Powell v Winzar - [2002] NTSC 7

Powell v Winzar [2002] NTSC 7
PARTIES:GARY OWEN FRANCIS POWELL
v

KEVIN DAVID WINZAR

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 67 of 2001 (20020134)
DELIVERED:  16 January 2002
HEARING DATES:  28 November 2001 and 10 January 2002
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:Mr J Stirk
Respondent:  Dr N Rogers and Ms G. McMaster
Solicitors:
Appellant:Povey Stirk
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0124
Number of pages:  16

ril0124
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Powell v Winzar [2002] NTSC 7

No. JA67 of 2001 (20020134)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
GARY OWEN FRANCIS POWELL

Appellant
AND:
KEVIN DAVID WINZAR

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 2 January 2002)

On 18 May 2001, following a trial before the Court of Summary Jurisdiction, the appellant was found guilty of having unlawfully assaulted Kenny Hayes on 2 December 2000. On 15 June 2001 he was sentenced to imprisonment for a period of 6 months with that sentence to be suspended after a period of 2 months.
The appellant appeals against his conviction and also against sentence. In relation to the conviction the grounds argued differed from those identified in the notice of appeal and in the further particulars provided by the appellant. The Crown raised no objection to the change in approach. The submission of the appellant was that her Worship failed to provide adequate reasons for her decision and that the conviction was unsafe and unsatisfactory. In relation to the sentence it was submitted that this was manifestly excessive.
At the hearing there were competing versions of events provided to the court. The evidence of Kenny Hayes, Carol Melba Strathern and Robert Ainsworth Chadwick was that they had been together at Ms Strathern’s residence at 40 Cawood Court Alice Springs on 2 December 2000. During the morning they had been drinking beer and listening to music. At some point in the afternoon they were interrupted by the arrival of the appellant. He was affected by alcohol and was in an aggressive mood. As he arrived the appellant slammed the gate and knocked over a rubbish bin. He entered the flat and soon after accused Mr Hayes of having stolen some money from him. He then assaulted Mr Hayes. The assault included grabbing Mr Hayes by the shirt, throwing him onto the lounge and then onto the floor, ripping his necklace off and kicking him or stomping upon him with his feet. Initially it was submitted by Mr Stirk, who appeared on behalf of the appellant, that there were contradictions between the versions of events provided by these three witnesses. However in the course of his submissions Mr Stirk accepted, correctly in my view, that there was no real conflict between them. There was some inconsistency regarding peripheral matters but the evidence of the prosecution witnesses as to the circumstances of the arrival of the appellant and as to the nature of the assault were largely consistent.
An alternative version of events was provided by the appellant. He said that he went to the residence of Ms Strathern in the morning. He took with him some beer which he drank with Mr Hayes and Ms Strathern. At about 10.30am he gave Mr Hayes $50.00 to buy some more beer. Mr Hayes left and, when he returned, the appellant asked where the $50.00 was. Mr Hayes replied that he did not have it. The appellant said that Mr Hayes then got “aggressive with me” and started pushing the appellant. The appellant said that he left the premises and walked out the back gate to premises occupied by Brian James. When he departed he left his glasses at the residence of Ms Strathern. He rang his friend Artie Kramer at about a quarter to twelve and asked him to go to Ms Strathern’s residence and collect his glasses. Mr Kramer did as he was asked and delivered the glasses to the appellant at the home of Mr James. The appellant said he then remained at those premises overnight and went home the following day. The appellant denied that he assaulted Mr Hayes in the manner described by the prosecution witnesses. He said that “he pushed me so I just pushed him back, that’s all I done. Didn’t do any more.”
The appellant called two witnesses in his case. The first was Brian James who gave evidence that the appellant came to his residence at about lunchtime and spent the whole of the day there and stayed overnight before leaving the following day. He said that the appellant seemed “normal to me” and made no mention of any assault or of money having been stolen from him. In his evidence Mr James agreed that the appellant went to his house on most weekends and quite often stayed overnight. He agreed that he could not particularly remember 2 December 2000 and whether the visit of Mr Powell which he was describing was on that date. In response to a question from her Worship in relation to what happened on 2 December 2000 he said: “I can’t remember really good at all.” He agreed that the visit he was describing could have been on some other date. In dealing with this evidence in his closing address counsel for the defence suggested that the witness had suffered “alcohol related brain damage” and his evidence was “not all it could have been”. He made no further reference to the evidence of Mr James. The submission of the prosecution was that Mr James “did not really know what we were talking about here today”. The observations of both counsel suggest something apparently obvious from the appearance of the witness. It seems that both counsel were acknowledging that Mr James was an unreliable witness.
Mr Artie Kramer gave evidence that on the morning of 2 December 2000 he drove the appellant to the residence of Ms Strathern. He said this occurred at about 9.30am. He said that the appellant had some beer with him and was dropped off at the back gate. Mr Kramer said that about two or possibly two and a half hours later he spoke with the appellant on the telephone. The appellant asked him to pick up his glasses from the home of Ms Strathern “because he just had an argument there and he didn’t want to go back and pick them up”. Mr Kramer said he did as he was asked and delivered the glasses to the appellant at Mr James’ residence. He described the appellant as being “a bit agitated, a little bit drunk, but he wasn’t too bad.” He said he remembered the occasion because Mr Chadwick was at Ms Strathern’s residence and was writing down everything that happened. He was cross-examined by the prosecutor and was confident of the time and that it was 9.30am when he first took the appellant to that address and it was two to two and a half hours later that he returned. He was not shaken in cross-examination.
In her findings the learned Magistrate accepted the version of events provided by the alleged victim, Kenny Hayes. She found that the appellant arrived in the afternoon at the premises where Mr Hayes and two others had been drinking. When he arrived the appellant was drunk and upset. He challenged Mr Hayes alleging that Mr Hayes had stolen money from the appellant. Her Worship found that there was no basis for that allegation. She found that the appellant grabbed his victim by the shirt and possibly by a necklace that the victim was wearing. He threw him onto a couch and then onto the ground and he “kicked or stomped on him when he was on the ground”. She found that the incident was unprovoked and constituted “a nasty assault” that went on for some time.
Failure to Disclose Reasons
Of course the onus rested upon the Crown to establish its case to the required standard of proof. It was the submission of the appellant that this could only have been achieved by her Worship accepting the version of events provided by Mr Hayes, Ms Strathern and Mr Chadwick and rejecting that provided by the appellant. There is no dispute that her Worship did accept the version of events provided by those witnesses but the appellant says that she failed to provide adequate reasons for so doing.
It is essential that a judge or magistrate should give reasons for decision sufficient for the parties to understand the basis of the verdict: Mobasa Pty Ltd v Nikic (1987) 47 NTR 48. A failure to give adequate reasons is an error of law: Papps v Police (2000) 77 SASR 210. The reasons of the judge or magistrate need not be “a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process” but the obligation is at least “to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In Carlson v King (1947) 64 WN (NSW) 65, Jordan CJ said at 66:
“It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.”
In her reasons for decision delivered on 18 May 2001 her Worship reviewed the evidence of each of the witnesses. She expressed the view that each of the witnesses for the prosecution was “probably affected, to a certain extent, by over consumption of alcohol at times”. She said that the evidence of Ms Strathern was “quite definite” but went on to note that Ms Strathern was “in many ways ... contradictory in the evidence that she gave.” She observed that Mr Hayes gave evidence in a “quiet” manner and that his evidence was “in many ways” at variance with the statement that he made to the police at the time. However she observed that at the time he made his statement he was “somewhat shaken by the events”. Her Worship then went on to say:
“In determining where the truth lies in a matter such as this, I consider that it is important to look, not only at inconsistencies, but also at consistencies, and in particular, any consistencies that may exist in matters which would appear to be immaterial as far as the principal charge is concerned. In this particular matter, I note that Mr Hayes, Ms Strathern and Mr Chadwick refer to the fact that when the defendant arrived that he slammed the gate open and kicked over the bin. Mr Hayes says that he did not see that but that he was told about it by others. I note that Mr Chadwick refers to the fact that after the incident had finished, but before they went to the police station, they had to stop in order to clear up the rubbish which was scattered around the rear yard. There would appear to be no reason why this would have occurred had it not been for the fact that the bin was kicked over.
I also note, that the witness – those three witnesses, have referred to Mr Hayes as wearing a chain with a cross on it. The defendant denies that Mr Hayes was wearing a chain of any sort on this particular occasion. It has been suggested that each of the witnesses for the prosecution – each of the civilian witnesses for the prosecution, had sat down and concocted their story after the incident occurred and before going to the police station. If that was the case, they would have to be extremely particular in the description of what occurred.
If, in fact, Mr Hayes was not wearing a chain at all, I would be extremely surprised if each of the witnesses would describe it in the manner that they have and in particular the fact that he was wearing a cross on that chain. If they were simply going to make up something, if they were that particular, that they would make up something with a chain, I would expect that that would be all that would be referred to. I also would not expect, if people were going to sit down and concoct a story, that they would have done so with such detail with regard to the manner in which the defendant came into the premises.
Having considered all of the evidence before me, I am satisfied that the events occurred basically as Mr Hayes has described. I accept that the defendant arrived at the premises, and for whatever reason, was drunk and was also upset. I accept that he challenged Mr Hayes. That Mr Hayes had stolen money and that he then grabbed Mr Hayes and threw him down. I accept that the assault, therefore, occurred in much the way that Mr Hayes has in fact described it. I accept, as already indicated, that there is some inconsistency between those witnesses as to the exact sequence of events inside the unit, but I find that hardly surprising.
An incident which occurs very quickly and involves a lot of action, one can hardly expect to be described in perfect sequential order. As regards the evidence of Mr Kramer, I note that he says that he dropped the defendant off at a particular time and picked him up at a particular time. I don’t accept that in fact he was dropped off at 9.30 in the morning. I accept it was much later. I also do not accept that he was sober at the time that he was dropped off. I can offer no explanation as to why Mr Kramer may have given the evidence that he did. I simply do not accept it.
Having heard all of the evidence, I am satisfied that the prosecution has established a case beyond reasonable doubt.”
The appellant submits that the evidence of Mr James and of Mr Kramer is important in that it supports the version of events provided by the appellant in some respects and contradicts that of the main prosecution witnesses. Both Mr James and Mr Kramer gave evidence to the effect that whatever incident occurred it happened in the morning rather than in the afternoon as claimed by the witnesses for the prosecution. It was submitted that her Worship gave no reason for holding that Mr James’ evidence “is not of a great deal of value with respect to this particular matter” and, further, that she did not identify the reasoning process that led to her conclusion that she would not accept the evidence of Mr Kramer as to the time that he dropped the appellant off on the relevant morning. It was submitted that she chose to reject those important evidential matters without assigning any reason for so doing.
In her reasons for decision the learned Magistrate briefly dealt with the evidence of Brian James. She noted that Mr James had said that the appellant arrived at his home at about lunchtime, he was calm and did not mention anything about an incident having occurred or that money had been stolen. She went on to say:
“However, I think in fairness, that Mr James’ evidence is not of a great deal of value with respect to this particular matter.”
That comment must be considered in the context discussed in paragraph 5 above. In the court below the fact that Mr James was unreliable was accepted by all. Whilst it was desirable that her Worship expressly refer to this in her reasons the basis for her rejection of his evidence is tolerably clear when seen in the overall context of the presentation of the case. There was no further need for her Worship to spell out why his evidence was not of assistance to her. The reasons were clear.
In relation to Mr Kramer her Worship simply noted that she did not accept his evidence. She gave no reason for so concluding. She said that she could “offer no explanation as to why Mr Kramer may have given the evidence that he did”.
In Papps v Police (supra) the Full Court of the Supreme Court of South Australia dealt with a case in which a magistrate examined the evidence given by the prosecution witnesses, which evidence had been criticised by defence counsel, and gave reasons for acceptance of that evidence but did not expressly state the reasons for rejecting certain evidence given by the defendant in those proceedings and one of his witnesses. In that case, as in this case, the acceptance of the evidence of the prosecution witnesses necessarily involved a rejection of the defence evidence. The court noted that the failure of the magistrate to assess the defence evidence or to give reasons for its rejection left the appellate court in a position where it was unable to properly consider the appeal. Gray J (with whom Olsson and Wicks JJ agreed) said (219):
“In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
The issue that then arises is whether the magistrate’s reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.
...
This Court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate’s reasons were inadequate.”
In the present case her Worship accepted the evidence of Mr Hayes based upon the consistency of that evidence with the evidence of Ms Strathern and Mr Chadwick in relation to peripheral matters. Her Worship did not address the competing versions of the actual circumstances of the assault in order to determine where the truth lay. Rather she looked at “consistencies that may exist in matters which would appear to be immaterial as far as the principal charge is concerned”. It seems she rejected the evidence of the defendant in relation to the nature of his entrance to the premises and as to the presence of a chain worn by Mr Hayes, because it was in conflict with the consistent evidence of the three prosecution witnesses on these matters. There was no consideration of the evidence of the appellant relating to the time of his arrival at the premises, as to his sobriety at that time, as to who was the aggressor in the altercation, nor as to the nature of the altercation between Mr Hayes and himself. There was no attempt at all to deal with the evidence of Mr Kramer as to the times at which the appellant had been present at the premises. The evidence of Mr Kramer was consistent with the evidence of the appellant that the appellant was delivered to the address in the morning and had gone from the premises around midday. Whatever had occurred took place in the morning. That evidence was inconsistent with the evidence of the prosecution witnesses and, if accepted, cast doubt upon the case presented by the prosecution. In circumstances where her Worship had already made observations suggesting reasons for concluding that the evidence of Mr Hayes and Ms Strathern was unreliable, acceptance of some or all of this evidence may have given rise to a reasonable doubt as to the reliability of the witnesses for the prosecution on the central issues to be resolved.
Her Worship should have dealt with the evidence of the appellant and Mr Kramer and provided reasons for rejecting that evidence. She did not do so. This Court is left to speculate as to whether that evidence was considered by her Worship and, if it was, why it was rejected. This is not a case where the learned Magistrate has preferred one witness over another based upon the way in which they gave evidence or because of the nature of their evidence. It is not a case where she has preferred one version of events over another for identified reasons of logicality. She has preferred one version of events over another solely by reference to a consistency of evidence given by prosecution witnesses in relation to matters extraneous to the particular event with which she was concerned namely an assault within the premises. There was no attempt to address the conflicting versions of events relating to the alleged assault. There was no attempt to explain why the evidence of the defence witnesses was rejected.

In my view there was a failure to give adequate reasons for decision. The failure related to the important issue of credit and, in those circumstances, the appeal must be allowed and there must be a new trial.
It is not necessary for me to address the remaining grounds of appeal however, in view of the argument presented to me, I do address one matter.
The Failure to Call a Witness
The appellant complains that the prosecution failed to call a necessary witness being the neighbour whose name is Darryl Manuel and who is referred to as “JC” in the evidence. The evidence of the prosecution witnesses was to the effect that the incident concluded when Mr Hayes and the witness Mr Chadwick went next door to the flat of JC. They were followed by the appellant who “stormed” into the flat and was told to leave by JC. Mr Chadwick said that JC then called the police and passed on the message that they should go to the police station.
The evidence of the appellant was that after the altercation he left the premises of Ms Strathern and went to the address of Mr James. He did not leave that address that day. He specifically denied having gone to the neighbour’s flat. The prosecution witnesses were therefore in direct conflict with the appellant in this regard.
It is clear that JC was able to give evidence relevant to the proceedings. He was able to address the important issue of the time at which events occurred. He could also give evidence as to the condition of Mr Hayes and, if it be so, the presence of the appellant at his flat including his demeanour at that time. The evidence of JC, if accepted, could lend strong support to an acceptance of the reliability of the appellant or, alternatively, the witnesses for the prosecution.
The police did not interview JC. Constable Hastie was aware of his existence and acknowledged his importance to the case when giving evidence. He could give no reason for JC not having been called.
Prior to the commencement of the hearing the solicitors representing the appellant raised the matter with the prosecution. The police provided the appellant with the name of the witness and his address. Without further explanation the letter in reply asserted that “we do not intend to call him as a witness”. At no stage during the course of the proceedings did the prosecution provide any reason why JC was not called to give evidence. The appellant did not call the witness. There is no explanation from him as to why he did not do so. There is no suggestion that the witness was not available to him.
In R v Apostilides (1984) 154 CLR 563 (at 575) the High Court made it clear that the Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. The Court said:
“A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”
The court went on to say (577):
“So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.”
In Boyce v Nunn (1997) 138 FLR 475 Martin CJ dealt with a case where police failed to obtain a statement from a witness to an alleged assault. The accused was precluded from approaching the residence of that witness as a term of his release on bail. Police indicated that they would interview the witness but failed to adequately follow up on that undertaking. Martin CJ held that in the circumstances of that matter the conviction was unsafe and unsatisfactory because of the failure by police to seek out and interview the witness. However his Honour observed (480):
“In some circumstances it may be, as suggested in R v Wyatt, that no injustice arises because the accused can be shown to have had an opportunity to secure the evidence for other reasons.”
In Hallett v R (1995) 3 NTJ 1424 the Court of Criminal Appeal held that an appeal should be allowed for various reasons including that there had been a willful abstention by police officers from interviewing witnesses likely to give evidence exculpatory of the accused. However in Penney v R (1998) 155 ALR 605 (at 609) the High Court held that “there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial”. Much will depend on the circumstances of the particular case.
In the present case there was no indication of what, if anything, the witness who was not interviewed would have had to say on the relevant issues. He was available to both prosecution and defence and yet there is no indication of what his evidence may have been. It may have served to assist the prosecution. It may have served to assist the defence. It may have been neutral or unhelpful. It is not possible to conclude that the appellant was deprived of access to evidence that would have assisted his defence. In the circumstances it cannot be said that to proceed without the evidence was unfair to the appellant or led to an unsafe or unsatisfactory verdict.
This ground of appeal must fail.
The appeal is allowed. The conviction is set aside. There is an order for retrial.

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