael.
A.[No].
DETECTIVE YORK:
Q.When did you make the decision that you were [going to] keep the knife.
A.Basically straight away.
Q.Right.
A.You know what I mean.
Q.So that, that night when you got home you’ve put it in the shed that night.
A.Yeah, put it in the shed in one spot and it hasn’t left that spot since that day.”
There was no dispute that Tedesco was injured in the altercation which involved the three men and photographs of those injuries were tendered by consent. In addition affidavits of two medical practitioners were admitted. Dr Semmler from the Queen Elizabeth Hospital (P5) described significant bruising and swelling to the left eye area and a subconjunctival haemorrhage. Dr Thompson, a general practitioner, said that Tedesco was suffering from several facial injuries (P6). He had extensive bruising and swelling on and over the left eye and left cheek, including four small lacerations below the left eye. He also had petechial haemorrhages around the lower left eyelid. Dr Thompson described the lacerations around the eye as four distinct cuts of a minor nature between the lower part of his left eye to the top part of his upper lip. Dr Thompson considered the lacerations were consistent with being struck by a ring.
Although Tedesco complained of a sore neck, Dr Thompson found a full range of movement. Tedesco also reported pain on the left knee cap on the upper outer side. This was painful with movement and Dr Thompson found bruising over that region of the knee cap. Tedesco also complained of pain and soreness to the back of his right shoulder, but Dr Thompson said there was no visible bruising. Dr Thompson found two ulcers on the inside of Tedesco’s mouth, on the left side adjacent to his top teeth which were expressed to be consistent with being caused by blows to the face.
Dr Thompson referred Tedesco to his dental surgeon. Dr Ozols saw Tedesco on 9 October 1999 and noted lacerations inside Tedesco’s mouth on the left cheek, opposite upper left canine and first bicuspid. Dr Ozols also observed that the upper left third molar had slight enamel chipping. He further reported tenderness above the right and left tempro mandibular joints and reported some trauma to the tempro mandibular joint.
The learned magistrate having summarised the medical evidence, which he described as not in dispute, found established beyond reasonable doubt that as at 5 or 6 October 1999, Tedesco had sustained the various injuries described by the medical witnesses.
The learned magistrate referred to the evidence of Tedesco whom he assessed as being a reliable accurate and plausible witness. He noted and considered at length Tedesco’s evidence that following the first punch his glasses were dislodged and that he had a considerable amount of blood about and within his left eye which had put him at some disadvantage. The learned magistrate accepted Tedsco’s evidence however, that despite that, he had good vision of the right eye and that he was able to identify the appellant and Liacopoulos as his assailants. The learned magistrate went on to say that he formed a positive view of the credibility of Tedesco and was prepared to accept his evidence that he was punched by the appellant on several occasions and further that he was punched by Liacopoulos on an unknown number of occasions and that both had delivered kicks which made contact with Tedesco’s legs.
The learned magistrate referred to the suggestion made by the appellant and Liacopoulos and Tertipis with respect to the knife and the assertion contained in their respective records of interview that Liacopoulos had acted in self-defence on the knife being produced. The magistrate noted that the appellant had asserted that he had only ever attended at the carpark to speak with Tedesco and that there were no thoughts of aggression until Tedesco produced the knife, but said this was in contradiction to an admission by the appellant in his interview that as he proceeded to the carpark he was filled with anger.
The learned magistrate assessed and commented that by his own admission the appellant was in an angry state of mind from the moment he confronted Tedesco at the carpark. The learned magistrate was not persuaded that there was ever a knife produced by Tedesco. He thought that it was “intriguing and unlikely” that on the appellant’s evidence he would have taken the knife back to his home and stored it in a shed. In any event, the learned magistrate considered that if the circumstances were as alleged by the appellant and Liacopoulos it was surprising that they had not reported the alleged assault upon them to the police as a matter of urgency and produced the knife at that time. The learned magistrate rejected the evidence of both the appellant and Liacopoulos as to the alleged aggression on the part of Tedesco by means of the production of the knife and threats. He accepted unreservedly the evidence of Tedesco and rejected the defence of self-defence. He therefore found the allegation of assault occasioning actual bodily harm proved beyond reasonable doubt against the appellant and Liacopoulos. The learned magistrate was unable to identify precisely the number of punches delivered and/or the number of kicks delivered by each of them, but in his assessment this was a joint enterprise as a result of which they were jointly responsible for what happened to Tedesco.

On the hearing of the appeal, Ms McCrohan for the appellant, acknowledged the problem she faced as a result of the strong finding of credit made by the learned magistrate favourable to Tedesco. She submitted, however, that the learned magistrate had failed to reveal the essential process by which he had made that finding, and his total reliance on credit made it impossible to ascertain the reasoning upon which the decision to convict was based. Ms McCrohan submitted that there was inadequate information to determine how the magistrate had dealt with matters such as suggested inconsistencies and improbabilities within the evidence of the victim, such as Tedesco’s evidence as to the ring which he claimed was worn by the appellant, the improbability of Tedesco remaining in the carpark after his claim as to threats made against him and seeing three men arrive, the fact that in evidence in chief he said that he had not seen the appellant between the night of the offence and the date upon which he gave evidence as opposed to his admission under cross-examination that he had seen him at other court appearances and the inconsistency as to the length of time over which the assault occurred.
Ms McCrohan submitted that Tedesco had a very strong and powerful motive for attending with a knife at the carpark that night as he was angry and upset and all those matters were supportive of an inference to be drawn from the evidence which favoured the version of events given by the appellant in his record of interview.
Ms McCrohan also referred to the evidence of Tertipis as to the existence of the knife and the fact that he was called as a prosecution witness. She submitted that there was inadequate information available to determine why the learned magistrate had given no weight to what he had to say. She criticised the finding by the magistrate to the effect that it was intriguing and unlikely that the appellant would have taken the knife home and stored it and his comment that he was staggered that the appellant and Liacopoulos had not reported Tedesco’s assault to police at that point to enable a proper investigation to be carried out.
It is the task of this court on the hearing of an appeal from a magistrate to conduct an independent assessment of the evidence and arrive at its own conclusion. In assessing the evidence, the court should have due regard to the advantage held by the learned stipendiary magistrate in seeing, hearing and observing the demeanour of the various witnesses who are called to give evidence: DeVries v Australian National Railways Commissioners & Ors[1]. The findings of fact made by the learned stipendiary magistrate based upon the credibility of a witness are not to be set aside simply because this Court considers that the balance of probabilities are against those findings. If a finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it be shown that the learned magistrate “ ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.” (per Brennan, Gaudron and McHugh JJ at 478)
[1] [1992-1993] 177 CLR 472
In this case, the learned magistrate formed a positive view of the credibility of Tedesco whom he described as a reliable, accurate and plausible witness. He accepted his evidence that he had been punched by the appellant on several occasions, as well as Liacopoulos on an unknown number of occasions, and that both had delivered kicks which had made contact with Tedesco’s legs.
The learned magistrate accepted Tedesco’s denial that he had been in possession of the knife. In preferring Tedesco’s evidence, the learned magistrate noted an inconsistency within the account given by the appellant in the course of his record of interview, namely, that he only intended to speak with Tedesco and did not think of any aggression until Tedesco produced the knife as opposed to the statement that as he approached Tedesco’s car he was filled with anger. There was evidence to support a finding by the learned magistrate that as the appellant proceeded to the carpark he was filled with anger as he said in his record of interview:
“And I was pissed off and I, I admit that, I didn’t give a shit. I was that fucking pissed off, I, I would’ve gone down there and bashed him, all right. But Michael came with me and goes to me ‘Look, man, don’t touch him, all right, you don’t want to get yourself into shit’. I goes ‘Well with the shit that he was saying to me on the phone – I’m gonna kill you, I’m gonna break your legs’, this and that, and he’s now well saying that I was saying that on the phone. That pisses me off because then I, I go to Michael. I said ‘Michael, I’ll go down there’ I said, ‘I’ll bash him if I want to’ I said, ‘but you know I’m gonna get into shit for it, all right, and I can be fucked getting into shit’. Michael goes ‘Well I’m coming with you’. I said ‘Make …’ He goes to me ‘Make sure you don’t touch him, you know, if you touch him, all right, I’m, I’m gonna end up bashing you’. That’s what Michael said to me ‘cos me, em and Michael are like brothers, all right, me and Michael do everything together, we’re everywhere together. Not any more now because of this Michael doesn’t want to fucking talk to me, all right. He’s split up my friendship with Michael and Peter, all right and he’s making me break up with my girlfriend as well, all over this, all right. And Michael goes to me ‘I’m gonna come with you’ he goes, ‘to make sure you don’t touch him, all right’ and I said ‘Mate, I’m not gonna touch him, all right I’m not that stupid, all right, especially considering I’m in trouble already with the police’. I said ‘I’m not that stupid to go down there and like ring him and threaten him and then go start shit with him, all right’.”
The appellant also told the police that Liacopoulos was looking out for him and that the only reason that Liacopoulos was with him was “to stop me from doing anything [because] I was, I was, upset”.
The learned magistrate was entitled therefore to rely on the contradiction in the appellant’s account of events to make an adverse finding against the appellant.
Although the learned magistrate did not specifically refer to inconsistencies within the evidence of Tedesco, he had the opportunity to observe him and assess his evidence at length, as Tedesco gave sworn evidence and was cross-examined about these matters by counsel for both the appellant and Liacopoulos. The criticisms made by the appellant with respect to Tedesco’s evidence on the hearing of the appeal were undoubtedly the subject of submissions by counsel for the appellant and Liacopoulos at the trial as the learned magistrate commented that he did not “share the negative assessment of crucial prosecution witnesses as was apparently formed by defence counsel”. Although the learned magistrate did not give any specific reason for rejecting the evidence of Tertipis, whom Ms McCrohan described as a prosecution witness, regard should be had to the way in which it came about that he gave evidence. The prosecution does not appear to have proffered Tertipis to the court as a witness of truth as no questions were asked of him in evidence in chief. In accordance with a duty of prosecutorial fairness, the prosecution simply made him available for cross-examination by counsel for both defendants.
Notwithstanding the withdrawal of charges against him, Tertipis’ involvement with the defendants placed him in a similar position to that of an accomplice which required the learned magistrate to approach his evidence with great caution. In view of the learned magistrate’s strong finding of credibility in favour of Tedesco, it is not surprising that he rejected Tertipis’ evidence as to the knife.
There did not appear to be any dispute at the trial that the appellant and Liacopoulos were the men in the carpark, nor that Tedesco received injuries from an assault by them. The only issue related to the suggested defence of self-defence based on the assertion by the appellant and Liacopoulos that Tedesco produced a knife and threatened them before the assault. There was no evidence to suggest that the appellant or Liacopoulos told the police or anyone else about the knife until more than a month after these events, and at a time when the police were investigating the appellant and Liacopoulos for what appeared to be a serious assault upon Tedesco. It is not surprising, therefore, that the learned magistrate expressed some scepticism as to the validity of that claim.
In my opinion, no error has been demonstrated on the part of the learned magistrate which would require this court to interfere. In my opinion, the appeal should be dismissed.