Pritchard v WA Police
[2007] WASC 127
•15 JUNE 2007
PRITCHARD -v- WA POLICE [2007] WASC 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 127 | |
| Case No: | SJA:1010/2007 | 24 MAY 2007 | |
| Coram: | McKECHNIE J | 15/06/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JENNIFER ANNE PRITCHARD WA POLICE |
Catchwords: | Criminal law Assault occasioning bodily harm Evidence of 8yearold complainant Whether corroboration Whether open to convict No new principles Criminal law and procedure Absence of accused from court No remote witness facilities Interests of justice |
Legislation: | Criminal Procedure Act 2004 (WA) |
Case References: | Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : AR 8837 of 2005
Catchwords:
Criminal law - Assault occasioning bodily harm - Evidence of 8yearold complainant - Whether corroboration - Whether open to convict - No new principles - Criminal law and procedure - Absence of accused from court - No remote witness facilities - Interests of justice
(Page 2)
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms A C Longden
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
(Page 3)
- McKECHNIE J:
Introduction
1 The appellant is in a long-term same-sex relationship with the 8-year-old complainant's mother. In November 2006, she stood trial in the Magistrates Court on one charge of assault occasioning bodily harm, one charge of aggravated assault and one charge of aggravated assault occasioning bodily harm. The charges arose from injuries allegedly inflicted on the complainant by the appellant kicking him about the face after the complainant's mother had gone to work and before the complainant left for school on 2 December 2005. On 6 November 2006, the Magistrate acquitted the appellant of the charge of assault occasioning bodily harm and the charge of aggravated assault and convicted her of a charge of aggravated assault occasioning bodily harm (AR/05/8837). He bespoke a pre-sentence report and, on 17 January 2007, placed the appellant on a 12-month intensive supervision order. The appellant sought leave to appeal and, by order of Blaxell J on 1 March 2007, the application for leave to appeal and the appeal were directed to be heard together.
2 On 24 May 2007, following the hearing, I granted leave to appeal on both grounds. As the lower court failed to forward copies of exhibits as required, I adjourned the proceedings and reserved my decision. The exhibits were subsequently received. I have now viewed them, particularly the complainant's two interviews, and the photographs of the complainant's injuries taken on 2 December 2005.
The proceedings at the trial
1 November 2006
3 The appellant was represented at trial by counsel. Before the matter got underway, the prosecution applied to adjourn because the police prosecutor allocated to the matter was sick. The prosecutor who was given the matter advised the court there was no other prosecutor available. Closed circuit television facilities were available to the court on that day to take the evidence of the complainant who was 8 years old. The application was opposed by the defence, noting inter alia that the facilities for CCTV were on hand. The Magistrate gave a short adjournment to consider the matter. Unfortunately, the Magistrate's reasons for granting the adjournment were not transcribed, but his reasons for refusing a lengthy adjournment can be discerned from what he said the next day. His decision was based on the interests of justice requiring that for all
(Page 4)
- concerned the matter should be resolved. He granted an adjournment until the following day.
2 November 2006
4 When the matter commenced on 2 November, the prosecutor pointed out that the interview had been recorded on DVD. The only provision for the playing of DVDs was a machine in the courtroom and the picture could not be viewed in one of the remote witness rooms. He asked for the complainant to be able to view the evidence prior to cross-examination.
5 The Magistrate raised as an option that the appellant be excused from the courtroom while the DVD was being played and while the complainant was present viewing it. The Magistrate noted that that would be an unusual course. At that stage counsel conceded that the appellant not be present during the playing of the tape. The Magistrate said:
"It is really the situation that I made a decision yesterday and I think, realistically, nothing has changed from that situation since. I took the view that this matter has been going since December of 2005. Whilst it is a first hearing date there have been a number of attempts … to get it to hearing and now we are in October and if I was to adjourn it it would be 2007 before the matter is heard."
6 The Magistrate noted that the appellant had the charge hanging over her head for nearly 12 months and that would also weigh on the complainant.
7 Later, counsel withdrew his client's consent and the Magistrate ruled that the appellant should not be present while the complainant was watching the recording. That is what occurred. The appellant's counsel was present throughout. The appellant had access to the transcript of the interviews and, to judge from the subsequent cross-examination of the complainant, was able to give instructions to counsel on the content of the material.
8 This decision is challenged in the first ground of appeal.
9 The second ground of appeal challenges the reasonableness of the verdict on the evidence. This ground requires a review of the case to determine if there is a significant possibility that an innocent person has been convicted: M v The Queen (1994) 181 CLR 487 at 494; Jones v The Queen (1997) 191 CLR 439 at 452.
(Page 5)
The evidence
10 I set out a summary of the evidence in sequential order rather than the order in which witnesses were called.
The complainant
11 The complainant gave evidence as previously indicated, being present in court when a DVD of interviews with him (made on 2 and 12 December 2005), by suitably qualified persons, were played to the court.
12 When first asked about the incident, the complainant said:
"… this morning my parents thought that I stole, um, my parents watch and, um, she my parents said that I have to bring it back today if I don't, I'll get belted and, um, then what happened was, um, I go the dog's bowl so I could feed the dog then [the appellant] said, um, don't worry about don't worry about feeding the dog and - - and … she … took off, took the dog's bowl off me and she grabbed it and then she pushed me and I think she pushed me, um, down to the ground … and then she kicked me in the head twice I think and I spilled the dog's water and then I went to the toilet and then I went to go to sit down and that's all what happened so - -"
13 The interviewer then explored the incident in more detail. The complainant got out of bed at five past six, got dressed, put his shoes on, fed the cats, made breakfast for himself and ate it:
"[The appellant] asked where, um, who took the watch.
…
Mum went to mum went to work then a few, um, then when I finished my, um, breakfast I brushed my teeth.
…
Then I, um [the appellant] had to talk to me about, um, something and she, um, then she, um, then she, um, then 'S' [my sister] went to school.
…
Ten to eight
(Page 6)
- …
She needs to catch the bus
…
After 'S' left for school?
Well she, um, well first she, um, pushed me down to the ground and then kicked me and then got the well the well that thing that I said before and, um, yeah, um …"
14 The complainant declined to tell the interviewers his address because "Well because somehow I'm afraid you're going to go over there". In describing the appellant, the complainant said:
"… she's got brown eyes. … Dark hair and, um, she, um usually, um, has boots on well not big boots but kind of boots."
15 When asked what the appellant was wearing that morning he said "Um, all I can remember is she was wearing a white shirt." He was asked about shoes:
"Q. Okay tell me some more about, you said that [the appellant] wears boots?
A. Yeah.
Q. Tell me more about the boots.
A. Um, well it's about, um, kind of like these sort of boots. These are - -
Q. What do you call them?
A. Ah, these are boots you know instead of shoes they're … (indistinct) … boots.
Q. Do you know what shoes she was wearing this morning?
A. Huh?
Q. Do you know what shoes she was wearing this morning?
A. Um, sneakers.
Q. Sneakers were they - -
(Page 7)
- A. Boots or something I don't know.
Q. Can you remember?
A. Not exactly."
- The complainant then said:
"If I need to get back to school I'd better go now cos it takes quite a while to get to my school."
Asked why this was an issue he said:
"But if [the appellant] finds out that I'm here … I'll get busted and … I'll get in trouble and I'll get even more beltings than I'm supposed to."
Then he was asked:
"Q. Tell me about what happens with [the appellant]?
A. She gets really angry.
Q. What happens when she gets angry?
A. She tries well she does try to calm down because, um, well what she dos [sic] is she takes, um, tablets to try and make her calm down."
The complainant then described getting beltings with a black belt with a gold buckle and always on the backside because he is doing things wrong.
16 The interview was suspended and during the suspension the complainant got quite upset and so further interviewing on that day was discontinued. The complainant was interviewed again on 12 December and was asked (at 13) about footwear:
"Q. … what was [the appellant] wearing on her feet this day?
A. Boots.
Q. Yeah, tell me about the boots.
A. Well, they were kind of like, um, boots like shoes and boots - -
Q. Yeah.
(Page 8)
- A. - - shoes boot shoes like not boots like from here to there - -
…
Q. Okay, so what sort of boots would they have been?
A. Steel cap boots.
Q. Steel, how do you know they were steel cap boots?
A. Um, because she just tells me that they're steel cap boots and I can tell which ones are steel cap boots.
Q. Yep and how do you tell if they're steel caps?
A. I don't know, I can just tell.
Q. Okay - -
A. By the look of em just looking at em."
17 He described the boots as having laces, being black in colour and that the appellant wore them any time, even at work, "And when she's working on the house". She "has got another pair of steel cap boots which are brown", but on the day she was wearing the black pair:
"And I think I'm sure it is, I'm sure it is, if I'm wrong then I'm stupid."
18 The complainant said that he "lied and said that it was me who took it (the watch)" and he made up an act crying to get out of "god dam [sic] trouble". He thought that his sister had taken the watch and that he could tell. The appellant said that she wanted the watch in her "hands today", just before he went to school. The complainant then went to feed the dog:
"[the appellant] pushed me and then kicked me in the head twice.
…
She snatched [the dog bowl] off me"
- and said:
"… don't worry about feeding the dog.
- … she had a grumpy face."
19 She had pushed with her hands on his head, to his forehead using both her hands. The dog bowl was in her hands. One hand touched him and the dog bowl touched him. The dog bowl touched the side of the face and then "she kicked me there twice". The complainant was lying on his tummy. She used the right leg to kick. He said the kicks hit his right eye and the second slid over and hit the ear as well, "It god dam [sic] hurt". He said afterwards there was a black bruise.
20 He was then interviewed about other alleged assaults.
21 After the interviews were played, and in the absence of the appellant, the Magistrate asked certain questions of the complainant with a view to establishing whether or not the complainant could take an oath. The Magistrate concluded that he could and the complainant was duly sworn. The proceedings thereafter continued in the presence of the appellant. The complainant was cross-examined by the appellant's counsel. At t/s 42 he gave evidence as follow:
"'Get in the lounge room now.' Then she goes, 'Why did you wet the bed? Why did you wet the bed?' and I was, like, 'I don't know. Really, I don't know.' Then she kept on saying, 'No, you do know You do know,' and I kept on saying, 'No, I don't. I don't. I don't,' and so she - she goes, 'If you don't answer - if you don't answer, then you'll get the belting of your life,' and then - then I said, 'I'm positive I don't know why.' And then she got up, pushed me down, and then kicked me in the eye twice and, yeah, I knocked over the dog's water and then she cleaned it up. She - when I got up she pushed me out of the way and I went to the toilets and I went to school."
22 He was asked about an issue about the watch. He said she could not find the watch and he confessed. He did not know who took the watch.
23 He was cross-examined about the boots at t/s 43:
"What was she wearing on her feet?---She was wearing steel cap boots.
Are you sure about that?---I'm positive."
- He was then taken to the transcript of the interview where he had said "sneakers" and "boots or something" before being asked: "What makes
(Page 10)
- you so sure?" He answered "Because just about all the time she wears steel cap boots".
24 The complainant's mother left in the morning after he and his sister had had breakfast. The appellant got up, wearing dog pyjamas and looking half asleep at around 7 o'clock. She was in her pyjamas when she took him into the lounge room to speak about wetting the bed. She then went to have a shower and get dressed. "S" went to school at about 10 past 8. Before the appellant got under the shower, she did not speak about the watch. She did not talk about the watch before the kicking happened:
"You have said in your video records of interview, both of them, [complainant], that you were talking about the watch to her before that happened?---I don't know why I said that then.
… Did you have a discussion about he watch at all that morning?---No."
25 The complainant was asked about a boy called "B" and whether he had ever had a fight with him. He answered that "B" had tried to start one but did not punch him. His classmates and Ms Treanor, his teacher, had seen the bruise. The complainant denied ever getting into a fight with people at school. He denied that he was lying. He denied wrecking stuff around the house or breaking anything. In the bathroom he said he wrecked the back of his drawers. He used to get teased about the lesbian relationship between his mother and the appellant and got angry about it, but had never been in a fight because of that.
Nicola Louise Treanor
26 Ms Treanor was the complainant's teacher in 2005. Between 8.20 am and 8.25 am on 2 December 2005, an incident came to her attention when she noticed that the complainant had scratches and bruises on his face. Another child brought it to her attention. She identified the photo exhibit "A" as the marks she saw. In cross-examination she said she had taught the complainant for five months. He was an unpredictable student at school. He was bullied a lot; usually the children would taunt him. He would be teased about his head lice, smelling and the state of his clothes. She did not see him teased about the lesbian relationship of his mother. She was asked about whether she caught the complainant out telling lies:
"He used to be quite destructive in the classroom and he would break things and he would steal other children's property and he
(Page 11)
- would lie about that but he would not lie about actions - like, interactions."
27 She did not recall physical bullying. The complainant was straight to the point if something had happened. He would just state what had happened chronologically.
Stephen Roy Richards
28 Mr Richards was the principal of the complainant's school and had been so for six years. On 2 December 2005, Mr Richards spoke with the complainant. He noted a bruise on the side of his face and some grazing, he thought, under the chin. He identified exhibit "A" as a photograph of the bruising. When he spoke to the complainant initially, he was agitated but he had calmed down enough to sit quietly and talk. He was happy to sit and talk to an extent, but very quiet and quite reserved. Mr Richards was focused more on the injury and how it may have occurred:
"… As I said earlier, I was concerned that he may have had a problem getting to school or it may have been something that happened when he arrived at school or something that had happened before he came to school, so I explored those three areas."
- He subsequently contacted the Department for Community Development ("DCD").
Rory Phillip Cornelius
29 Mr Cornelius had been engaged as case manager for the complainant during an open contact period with DCD for approximately one year, around November 2004, when he took over the case.
30 When he saw the complainant, he had some injuries to his face. He also looked withdrawn. He was not willing to speak. Ms Etherington was not with him at the time that he spoke with the complainant. He made a telephone call to Ms Etherington and they both returned to the school.
31 In cross-examination he said that neither the complainant's mother nor the appellant sought help during his involvement. His understanding was that they had been in contact with DCD at times in the past.
(Page 12)
Katrina Maria Etherington
32 Ms Etherington was a senior field officer for child protection at DCD. She attended the complainant's school, spoke with the complainant and observed "red marks that looked like they were bruises on the right side of his face and some scratches".
33 She had first come in contact with the complainant and his family prior to the October school holidays in 2005. She could not recall whether the family made contact with DCD.
Sarah Jane Skeldon
34 Dr Skeldon examined the complainant on 2 December 2005 at Princess Margaret Hospital. Her evidence was that in examining the complainant, the most noticeable thing was that he had some abrasions to the side of his right eye. There were three areas of abrasion and they were pink in colour and looked relatively fresh because they were not dried and scabby. On examining and undressing him, he had quite a large number of bruises scattered over him. He had a small yellow bruise on the sternum, three round bruises on his right thigh and a centimetre sized bruise on the posterior of his right shoulder. He had a larger five centimetre by two and a half centimetre bruise over his left iliac crest or hip. He had two scratches on the right side of his neck, linear abrasions at right-angles to each other under the angle of his jaw on the right side.
35 Dr Skeldon arranged for photographs to be taken of the complainant's injuries and these were marked as exhibit "A". The complainant accounted for the injuries on his face but the other bruises he did not account for. Dr Skeldon said that the injuries on the face were abrasions and looked recent.
36 The history of the injury was recorded as follows:
"I [the complainant] was feeding the dog. [The appellant] pushed me to the ground and she kicked me in the face. She was wearing boots. She kicked me twice in the face, same place. She thought I stole her watch but I didn't.
…
I went to school."
37 Dr Skeldon went on to say that the injury was consistent with a kick to the face; obviously a kick to the face can vary in force; had it been a
(Page 13)
- very forceful kick, the injury would have been more substantial but she believed it was consistent with the injury given.
38 In cross-examination, counsel asked about bruises and red trauma marks which Dr Skeldon said were likely to have been produced by blunt trauma. She explained as follows:
"Well that's a medical description of what a bruise is and a bruise is bleeding within the skin or below the skin and to do that, you have to damage the little blood vessels that are in that area and it's usually - well it has to be through squashing them."
39 When asked whether she had any impressions of those marks being caused by a hit with a shoe she said:
"The marks on his face I've recorded as abrasions, not bruises. It looked like there had been friction force and the skin had been removed in those areas, so it's not the bruise you get with blunt trauma. This would be a friction force from moving those layers of skin."
- She was unable to say that a shoe caused the abrasions and she could postulate many things that could have caused them, but a shoe was one of the possible causes.
Laura Ann-Maree Russ
40 Ms Russ, is a Detective Senior Constable in the Child Protection Squad. On 13 December 2005 she interviewed the appellant and her partner, the complainant's mother, and subsequently interviewed the complainant. The video record of interview with the appellant was played but was not tendered. The Magistrate referred to relevant portions in his reasons.
The defence case
41 The appellant did not give evidence. Her partner, the complainant's mother, was called. At the time of trial she was still in a relationship with the appellant, they having been living together coming up to eight years and knowing each other for nine. The complainant had just had his third birthday when they started living together. She described the relationship between the appellant and the complainant as follows:
"It was fantastic. [The complainant] used to scream every time she would go to work because he thought she wasn't coming
(Page 14)
- home and he would insist on every time I had to go and pick her up from work or drop her off to work that he was to come and was rather adamant that he got to spend his personal time with [the appellant] whatever possible."
- It was a very close relationship.
42 Initially the appellant was the provider while the complainant's mother stayed home and looked after the children. That role changed when the appellant became ill.
43 She described how the complainant was most of the time a "pretty good kid" but he had problems and had issues for which they tried to seek help. He had behavioural problems at home and she caught the complainant out lying on more than one occasion. He had been known to lie about serious things. On the day of the incident the complainant's sister arose about 5 am and woke the children around 6 am. That morning, the appellant, who woke later, was very difficult. She could barely walk straight and she was extremely dopey. She had taken too many Temazepam the night before. She was dizzy and she had to be aided to the shower. She got dressed and the complainant's mother helped her to dress. She wore sneakers because the job did not require anything other than sneakers. They were New Balance brand because they each had a matching pair (the appellant and the complainant's mother), because they bought their shoes at the same time. The steel cap boots were out the back door because they were only used when the appellant was working in the backyard.
44 There was an issue about a watch. Despite her suspicions that it was not the complainant who had taken the watch, he was adamant so she asked for it to be returned. She had a further conversation about the watch in the kitchen and then went to work. At the time she left the appellant was still sitting in the lounge room "just not there". She did not seem angry. She did not seem physically capable of it in the state she was in.
45 The complainant had been diagnosed with ADHD and was on dexamphetamines. His behaviour was "very slow that morning. He seemed to be dragging his feet, which was unlike him … the best way I can describe it is that he seemed extremely slow and sluggish and, like, he just - he was - it was almost like he was extremely tired", said the complainant's mother.
46 She gave evidence that the complainant had been suspended from his previous school for fighting. She has never known the appellant to be
(Page 15)
- aggressive towards the complainant. She may have smacked the complainant with an open hand. The complainant's mother had smacked him. If the appellant smacked the complainant, she smacked him on the backside.
47 In cross-examination the complainant's mother said her job had required her to wear steel capped boots. On the day in question the appellant was extremely lethargic. She suffers from vertigo. The illness does not make her angry and frustrated.
48 At times the appellant got angry with the complainant. The complainant had told lies but he did not lie about everything.
49 She was asked whether she asked the complainant if anything had happened on the Friday morning in the house between 7 am and 9 am. The appellant said she could not remember. She was not grumpy that morning.
50 When the complainant's mother finally got in touch with DCD by telephone, the appellant was in the background extremely upset and angry, as was she.
51 The complainant's mother denied that the appellant had a t-shirt with the number "54" on it, contrary to the complainant's evidence.
The Magistrate's reasons for decision
52 In relation to the first two charges, the Magistrate said that in cross-examination the complainant had a vague recollection of events. Despite listening to his recorded statement, that did not appear to jog his memory. He noted that the offences were not corroborated and came to the view "it would be dangerous and frankly, not possible for the court to conclude beyond reasonable doubt that the actions indeed occurred". The appellant was thereupon acquitted. In relation to the third charge, the Magistrate said that corroboration was available. The Magistrate noted that in her video record of interview the appellant acknowledged that she had spoken to the complainant about the watch on the Friday morning, telling him that she just wanted to know the truth. The complainant's evidence, as the Magistrate described it, was that after that conversation he went to get the dog's food bowl and as he did so the appellant took the bowl off him, pushed him to the ground and kicked him twice to the right side of the head. She then walked away. The appellant's version on video was not dissimilar in that she agreed she approached, snatched the dog bowl and thereafter denied any physical contact. The appellant's evidence
(Page 16)
- in the videos was that when the complainant left the house there was no physical injury. The upshot was that within a period of approximately 10 to 15 minutes the child sustained an injury and there can be no dispute in relation to the existence of the injury. The Magistrate noted conflicting evidence as to the footwear and accepted there was contradictory evidence on the part of the complainant, taking the view that on the morning the best case scenario was that the appellant was indeed wearing sneakers on her feet. Relevant to the morning, the appellant agreed with the evidence that the complainant had indeed wet his bed and had cleaned it up.
53 The Magistrate noted a difference between the appellant's account on the video, that she was fine on the morning and was clearly in a position to communicate clearly and undertake general tasks which conflicted with the evidence of the complainant's mother that the appellant was effectively non-compos mentis. The Magistrate found that evidence to be less than reliable. He noted reasons why he regarded the complainant's mother's evidence as less than reliable.
54 The Magistrate was of the view that the complainant was an impressive young man, forthright beyond his years. He considered that the complainant well understood the nature of the proceedings and found his evidence to be generally reliable. He noted some areas of contradiction, but his recollection of the assault was, in the Magistrate's view, unwavering. He accepted the complainant's evidence combined with the evidence of the injury. The evidence of early observation of injury led him to conclude that the charge was proved beyond reasonable doubt.
The grounds of appeal
Ground 1
"I was excluded in part from the hearing to accommodate the evidence of the Complainant."
55 The appellant had a copy of the transcript of the interview. Her counsel had a copy. The combination of circumstances due to the prosecution commenced on the first day of hearing when there were facilities available, and the fact that the interview was recorded on a format that did not allow its transmission to a remote witness room, placed the Magistrate in a dilemma. He had acceded to the defence request that the trial proceed as listed. There were good reasons in the interests of justice why the trial should not have been further adjourned. The complainant had been interviewed by police previously and the
(Page 17)
- evidence recorded with a view to admission as his evidence-in-chief: Evidence Act 1906 (WA), s 106HA, s 106HB.
56 Before the hearing the complainant had been declared a special witness and was entitled to give evidence from a room outside the courtroom. Necessarily, if the complainant was to view the recording - not an unreasonable request - there was an issue due to the lack of facilities. The Magistrate was well aware of the powers under the Criminal Procedure Act 2004 (WA), s 88(4). The power to exclude an accused from proceedings should be exercised very sparingly and only for the interests of justice. In this case the Magistrate focused on the interests of justice and the different considerations to be taken into account.
57 The Magistrate had to exercise his discretion to resolve the dilemma. The decision to exclude the appellant in the unusual circumstances was a reasonable decision. It has not been shown that the exercise of his discretion miscarried, or that there has been a miscarriage of justice. Ground 1 fails.
Ground 2
"The decision of the Magistrate was unsafe and unsatisfactory in that the evidence of the assault was uncorroborated by any independent witness and that the injuries themselves are not capable of corroborating the complainant's version."
58 I have conducted a careful review of the whole of the trial. In common with Jones and MFA v The Queen (2002) 213 CLR 606, there are verdicts of not guilty as well as the guilty verdict. The Magistrate gave acceptable reasons for the conclusion he reached. His failure to be satisfied on the two charges where he acquitted does not lead to a conclusion that the complainant was a person of damaged credibility on all matters. I have been particularly mindful of the tender age of the complainant and some inconsistencies in his evidence, including that noted by the Magistrate in relation to the footwear. There is also a discrepancy between the reason given for the alleged kicking: in the interview the reason was the discussion about the watch; while in evidence the reason advanced was bed wetting. However, as the Magistrate has recounted, the accounts all reported that there had been a discussion about the watch and that the complainant had indeed wet his bed.
59 There was unchallenged evidence of the fact of the injuries and the nature of those injuries. The injuries were capable of providing support to
(Page 18)
- the complainant's testimony. Strict corroboration was not required as a matter of law but the tender age of the complainant requires a court to exercise special caution in proceeding to a conviction. Conscious of that I have nevertheless formed the opinion that upon a consideration of all the evidence it was open for the Magistrate to be satisfied beyond reasonable doubt as to the appellant's guilt. Following my review of the evidence, I consider that it was open for the Magistrate to conclude, as he did, that the injuries had been caused when the appellant kicked the complainant twice. This ground fails.
Conclusion
60 Although leave was granted to appeal, the appeal is dismissed.
61 Counsel has indicated that the DPP does not seek costs. The orders will therefore be, appeal dismissed, no order as to costs.
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